SMT. SHAKUNTHALA S. RAO v. YAMUNA K L

ORDER In this petition, petitioner is seeking for the following reliefs: i) Directing the respondents to open the lock of the schedule Premises with immediate effect in pursuance of the order dated 16.01.2024 MA.No.56/2021 XVI Additional City Civil and Sessions Judge, Bangalore City(CCH-12) at Annexure-A by setting aside the order on I.A rejecting the application for restoration. before ii) Award court costs and such other reliefs as the Hon'ble Court deems fir to grant in the interest of justice."

2. Heard learned counsel for the petitioner and learned AGA for the respondents.

3. On perusal of the material on record will indicate that the respondents instituted proceedings under the Karnataka Public Premises Eviction of Unauthorised Occupants Act, 1974 - 3 - NC: 2024:KHC:23872 WP No. 12635 of 2024 (for short 'Act of 1974) against one Guruprasad Bakery, which culminated in an order of eviction dated 11.05.2015. Aggrieved by the same, the petitioner approached this Court in WP.No.14944/2021 which was disposed of by this Court vide final order dated 01.09.2021, relegating the petitioner to approach the jurisdictional Appellate Court under the Act of

1974. In pursuance of the same, the petitioner preferred an appeal in MA.No.56/2021 challenging the order of eviction passed against one Guruprasad Bakery on the ground that it was the petitioner, who has been in lawful and peaceful possession and enjoyment of the subject premises. Along with the appeal, the petitioner also filed an application seeking restoration/restitution of possession by removing the lock put by the respondents on the subject premises during the pendency of the aforesaid writ petition before this Court.

4. In this context, my attention is invited to the final order passed in the aforesaid MA.No.56/2021, which reads as under: "The appeal is hereby allowed in part. Consequently, the order passed by the 2nd respondent on 11.05.2015 in No.PPA/CR/20/2014-15 is hereby set aside and the matter is referred - 4 - NC: 2024:KHC:23872 WP No. 12635 of 2024 back to the respondent No.2 with a direction to hold fresh inquiry in accordance with law with respect to the schedule premises, by giving opportunity sufficient appellant. No order as to costs."

5. It is the grievance of the petitioner that despite the order of eviction passed by respondent No.2 having been set aside and the matter remitted back to respondent No.2 for reconsideration afresh in accordance with law, the respondents are not removing the lock affixed by them on 19.08.2021 and the said order dated 16.01.2024 in MA.No.56/2021 rejecting the application filed by the petitioner for restoration/restitution of possession be set aside and applying the said principles of restitution as enunciated by various judgments of the Apex Court and this Court including the judgment in the case of CHANDA SAB Vs. JAMSHED KHAN AND OTHERS-AIR 1993 KARNATAKA 338, impugned order passed MA.No.56/2021 dated 16.01.2024 insofar as, it relates to rejecting the application of the petitioner for restitution of possession and removal of lock deserve to be set aside and the said request has to be accepted in the present petition. - 5 - NC: 2024:KHC:23872 WP No. 12635 of 2024

6. Per contra, learned AGA would support the impugned order and justifying fixing of lock on the subject premises submits that there is no in the merit in the petition and the same is liable to be dismissed.

7. A perusal of the material on record will indicate that it is an undisputed fact that appeal in MA.No.56/2021 filed by the petitioner herein was allowed by the First Appellate Court setting aside the order of eviction dated 11.05.2015 passed in relation to the subject premises and remitted the matter back to respondent No.2 for reconsideration afresh in accordance with law after conducting fresh enquiry and giving sufficient opportunity to the petitioner as is clear from the impugned order.

8. In this context, it is relevant to refer to the principles of restitution as enunciated by this Court in Chanda Sab's case supra is reads as under: ”13. At this juncture, it will be useful to refer briefly to some decisions which make it clear that a transferee, even a bona fide tenant as claimed by respondents 1 and 2 herein, restitution, having regard to the Rule of lis pendens enunciated in Section 52 of the Act. Section Transfer 52 embodies the maximum pendente lite resist an order Property cannot - 6 - NC: 2024:KHC:23872 WP No. 12635 of 2024 nihil innovetur (pending a litigation nothing new should be introduced). The scope of the doctrine has been explained by Turner, L.J. in Bellamy v. Sabine reported in (1857) 44 ER 842 as follows: "It is, as I think, a doctrine common to the Courts both of Law and Equity, and rests, as I apprehend, upon this foundation that it would plainly be impossible that any action or suit could be brought to a successful termination, if alienations pendente lite were permitted to prevail. The plaintiff would be liable in every case to be defeated by the defendant's alienating before the judgment or decree, and would be driven to commence his proceedings de novo, subject again to be defeated by the same course of proceeding." In the same decision, Lord Cranworth observed : "It is scarcely correct to speak of lis pendens as affecting a purchaser through the doctrine of notice, though undoubtedly language of the Courts often so describes its operation. It affects him not because it amounts to notice, but because the law does not allow litigant parties to give to others, pending the litigation, rights to the property in dispute, so as to prejudice the opposite party".

