Appellate Division Cases
Military Estate officer, Dhaka. ……………………………Appellants
Cantonment. Dhaka and another
= Vs =
Sk. Mohammad Ali and others …………………………….. Respondents
Mahmudul Amin Choudhury C.J.
Md. Ruhul Amin j .
K. M. Hasan j .
JUDGEMENT DATE: April 24th, 2002
Section 144 of the Code. Section 151 of the Code.
It is well established that terms of section144 of the Code is mandatory but this is not exhaustive. It only provides procedure for restitution in the case of a reversal of a decree.
Civil Appeal No. 29 of 1999 (From the judgment and order dated 25th March, 1998
passed by the High Court Division in First Appeal No . 206 of l995).
Mr. A. .1. Maohammad Ali, Additional Attorney. General, (Mr. Reroz Shah, Assistant Attorney General with him), instructed by Mvi. Md. Whaidullali, Advocate-on-Record. For appellants
Mr. Rokanuddin Mahamud, Senior Advocate, instructed by Mr. Md. Aftab Hossain, Advocate -on-Record. Respondent Nos. 2 to 27.
Date of hearing : Not represented.
1. Mahmudul Amin Choudhury C. J. This appeal by leave is against judgment and order dated 25th March. 1998 passed by a Division Bench of the High Court Division in First Appeal No. 206 of 1995 allowing the appeal.
2. The short fact leading to this appeal is that respondent as plaintiffs earlier instituted Other Class Suit 1977 against the present appellants and others in the Fist Court of Subordinate Judge. Chittagong for declaration of their right of permanent tenancy in the suit land with a further declaration that notice date 29.12.1976 issued by the appellants namely Military Estate Officer, Dhaka Cantonment for removing the structures from the suit land is illegal, void and not binding upon them . At the first instance the suit on contest was dismissed by the learned Subordinate judge by judgment dated 22.8.1949 . Thereafter First Appeal Nos. 99 and 100 of 1949 were filed and a Division Bench of the High Court Division by judgment dated 8.8.1989 . Thereafter First Appeal Nos. 99 and 100 of 1989 were filed and a Division Bench of the High Court Division by judgment dated 8.8.1993 allowed the appeal setting aside the judgment and decree passed by the learned Subordinate Judge in the aforesaid suit. The High Court Division declared that the impugned notice bearing No. ALC/681/76 dated 29.12.1976 is illegal and of no legal effect. It was also declared that possession of the suit land from the plaintiffs cannot be recovered except in due process of law. But in the meantime though the original suit was dismissed on 22.8.1989 the contesting defendants dispossessed the plaintiffs from the suit land on 26.8.1989 and thereafter of course the suit was decreed in the High Court Division in the aforesaid terms. After disposal of the appeal as aforesaid the plaintiffs hen filed an application under sections 144/151 of the Code of Civil Procedure for restitution of the suit land from which they were illegally dispossessed and the case was registered as Miscellaneous case No. 522 of 1993 of the First Court of Subordinate Judge, Chittagong. That Miscellaneous Case was dismissed on contest on 30.4.1995. Thereafter the plaintiff-petitioners preferred First Appeal No. 206 of 1995 before the High Court Division and a Division Bench by judgment dated 25th March. 1998 allowed the appeal and set aside the order dated 30.4.1995 passed by the learned Subordinate Judge and ordered for restitution of the Suit land to the plaintiffs.
3. Leave was earlier granted in this appeal to consider the following :” that the notice for taking possession of the lands in question having been issued on 29.12.1976 before the filing of the suit by the respondents and the respondents having been dispossessed from the said land after the suit for declaration of title filed by the respondents was dismissed by the trial court, it cannot be said that the respondents were evicted from the said lands by an action under the reversed decree and the High Court Division was wrong in allowing the prayer for restitution . He also submits that the decisions cited in the udgment of the High Court Division have no application in the facts of the instant case and the High Court Division was not right in passing the impugned judgment relying on the said decisions.”
4. Mr. A. J. Mohammad Ali, learned Additional Attorney General placing the provision of section 144 of the Code of Civil Procedure henceforth the Code submits that the provision of this Code is very clear and when the plaintiffs have not been dispossessed due to any decree passed by a competent civil court the provision of section 144 of the Code is not attracted. He submits that when the section provided that if as a consequence of a decree, position of a party is changed after the institution of a suit the original position should be restored to the extent of such variation. The learned Additional Attorney General submits that in this case there is no allegation that the appellants took possession of the property in execution of any decree which was varied or altered by the High Court Division . In fact the plaintiffs’ claim possession over the suit property as a tenant and they prayed for declaration that notice dated 29.12.1976 issued by the appellants directing the plaintiffs to vacate the suit premises was to be declared illegal, void and not binding upon the plaintiffs. The plaintiffs; suit was dismissed after due trial on 22.8.1989 and thereafter on the strength of the earlier notice dated 29.12.1976 the plaintiffs were dispossessed from the suit property on 26.8.1989. The learned Additional Attorney General submits that by no stretch of imagination it can be found that the fact involved in the present case attracted the provision of section 144 of the Code. He submits that the relief sought for in the present proceeding is not available to the plaintiffs. He further submits that it is not the case of the plaintiffs that on getting a decree from a competent civil court the present appellants dispossessed the plaintiffs from the suit property which decree was subsequently varied by the Higher court from which it can be found that the plaintiffs are entitled to get back possession under section 144 of the Code.
