# Others v. M.D. Karnataka State

- **Citation:** (2021) 9 ILRA 708
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-01
- **Case number:** Second Appeal No. 554 of 1979
- **Bench:** Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/others-v-m-d-karnataka-state-47465
- **Pages:** 11

## Headnote

A. Civil Law-Code of Civil Procedure, 1908Section
100-land
dispute-plaintiff
instituted a suit seeking joint possession
of the property in question-during the
pendency of second appeal plaintiff died
and substituted by his heirs-the appeal
was allowed holding that the plaintiff was
not entitled to get possession of the
property in suit-thereafter, the defendant
preferred an application u/s 144 C.P.C.
seeking restituition of possession as well
as damages and mesne profit-Trial court
allowed the application in favour of
defendant-While the only issue remaining
was
regarding
damages/compensation
which was not decided by the Trial court
in view of absence of evidence-two appeal
were preferred, in which the appeal of
defendant was allowed and the matter
was remanded permitting him to lead
evidence regarding his claim for damages
while
the
appeal
of
plaintiff
was
dismissed-trial court ought to have taken
up
the
application
for
impleadment
separately and thereafter ought to have
decided the application u/s 144 C.P.C.
separately-the
core
question
for
determination of compensation would
require the determination of the date from
which date to what date the compensation
is to be paid but in absence of evidence,no
such finding has been recorded and it
requires evidence for both parties to
establish their respective case-in absence
of any clear finding by the two courts, it
would be travesty of justice if some facts
is assumed without being proved and even
wors.e without providing an opportunity
to the parties concerned to lead evidenceThe
Appellate
court
ought
to
have
exercised its appellate powers taking note
of the aforesaid aspect which has not
been done.(Para 1 to 46)

The appeal is allowed. (E-6)

## Text

708 INDIAN LAW REPORTS ALLAHABAD SERIES
"sufficient reason" in Order 47 Rule 1 of
the Code are wide enough to include a
misconception of fact or law by a court or
even an advocate. An application for
review may be necessitated by way of
invoking the doctrine actus curiae neminem
gravabit."

18. From the aforesaid judgment, it is
evident that review proceedings are not by way
of appeal. It cannot be treated like an appeal in
disguise. A rehearing of the matter is not
permissible in law. It is not for an erroneous
decision to be ''reheard and corrected' in review
jurisdiction.

19. In the case of B.H. Prabhakar and
Others
vs.
M.D.
Karnataka
State
Cooperative Apex Bank Ltd. [(2000) 9 SCC
482], Hon'ble Supreme Court has held that the
contention which was not canvassed before the
Court when the impugned decision was
rendered cannot be made the subject-matter of
review proceedings. It is relevant to reproduce
the said judgment as follows:-

"We have carefully gone through
the common judgment sought to be reviewed
in these petitions. In our view, no error, much
less any patent error, of law could be
demonstrated by the review petitioners for
supporting these petitions. The resolution of
07th August 1985 was held not to be operative
on the facts of the case. In the Review Petitions
an attempt is made to show that resolution of
07th August 1985 was the basis of the
appointment of the petitioners. That has not
been accepted by the Court. An attempt to reargue this aspect does not fall within the
scope of the review proceedings. So far as the
affidavit of Manager, Legal Cell dated 10th
August 1996 is concerned it was never pressed
in service before the Court when the
impugned judgment was rendered. Hence,
non-consideration thereof cannot be treated
to be an error apparent on the record as tried
to be suggested. Policy adopted by the
Respondent-bank alleged to be anti-labor for
which reliance is placed on the decision of
this Court in the case of Dharwad Distt.
P.W.D. Literate Daily Wage Employees Assn.
v. State of Karnataka also cannot be made
subject-matter of review proceeding as no
such contention was canvassed before the
Court when the impugned decision was
rendered. On the other hand the petitioners
were absorbed as Clerks by the Respondentbank after their temporary tenure ended on
completion of earlier project. That may be the
reason why no allegation was made about
anti-labor policy of the Respondent-bank when
appeals were argued before the Court. For all
these reasons, the Review Petitions are
dismissed on merits."

20. In view of the aforesaid, the review
applicant cannot be permitted to raise the new
grounds/arguments in review jurisdiction,
which was not canvassed in the second appeal.

