Gurbax Singh vs Karam Chand and Others

V.S. Aggarwal, J.—The present revision petition has been filed by Gurbax Singh directed against the order passed by the learned Additional Civil Judge, (Senior Division), Jalandhar dated 14.12.1998. By virtue of the impugned order, the learned trial Court allowed the application of the respondent. He directed restitution of possession. The petitioner was directed to put in possession Karam Chand, judgment debtor, in the suit premises.

The relevant facts are that respondent Karam Chand is a tenant in the property. An order of eviction had been passed in favour of the petitioner on 5.12.1997. In execution, possession was delivered to. the petitioner on 14.11.1998.

Karam Chand filed an application u/s 144 read with Section 151 of the CPC (for short "the Code") for restoration of possession. It was asserted that when the petitioner took possession, he made enquiry. He filed an application for setting aside of the ex parte eviction order. The petitioner influenced the local police and took possession. According to the respondent-tenant, he is dispossessed in pursuance of no order passed by the Court.

The application was opposed. The petitioner contended that such application was not maintainable. The possession has been taken in pursuance of the order of eviction passed in his favour. He also asserted that the tenant failed to appear despite service. It was denied that there was any misrepresentation or fraud.

The learned trial Court went into controversy and held that due to some inadvertence execution Clerk issued warrants of possession which have never been ordered by the Court. There was some deception that had been practiced. According, it was ordered that possession be redelivered to the applicant tenant.

Aggrieved by the some, present revision petition has been filed.

On behalf of the petitioner, it has been urged that such an application u/s 144 of the Code is not maintainable. The argument of the learned counsel was that Section 144 of the Code would only be applicable if there was any variation or reversal of the judgment or decree in appeal or revision. To appreciate the said controversy, reference can be made to Section 144 of the Code which reads as under:-

"144. Application for restitution:- (1) Where and in so far as a decree or an order is varied or reversed in any appeal, revision or other proceeding or is set aside or modified in any suit instituted for the purpose, the Court which passed the decree or order 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, reversed, set aside or modified; and, for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation, reversal, setting aside or modification of the decree or order.

Explanation:- For the purposes of sub-section (1), the expression "Court which passed the decree or order" shall be deemed to include:-

(a) where the decree or order has been varied or reversed in exercise of appellate or revisional jurisdiction, the Court of first instance;

(b) where the decree or order has been set aside by a separate suit, the Court of first instance which passed such decree or order;

(c) where the Court of first instance has ceased to exist or has ceased to have jurisdiction to execute it, the Court which, if the suit wherein the decree or order was passed were instituted at the time of making the application for restitution under this section, would have jurisdiction to try such suit.

(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 91)."

Indeed, it is apparent that if a judgment or decree is varied or reversed in appeal or revision, section 144 of the Code can be invoked for restitution. The learned counsel in this regard relied upon the decision of the Jammu & Kashmir High Court in the case of Jagdish Raj Kohli v. M/s Lekh Raj Suri and Sons, AIR 1982 J & K 2. In the cited case, the defendant had been dispossessed from the suit premises in execution of an eviction decree against him. The appellate Court by way of interim relief directed the restoration of the possession. It was held that by merely filing an appeal, the defendant does not become entitled to restoration of possession. In paragraph 6 of the judgment, the Court observed as under:-

"Nevertheless, inherent powers of the Court which have been preserved u/s 151 are not unbridled or unfettered, but have certain well recognized constraints attached to them. No Court can exercise its inherent power when there is a clear bar against such exercise contained in the Code or any other provisions of law. Nor can such power be exercised by a Court, when there is a specific provision in the Code under which it can give adequate and appropriate relief to the aggrieved party . . . . "

It is abundantly clear from the nature of the cited case that it has no application in the present revision petition. The facts are totally different. In fact, in that case it was rightly observed that in the absence, of any order by the Court, merely because appeal had been filed it could not be held that possession can be redelivered. The decision is patently distinguishable and is confined to its peculiar facts.

Full Bench of the Allahabad High Court in the case of Syed Ajaz Ali Khan and Others Vs. Mohammad Rafiq and Others, , was also relied upon. The question in controversy before the Full Bench was, "whether an order passed by the State Government cancelling an order of allotment and directing the release of the accommodation in favour of the landlord passed in revision filed u/s 7-E of the Rent Control and Eviction Act is an order passed under Sub-section (2) of Section 7 of the Rent Control and Eviction Act within the meaning of Section 7-A (1) of that Act."

It was this question which has been answered. This is not the question before this Court and, therefore, further reference to the cited decision is of little consequence.

While appreciating the argument of the learned counsel one cannot lose sight of Section 151 of the Act. u/s 151 of the Code, the Court has the inherent powers to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.

It goes without saying that inherent powers has its roots in necessity. Its breadth is co-extensive with necessity. There would be no parameter. The only restriction would be that one cannot go against the statutory provisions. The inherent powers are wide and are not controlled by other provisions of the Code except when there is a specific bar.

What is the position herein. Though the petitioner had produced the order dated 27.5.1998 purported to be signed by the trial Court directing warrants of possession to be issued. The learned trial Court rightly observed that it is an inadvertent mistake. This is for the reason that the subsequent order dated 29.9.1998 clearly indicates that the trial Court had ordered that site plan had not been filed and the case has been adjourned to 20.11.1998 for filing of site plan. In other words, there was no effective order earlier passed for warrants of possession to be issued. In these circumstances, if possession has been taken in pursuance of warrants of possession which was not consciously issued, the petitioner cannot retain the same. No person would take advantage of the fault of the Court. Consequently, there is no ground to interfere in the order passed by the trial court because it had been passed u/s 151 of the Code using inherent powers of the Court rather than Section 144 of the Code.

For these reasons, revision petition being without" merit must fail and is consequently dismissed.