To get restitution after the decree in injunction suit
RAJAMUDI C
(Querist) 13 November 2017
This query is : Resolved
Dear sirs/experts,
Sub:- To get RESTITUTION after the JUDGEMENT & DECREE in INJUNCTION SUIT
STAGE-1
- Suit schedule property :- OFFICE ~~ 300 Sqft.
- LEASE AGREEMENT for 3 years ( 2011 to 2014)
- LAND LORDS were troubling to vacate me before the completion of the lease period
- O.S SUIT was filed in the year SEPTEMBER 2013
- On 6th Sept 2013 the hon'ble court granted - TEMPORARY INJUNCTION - TI ( valid upto 28th Sept 2013)
- A copy of the TI was given to land lords on 7th Sept 2013
- AGITATED by the court order of TI , the landlords forcefully broke open my locks & put their locks
- NECESSARY POLICE COMPLAINT was filed for "CONTEMPT OF COURT ORDER" & seeking police protection.
- POLICE registered the complaint only as NON-COGNIZABLE ( No FIR was registered even though the TI was in force)
- The LAND LORDS RESTRAINED me illegally to my office, even though TI was in force
- THE LAND LORDS(DEF) advanced the O.S.Suit & giving all false facts to the court by gaining sympathy of court
- The landlords also registered FALSE FORGERY case denying their SIGNATURE on LEASE AGREEMENT
- The hon'ble CIVIL court VACATED the TI on 28-09-2013, pending the final suit
STAGE-2
- The DEFENDANTS thought as if they have WON the case by vacating the TI
- Further they did not come forward to ADDUCE the case
- They did not file WS within 90 days ( Filed after more than 180 days without any valid reasoning for the delay )
STAGE-3
- POLICE took the ORIGINAL LEASE DEED from the civil COURT OS SUIT with court permission & sent it for FSL verification
- FSL confirmed the LANDLORDS signature
- POLICE filed B- REPORT in the FALSE FORGERY CASE
- RETURNED the ORIGINAL LEASE DEED to civil court back
STAGE-4
- The DEF had given a empty pictures of the office to police station after ransacking/stealing all my office equipments ( via RTI reply from police)
- I registered the THEFT complaint/FIR against the DEF ( u/s 380 ....)
- Few of my OFFICE items were recovered from DEF
- POLICE filed charge sheet against them u/s 403 r/w 34 ( instead of sec 380 ) & the CRIMINAL case is on against them
STAGE - 5
- DEF were PROTRACTING the case by filing one IA after the other
- Civil COURT framed ISSUES
- PLAINTIFF EVIDENCE in CHIEF was done marking all the DOCUMENTS , FIR , CHARGE SHEET, etc..
- They kept on DEFERRING " CROSS of PW-1 " for several HEARINGS (more than a year)
- Court ordered " CROSS of PW-1 IS TAKEN AS NIL "
STAGE-6
- FURTHER DEF did not come forwards to ADDUCE DEF EVIDENCE
- Court ordered " DEFENDANT EVIDENCE as NIL "
- We filed WRITTEN ARGUMENTS
- Court posted the case for JUDGEMENT
STAGE-7
- DEF filed IA for recalling the case , Cross of PW-1 by advancing the case, citing that their counsel was held up in traffic etc.
- Court allowed IA with a cost of Rs 5000 /-
- Even then the DEF did not come forward to ADDUCE the case
- hon'ble court again posted the case for JUDGEMENT
- Again the DEF came with an IA for recalling the case & cross of PW-1 etc....
- COURT rejected their IAs UPFRONT ( did not admit)
STAGE- 8
- On 1st Sep 2017 , hon'ble COURT pronounced JUDGEMENT in favor of PLAINTIFF
- On 14th SEP 2017 , DECREE was drawn to not disturb the possession of the PLAINTIFF without following the due process of law
STAGE-8
- The DEFENDANTS have not marked a SINGLE document in the entire OS SUIT
- The DEF have not filed any APPEAL in the HIGH COURT (We have filed CAVEAT in HIGH COURT)
- It's been almost 65 days after the judgement
QUERY
Since the DEF have restrained me illegally by breaking open my keys & STOLEN/RANSACKED my office equipments already during the PENDENCY of the SUIT & PENDENCY of the LEASE PERIOD & they have not returned LEASE AMOUNT also & enjoying the SUIT Schedule property
PLEASE let me know, whether
A] SHOULD I FILE AN EXECUTION PETITION FURTHER TO JUDGEMENT & DECREE,
or
B] FILE RESTITUTION APPLICATION u/s 144 r/w 151 CPC IN THE SAME O.S.SUIT further to JUDGEMENT & DECREE
OR
C] ANY OTHER REMEDY as per Civil procedural Code
KINDLY Advise
Guest
(Expert) 13 November 2017
Please don't mind, if you are feeling some pleasure to assume that you have won the case that may prove to be a day dream. The order is a mix-up of positive and negative judgment, both at a time. I don't know, what your lawyer would have told you to make you satisfied and happy, as if the judgment was in your favour.
