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Case Number

No. 228 of 1974

Attorney(S)

R.K. Banerjee and Bhaskar Ghose
Barun Kumar Roy Chowdhury

Judges

R. Bhattacharya
Janah, JJ.

Acts

provisions of the West Bengal Premises Teancy Act, 1956.
Order 9 Rule 13 of the Code of Civil Procedure
Order 9 Rule 13 of the C.P Code
sub-section (1).4.
Order 9 Rule

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Smart Summary

Structured Summary of the Opinion (R. Bhattachaya, J.)

Factual and Procedural Background

The plaintiffs (appellants) filed a suit for eviction of the respondent-defendant under the provisions of the West Bengal Premises Tenancy Act, 1956. The trial court initially decreed the suit ex parte. The defendant, Ram Nagina Pandey, obtained the setting aside of that ex parte decree by an application under Order 9 Rule 13 of the Code of Civil Procedure; the ex parte decree was set aside and the suit was restored to file. This restoration order was sustained on a revisional application made by the plaintiffs.

Before the ex parte decree was set aside, the plaintiffs had obtained possession of the suit premises in execution of that ex parte decree. After the decree was set aside, the defendant applied under Section 144 of the Code of Civil Procedure, 1908 for restoration of possession. The trial court granted the relief; that order was maintained by this Court by an order of Chittatosh Mookerjee, J. dated 23.4.74. The present Letters Patent Appeal was preferred by the plaintiffs against that decision.

Legal Issues Presented

Whether a trial court can pass an order for restitution of possession under Section 144 of the Code of Civil Procedure when an ex parte decree has been set aside by the same trial court under Order 9 Rule 13 (i.e., whether such setting aside amounts to a "reversal" or "variation" contemplated by S.144).
Whether the word "reversed" in Section 144 must be read as limited to reversal by a higher (appellate) court, or whether it also includes setting aside or reversal by the court which passed the decree.
Whether restitution of possession ordered under Section 144 should be stayed until final disposal of the suit to avoid multiplicity of proceedings (i.e., whether the plaintiffs can retain possession pending the trial court's final decision).

Arguments of the Parties

Appellants' (Plaintiffs') Arguments

The trial court had no power to pass an order for restoration of possession under Section 144 of the Code of Civil Procedure in the present circumstances because the ex parte decree was set aside by the same court under Order 9 Rule 13; this, the appellants argued, is not a "reversal" as contemplated by S.144.
On the grammatical reading of S.144, and having regard to the reference to "the Court of first instance," the appellants contended that "reversed" must mean reversal by an appellate court and cannot mean setting aside by the trial court itself.
The appellants sought an order staying recovery of possession until final disposal of the suit to avoid multiplicity of proceedings, asserting they had a good case to obtain a decree for eviction on trial.

Respondent's (Defendant's) Position

The opinion records that Mr. Roy Chowdhury, counsel for the respondent, opposed the appellants' contentions. The opinion does not set out detailed points advanced by the respondent in the record excerpt provided.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Gopal Paroi v. Swarna Bewa (34 CWN 707)	Discussed in relation to the meaning of "varied or reversed" in S.144; earlier statements suggested certain instances are not within S.144.	The court observed the Gopal Paroi case had materially different facts and that the statements concerning the meaning of "reverse" were practically obiter dicta; therefore that decision did not bind the present interpretation of S.144 in the context of Order 9 Rule 13 setting aside.
Maqbool v. Khodaija Begum (Full Bench, AIR 1949 Pat. 133)	Authority for a wider view of "reversed" in S.144 (supporting the view that reversal may include setting aside by the trial court).	The court referred to this Full Bench decision as taking a similar wider view that the word "reversed" in S.144 is not restricted to appellate reversal; it was relied upon to support the conclusion that a trial court's setting aside can fall within S.144.
Abdul Rahman v. Sarafat Ali (20 CWN 667)	Illustration that a decree obtained on retrial cannot validate or render legal an earlier possession obtained under an ex parte decree that has been set aside.	The court cited this authority to reject the appellants' contention that possession should be stayed pending final disposal; the case supports the proposition that later decrees do not retroactively legalize possession held after an earlier decree was set aside.

Court's Reasoning and Analysis

The court began by quoting Section 144 of the Code of Civil Procedure and explaining its plain operation: where a decree or order is "varied or reversed," the court of first instance shall, on application, cause restitution to be made so as to place parties, as far as may be, in the position they would have occupied but for the variation or reversal.

