Vs. Ashis Kumar Das & Ors  Insc 150 (3 March 2005)
Hegde & S.B. Sinha
out of S.L.P. (Civil) no.26502 of 2004] CIVIL APPEAL NO. OF 2005 [Arising out
of S.L.P. (Civil) No. 39 of 2005] S.B. SINHA, J::.
these appeals being inter-related were taken up for hearing together and are
being disposed of by this common judgment.
Appellant is the owner of a premise situate at 77/1, Hazra Road, in the town of Kolkata. The father of the Respondent Nos.1
and 2, Manick Chandra Das, (since deceased) was inducted in the said tenancy on
1.4.1959 for a tenure of 15 years. On the expiry of the period of lease by
efflux of time, the Appellant herein filed Title Suit No.105 of 1975 in the
Court of 3rd Munsif, Alipore, for his eviction. The original tenant died during
the pendency of the suit, whereupon the Respondent Nos. 1 and 2 and their
mother were substituted in his place. The said suit on transfer was renumbered
as Title Suit No.412 of 1977. During pendency of the said suit, the parties
entered into settlement pursuant whereto three purported agreements for sale
were executed whereby the Appellant agreed to sell the suit premises to the
Respondent Nos.1 & 2 and their mother. The Appellant herein also filed an
application for grant of income tax clearance certificate in terms of Section
280-A of the Income Tax Act, 1961. Allegedly, on the ground that the Respondent
Nos.1 and 2 and their mother failed to send the draft deeds of sale to the
Appellant within the stipulated time despite notices served on them in that
behalf, the said agreements were cancelled by the Appellant on 1.6.1990. The
mother of Respondent Nos.1 and 2 died.
about 31.10.1990, the Respondent Nos. 1 and 2 filed a suit before the 9th
Assistant District Judge, Alipore, against the Appellant for specific
performance of the aforementioned three agreements, which was marked as Title
Suit No.49 of 1990. In the said suit, the Respondent Nos.1 and 2 herein filed
an application for injunction restraining the Appellant herein from alienating
the suit premises. The Appellant filed her written objection specifying the
grounds of cancellation thereof. No reply thereto was filed by the Respondent Nos
1 and 2. They filed and application in the court of 1st Munsif in the said
Title Suit No.412 of 1977 for marking the Appellant's aforementioned written
objection as exhibit to prove cancellation of agreements so as to enable them
to contend that the suit premises had vested in the State of West Bengal in
terms of the provisions of the Calcutta Thika Tenancy (Acquisition &
Regulation) Act, 1981.
to the Appellant herein such a stand was taken by the Respondents as existence
of the said agreements negated their said defence.
said written objection was marked as Ex.-R in the said suit.
not in dispute that the said suit was decreed and the matter ultimately came up
before this Court in Civil Appeal No.2249 of 1999. By an order dated
18.10.2000, this Court while dismissing the application for grant of special
leave recorded an undertaking given on behalf of the Appellant herein not to
execute the decree passed in Title Suit No.412 of 1977 till the decision of
Title Suit No.49 of 1990. Meanwhile, the Respondent Nos.3 and 4 herein, who are
wives of Respondent Nos. 1 and 2 respectively, were permitted to be impleaded
as parties in the suit on the premise that they were nominees in respect of
half of their share in the agreement.
about 18.11.2000, an application was filed by the Appellant herein before the
9th Senior Civil Judge, Alipore, purported to be in terms of Order XII, Rule 6
of the Code of Civil Procedure (for short, CPC) for dismissing the said suit
for specific performance of contract on the premise that by adopting the contention
of the Appellant herein that the said agreements for sale stood cancelled, they
have admitted the truth of all her assertions including the one that such
cancellations of agreements were valid. The said suit for specific performance
of contract was dismissed by the 9th Senior Civil Judge, Alipore, in terms of
Order XII Rule 6 of CPC purported to be on admission on the part of the
Respondent Nos.1 and 2.
aggrieved by and dissatisfied therewith, the Respondent Nos.1 and 2 filed an
application for review of the said judgment and decree and by an order dated
15.7.2002, the learned 9th Senior Civil Judge allowed the said review petition
which was marked as Misc. Case No. 1 of 2002, in part, stating :
I arrive at the conclusion that there has been an error or commission while
passing the impugned order No.179 dated 20.12.2001 of T.S. 49/90 by omitting to
spell out as to whether the earnest money should be refunded or forfeited. This
is an error on the face of the record, which can be rectified by passing
necessary order in this regard after hearing both sides. So review lies.