If you carefully go through the process of stage 8, where you stated, "DECREE was drawn to not disturb the possession of the PLAINTIFF without following the due process of law," that itself has put you at loss by indirectly making you lose the battle. The first part of the sentence is in your favour, but the second part of the sentence goes to help the opposite party. That can well be interpreted that the defendant can disturb your possession by following the due process of law. But, who will ensure that the due process of law was being observed while disturbing your possession, which already seems to have been disturbed, as you stated that they managed to vacate the premises.
I am of the view that the opposite party would not feel the need to file any appeal, the judgment is more in their favour than you.
TO BE FRANK, YOUR LAWYER FAILED TO GET A CLEAR & PERFECT VERDICT IN YOUR FAVOUR. YOU MAY HAVE TO STRUGGLE MORE& MORE TO GET BACK THE POSSESSION.
In my view, your battle is not yet over, particularly when the lease has already expired in 2014. So the law has already gone to sleep way back in 2014 with the expiry of the legal document, i.e., the lease deed. You may feel the need to make fresh efforts to wake up the law again.
rajeev sharma
(Expert) 14 November 2017
your tenancy practically came to an end on the day itself when your landlord took forcible possession of the property.The court has passed the order presuming that you are in possession of the property whereas you have lost possession of he property. The present order do not help you in any way.The land lord need not to go for appeal and you can not do anything to get possession of he property as there is no order to restore tour possession.
RAJAMUDI C
(Querist) 14 November 2017
Sir,
Thank you very much fro your reply...
Please consider the fact that :-
1). A theft FIR & charge sheet is already on landlords & the case is on in ACMM
All these documents are marked in the PW-1 chief ( 43 documents marked / DEF have not marked even a single document)
2) The DOCUMENT in QUESTION the LEASE DEED was verified by FSL officially through police verification & FSL has confirmed the signature of landlords. After that they have not appealed/opposed the FSL report.
Even FSL report has been marked in the OS SUIT
3). I suppose the legality of the LEASE DEED which was marked during the PENDENCY of the suit & the PENDENCY of the LEASE PERIOD ( i.e the LEASE period was on )
So, Technically I am the legal owner/tenant of the SS Property till the DEF follow/file due process of law/eviction suit...
4) The very ambit of RESTITUTION according to sec 144 " TO PUT THE RIGHT PARTY IN POSSESSION AFTER DECREE / JUDGEMENT with DUE RESPECT to the ORDER/DECREE/JUDGEMENT "
Many case laws have dealt the same way for RESTITUTION of the property...
5) I suppose the DECREE & JUDGEMENT shall have to be marked in the criminal theft case against the land lords to prove the offenses beyond reasonable doubt..
I suppose there is a SUPREME COURT judgement up holding that " THE FINDINGS of THE CIVIL COURT WILL HAVE BINDING ON THE CRIMINAL COURT "
Also the offenses shall also be proved beyond reasonable doubt by producing the FSL reports of the LEASE DOCUMENT & also for the simple reason that the " LAND LORDS have not followed the due process of law for taking me out from the SS property and they have not returned the LEASE AMOUNT any ways" This shall also be proved by producing the RECEIPTS of amount paid to LAND LORDS along with the LEASE DEED...
