Mst. Halima Begum vs Bal Krishan Koul

Hakim Imtiyaz Hussain, J.—This revision petition is directed against the order passed by Learned City Judge, Srinagar on 21.9.2002 in

application u/s 144 CPC titled Amarnath Koul through heirs and LRs v. Mst. Haleema Begum. The dispute between the parties is on a shop

situated at residency Road Srinagar which belongs to Halima Begum who had given it on tenancy to one Amarnath Koul.

In a suit filed by Mst. Halim Begum for eviction against Amarnath Koul an ex-parte decree was passed by City Judge Srinagar on 29.6.1992.

The decree was executed and the possession of suit property was handed over to Mst. Halima Begum. Later Amarnath Koul died and his legal

heirs filed an application in the year 1988 before the court of City Judge Srinagar for setting aside ex-parte judgement and decree. Alongwith the

said application an application for condonation of delay was also filed. The court accepted the application for condonation of delay and

considering the grounds for setting aside ex-parte decree the court allowed it on 17.8.2002. Later the legal representatives of Amarnath Koul who

are the respondents in the present petition moved the trial court for restoration of possession in terms of Section 144 CPC. The trial court on

considering the matter allowed the application and directed that the possession of the property be returned to the legal heirs of the deceased tenant

Amarnath Koul. The trial court observed as under:-

I have given my thoughtful consideration to the entire discussion. I am satisfied by the arguments advanced by the learned counsel for the

applicants. In my opinion upon setting aside exparte decree the applicants must be given the benefit of the restitution which they would have been

entitled if there would have not been said exparte decree. Once decree is set aside it is obligation of the court to restore the possession of the suit

property to the person who have been dispossessed due to passing of such decree.

I accordingly hold that applicants are entitled to the restitution of the suit property. They may take the possession from the non-applicant/plaintiff.

In case the non-applicant does not handover the possession of the suit property/shop. However in that event the applicants shall take possession of

the suit property in presence of the SHO or SDPO concerned. The concerned police officer shall make the inventory of the articles if any lying in

the suit shop belonging to the non-applicant/plaintiff and keep the same in their safe custody and submit the report to this court. In case of any

difficulty in the execution of this order, the applicants will be at liberty to approach this court for further directions. The application is accordingly

disposed of and shall form part of the main suit.

Aggrieved by the said order the present revision petition has been filed. The only ground taken in the petition as well as during arguments before

this court is that under the provisions of Section 144 CPC it was only the tenant namely Amnarth Koul who was entitled to apply for restoration of

the possession and since said tenant is dead his legal representative who do not fall within the definition of tenant cannot claim for restoration of the

property.

The Ld. Counsel for the petitioner has vehemently argued that the definition of the tenant does not include his legal representative as such by no

stretch of imagination can legal representatives of the deceased tenant be treated as party as provided by Section 144 CPC.

I have gone through the impugned order. Ld. City Judge has considered this aspect in detail and has referred to the provisions of law as also the

relevant case law on the subject. The trial court on consideration of the matter found that the Legal Representatives were entitled restitution of the

suit property.

On perusal of the order impugned I find there is neither any excessive exercise of jurisdiction nor any miscarriage of justice. By allowing the

application for setting aside the decree, the trial court has regulated position back to the stage when the decree was passed in ex-parte. The trial

Court has therefore rightly allowed the application and allowed the legal representatives to take the possession from the plaintiff.

The principle of doctrine of restitution is that on the reversal of a judgment or order the law raises an obligation on the party to the record, who

received the benefit of the erroneous judgment or order, to make restitution to the other party for what he had lost. Reliance in this behalf may be

placed on Lal Bhagwant Singh Vs. Rai Sahib Lala Sri Kishen Das, and Binayak Swain Vs. Ramesh Chandra Panigrahi and Another, .

On reversal of an decree or order in any appeal, revision or other proceedings a party entitled to any benefit by way of restitution, may apply for

such restitution. The 'party' under the Section includes not only the person who were originally parties to the suit but also their representatives in

interest.

Section 2(6) of the House and Shop Control Act 1966 defines tenant as under tenant means any person by whom or on whose account rent or

any money liable to be paid for use of house or shop, is or but for a social contract, would be payable for any such premises and includes legal

representatives of such person and, person continuing in possession after termination of tenancy in his favour but does not include any person

placed in occupation of the house or shop by its tenant without the consent of the landlord.

A bare perusal of this definition shows that the word tenant includes legal representatives of the tenant as defined by the Section.

In view of this express definition of tenant I find that the legal representatives of the deceased tenant will fall within the definition of party as

provided u/s 144 CPC and such legal representatives would be entitled to apply for restitution of possession under the Section. As such I find no

merit in the revision petition which is accordingly dismissed.