14. A. Narayana Pai C.J. in the case of Mohammed Ali Abdul Chanimomin v. Bi- sahemi Kom Abdulla Saheb Momin reported in AIR 1973 Mysore 131, explained the scope and object of Section 52 of the Transfer of Property Act in the following manner (para 14) : - 7 - NC: 2024:KHC:23872 WP No. 12635 of 2024 the object of Section 52 is "So far as the legal aspect is concerned, little argument is necessary to make out subordinate all derivative interests or all interests derived from parties to a suit by way of transfer pendente lite, to the rights declared by the decree in the suit and to declare that they shall not be capable of being enforced against the rights acquired by the decree-holder. A transferee in such circumstances therefore consequences of the decree which the party who made the transfer to him would take as the party to the suit. The principle of lis pendens embodied in Section 52 being a principle of public policy, no question of good faith or bona fides arises. Such being the position, the tranferee from one of the parties to the suit cannot assert or claim any title or interest adverse to any of the rights and interests acquired by another party under the decree in suit. The principle of lis pendens prevents anything done by the transferee from operating adversely to the interest declared by the decree."

15. In Sukhan Singh v. Uma Shankar, AIR 1935 Allahabad 65 it was held: "Section 144 makes it imperative, where a decree passed by the Court of first instance is reversed on appeal, that the Court should place the winning party in the position which he or she would have occupied but for such decree. The winning party is entitled to have her land restored to her free from all encumbrances, including any tenancy that might have been created in the meantime by the party who was successful in the first Court but eventually was found to have no title to the land. Restitution under S. 144 can be claimed not - 8 - NC: 2024:KHC:23872 WP No. 12635 of 2024 only against the opposite party; but also his representatives or persons deriving title from him."

16. In Kanakasabai Mudaliar v. Rajago-pal Naidu, AIR 1918 Madras 673, it was held that Section 144 is imperative in its terms and gives the court no discretion and when a party to a suit is bound to restore possession under any provision of law, his legal representatives or assigns are equally liable. In Badri Dass v. Birendra Bikram Singh, AIR 1938 Oudh 169 it was held that Sections 47 and 144 should be read together and the word 'parties' in S. 144 representatives 'representatives' does not mean only a party's legal representative, but it means representative-in-interest also. In Narayan Laxman v. Vishnu Waman, , it was held that persons inducted as lessees during the pendency of an appeal, after dispossession of the defendant in execution of a decree, must be treated as representatives-in-interest of the plaintiff and as such bound by the ultimate result of the suit under the rules of lis pendens enunciated in Section 52 of the Transfer of Property Act and the order for restitution could be executed against them although they were not parties to the suit. include

17. In Manikchand Sarupchand Shah v. Gangadhar Shankar Shete, , a decree for possession was made in regard to a premises which was in the occupation of the defendant's tenants; the decree-holder in execution and obtained possession evicted tenants and inducted other tenants. Subsequently, the in appeal and decree was set aside the defendant's - 9 - NC: 2024:KHC:23872 WP No. 12635 of 2024 defendant sued for restitution. It was held that the said tenants inducted by the plaintiff were liable to be evicted in the restitution proceedings and the said tenants cannot claim any protection against eviction under the Bombay Rent Act. lite, pendente

18. In Samarjut Singh v. Dy. Director of Consolidation U.P., , it was held that a transferee a representative-in-interest of the party from transfer. Such a whom he got transferee is not entitled to raise any claim against the decree or order for restitution ultimately passed on the reversal of the decree. It was also held that the transferee pendente lite, need not be impleaded or brought on record as a party and when a decree is made, any transferee, even if not joined as a party, being a representative of the judgment- debtor (against whom restitution has been obtained) in all matters relating to the execution, discharge or satisfaction of the decree, will be bound by the order for restitution, in spite of the fact that he was not impleaded as a party. restitution