The crucial legal question analyzed was whether setting aside an ex parte decree by the trial court under Order 9 Rule 13 amounts to "reversal" under S.144. The court examined precedent and language:

It reviewed Gopal Paroi v. Swarna Bewa and found that case's facts differed significantly and that the statements about the meaning of "reverse" were effectively obiter and not dispositive of the present point (particularly because that case did not raise the specific issue of Order 9 Rule 13 setting aside by the trial court).
The court considered the ordinary meaning of the word "reverse" from standard dictionaries (Oxford and Webster) and noted meanings such as "undo," "revoke," "annul," or "set aside." On that linguistic basis the court rejected a restricted interpretation that would limit "reverse" to appellate reversal only.
The court reasoned that a grammatical reading of S.144 does not compel the inference that reversal must occur in an appellate court. The phrase "the Court of first instance" in S.144 designates the forum where restitution applications are to be made (i.e., the trial court), not to identify which forum must effect the reversal.
The court observed that trial courts have the statutory power to set aside their own decrees under Order 9 Rule 13, and that such setting aside is properly understood within the wider meaning of "reversed" in S.144. It would be illogical, the court held, to allow restitution only in cases of appellate reversal but deny it where the same result — the undoing of a decree — occurred by the trial court's action.
Support for the wider construction was drawn from the Full Bench of the Patna High Court in Maqbool v. Khodaija Begum, and the court also noted that the Code of Civil Procedure, 1976 expressly amended S.144 to add the phrase "in any appeal, revision or other proceeding," thereby confirming that the legislature did not intend a narrow meaning restricted to appellate courts; the amendment further suggests inclusion of proceedings such as those under Order 9 Rule 13.
On the appellants' submission seeking a stay of restitution to avoid multiplicity, the court rejected the request. It held that once the ex parte decree was set aside and no longer existed, the plaintiffs could not lawfully retain possession; a subsequent decree in the plaintiffs' favour would not retrospectively legalize possession held after the earlier decree was set aside. The court cited Abdul Rahman v. Sarafat Ali to that effect.
Balancing equities and considering that the defendant had been out of possession for a long time, the court concluded the defendant's right to possession must be vindicated and that the order for restitution should be effective. For ends of justice the court ordered that the final hearing and disposal of the suit be stayed (if not already disposed) until the defendant regained possession pursuant to the restitution order of the trial court according to law.

Holding and Implications

Holding: The Letters Patent Appeal is dismissed. The court upheld the trial court's order under Section 144 for restoration of possession and refused to stay execution of that restitution. The judgment records that the appeal is dismissed without costs and that A.K. Janah, J. agreed. The court concluded with the standard disposition "Appeal discharged."

Direct Legal Consequences (as stated in the opinion)

The trial court lawfully could grant restitution under Section 144 where an ex parte decree has been set aside by the same court under Order 9 Rule 13; the word "reversed" in S.144 is to be given a wider meaning that includes such setting aside.
The plaintiffs cannot retain possession of the suit premises after the ex parte decree was set aside; the restitution order in favour of the defendant must be given effect and the defendant's right of possession vindicated.
The court ordered that final hearing and disposal of the suit be stayed (if not already disposed of) until restitution of possession to the defendant is effected in accordance with law.
The appeal was dismissed without cost and the order for restitution is to remain effective; a later decree in favour of the plaintiffs, if any, will not legalize possession held while the ex parte decree had already been set aside.

Note: This summary is confined to the statements, reasoning and outcomes expressly contained in the provided opinion. No facts or arguments beyond those recorded in the opinion have been inferred or introduced.

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Sri Jagat Bandhu Shaw v. Sri Ram Nagina Pandey

R. Bhattachaya, J.:— The plaintiffs who are the appellants before us filed a suit for eviction of the respondent-defendant under the provisions of the West Bengal Premises Teancy Act, 1956. At first the suit was decreed ex parte. Subsequently, the defendant Ram Nagina Pandey filed an application under Order 9 Rule 13 of the Code of Civil Procedure and the same was ultimately allowed. As a result the ex parte decree was set aside and the ejectment suit was restored to file. That order for restoration of the suit was maintained by this Court on a revisional application filed by the plaintiffs against that decision. Before the ex parte decree was set aside, the plaintiffs had obtained possession of the suit premises by evicting the defendant in execution of the said ex parte decree. After the ex parte decree had been set aside, the defendant-respondent filed an application in the trial court under S. 144 of the Code of Civil Procedure 1908 for getting back the possession of the suit property. The application was contested by the plaintiffs, but ultimately the trial court gave the relief to the defendant as prayed for. Against that order for restoration of possession to the defendant, an appeal was taken to this Court and the said appeal was disposed of by our learned brother Chittatosh Mookerjee, J. on 23.4.74 The order for restoration of possession was maintained. Against that decision of Mookerjee, J., the present Letters Patent Appeal has been preferred by the plaintiffs.

