When court can refuse to order restitution on setting aside of exparte decree?


Writ Petition No. 3156 of 1986

Decided On: 22.08.1986

Dharmaji Krishnaji Sonavane
K.A. Parmar

Hon’ble Judges/Coram:V.S. Kotwal, J.
Citation1986(3) BOMCR713.

1. Heard Shri C.A. Phadkar and Shri R.S. Deshmukh, the learned Counsel for both the sides.


Parties agree to argue the rule immediately. Shri Deshmukh, the learned Counsel for the respondent waives service. Rule is, therefore, being disposed of finally by consent.

2. Shop premises located in Parkar’s Chawl in Dharavi area of this metropolis is owned by the petitioner herein and which was rented out to the respondent creating monthly tenancy on the monthly rental of Rs. 12.63. The respondent, as per the landlord is a persistent defaulter in the matter of payment of rent which gave rise to ejectment suit in the year 1979 which however, was settled between the parties. Instead of that, according to the landlord, the same petition of default was repeated on account of which the petitioner-landlord issued notice to the respondent tenant on December 20, 1980 inter alia alleging that the tenant has been in rental arrears for more than six months in between 1st January, 1980 and 30th November, 1980 with the further allegations that the premises were not used for a continuous period of more than six months prior to the notice as those were kept locked. Non-compliance with the demand in the notice by which the tenancy was terminated entailed in filing R.A.E. Suit No. 4498/1982 in the Small Causes Court at Bombay against the respondent tenant claiming possession of the suit premises mainly under section 12(3)(a) and 13(1)(k) of the Rent Act on the ground that the tenant has not been ready and willing to pay the rent and has been in default for more than six months and has not either remitted the amount of moved for fixation of standard rent within one month from the receipt of the notice and also that the suit premises have not been used for more than six months prior to the date of the notice.

3. Certain events occurred in between after filing of the suit, which mainly pertain to the controversy as to whether the suit summon was duly served on the respondent-defendant. According to the petitioner-landlord, nearly more than three efforts were made to effect the service and ultimately on his motion the learned Judge granted permission for substituted service and it was effected on the defendant by pasting the same on the suit premises, on 12th November, 1982 and a separate summons was sent through the Registered Post and also Under Certificate of Posting, inspite of which service, according to the landlord, the tenant wilfully avoided to participate in the proceedings. This no doubt was ultimately controverted by the tenant. However, in between the suit was treated ex parte and on the basis of the plaintiff’s evidence an ex parte decree was passed on 8th December, 1983 directing the tenant to handover vacant possession to the landlord.

4. The execution was then levelled through the Court and possession was obtained by the petitioner landlord on 10th April, 1984 and thereafter on 13th April, 1984 that a third person was inducted in the premises and thereby tenancy rights were created in his favour and since that day the said third person by name Shri Bhagwan Lobaji Vhatkar continues to be in actual possession of the suit premises.

5. After happening of this event, came into existence an important situation inasmuch as on 13th August, 1984 the respondent-tenant took out a notice for setting aside the ex parte decree, which was numbered as Misc. Notice No. 659 of 1984. The main plank of the contentions raised therein is to the effect that neither the notice nor the suit summons was served on the defendant at any time and what is further contended is that the defendant had by a letter dated 2nd February, 1981 specifically informed the petitioner-plaintiff that he has left for his native place and that all the correspondence should be made thereafter on the address furnished in that letter. It was further contended that the plaintiff knew that the pasting of the suit summons on the suit premises would not serve the purpose as to his knowledge the defendant was not available there. It was, therefore, seriously agitated that since there has been non-service of the notice as also the suit summons there was no question of any wilful avoidance on his part from appearing in the Court. Thus the prayer was made for setting aside the ex parte decree. An additional prayer was made that the suit premises be restored to the tenant since an ex parte decree is unsustainable. Thus, the principle of restitution under section 144 of the Code of Civil Procedure was pressed into service.

6. All these contentions were sought to be repelled by the petitioner-landlord through his affidavit. It was specifically stated that there was proper service since the substituted service was in accordance with law and in addition separate summonses were sent through Registered Post and also Under Certificate of Posting. Receipt of the purported letter dated 2nd February, 1981 is stoutly denied. The petitioner also contended that he has already inducted a third person on the suit premises on 13th April, 1984 and as such his rights cannot be jeopardised and therefore, no order of restoration should be made. He also maintained that the ex parte decree was fully justified.

