Trailakhya Nath Maity vs Bimala Sundari Dasi

Mookekjee, J.—The principal question raised in this Rule is whether the prayer of the opposite party for getting restitution by way of mesne profits in respect of certain lands allowed by the courts below was proper and legal.

The Petitioner before this Court had purchased the interest of a co-sharer in certain raiyati lands. The opposite party filed an application for pre-emption u/s 26F of the Bengal Tenancy Act. On January 29, 1946, the Munsif, at Contai, granted the prayer of the opposite party. The opposite party, thereupon, obtained delivery of possession through court. An appeal was taken by the present Petitioner to the court of the District Judge. The appeal was allowed, and the present Petitioner got back possession, through court, of the property on July 29, 1946.

The opposite party came up to this Court in revision. The original order passed by the Munsif was restored and the opposite party again recovered possession of the properties from the present Petitioner before this Court on September 14, 1947.

Bimala Sundari Dasi, the opposite party before this Court, thereupon filed an application, purporting to be one u/s 144 of the Code of Civil Procedure, for damages and compensation for the period between July 29, 1946, and September 14, 1947. The trial court allowed the prayer and fixed a certain amount as compensation. An appeal was taken against that decision by the present Petitioner Trailakhya Nath Maity and the additional District Judge maintained the findings, but reduced the claim from Rs. 127 to Rs. 106. It is against this order that the present Petitioner Trailakhya has obtained the present Rule.

The principal point urged is that Section 144 of the Code of Civil Procedure, under which the application purports to have been filed, cannot be attracted; consequently the court will not be justified in exercising its inherent powers when the applicant herself mentions a particular provision of law under which the application is made. Further, the proper procedure to be followed in this case was not by way of an application in the proceedings for pre-emption but by way of a separate suit.

It may be stated at once that Section 144 of the CPC cannot apply in terms to the present case. It is immaterial, further, that the Petitioner''s legal advisers mentioned Section 144 of the CPC as the provision of law under which the application was being made. The court, in the administration of justice, will not refuse any application which on the merits the court can grant simply because the applicant asked the court to exercise its admitted powers under a wrong section. The judicial procedure has been framed for the furtherance of justice and not to defeat it, and the court cannot refuse to act in aid of justice merely on technical grounds. Bechu Singh v. Bicharam Sahu (1909) 10 C.L.J. 91 and Tribeni Sahu v. Bhagwat Bux (1907) ILR 34 Cal. 1037, 1051.

If, therefore, the court is satisfied on the merits that the Petitioner is entitled to reliefs under some provision or other than the one mentioned by the lawyers of the Petitioner, the hands of the court are not in any way restrained by that fact.

I shall now proceed to consider whether the applicant for restitution can get any relief in the present proceedings, or must be relegated to a separate suit for the purpose. The provisions of Section 144 are based upon the cardinal principle that the acts of a court should not be allowed to work injury on the suitors. The observations of Lord Cairns in Rodger v. Comptoir D'' Escompt De Paris (1871) 40 L.J.P.C. 1 are well known. It is one of the first and highest duties of the courts to take care that the act of the court does no injury to the suitors. The expression "act of the "court" does not mean merely the act of the primary court or of any intermediate court, but act of the court as a whole, from the lowest to the highest which finally disposed of the case.

An attempt was made to restrict the operation of the principle of restitution only to cases where a decree is varied or reversed. There is no substance in such a proposition. Such restriction will run counter to the first principles on which the rule of restitution is based. It does not depend upon whether the order which is passed and which places a suitor in a position in which he has suffered loss is a decree or is an order in some other form.

Reference may in this connection be made to a case where an adjudication was annulled, yet distribution was ordered to be made. Distribution was accordingly made. The order for distribution was subsequently set aside, and the court rightly directed that the payments under the order for distribution be directed to be refunded. Such an order is by way of restitution on the principle that the earlier order which had been passed to the detriment of a particular person should not be allowed to make such a person suffer because of a wrong order which is subsequently set aside. Panna Lal Sham Lal v. Abdullah Usman [1933] AIR (All.) 117.

