Arusha General Store v. Mawji (11) Civ. App. 16-A-68, 27/2/69, Platt J.

Arusha General Store v. Mawji (11) Civ. App. 16-A-68, 27/2/69, Platt J.

The applicant had successfully appealed against a decree of the District Court granting the respondent possession of certain premises. It had been held that decree was null and void ab initio because the District Court lacked jurisdiction and that decree was set aside but without further directions as to restitution since the defective District Courts’ Order had been executed and the respondent was in possession. Also there were no directions as to costs. The applicant sought an order for restitution of premises and his costs with interest. The respondent argued that the court was properly entitled to order the return of the plaint for it to be presented to the proper court. The applicant argued that once the order of the District court was reversed then a declaration for restitution in pursuance of Order 39, rule 31 (d), must follow automatically.

            Held: (1) “The difficulty in this case, in my view is that, the judgment of this Court does not and could not do more than set the district court’s decree aside on the grounds of nullity. It was not possible to reverse that decree by way of demonstrating that the appellant was entitled to the property as against the respondent. All that could be said was that the dispute of the parties had not yet been decided … On the one hand, the appellant claimed the protection of the Rent Restriction Ordinance while on the other, the respondent claimed that the appellant had forfeited that protection by unlawfully sub-letting the premises. To direct restitution in these circumstances when it was not clear that the appellant was entitled to possession seemed inadvisable at first sight. The appellant however argued that …… having been dispossessed, he would not be able to challenge the respondent’s possession in a fresh suit. Therefore, he ought to be allowed to resume occupation and the respondent could then bring a proper suit in the right court for possession. The fact that he respondent instituted the present proceedings which ended in being declared null, should not permit him to take advantage of the wrongful orders made. There is force in this argument.” (2) “It seems to have been assumed that an action under section 89(1) of he Code would be open to the appellant. The respondent argued that ha was not so. Alternatively a suit for restitution could be instituted by the appellant in the respondent’s view; but this the appellant considered might be barred by virtue of section 89(2) of the code. In order to assess the weight of these arguments, it was agreed by the parties that I should state my opinion as to whether the appellant could avail himself of section 89(1) of the code. That section provides as follows:-

“(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 dosts and for the payment of interest, damages compensation and mesne profit, 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)”.

The section follows section 144 of the old code and as always the learned Commentaries to that code are of great persuasion. It is clear that whether or not the appellant judgment gives directions, an application to the court of first instance will still be successful. The only difficulty is whether the Court of first instance having had no jurisdiction in the matter could entertain an application …… the Commentaries do not deal clearly with a case where the court had no jurisdiction ab initio. Nor is it a case where the court’s jurisdiction has been withdrawn and given to another court. The District Court has never had jurisdiction and is not intended to have such jurisdiction. The court of the Resident Magistrate cannot be said to have acceded to the District Courts powers, by way of some re-arrangement of the jurisdiction or system of courts. It is understandable, as the Commentaries point out, that when the court of first instance loses its territorial jurisdiction or ceases to exist, the court which gets such jurisdiction will be the court of first instance. That would follow from section 32 of the code. but it is a different matter altogether when the court of first instance still exists but never had any jurisdiction to pass its decree. There is a note in Chitaley’s Commentaries to section 144, citing a Calcutta decision that “the section is concerned with variation or reversal of valid decree and had nothing to do with nullities.” (See Vol. 2, Note of page 1706) …… The respondent argument seems to me to be sound that where the court of first instance has no power to act, it cannot be asked to grant restitution ….. I hold therefore that it is not open to the District court to entertain an application under section 89(1) of the code, from which it follows that a suit for restitution would not be barred under section 89(2) of the Code.” (3) “Even though the appellant may gave a remedy by way of a suit for restitution, he still claims a direction or restitution at least under the inherent powers of the Court. There is no doubt that those powers exist. If the powers are not exercised, it would not debar restitution proceedings. So it is said in Chitaley (at page 1721) it is not necessary that the reversing decree should contain any direction or provision for restitution. But there is a practical advantage to be gained by the direction in that where the reversing decree contains a direction for restitution, the court in proceedings for restitution cannot go behind that order which is binding on the parties. (Chitaley Ibid). The exercise of the inherent powers of the court is a matter of discretion but on that must be judicially exercised. I apprehend the principle to be that the party who received a benefit from the erroneous judgment is obliged to make restitution to the other party for what he has lost. The court ought to enforce that obligation unless it is shown that it would be clearly contrary to the real justice of the case. …… He is entitled to a direction unless that would be contrary to justice. As I have said, it is not easy to say where the real justice lies in this case because the merits have not yet been considered legally. That being so, as the appellant was in possession on and could not be removed except by order, as there has been no order, it would seem that on balance he is still entitled to protection. He may, of course, be judged to have lost that protection in which case he must vacate again. It is the conflict between the appellant’s right in principle and the practical situation which causes difficulty. (4) “I direct that there be restitution of the property to the appellant. This concerns both possession of the property and the return of costs paid with interest 7% ……. I also direct that the plaint be returned to the respondent for presentation in the proper court.” (5) Application allowed.