21. The judgment dated 24.11.2017, does
not suffer from any apparent error of law or on
any other ground legally permissible for
exercise of review jurisdiction.

22. For the aforesaid reasons, the review
application is devoid of merit and is rejected.
----------
(2021)09ILR A708
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.09.2021

BEFORE

THE HON'BLE JASPREET SINGH, J.

Second Appeal No. 554 of 1979

Satish Kumar ...Appellant
Versus
Ram Kishore ...Respondent
9 All Satish Kumar Vs. Ram Kishore
709
Counsel for the Appellant:
R.S. Tripathi, Mohammad Aslam Khan, R.S.
Tripathi,
Rakesh
Srivastava,
Randheer
Singh, Ravi Nath Tilhari, Sanjay Verma

Counsel for the Respondent:
A,K, Bajpai,J.C. Srivastava

A. Civil Law-Code of Civil Procedure, 1908Section
100-land
dispute-plaintiff
instituted a suit seeking joint possession
of the property in question-during the
pendency of second appeal plaintiff died
and substituted by his heirs-the appeal
was allowed holding that the plaintiff was
not entitled to get possession of the
property in suit-thereafter, the defendant
preferred an application u/s 144 C.P.C.
seeking restituition of possession as well
as damages and mesne profit-Trial court
allowed the application in favour of
defendant-While the only issue remaining
was
regarding
damages/compensation
which was not decided by the Trial court
in view of absence of evidence-two appeal
were preferred, in which the appeal of
defendant was allowed and the matter
was remanded permitting him to lead
evidence regarding his claim for damages
while
the
appeal
of
plaintiff
was
dismissed-trial court ought to have taken
up
the
application
for
impleadment
separately and thereafter ought to have
decided the application u/s 144 C.P.C.
separately-the
core
question
for
determination of compensation would
require the determination of the date from
which date to what date the compensation
is to be paid but in absence of evidence,no
such finding has been recorded and it
requires evidence for both parties to
establish their respective case-in absence
of any clear finding by the two courts, it
would be travesty of justice if some facts
is assumed without being proved and even
wors.e without providing an opportunity
to the parties concerned to lead evidenceThe
Appellate
court
ought
to
have
exercised its appellate powers taking note
of the aforesaid aspect which has not
been done.(Para 1 to 46)

The appeal is allowed. (E-6)

(Delivered by Hon'ble Jaspreet Singh, J.)

 1. In order to appreciate the
controversy involved in the instant second
appeal, the Court will have to travel back in
time to trace the genesis of the dispute. The
record indicates that Sri Badri Prasad as
plaintiff had instituted a suit against Sri
Ram Kishor seeking joint possession of the
property in question situated in Village
Parishar Khas, Tehsil and District Unnao.
The said suit seeking joint possession was
instituted in the Court of Munsif, North,
Unnao registered as Regular Suit No. 7 of
1966. The said suit was decreed by the
Court of Munsif, North, Unnao for joint
possession over the plots as mentioned in
para 1 of the plaint by means of judgment
and decree dated 23.05.1968.

2. Sri Ram Kishore, the defendant of
Regular Suit No. 7 of 1966 being aggrieved
from the judgment and decree dated
23.05.1968 preferred a Regular Civil
Appeal under Section 96 C.P.C. which was
registered as Regular Civil Appeal No. 75
of 1968. The said appeal was dismissed by
the Lower Appellate Court by means of a
judgment dated 13.10.1969. Thereafter Sri
Ram Kishore escalated the matter and filed
a Second Appeal under Section 100 C.P.C.
before this Court registered as Second
Appeal No. 355 of 1969. During the
pendency of the aforesaid Second Appeal
Sri Badri Prasad died and he was
substituted by his legal heir and widow
Smt. Phoolkali. The aforesaid second
appeal was allowed by a coordinate Bench
of this Court by means of judgment and
decree dated 26.04.1973 holding that the
plaintiff (Badri Prasad) was not entitled to
get possession of the property in suit. The
judgment and decree of the two courts was
710 INDIAN LAW REPORTS ALLAHABAD SERIES
set aside and the suit was dismissed with
cost.