7. On the basis of the affidavits and other material the learned trial Judge held that there was no proper service of the suit summons on the defendant. This was obviously on the basis of the finding that the defendant had left the premises and the substituted service was not in accordance with law more so because no proper care was taken to find the whereabouts of the defendant. The learned Judge has also accepted the defendant’s claim that the plaintiff was informed by the letter dated 2nd February, 1981 about the address at his native place and yet the plaintiff deliberately suppressed the same from the Court. The learned Judge was also of the opinion that once an ex parte decree is set aside then order of restoration must follow. On the basis of these findings the learned trial Judge made the notice absolute, setting aside the ex parte decree and also directed the restoration of the suit premises to the defendant. This order was recorded on 23rd April, 1986.

8. The petitioner challenged that order before the Appellate Bench of the Small Causes Court in Appeal No. 327 of 1986. The appeal, however, was summarily rejected on 25th June, 1986. The Appellate Bench predominantly placed reliance on the purported letter dated 2nd February, 1981 and in fact the most of the reasons flow out of that situation, holding that the plaintiff knew that the defendant was not available in Bombay and yet service of summons was sought to be effected not at the native place but at the shop premises. The order of restoration was also confirmed. It was however, little surprising to note that the request on behalf of the plaintiff to stay atleast the order of restoration for a short period to enable the plaintiff to move this Court was equally summarily rejected.

9. It is this order that is being placed under challenge in this petition under Article 227 of the Constitution of India.

10. The structure of the factual aspect is indicated while discussing the rival contentions and therefore, repetition is unnecessary. The controversy obviously falls in two categories. The first touches the question whether passing of the ex parte decree was justified. The second is if the ex parte decree is to be set aside then whether the order of restoration would be justified during the pendency of the suit.

11. As regards the first category, the impugned order cannot be upset in this limited jurisdiction. It cannot be overlooked that both the Courts below have recorded concurrent finding in favour of setting aside the ex parte decree. It is true that the plaintiff asserted that initially at least three time efforts were made to serve the summons and thereafter under the orders of the Court substituted service was effected by pasting the summons on the suit premises and also by sending separate summons under Registered Post and under Certificate of Posting. The defendant asserts that he did not receive any of those summonses and in fact it is the contention of the defendant and also his son who claims to be the constituted attorney and who has filed the affidavit that the father left shop premises and went to his native place on account of old age in the year 1970 and he did not come back whereas the son himself left the premises and went to his native place in 1979. This is the case made by the defendant himself. The son no doubt claims that after 1979 the Printing Press located in the shop premises was being run by the workers and at one time rental amount was tendered. However, no evidence worth the name was placed before Court atleast to substantiate the claim that after the departure of the son in the year 1979 the shop premises were used for printing purposes by the workers. In fact the defendant is in a delicate situation inasmuch as for the purpose of substantiating his claim of non-service of summons for setting aside the ex parte decree he wants the Court to accept that the summons obviously could not be served on him or on his father because both were not available at the shop premises and impliedly he further wants to suggest that the substituted service by pasting also could not serve the purpose. The implication of this suggestion is obviously that after 1979 or atleast when the summons was sought to be served in the year 1982 there was no one available at the shop premises or otherwise intimation would have been sent to the father and the son at their native place. If the advantage of this situation is sought to be taken by the defendant then becomes quite embarrassing for him to suggest that the printing press was run all throughout up to date through the workers. But on the contrary, the main trust is that on the date of the service there was no one available at the shop premises and it was closed. This also is the case made out by the plaintiff himself. In fact one of the grounds for eviction is that the suit premises are not used for more than six months for the purpose for which those are leased out. The defendant’s evidence also indicates that the suit premises were closed right from 1979 onwards. The summons that was sent through Registered Post had not been proved to be properly served. It could not be because it was also sent on the same address at Bombay. The plaintiff’s case is that the neighbours told the Bailiff that the shop premises are closed for more than three years. Under the circumstances, the learned Judges cannot be said that to be in error in holding that there was no proper service effected on the defendant. In any event, such an inference cannot be said to be wholly unreasonable.

