Rajinder Kumar vs Smt. Devi

M.L. Singhal, J.—This is revision filed by Rajinder Kumar under article 227 of the Constitution whereby he has prayed for the setting aside of order dated 24.4.2000 passed by Civil Judge, junior Division, Karnal in favour of Smt. Devi and others against him (Rajinder Kumar) and respondents No. 5 to 9 i.e. Mangal Dass son of Jinda Ram and Bansant Ram etc. in proceedings u/s 144 CPC though he is not party in the proceedings.

One Mangal Dass filed eviction petition against Santu alias Basant Ram. On 9.10.1993, the eviction petition was allowed ex parte by the Rent Controller. Santu alias Basant Ram filed application for the setting aside the ex parte ejectment order which was dismissed on 27.1.1997. Santu alias Bansant Ram went in appeal. In appeal, no stay was granted against execution. Possession was taken by Mangal Dass. On 25.9.1998, the Appellate Authority set aside the ex parte order of eviction and remanded the case of Rent Controller with a view to deciding the eviction petition on merits. During the pendency of the appeal. Mangal Dass sold the property to Basant Ram son of Kala Ram and others respondents 6 to 9 demolished the old house and reconstructed. An application was made by Mangal Dass (the original landlord-owner) withdrawing the eviction application. He withdrew the eviction application. Santu alias Basant Ram died. An application was made by the heirs of Santu alias Basant Ram namely Smt. Devi and others u/s 144 CPC for restitution of possession to them. It was alleged by Smt. Devi and others respondents 1 to 4 in their application u/s 144 CPC that they should be restituted to possession as they had been dispossessed during the pendency of the appeal in execution of the eviction order which was set aside by the Appellate Authority on 25.9.1998. Rent Controller allowed the application vide order dated 5.3.1999 and ordered them to be restituted to possession. Vendees from Mangal dass i.e. Bansant Ram and others respondents 6 to 9 assailed the order of Rent Controller dated 5.3.1999 through C.R. No. 2078 of 1999 in this Court which was dismissed by a learned Single Judge of this Court vide order dated 16.11.1999.

After the old house was demolished and new construction was raised, Rajinder Kumar was inducted tenant to the house by Smt. Shanti Devi wife of Bansant Ram Respondent No. 7 at a rental or Rs. 600/- on 9.4.1988. As Rajinder Kumar was in possession of this house inducted by Basant Ram etc. vendees from Mangal Dass, the previous landlord (owner) of Santu alias Basant Ram, Rajinder Kumar filed suit for permanent injunction restraining the execution of warrant of possession against him. Vide order dated 24.4.2000 Civil Judge, Junior Division, Karnal declined his request that warrant of possession be not executed and possession be not restituted to the heirs of Santu alias Basant Ram and ordered warrant of possession to issue.

Learned counsel for the petitioner submitted that Rajinder Kumar petitioner was inducted to this house by Smt. Shanti wife of Basant Ram (transferee from Mangal Dass) on 9.4.1998 when there was no encumbrance of any tenancy on this house. Earlier, there was encumbrance of tenancy on this house created by Mangal dass, the previous owner. Mangal Dass filed eviction petition against Santu alias Basant Ram (tenant) which was allowed ex parte. Santu alias Basant Ram filed an application for setting aside the ex parte eviction order before the Appellate Authority. Mangal Dass got possession in execution of the ex parte eviction order during the pendency of the appeal and sold the property to Smt. Shanti Devi etc. respondents 6 to 9. Rajinder Kumar was inducted to this house as tenant. After the ex parte order of eviction was set aside and the case remanded to the Rent Controller, Mangal Dass withdrew the eviction petition.

Possession was ordered to be restored to the heirs of Santu alias Basant Ram by Rent Controller, Karnal vide order dated 5.3.1999. Transferees from Mangal Dass went in revision against that order namely C.R. No. 2078 of 1999 which was dismissed by a learned Single Judge of this Court. Learned counsel for the petitioner submitted that Mangal Dass was related to Santu alias Basant Ram as Smt. Devi wife of Santu alias Basant Ram is the sister-in-law of Mangal Dass and she is also the Samdhan of Mangal Dass. Property was sold after the eviction order was passed and this fact in the knowledge of Mangal Dass as well as in the knowledge of Santu alias Basant Ram. They were closely related to each other and connived with each other to grab money and the subsequent vendees constructed a new hose after demolishing the old house and let it out on rent to the petitioner. It was submitted that after the petitioner was inducted as tenant, respondents No. 1 to 4 filed application for restitution of possession u/s 144 CPC against respondents No. 5 to 9 in which he was not impleaded as party. It was submitted that when this house was let out to the petitioner, to his knowledge, no proceedings for restitution of possession was pending. It was submitted that vide the impugned order, Civil Judge, Junior Division, Karnal has ordered restoration of possession to respondents No. 1 to 4 by ejecting him though he was not party to the proceedings. Petitioner is a tenant is his own right and on the basis of valid rent note, he cannot be evicted except in due course of law and not through order Annexure P2 to which he was not a party nor was he given any opportunity to defend his independent right of tenancy.

