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Jagat Bandhu Shaw and ors. Vs. Ram Nagina Pandey - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtKolkata High Court
Decided On
Case NumberL.P.A. No. 228 of 1974
Judge
Reported inAIR1977Cal281
ActsCode of Civil Procedure (CPC) , 1908 - Sections 144, 144(1) and 151 - Order 9, Rule 13
AppellantJagat Bandhu Shaw and ors.
RespondentRam Nagina Pandey
Appellant AdvocateR.K. Banerjee and ;Bhaskar Ghose, Advs.
Respondent AdvocateBarun Kumar Roy Chowdhury, Adv.
DispositionAppeal dismissed
Cases ReferredAbdul Rahman v. Sarafat Ali
Excerpt:
- .....second appeal against the decision in the first appeal and ultimately the high court in the second appeal reversed the decision of the lower appellate court. then the purchaser applied for getting back possession from the tenants under section 144 of the civil p. c. in the original trial court where the tenant filed the suit but he got no relief as the application was time barred. the plaintiff, therefore, filed another suit for declaration of his title and for recovery of khas possession. in connexion with that suit a second appeal was preferred by the plaintiff and in that second appeal the judgment was delivered as reported in 34 cal wn 707 : (air 1931 cal 14). we find that the facts in that case are quite different from those appearing before us in the instant appeal. that was not a.....
Judgment:

R. Bhattacharya, J.

1. The plaintiffs who are the appellants before us filed a suit for eviction of the respondent-defendant under the provisions of the West Bengal Premises Tenancy Act, 1956. At first the suit was decreed ex parte. Subsequently, the defendant Ram 'Nagina Pandey filed an application under Order 9, Rule 13 of the C. P. C. and the same was ultimately allowed. As a result the ex parte decree was set aside and the ejectment suit was restored to file. That order for restoration of the suit was maintained by this Court on a revisional application filed by the plaintiffs against that decision. Before the ex parte decree was set aside, the plaintiffs had obtained possession of the suit premises by evicting the defendant in execution of the said ex parte decree. After the ex parte decree had been set aside, the defendant respondent filed an application in the trial court under Section 144 of the C. P. C, 1908 for getting back the possession of the suit property. The application was contested by the plaintiffs, but ultimately the trial court save the relief to the defendant as prayed for. Against that order for restoration of 'possession to the defendant, an appeal was taken to this Court and the said appeal was disposed of by our learned brother Chittatosh Mookerjee, J. on 23-4-1974. The order for restoration of possession was maintained. Against that decision of Mookerjee, J., the present Letters Patent Appeal has been preferred by the plaintiffs.

2. Mr. Banerjee, the learned Advocate appearing on behalf of the appellants has canvassed that the learned trial court could not have passed any order for restoration of possession under Section 144 of the C. P. C. It has been submitted that as the ex parte decree was set aside by the same court which passed it, it is not a case of reversal of the decree as contemplated in Section 144 of the C. P. C. It has been contended that unless an order or a decree is reversed or varied in appeal by the higher forum, no order could be passed under Section 144 of the C. P. C. Mr. Roy Chowdhury, the learned Advocate for the respondent has, however, opposed the contentions.

3. For consideration of the arguments of Mr. Banerjee Section 144 of the C. P. C. is quoted below :--

''(1) Where and in so far as a decree or an order is varied or reversed, the Court of first instance shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or order or such part thereof as has been varied or reversed; and, for this purpose, the Court may make any orders, including order for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation or reversal.

(2) No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under Sub-section (1).

4. According to the provisions of Section 144 of the C. P. C. when a decree or an order is 'varied or reversed', the Court of first instance shall, upon an application, cause such restitution to be made as will place the parties in the position which they would have occupied but for such decree or order or such part thereof as has been varied or reversed. The question, therefore, is, as submitted by Mr. Banerjee, whether the setting aside of the ex parte decree by the trial court is an instance of reversal of the decree. It is nobody's case, however, that the instant case is one where the decree was varied. Our attention has been drawn to a decision of this Court in the case of Gopal Paroi v. Swarna Bewa reported in 34 Cal WN 707 : (AIR 1931 Cal 14). There it was stated that if a decree is set aside either by a proceeding in the suit itself or if it is set aside in another suit altogether or if without being set aside by such a decree it is superseded, these are matters which are not within the words of that Section 144 of the C. P. C. It has been stated that 'varied or reversed' has a quite definite meaning for lawyers in this country but what that definite meaning for lawyers is has not been stated. In that case the plaintiff purchased certain holding in execution of a rent decree. The tenants whose holding had been purchased brought a suit to set aside the decree and the sale. The trial court dismissed the suit. In the first appeal the suit was decreed and the tenants got recovery of possession on the basis of an application under Section 144, C. P. C. in the original Rent Court. The purchaser of the holding, however, took a second appeal against the decision in the first appeal and ultimately the High Court in the second appeal reversed the decision of the lower appellate court. Then the purchaser applied for getting back possession from the tenants under Section 144 of the Civil P. C. in the original trial court where the tenant filed the suit but he got no relief as the application was time barred. The plaintiff, therefore, filed another suit for declaration of his title and for recovery of khas possession. In connexion with that suit a Second Appeal was preferred by the plaintiff and in that second appeal the judgment was delivered as reported in 34 Cal WN 707 : (AIR 1931 Cal 14). We find that the facts in that case are quite different from those appearing before us in the instant appeal. That was not a case where a decree was set aside by the same court which passed it. The facts of that case did not raise any question whether any application under Section 144 of the C. P. C. was applicable in a case where a decree was set aside under Order 9, Rule 13. No decision on this point was necessary. In that case ultimately it was held that the plaintiffs' suit under consideration in the judgment referred to by us was not maintainable in view of Sub-section (2) of Section 144. The statements made regarding the implications of the word 'reverse' are practically obiter dicta. In the C. P. C. the word 'reverse' has not been defined and no special meaning for the purpose of Section 144 has been given. The word is to be taken in its ordinary meaning as would be found compatible with the provision of law. The ordinary meaning of the word 'reverse' is 'to undo or make void'. According to the Oxford Dictionary the word means amongst other things 'revoke' or 'annul' (decree attainder etc.). The word 'revoke' according to the same Dictionary means 'rescind', 'withdraw', 'cancel' (decree, promise etc.). The word 'reverse' according to Websters Seventh New Collegiate Dictionary means amongst other things 'set aside'. Giving our best consideration we cannot accept the contention of Mr. Banerjee that the word 'reversed' appearing in Section 144 of the Civil P. C. would mean 'set aside' by the appellate court alone. For proper application of Section 144 the word 'reverse' should be given its meaning in the wider sense and in that view of the matter, it will mean setting aside of the order of the decree by the Court which passed it and also by the Court of higher forum either in appeal or in revision. The meaning of the word is not in any way rastricted in the section.

