IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD FRIDAY, THE THIRTIETH (30TH) DAY OF SEPTEMBER, TWO THOUSAND AND ELEVEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY CRP No.3481 of 2010 Between: M. Harinarayana @ Haribabu … Petitioner And: Smt. P. Swaroopa Rani … Respondent HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition No.3481 of 2010 ORDER: This revision is directed against the order dated 09.04.2010 in IA No.142 of 2009 in OS No.44 of 2002 on the file of the I Additional District Judge, Kadapa, wherein the said application filed by the respondent herein-defendant under section 144 CPC seeking delivery of possession of the schedule property i.e., Venkateswara Picture Palace, situated in Sy.No.72/1, Nagarajupalli of Kadapa, was allowed, directing the petitioner herein to deliver possession of the said property to the respondent immediately. 2. Heard both sides. Perused the record. 3. The petitioner herein filed suit against the respondent in OS No.44 of 2002 for specific performance of the suit agreement and seeking a direction to the respondent to execute registered sale deed in respect of the schedule property and also for permanent injunction restraining the respondent from interfering with the plaintiff’s possession and enjoyment. According to the plaintiff, the defendant executed suit agreement on 28.03.2001 agreeing to sell the schedule property to the plaintiff for Rs.64 lakhs and that the plaintiff made certain part payments in cash and by demand drafts and Postal Orders in a total of Rs.35,47,000/- and that the defendant failed to fulfill her obligation under the agreement by clearing all dues and making the property free from encumbrances and failed to execute registered sale deed. The plaintiff further pleaded that the defendant delivered possession of the schedule property to the plaintiff on 18.09.2002. 4. The defendant filed written statement, contesting the suit admitting the suit agreement of sale and also part payment made by the plaintiff to the extent of Rs.32,97,000/-. The defendant, however, denied that there was any default on her part in fulfilling the obligation under the suit agreement and that the plaintiff himself failed to discharge his obligation in making payments towards sale consideration. The defendant also denied that she delivered possession of the suit property to the plaintiff on 18.09.2002 and contended that the alleged receipt dated 18.09.2002 is forged and fabricated by the plaintiff. 5. After settlement of necessary issues, full-fledged trial was conducted and by judgment dated 29.04.2006 the learned I Additional District Judge, Kadapa, dismissed the suit, holding that the plaintiff is not entitled for specific performance of the suit agreement and also permanent injunction. 6. It is not disputed that the plaintiff filed an appeal in AS No.271 of 2006 and this Court by judgment dated 23.09.2008 dismissed the said appeal while allowing the cross-objections filed by the defendant. Aggrieved by the same, the plaintiff filed SLP (Civil) Nos.26051 and 26052 of 2008 and the same were dismissed by the Apex Court on 10.11.2008. 7. It is stated that the plaintiff filed IA No.3947 of 2002 for temporary injunction, restraining the defendant from alienating the schedule property and also filed IA No.3948 of 2002 for temporary injunction restraining the defendant from interfering with the plaintiff’s possession and enjoyment of the suit property, pending disposal of the suit and that the temporary injunction was granted on 09.12.2002. Subsequently, on 10.09.2004, the said injunction granted in IA No.2947 of 2002 restraining the alienation was made absolute and temporary injunction granted in IA No.3948 of 2002 was vacated and the said petition was dismissed. Aggrieved by the same, the plaintiff filed CMA No.3652 of 2004 before this Court. By order dated 30.09.2004, this Court directed both parties to maintain status-quo existing on that date, till the disposal of the suit, with further direction to the plaintiff to deposit Rs.15,000/- per month to the credit of OS No.44 of 2002 and directed the trial Court to dispose of the suit within six months. Thereafter, the suit was dismissed by judgment and decree dated 29.04.2006 after full-fledged trial. While filing appeal in AS No.271 of 2006, the plaintiff filed ASMP No.995 of 2006 for setting aside the operation of the judgment and decree of the trial Court and this Court, by order dated 17.07.2006 directed the plaintiff to deposit Rs.30,000/- per month from June 2006, until further orders. Subsequently, AS No.271 of 2006 was dismissed and the SLPs filed by the plaintiff before the apex Court were also dismissed. 8. The defendant filed the present application IA No.142 of 2009 under Section 144 CPC seeking delivery of the petition schedule property on the ground that as per the findings of the Court, the plaintiff came into possession of the property after obtaining ex-parte injunction order dated 09.12.2002 in IA No.3948 of 2002 and it is a juridical possession obtained by virtue of ex- parte orders of the Court and he was continued to be in possession by virtue of orders of stay granted by this Court in ASMP No.995 of 2006 in AS No.271 of 2006 and the said appeal and also SLPs having been dismissed, the plaintiff is no longer entitled to remain in possession of the property. 