JUDGMENT - QAZI M.M., J.:---The non-applicants/landlords were the plaintiffs in the earlier proceedings Special Civil Suit No. 346 of 1983. They had filed the said suit against the present applicant/tenant for ejectment and possession without permission from the Rent Controller since no permission was then necessary. That suit was decreed ex parte vide order dated 23-12-1983. The present non-applicant are the owners of the three storied building "Praying Sadan" situated in Ward No. 1, Variety Square, Bearing House No. 1, Nagpur. In the present proceedings, we are concerned only with the first floor of the said building. In pursuance of the decree in Special Civil Suit No. 346 of 1983, the non-applicants/landlords got possession of the first floor. The applicant/tenant challenged the ex parte decree by way of first appeal before this Court. The appeal was dismissed by this Court on 14-2-1985. Thereafter, the tenant filed Special Leave Petition before the Supreme Court of India, but that was also dismissed on 26-5-1986. Thus, the decree for ejectment and possession obtained by the present non-applicants/landlords in Special Civil Suit No. 346 of 1983 against the present applicant/tenant became final.

2. The applicant/tenant Regular Civil Suit No. 1134 of 1984 on 2-8-1984 against the non-applicants/landlords for a declaration that the ex parte judgment and decree dated 23-12-1983 in Special Civil Suit No. 346 of 1983 was obtained by fraud. The applicant/tenant also applied for temporary injunction. The 4th Joint Civil Judge, Junior Division, Nagpur, vide order dated 2-8-1984, directed the non-applicants/landlords to open to lock which they had put on the first floor. In pursuance of this order, the applicant/tenant got possession of the first floor. The non-applicants/landlords challenged the order of injunction passed by the trial Court by way of an appeal before the District Court, Nagpur (Misc. Civil Appeal No. 188 of 1984). However, that appeal was dismissed and hence the non-applicants/landlords had to approach this Court by way of revision (Civil Revision Application No. 55 of 1986). When the matter came up for hearing before this Court on 14-3-1990, the applicant/tenant filed pursis which reads as under:

"The non-applicant hereby withdraws the Civil Suit No. 1134 of 1984 to pursue his remedy under section 47 of the Civil Procedure Code in view of the changed position of law after the pronouncement of the judgment reported in (Nanakram v. Kundalrai)1, 1986(3) Bom.C.R. 98, provided this honourable High Court grants status quo till the decision of this objection under section 47 of the Civil Procedure Code."

In view of the pursis, this Court allowed the present applicant/tenant to withdraw Regular Civil Suit No. 1134 of 1984. While allowing the applicant/tenant to withdraw the suit, this Court observed:

"In view of the withdrawal of the suit, the injunction granted by the trial Court automatically stands vacated. No further orders are necessary on that point."

3. In view of the withdrawal of Civil Suit No. 1134 of 1984, the non-applicant/landlords filed an application for restitution of possession of the first floor on 13th March, 1990. The trial Court, vide order dated 6th April, 1990, directed the applicant/tenant to restore possession of the first floor to the non-applicants/landlords. This order was challenged by the applicant/tenant in appeal before the 6th Additional District Judge, Nagpur, but the appeal also came to be dismissed by an order dated 24th April, 1990 and hence this revision.

4. The question that falls for my consideration is whether the application under section 144 of the Code of Civil Procedure for restitution of possession of the disputed property is tenable.

5. One of the main contentions of Mr. Mohta appearing on behalf of the applicant/tenant is that the non-applicants/landlords had initiated the proceedings for ejectment and possession in Special Civil Suit No. 346 of 1983 without obtaining permission fr

Click Here to Read the rest of this document