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 suit 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, was 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 station 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, but 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/plaintiff 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-Ill.
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 this 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, he 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 valuation 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 police 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 also 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 contended 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 judgments 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 judgments 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 entitlement 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. Only 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 that 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 dated 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 trespasser or illegal occupier cannot agitate to get any benefit in view of section 144, C.P.C. For the sake of 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 instance 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 restitution 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 restitution must be in respect of a decree, which has been varied or reversed;
(ii) the party 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 reversal 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 transactions, 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 such 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 entitlement 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 the 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 or lawfully in possession by virtue of a valid lease in their favour, it is not necessary 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 judgment 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, in accordance with law.