1 78cra251-11 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURSIDICTION CIVIL REVISION APPLICATION NO.251 OF 2011 Vrandavandas M. Sheth & Anr. .. Applicants V/s. Smt. Dahiben Amritlal Shah (Since deceased through his LR’s) Rajesh Amritlal Shah & Ors. .. Respondents ..... Mr. Yogeshwar S. Bhate for the applicants. Ms. Geeta Shastri i/b. M/s. Khilanee & Co. for respondent Nos.1a and 1b. ..... CORAM : A.S.OKA, J. DATE : DECEMBER 22, 2011. P.C.: Heard the learned counsel appearing for the revision applicants. The revision applicants are the original plaintiffs. The original first respondent was the original tenant in respect of the suit premises. The suit for eviction filed by the applicants against the first and second respondents was decreed ex-parte. The decree was executed and the first respondent was dispossessed. The case of the applicants appears to be that after execution of the decree, two new tenancies in respect of the suit premises have been created in favour of the new tenants. The ex- parte decree was set aside by the Appellate Court. While setting aside the ex-parte decree, the Appellate Court also ordered 2 78cra251-11 restitution. In the Writ Petition filed by the petitioners, the order of restitution passed by the Appeal Bench was set aside on the ground that the first respondent will have to apply before the Court passing the decree under Section 144 of the Code of Civil Procedure, 1908 (hereinafter referred to as “the said Code”). On the application made by the first respondent under Section 144 of the said Code, a decree for restitution was passed by the trial Court which has been confirmed in Appeal by the Appellate Bench of the Court of Small Causes. 2. The learned counsel appearing for the applicants relied upon a decision of this Court in the case of Dharmaji Krishnaji Sonavane V/s. K. A. Parmar [1986 (3) Bombay Cases Reporter 713]. He submitted that the restitution is not as a matter of course and in a proper case, the Court is entitled to refuse restitution. He relied upon two circumstances which according to him are more than sufficient to deny the relief of restitution. The first circumstance is that when the Court Bailiff took possession of the suit premises in execution, he found that unused articles were lying in the suit premises which indicates that the suit premises was not being used by the first respondent for a considerably long time. He, therefore, submitted that there is no prejudice to the first respondent, if the restitution is not ordered. Secondly, he 3 78cra251-11 pointed out that two fresh tenancies have been created in respect of the suit premises in favour of the third parties. Relying upon the observations in the case of Dharmaji (Supra), he submits that the Courts below ought not to have passed an order of restitution. He submitted that the very fact that the suit premises was kept vacant shows that the first respondent must have obtained some other premises and in fact that was a ground on which the ex- parte decree was passed. 2. I have carefully considered the submissions. I have perused the decision of this Court in the case of Dharmaji Krishnaji Sonaware (Supra). The law laid down by the said decision is that considering the conduct of the parties, Court can, in a proper case even outright refuse the relief of restitution. 3. At the outset, it must be stated that the applicants are not really affected by the restitution as they claim that they have already inducted third parties in the suit premises. As far as the finding on the ground of acquisition suitable residence by the first respondent is concerned, the decree has been set aside. Therefore, that finding is not useful to the applicants for opposing a prayer for restitution. Both the Courts below have passed an order of restitution after considering all the aspects of the case. Therefore, under a revisional jurisdiction, no interference is called 4 78cra251-11 for with the impugned orders. The Revision Application is accordingly, rejected. (A.S.OKA, J.)