KHAIRATI RAM NAYYAR Vs. K B ADVANI

JUDGEMENT

(1.) This is an appeal by the landlord, Kharaiti Ram Nayar against his tenant, K. B. Advani which isbrought against the order of the Rent Control Tribunal directing thetenant to be put back in possession of the demised premises. The ejectment application filed by the landlord resulted in an eviction decreebeing passed by the Rent Controller ex-parte against the tenant on 10/06/1968. The landlord applied for execution of the evictionorder a id obtained possession of the demised premises on 15/07/1968. The tenant filed an application for setting aside the ex-parteeviction order which resulted in the order being set aside eventually on 18/09/1969. Thereafter, the tenant applied for restorationof possession. The Rent Controller dismissed this application on l 7/11/1970 on the view that no restitution could be allowed. Thetenant appealed to the Tribunal, it was held on this appeal that theRent Controller had the powers of a civil court while executing a decreeand hence the Controller had power to restore the premises to thetenant. The appeal was accordingly accepted, a direction was madeby the Tribunal to the Controller to issue warrants for delivery of possession in favour of the tenant. The landlord has now appealed to thisCourt.

(2.) In support of this appeal, Mr. A. C. Sehgal, learned counselfor the appellant urges that the Rent Control Tribunal erred in direct-ing the issue of warrants for delivery of possession; it is said that thelandlord had let out the premises in dispute to other tenants and hencethis was a case in which restoration should have been refused, or, atleast the case should have been remanded back to the Controller todecide whether a restitution should be made. It is also urged that theTribunal erred in holding that the Rent Controller had the power toorder restitution.

(3.) As far as the first point is concerned, it is necessary to mention that the Rent Controller decided this case only on the preliminaryobjection conerning the power of the Rent Controller to order restitution. No order was passed regarding the rights of tenants who hadbeen let in by the landlord in the premises in question pending thedecision of the tenant's application to set aside the ex-parte evictionorder. The facts show that the application for setting aside the ex-parte decree was moved on 15/07/1968 and the new tenants arestated to have been let in by the landlord on 1/09/1968. Thesetenants cannot have any rights superior to the landlord himself andeven otherwise the doctrine of lis-pendens would apply to any interestcreated by the landlord subsequent to the initiation of proceedings bythe tenant to set aside the ex-parte eviction order. The wording ofSection 144 of the Code of Civil Procedure is mandatory. Once theeviction order had been set aside, any advantage obtained by the landlord from that order had to be restored to the tenant. This meantthat the tenant had to be put back in possession. Any other interestcreated by the landlord in the meantime would be subordinate to thetenant's rights regarding restitution. I, therefore, hold that the Tribunal rightly directed that warrants for delivery of possession shouldissue as there was nothing else that had to be decided in this case.Moreover, the order of the Rent Controller was passed after nearingfinal arguments. is on the application for restoration of posssssion andnothing more remained for the Controller to do. I asked Mr. Sehgalto urge before me any point that he wished to show that restitution.should not be ordered is this case because, assuming that a restorationorder could be made. His only submission his been that thetenant should be awarded damages instead of possession. I do notthink this is possible in restitution proceedings. Even it' it is, I do notthink this is a case in which damages would be a substitute for possession of the demised premises.