12. Shri Phadkar, the learned Counsel, however, has serious objection to yet another circumstance, which is heavily relied upon by both the Courts and especially by the lower Appellate Court. It pertains to the allegations that the tenant had sent a registered letter to the petitioner dated 2nd February, 1981 from his native place intimating that the correspondence should be made on the address furnished therein. The lower Appellate Court obviously disproportionately magnified the dimensions in recording a firm finding that the said letter in fact must have been received by the petitioner and this was primarily on the footing of presumption under section 27 of the General Clauses Act and also under section 114 of the Indian Evidence Act on which basis proper service of that letter was presumed and accepted. It is this count that is seriously objected to by Shri Phadkar, the learned Counsel, on behalf of the petitioner. It cannot be overlooked that the petitioner has consistently denied right from the beginning to have received any such letter and he has denied his signature on any of the document in that behalf. The postman has not been examined nor any affidavit has been filed. Since, however, the matter is being disposed of on another ground which is already discussed endorsing the order for setting aside the ex parte decree it is unnecessary to express any firm opinion in this field. In fact, the controversy in that field need not be resolved in this proceeding. Stout denial of the petitioner cannot be lightly ignored and it cannot be overlooked that inspite of that denial no material is placed by the defendant in support of his claim except relying on the bare presumption. It is also not understood as to where was the necessity as also the occasion to give such an intimation for the first time in February 1981 even though the father had left for native place in 1970 and the son followed him in 1979. In the facts and circumstances of this case, the finding and reasons assigned by the lower Appellate Court are justifiably open to serious debate. It is, therefore, better to leave that point open.

13. In view of this discussion the order for setting aside the ex parte decree deserves to be endorsed. It need not be under-estimated the laudable principle that a litigant should get reasonable opportunity to participate in every proceeding and a decision on merits has more lasting effect whereas and ex parte decree many times carries with it a potential of miscarriage of justice or at least creating a sense of dissatisfaction. This of course relates to a diligent litigant and not a negligent or lethargic litigant. The issue in the first category therefore, deserves to be answered against the petitioner.

14. However, Shri Phadkar, the learned Counsel, contended that a condition should be annexed, in that since the respondent has not bothered to pay the rental arrears from January 1980 till the time when he was dispossessed the payment of the rental arrears should be the condition precedent for setting aside ex parte decree. This appears to be a reasonable claim and which is not seriously disputed by Shri Deshmukh, the learned Counsel, on behalf of the respondent. It is well settled and equally well recognised that such a condition can be annexed for setting aside the ex parte decree. In fact imposing such a condition would be equitable as also very much necessary to serve the interest of justice. This also would be in consonance with the provisions of Order 9, Rule 13 of Code of Civil Procedure. This would be without prejudice to the rights and contentions of both the sides in the suit. The impugned order, therefore will have to be modified by imposing this condition for setting aside the ex parte decree and in fact the learned Counsel Shri Deshmukh, on behalf of the respondent on instructions agrees to pay the requisite amount in Court. The learned trial Judge shall determine the quantum in that behalf which would be required to be deposited in the suit by the respondent. This would therefore, conclude the first point.

15. More sharp controversy is generated on the second count under which the Courts below have directed restoration of the suit premises forthwith in favour of the respondent. According to Shri Deshmukh, the learned Counsel for the respondent, once the ex parte decree is set aside the order of restoration must follow as a logical corollary leaving no option for the Court. This is more so because the defendant is placed in the initial position as if there is no decree against him and as if he continued to be the lawful tenant and if the initial position is to be restored then on the principle of restitution he must be put back in possession, even during the pendency of the suit. According to the learned Counsel, this is more so in the instant case because the petitioner though had full knowledge that the defendant has left for native place made a show of substituted service on the address on which the defendant could not be legitimately found. Shri Phadkar, the learned Counsel, for the petitioner, while countering these contentions submitted that though restitution may be the normal rule, still it is not absolute one and is not as if that no discretion vests in the Court. According to him, in a fit case, the Court has every power to refuse restitutions even though an ex parte decree may have been set aside, or in the alternative the Court may postpone the restitution until the final disposal of the suit. According to him, there could be various contingencies on the facts of the case and, therefore, the generalised principle cannot be enunciated that in no case the Court is left with any option. Both the sides have placed reliance on various ratios. It would, therefore, be proper to examine those and have a short survey of some of the ratios in that field, in the context of the controversy.

