2001 PLP 1044 (MLD)

2. The learned counsel of the petitioner submits that order of the trial Court was in accordance with section 144, C.P.C. whereas the impugned order of the Additional District Judge is in violation of section 144, C.P.C. and he was erred in law to hold that petitioner had to file suit under section 9 of the Civil Procedure Code. He further submits that revisional Court was erred in law to rely on section 4'7 of the C.P.C. He further submits that‑order of the Trial Court is in accordance with Order 21, rule 11 (j)(v) of the Civil Procedure Code but the revisional Court was erred in law to set aside the same without adverting to this aspect of the case. He further submits that revisional Court reversed the order of the trial Court without adverting to the reasoning of the trial Court, therefore, the impugned order is not sustainable in the eyes of law. He further urges that impugned order is in violation of the law laid down by the Superior Courts. In support of his contentions he relied upon the following judgments:‑‑ 1979 CLC 109 (Mst. Zubaida Begum's case), AIR 1944 Lahore 165 (Alfred Sahir's case), AIR 1934 Lahore 322 (Beni Parshad's case) and AIR 1928 Lahore 7 (Ghanaya Lal's case).

3. The learned counsel for the respondents submits that respondents Nos.2 and 3 filed application in the pre‑emption suit after the order of this Court in R.S.A. No.71 of 1981 dated 4‑5‑1981 to implead the petitioner as respondent which was accepted. The petitioner being aggrieved filed revision petition before the revisional Court which was dismissed. He further submits that ingredients of section 144, C.P.C. are not attracted. The petitioner has to file application for execution of the decree or separate suit as the trial Court was functus officio after deciding the suit. He supporting the order of Additional District Judge in tooth and nail and submits that application of the petitioner was not maintainable before the trial Court and the revisional Court set aside the order of the trial Court with reasons. The learned counsel of the petitioner failed to point out any material illegality or irregularity in the impugned judgment, therefore, writ petition is not maintainable. He further submits that this Court has no jurisdiction to substitute its own decision in place of the decision of the Tribunals below.

4. I have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record myself. It is better and appropriate to reproduce section 144, C.P.C. to resolve the controversy between the parties:‑‑ Application for restitution.‑‑(1) Where and insofar as a decree is varied or reversed the Court of first instance, shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as well, so far as may be, place the parties in the position which they would have occupied but for such decree or such party thereof as has been varied or reversed; and, for this purpose the Court may make any order, 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 or reversal. (2) No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under subsection (1)." A plain reading of the aforesaid section reveals that principle of restitution is applicable or attracted where the applicant fulfils the following conditions:‑‑ (a) The restitution must be in respect of the decree which had been varied or reversed; (b) The party applying for restitution must be entitled to benefit under the reversing decree; (c) The relief must be properly consequential on reversal and variation of decree and is not opposed to any other principle of equity. The aforesaid provision of law reveals that this embodies the principle that nobody shall be prejudiced by the act of the Court meaning thereby it is the paramount duty of the Court to take care that the act of Court does not injure the suiter and when such injury is found by the Court on account of subsequent event of variation or reversal of the decree then it is the foremost duty of that Court to undo the wrong and reinstate the wronged party to the position to which it is entitled as per principle laid down in AIR 1940 Calcatta 260 (Birendra Nath Basu Thakur's case). It is settled proposition of law that section 144 of the Civil Procedure Code only embodies the Doctrine of restitution and does not confer any new substantive right which an aggrieved party does not possess under the general law. The right of restitution is not derived from section 144 of the Civil Procedure Code. That section merely specifies one of the methods by which that right can be enforced. The aforesaid provision of law was interpreted in AIR 1943 PC 189 Rohani Raman Dhwaja Pershad Singh's case and the relevant observation is as under:‑‑ 'When a decree is veried or reversed in the circumstances giving rise by way of restitution, the right arises automatically and is claimable under section 144, C.P.C. before the Trial Court'." The aforesaid provision of law is also interpreted in Safaraddi's case 16 Indian Cases 966 and laid down the following principle:‑‑ "Section 144 of the C.P.C. and in the inherent powers of the Court do not confer on anyone new substantive right they merely provide a more convenient Procedure. The right to restitution is not derived from section 144 of the C.P.C. and the power of the Court to direct restitution is inherent in the Court itself. " It appears the basis objective underlying section 144, C.P.C. is to redress the wrong and reinstate the wronged party to the original position to which it is entitled under varied decree of the Court. Meaning thereby restitution of possession to a party who succeeds in getting the adverse order reversed in appeal is nothing more than retracing the steps to nullify the proceedings whereby the party who was not entitled to the benefit had obtained it from the Court under the false colours. In arriving to this conclusion I am fortified by the judgment of this Court in Alfred Zahir's case AIR 1944 Lahore