9. The petitioner herein-plaintiff filed counter in IA No.142 of 2009 contending that he has come into possession of the property not in pursuance of any order of the Court, muchless in pursuance of the order of the Court in IA No.3948 of 2002 and he was already in possession of the property since 18.09.2002 even prior to filing of the suit and he merely sought injunction in IA No.3948 of 2002 restraining the defendant from interfering with his possession. He further contended that the trial Court observed that it was irrelevant and not necessary to decide how the respondent came into possession since he failed to prove the receipt Ex.A.15 and the appellate Court also did not interfere with the judgment of the trial Court. But it does not mean that the plaintiff came into possession, dispossessing the defendant in pursuance of the order of injunction. He further contended that the defendant has not suffered any consequences of any decree or order so as to restore the same possession, which he would have occupied but for the decree since there was no decree at all passed in her favour. The petitioner further contended that he did not take delivery of the property from the petitioner through the Court on the basis or in pursuance of any orders of the Court that subsequent dismissal of injunction petition or suit do not confer any right on the defendant to seek restoration under section 144 or 151 CPC. The learned I Additional District Judge, by impugned order dated 09.04.2010 allowed the application observing that the plaintiff came into possession of the property by virtue of injunction order passed in IA No.3948 of 2002 and by virtue of receipt Ex.A.15 dated 18.09.2002. Aggrieved by the same, the plaintiff filed the present revision. 10. The main contention of the learned counsel for the petitioner is that possession of the schedule property was not taken by the plaintiff through or by virtue of any order of the Court and therefore, recourse to section 144 CPC is unwarranted and untenable. Learned counsel for the petitioner would further contend that in the impugned order, the learned Additional District Judge merely extracted the pleadings and contentions and failed to deal with the question of applicability or other wise of Section 144 CPC on its merits and no reasons are recorded for the finding that the defendant was dispossessed and the plaintiff came into possession of the property by virtue of injunction orders. On the other hand, learned counsel for the respondent would contend that as the receipt Ex.A.15 dated 18.09.2002 under which the plaintiff claims to have entered into possession was disbelieved by the court, the learned Additional District Judge, is justified in holding that the plaintiff came into possession by virtue of adinterim injunction granted in IA No.3948 of 2002 after dispossessing the defendant and therefore, the petition under Section 144 CPC seeking restoration of possession is maintainable. 11. Section 144 CPC which embodies doctrine of restoration states as follows: “(1) Where and insofar as a decree or an order is varied or reversed in any appeal, revision or other proceeding or is set aside or modified in any suit instituted for the purpose, the Court which passed the decree or order 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, reversed, set aside or modified, and, for this purpose, the court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation, reversal, setting aside or modification of the decree or order.” 12. As can be seen from the above provision, where a decree or order is set aside or varied in any appeal or revision, the party entitled to the benefit of restoration may apply to the Court, which passed the decree or made such an order and the Court while making an order of restoration placing the parties in the position, which they would have occupied, but for such decree or order. The doctrine of restoration is based on the maxim ‘actus curiae neminem gravabit’ i.e., act of Court shall harm no one as held in ‘Jang Singh v. Brij Lal[1]’. 13. In ‘Ganesh Parshad v. Adi Hindu Social Service League[2]’, this Court held that the following three conditions must be satisfied before restoration can be ordered under section 144 CPC. (i) the restitution sought must be in respect of a decree or order which had been varied or reversed; (ii) the party applying for restitution must be entitled to the benefit under a reversing decree or order and; (iii) the relief claimed must be properly consequential on the reversal or variation of the decree or order. 14. In ‘Begum Janammal v. Selva Arasu[3]’, the High Court of Madras held as follows: “….Only in a case any benefit has been obtained by a party pursuant to or in consequence of or under the cover or colour of a decree or order of a Court, and such a decree or order was varied, reversed or set aside or modified by the higher court, there could be a restitution within the meaning of S.144 of the Code so as to place the parties in the position which they would have occupied but for such decree or order or such part thereof. It was not the case of the defendants that the plaintiff obtained possession pursuant to order or in consequence of or under the colour of order of a Court of the first Court or the decree of the lower appellate Court. The defendants would claim that the plaintiff got into possession unlawfully. In such a contingency, there was no scope for invoking the aid of S.144 of the Code, and the bar of Sub-Sec. (2) of S.144 of the Code has no application at all and the proper remedy was only by way of an independent suit.” 15. In ‘Kothapalli Suryanarayana v. Bandikatla Anjaneyulu[4]’, this Court held that ‘restitution cannot be ordered unless possession was taken by plaintiff through Court under its order and when there was no delivery of property in pursuance of any order of Court and if the plaintiff had dispossessed the defendant unlawfully on the basis of a temporary injunction order which does not contemplate any such delivery of the property to the plaintiff, the defendant is not entitled to take recourse to provisions of section 144 CPC for seeking restoration of the property and his only remedy is to file a suit for recovery of possession.’ 