F.M. Ibrahim Kalifulla, J.@mdashThe plaintiff in C. S. No. 454 of 2005 and the petitioner in W. P. No. 17576 of 2005 is the applicant in all the above referred to applications.
2. In Application No. 3335 of 2005, the applicant-plaintiff prays for an order to set aside the earlier order dated June 21, 2005, passed in O. A. No. 543 of 2005 and restore the said application to this file. The other applications, namely, O. A. Nos. 692, 2302, 2883 and 2884 of 2005 are dependent upon the disposal of Application No. 3335 of 2005.
3. The brief facts which are required to be stated are that according to the applicant-plaintiff, it was inducted as a tenant in respect of the suit schedule theatre covered by a lease deed dated November 28, 1989, that due to default in payment of Income Tax committed by the landlord, a proclamation of sale was made by the Income Tax Department in the notice dated February 7, 2005, for auctioning the said suit schedule theatre and the date of auction was notified as March 17, 2005. The property was auctioned as scheduled on March 17, 2005, wherein, the respondents-defendants in the suit (hereinafter referred to as "the respondents") were declared as highest bidders. It is stated that when the respondents attempted to interfere with the possession of the applicant-plaintiff, a writ petition in W. P. No. 10094 of 2005, was filed by the applicant on March 22, 2005, as against the Income Tax Department for a writ of mandamus, to restrain the Income Tax Department from interfering with the applicant-plaintiffs possession except as provided in Rule 40 of the Income Tax (Certificate Proceedings) Rules, 1962, and the said writ petition was disposed of on March 28, 2005, holding that the Department should not interfere with the possession of the applicant except after invoking Rule 40 and that the said order was subsequently modified on April 8, 2005, leaving open the question relating to application of Rule 40.
4. The auction held on March 17, 2005, was stated to have been confirmed on May 4, 2005, in favour of the respondents who also paid the entire sale consideration. According to the applicant-plaintiff on May 5, 2005, since at the instance of the respondents there was a threat of dispossession, the present suit came to be filed for permanent injunction on May 6, 2005. On May 18, 2005, an order of interim injunction was granted in O. A. No. 543 of 2005, pending further orders. In the meantime, as against the subsequent sale certificate dated May 4, 2005, ordering the applicant-plaintiff to vacate the theatre premises, a writ petition was filed by the applicant-plaintiff in W. P. No. 17576 of 2005 as against the Income Tax Department who will hereafter be referred to "the I. T. Department" challenging the sale certificate. The said writ petition was entertained on May 24, 2005, and an interim order was granted in W. P. M. P. No. 19093 of 2005. Though the said interim order was initially granted for a limited period, subsequently, by order dated June 22, 2005, it was extended for one more week. It is stated that since the advocates were on boycott, no representation could be made subsequently and the said interim order was not specifically extended. In the meantime, since the respondents were not put in possession of the suit schedule theatre premises after the issuance of the sale certificate dated May 4, 2005, it is stated that the Income Tax Department was approached by the respondents for cancellation of the sale which application is stated to have been rejected and as against the said rejection order further appeal was filed by the respondents before the higher authority.
5. In the abovesaid background, counsel for the respondents filed a memo on June 20, 2005, in O.A. No. 543 of 2005 which reads as under :
MEMO FILED BY THE DEFENDANTS
The defendant submits as follows :
Without prejudice to their rights with regard to the allegations made in the plaint and application against the defendants, and the defendants states that they have already filed an appeal before the Commissioner, Income Tax Department, Chennai, to set aside the auction sale, in view of irregularity in the sale proceedings.
It is therefore prayed that this hon''ble court may be pleased to close the applications as infructuous and also the suit may be dismissed and thus render justice.
Dated at Chennai this the 20th day of June, 2005.
Counsel for defendants.