I hold that the application under Order 47, Rule 1 of the C.P.C. is liable to
fee is paid is correct.
it is Ordered That Misc. Case No. 1/02 is allowed on contest without costs.
Necessary order will be passed in T.S. 49/90 regarding re-opening of Order
No.179 dated 20.12.2001 of that suit in the light of this judgment/order."
The Appellant herein preferred an appeal thereagainst before the High Court of
Judicature at Calcutta which was marked as First
Miscellaneous Appeal No.2817 of 2002. The Respondents also filed an appeal
being First Appeal No.124 of 2003 before the High Court allegedly suppressing
the fact that the decree dismissing the Title Suit No.49 of 1990 had been
partly set aside on the basis of the review application filed by the
Respondents also filed cross objections in the said First Miscellaneous Appeal
No.2817 of 2002. Admittedly, all the three matters were directed to be heard
analogously. By reason of an order dated 31.3.2004, the High Court allowed the
First Miscellaneous Appeal No.2817 of 2002 filed by the Appellant herein and
dismissed the Respondents' cross objection as not pressed. However, by the
impugned judgment dated 22.9.2004, the First Appeal No.124 of 2002 filed by the
Respondents herein was allowed.
meanwhile, the Appellant herein had filed an Execution Petition for executing
the decree passed in the said Title Suit No.412 of 1977. The Respondent Nos. 1
and 2 applied for stay of execution thereof on the ground that their suit for
specific performance of contract had been restored as the review application
filed by them was in the meanwhile allowed in part. In view of the fact that
the undertaking was given by the Appellant herein, the Executing Court gave liberty to the parties to
approach this Court for obtaining a clarification as to whether the Appellant's
undertaking subsisted after dismissal of Title Suit No.49 of 1990. On such an
application having been made, this Court in Civil Appeal No.9131 of 2003 by an
order dated 18.11.2003 (since reported in (2004) 1 SCC 483) allowed the same, observing
undertaking of this nature furthermore must be construed in favour of the
person giving such undertaking. It should not be stretched too far. A party
giving an undertaking is bound thereby but by reason thereof, the same cannot
be given a meaning whereby the scope and extent thereof is enlarged.
the intention of the parties been that 'decision in the suit' would mean a
'final decision' therein, which may include final determination of the dispute upto
this Court, it could have been stated so specifically. In our opinion, in such
an event, a strained meaning will have to be put which was not the intention of
the appellant. If that was the intention of the appellant, the question of this
Court's making observations to facilitate early disposal of the suit would lose
Title Suit is pending decision only for a limited purpose, namely, for refund
of the earnest money.
substantive prayer of the respondents for review of the judgment and decree
passed by the trial court, therefore, has not been accepted. The court has not
granted a decree for specific performance of the contract.
question of eviction of the respondents in execution of the decree passed in
Title Suit No 412 of 1977 had only a direct relationship with the right of the
respondents to continue to possess the tenanted premises in furtherance of
their plea of part performance of the terms and conditions of the agreement for
sale. Such a right claimed by the respondents herein to continue to possess the
same on the basis of her independent right in terms of Section 53-A of the
Transfer of Property Act had been negatived by the court. The respondents
cannot resist their eviction pursuant to or in furtherance of the decree for
eviction passed against them in execution proceedings thereof."
Nos.3 and 4, it may be noticed at this juncture, had set up a case a fresh
agreement for sale by and between the parties herein after the death of mother
of the plaintiffs (Respondent Nos.1 and 2), Smt. Gouribala Das, on 23.9.1990 in
the following terms :
thereafter the respondent No.1 and 2 filed an application under Order VI Rule
17 read with Section 151 of the CPC for amendment of the plaint in their suit
for specific performance/injunction i.e. Title Suit No.49 of 1990 on 2.1.1990.