16. In ‘Hiranand v. TN Khambati[5]’, this Court held that ‘unless there is any decree or order passed by a competent Court of law which is followed or reversed by the appellate court, the petition under section 144 CPC for restitution is not maintainable.’ 17. In ‘Gammon India Ltd. v. M.S.Reddy & Co.[6]’, the apex Court held that Section 144 CPC would only apply if by virtue of an order or a decree of the Court something was done.’ 18. In ‘Mrs. Kavita Trehan v. Balsara Hygiene Products Ltd.,[7]’ the apex Court held as follows: “Section 144 CPC incorporates only a part of the general law of restitution. It is not exhaustive. The jurisdiction to make restitution is inherent in every court and will be exercised whenever the justice of the case demands. It will be exercised under inherent powers where the case did not strictly fall within the ambit of Section 144. Section 144 opens with the words "Where and in so far as a decree or an order is varied or reversed in any appeal, revision or other proceeding or is set aside or modified in any suit instituted for the purpose,..." The instant case may not strictly fall within the terms of Section 144; but the aggrieved party in such a case can appeal to the larger and general powers of restitution inherent in every court.” 19. In the above case, appellants therein sought to place reliance in ‘Sakamma vs. Eregowda’ wherein it was held that ‘mere fact that the suit for permanent injunction was dismissed, resulting in the vacation of the interim order of injunction granted during the pendency of the suit, would not entitle the successful defendant to seek restoration under section 144 CPC.’ In the said case the apex Court held that the principle laid down in the said decision was not applicable to the facts of the case on hand. 20. Learned counsel for the respondent relied upon the decision of the Division Bench of this Court in ‘Yelamarthi Sarath Kumar v. State of A.P.,[8]’ wherein, this Court while dealing with scope of Section 144 CPC held as follows: “….A party cannot be allowed to take the benefit of his own wrong by getting an interim order in a writ petition which is ultimately dismissed. The maxim “actus curiae neminem gravabit”, which means that the act of Court shall prejudice no one, becomes applicable. In such a situation the Court is under an obligation to undo the wrong done to a party by the act of Court. Any undeserved or unfair advantage gained by a party invoking the jurisdiction of the Court must be neutralized as the institution of litigation cannot be permitted to confer any advantage on a party by the delayed action of the Court. No person can suffer from the act of the Court. In case an interim order has been passed and the petitioner takes advantage thereof, and ultimately the petition stands dismissed, interest of justice requires that any undeserved or unfair advantage gained by a party invoking the jurisdiction of the Court must be neutralized. A party who succeeds ultimately is to be placed in the same position it would have been if the Court had not passed the interim order, other wise litigation may turn into a fruitful industry and unscrupulous litigants may feel encouraged to approach courts persuading it to pass interlocutory orders favourable to them. If the concept of restitution is excluded, from its application to interim orders, the litigant would stand to gain by swallowing the benefits of an interim order even though the battle has been lost at the end. This cannot be countenanced. The factor attracting applicability of restitution is not the act of the Court being wrongful or a mistake or error committed by the Court. The test is whether an act of the party persuading the Court to pass an order, held at the end as not sustainable, has resulted in one party gaining an advantage it would not have otherwise earned or the other party suffering an impoverishment which it would not have suffered but for the order of the Court and the act of such party. The injury, if any, caused by the act of the Court shall be undone.” 21. The principle laid down in the above decision cannot be disputed and before ordering restitution under section 144 it is to be considered whether the order or decree which is subsequently varied or set aside, has resulted in one party gaining an advantage, it would not have otherwise earned or other party suffering an impoverishment which it would not have suffered but for the order of the Court and the act of such party. 22. Learned counsel for the respondents relies on another decision in ‘K.T. Venkatagiri v. State of Karnataka[9]’, wherein applying the doctrine of ‘unjust enrichment’ and ‘restitution’, the appellants were directed to pay back amount received, which they received under the interim order passed by the Court. In the above case also unjust enrichment occasioned in pursuance of the interim order of the Court and the ex-parte interim injunction restraining the defendants from interfering with the disposal of the stock in question and pursuant to the said interim order, stocks were sold away and subsequently suit came to be dismissed as not even maintainable. 23. Learned counsel for the respondent relied upon the decision in ‘South Eastern Coalfields Ltd. V. State of M.P.,[10]’ wherein it was held as follows: “Section 144 of the C. P. C. is not the fountain source of restitution; it is rather a statutory recognition of a pre-existing rule of justice, equity and fair play. That is why it is often held that even away from S. 144 the Court has inherent jurisdiction to order restitution so as to do complete justice between the parties.” 