6. Based on the abovesaid memo filed by the respondents, an order dated June 21, 2005 in O. A. No. 543 of 2005 and A. No. 2302 of 2005 came to be passed and the relevant part of the order reads as under :
3. From the above, it is seen that the defendants have already approached the Commissioner, Income Tax Department, Chennai, to set aside the auction sale on the ground that there were irregularities in the sale. In view of such categorical stand, there need not be a specific order of injunction as granted by this court and accordingly the application for interim injunction is closed with liberty to the plaintiff to approach this court for appropriate orders in future, if necessary. Consequently, the application for vacating the interim injunction is also closed.
Subsequently W.P.M.P. No. 19093 of 2005 which was in the list on July 13, 2005, came to be adjourned by four weeks as the applicant was not represented by its counsel due to general abstention from court work by advocates. On July 13, 2005, after issuing a notice of the same date, the Income Tax Department and. the respondents are stated to have directed the applicant to hand over physical possession of the suit schedule theatre within one hour and it was in the abovestated manner, the applicant was dispossessed from the suit schedule theatre and after such dispossession of the applicant, possession was also handed over to the respondents.
It is in the abovestated circumstances, the applicant-plaintiff has come forward with the above applications.
Mr. Ravi, learned Counsel appearing on behalf of the applicant-plaintiff, contended that in the light of the fact that in the proclamation of sale dated February 7, 2005, the status of the applicant as tenant having been accepted by the Income Tax Department, there was no scope for the Income Tax Department to invoke Rule 39 of the Income Tax (Certificate Proceedings) Rules, 1962, and that the relevant rule applicable is only Rule 40 and in the said circumstances, the manner in which the applicant was dispossessed from the suit schedule theatre premises was wholly illegal and such dispossession cannot be construed as in accordance with law. Learned Counsel relied upon the decisions of the hon''ble Supreme Court reported in
As against the abovesaid submissions, Mrs. Pushya Sitaraman, standing counsel for the Income Tax Department, would contend that the relevant rule applicable to the case on hand would be Rules 16 and 39 of the Rules contained in the Second Schedule to the Income Tax Act, 1961, where the procedure for recovery of tax is prescribed and read along with the said Rules, it will have to be held that in the case of the applicant, Rule 39 of the Income Tax (Certificate Proceedings) Rules, 1962, alone would apply and if that be so, the procedure followed by the Income Tax Department while taking possession of the schedule theatre from the applicant on July 13, 2005, cannot be faulted.
Mr. S. Vasudevan, learned Counsel appearing for the respondents, would contend that the remedy of the applicant-plaintiff as against the auction held on March 17, 2005, as well as the sale certificate dated May 4, 2005, are by taking recourse to the procedure prescribed under the provisions of the Income Tax Act themselves and, therefore, the applicant cannot be heard to question the action of the Income Tax Department in the suit more so in the present applications. learned Counsel would contend that such remedies as available to the applicant are provided under Rules 60, 61 and 62 of the Second Schedule to the Income Tax Act, 1961. learned Counsel also contended that u/s 293 of the Income Tax Act, the jurisdiction of the civil court having been barred as against the orders passed by the Income Tax Department, and when the suit itself is not maintainable, the lesser relief as prayed for by the applicant cannot be granted. learned Counsel would point out that if at all the civil court jurisdiction can be invoked, it can only be under Rule 11(6) of appendix 16 of the Second Schedule to the Income Tax Act, 1961, and even in such a situation subject to the result of the suit (if any), the order of the Tax Recovery Officer should be held to be a conclusive one. learned Counsel placed reliance upon the decision reported in
12. Having heard learned Counsel for the applicant, the respondents as well as learned standing counsel for the Income Tax Department, at the outset, it will have to be held that the manner in which the respondents dealt with Application No. 543 of 2005 by filing a memo in this Court and thereby persuaded this Court to pass an order on June 21, 2005, throws a considerable doubt about their bona fides. I am well founded in making the said observations about the conduct of the respondents inasmuch as I find that while on the one hand, it was contended on their behalf that after the issuance of the sale certificate dated May 4, 2005, when the Income Tax Department failed to hand over physical possession that created a situation leading to an irregularity in the sale proceedings warranting setting aside of the very sale itself and an application was also filed to that effect by them ; it is now shown that after the rejection of their application for setting aside the same, an appeal was preferred by them, and when the said appeal was pending, a memo was filed in this Court to close the injunction application and thereby ensured that the operation of the order of injunction operating against the respondents was closed. Simultaneously the respondents appeared to have worked along with the officials of the Income Tax Department for securing possession, ostensibly, by invoking Rule 39(2) of the Income Tax (Certificate Proceedings) Rules, 1962. Thereafter, the appeal proceedings themselves were closed on August 1, 2005, wherein the Commissioner of Income Tax purported to have passed an order dated August 1, 2005, under Rule 86 of the Second Schedule to the Income Tax Act, 1961 and it is stated therein that the very same learned Counsel for the respondents appeared and submitted that since possession of the property having been handed over, the grievance of the respondents did not survive and that the order of the Tax Recovery Officer can be confirmed. The order ultimately states that the appeal itself was dismissed as infructuous since possession had already been handed over to the respondents. Significantly there is no whisper in the order about the stand of the respondents in the memo filed by them in O.A. No. 543 of 2005 which was closed on the basis of the said memo.