By the said application for amendment, respondent No.1 and 2 herein, the
applicants proposed to include the names of their wives as co- plaintiffs;
because in the meantime, the mother of the plaintiff (respondent No.1 and 2) Smt.
Gouribala Das died on 23.9.1990 and eventually thereafter whereupon the
petitioner herein upon fresh negotiation and after alleged cancellation of the
earlier agreements for sale, once again agreed to sell the entire disputed suit
premises in favour of all the respondents herein, having 1/4th share each, and
accordingly four number of draft deeds of sale were prepared, which were handed
over to the petitioner and her son, Mr. Santanu Mukherjee, Advocate Calcutta
High Court for approval and necessary submission before the Income Tax Authorities
for obtaining prior clearance as it was required at the relevant time under the
provisions for Income Tax Act" Despite the same Respondent Nos. 3 and 4
filed application under Order XXI Rules 95, 97 to 101 read with Section 47 of
the Code of Civil Procedure on the premise that they were not bound by the
decree passed against Respondent Nos. 1 and 2 and prayed for stay of the
execution, but the Executing Court did not grant any interim stay. The said
Misc. Case No.52 of 2003 was also dismissed by an order dated 25.8.2004.
Although the Executing
Court allowed the
Appellant's application for issuance of a writ for delivery of possession; but
the same was not actually issued. As the Appellant herein filed an application
marked as CO No.3229 of 2004 before the Calcutta High Court for direction upon
the Respondents herein for issuance of such a writ but by reason of the
impugned order dated 14..10.2004, the said application was dismissed.
Appellant is, thus, before us.
Mukherjee, learned counsel appearing on behalf of the Appellant, in assailing
the judgment and order dated 14.10.2004 in Civil Appeal No.39 of 2005, would
submit that the High Court committed a serious error in entertaining the
Respondents' First Appeal inasmuch as at the time of filing thereof, the
original decree stood modified in terms of the order passed in the review
petition. Reliance, in this connection, has been placed on Gour Krishna Sarkar
and Another vs. Nilmadhab Saha and Others [(1922) XXXVI Cal.L.J.484). The
learned counsel would contend that the High Court also erred in entertaining
the said appeal after passing of the said order dated 15.7.2002 on the premise
that the Respondents could appeal in anticipation. Reliance, in this behalf,
has been placed on Garikapatti Veeraya vs. N. Subbaiah Choudhury [(1957) SCR
488]. Mr. Mukherjee would urge that as rights had accrued to the Appellant in
view of the dismissal of the review petition, the High Court could not have
allowed the Respondents to withdraw the review application; once the appeal was
filed by the Appellant against the order dated 15.7.2002 setting aside the
decree passed in the suit for specific performance of contract in part. It was
submitted that the High Court even could not have permitted the Respondents to
withdraw their review application in view of the fact that the suit was
restored for the limited purpose of considering as to whether the earnest money
paid by them should be refunded or forfeited. Reliance, in this connection, has
been placed on K.S. Bhoopathy and Others vs. Kokila and Others ((2000) 3 SCR
1168]. In any event, as the Respondents have filed a cross objection in the
said appeal filed by the Appellant herein, the High Court erred in reversing
the Trial Court's decree upon its purported revival on the Respondents'
withdrawing their review application although they did not prefer any appeal
from it thereafter. Reliance on the said proposition has been placed on Sushil
Kumar Sen vs. State of Bihar [(1975) 3 SCR 942].
learned counsel would contend that filing of an application for grant of income
tax clearance certificate would not give rise to a new agreement and, thus, the
High Court committed a manifest error in holding that the Appellant is bound
thereby. The learned counsel, in this connection, relied upon Srimathi Indira
vs. Income Tax Officer [150 I.T.R. 351 and Immudipattam v. Periya, [28 I.A.
submitted that the judgment and order dated 20.12.2001 passed by the learned
Trial Court dismissing the Respondents' suit for specific performance of
contract was correct as the Respondents herein adopted her contention in the
written objection filed in the suit that the agreements stood validly
cancelled. Such an admission according to Mr. Mukherjee, must be read as a
whole and having regard to the fact that such admission on the part of the
Respondent made by adoption in one suit without any reservation was admissible
in evidence in the other suit.