Learned counsel for the petitioner submitted that a person in possession of the property who establishes that he is not bound by the decree sought to be executed is entitled to protect his right to retain possession through process of Court. Person who establishes that he is not bound by the decree passed against any other person cannot be dispossessed in execution of that decree. In support of this submission, he drew my attention to Inder Singh v. Piara Singh and another 1993 PLJ 17 where it was held that "executing Court is bound to consider application of a person in possession, where he was not a party to the decree, before he is dispossessed" It was submitted that there can be no rationale or justification to hold that a person in possession of a property who establishes that he is not bound by the decree sought to be executed, is not entitled to protect his right, i.e. the right of retention of his possession through the process of Court. As a matter of fact, as per Order 21 Rule 35, Civil Procedure Code, the possession of the immovable property covered by a decree can be delivered to the decree-holder by removing a person bound by the decree only. The executing Court is bound to consider the application of a person, in possession, where he was not a party to the decree, before he is dispossessed. Learned counsel for the respondents 1 to 4 on the other hand submitted that the argument of the learned counsel for the petitioner proceeds on fallacy. The petitioner has no independent existence of his own. He was inducted as tenant by Basant Ram etc. respondents No. 6 to 9 who are transferees form Mangal Dass at a time when Santu alias Basant Ram was challenging the ex parte order of eviction before the learned Appellate Authority, Karnal, which had been passed against him and in favour of Mangal Dass by Rent Controller, Karnal. On 25.9.1998 Appellate Authority set aside ex parte order of eviction and remanded the case of the Rent Controller for a fresh decision. It was during the pendency of the appeal that Mangal Dass got possession in pursuance to the ex parte order of eviction. After getting possession, he sold the property to respondents No. 6 to 9. Rajinder Kumar was inducted as tenant by Smt. Shanti Devi during the pendency of the "lis". Sub-section (1) of Section 144 CPC reads as follows:-

"144(1) Where and in so far as a decree (or and 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 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.)"

It is abundantly clear from this provision that when a decree or an order is varied, reversed or set aside, the Court can direct restitution. In Minto Lal v. Narindas 1966 ALJ 510 of the Court held "that in proceedings for restitution the Court has to consider the equities arising in the case. The Court has to pass orders which will do justice to both the parties. Such relief has to be given as is properly consequential on the reversal or variation of the order. In other words, there cannot be any broad guidelines because the Court has to see as to whether in the peculiar facts restitution of the premises should be ordered or not."

When possession was ordered to be restored to the heirs of Santu alias Basant Ram (tenant) by Rent Controller, Karnal vide order dated 5.3.1999 affirmed in Civil Revision NO. 2078 of 1999 decided by the learned Single Judge of this Court vide order dated 16.11.1999, warrant of possession had to be issued in their favour on their application for restitution of possession filed u/s 144 CPC. Rajinder Kumar has no independent existence. He must sink or swim with Shanti Devi transferee from Mangal Dass. If no restitution of possession takes place in favour of Smt. Devi and others heirs of Santu alias Basant Ram, Rajinder Kumar can succeed in his claim to retain possession as tenant inducted by Smt. Shanti one of the transferees form Mangal Dass. It was held in Hurmat Ali, appellant v. Matib Ali, respondent AIR 1952 GAU 111 that "restitution can be claimed by a party entitled to it u/s 144 not only against the original party to the litigation but also against the representatives which expression includes representatives-in-interest. A transferee pendente lite is a representative of the transferor, the party to the suit and is also a person bound by the decree within the meaning of Order 21 Rule 35 read with Section 52 TP Act even though he is not made a party to the suit or appeal." To the same effect are the observations of Karnataka High Court in Canada Sal v. Jamshed Khan 1994(1) RCR 4 (Karn): 1994(1) RLR 292, which are as follows.:-

"Landlord obtained ex parte decree of eviction. Decree of eviction executed. Tenant evicted. Ex parte eviction order set aside, thereafter tenant entitled to restitution of possession. Tenant, a displaced person, entitled to remedy of restitution not only against landlord but also against any of his transferee, assignee or representative-in-interest. Respondent 1 and 2 present tenants not entitled to obstruct restitution."

For the reasons given above, this revision fails and is dismissed.

Revision dismissed.