P L D 2011 Quetta 62
Before Abdul Qadir M engal, J
Syed MUHAMMAD JAWAD ---Petitioner
Versus
ABDUL NABI and another ---Respondents
Civil Revision No.411 of 2007, decided on 17th June, 2011.
(a) Civil Procedure Code (V of 1908) ---
----S. 144 ---Specific Relief Act (I of 1877), Ss. 42 & 5 4---Declaration of title---
Restitution of benefit ---Variation of order ---Illegal possession ---Defendant, right of ---
Principles ---Plaintiff claimed ownership of truck in question and after passing decree in
his favour he took over the possession of the truc k---High Court remanded the matter to
Trial Court making good the deficiencies in court -fees-Trial Court in post remand
proceedings, directed the defendant to hand over the possession of truck to defendant ---
Validity ---Defendant could only restitute a bene fit in the light of S.144, C. P. C., where
any such benefit had been taken from his possession in result of a decree, for which he
was entitled ---If any benefit, for which defendant was not legally entitled to keep it in
possession, being trespasser or illegal occupier, he could not agitate to get any benefit in
view of S.144, C.P.C. ---Defendant was prima facie a trespasser or grabber, who took the
law in his hands, therefore, he was not entitled to restitution against person, who took the
property in posse ssion through a lawful direction --Judgments passed by Lower Appellate
Court as well as of Trial Court were set aside being illegal.
AIR 1941 PC 128 rel.
(b) Civil Procedure Code (V of 1908) ---
----S. 144 ---Restitution ---Pre-conditions ---From any ac t of any court no suitor should be
injured, therefore, any benefit, which is refundable and returnable to a party entitled to
such benefit through restitution upon variation or reversal of a decree take the benefit of
principle of restitution reflected in S.144, C.P.C. ---Main conditions, which are to be
fulfilled for invoking provisions of S.144, C.P.C. being that (i) restitution must be in
respect of a decree, which has been varied or reversed; (ii) party applying for restitution
should be entitled to a be nefit under a reversing or variation decree; and (iii) relief
claimed must be properly consequential on reversal of variation of decree.
Habib Tahir for Petitioner.
Taj Muhammad Mengal for Respondents.
Date of hearing: 10th June, 2011.
JUDGM ENT
ABDUL QADIR MENGAL, J .---This civil revision petition is directed against the
judgment dated 29 -6-2007, passed by Additional District Judge -V, Quetta as well as order
dated 18 -9-2006, passed by Senior Civil Judge -1, Quetta, whereby the petitioner was
directed to deposit the sale proceed of the truck in question or in alternate the truck in
question may be handed over to respondent/applicant.
2. Brief facts leading to file the present revision petition are that the petitioner, on 10 -7-
1998 filed a su it for declaration and permanent injunction in respect of truck bearing
registration No.LS -6431, which he had taken from respondent in connection with a
transaction by handing over of his residential house. The petitioner being legal owner of
the truck, wa s plying the same, while the respondent/ defendant illegally on a money
transaction, through the Truck Association, managed to detain the truck of the petitioner
from Nawab Shah and brought it to Quetta, where the same was handed over/parked in a
police st ation at Quetta. The respondent/defendant filed his written statement, wherein
some preliminary legal objections were raised and on merits admitted that the truck in
question has been transferred to petitioner in connection with a transaction, however,
there was a huge amount of Rs.5/6 lac, which he had owed to respondent/ defendant on
28-11-1996, but he did not comply with the agreement. The President of Truck
Association gave notices to petitioner/plaintiff to appear on 29 -10-1997 to solve the
dispute, bu t the petitioner/plaintiff failed, while on the contrary, he falsely filed the
present suit for declaration and injunction, which is illegal and liable to be dismissed.
On 1 -11-2002, the suit of the petitioner was decreed, holding that the petitioner/pla intiff
is entitled of truck bearing Registration No.LS -6431 and the respondent/defendant was
restrained to interfere in the lawful possession of the petitioner/plaintiff over the truck in
question. The said order was challenged by the respondent/defendant in the court of
learned Additional District Judge -III, Quetta by way of filing Civil Appeal No.94 of
2002, but the same was also/ dismissed vide judgment and decree dated 27 -8-2003.