16. Heavy reliance on behalf of the respondent on the ratio in Binayak Swain v. Rameshchandra MANU/SC/0024/1965 : [1966]3SCR24 . No doubt, some of the observations therein do tend to support the contention of the respondent that the respondent tenant’s right to get possession of the suit premises when the impugned ex parte decree is set aside, is absolute and no discretion vests in the Court to deny that right. However, this would not be the wholly correct reading of the same and furthermore some of the observations are on the basis of the peculiar facts of that case. The doctrine of restitution has been enunciated therein, equating with an obligation on the party to the suit, which has received the benefit under a decree, which has been set aside to make restitution to the other party for what is lost and such an obligation arises automatically. Provisions of section 144 of the Code of Civil Procedure have been examined in that context. It is true that therein, the restitution was directed, inspite of the fact that ultimately after remand, a fresh decree was passed against the judgment-debtor. Therein, a certain money decree was passed in an execution for realisation of an amount, the judgment-debtor’s property was put to auction. It was purchased by the decree-holder himself. It was in appeal that the decree was set aside and the matter was remanded and even thereafter in the second round, decree was passed against the judgment-debtor. Even then, the restitution was granted. However, it is indicated that the circumstance that it was the decree-holder who himself purchased the property in question to a large extent weighed in passing the final order. This is further manifested by the indication that perhaps the situation could have been different if the property was purchased by a stranger. The Supreme Court placed reliance on some other decisions which again furnishes the support to the proposition that the distinction was required to be made if the stranger is put in possession, such as :—

“the distinction between the case of the auction purchaser is pointed out……….which is a clear authority for the proposition that where the decree-holder himself is the auction-purchaser the claim cannot stand, if the decree is subsequently set aside.”
The Supreme Court also further incorporated the element of equities and when deciding that question, observed as :—

“For the reasons expressed, we are satisfied that the appellant is entitled for restoration of the properties sold in execution of the ex parte decree, subject to the equities to be adjusted in favour of the respondent decree-holder……….”
The ratio thus enunciated will have to be read with such qualifications, as indicated earlier and in the context of the fact that the properties were sold for the money decree of an amount of Rs. 970/- or odd, and which property was purchased by the decree-holder himself. In addition, the existence of equities, if any, is required to be considered and adjusted. This ratio therefore, on the contrary, inferentially tends to indicate that in a given case the right for restitution may not necessarily be absolute, though no doubt the formal rule would be otherwise. No doubt, as enunciated in several decisions, it cannot be disputed that the normal rule would be that as soon as the ex parte decree is set aside on merits, then the order for restitution would follow, so that the judgment-debtor would be placed in the same position, as he was prior to the passing of the decree and consequently, would be entitled to enjoy possession, as he did on the footing that no decree exists and there is no order against him to hand over possession.

17. In Shankarlal v. Ramkisan MANU/UP/0064/1976 : AIR1976All250 , it was indicated that even if a third person is inducted by the landlord as tenant, yet the landlord is liable to restore possession, the third person being the representative of the landlord. However, in that case, such third person was inducted during the pendency of appeal and it is on that basis that he was held to be representative of the landlord. In L. Givan Ditta v. T.R. Ditta MANU/PR/0005/1934 the basic principle underlying the provisions of restitution are on the same line. However, in that case the party has been held to be entitled to the interest also. Therein, the respondent was held to be not entitled to a monetary decree and the petitioner asked for restitution of the amount, which he has paid on the money decree, which was set aside and the dispute restricted only to the interest amount and it is on that basis that it was observed that once restitution is made and moneys have been paid under a wrong decree, the person who derived the advantage will have to pay interest while granting restitution.