13. On a cumulative consideration of the above facts, viz., the non-extension of injunction granted in W.P.M.P. No. 19093 of 2005 beyond June 29, 2005, and the subsequent order obtained by the respondents in O.A. No. 543 of 2005 based on a memo filed at their instance on June 21, 2005, and the subsequent conduct of the respondents through their counsel before the appellate authority in stating that in the light of possession secured on July 13, 2005, no further orders are necessary in the appeal and that it can be closed, only lead to the inevitable conclusion that the respondents did not act in a bona fide manner while securing such possession through the officials of the Income Tax Department. In my considered view, the said conduct of the respondents being "not bona fide", cannot be allowed to continue to retain such possession which was designedly obtained by them by deliberately misdirecting this Court to pass an order on June 21, 2005, in O. A. No. 543 of 2005, to achieve their oblique motive to secure such possession by hook or by crook. If such a conduct of the respondents is not curbed with an iron hand that would only encourage such parties to take the court for a ride in order to achieve their evil design. In any case, I am not in a position to appreciate such a conduct of the respondents in having misdirected this Court inasmuch as but for the memo filed by the respondents on June 21, 2005, there would have been no scope for the respondents or for the Income Tax Department to have dispossessed the applicant-plaintiff and put the respondents in possession of the schedule theatre. In all fairness, the parties before the court should have played their respective stand fairly and sought for the redressal of their grievances in accordance with law.
14. The abovereferred to sequence of events preceding the dispossession of the applicant-plaintiff from the suit schedule theatre and handing over possession to the respondents on July 13, 2005, only show that the respondents will go to any extent to achieve their ends in total disregard of the rule of law.
15. As far as the contentions made on behalf of the respondents as well as the Department of Income Tax, as to applicability of the relevant rule, viz., whether Rule 39 or 40 of the Income Tax (Certificate Proceedings), Rules, 1962, is concerned, that is a matter for consideration which could have been raised in the application in O.A. No. 543 of 2005 as well as W.P.M.P. No. 19093 of 2005 in W.P. No. 17576 of 2005 and invited an order from this Court putting all possible contentions in their favour Unfortunately the respondents instead of taking such a royal road have resorted to a short cut method of getting the injunction application in O.A. No. 543 of 2005 closed by filing a memo on June 20, 2005, by taking a specific stand that they were totally disinterested in getting possession of the property, the sale of which was confirmed in their favour on May 4, 2005. While at the same time, taking advantage of the order dated June 21, 2005, in the said O. A., the respondent proceeded to secure possession through the Income Tax Department. It is true that the injunction granted on April 20, 2005, in W. P. M. P. No. 19093 of 2005 was not extended beyond June 29, 2005. Even then, I am of the considered opinion that when the very question as to which of the rules would be applicable, whether Rule 39 or Rule 40 of the Income Tax (Certificate Proceedings) Rules, 1962, was the moot question to be considered in the main writ petition in W.P.No. 17576 of 2005, it was wholly inappropriate on the part of the Income Tax Department also to have taken the stand that since the injunction order not having been extended beyond June 29, 2005, it had every authority to invoke Rule 39 and dispossess the applicant-plaintiff. It is also relevant to point out that the applicant filed a reply affidavit dated July 7, 2005, which is stated to have been served on learned standing counsel for the Income Tax Department which fact is also not disputed by learned standing counsel for the Income Tax Department wherein, in para. 10, the applicant pointed out about the memo filed by the respondents in having stated in categoric terms that they were not interested in the property. In such circumstances, in all fairness, the Income Tax Department ought not to have proceeded in such a great haste to dispossess the applicant without reference to this court. Therefore, I am of the confirmed view that the prayer of the applicant in A. No. 3335 of 2005 in seeking to set aside the earlier order dated June 21, 2005, in O.A. No. 543 of 2005 is well justified. Similarly, the prayer of the applicant in W. P. M. P. No. 25189 of 2005 for restoration of possession of the suit schedule theatre premises also consequently merits acceptance.
