KARTIC CH BAROYEE Vs. KASHI NATH MONDAL

JUDGEMENT

(1.) This is an application under section 115 of the Code of Civil Procedure directed against order No.5 dated 1.10.1994 passed by the Munsif, 1st Court, Barasat in T.S. No. 424 of 1994. The learned advocate for the petitioner is present and made his submission in support of his application. The affidavit of service is filed, let it be kept with the record. According to the submission of the learned advocate for the petitioner, the petitioner is a tenant under the opposite party No.l and the petitioner as plaintiff filed a suit as mentioned above, claiming for declaration and injunction etc. restraining the defendant from disconnecting the electric line and water connection. The suit is pending even now but it is alleged that in the meantime on 21.9.1994 the petitioner was dispossessed from the suit properly forcibly by the opposite party No.1 landlord. So, the petitioner filed a petition before the trial court to restore possession under section 151 CPC with the help of the police. The learned trial court by the impugned order was pleased to reject that prayer on the ground that the only remedy to get back possession in the suit premises lies under section 144 CPC and a separate mis.-case under that section ought to be filed. On being aggrieved by such order the present revision case has been filed before this court.

(2.) After hearing the argument of the learned advocate for the petitioner and considering the facts and circumstances of the case, I find that the learned trial court has committed error, firstly. In interpreting the power conferred under section 144 CPC. It is true that it is not a fit case to be governed by section 144 CPC, because section 144 CPC is attracted when in pursuance to any order or decree a person is dispossessed and subsequently that order or decree is varied or set aside. But at the same time it is to be noted, the remedy provided by section 144 CPC is not exhaustive. So, in order to meet the ends of justice, the court can exercise the power of restitution also under section 151 CPC i.e. the inherent power conferred on the court and in order to restore such possession in case of necessity the court can also pass an order for police help. The learned advocate has referred to me two decisions on the ambit of the inherent power of the court, one is Soudamini Roy Chowdhury v Satyendra Nath Sarkar, reported in 85 CWN at page 958 and the other is of Sujit Pal v Pabitra Kumar Sur and Others, reported in 1985 (II) CHN a page 433. There is also a decision of the apex court on this point although on different context, yet, the inherent power under section 151 has been well-defined by the decision reported in AIR 1995, SC at P.441. In the case of (Mrs. Kabita Tehra & Ors. v. Balsara Hygiene Product Ltd.), it is laid down that where the question of restitution is involved and section 144 CPC does not cover that case, there in the interest of justice, the court may exercise its inherent power under section 151 CPC for restoration of possession of the petitioner as ante. A tenant may be evicted by the land-lord but that must be done according to the due process of law and not by vandalism. If a tenant is, thus dispossessed, he has got remedy to be restored to his previous possession under the order of the court and such order, the court is competent to pass under section 151 CPC. The learned trial court now is absolutely erroneous in holding that the court cannot pass any order of restitution under section 151 CPC and that the petitioner shall have to file a separate mis. case for that purpose under section 144 CPC.

(3.) Considering all these respect the impugned order is set aside and the matter be sent back to the learned trial court for passing appropriate order in the light observations made above expeditiously. The revisional application, is thus, disposed of. Application disposed of of