3. It is in this backdrop, that once the
suit of Badri Prasad was dismissed, thereafter
Ram Kishore preferred an application under
Section 144 C.P.C. seeking restitution of
possession as well as damages and mesne
profit from Smt. Phoolkali (widow of Sri
Badri Prasad) as by then Badri Prasad had
died. This application was moved before the
Court of Munsif North, Unnao and was
registered as Misc. Case No. 53 of 1974.

4. The aforesaid application was
contested by Smt. Phoolkali by filing her
objections. It was contended that all the legal
heirs of late Sri Badri Prasad has not been
impleaded and for the said reason, the
application under Section 144 C.P.C. was not
maintainable and consequently was liable to
be dismissed. Another objection of Smt.
Phoolkali was that she nor her predecessorin-interest namely Sri Badri Prasad were in
possession of the property in question apart
from the fact that since the possession was
with Ram Kishore as he being a co-tenureholder, hence, the application was not
maintainable.

5. The record would indicate that
during the pendency of the aforesaid
application, two persons namely Bhagwat
Prasad and Ram Narayan had also moved
their objections seeking their impleadment
on the ground that they are the legal heirs
of late Badri Prasad and they are in
possession of the property in question,
hence, they are necessary and proper
parties as their rights are also involved,
accordingly, they may be impleaded and
be allowed to contest the proceedings.

6. The Court of Munsif, North,
Unnao by means of its order dated
27.04.1978 partly allowed the application
under Section 144 C.P.C. The Court held
that in so far as the relief for possession is
concerned, the application was allowed
but in absence of any evidence on the
issue
of
damages/compensation/mesne
profit, the said relief was refused. The
Court also found that the application
moved by the third parties namely
Bhagwat Prasad and Prem Narayan was
not maintainable and the same was also
rejected.

7. Being aggrieved against the
aforesaid judgment dated 27.04.1978, two
appeals under Section 96 C.P.C. came to
be filed. One appeal bearing No. 101 of
1978 was filed by Smt. Phoolkali against
the judgment dated 27.04.1978 by which
the Court had ordered the possession to be
restored to Sri Ram Kishore. The other
appeal was filed by Sri Ram Kishore
registered as Civil Appeal No. 23 of 1978
against the part of the judgment dated
27.04.1978 in so far as it rejected the relief
of compensation/mesne profit/damages on
the ground that no evidence was led.

8. Significantly, after the order dated
27.04.1978 was passed, in pursuance of
order of Munsif, North, Unnao, a warrant
of possession was issued and in execution
of the said warrant, the possession is said to
be delivered to Sri Ram Kishore by the
Court Amin.

9. After due contest, the appeal of
Smt. Phoolkali bearing No. 101 of 1978
was dismissed while Civil Appeal No. 231
of 1978 filed by Sri Ram Kishore was
allowed and the matter was remanded to
the Trial Court to permit Sri Ram Kishore
to lead evidence in so far as his claim of
compensation/mesne profit was concerned.
Liberty was also granted to Smt. Phoolkali
9 All Satish Kumar Vs. Ram Kishore
711
to lead her evidence in rebuttal against the
claim of Sri Ram Kishore for mesne profit.

10. Being aggrieved against the order
of
the
First
Appellate
Court
dated
12.02.1979, the instant second appeal has
been preferred. It will be noted that during
the pendency of the instant second appeal,
both Smt. Phoolkali and Sri Ram Kishore
have expired and they are now represented
by their legal heirs who have been
substituted in their place. The Court has
made a reference to the original parties
namely Badri Prasad, Phoolkali and Ram
Kishore for ease, however, it shall also
include their legal heirs and representatives
who are parties before this Court.

11. A coordinate Bench of this Court
by means of order dated 31.08.1979 had
admitted the aforesaid appeal on the
following substantial questions of law
which reads as under:-

"Whether the Lower Appellate
Court having held that the Trial Court had
wrongly recorded that the parties did not
want to adduce any oral evidence fell into
error of not remanding the case for setting
aside the remaining issue as well viz.
whether possession had been transferred
under the Court's order in the previous
litigation."

12. Heard Sri Mohd. Arif Khan,
learned Senior Counsel along with Sri
Deepankar Kumar for the appellant. None
responded on behalf of the respondents
despite opportunity having been provided,
hence, the appeal was heard in their
absence.