16. The various other contentions now raised on behalf of the respondents, applicant-plaintiff and the Income Tax Department with regard to the appropriate rule which would be applicable, whether Rules 39 and 40 or the other alternate remedies available to the applicant are all matters which can be allowed to be agitated by them only in the application in O.A. No. 543 of 2005, inasmuch as at the present juncture, in the interest of justice, the status quo ante prior to July 13, 2005, in regard to the possession held by the applicant is bound to be restored. Such a step is also imminently required to be taken in order to maintain the authority of this Court so as to prevent any unscrupulous parties playing such tricks in the court to achieve and make some unlawful gains.
17. As far as the other contentions are concerned, on behalf of the applicant, reliance is placed upon the Division Bench judgment of this Court reported in
7. The Supreme Court in
''Law respects possession even if there is no title to support it. It will not permit any person to take the law in his own hands and to dispossess a person in actual possession without having recourse to a court. No person can be allowed to become a judge in his own cause.''
The above view was followed by the Supreme Court in Lallu Yeshwant Singh v. Rao Jagdish Singh AIR 1968 SC 620, in which the Supreme Court followed the decision of the Privy Council in Midnapur Zamindary Co. Ltd. v. Kumar Naresh Narayan Roy AIR 1924 PC 144, in which, the Privy Council observed :
''In India persons are not permitted to take forcible possession ; they must obtain such possession as they are entitled to through a court.''
In
''If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking the law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force.''
(emphasis supplied)
An example of possession which is not settled can be given by taking the case of a trespasser who enters into somebody''s house overnight and occupies a portion thereof either forcibly or surreptitiously. The owner of the house, in such a case, may use reasonable force to evict such trespasser, and if he is not strong enough, may resort to the help of police to throw out the trespasser, and it is not necessary for him to file an eviction suit. However, as against a person who is in possession of the property for a reasonable length of time (i.e., in settled possession), he may be dispossessed by the true owner only by having recourse to the due process of law through a court of law for getting possession over his property.
18. It has also been held in the said decision in para. 8 as under :
8... If the possession has been forcibly taken by the respondent-Municipality, it will be restored forthwith to the appellant/petitioner. It is however, open to the respondent-Municipality either to file a suit for eviction against the appellant before the competent civil court or to initiate appropriate proceedings against the appellant before the statutory authority concerned, as are available to it in law, and if it does so, such proceedings will be decided by the court/authority concerned expeditiously, preferably within four months from the date of initiation of such proceedings, after hearing the appellant.