165. The aforesaid proposition of law is also considered in Abdur Razzaq's case PLD 1997 Lah. 1 by this Court and laid down the following principle: "The restitution of the possession, in the circumstances, should have followed as a matter of course, and should not have been put off till the decision of the application under section 12(2), C.P.C. as for allowing consequential relief on account of suspension of the warrant Dakhal Malikana nothing else was to be done. The aforesaid provision was considered by the Hon'ble Supreme Court in M/s. Rafique Industries's case 1984 SCMR 807 and the relevant observation is as follows:‑‑ 'Jurisdiction to make restitution is inherent in every Court and should be exercised whenever the justice demands'. " It is pertinent to mention here that section 47, C.P.C. barred a suit but subsection (2) thereof contained a pregmatic provision which enables an Executing Court to treat such a suit as an application. Examining the case from this angle, there was nothing to prevent the Court from treating the same as an application. The aforesaid section was considered by the Sindh High Court in Biruji Hazariji's case AIR 1944 Sindh 233 and relevant observation is as under:‑‑ "The jurisdiction of a Court to grant restitution does not merely rest on section 144 but in part of the inherent powers of a Court. Section 144 applies to cases where decree had in fact been set aside by a decree passed in another suit. The principle of restitution is inherent in the exercise of judicial authority so that status qua ante can be required to be restored this precise principle is contained in the provision of section 144 of the C.P.C. and even section 151 thereof avails for such a purpose. In arriving to this conclusion I am fortified by the following Judgments:‑‑ PLD 1997 Lah. 1 (Abdur Razzaq's case) and 1995 SCMR 851 (Abdul Bari's case)." The aforesaid section was also interpreted by the Dacca High Court in Abdul Haq's case PLD 1960 Dacca 452 and laid down the following principle:‑‑ "Coming to the first branch of the first contention of the learned Advocate, though I agree with the learned Advocate that section 144 of the Code of Civil Procedure in terms does not apply, as the order setting aside the sale does not come within the terms of that section, yet I cannot agree with him because there are authorities where it has been held that section 144 is not exhaustive and the principle of section 144 can be extended to cases which do not strictly come wordings of section

144. In the case of Hamejaddi Howaldar and another v. Maminaddi Shaikh and another PLD 1959 Dacca 304 to the decision of which I am a party, it has been held that, 'The power of a Court to direct restitution on a Court sale being set aside is inherent in the Court and is not confined to section 144 of the Code of Civil Procedure, and rests upon the principle that a Court of justice has duty to repair the injury done to a party by its act." The Indian Supreme Court also considered the aforesaid proposition in AIR 1966 SC 948 Binayak Swain 's case and laid down the following principle:‑‑ "The principle of the doctrine of restitution is that on the reversal of a decree, the law imposes an obligation on the party to the suit who received the benefit of the erroneous decree to make restitution to the other party for what he has lost. This obligation arises automatically on the reversal or modification of the decree and. necessarily carries with it the right to restitution of all that has been done under the erroneous decree and the Court in making restitution is bound to restore the parties, so far as they can be restored .to the same position they were in at the time when the Court by its erroneous action had displaced them from. " The Indian Supreme Court subsequently considered the aforesaid provision in Kavita Trehan's case (1994 (5) S.C. cases 380 and laid down the following principle:‑‑ "The jurisdiction to make restitution is inherent in every Court and will be exercised whenever the justice of the case demands. It will be exercised under inherent powers where the case did not strictly fail within the ambit of section 144." In the present case the decree was passed by the Civil Court in suit for specific performance on 8‑11‑1969. Petitioner's appeal was dismissed by the District Judge vide judgment dated 13‑11‑1980. Sale‑deed was compulsorily registered on 7‑12‑1980. R.S.A. No.71 of 1981 was decided and reversed the decree of the trial Court vide order dated 4‑5‑1981. In case the aforesaid facts are put in juxtaposition then order of the trial Court is in accordance with the law laid down by the superior Courts but the impugned order of the Additional District Judge is not in accordance with the law laid down by the Superior Courts, therefore, impugned judgment is set aside and the order of the trial Court is upheld. The writ petition is accepted with no order as to costs. Q.M.H./M.A.K./B‑25/L Petition accepted.