G.L. Sanghi, the learned senior counsel appearing on behalf of the Respondents,
on the other hand, would contend that the learned Trial Court having dismissed
the suit for specific performance of contract, an appeal thereagainst was
maintainable in terms of Order 96 of CPC. The learned counsel submitted that despite
the order dated 15.7.2002 granting a limited review as the suit for specific
performance of contract stood dismissed, no objection as regard the
maintainability of the appeal could be raised by the Appellant. Mr. Sanghi
would urge that in any event the appeal became maintainable after the review
petitioner was permitted to be withdrawn.
learned counsel argued that in view of the fact that the judgment and order
passed by the learned trial judge purported to be in terms of Rule XII Rule 6
of CPC being per se bad in law, no technicality should be allowed to come in
the way of the Respondents' right to pursue the suit for specific performance
of contract as otherwise the same would cause manifest injustice to them. The
learned counsel would further urge that keeping in view the fact that this
Court in its judgment and order dated 18.11.2003 in Rekha Mukherjee (supra) has
clearly held that the undertaking was operative till the decision of the suit,
in view of the judgment and order dated 22.9.2004 passed by the High Court in
First Appeal No. 124 of 2003, the suit for specific performance of contract
being Title Suit No. 49 of 1990 having been revived, the undertaking would also
primal question which falls for our consideration in these appeals is as to
whether the High Court was justified in entertaining the First Appeal filed by
the Respondents herein against the original judgment and decree passed in Title
Suit No. 49 of 1990 for specific performance of contract.
suit filed by the Respondents for grant of specific performance of contract was
dismissed. The said decree although was appealable but in view of the order
dated 15.7.2002, the said decree in its entirety ceased to operate. Order XLVII
Rule 1 CPC postulates filing of an application by a person considering himself
aggrieved, by a decree or order from which an appeal is allowed but from which
no appeal has been preferred, to file an application if he desires to obtain a
review from a decree passed against him.
appeal during the pendency of the review petition was, therefore, not
maintainable. In terms of Order XLVII Rule 4, the Court may either reject or
grant an application for review. In case a review is rejected, the order would
not be appealable whereas an order granting an application may be objected at
once by an appeal from the order granting the application or in an appeal from
the decree or order finally passed or made in the suit. Rule 8 of Order XLVII
of CPC postulates that when an application for review is granted, a note
thereof shall be made in the register and the court may at once re-hear the
case or make such order in regard to the re-hearing as it thinks fit.
And Others [(2001) 7 SCC 573] whereupon reliance has been placed by the
Respondents, this Court while interpreting the provisions of Article 136 of the
Limitation Act observed:
Be it noted that the legislature cannot be subservient to any personal whim or
caprice. In any event, furnishing of engrossed stamp paper for the drawing up
of the decree cannot but be ascribed to be a ministerial act, which cannot
possibly put under suspension a legislative mandate. Since no conditions are
attached to the decree and the same has been passed declaring the shares of the
parties finally, the Court is not required to deal with the matter any further
- what has to be done - has been done.
test thus should be - has the Court left out something for being adjudicated at
a later point of time or is the decree contingent upon the happening of an
event - i.e. to say the Court by its own order postpones the enforceability of
the order - in the event of there being no postponement by a specific order of
the Court, there being a suspension of the decree being unenforceable would not
arise. As a matter of fact, the very definition of decree in Section 2(2) of
the Civil Procedure Code lends credence to the observations as above since the
term is meant to be "conclusive determination of the rights of the
parties"." held that in order that a decision should become a decree
there must be an adjudication in a suit wherein the rights of the parties as
regard all or any of the matters in controversy in the suit must have been
determined and such determination must be conclusive in nature.