5. Mr. Rokanuddin Mahmud, learned Counsel appearing on behalf of plaintiff-respondent No 1 on the other hand submits that the notice dated 29.12.1976 vvas issued by the appellants directing the plaintiffs to vacate the suit properties and on being aggrieved by this notice earlier suit was filed challenging this notice and also praying for declaring tenancy right over the suit property. Thotigh the suit was dismissed in the trial court but the same was decreed in the appellate court but immediately after dismissal of the suit on 22.8.1989 even before drawing up the decree and offering some time to prefer appeal before the High Court Division the present appellants dispossessed the plaintiffs from the suit property on 26.8.1989 . He submits that dispossession on that date is an admitted fact. The learned Advocate contends that though the plaintiffs’ tenancy right has not been declared but the notice on the basis of which the plaintiffs were dispossessed have been found to be illegal and of no legal effect and the High Court Division found that possession from the plaintiffs cannot be recovered except in due process of law. Mr. Mahmud submits that with this verdict notice on the basis of which the present appellants initiated to dispossess the plaintiffs falls to the ground. But taking advantage of the dismissal of the suit by the trial court the plaintiffs were dispossessed and as such when the basis of their dispossession that is the notice which has been found to be illegal and there is a direction for taking over possession of the suit property under due process of law the plaintiffs are now entitled to restitution of possession/ Even where the same may not be possible under section 144 of the Code the court may take recourse to Section 15l of the Code. The High Court Division according to Mr. Mahmud has rightly allowed the prayer of the plaintiffs and no wrong and illegality has been committed.
6. If we look into the provision of section 144 of the Code it would be clear that there are certain well defined limit within which regular relief can be given under this section. It provides that there must be variation or reversal of a decree and unless there is any such variation, reversal no relief can be granted. Position must be altered as a consequence of an altered decree. What the section provide is that if as a consequence of a decree the position of a party is changed after institution of a suit the original position should if that decree is varied be restored to the extent the variation goes. Here in the present case admittedly the appellants never took over possession of the suit property on the strength of a decree but they took over possession but they took over possession on the basis of their own notice dated 29.12.1976 . It is well settled principle of restitution that on the reversal of a judgment an obligation is created for a party who had received the benefit of an erroneous judgment to make restitution to the other party what he had lost and it is also for the court to see that ends of justice is not frustrated. The court may place the party in the position which they would have occupied but for the erroneous judgment. It is also well settled that an order of restitution can only be made when the basis of which right was procured or obtained has been varied or altered. Here in the present case before us the plaintiffs were admittedly in possession of the suit properties and for their eviction notice dated 29.12.1976 was issued by the appellants and challenging the legality of this notice the aforesaid suit was filed which was dismissed on 22.8.1989 and then on 26.8.1989 the plaintiffs were dispossessed. But on being aggrieved by this decree they moved the High Court Division if First Appeal Nos. 99 and 100 of 1989 and ultimately got a decree declaring that the aforesaid notice is illegal and of no legal effect and there was also a declaration that possession from the plaintiffs cannot be taken except in due process of law. But before that decree was passed by the High Court Division on the strength of the aforesaid illegal notice the plaintiffs were dispossessed by the appellants from the suit properties. They even never gave any chance to the plaintiffs for preferring appeal on obtaining certified copy of the judgment and decree. It is clear that ispossession was done not no the strength of any decree passed by the civil court but it was done on the strength of a notice which was found to be illegal and of no legal effect by the High Court Division against which the present appellants never moved the Appellate Division of the Supreme Court.
7. In such circumstances have the plaintiffs any relief before us? We have noticed above that dispossession was not on the basis of any decree which has been varied or altered. The consistent view of the higher courts of the Sub-continent is that in such ircumstances the provision of section 144 of the Code is not attracted. It is well established that terms of section 144 of the Code is mandatory but this is not exhaustive. It only provides procedure for restitution in the case of a reversal of a decree. Now the question is when on the basis of notice which was in challenge and on the strength of this notice after dismissal of the suit by the trial court the plaintiffs were dispossessed but ultimately in a higher forum notice was fount to be illegal and void the plaintiffs can have the possession of the suit properties back’ It is not the case of the appellants that they got possession on the strength of any other instrument. The learned Additional Attorney General submits that they got possession on the strength of notice dated 29.12.1976 . But this notice was ultimately found to be illegal and of no legal effect by the High Court Division. In such a situation can a court remain powerless and a silent spectator and watch that in spite of the fact that a decree has been passed in the High Court Division declaring a notice to be illegal on the basis of which notice the plaintiffs were dispossessed and when the decree of the High Court Division merged with the decree of the trial court without giving any relief to the affected party/ This is not contemplated under the civil justice system in this country. If it is found in an appropriate case that though the party is for all fairness entitled to get possession of any property can he be deprived of his entitlement simply because that provision of section 144 of the Code is not applicable in his case. The civil courts; hands are not lied up in such matters. In such a situation inherent right of the court has been recognized by section 151 of the Code. The result of applying the principle of the said section to case which comes before the court is that the court has to make such order as would enable it to do effective and compete justice between the parties. The High Court Division it appears though found that section 144 of the Code is applicable but even if it is found that this provision is not applicable as submitted by the learned additional Attorney General but when the plaintiffs were dispossessed on the basis of a notice which was found to be illegal by the High Court Division the civil court can exercise its inherent power under section 151 of the Code in such a case and in the present case this discretionary exercise of power has not run counter to the interest of justice.
8. We have gone through the judgment of the High Court Division as well as of the trial court and on consideration of the facts and circumstances of the case we hold that the High Court Division has not committed any illegality and wrong in allowing the appeal and directing restitution of the suit property as prayed for.
9. There is, therefore, no merit in this appeal and the same is accordingly dismissed without any order as to costs.
Source : I ADC (2004),46