Reference may also be made to another case where a money had been refunded by a court wrongly, and when the attention of the court is drawn to that fact, the subsequent order directing the person who has taken the money wrongly to refund is an order in the nature of restitution and the court allowed such restitution in the course of proceedings in which the money had been paid out. Collector of Ahmedabad v. Lavji Mulji (1911) ILR 35 Bom. 255, 258.

Another case which even went to the extreme length of directing certain papers, which had been taken from the Bank purporting to be under the Bankers'' Books Evidence Act under an erroneous order of the court, to be sent back to the Bank purporting to be an order for restitution. Rastomji Ardeshir Cooper v. Byramji Bomanji Talati [1932] AIR (Bom.) 428, 430.

It is no use multiplying instances if we only remember the principles on which restitution is to be ordered by the court, and the court is bound to issue an order for restitution unless there be a special procedure laid down, or a special provision made in any statute to be followed for restitution.

A faint attempt was made to the effect that the order passed by the High Court allowing pre-emption did not entitle the party to any compensation for the period during which he had been kept out of possession. The ordering portion of the judgment in Civil Revision Case No. 1255 of 1946 is, however, a complete answer to such a contention. It was directed:

In the result, therefore, this petition must be allowed. The order of the learned District Judge is set aside, and the order of the learned Munsif is restored.

The result of this order, dated July 17, 1947, by this Court, therefore, was to wipe out the decision of the District Judge on the strength of which the present Petitioner before this Court had recovered back possession from the opposite party.

If we refer to the provisions contained in the Bengal Tenancy Act, there is no indication there providing for the procedure to be followed in a case of this description.

The inherent powers of a court cannot be invoked where there is another remedy available to the party concerned. Ghuznavi v. The Allahabad Bank Ltd. (1917) ILR 44 Cal. 929. But where there is no provision it is not only necessary, but it is the bounden duty of the court to exercise its inherent power to set matters right. As has been pointed out repeatedly by this Court, it is not possible for the legislature to provide for all contingencies, and whenever there is a lacuna, it is up to the court to see that justice is done. Where the legislature has not provided any procedure to be followed in cases which do arise, the court must be taken to have inherent powers to decide the question of procedure, and the courts have even proceeded to this length that the courts will invent a special procedure for themselves if the special circumstances of a particular case demand it. Hukum Chand Boid v. Kamalanand Singh (1905) ILR 33 Cal. 927, Gurdeo Singh v. Chandrikah Singh (1907) ILR 36 Cal. 193. Such propositions were enunciated even before the introduction of Section 151 in the Code of Civil Procedure, and the wide powers of the court under the inherent jurisdiction have not been circumscribed in any manner. On the other hand, there is legislative recognition of the principles which had been enunciated for about half a century, by this Court.

If the contention of the present Petitioner before this Court be accepted that it is only in the case of a decree being varied or reversed in the manner indicated in Section 144 of the CPC the court is entitled to direct restitution that would be virtually a denial of the inherent jurisdiction of the court to allow restitution. It has been repeatedly held that the exercise of inherent jurisdiction is not circumscribed by the provisions contained in Section 144 of the Code of Civil Procedure. It will, therefore, be erroneous and against the first principles on which restitution is allowed to restrict the jurisdiction of the court only to cases when a decree is modified or reversed.

The procedure which has been followed by the courts below giving full opportunities to the parties concerned to place the necessary materials has not in any way been improper. On the other hand, the parties had full opportunity to place their respective cases before the court. Even if a separate suit had been allowed to be filed, the parties would not have been in a better position or derived greater advantage than what they have obtained already. There has been no denial of justice so far as the present Petitioner is concerned. As a matter of fact, the learned advocate appearing for the Petitioner candidly stated that he had not much to say so far as the merits of the case are concerned, if the court found that the procedure followed was a legal one. If the court had jurisdiction to entertain the application for restitution in the course of the present proceedings he could not raise objection about the merits.

This Rule is accordingly discharged with costs (hearing fee one gold mohur).