13. The submission of learned counsel
for the appellant is that the Lower
Appellate Court had erred in dismissing the
appeal
preferred
by
Smt.
Phoolkali
especially when it had already arrived at a
conclusion that the Trial Court was not
justified in recording that the parties did not
wish to lead evidence. Once, such a finding
was recorded and the appeal of Ram
Kishore was remanded permitting him to
lead evidence, in the same earnestness, the
appeal of Smt. Phoolkali was also liable to
be allowed permitting her to lead the
evidence as well.

14. He further urged that from the
perusal of the order passed by the Trial
Court would indicate that there is no
mention regarding the fact whether the
possession was delivered to Sri Ram
Kishore as was contended by Smt.
Phoolkali in her objections so also there is
no consideration of the other objections
raised by Smt. Phoolkali that either the
application under Section 144 C.P.C. could
be allowed as a whole and not in part. It is
also urged that the issue regarding the other
legal heirs of Sri Badri Prasad who were
not impleaded and were necessary parties
but this has also not been considered in the
correct earnestness and all these issues
were germane to the controversy to be
resolved.

15. It is also urged by the learned
Senior Counsel that the Lower Appellate
Court by remanding the matter has only
permitted Sri Ram Kishore to lead evidence
on the question of compensation/mesne
profit with liberty to the appellant to file
the evidence in rebuttal but has erred in
dismissing the appeal of Smt. Phoolkali
since her objections regarding the fact that
Ram Kishore was already in possession
would not be permitted to be agitated and
she would not be permitted to lead
evidence, despite noticing that the Trial
Court had erroneously prevented the parties
712 INDIAN LAW REPORTS ALLAHABAD SERIES
from leading their respective evidence,
thus, the order of remand in so far as the
appeal of Ram Kishore is concerned and
dismissal of the appeal of Smt. Phoolkali is
an erroneous exercise of jurisdiction also
resulting in substantial injustice, hence, the
appeal deserves to be allowed.

16. The Court has heard the learned
Senior Counsel for the appellant and also
perused the material available on record.

17. At the outset, it may be noticed that
the instant second appeal arises out of a
decision rendered on an application under
Section 144 C.P.C. It will be necessary to
notice the aforesaid provision and Section
144 C.P.C. reads as under:-

"Section 144. Application for
restitution.

(1)Where and in so far as a decree
1 [or an order] is 2 [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
1 [or order] or 3 [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 4 [consequential on such
variation,
reversal,
setting
aside
or
modification of the decree or order].

5[Explanation.--For
the
purposes of sub-section (1), the expression
"Court which passed the decree or order"
shall be deemed to include,

(a) where the decree or order has
been varied or reversed in exercise of
appellate or revision jurisdiction, the Court
of first instance;

(b) where the decree or order has
been set aside by a separate suit, the court
of first instance which passed such decree
or order.

(c) where the Court of first
instance has ceased to exist or has ceased
to have jurisdiction to execute, it, the Court
which, if the suit wherein the decree or
order was passed were instituted at the
time
of
making
the application
for
restitution under this section, would have
jurisdiction to try such suit.]

(2) No suit shall be instituted for
the purpose of obtaining any restitution or
other relief which could be obtained by
application under sub-section (1)."

18. The aforesaid provision has been
amended in the State of U.P. by means of
U.P. Amendment Act No. 24 of 1954.

19. It will also be relevant to notice
that
the
provisions
of
C.P.C.
have
undergone major amendments in the year
1976
which
came
into
effect
from
01.02.1977. Section 2 (2) of the C.P.C.
after the amendment reads as under:

"2. (1). ********

(2) "decree" means the formal
expression of an adjudication which, so far
as regards the Court expressing it,
conclusively determines the rights of the
parties with regard to all or any of the
9 All Satish Kumar Vs. Ram Kishore
713
matters in controversy in the suit and may
be either preliminary or final. It shall be
deemed to include the rejection

of a plaint and the determination
of any question within 2 *** section 144,
but shall not include-

(a) any adjudication from which
an appeal lies as an appeal from an order,
or

(b) any order of dismissal for
default.

