2020 PLP 1813 (CLC)

CH. MUHAMMAD MASOOD JAHANGIR, J.

Precise facts of the case were that although the contesting parties to the lis are exclusive owners of their property falling in adjacent khasras, yet it does not form part of any joint holding. The present petitioners while relying upon demarcation report conducted by the revenue field staff, instituted suit for possession through removal of construction against their neighbourers/respondents, which on contest was finally dismissed by the learned Trial Court on 30th July, 2013, however in appeal vide ex parte judgment of 29th June, 2015 suit stand decreed, pursuant thereto the possession of the disputed premises was taken over by the petitioners/plaintiffs through execution process of the Court. It is again admitted fact that having assailed, ex parte decree of the learned Appellate Court was thereafter set aside by this Court through order of 24th April, 2018 and the appeal of the petitioners was remanded back for its decision afresh, which thereafter dismissed vide judgment of 7th July, 2018. Admittedly respondents/defendants after the setting aside of ex parte decree, approached the Court of first instance for restitution through application under section 144 of the Code, 1908. Although it was contested, but learned lower fora through unanimous orders of 19th October, 2019 and 14th February, 2020 respectively granted the same, directing the petitioners-plaintiffs to restore the possession to the respondents/defendants, hence this constitutional petition.

2. Arguments heard, record perused.

3. Before adverting to merits of the case, it would be expedient to reproduce the provision of section 144 of the Code, 1909:- "

144. Application for restitution.

(1) Where and in so far 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 will, so far as may be, place the parties in the position which they would have occupied but for such decree or such part thereof as has been varied or reversed; 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 or reversal. No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under subsection (1)." There is no cavil to say that doctrine of restitution is based upon cardinal maxim "Actus curiae neminem gravabit" (an act of the Court shall prejudice no man). It contemplates a case where property had been received through order of the Court, which latterly was reversed or varied. In such situation, it becomes wrongful possession, hence imperative upon the beneficiary of said erroneous order/decree to make restitution to the other party for what he had lost, otherwise Court is armed with the powers to place the scourger/applicant in the position in which he would have been, if the order had not been made, else it would be inequitable and un-just with the latter. The concept of restitution is as old as the law itself. The provision ibid provides procedure, whereas the power to order restitution is inherent in Court and sparingly exercised whenever justice demands. It cannot be taken as a case of restoration of possession, but of restitution of possession because order of dispossession is reversed. It is made clear that when the expression 'the act of the Court' is used, it does not merely the act of primary Court, or of any intermediate Court of appeal, but the act of the Court as a whole from the lowest Court, which entertains jurisdiction over the matter upto the highest Court and finally disposes of the case. It would be expedient to clarify that it is not necessary that the Court reversing the order/ decree should specifically direct restitution of the property, rather such right arises automatically, which is enforceable before the Trial Court. Even any subsequent event cannot defeat the right of restitution, rather to be enforced against the person, who was benefited under such order/decree as well as his transferee or assignee, even if such person had not been party to the proceedings in which such order or decree reversed. See K. Anantharam Singh and another v. Marwadi Thara Chand and others (AIR 1936 Madras 634). S.A Latif v. J.B. Dubash and 5 others (PLD 1970 Karachi 220). Zia Ullah v. Muhammad Hussain Afzal and 3 others (2003 CLC 1321). Parvaiz and 4 others v. Muhammad Ramzan and 5 others (2009 CLC 513).

4. Coming to the history of the case in hand, the available record affirmed, which otherwise conceded by learned counsel for the petitioners as well, that in satisfaction of ex parte judgment and decree dated 29.06.2015, the possession of the subject property was taken over from the respondents/defendants, but subsequently set aside by this Court on 24.04.2018. In such situation, it became sine qua non for the Court to perform its statutory duty to cause restitution, as such the concurrent orders of the learned lower fora putting the parties at the place prior to ex parte decree were perfectly passed. The argument of learned counsel for the petitioners that the latter are the actual owners of the subject property, who were duly inducted in possession through process of law and as per ratio of judgment reported as S.N. Banerji and another v. Kuchwar Lime and Stone Co., Ltd. (in Liquidation) and another (AIR 1941 PC 128), the respondents are not entitled for restitution, is misconceived. The study of the pleadings of the parties left no room that title of their respective adjoining khasras is not disputed. The fall out among them is whether they are in occupation within their boundaries or there is some overlapping/encroachment, for which through another even day order passed in tagged C.R. No. 2323 of 2018, the suit of the present petitioners with consensus of the other side has already been remanded to the Court of first instance to resolve the real dispute after appointment of local Commission as per procedure provided under Orders of Lahore High Court Vol.I, Ch.I, M(i). As such till this time it cannot be held that respondents were trespassers or the petitioners are real owners, therefore the latter are not immune from the implication of section 144 ibid. Indeed, the respondents were evicted as a result of pernicious as well as erroneous act of the Court, which having already been declared non-existent through order of the higher Court, the right of restitution arose automatically.

4. The leaned Counsel for the petitioners failed to make out case of interference, whereas the impugned concurrent orders are found to be perfect as per law on the subject and having been passed in exercise of lawful authority are approved by dismissing this petition. The costs of this petition will be paid by the petitioners throughout. SA/M-117/L Petition dismissed.