Whereafter/ the respondent/ defendant filed a revision petition before thi s Court and this
Court vide order dated 11 -5-2005, remanded the matter back with the following
observations: --
"Learned counsel for respondent has conceded that the court -fee was not filed, as
the suit pertaining to declaration and injunction, however, h e showed his readiness
in making good the deficiencies and amend the suit in an appropriate manner.
By consent of parties' counsel the impugned judgments and decrees are set aside.
The case is remanded to learned trial court to allow amendment in valuati on clause
and take measures for deposit of court fees in the matter thereafter, the case be
decided after providing opportunity of being heard to respective parties and allow
to lead evidence.
Petition is accordingly allowed and disposed of".
On remand , the learned trial Court vide order dated 15 -7-2005, directed the petitioner to
hand over the truck to defendant No.2 within fifteen days, as according to him the record
reflects that since prior to judgment and decree dated 1 -11-2002, the truck was in po lice
custody and both the parties were restrained from obtaining the possession of the same till
the final decision vide order dated 12 -8-1998. As later on possession went into the hand
of the petitioner/plaintiff on account of the judgments, so he should hand over the
possession of the truck in question to respondent No.1. Record further shows that a
similar order was also passed on 14 -10-2005 in the same civil matter No.73 of 2005, in
which the petitioner/plaintiff was asked to deposit Rs.18,00,000 in the Court being price
of the truck and further the S.H.O. was directed to take, the possession of truck bearing
Registration No. LS -6431 and then submit his report to the Court.
However, looking to the above position, the petitioner/plaintiff did not attend the court
proceedings and on 21 -11-2005 his suit was dismissed for want of prosecution.
Whereafter an application under section 144, C.P.C. was filed for taking the possession of
the truck, which had been passed to the petitioner/ plaintiff on account of the judgments
dated 1 -11-2002 and 27 -8-2003, because both the judgments have been reversed/ set aside
by the Hon'ble High Court of Balochistan. The said application under section 144 read
with section 151, C.P.C. was resisted, but the petitioner/ plaintiff was directed to deposit
Rs.18,00,000 or in alternate to hand over the truck to respondent/defendant vide judgment
dated 18 -9-2006. The petitioner challenged the said order before the learned Additional
District Judge -V,' Quetta, but the said appeal was al so dismissed vide judgment dated 29 -
6-2007, and judgment of learned Senior Civil Judge -I, Quetta was upheld, against which
the present civil revision petition has been preferred.
3. Mr. Habib Tahir Advocate, learned counsel for the petitioner mainly cont ended that
there is no any decree in the present case, while a bare perusal of section 144, C.P.C.
shows that there must be a decree, which has been varied or reversed by the higher forum
and any benefit, which a plaintiff got in consequence of those judgm ents that is to be
restituted. Admittedly the petitioner was the legal owner, in possession of the truck in
question, which was illegally detained and brought from Nawab Shah and whereafter was
parked in custody of police: So both the Courts, in their judg ments dated 1 -11-2002 and
27-8-2003 declared entitlement of the petitioner/plaintiff, as such on the basis of the same
he took the possession. Moreover, the High Court has not disturbed the opinion of both
the Courts with regard to the possession or entitl ement and he only has sent the matter for
evaluation of the matter for the purpose of court fee. Here at this stage, the Court has
passed an interlocutory order dated 15 -7-2005, which is illegal and not liable to be
executed, because section 144, C.P.C. on ly could be executable when any benefit in result
of a decree has been passed to a party, for which he is not entitled to hold it in view of the
legal position.
Mr. Taj Muhammad Mengal Advocate, learned counsel for the respondent
No.1/defendant stated th at admittedly it was the respondent No.1/defendant, who seized
the truck from Nawab Shah, in connection of his outstanding amount, brought the same
and handed it over to police custody by the order of the trial court and on passing of
impugned judgments da ted 1 -11-2002 and 27 -8-2003, the petitioner/plaintiff got the
possession of the truck and whereafter he illegally disposed of the same, in disobedience
of the orders passed in Civil Suit No.165 of 1999, therefore, on reverse of the judgments
by this Court, the defendants legally, under section 144 is entitled to take the possession
back, which in result of the judgment of the honourable Court, had been passed to the
petitioner/ plaintiff. Thus in view of the above both the judgments dated 18 -9-2006 and
29-6-2007, passed on application under section 144, C.P.C. are legal and correct,
therefore, the same are not liable to be interfered.