Explanation.--A
decree
is
preliminary when further proceedings have
to be taken before the suit can be
completely disposed of. It is final when
such adjudication completely disposes of
the suit. It may be partly preliminary and
partly final;"

20. From the perusal of the aforesaid
provisions, Section 2 (2), it would indicate
that any determination of a question within
Section 144 C.P.C. is deemed to be a
decree, consequently, an order passed
under Section 144 C.P.C. is appealable as a
Regular Civil Appeal under Section 96
C.P.C. and so also the order of the
Appellate Court is open to be assailed in a
second appeal under Section 100 C.P.C.

21. The expression ''restitution' has
not been defined in the C.P.C., however, it
is a doctrine founded on a Maxim ''Actus
Curiae Neminem Gravavit'. The maxim
explains that the 'Act of the Court shall
harm no one'.

22. In a Halsbury's Law of England
4th Edition, it has been stated "Any
civilized system of law is bound to provide
remedies for cases of what has been called
unjust enrichment or unjust benefit, i.e. to
prevent a man from retaining the money of,
or some benefit derived from, another
which is against functions that he should
keep. Such remedies in English Law are
generally different from remedies in
contract and are now recognized to fall
within a third category of the common law
which has been called quasi contract
restitution".

23. The principles underlying the
doctrine of restitution is that on a reversal
of a decree, the law imposes an obligation
on the party to the suit who receives any
unjust benefit of the erroneous decree to
make restitution to the other party for what
he
has
lost.
The
obligation
arises
automatically
on
the
reversal
or
modification of the decree and necessarily
carries with it the right to restitution of all
that has been done under the erroneous
decree and the Court in making restitution
is bound to restore the parties so far as they
can be restored to the same position they
were in at the time when the Court by its
erroneous action had displaced them from.

24. Thus, it would be seen that it is
not only the duty of the Court of restoring
the things to its proper owner but that also
encompasses with it to make such other
order including orders for refund of costs or
for payment of interests damages and
mesne
profits
which
are
properly
consequential on such variation, reversal,
setting aside or modification of the decree
or order.

25. It is in this backdrop if the
submissions of the learned Senior Counsel
for the appellant are tested, it would be
discernible from the record that initially Sri
Badri Prasad (predecessor-in-interest of
Smt. Phoolkali, the predecessors-in-interest
714 INDIAN LAW REPORTS ALLAHABAD SERIES
of the present appellants) had instituted a
suit for joint possession. The suit was
decreed
and
Sri
Ram
Kishore,
the
defendant's appeal was dismissed. In the
second appeal preferred before this Court
bearing No. 355 of 1969 decided on
26.04.1973, the judgment and decree
passed by the two Courts were set aside
and the suit of Sri Badri Prasad was
dismissed holding that Badri Prasad was
not entitled to possession.

26. It is in the aforesaid backdrop that
Sri Ram Kishore thereafter had moved an
application seeking restitution as well as
mesne profit. Apparently, the prayer made by
Sri Ram Kishore seeking compensation and
mesne profit is within the scope of Section
144 C.P.C. as evidenced and noticed
hereinabove first.

27. The record further indicates that the
ground of objection raised by Smt. Phoolkali
before
the
Trial
Court
opposing
the
application for restitution, she had raised a
plea that Badri Prasad was not in possession
rather the possession was with Sri Ram
Kishore himself. It was also stated that Badri
Prasad did not remain in possession
throughout and moreover that he was also
entitled to a sum of Rs. 1,000/- which he had
spent on sowing of the crop. Another
objection was to the effect that the other heirs
of Badri Prasad were not impleaded. This
came to be decided by the Trial Court by
means of order dated 27.04.1978.

28 . From the perusal of the said order,
it would indicate that primarily the Trial
Court
had
framed
two
points
for
determination i.e. (i) Whether the appellant
was entitled to the relief as prayed for ; (ii)
the other as to whether Sri Bhagwat Prasad
and Prem Narayan were entitled to be
impleaded as a party in the said litigation.

29. The Trial Court found that the
possession was with Badri Prasad who had
died during the pendency of the earlier
second appeal and was now represented by
Smt. Phoolkali, hence, it permitted the
prayer of possession in favour of Sri Ram
Kishore against Smt. Phoolkali. As far as
the other issue regarding the claim of
compensation/mesne profit is concerned,
the Trial Court noticed that the parties
agreed not to lead any evidence, hence, the
said issue regarding compensation was
decided in the negative in absence of any
evidence. It also rejected the application of
Sri Bhagwat Prasad and Prem Narayan
holding that they were not the parties to be
impleaded.