said decisions are not applicable in the instant case.
bare perusal of the order dated 15.7.2002 passed by the learned trial judge in
Misc. Case No.1 of 2002, it would be evident that he had arrived at a
conclusion that there had been an error or omission had crept in the judgment
dated 20.12.2001 as he had omitted to spell out as to whether the earnest money
should be refunded or forfeited. The learned Judge found that there was an
error on the face of record which could be rectified by passing the necessary
order in that regard after hearing both the sides. He, therefore, while
upholding that the review petition was maintainable allowed the said
application under Order XLVII Rule 1 CPC.
thereafter passed an order restoring the Title Suit No.49 of 1990 to its
original file and number by order dated 15.7.2002.
view of the aforementioned order, the original decree dated 20.12,2001 did not
appeal preferred against the said order dated 15.7.2002 by the Appellant herein
was maintainable in terms of Order 47 Rule 7 CPC.
no cross objection was maintainable at the instance of the Respondents.
Respondents before the High Court did not file any application for withdrawing
the review petition. Had such an application been filed, the High Court would
have applied its mind as regard existence of the grounds therefor. Such
application of mind on the part of the High Curt was imperative as in the
meantime a third party interest was created.
K.S. Bhoopathy (supra), this Court held:
provision in Order XXIII Rule 1 CPC is an exception to the common law principle
on principle an application by a plaintiff under sub-rule (3) cannot be treated
on par with an application by him in exercise of the absolute liberty given to
him under sub-rule 1. In the former it is actually a prayer for concession from
the court after satisfying the court regarding existences of the circumstances
justifying the grant of such concession. No doubt, the grant of leave envisaged
in sub-rule (3) of Rule 1 is at the discretion of the court but such discretion
is to be exercised by the court with caution and circumspection. The
legislative policy in the matter of exercise of discretion is clear from the provisions
of sub-rule (3) in which two alternatives are provided;
the court is satisfied that a suit must fail by reason of some formal defect,
and the other where the court is satisfied that there are sufficient grounds
for allowing the plaintiff to institute a fresh suit for the subject-matter of
a suit or part of a claim. Clause (b) of sub-rule (3) contains the mandate to
the court that it must be satisfied about the sufficiency of the grounds for
allowing the plaintiff to institute a fresh suit for the same claim or part of
the claim on the same cause of action. The court is to discharge the duty
mandated under the provision of the Code on taking into consideration all
relevant aspects of the matter including the desirability of permitting the party
to start a fresh round of litigation on the same cause of action. This becomes
all the more important in a case where the application under Order XXIII Rule 1
is filed by the plaintiff at the stage of appeal. Grant of leave in such a case
would result in the unsuccessful plaintiff to avoid the decree or decrees
against him and seek a fresh adjudication of the controversy on a clean slate.
It may also result in the contesting defendant losing the advantage of
adjudication of the dispute by the court or courts below. Grant of permission
for withdrawal of a suit with leave to file a fresh suit may also result in
annulment of a right vested in the defendant or even a third party. The
appellate/second appellate court should apply its mind to the case with a view
to ensure strict compliance with the conditions prescribed in Order XXIII Rule
1(3) CPC for exercise of the discretionary power in permitting the suit with
leave to file a fresh suit on the same cause of action.
another reason in support of this view is that withdrawal of a suit at the
appellate/second appellate stage results in wastage of public time of courts
which is of considerable importance in the present time in view of large
accumulation of cases in lower courts and inordinate delay in disposal of the
cases." Before the High Court, the cross objection filed by the
Respondents was not pressed. The appeal preferred by the Appellant herein was
was, therefore, stricto sensu not a case where a prayer was made for
withdrawing the application for review so as to render the decree wide open to
challenge in an appeal under Section 96 CPC. A Respondent may concede that the
appeal filed by the Appellant may be allowed or his cross- objections may be
dismissed but if he intends to withdraw his suit or review application and that
too at the appellate stage, he must make out proper grounds therfor so as to
enable the court to apply its own mind thereupon.