19. In Jagdish Lal Arora v. M.E. Periera, , the rights of a transferee pendente lite, to resist restitution were considered in detail. In that case, the premises in question belonged to one J. Rani Sethi. One Corea was the tenant of the premises. Periera was in occupation of the premises either as a sub-tenant or a licensee under Corea. Corea obtained an ex parte decree against Periers and took possession. Thereafter, the said Corea is said to have surrendered the premises to the landlady who in turn let out the portion of the premises to one J.L. Arora. In the meanwhile, on a motion by - 10 - NC: 2024:KHC:23872 WP No. 12635 of 2024 Periera, the ex parte decree was set aside and Corea was directed restore possession. The proceedings for restoration was resisted by the existing tenant J. L. Arora on the ground that he was a bona fide tenant and his possession could not be disturbed in a proceeding pursuant to the order of restoration. Thereupon Periera sought police aid. J. L. Arora made an application for stay of further proceedings till his claim was determined. The trial Court refused to grant stay holding that as J. L. Arora was inducted during the pendency of the suit, his rights were prima facie barred under Section 47 and that in a proceeding under Section 144 of the Code of Civil Procedure, it was the duty of the Court to restore the benefit taken by a party under a decree which has since been set aside. The trial Court subsequently made an order dismissing the application filed by J. L. Arora, reiterating its earlier conclusions and rejeted his request for investigation into the right claimed by him. The said order was challenged by J. L. Arora before the Delhi High Court on the ground that us a tenant who was in bona fide possession in his own right and in good faith, he was not bound by the order of restitution. H. L. Anand, J. went into the question whether a transferee, from a decree holder who had obtained possession order an ex parte decree, would be within in restitution the reach of the court proceedings even though such transferee may not have any knowledge of the earlier proceedings and was dealing with the property in good faith. The Court after referring examining Sections 47 and 144 of CPC, Order 21 Rules 97 to 103 of CPC and Section 52 of the Transfer of Property Act and several decisions on the - 11 - NC: 2024:KHC:23872 WP No. 12635 of 2024 matter, held as follows (paras 9 and 10 of AIR): "A combined reading of the three sets of provisions referred to above hardly leaves any doubt that any transfer of possession of immoveable property during the pendency of a suit which involves any right to such property, would be incapable in law of affecting the rights that flow in relation to the property from a decree that may be passed in the suit. It is also evident that where a defendant has been deprived of the possession of the property in execution of a decree for such possession and the decree was eventually set aside, the party who is deprived of possession is entitled to the possession being restored to him unless the justice of the cause points to the contrary and the party that has taken the benefit is under an obligation to restore possession and the court is fully empowered, as indeed obliged, to order restitution by evicting not taken the advantage but all those whose possession is relatable to such a party. In such cases, the transferee from the party, who obtains the advantage, or a further transferee from such a transferee, would be within the reach of the court irrespective of whether such transferee or transferees were acting in good faith and without any knowledge of the earlier proceedings. The power and the obligation of the court to restore the property, to the person who has been in such cases, would deprived of transcend all the cause. If, founded therefore, either the person who took the benefit or any transferee from him or a transferee from such a transferee resisted or obstructed the execution of an order of the party which has limitations except justice of it, - 12 - NC: 2024:KHC:23872 WP No. 12635 of 2024 restitution, would not have the protection of Rule 99 of Order XXI of the Code of Civil Procedure. reason why, It, therefore, follows that the petitioner, being a person who claims to be in possession as a tenant under the landlady, who admittedly came by the possession of the portion in dispute and surrender by Corea, who was a party to the proceedings and had taken advantage of the ex parte decree, is within the reach of the Court and is bound to restore the possession of the portion in dispute to Periera, I do not see facts and circumstances, of this case, the obligation cast on the petitioner, as indeed the others, to restore the possession of the property to Periera, who was wrongfully deprived of it, should not be enforced by the court. There is no reason why the solemn duty cast on the court to make such a restoration should not be discharged by it. The contention that Periera was merely a licensee or, even if a sub-tenant, was an unauthorised subtenant and, therefore, held the property on a precarious tenure which would not survive judicial scrutiny and the claim of Corea to dispossess Periera was bound to succeed in the suit, which has been restored, to my mind, would not justify the benefit of restitution being declined. It has been pointed out above, that the judgment-debtor would be entitled to restoration even though ultimately he may lose it or was even bound to lose it and restoration proceedings were justified by the Supreme Court, even though at the trial of the suit, a decree had already been passed in favour of the decree-holder, who was required to make the restoration. It is also of no avail that the surrender by Corea - 13 - NC: 2024:KHC:23872 WP No. 12635 of 2024 in favour of the landlady did not amount to transfer of property because it did amount to dealing with the property in a manner that was prejudicial to the right of Periera. There is nothing in the justice of the cause that may justify any interference except to the extent indicated below.