30. Apparently, from the perusal of
the order passed by the Trial Court, it
would indicate that it has not discussed the
issue regarding the possession and whether
Ram Kishore was entitled to possession or
not. The Trial Court has merely stated that
since no evidence has been led by the
plaintiff in support of his plea regarding
mesne
profits,
hence,
it
cannot
be
ascertained as to how much damage or
compensation can be awarded, hence, the
said prayer was refused. The Trial Court
thereafter concentrated mainly on the issue
regarding the application of Prem Narayan
and Bhagwat Prasad and abruptly ended by
holding that the application of Ram
Kishore for restitution of possession is
liable to be allowed whereas the application
for impleadment by Sri Bhagwat Prasad
and Prem Narayan was rejected.

31. The record further indicates that
by the same order dated 27.04.1978, the
Trial Court had issued a warrant of
possession which came to be executed and
the same can be verified by means of
document bearing Paper No. Ga-89 in the
9 All Satish Kumar Vs. Ram Kishore
715
record of the Trial Court. However, the said
document has not been considered by the
Trial Court or the First Appellate Court nor
there is any mention of the said document
in
the
two
impugned
orders
dated
27.04.1982 and 12.02.1979.

32. As already noticed above, two
appeals were preferred and the Lower
Appellate Court while considering the
appeal of Smt. Phoolkali bearing No. 101
of 1978 has noticed that the learned Trial
court
did
not
properly
decide
the
application under Section 144 C.P.C. It also
noticed that neither the counsel for Ram
Kishore namely Sri C.B. Tiwari, Advocate
nor the counsel for Smt. Phoolkali made
any such statement that they did not wish to
lead evidence and the fact recorded by the
Munsif in its order that the parties did not
wish to lead evidence was not corroborated
from the record and noticing the aforesaid,
it found that the Trial Court ought to have
taken up the application for impleadment
separately and thereafter ought to have
decided the application under Section 144
C.P.C. separately. It also noticed that since
the possession has been restored to Sri Ram
Kishore, hence, the only issue remaining
was regarding the damages/compensation
and mesne profit which was not decided by
the Trial Court in view of absence of
evidence and as noticed above that the very
fact that neither counsel for the parties
made any such submissions that they did
not wish to lead evidence, hence, the appeal
of Sri Ram Kishore was allowed an the
matter was remanded permitting him to
lead evidence regarding his claim for
damages/compensation/mesne profit and
dismissed the appeal of Smt. Phoolkali.

33. The record further indicates that
in the memo of appeal preferred by Smt.
Phoolkali which is on record bearing paper
no. Ka 2/1. The grounds raised were that
the application under Section 144 C.P.C. of
Ram Kishore ought to have been dismissed
in Toto. The other ground was that the Trial
Court had erred in not impleading the other
heirs of Sri Badri Prasad and the other was
that the Lower Appellate Court did not give
her an opportunity to lead oral evidence in
respect of her case.

34. As already referred in the
preceding paragraphs that after the order
was passed by the Trial Court on
27.04.1978, a warrant of possession was
issued in pursuance whereof Sri Ram
Kishore was put in possession and the said
paper bearing No. Ka-89/2 is on record.
There is no finding recorded upon the
aforesaid document. It will also be relevant
to notice that if at all the possession was
taken in pursuance of the order dated
27.04.1978 then there ought to have been a
mention in the order including the date on
which the said possession was delivered.
The document does not mention any such
date.

35. It is not disputed that both the
parties were prevented from leading their
respective evidence before the Trial Court.
This fact has been affirmed by the Lower
Appellate Court too. However, it has
remanded the matter in so far as the appeal
of
Ram
Kishore
is
concerned
for
determination of the mesne profits, if any,
but dismissed the appeal of Smt. Phoolkali.

36. The question as to the quantum of
compensation/mesne
profits
also
necessarily involves the determination of
the
date
from
when
such
compensation/mesne
profit
would
be
payable and up to what date. This would be
dependent on the finding from which date
the possession of Sri Badri Prasad would be
716 INDIAN LAW REPORTS ALLAHABAD SERIES
termed to be unlawful and liable to be
restituted and the date on which the said
restitution did actually take place.