6) One more important point to be noted here that " the ORDER SHEET clearly depicts that the TI issued was vacated on 28-09-2013(due to misrepresentation from the landlords) ; which clearly shows the LAND LORDS taken possession illegally during the pendency of the suit ; WHICH IN DUE COURSE OF FURTHER TRIAL the hon'ble court had adjudged " PLAINTIFF POSSESSION should not be disturbed " ; HENCE IT IS VERY FIT CASE FOR applying RESTITUTION u/s 144 r/w 151 CPC to meet the ends of the justice & to have more respect for the JUDGEMENT & DECREE
7) ONE more important point to be noted here is that ; ISSUES FRAMED by the Hon'ble COURT
- One of the ISSUES clearly stated that , "WHETHER THE PLAINTIFF PROVES THE TENANCY, ONCE THE SUIT IS ON" { Which has been clearly proved in the detailed TRIAL }
8) The DEF have not APPEALED against the JUDGEMENT & DECREE
9) You mean to say " there is no value for "
* the detailed trial I have fought for 4 years
* the detailed trial the hon'ble court has conducted with ISSUES framed & other steps/stages
* the detailed marking of all the documents
* the detailed JUDGEMENT & DECREE
*the police will file the CRIMINAL FIR & charge sheet blindly
ALL ARE INTERCONNECTED
PLEASE KINDLY LET ME KNOW SIR
RAJAMUDI C
(Querist) 15 November 2017
Sir,
Thank you very much fro your reply...
Please consider the fact that :-
1). A theft FIR & charge sheet is already on landlords & the case is on in ACMM
All these documents are marked in the PW-1 chief ( 43 documents marked / DEF have not marked even a single document)
2) The DOCUMENT in QUESTION the LEASE DEED was verified by FSL officially through police verification & FSL has confirmed the signature of landlords. After that they have not appealed/opposed the FSL report.
Even FSL report has been marked in the OS SUIT
3). I suppose the legality of the LEASE DEED which was marked during the PENDENCY of the suit & the PENDENCY of the LEASE PERIOD ( i.e the LEASE period was on )
So, Technically I am the legal owner/tenant of the SS Property till the DEF follow/file due process of law/eviction suit...
4) The very ambit of RESTITUTION according to sec 144 " TO PUT THE RIGHT PARTY IN POSSESSION AFTER DECREE / JUDGEMENT with DUE RESPECT to the ORDER/DECREE/JUDGEMENT "
Many case laws have dealt the same way for RESTITUTION of the property...
5) I suppose the DECREE & JUDGEMENT shall have to be marked in the criminal theft case against the land lords to prove the offenses beyond reasonable doubt..
I suppose there is a SUPREME COURT judgement up holding that " THE FINDINGS of THE CIVIL COURT WILL HAVE BINDING ON THE CRIMINAL COURT "
Also the offenses shall also be proved beyond reasonable doubt by producing the FSL reports of the LEASE DOCUMENT & also for the simple reason that the " LAND LORDS have not followed the due process of law for taking me out from the SS property and they have not returned the LEASE AMOUNT any ways" This shall also be proved by producing the RECEIPTS of amount paid to LAND LORDS along with the LEASE DEED...
6) One more important point to be noted here that " the ORDER SHEET clearly depicts that the TI issued was vacated on 28-09-2013(due to misrepresentation from the landlords) ; which clearly shows the LAND LORDS taken possession illegally during the pendency of the suit ; WHICH IN DUE COURSE OF FURTHER TRIAL the hon'ble court had adjudged " PLAINTIFF POSSESSION should not be disturbed " ; HENCE IT IS VERY FIT CASE FOR applying RESTITUTION u/s 144 r/w 151 CPC to meet the ends of the justice & to have more respect for the JUDGEMENT & DECREE
7) ONE more important point to be noted here is that ; ISSUES FRAMED by the Hon'ble COURT
- One of the ISSUES clearly stated that , "WHETHER THE PLAINTIFF PROVES THE TENANCY, ONCE THE SUIT IS ON" { Which has been clearly proved in the detailed TRIAL }
8) The DEF have not APPEALED against the JUDGEMENT & DECREE
9) You mean to say " there is no value for "
* the detailed trial I have fought for 4 years
* the detailed trial the hon'ble court has conducted with ISSUES framed & other steps/stages
* the detailed marking of all the documents
* the detailed JUDGEMENT & DECREE
*the police will file the CRIMINAL FIR & charge sheet blindly
ALL ARE INTERCONNECTED
PLEASE KINDLY LET ME KNOW SIR
Guest
(Expert) 15 November 2017
The simple difference you are required to understand is the difference between two separate incidents, i.e., (1) existence, expiry and renewal of lease deed with reference to your eviction from the premises; and (2) criminal case of theft.
Both entities are separate and were required to be fought separately, except the reference of the later one to establish forced unlawful eviction.
Apparently, your winning could have materialised had your lawyer got the order of your rehabilitation in the premises or the order of extension of the lease deed.
So, the whole fight becomes valueless due to short lived lease deed, as everything was subject to the validity of lease deed or the order of your rehabilitation in the hired premises.