5. It has been argued by Mr Banerjee that from the language used in Section 144 of the C. P. C. particularly in view of the words 'the Court of first Instance', the reversal of the decree or the order referred to in Section 144 must be by the Court of appeal and not by the Court of the first instance. The submission of Mr. Baner-jee is that when there is the provision for the Court of first instance meaning the Court of the initial stage of the suit for passing the order for restitution on an application, it implies that the reversal of the decree or the order must be by a Court of appeal at a later stage subsequent to the order or decree in question of the trial court. On the grammatical analysis of the sentence in Section 144 and on the plain meaning of the simple words appearing in that section, it cannot be found that there is any reason for such implication as suggested by Mr. Banerjee without importing something on imagination. The Court of first instance referred to in Section 144 means the initial Court where the suit was originally started, that is to say. the trial court. It should be remembered that the trial court can set aside a decree passed by it under Order 9, Rule 13 of the C. P. C. and there may be occasions for the trial court to reverse or recall an order or decree passed by it for proper decision and for ends of justice. An order or a decree again may be set aside in an appeal or a revision. There are thus cases of reversal of a decree or an order by trial court or by the court of higher forum and as such the legislature thought it fit to avoid doubt to say specifically in Section 144 of the C. P. C. that in cases of reversal of a decree or an order, the party concerned may file an application for restitution, if occasion arises, in the Court of the first instance, namely, the Court where the proceeding originated. We find no restricted meaning of the word 'reversed' referred to in Section 144. It is unthinkable that while enacting Section 144, the legislature intended that the defendant would not fee given restitution as contemplated therein when a decree or an order is varied or reversed by the trial court though relief could be given if a decree or an order is varied or reversed by the appellate court. The Full Bench decision of the Patna High Court in the case of Maqbool v. Khodaija Begum reported in AIR 1949 Pat 133 (FB) took a similar view. The word 'reversed' is used in the section in general and wider connotation. This intention is clear from the Sec, 144 of the Civil Procedure Code (as amended in) 1976 when after 'varied or reversed' has been added 'in any appeal, revision or other proceeding' to remove any ambiguity or doubt. The words 'or other proceeding' now mentioned in the amended Code include proceedings under Order 9, Rule 13 of the C. P. C. The point now urged by Mr. Banerjee was, however, not taken in the trial court and in the appeal before Mookerjee, J. In view of our discussions above, we do not accept the interpretation advanced by Mr. Banerjee.

6. Lastly an attempt was made by Mr. Banerjee that the recovery of possession may be stayed till the disposal of the suit by the trial court to avoid multiplicity of proceedings because the plaintiffs believe that they have a good case to succeed and to get a decree for eviction. This is no ground for stay. As the decree for which the plaintiffs obtained possession of the suit premises is not in existence, the plaintiffs cannot retain possession and if a fresh decree is obtained the plaintiffs will be entitled to get possession on the basis of the said decree. The illegal possession of the plaintiff after the previous decree has been set aside cannot be made legal if a new and subsequent decree is passed. In this connexion we may refer to the case of Abdul Rahman v. Sarafat Ali, 20 Cal WN 667 : (AIR 1916 Cal 710). There on the basis of an ex parte decree certain property was sold in execution thereof. The trial court set aside the ex parte decree on the prayer of the defendant and consequently the sale was set aside. The matter was taken to the High Court and it was submitted that on retrial the plaintiffs obtained a decree and as such the sale could not be held invalid but be deemed to be validated by the passing of a fresh decree. That contention was rejected.

7. In the present case the plaintiffs have obtained possession which they cannot retain after the order passed by the trial court under Section 144 of the C. P. C. The defendant has been kept out of possession for a long period. The right of the defendant must be vindicated. The plaintiffs shall not be allowed to render the order for restitution passed by the trial court ineffective. For ends of justice we feel that the final hearing and the disposing of the suit should be stayed, if the suit has not been already disposed of in the meantime, until the defendant gets back possession on the basis of the order for restitution according to law.

8. The appeal is dismissed without cost as indicated above.

A.K. Janah, J.

I agree.


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