According to the respondents and learned standing counsel for the Income Tax Department, in the case of the applicant, Rule 39 of the Income Tax (Certificate Proceedings) Rules alone would apply in which event, it would be sufficient if Rule 39 of the Second Schedule to the Income Tax Act, 1961, is invoked whereby, after tom torn, the Tax Recovery Officer himself is empowered to secure possession from the person concerned. But when once this Court was seized of the matter in O.A. No. 543 of 2005, at the risk of repetition, it will have to be held that the respondents in O. A. No. 543 of 2005 as well as the Income Tax Department who is the respondent in W.P.M.P. No. 19093 of 2005 ought to have appropriately apprised this Court of the legal position before attempting to dispossess the applicant, instead of carrying it out in an unceremonious manner as has been done by it on July 13, 2005. In the light of the fact that the rival contentions of the parties as regards the entitlement of the applicant on the one side to remain in possession as well as the prayer of the Income Tax Department to invoke Rule 39 on the other side can be considered only while dealing with O.A. No. 543 of 2005 as well as W.P.M.P. No. 19093 of 2005 and W. P. No. 17576 of 2005, I refrain myself from analysing those contentions in detail in these applications since for the present such a detailed consideration is uncalled for.
One other relevant factor is that anticipating any complication being created by the respondents on a future date, in the order dated June 21, 2005, while closing the application in O.A. No. 543 of 2005, the learned judge has specifically held in para. 3 as under :
3... In view of such categorical stand, there need not be a specific order of injunction as granted by this Court and accordingly the application for interim injunction is closed with liberty to the plaintiff to approach this Court for appropriate orders in future, if necessary....
(emphasis added)
21. Therefore, such a liberty reserved for the applicant-plaintiff to approach this Court also supports the present claim of the applicant-plaintiff for setting aside the said order dated June 21, 2005, and for the restoration of its original order of interim injunction. In fact, in the judgment reported in
31. In the instant case the grossly illegal acts of the defendant landlady were sought to be camouflaged under an ineffective patch of legal colouring which must have been done under legal advice. Unfortunately, these illegal acts were aided and abetted by the police, which again is an ominous trend and should be deprecated in no uncertain language.
32. This is, therefore, a fit case calling for restoration of possession to the plaintiff appellant at the interlocutory stage. To do otherwise would be to allow the defendant to perpetuate the wrong she has committed and to reap the benefit of her illegal acts which law can never permit.
22. A similar view has been taken by the learned single judge of the Andhra Pradesh High Court in the judgment reported in
6. It would thus be clear that without any decree or order of eviction of the appellant from the demised premises, he has been unlawfully dispossessed from the premises without any due process of law. The question, therefore is : whether he should be allowed to remain in possession till his application under Order 21, Rules 98 and 99 is adjudicated upon and an order made. Though learned Counsel for the first respondent and also for the third respondent, who is one of the transferee''s from the sixth respondent, sought to contend that the appellant has no right to remain in possession after the lessee, M/s. India Foils Ltd., had admitted by a resolution that the appellant has no right to remain in possession, we are not impressed with the arguments. At this stage, we are only concerned with his admitted possession of the demised premises. What rights would flow from a contract between him and his employer is a matter to be adjudicated in his application filed under Order 21, Rules 98 and 99, CPC. At this stage, it is premature to go into and record any finding in that behalf. learned Counsel for the first respondent also repeatedly sought to bring to our notice that on account of the orders of the Court Officer passed by the High Court the maintenance cost has been mounting up due to the delay in disposal of the proceedings in various courts. Even with regard to that, we are not impressed with the same. Since the letter of the law should strictly be adhered to, we find that highhanded action taken by respondents 1, 3 and 6 in having the appellant dispossessed without due process of law, cannot be overlooked nor condoned. The court cannot blink at their unlawful conduct to dispossess the appellant from the demised property and would say that the status quo be maintained. If the court gives acceptance to such high-handed action, there will be no respect for rule of law and unlawful elements would take hold of the due process of law for ransom and it would be a field day for anarchy. Due process of law would be put to ridicule in the estimate of the law-abiding citizens and rule of law would remain a mortuary."