2. Mr. Banerjee, the learned Advocate appearing on behalf of the appellants has canvassed that the learned trial court could not have passed any order for restoration of possession under S. 144 of the C.P Code. It has been submitted that as the ex parte decree was set aside by the same court which passed it, it is not a case of reversal of the decree as contemplated in S. 144 of the C.P Code. It has been contended that unless an order or a decree is reversed or varied in appeal by the higher forum, no order could be passed under S. 144 of the C.P Code. Mr. Roy Chowdhury, the learned Advocate for the respondent has, however, opposed the contentions.

3. For consideration of the arguments of Mr. Banerjee S. 144 of the C.P Code is quoted below:—

“(1) Where and in so far as a decree or an order 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 order or such part thereof as has been varied or reversed; and, for this purpose, the Court may make any orders, including order 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 Such shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under sub-section (1).

4. According to the provisions of S. 144 of the C.P Code when a decree or an order is “varied or reversed”, the Court of first instance shall, upon an application, cause such restitution to be made as will place the parties in the position which they would have occupied but for such decree or order or such part thereof as has been varied or reversed. The question, therefore, is, as submitted by Mr. Banerjee, whether the setting aside of the ex parte decree by the trial court is an instance of reversal of the decree. It is nobody's case, however, that the instant case is one where the decree was varied. Our attention has been drawn to a decision of this Court in the case of Gopal Paroi v. Swarna Bewa reported in 34 CWN 707. There it was stated that if a decree is set aside either by a proceeding in the suit itself or if it is set aside in another suit altogether or if without being set aside by such a decree is superseded, these are matters which are not within the words of that S. 144 of the C.P Code. It has been stated that “varied or reversed” has a quite definite meaning for lawyers in this country but what that definite meaning lawyers is has not been stated. In that case the plaintiff purchased certain holding in execution of a Rent decree. The tenants whose holding had been purchased brought a suit to set aside the decree and the sale. The trial court dismissed the suit. In the first appeal the suit was decreed and the tenants got recovery of possession on the basis of an application under S. 144 of the C.P Code in the original Rent Court. The purchaser of the holding, however, took a second appeal against the decision in the first appeal and ultimately the High Court in the second appeal reversed the decision of the lower appellate court. Then the purchaser applied for getting back possession from the tenants under S. 144 of the C.P Code in the original trial court where tenant filed the suit but he got no relief as the application was time barred. The plaintiff, therefore, field another suit for declaration of his title and for recovery of khas possession. In connexion with that suit a Second Appeal was preferred by the plaintiff and in that second appeal the judgment was delivered as reported in 34 CWN at page 707. We find that the facts in that case are quite different from those appearing before us in the instant appeal. That was not a case where a decree was set aside by the same court which passed it. The facts of that case did not raise any question whether any application under S. 144 of the C.P Code was applicable in a case where a decree was set aside under Order 9 Rule 13. No decision on this point was necessary. In that case ultimately it was held that the plaintiffs' suit under consideration in the judgment referred to by us was not maintainable in view of sub-s. (2) of S. 144. The statements made regarding the implications of the word “reverse” are practically obiter dicta. In the Civil Procedure Code the word “reverse” has not been defined and no special meaning for the purpose of S. 144 has been given. The word is to be taken in its ordinary meaning as would be found compatible with the provision of law. The ordinary meaning of the word “reverse” is “to undo or make void”. According to the Oxford Dictionary the word means amongst other things ‘revoke’ or ‘annul’ (decree attainder etc). The word “revoke” according to the same Dictionary means ‘rescind’, ‘withdraw’, ‘cancel’ (decree, promise etc.). The word “reverse” according to Websters Seventh New Collegiate Dictionary means amongst other things “set aside”. Giving our best consideration we cannot accept the contention of Mr. Banerjee that the word “reversed” appearing in S. 144 of the C.P Code would mean “set aside” by the appellate court alone. For proper application of S. 144 the word “reverse” should be given its meaning in the wider sense and in that view of the matter, it will mean setting aside of the order of the decree by the Court which passed it and also by the Court of higher forum either in appeal or in revision. The meaning of the word is not any way restricted in the section.

