IJAZ ANW AR J. Through this single judgment, this Court intends to dispose of this and the connected Regular First Appeal No.53/2010, as both filed against the common judgment and decree dated 18.01.2010 passed by the learned Additional District Judge-I/Referee Court, Haripur in Application of restitution No.01/06 of 2008.
2. Appellant, the Collector filed the present appeal praying for modification of the impugned judgment dated 18.01.2010 to the extent of not allowing interest/profit on the principal amount, while respondents filed connected Appeal No.53/2010 praying for setting aside the impugned judgment on acceptance of their appeal.
3. Arguments of learned counsel for the parties heard and record perused.
4. Perusal of the record reveals that some of the real respondents and predecessors of others (hereinafter referred to as respondents) were affectees of land acquired for reservoir of Tarbela Dam, filed Objection Petition No.172/4 before the Referee Court, which was ultimately decided on 26.02.1974 and the respondents received the enhanced compensation accordingly . Thereafter , the respondents again filed two separate Objection Petitions No.118/4 and 315/4 on 24.07.1977 and 03.05.1977, respectively , posing the changed class ification of land and the then Additional District Judge, Hazara Camp at Haripur vide judgments and decrees dated 05.01.1978 and 06.05.1978 allowed the objection petitions and enhanced the compensation further . Interestingly , not satisfied with the enhancement so made by the learned Referee Court, the respondents filed RFA No.41/78 and RFA No.73/78 in this Court. This Court vide a consolidated judgment dated 13.05.1990 allowed the appeal and further enhanced the compensation. On appeal from the appellants, the august Supreme Court of Pakistan while deciding two consolidated appeals No.241-P and 242-P of 1990 vide judgment dated 10.12.1992 accepted both the appeals and held that since earlier in the year 1974, the objection petitions of the respondents were allowed by the Referee Court and the enhanced compensation was duly received, subsequent objection petitions for further enhancement were not competent and struck down the judgments of the Referee Court as well as of this Court. The record further transpired that the respondents in the meantime have already received the enhanced compensation.
5. The present proceedings arisen out of the recovery suit filed by the appellant on 19.12.1995 for reimbursement/refund of the enhanced compensation alongwith interest/markup. The record further transpired that earlier vide order dated 27.02.2004, the suit of the appellant was dismissed on the ground that the proper remedy for the appellant was to file application under section 144 of Civil Procedure Code before the Referee Court for restitution and that the suit was not competent. On appeal, this Court vide order dated 17.10.2007 set aside the judgment and order of the Referee Court and remanded the matter for decision afresh treating the suit as application under section 144 read with section 151 C.P .C.
6. The main point now in this appeal is that vide the impugned order dated 18.01.2010, the learned Additional District Judge-I, Haripur though allowed the application under section 144 C.P.C but directed only for refund/return of enhanced compensation and declined payment of interest/mark up upon the said amount. The learned Judge further allowed compensatory cost of Rs.25,000/- to the appellant. In the instant matter , the proceedings before the lower forum were treated as application under section 144 Civil Procedure Code, 1908, as such, it would be appropriate that section 144 C.P .C is reproduced for reference: "144.Application for restitution.- (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 sub-section (1)."
The principle contained in section 144 C.P.C enunciates that where the party by a decree in execution of decree which, on appeal, either in whole or in part thereof is subsequently reversed or varied, the Court is empower to restore by the judgment whatever has lost by him in execution of the decree thus restitution is consequential to the variation or the reversal of the decree or in its being modified or set aside. The above section is equally applicable to money decree and where a sum of money was recovered in execution of a decree, which was subsequently reversed or varied, the judgment debtor is entitled to get back not only the sum recovered but also the interest or damages or compensation for the period that the amount had been retained by him.
7. Similarly , as per the views of the superior Courts reason being that the person who has taken the money improperly from the judgment debtor has to restitute to him the amount as a corollary with interest during the time that money has been withheld from him and there is no distinction between the private person or the State. Even the State is entitled to restitute the entire amount with interest.
8. In the instant case earlier the respondents have received the compensation for their acquired land pursuant to decision on their objection petition but again filed objection petitions a second time for the same acquired land and got the enhanced compensation pursuant to the orders of Referee Court as well as of this Court claiming applicability of section 23 of the Land Acquisition Act, 1894. Similarly , under section 28 of the Land Acquisition Act, they have also received the statutory interest on the enhanced compensation. Section 28 of the Land Acquisition Act being relevant, it is also reproduced.