18. The learned Single Judge of this Court in Manikchand Shah v. Gangadhar Shetti MANU/MH/0070/1961 : AIR1961Bom288 , was pleased to grant restitution and direct possession of the demand premises to be restored to the tenant and it was inspite of the fact that the premises were not in his occupation when he lost the possession. However, facts therein are quite different and observations and the conclusions therein are to be read in the context of those facts. There, the decree for possession was passed by the trial Court and confirmed by the first Appellate Court. Possession was taken in execution. However, during the pendency of the appeal, the old tenants were evicted and new tenants were inducted. The matter was taken up in second appeal which was allowed and the plaintiff’s suit was dismissed more on the ground of limitation and thus the decree for possession of the Courts below was upset. The original tenants plea for restitution was under these circumstances granted. It cannot be over-looked that the matter was finally decided in the second appeal and restitution was thereafter and further the new tenants were inducted during the pendency of the appeal. Both the points were obviously in favour of granting the restitution. This ratio therefore, does not furnish any rational analogy to the facts of the instant case. A Division Bench of this Court in Narayan Laxman v. Vishnu Waman, 59 Bom.L.R. 205 has also enunciated a similar proposition. In that case a decree for possession of the land was passed and it was confirmed by the District Court in appeal. During the pendency of the appeal the lands were transferred to the tenants. The main decree was reversed by the High Court. On the application for restitution, it was held that notwithstanding the creation of tenancy, the person who lost possession by reason of erroneous decree, were entitled to get back the possession. However, it is worth noting that this was essentially on the ground that those two persons were the transferees of the land during the pendency of the appeal and thus were affected by the rule of les pendence. It is, however, unnecessary to multiply the illustrations since the principle is well settled. It, however, cannot be overlooked in that behalf that in some of the decisions restitution was granted mainly on the ground that a transfer was affected by rule of les pendence as third party rights were created during the pendency of appeal; whereas in some cases, there were absolutely no equities in favour of the landlord to retain possession. As observed by the Supreme Court in MANU/SC/0024/1965 : [1966]3SCR24 (Supra), the question of adjustment of equities that would be available in favour of the landlord do require consideration even in applying the principle of restitution. Ratio in Krishna Awaji v. Bapu Kalu MANU/MH/0145/1959 : AIR1959Bom490 , also tends to support the similar proposition. However, in that case the situation was different inasmuch as the plaintiff’s suit was decreed by the trial Court and possession was obtained in execution, but the decree was set aside in appeal and plaintiff’s suit was dismissed. The plaintiff preferred second appeal and prayed for stay of restoration. It is in those facts that the said observations were made refusing stay of restoration and repelling the plaintiff’s argument that reversal of the decree by the first Appellate Court was subject to the right of second appeal.

19. Reliance was also placed on the decision of this Court by the learned Single Judge in Miss. Devi Ramchand Vasvani v. S.V. Bastikar, 69 Bom.L.R. 121. Several allied questions were decided therein, one of which being while considering the provisions of section 144 of the Code of Civil Procedure, as to which is the forum contemplated under that provisions which may set aside or reverse the decree and as to whether if it is done by the same Court whether restitution can be granted. We are not faced with similar situation in this case. No doubt, therein, the learned Judge observed that the restitution must follow as soon as the ex parte decree is set aside and the learned Single Judge has relied on several authorities. When it was brought to the notice that the third party was inducted before the ex parte decree is set aside and his rights cannot be jeopardised, the learned Single Judge obviously did not lightly brush aside that aspect. The tenor of the judgment indicates unmistakably that the learned Judge felt that was a relevant situation and took a serious note of the same and appears to have accepted the validity of the argument that such third person’s rights cannot be affected. However, the learned Judge ultimately ruled that order of restitution must be passed in favour of the tenant, but he annexed an important qualification and a rider that in respect of that third person, who is lawfully inducted in the premises, he would certainly be entitled to obstruct execution. Thus, the third party’s right is expressly accepted, though a remedy is suggested in not denying the restitution, but in granting the restitution, but at the same time in upholding the right of that third person to obstruct the execution, which is bound to give rise to a multiplicity of proceedings including the obstructionist’s notice. Significantly, the learned Judge impliedly, therefore, was inclined to observe that it makes much difference if the third party comes in the picture. In my opinion, the said ratio by implications would tend, on the contrary, to support the view that there would be some qualifications while enunciating the right of restitution. A question naturally is posed on the basis of that ratio, viz., if the obstructionist is held to be entitled to obstruct execution, the order of restitution would really be illusory and therefore, in reality it would have been more relevant to deny restitution under those circumstances.