37. The document bearing Paper No.
Ga- 89/2 as referred to hereinabove would
indicate that it only states that the
possession has been received by Ram
Kishore in pursuance of a warrant of
possession issued by the Trial Court on
27.04.1978, however, there is no specific
date mentioned. Apparently, there is no
material on record to indicate that on what
date the possession of the property was
received by Ram Kishore. It has been
stated in paragraph 3 that Sri Badri Prasad
had taken the possession on 18.05.1970 and
further in paragraph 7 of the said
application bearing Paper No. Ga-3/1, it is
stated that the appellant namely Ram
Kishore is entitled to receive the exclusive
possession of the property and has sought
mesne profit from 18.05.1970 till the date
the possession is to be delivered.

38. Thus, the issue regarding the
quantum of compensation as indicated
above, is inter-linked with the fact as to
when the possession was with Badri Prasad
and when it has reverted back to Sri Ram
Kishore, this fact needs to be ascertained
clearly and for this fact the parties are
required to lead evidence. It is admitted
that the Trial Court did not permit the
parties to lead evidence. The Lower
Appellate Court has found that the
application under Section 144 C.P.C. has
not been properly decided and the parties
have been deprived from leading their
evidence.

39. Once such a finding was recorded
and even if noticing that the possession has
been restored to Ram Kishore, the core
question for determination of compensation
as noticed above would require the
determination of the date from which date
to what date the compensation is to be paid
but in absence of evidence, no such finding
has been recorded and it requires evidence
for both parties to establish their respective
case.

40. The Lower Appellate Court while
dismissing the appeal of Smt. Phoolkali as
noticed that Smt. Phoolkali shall be given
an opportunity to rebut the evidence of
Ram Kishore on his claim of damages
while the appeal of Ram Kishore has been
allowed for the purpose of ascertain the
amount of damages, if any, and then decide
the application under Section 144 C.P.C. In
the operative portion it has been mentioned
that the order of Munsif in so far as it
relates to restitution of possession is
maintained, the Munsif shall give an
opportunity to the appellant Ram Kishore
to lead evidence on his claim for
compensation
or
damages
and
Smt.
Phoolkali shall be given opportunity to
rebut the evidence of Sri Ram Kishore on
this point then the Munsif shall ascertain
the amount of damages and thereafter
decide the application under Section 144
C.P.C. in accordance with law after giving
opportunity to the parties to lead evidence.

41. Once such a direction was issued,
it would be most unfair that Sri Ram
Kishore would be entitled to lead evidence
in
so
far
as
the
quantum
of
compensation/mesne profit is concerned
and Smt. Phoolkali would be entitled only
to lead her evidence in rebuttal. As already
noticed above, the quantum of mesne profit
would be interlinked and dependent on the
date and period when Sri Badri Prasad and
thereafter Smt. Phoolkali remained in
possession. It is not a case where it is
admitted to the parties regarding the
9 All Satish Kumar Vs. Ram Kishore
717
aforesaid dates nor the Trial Court or the
First Appellate Court have recorded any
finding in respect thereto.

42. In absence of any clear finding by
the two courts, it would be a travesty of
justice if some fact is assumed without
being proved and even worse without
providing an opportunity to the parties
concerned to lead evidence. The Appellate
Court ought to have exercised its appellate
powers taking note of the aforesaid aspect
which has not been done.

43. In this view of the matter, this
Court is of the opinion that the order of
the Lower Appellate Court dismissing the
appeal of the appellant Smt. Phoolkali is
erroneous. Merely by permitting her to
lead evidence in rebuttal is not going to
solve the purpose since the period for
which
the
property
remained
in
possession of Sri Badri Prasad and with
Smt. Phoolkali was also required to be
determined. This necessarily requires the
parties to lead evidence especially when
it was a disputed fact and there is no
finding given by the two courts and the
mention of the fact in the order that
possession has been given to Ram
Kishore, does not indicate when and what
is the basis of such finding has also not
been mentioned. Hence, in this view of
the matter, this Court holds that the
Lower Appellate Court has committed an
error in dismissing the appeal of Smt.
Phoolkali especially when it found that
the parties were prevented from leading
their evidence so also for the reason that
the Lower Appellate Court found that the
application under Section 144 C.P.C. has
not been decided properly.