"28. Collector may be directed to pay interest on excess compensation.-- If the sum which, in the opinion of the Court, the Collector ought to have awarded as compensation is in excess of the sum which the Collector did award as compensation, the award of the court may direct that the Collector shall pay interest on such excess at the rate of six per centum per annum from the date on which he took possession of the land to the date of payment of such excess into Court."
This section provides for interest on the amount awarded by the Court in excess of the Collector 's award at the rate of 6% interest per annum and such interest is paid on the excess amount awarded by the Court from the date on which the Collector took possession of the land acquired till the date on which he pays such excess amount into the Court. Thus, the Sate is similarly entitled to restitute all the benefits accrued to the owner in the original decree.
Direction to restitute the amount with interest is within the powers conferred on the Court under section 144 C.P .C.
9. There is yet another important aspect of the case, the enhanced compensation earlier allowed by the Referee Court and this Court, was set aside by the Supreme Court of Pakistan in its judgment dated 10.12.1992. However , despite notices to the respondents, they did not refund the amount received under the erroneous decree subsequently struck down, rather when the petitioner filed a suit, they took frivolous objections and dragged the petitioner in litigation and uptil now it is outstanding.
10. The principle of restitution is based upon the legal maxim that act of the Court should injure none, Actus Curiae Neminem Gravabit ". This principle is elaborated by the Privy Council in its judgment authored by Lord Cairns in 'Rodger Vs. Comptoir d' Escompte de Paris' (1871 L.R 3PC 465). Relevant Para from the judgment is reproduced.
"It is contended on the part of the respondents here, that the principal sum being restored to the present Petitioner , he has no right to recover from them any interest. It is obvious that, if that is so, injury , and very grave injury , will be done to the Petitioner . He will by reason of an act of the court have paid a sum which it is now ascertained he was ordered to pay by mistake and wrongfully . He will recover that sum after the lapse of a considerable time, but he will recover it without the ordinary fruits which are derived from the enjoyment of money . On the other hand, those fruits will have been enjoyed, or may have been enjoyed, by the person who by mistake and by wrong obtained possession of the money under Judgment which has been reversed. So far, therefore, as principle is concerned, their Lordships have no doubt or hesitation in saying that injustice will be done to the Petitioner , and that the perfect judicial determination which it must be the object of all Courts to arrive at, will not have been arrived at unless the person who has had his money improperly taken from him has the money restored to him, with interest during the time that the money has been withheld."
I have personally searched for the law on the subject from the law sites but failed to find any direct judgment of our jurisdiction, there may be judgments but unfortunately I could not find, as such, I am relying upon the judgments of the Indian jurisdiction wherein the above view of the Privy Council is repeatedly followed in context of section 144 C.P.C read with section 151 C.P.C. Reference can be made to the cases of "Shanmugasundara Mudaliar And .
Vs S. Ratnavelu Mudaliar ' (1932) 63 MLJ 383 (Madras High Court), "Dip Singh And Ors. Vs Jaswant Singh And Ors.' (1885) ILR 7 All 432 (Allahabad High Court), 'State Govt. Of Andhra Pradesh Vs Manickchand Jeevraj & Co., Bombay' (AIR 1973 AP 27) (Andhra High Court), L. Guran Ditta Vs. T.R Ditta (1935 37 BOM LR 162) (Bombay High Court) and 'Kartar Singh alias Naranjan Singh & Ors vs State Of Punjab' (1995 AIR 1726 (Supreme Court of India).
11. While taking guidance from the above judgments and while following the provisions of Section 144 of the Civil Procedure Code, 1908, the petitioner is also entitled to the interest for the period during which he was deprived of its money pursuant to the erroneous decree, subsequently reversed by the august Supreme Court of Pakistan.
12. Accordingly , the judgment and order of the learned Additional District Judge-I, Haripur dated 18.01.2010 is modified and the petitioner is held entitled to restitution of their money from the date of its payment with simple interest at 3% till the realization / refund of the money to them. The connected RFA No.53-A/2010 being without any legal force is dismissed.