Restitution cannot be granted to restore a fraudulent or deceitful act.

JUDGMENT - Waikar M.R., J - Dnyandeo, the present respondent, who claimed to be the tenant of the premises consisting of 3 rooms, filed Civil Suit No. 289 of 1965 against his landlords (the present appellants) for perpetual and mandatory injunction. The mandatory injunction was claimed in respect of the southern room on the first floor alleging that while he was in possession of the said room, it was temporarily vacated by him on the representation made by the appellants that it was to be white-washed. Thereafter without restoring possession of the said room, they put their own lock to this room. An interim mandatory injunction was prayed for after the filing of the suit and the same was granted and the appellants were directed to remove the lock from the said room.

2. The suit of Dnyandeo was, however, dismissed by all the Courts on the ground that the contract of tenancy was void and illegal and as such he was not entitled to claim any injunction.

3. The present application under section 144 of the Code of. Civil Procedure was then filed by the present appellants praying for restoration of possession of the southern room, the possession of which was required to be delivered by them to Dnyandeo under the interim order passed in the said suit.

4. This application for restitution was dismissed by both the Courts below. The learned Assistant Judge placing reliance on Lala Bhagwandas v. Lala Kisan1, observed that 'granting restitution to the appellants as claimed, would amount to giving them an unfair advantage and to aid them to retain what they had obtained by practising fraud and on the contrary, if the restitution is not granted, the appellants would lose nothing'. He further observed that the respondent would not derive any advantage to which he was not entitled.

5. In this second appeal Shri Kalele, the learned counsel for the appellants submitted that even before the plaintiff filed the suit, the southern room in question had the lock of the defendants and hence the relief of mandatory injunction was prayed for in the suit directing the defendants to remove the said lock and an interim mandatory injunction was prayed by him and the trial Court was pleased to grant the same. The lock was, there- fore, removed and the plaintiff was able to secure possession of the said southern room. When the suit was ultimately dismissed, when the relief for mandatory injunction in particular was also negatived, the defendants were entitled to have the status-quo ante restored. He further submitted that even assuming that previously the plaintiff was in possession of the room and that the defendants temporarily got possession of it on the pretext that the suit room had to be white-washed and that after getting possession they locked it, even so when the relief of mandatory injunction as claimed in the suit was ultimately negatived, the defendants were entitled to have the possession restored to them by putting their own lock as was the position on the date of filing of the suit.

6. Now the doctrine of restitution under section 144 of the Code of Civil Procedure is based on the principle that the acts of the Courts should not be allowed to work injury to the suitors. When a person has received the benefit on the basis of an erroneous judgment, the Code raises an obligation on that party to make restitution to the other party of what he has lost. All the same the Courts have to pass an order consistent with justice to both the parties which necessarily must depend on facts and circumstances of each case. The doctrine of restitution being based on equitable principles it would not be applied in case where it conflicts with the other rules of equity.

7. Now, what are the facts here? There were three rooms of which the plaintiff claimed to be the tenant. The southern room on the first floor had a lock of the defendants. It was alleged that on the representation that the room was to be white-washed, the plaintiff only temporarily vacated it, but the d

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