(emphasis added)
23. In the judgment reported in
7... The above judgment relied upon by the Additional Government Pleader cannot be said to apply for this case squarely. Because in this case, when the interim order was granted from the beginning, the Government Pleader was asked to take notice and the interim orders were passed in the presence of the Additional Government Pleader. When the Government Pleader put on notice about the interim order, then it is deemed that the respondents also put on notice about the same especially in the absence of the plea that the respondents have not been communicated about the interim orders by the Government Pleader. But, however, on the date of removal of the obstruction, as contended by the Government Pleader, the interim order was not in force. But on this technical ground the respondents cannot be said to have committed the disobedience of the order of this Court....
24. In the case on hand, when after an order of interim injunction was granted on May 24, 2005, in W.P.M.P. No. 19093 of 2005 in W. P. No. 17576 of 2005, learned standing counsel for the respondents entered appearance as could be seen from the subsequent order dated June 22, 2005, when the interim order came to be extended by one more week. In such circumstances, the officials of the Income Tax Department cannot be heard to say that the said interim order was not extended beyond June 29, 2005, and therefore, they were free to act in any manner they like.
25. In an unreported order of this Court dated April 28, 1989, in A. Nos. 1212, 1279 and 1280 of 1989 in C.S. No. 175 of 1989 (Seethalakshmi v. K. Murugesan), his Lordship Mr. Justice Srinivasan (as he the was), was pleased to order restoration of possession under similar circumstances.
26. In a Division Bench judgment of the Karnataka High Court reported in
14. In many cases it may so happen that even when the petitioner succeeds in the writ petition, the alienation if any made during the pendency of the writ petition shall have to remain unaffected, the order passed under Articles 226 and 227 of the Constitution would be rendered infructuous, or ineffective. The parties would be deprived of the fruits of the litigation. In this connection, we must also remember the principle underlying the doctrine of lis pendens. The underlined principle is that no immovable property which is a subject-matter of the litigation can be transferred or dealt with by any party to the suit or proceeding to the detriment of the other party. In this case, Sri Revaji who sold the suit land to the plaintiff was a party to the writ petition. He could not have sold the suit land without the permission of the High Court as the right to the suit land was directly and specifically involved in the proceeding before the High Court in W. P. No. 2332/65. Thus, taking into consideration all the aspects, we are of the view that a proceeding instituted under Articles 226 and 227 of the Constitution which is not collusive and in which any right to immovable property is directly and specifically in question will be a proceeding attracting Section 52 of the Transfer of Property Act and as such the property concerned in the proceeding cannot be transferred or otherwise dealt with by any party to the proceeding so as to affect the rights of any other party thereto under an order which may be passed therein, except under the authority of the High Court and on such terms as it may impose. Point No. 1 is answered accordingly.
27. As far as the "principle of restitution" is concerned, as provided u/s 144 of the Civil Procedure Code, the hon''ble Supreme Court has held that-" on a reversal of a decree, the court in making the restitution is bound to restore the parties to the same position they were situated in prior to the order of such reversion". The following decisions of the hon''ble Supreme Court can be usefully referred to.
(a) In
14. An order of restitution in the manner asked for in the circumstances of this case would be contrary to the principles of the doctrine of restitution which is that on the reversal of a judgment the law raises an obligation on the party to the record who received the benefit of the erroneous judgment to make restitution to the other party for what he had lost and that it is the duty of the court to enforce that obligation unless it is shown that restitution would be clearly contrary to the real justice of the case....
(b) In
4. The principle of the doctrine of restitution is that on the reversal of a decree, the law imposes an obligation on the party to the suit who received the benefit of the erroneous decree to make restitution to the other party for what he has lost. This obligation arises automatically on the reversal or modification of the decree and necessarily carries with it the right to restitution of all that has been done under the erroneous decree; and the court in making restitution is bound to restore the parties, so far as they can be restored, to the same position they were in at the time when the court by its erroneous action had displaced them from.....