20. The following principles emerge from a conspectus of the aforesaid decisions : (a) Whenever an ex parte order/decree for possession/eviction is set aside, the party who was dispossessed/evicted in pursuance of such an ex parte decree or order, is entitled to restitution forthwith in spite of the fact that ultimately on merits, he may lose the cause and may have to yield back possession. This is in view of the salutary principle embodied in S. 144 of C.P.C. that no party to a lis should suffer or be prejudiced on account of an erroneous action or decision of the Court. (b) The order for restitution, if not complied with can be enforced as a decree, not only against the person who obtained the ex parte decree/order dispossession, representative-in-interest, assigns, including transferees, transferees, irrespective of the fact whether such transferee or person in possession, is a party to the suit or the restitution proceedings; tenants against caused (c) No person who has entered possession through the party obtaining the ex parte decree/order, can resist or obstruct restitution on the ground that he is a bona fide transferee or tenant without notice; neither bona fides nor notice is relevant to the principle of lis pendens - 14 - NC: 2024:KHC:23872 WP No. 12635 of 2024 which is a principle of public policy that neither party to a litigation can alienate the property in dispute, pendente lite, so as to affect his opponent; (d) Only a stranger who is in bona fide possession, in his own right and who does a transferee/representative of the party who obtained possession in pursuance of the ex parte order/decree, can resist a claim for restitution; possession (e) the provisions of S. 144 being imperative, courts should aid restitution and not help obstruction to restitution on vague pleas of equity or technicalities.

21. Applying the above principles, it is clear that respondents 1 and 2 are not entitled to obstruct restitution. Thus they have not made out a prima facie case for grant of injunction. The trial Court, by applying correct principles, had refused a temporary injunction. There was no justification for the appeallate court to interfere with the discretion so exercised. The Appellate Court acted with material irregularity in exercise of its jurisdiction leading to failure of justice.

22. Hence this revision petition is allowed and the order of the trial Court is restored. The application for temporary injunction filed in O.S. No. 941/88 to restrain the petitioner from executing the order of restitution and dispossessing respondents 1 and 2, shall stand rejected. Parties to bear their respective costs.

23. Petition allowed." - 15 - NC: 2024:KHC:23872 WP No. 12635 of 2024

9. It is also relevant to state that the orders passed in MA.No.56/2021 allowing the appeal preferred by the petitioner has since attained the finality and become conclusive and binding upon the respondents, who have not challenged the same. In other words, the order passed by the First Appellate Court setting aside the order of eviction has not been challenged by the respondents and consequently, since the respondents had put up a lock on the subject premises during the pendency of the writ petition, subsequent to which, the eviction order was set aside by the First Appellate Court in MA.No.56/2021, by applying the principles of restitution as stated supra, I deem it just and appropriate to allow the present petition and direct the respondents to remove the lock and restore/reinstate possession of the schedule premises back to the petitioner, which would be subject to final outcome of the proceedings to be concluded before respondent No.2 in accordance with law. In the result, I pass the following: ORDER i) The writ petition is hereby allowed. ii) The impugned order passed by the XVI Additional City Civil and Sessions Judge, - 16 - NC: 2024:KHC:23872 WP No. 12635 of 2024 Bangalore in MA.No.56/2021

16.01.2024 at Annexure-A insofar as it relates to rejecting the application I.A.No.2 filed by the petitioner under Section 151 of C.P.C., is concerned is hereby set aside. iii) Remaining portion of the impugned order stands confirmed. iv) I.A.No.2 filed by the petitioner MA.No.56/2021 stands allowed and the respondents are directed to remove the lock and restore/reinstate possession of the subject premises back to the petitioner within a period of one week from the date of the receipt of a copy of this order. v) It is, however, made clear that the said restoration/restitution of the possession of the petitioner into the subject premises pursuant to this order would be subject to the final outcome of the proceedings. - 17 - NC: 2024:KHC:23872 WP No. 12635 of 2024 vi) All rival contentions on all aspects of the matter are kept open and no opinion is expressed. vii)Petitioner is directed to appear before respondent No.2 on 22.07.2024 without awaiting further notice from respondent No.2. viii) Liberty is reserved in favour of the petitioner to file pleadings, objections, documents and etc., before respondent No.2, who shall consider the same and proceed further in accordance with law. Sd/- JUDGE PHM List No.: 1 Sl No.: 1