20. As against this, the learned Counsel for the petitioner placed reliance on certain decisions, which obviously tend to support that plea.

21. The learned Single Judge of this Court in Hemchand Sindhaniya v. Subakram Baragra MANU/MH/0083/1967 : AIR1967Bom361 , has expressly held that though restitution would be a normal rule as soon as the ex parte decree is set aside, still in a given case on the peculiar facts and circumstances, the implementation of that order can well be postponed till the final disposal of the suit. One of such circumstances, which contributed in making that observation, was that if a new tenant was already inducted it would amount to disturbing his possession and it was also indicated that in those facts no serious inconvenience could be caused even to the tenant if the order was stayed. It is true the validity of the observations that by setting aside the ex parte decree, the tenant merely gets a right and a chance to contest the suit and there is no guarantee that he would succeed in that suit may not be readily upheld in that context as those could be open to debate. However, the underlying principle enunciated by the learned Judge appears to be quite reasonable and rational. The learned Judge then observed as :–

“Although, therefore, the order passed by the Appellate Court granting restitution of possession is correct and need not be set aside, it is desirable to postpone the enforcement of the said order for some time until the decision of the restored suit.”
Thus, proper balance was struck in observing that as a normal practice restitution should be granted, though in the peculiar facts its enforcement may be postponed. With respect, I am in agreement with the conclusion and the said ratio. I am however, tempted to observe that in effect restitution would be deemed to have been denied since the enforcement is stayed upto the decision of the suit. It cannot be overlooked in that behalf that on the decision of the suit a fresh cause of action would come into existence even vis-a-vis possession of the suit premises and, therefore, instead of merely staying the enforcement of the order of restoration, a better and proper course would be to decline granting restoration during the pendency of the suit. Any way, therefore, both are the two sides of the same coin entailing into the inference that the said ratio accepts that in a fit case restitution can well be refused.

22. Reliance was also placed on the ratio in Shamlal v. Smt. Jaswant Kaur MANU/DE/0398/1980 : AIR1980Delhi171 . Therein, an ex parte decree for eviction was set aside, though prior thereto a third party was inducted in the suit premises. The provisions of section 144 of the Code of Civil Procedure are examined in details. Therein, the learned Judges made a distinction while examining the issue from the point of the landlord himself and from the point of a newly inducted person and then they raised a question that if it is restricted only to the landlord, then restitution should follow. However, if viewed from the point of third party, who had been inducted subsequently, a clear dictum has been laid down that the evicted tenant could not be granted possession, when the tenant subsequently inducted opposed it and he would be entitled to the provisions of section 14 of the Delhi Rent Control Act. No doubt, the existence of the provisions in that Act did make some difference on account of which that dictum has been laid. However, the fact remains that it was indicated that if third party’s interests are created, then a qualification can be annexed diluting the absolute nature of that right and this is inferentially indicated even by the Supreme Court in Binayak Swain’s case (cited supra). It is true that the objection was raised directly by the tenant who was subsequently inducted and this may be a distinguishing feature because it was not a notice taken out by the landlord. However, that should not make much difference on the principles making it secondary as to who is the person who takes out the notice. The underlying principle in that ratio remains intact. This can be made applicable at least to some extent to similar set of facts in the instant case.

23. In Lal Bhagwant Singh v. Shri Kishan Das MANU/SC/0071/1953 : [1953]4SCR559 , it was found that the judgment-debtor had defaulted and in that context it was held that when the judgment-debtor fails to show that the sale of his property was in substance and truth a consequence of the error in the decree that was reversed he cannot invoke the aid of section 144 of the Code of Civil Procedure. This no doubt was on the facts of that case. However, while analysing the provisions of section 144 of the Code of Civil Procedure as the doctrine of restitution an observation is made which obviously tends to indicate that in a fit case carving out an exception to the normal rule is permissible. It is observed as :–

“……doctrine of restitution is that on the reversal of a judgement the law raises an obligation on the party to the record, who received the benefit of the erroneous judgement to make restitution to the other party for what he had lost and that it is the duty of the Court to enforce that obligation unless it is shown that restitution would be clearly contrary to the real justice of the case.”
The concluding portion of the said observations viz., “that unless it is shown that the restitution would be clearly contrary to real justice of the case” affords a valuable clue to the problem in question.