(emphasis added)
(c) In
76. But, in the present case, Section 144, CPC, does not in terms apply. There is always an inherent jurisdiction to order restitution a fortiorari where a party has acted on the faith of an order of the court. A litigant should not go back with the impression that the judicial-process so operated as to weaken his position and whatever it did on the faith of the court''s order operated to its disadvantage. It is the duty of the court to ensure that no litigant goes back with a feeling that he was prejudiced by an act which he did on the faith of the court''s order. Both on principle and authority it becomes the duty of the court-as much moral as it is legal-to order refund and restitution of the amount to the UCC-if the settlement is set aside.
(emphasis added)
(d) In
10. In
28. The principles set out in the decisions abovereferred to were applied by the Division Bench of this court in an unreported judgment dated August 10, 2005, in W.A.M.P. No. 2843 of 2003 in W.A.M.P. No. 2784 of 2005 in W.A. No. 1504 of 2005 and Contempt Appeal No. 18 of 2005.
29. In the light of the abovesaid legal position, the application in O.A. No. 3335 of 2005 stands allowed and while setting aside the order dated June 21, 2005, passed in O.A. No. 543 of 2005, the said application will stand restored and, consequently, the order of interim injunction granted therein will also stand restored. Consequently, the application for interim injunction granted in W.P.M.P. No. 19093 of 2005 shall also stand extended pending further orders.
30. Having regard to the restoration of the above orders of injunction as against the respondents as well as the Income Tax Department who are the respondents in W.P.M.P. No. 19093 of 2005 in W.P. No. 17576 of 2005 there will be a direction in W.P.M.P. No. 25189 of 2005 as well as in O. A. No. 3335 of 2005 to the respondents and the Income Tax Department to forthwith restore possession of the suit schedule theatre premises comprising land and building, viz., M/s. Goodluck 2-IN-1 Theatres at Old No. 18, 5th Cross Street, Lake Area, Nungambakkam, Chennai-600 034, with all the machinery and other accessories as it existed as on July 13, 2005, to the applicant-plaintiff forthwith pending further orders.
31. In order to ensure proper compliance with this order and to restore status quo ante as on July 13, 2005, Mr. M. Vijayaraghavan, No. 187, R. K. Mutt Road, Second Floor, Mandaveli, Chennai-28, the learned advocate is appointed as Advocate-Commissioner who shall take an inventory of all the machinery removed and now to be resorted to its original status as on July 13, 2005, and also ensure the restitution in favour of the applicant-plaintiff as ordered herein and submit a report to this court. In order to comply with the directions of this order if the Advocate-Commissioner needs the assistance or protection of police authorities, the same shall be extended to him on being requisitioned by him.
32. The applicant-plaintiff shall pay an initial remuneration of Rs. 25,000 to the Advocate-Commissioner for carrying out the abovesaid exercise apart from a sum of Rs. 5,000 to cover incidental expenses. The Advocate-Commissioner shall file his report into this court within one week from the date of restoration of possession in favour of the applicant-plaintiff. Inasmuch as the respondents are squarely responsible for the passing of this order of restitution, they are bound to reimburse all costs to be incurred by the applicant on this account. Therefore, though the applicant can incur all expenses including the fees payable to the Advocate-Commissioner in the first instance, it is ordered that the respondents should pay all such expenses and reimburse the same to the applicant after a final statement of account is filed in this court. Such reimbursement will be a precondition for the hearing of the Application in O.A. No. 543 of 2005 as well as the W. P. M. ?. No. 19093 of 2005 in W.P. No. 17576 of 2005.
33. O.A. No. 3335 of 2005 in C.S. No. 454 of 2005 and W.P.M.P. Nos. 19093 and 25189 of 2005 in W.P. No. 17576 of 2005 are ordered as above.
34. In view of the abovesaid orders passed in O.A. No. 3335 of 2005 and W. P. M. P. Nos. 19093 and 25189 of 2005, the other applications in O.A. Nos. 692, 2883 and 2884 of 2005 are closed as no specific orders are necessary.
35. The respondents are also directed to pay costs of Rs. 10,000 to the applicant-plaintiff.
36. For the purpose of implementing the order of this court, if the Commissioner faces any impediment such as the locking of the theatre, he is at liberty to break open the lock and execute this order.
