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Andhra Pradesh High Court
Judges : A.SAMBASIVA RAO, C.V.RAMULU
Ganesh Parshad - Appellant
Versus
Adi Hindu Social Service - Respondent
Decided On : 08-23-74
RESTITUTION - SECTION 144, C. P. C. - INTERPRETATION AND APPLICATION - CONDITIONS FOR GRANT OF RESTITUTION - BALANCE OF CONVENIENCE IRRELEVANT - APPELLANT ENTITLED TO RESTITUTION OF SUIT PROPERTY.
Fact of the Case:
Appellant, a tenant, was dispossessed of the suit property in execution of an ex parte decree obtained by the respondent. The ex parte decree was later set aside by the appellate court and the matter was remanded for fresh disposal. The appellant filed an application for restitution of the suit property under Section 144, C. P. C., which was dismissed by the trial court and the appellate court. The appellant challenged the dismissal of his restitution application in a Letters Patent Appeal.
Finding of the Court:
The court held that the appellant was entitled to restitution of the suit property under Section 144, C. P. C. The court found that the appellant had a subsisting interest in the suit property on the date of execution of the warrant of delivery of possession and also on the date on which he applied for restitution. The court further held that the reasons given by the learned Judge for setting aside the concurrent orders of the Courts below were irrelevant for the purpose of grant of restitution to the appellant.
Issues: 1. Whether the appellant was entitled to restitution of the suit property under Section 144, C. P. C.? 2. Whether the balance of convenience was a relevant factor in determining whether to grant restitution?
Ratio Decidendi: 1. Section 144, C. P. C. is a mandatory provision and leaves no discretion to the court to grant or refuse to grant restitution in case of the variation or the reversal of the decree. 2. The conditions for grant of restitution under Section 144, C. P. C. are: (i) the restitution sought must be in respect of a decree or order which had been varied or reversed; (ii) the party applying for restitution must be entitled to the benefit under a reversing decree or order; (iii) the relief claimed must be properly consequential on the reversal or variation of the decree or order. 3. The balance of convenience is not a relevant factor in determining whether to grant restitution under Section 144, C. P. C.
Final Decision: The court allowed the appeal, set aside the order of the learned Judge, and directed the restitution of the suit property to the appellant.
( 1 ) THIS Letters Patent Appeal is directed against the judgment of our learned brother, Madhava Reddy J. in A. A. A. O. No. 16 of 1971, allowing the appeal and setting aside the judgments and decrees of the lower courts.
( 2 ) THE material facts are : The respondent Society, called "adi Hindu Social Service League" is a society registered under the Hyderabad Societies Registration Act. The respondent-Society runs a girls school in the main building bearing No. 480 at Esamiah Bazar, Hyderabad; adjacent to the main building there is an open plot of land measuring about 81 sq. yards. After executing a rental agreement, the appellant herein obtained the said open plot of lend, bearing Municipal No. 4-7-1081 from the then Secretary of the respondent-Society on a monthly rent of Rs. 7. The appellant put up a thatched hut in the said vacant land. The appellant agreed to remove the hut when he vacates the plot of land.
( 3 ) SINCE the appellant herein failed to pay rents in respect of the said plot of land from July, 1953 onwards, the respondent-Society filed small cause suit No. 449 of 1965 against the appellant for the recovery of arrears of rent. The appellant herein resisted the said suit on the ground that he is the true owner of the said plot of land; that, he had obtained the suit land from his brother who, in his turn, got the said land by way of gift from one Johandrrunnissa Begum and that he has perfected his title to the said land by being in long, open continuous and uninterrupted possession of the same for over 34 years. He further denied that he was a tenant of the respondent, or that he had, at any time, paid the rents.
( 4 ) LATER on, the small cause suit was transferred to the court of the IV Additional Judge City Civil Court, Hyderabad. By his judgment dated 17-11-1966, the IV Additional Judge. City Civil Court, Hyderabad held that the tenancy and the rental agreement were proved and that, the arrears of rent were due, but dismissed the suit on the ground that, since the tenancy had been terminated by the plaintiff, the suit should have been only for compensation or damages for use and occupation and that, such a suit was outside the cognizance of the Small Causes Court.
( 5 ) SINCE the respondents suit for arrears of rent against the appellant was dismissed, for want of jurisdiction, the respondent filed O. S. No. 22 of 1968 in the Court of the II Asst. Judge, City Civil Court, Hyderabad, for the eviction of the appellant from the suit plot of land. The appellant raised the same defences in the suit as he had raised in the small cause suit which was filed against him for the recovery of arrears of rent. In his written statement, the appellant herein had also stated that on 9-2-1968 he had sold away the said plot of land to one Kumari Anupameswari Bai through her father and natural guardian, Kailash Prashad and that, she was a necessary party to the suit. Since the said purchaser was not made a party to the suit, the suit was bad for non-joinder of necessary parties. The eviction suit O. S. No. 22 of 1968, was heard and decreed ex parte on 2-8-1969. In execution of the ex parte decree, the respondent obtained the possession of the said vacant plot of land from the appellant.
( 6 ) THE appellant then filed an appeal against the ex parte decree in the court of the Chief Judge, City Civil Court at Hyderabad. The Chief Judge. City Civil Court, by his judgment dated 15-10-1969, allowed the appeal and set aside the ex parte decree. The appellant herein then filed E. A, No. 11 of 1969 for restitution of the suit property which was taken from him by the respondent in execution of the ex parte decree.
( 7 ) THE IV Asst. Judge, City Civil Court Hyderabad, allowed the said E. A. and directed the restitution of the suit property to the appellant. On appeal, the order of restitution was upheld by the Chief Judge, City Civil Court subject to the direction that the stair-case constructed in the premises by the respo
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