24. In ‘Union Carbide Corporation v. Union of India[11]’ the apex Court held as follows: “……..Restitution is an equitable principle and is subject to the discretion of the Court. S. 144, Code of Civil Procedure, embodying the doctrine of restitution does not confer any new substantive right to the party not already obtaining under the general law. The section merely regulates the power of the Court in that behalf. But, in the present case, S. 144, C.P.C. does not in terms apply. There is always an inherent jurisdiction to order restitution a fortiorari where a party has acted on the faith of an order of the Court. A litigant should not go back with the impression that the judicial-process so operated as to weaken his position and whatever it did on the faith of the court's order operated to its disadvantage. It is the duty of the Court to ensure that no litigant goes back with a feeling that he was prejudiced by an act which he did on the faith, of the court's order. Both on principle and authority it becomes the duty of the Court - as much moral as it is 1egal - to order refund and restitution of the amount to the UCC - if the settlement is set aside.” 25. The principles laid down in the above decision that restitution can be granted even out side of Section 144 CPC and in exercise of inherent jurisdiction under section 151 CPC, in case where Section 144 is not strictly applicable, cannot be disputed. 26. In the above case also, the apex Court held that there is always inherent jurisdiction to order restitution where a party has acted on the faith of the order of the Court. The party seeking restitution has therefore to establish that he was put to loss or relegated to disadvantage or that other party has gained unjust enrichment by virtue of the order of the Court, which was subsequently varied or set aside and such loss or disadvantage for the parties seeking restoration or unjust enrichment for the opposite party would not have occasioned but for the order passed by the Court which was subsequently set aside. The whole concept underlying the doctrine of restitution being that act of the Court shall not harm or cause prejudice to any one it has to be necessarily established that necessity to seek restitution was occasioned because of the act of the Court i.e., order of the Court, which was subsequently set aside but in the meanwhile pursuant to such order, the party seeking restitution was subjected to loss and put in disadvantageous position or other party gained unjust enrichment. 27. In the present case, the case of the petitioner is that he obtained delivery of possession of the suit property under receipt Ex.A.15 dated 18.09.2002 i.e., even prior to filing of the suit and that he has been in possession and enjoyment of the suit property ever since he filed suit for specific performance of the suit agreement and also for permanent injunction restraining the defendant from interfering with his possession and enjoyment of the suit property. In the written statement, the defendant denied the truth of receipt Ex.A.15 dated 18.09.2002 and contended that the said document is forged and fabricated. She also contended that she never gave possession of the suit property to the plaintiff. The contention of the respondent/defendant has been that under the guise of adinterim injunction, the petitioner-plaintiff came into possession of the suit property and got renovated the theatre. The plaintiff filed IA No.3948 of 2002 for temporary injunction and adinterim injunction was granted on 09.12.2002. Subsequently, the said petition was dismissed on 10.09.2004. The plaintiff filed CMA No.3652 of 2004 and this Court by order dated 30.09.2004 held that in view of the fact that the appellant-plaintiff was running theatre in question and he is in possession of the same, it would be appropriate to direct the respective parties to maintain status- quo existing on that date during pendency of the main suit. The appellant/plaintiff was also directed to deposit Rs.15,000/- per month to the credit of the suit. Subsequently, after full-fledged trial, the suit itself was dismissed on 29.04.2006. In the said judgment, the learned Additional District Judge, observed that ‘since it is a specific case that he came into possession of the plaint schedule property in part performance of Ex.A.4 agreement of sale on 18.09.2002 under Ex.A.15 and failed to prove the same, it is irrelevant and not necessary to decide how he came into possession of the plaint schedule property’. Thus, having held that the plaintiff failed to prove his claim based on Ex.A.4 agreement of sale and Ex.A.15 receipt, the trial Court however choose to consider it irrelevant and unnecessary to decide as to how the plaintiff came into possession of the schedule property. Thus, no finding was recorded by the trial Court as to whether the plaintiff came into possession of the property as claimed by him under Ex.A.15 receipt or he entered upon the suit property under the guise of adinterim injunction as alleged by the defendant. 28. In the appeal AS No.271 of 2006 also this Court has not recorded any finding as to when and how the plaintiff came into possession of the suit property while affirming the finding of the trial Court that the contention of the plaintiff that he came into possession under Ex.A.15 receipt was found to be false. In the impugned order also, the learned Additional District Judge, has not recorded any finding to the effect that the plaintiff entered upon the suit property under the guise of adinterim injunction granted in IA No.3948 of 2002 dispossessing the plaintiff. In fact, the impugned order is a mere extraction of the pleadings and contentions and the decisions cited by both parties, without any discussion as to whether or not the plaintiff has entered upon the suit property dispossessing the defendant under the guise of the adinterim injunction as alleged by the defendant and whether or not there has been any loss or disadvantage occasioned to the defendant and any undue enrichment gained by the plaintiff