Lekh Raj Suri & Sons vs Jagdish Raj Kohli

Cotroversy in this revision petition lies in a narrow compass.

The respondent brought a suit against the petitioner for its eviction from a shop which was decreed by the trial court of First Additional Munsiff,

Srinagar, on 27101980. The decreeholder to; k out execution of the decree on 4111980 and obtained vacant possession of the shop 8111980.

An appeal against the aforesaid decree was taken by the petitioner to the court of District Judge, Srinagar, en 13111980, On the very same day,

the District Judge passed an order restoring the possession of the suit shop to the petitioner which was accordingly restored. This order was

challenged by the respondent in Civil Revision Petition No. 14 [/80, which was accepted by this court on 1091981 and the respondent ordered to

be put back into possession of the shop. The operative part of the aforesaid order reads thus :

In the result, the petition is allowed with costs and the impugned order passed by the District Judge is set aside. The decreeholder shall be at

liberty to move the trial court for restitution of the suit shop. The District Judge shall try to dispose of the appeal as expeditiously as possible.

Parties are directed to appear before him on 2191981.

Pursuant to the aforesaid direction, the respondent brought an application for restitution u/s 144 Civil Pr. Code in the First Addl. Munsiff,

Srinagar, An application for transfer of the aforesaid application was moved by the petitioner in the High Court, which was allowed by it and the

aforesaid application u/s 144 was transferred by it to the court of SubRegistrar, Munsiff, Srinagar. The transferee court eventually allowed the

application and ordered restitution of the shop in favour of the respondent by its order dated 2811982. It is this order which has been assailed in

this revision petition.

Appearing for the petitioner. Mr. Shah has attacked the aforesaid order on three grounds ; firstly, that Section 144 had no application to the

case, because what had been varied or reversed by this court in Civil Revision Petition No. 141/.Q was the interim order of the learned District

Judge restoring the possession of the shop to the petitioner, but not any decree passed by him, adding, that even Sec. 151 had no application to

the said case because no suit or appeal was subjoined before the trail court in which that could have possibly exercised its inherent powers ;

secondly, that even this court by its order passed in Civil Revision No, 141/80 could not have conferred jurisdiction on the trial court which it

otherwise did not have ; and thirdly, that the equities did not warrant the exercise of its inherent powers by the court in favour of the respondent.

Mr. Shah's argument postulates pendency of some original matter, e. g, suit appeal or revision before it, to enable the court to exercise its

inherent powers. This warranted neither on the plain language of Section 144 and nor on that of Section 151. Inherent powers, as already held in

Civil Revision Petition No. 141/80 (AIR 1982 J & K 2), has not been conferred upon courts by the Civil Procedure Code. It is a power inherent

in every court, which it will exercise ex debit justified. It is true, there must be a matter pending before the court in which this power may be

exercised, as it cannot be exercised in the air' But, it is not necessary that the case in which it to be exercised, must he original in nature. It may be

exercised in an ancillary matter also like an application u/s 144, There being an application u/s 144 pending before it, the trial court could have

exercised its inherent powers to give appropriate relief to the respondent, when it found the Sec, 144, in terms, did not apply to the facts of the

case. This is that the trial court has actually done and in my opinion, rightly so. True, Section 144 did not in terms, apply to the facts of the case

because that had been reversed by this court was an order and not a decree, nevertheless, the trial court was not powerless and could order

restitution in favour of the respondents by exercising its inherent powers. This is exactly what it has done. There is ample authority to support the

view that where Sec. 144 in terms, does not apply, restitution may be ordered by taking recourse to inherent powers of the court u/s 151. (See

Maharaj Sasikanta Achrajee Vs, Jalil Baksha Munshi and others. AIR 1931 Cal. 779(2), Subhash Chander Vs. Shri Bodh Raj and another. All

1969 J&K 8, Gangadhar and others Vs. Raghubar Dayal & others, AIR 1975 All. 102 (F. B), Kaku Singh and ors. Vs. Gobind Singh and others

AIR 1959 Punjab 468 and S. Seva Singh Vs. Ghulam Mohd. VIII. Jammu & Kashmir Law Reports, 198).

Having found that the trial court had rightly exercised its inherent powers in ordering restitution of the shop in favour of the respondent, it is

meaningless to go into the petitioner's other contention that this court had no power to invest jurisdiction in the trial court which in fact it did not

have.

Equally in tenable is the last contention relating to equity, the existence whereof in favour of petitioner is unthinkable. The respondent had

obtained possession of the shop pursuant to a decree passed in his favour by a competent court. This possession was illegally taken away from him

pursuant to the order of the District Judge, which too he had illegally passed and which was consequently set aside by this court in revision. In

these circumstances, therefore, is not possible to say that any equity existed in favour of the petitioner, which ought to have persuaded the trial

court not to exercise its inherent powers in favour of the respondent. On the contrary, the equity, if at all it existed, it existed in faovur of the

respondent.

All the contentions raised on behalf of the petitioner having failed, the revision petition also fails, which is accordingly dismissed with costs.