24. On the survey of the various decisions in the field, some of which may tend to project an ostensible conflict. It would not be proper to enunciate a firm, rigid and dogmatic rule of universal application, but instead introduce some flexibility, as it would equally not be proper to adhere to either of the extreme views. This is more so, since much will depend on facts and circumstances available in each case creating a variety of contingencies. The normal rule would no doubt be that the restitution would follow the order of setting aside an ex parte or any other decree, more because implicit therein is the inference that the decree was erroneous and therefore, normally the judgment-debtor should be placed in the same position as he was earlier before the decree was passed. However, there could be various contingencies in which granting of such relief almost mechanically would be against the interest of justice as also against the letter and spirit of the provisions embodying doctrine of restitution. The impact of the user of the term ‘so far as may’ in section 144 also cannot be completely ignored. In a given case it may be that the conduct of the landlord of the decree-holder is bona fide and honest while in another set it may be thoroughly dishonest indulging in manipulations. In a given case a third party may come in the picture honestly without any oblique design wherein his rights are bound to be jeopardised by an adverse order and which circumstance in association with other circumstances would certainly be a relevant consideration to tilt the balance. As against this, in yet another case, which would be in contrast, apparently, there may be either a collusive exercise or a make belief show under a camouflage by the landlord and the third party in an undue haste practically throwing the tenant unceremoniously on the street though the reality would be otherwise, or when the retention of the benefit under the erroneous decree by the decree holder himself may be inequitable, wholly unjust or even mala fide. In yet another set of circumstances even if there is no involvement of a third party interest, and if there are equities in favour of the landlord those equities may be required to be adjusted in his favour which may run counter to any such order. The other side of the coin would be equally relevant. Thus, in a case there may not be even any semblance of equity in favour of the tenant or that the tenant has acquired suitable alternate premises and has actually shifted there permanently or has an oblique design to unauthorisedly or illegally create the interest of a stranger in the premises and thereby affect the rights of the landlord or even his initial entry on the premises itself may be illegal even ex facie or there may be a situation where no inconvenience would be caused to the tenant if the issue is postponed. In a given set of circumstances, it may become manifest that granting of restitution would be clearly contrary to the real justice of the case.

25. The list can obviously be only illustrative and not exhaustive. A question, therefore, logically arises as to whether even in such cases is it obligatory to pass the order of restoration and thereby invoke the doctrine of restitution or whether the Court can exercise a discretion to act otherwise. In my opinion, an harmonious blending would be the proper approach under which a flexibility is to be introduced. The proper deduction, therefore, would be that as a normal rule doctrine of restitution would be invoked entailing in passing an order of restoration as soon as a decree is set aside on merits. However, the rigour of the absolute nature of such right can be diluted so that the same can be hedged in by qualification. For that purpose, an element of flexibility would be implicit so that it is not as if that the Court must act mechanically almost as a ritual to grant restoration in each and every case even if it is satisfied otherwise.

26. Consequently, therefore, in a fit case under the peculiar facts and circumstances therein, the Court has inherent discretion to act otherwise by postponing the enforcement of such an order of restoration or even by refusing restoration outright, though of course exercise of such a discretion should be judicious, proper and well justified on merits of the given case. In other words, therefore, restoration would be the normal rule, but it is not an absolute right as such and it is hedged in with certain exceptions. The Court, therefore, can in a proper case even outright refuse restoration. The permissibility therefore, is implicit and inherent, while its applicability depends on justification on facts of each case. This in my opinion would be the harmonious construction of the doctrine of restitution.