44. For the reasons aforesaid, this
second appeal is allowed. The impugned
order/judgment and decree passed by the
Lower Appellate Court dated 12.02.1979
dismissing the appeal No. 101 of 1978 is
erroneous and is set aside and since the
appeal of Sri Ram Kishore bearing No.
23 of 1978 has been remanded by the
same impugned judgment and order, that
part of the order shall be maintained. This
Second Appeal No. 554 of 1979shall
stand allowed and it the matter of Smt.
Phoolkali shall also be remanded to the
Trial Court where the application under
Section 144 C.P.C. shall be decided
afresh by permitting the respective parties
to lead their evidence. However, in so far
as the issue of compensation/mesne profit
is concerned while determining the same,
the Court shall also record a finding as to
from which date till when the possession
remained with Sri Badri Prasad and when
it was restored to Sri Ram Kishore
strictly in light of the evidence led by the
parties.

45. Since the instant appeal remained
pending before this Court since 1979 and
an application under Section 144 C.P.C. is
of the year 1974, hence, the Trial Court is
directed that it shall make an earnest
endevour
to
decide
the
aforesaid
application most expeditiously without
granting any unnecessary adjournments to
either of the parties, however, ensuring full
opportunity of hearing as well as permitting
the parties to lead their evidence so that the
entire
proceedings
can
be
decided
preferrably within a period of 8 months
from the date a copy of this order is placed
before the Court concerned.

46. The instant second appeal is
allowed in the aforesaid terms. In the facts
and circumstances, there shall be no order
as to costs. The record of the Court
concerned shall be remitted forthwith.
718 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2021)09ILR A718
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.08.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE SUBASH CHAND, J.

First Appeal No. 627 of 2019

Smt. Shruti Bhatnagar ...Appellant
Versus
Sri Mayank Bhatnagar ...Respondent

Counsel for the Appellant:
Sri Ashok Shankar Bhatnagar, Sri Harsh
Bhatnagar

Counsel for the Respondent:

A. Civil Law-Code of Civil Procedure, 1908Section 96 & Hindu Marriage Act, 1955Section 13(1)(i-a)-challenge to-dismissal
of divorce petition by Family court-wife
subjected to cruelty, both physical and
mental, under the guise of the demand of
cash-respondent
remained
absent
for
three years though served-husband has
not come forward to contest the appeal
nor stepped into the witness box-adverse
inference not drawn by the trial court
against the respondent/husband caused
injury to the appellant/wife-no animus of
cohabitation-no
endeavour
for
reconciliation
which
clearly
establish
animus deserendi-conduct adopted by
husband proved cruelty-it amounted to
wilful neglect of wife-decree of divorce
granted.(Para 1 to 14)

B. Once the parties have separated and
the
separation
has
continued
for
a
sufficient length of time and one of them
has presented a petition for divorce, it can
well be presumed that the marriage has
broken down. The Court, no doubt, should
seriously make an endeavour to reconcile
the parties, yet, if it is found that the
breakdown is irreparable, then divorce
should not be withheld. The consequences
of preservation in law of the unworkable
which has long ceased to be effective are
bound to be a source of greater misery for
the parties.(Para 9, 10)

The appeal is allowed. (E-6)

List of Cases cited:

1. V.Bhagat Vs D. Bhagat (1994) 1 SCC 337

2. G. Padmini Vs G.Sivananda Babu, (2000) AIR
A.P. 176

3. Jitendra Kumar Vs Ankita Sharma @ Thakur

4. Naveen Kohli Vs Neelu Kohli (2006) 3 GLR
2182

5. Geeta Jagdish Mangtani Vs Jagdish Mangtani
(2005) AIR SC 3508

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.
&
Hon'ble Subash Chand, J.)

1. Heard Shri Harsh Bhatnagar,
learned counsel holding brief of Shri Ashok
Shankar Bhatnagar, learned counsel for the
appellant. Though served respondent for
three years has absented here as also before
the family court

2. This appeal, has been filed by the
appellant to set aside the judgment dated
29.07.2019 passed by Principal Judge,
Family Court, Ghaziabad in O.S. No. 158
of 2018 and allow the petition of the
appellant under Section 13(1)(i-a) of Hindu
Marriage Act, 1955.

3. The short brief facts as culled out
from the record are that the appellant was
married with respondent on 11.02.2012 by