After hearing both the parties and considering the case record, I am of the opinion that a
defendant only could restitute a benefit in the light of section 144, C.P.C., where any such
benefit has been taken from his possession in result of a decree, for which he was entitled.
However, if any benefit, for which he legally was not entitled to keep it in possession,
being a tresp asser or illegal occupier cannot agitate to get any benefit in view of section
144, C.P.C. For the sake o f convenience section 144, C.P.C. is reproduced herein below: -
"(1) Where and in so far as a decree is varied or reversed the Court of first instan ce
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 such
part thereof as has been varied or reversed; 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 or reversal.
(2) No suit shall be instituted for the purpose of obtaining any restitution or other
relief which could be obtained by application under subsection (1) ".
Basically section 144, C.P.C. shows the principle of restitution is based on the principle
that one of the first and highest duties of the Court is to take care that from any act of any
Court no suitor should be injured, therefore, any benefit, which is refundable and
returnable to a party entitled to such benefit through resti tution upon the variation or
reversal of a decree take the benefit of principle of restitution reflected in section 144 of
the C.P.C.
The main condition, which is to be fulfilled for invoking provision of section 144, C.P.C.
is that;
(i) that restituti on must be in respect of a decree, which has been varied or
reversed;
(ii) the 'Marty applying for the restitution should be entitled to a benefit under a
reversing or variation decree
(iii) the relief claimed must be properly consequential on the reve rsal of the
variation of the decree;
Whereas looking on the facts of the present matter, admittedly the truck bearing
registration No.LS -6431 was in possession of the petitioner/plaintiff and has been
transferred to him on account of some valid transacti ons, therefore, if respondents/
defendants having any outstanding amount/dues against the petitioner/plaintiff, even then
in absence of a proper decree of Court or settlement, he cannot have the title to detain the
truck of the petitioner/plaintiff. As suc h seizing of truck from Nawab Shah and bringing
the same to Quetta and handing over of the - same, on the directions of the Court to police
station concerned, making him legally not entitled for that possession.
Again the suit of the petitioner/plaintiff was in respect of declaration, injunction and
restraining the respondent/defendant to take the possession was decreed by the Senior
Civil Judge and same was also upheld vide judgment dated 27 -8-2003 by the Additional
District Judge fully shows the entitlem ent and right of the petitioner/plaintiff. Though the
same has been interfered by the honourable High Court only to the extent that no proper
valuation of the suit has been made; as such the matter was remanded only for the
evaluation of the matter for the purpose of the court -fee. Hence one can safely say that the
High Court even has not interfered or varied the entitlement or possession of the
petitioner/plaintiff. Thus on account of the same, filing of application under section 144,
C.P.C. and the order dated 18 -9-2006, passed by Senior Civil Judge -I, Quetta seems to be
illegal and improper and so is the position of the judgment dated 29 -6-2007, passed by
learned Additional District Judge -V, Quetta, because admittedly the suit of the
petitioner/plaintiff has been dismissed for want of prosecution and the same is no more in
field and the petitioner/plaintiff can hardly be burdened by an interlocutory order, which
itself, in my view died along with the main case. Whereas, I have discussed hereinabove
that th e respondent/defendant prima facie seems to be a trespasser or grabber, who took
the law in his hands, therefore, he is not entitled to restitution against person, who took
the property in possession through a lawful direction. In this respect reliance has been
made on AIR 1941 P.C, 128, which reads as under: --
"Where the persons who have been dispossessed are found to be trespassers and
the persons in subsequent possession are lawfully in possession by virtue of a
valid lease in their favour, it is not n ecessary for the ends of justice that the
trespassers should be restored to possession though they may succeed in a suit for
possession ".
13. Thus in view of/ the above discussed circumstances, the instant civil revision petition
is accepted and the jud gment dated 29 -6-2007, passed by learned Additional District
Judge -V, Quetta and the judgment dated 18 -9-2006, passed by learned Senior Civil
Judge -I, Quetta being illegal are set aside. However, the respondent is not debarred to
seek appropriate remedy, i n accordance with law.
M.H./51/Q Revision allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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