27. Applying this principle to the facts of the instant case certain features are manifest. The foremost is that even on the showing of the defendant the tenant had left the premises in the year 1970 and has gone to his native place and did not come back. The allegations that he was forced to do so on account of harassment from the plaintiff is absolutely untenable, because in the affidavit it is specifically mentioned that his father left for native place on account of old age. It is then further established on the affidavit of the son himself who claims to be constituted attorney of the father that he also left for the native place in the year 1979 and did not come back except when he made application for setting aside the ex parte decree. Similar allegations that he was also harassed are not substantiated. Thus the father made exit in the year 1970 while the son followed in the year 1979. Though it is claimed that thereafter the workers conducted the business, still at least in this proceeding no material is placed on record. When the inventory was made at the time of taking possession nothing was found to substantiate that the business was conducted by the workers. The claim that some rent was tendered is stoutly denied. When the bailiff went to serve the summons he was told that the shop was closed for more than three years and there is no serious challenge to that statement. In fact as stated earlier, the defendant very much wants to rely on that circumstance for setting aside ex parte decree. Obviously therefore he cannot have both inconsistent features for taking advantage on both counts. The suit is also on the ground of non-user of the premises for more than six months. Therefore, at least for the purposes of this proceeding this situation can be accepted, though the parties would be at liberty to lead evidence in that behalf in the suit. However, affidavit of the son cannot be lightly brushed aside.

28. It is then apparent that the suit was filed on 9th September, 1982, ex parte decree was passed on 8th December, 1983, execution was levied and possession was obtained through Court on 10th April, 1984 and it is on 13th April that the new tenant was inducted who continues to be in possession. The application for setting aside the ex parte decree was made on 13th August, 1984, the trial Court passed order on 23rd April, 1986 while the appeal was dismissed summarily in the Appellate Court on 25th June, 1986. During all this period the tenant is out of the premises and the new tenant has occupied the premises right from April 1984. It is clear that it is not as if that execution was levied immediately after the decree but it was after about four months during which period nothing transpired. The suit was also pending for more than one year. Even the notice for setting aside the ex parte decree was pending for nearly two years. Coupled with this the fact that the suit premises appeared to have been closed down for quite some time before the suit has its own relevance. It cannot also be overlooked that the original tenant father left Bombay in 1970 while the son who claims to have conducted the business also left Bombay in 1979 and it is not even claimed that the business is to be re-started. Third party interest has already been created in the suit premises which is bound to be jeopardised by an adverse order. Apparently no oblique motive could be even inferentially suggested in indicating the said third person as the subsequent tenant who was not aware of the litigation. The fact that on the earlier occasion the landlord had to file suit for eviction as the tenant committed persistent defaults in payment of rent and after the compromise, the same lapse was repeated by the tenant has its own impact. The equities in favour of the landlord are required to be adjusted and no inconvenience would be caused to the respondent in view of the material available atleast in this proceeding, which strongly indicates atleast prima facie that the premises are not being used for quite some time as the original tenant as also his son both have left for their native place and have practically settled there. Under these circumstances granting of restitution would be contrary to the real justice of the case.

29. The totality of all these features do contribute justification for not granting restoration of the suit premises in favour of the respondent-tenant during the pendency of the suit. The impugned order in that behalf, therefore, will have to be upset. In view of this, it would be obviously necessary to direct expeditions disposal of the suit.

30. The observations hereinabove are restricted to this suit proceeding and should not be confused to be equated with final opinion on merits. All the points on merits including the grounds on which the eviction is sought for in the plaint are left open to be considered and adjudicated upon in the said suit in the unfettered discretion of the trial Court.

31. The net result, therefore, is that the petition partly succeeds.

(i) The order setting aside ex parte decree and restoring the suit is confirmed.

Rule in that behalf discharged.

This however, would be subject to the respondent depositing in the trial Court the rental arrears as per his liability to be determined and calculated by the learned trial Judge.

(ii) The order granting restoration of the suit premises in favour of the suit premises in favour of the respondent-tenant is set aside.

Rule in that behalf is made absolute.

(iii) The learned trial Judge is directed to endeavour to dispose of the proceeding of R.A.E. & R. Suit No. 4498 of 1982 expeditiously and as far as possible and feasible before December 31, 1986.

(iv) Parties to appear before the trial Court on September 1, 1986 when the learned trial Judge shall fix the further schedule of the proceeding.

(v) There would, however, be no order as to costs.

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