5. It has been argued by Mr. Banerjee that from the language used in S. 144 of the C.P Code particularly in view of the words “the Court of first instance”, the reversal of the decree or the order referred to in S. 144 must be by the Court of appeal and not by the Court of the first instance. The submission of Mr. Banerjee is that when there is the provision for the Court of first instance meaning the Court of the initial stage of the suit for passing the order for restitution on an application, it implies that the reversal of the decree or the order must be by a Court of appeal at a later stage subsequent to the order or decree in question of the trial court. On the grammatical analysis of the sentence in S. 144 and on the plain meaning of the simple words appearing in that section, it cannot be found that there is any reason for such implication as suggested by Mr. Banerjee without importing something on imagination. The Court of first instance referred to in S. 144 means the initial court where the suit was originally started, that is to say, the trial court. It should be remembered that the trial court can set aside a decree passed by it under Order 9 Rule 13 of the C.P Code and there may be occasions for the trial court to reverse or recall an order or decree passed by it for proper decision and for ends of justice. An order or a decree again may be set aside in an appeal or a revision. There are thus cases of reversal of a decree or an order by trial court or by the court of higher forum and as such the legislature thought it fit to avoid doubt to say specifically in S. 144 of the C.P Code that in cases of reversal of a decree or an order, the party concerned may file an application for restitution, if occasion arises, in the Court of the first instance, namely, the Court where the proceeding originated. We find no restricted meaning of the word “reversed” referred to in S. 144. It is unthinkable that while enacting S. 144 the legislature intended that the defendant would not be given restitution as contemplated therein when a decree or an order is varied or reversed by the trial court though relief could be given if a decree or an order is varied or reversed by the appellate court. The Full Bench decision of the Patna High Court in the case of Maqbool v. Khodaija Begum reported in AIR 1949 Pat. 133 took a similar view. The word “reversed” is used in the section in general and wider connotation. This intention is clear from the S. 144 of the Code of Civil Procedure, 1976 where after ‘varied or reversed’ has been added “in any appeal, revision or other proceeding” to remove any ambiguity or doubt. The words “or other proceeding” now mentioned in the amended Code include proceedings under Order 9 Rule 13 of the C.P Code. The point now urged by Mr. Banerjee was, however, not taken in the trial court and in the appeal before Mookerjee, J. In view of our discussions above, we do not accept the interpretation advanced by Mr. Banerjee.

6. Lastly an attempt was made by Mr. Banerjee that the recovery of possession may be stayed till the disposal of the suit by the trial court to avoid multiplicity of proceedings because the plaintiffs believe that they have a good case to succeed and to get a decree for eviction. This is no ground for stay. As the decree for which the plaintiffs obtained possession of the suit premises is not in existence, the plaintiffs cannot retain possession and if a fresh decree is obtained the plaintiffs will be entitled to get possession on the basis of the said decree. The illegal possession of the plaintiffs after the previous decree has been set aside cannot be made legal if a new and subsequent decree is passed. In this connexion we may refer to the case of Abdul Rahman v. Sarafat Ali (20 CWN 667). There on the basis of an ex parte decree certain property was sold in execution thereof. The trial court set aside the ex parte decree on the prayer of the defendant and consequently the sale was set aside. The matter was taken to the High Court and it was submitted that on retrial the plaintiffs obtained a decree and as such the sale could not be held invalid but be deemed to be validated by the passing of a fresh decree. That contention was rejected.

7. In the present case the plaintiffs have obtained possession which they cannot retain after the order passed by the trial court under S. 144 of the C.P Code. The defendant has been kept out of possession for a long period. The right of the defendant must be vindicated. The plaintiffs shall not be allowed to render the order for restitution passed by the trial court ineffective. For ends of justice we feel that the final hearing and the disposal of the suit should be stayed, if the suit has not been already disposed of in the meantime, until the defendant gets back possession on the basis of the order for restitution According to law.

The appeal is dismissed without cost as indicated above.

A.K Janah, J.:— I agree.

Appeal discharged.

Sri Jagat Bandhu Shaw v. Sri Ram Nagina Pandey

Structured Summary of the Opinion (R. Bhattachaya, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellants' (Plaintiffs') Arguments

Respondent's (Defendant's) Position

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Direct Legal Consequences (as stated in the opinion)

Sri Jagat Bandhu Shaw v. Sri Ram Nagina Pandey

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