23 Rule 1 CPC confers a discretionary jurisdiction on the court.
Order 23 Rule 1 ipso facto is not applicable to a review petition, the
principles analogous thereto would be, in terms whereof an order directing
withdrawal of such a suit or abandonment of part of claim may be allowed only
when the court is satisfied that one or the other conditions specified in
sub-rule (3) of Rule 1 are satisfied. In terms of the sub-rule (4) thereof, the
plaintiff shall be liable for such cost as the court may award and shall be
precluded from instituting any fresh suit in respect of such subject matter or
such part of the claim.
an application in the peculiar facts and circumstances of the case even might
not have been entertained by the High Court.
Kumar Sen (supra), Mathew J considered the effect of allowing an application for
review of a decree holding that the same would amount to vacating the decree
It is well settled that the effect of allowing an application for review of a
decree is to vacate the decree passed. The decree that is subsequently passed
on review, whether it modifies, reverses or confirms the decree originally
passed, is a new decree superseding the original one (see Nibaran Chandra Sikdar
v. Abdul Hakim (AIR 1928 Cal 418), Kanhaiya Lal v. Baldeo Prasad (ILR (1906) 28
All 240), Brijbasi Lal v. Salig Ram (ILR (1912) 34 All 282) and Pyari Mohan Kundu
v. Kalu Khan (ILR (1917) 44 Cal 1011 : 41 IC 497).
respondent did not file any appeal from the decree dated August 18, 1961
awarding compensation for the land acquired at the rate of Rs. 200 per katha.
On the other hand, it sought for a review of that decree and succeeded in
getting the decree vacated. When it filed Appeal No. 81 of 1962, before the
High Court, it could not have filed an appeal against the decree dated August
18, 1961 passed by the Additional District Judge as at that time that decree
had already been superseded by the decree dated September 26, 1961 passed after
review, So the appeal filed by the respondent before the High Court could only
be an appeal against the decree passed after review. When the High Court came
to the conclusion that the Additional District Judge went wrong in allowing the
review, it should have allowed the cross appeal. Since no appeal was preferred
by the respondent against the decree passed on August 18, 1961, awarding
compensation for the land at the rate of Rs. 200 per katha, that decree became
final. The respondent made no attempt to file an appeal against that decree
when the High Court found that the review was wrongly allowed on the basis that
the decree revived and came into life again." Our attention has been drawn
to the following regretful concurring opinion of Krishna Iyer, J. by Mr. Sanghi
processual law so dominates in certain systems as to overpower substantive
rights and substantial justice. The humanist rule that procedure should be the
handmaid, not the mistress, of legal justice compels consideration of vesting a
residuary power in judges to act ex debito justiciae where the tragic sequel
otherwise would be wholly inequitable. In the present case, almost every step a
reasonable litigant could take was taken by the State to challenge the
extraordinary increase in the rate of compensation awarded by the civil court.
And, by hindsight, one finds that the very success in the review application
and at the appellate stage has proved a disaster to the party May be,
Government might have successfully attacked the increase awarded in appeal,
producing the additional evidence there. But maybes have no place in the
merciless consequence of vital procedural flaws" but this Court is bound
by the ratio decidendi of a decision and not mere observations.
interesting to note that although the learned judge hoped that the Parliament
would consider the wisdom of making the judge, the ultimate guardian of justice
by a comprehensive, though guardedly worded, provisions where the hindrance to
rightful relief relates to infirmities, even serious sounding in procedural law
but the Parliament has failed to respond thereto.
doctrine of eclipse has no application in a case of this nature. An appeal
preferred in terms of Section 96 CPC must conform to the requirements contained
in Order 41 thereof. An appeal at the time of its filing would either be
maintainable or would not be. The High Court, with respect, was not correct in
holding that such an appeal could be filed in anticipation. If such a procedure
is contemplated in the law; the Respondents herein might not have filed the
substantive appeal or would have prayed for withdrawal of the review
application before the trial court itself. Having filed a review application on
legal advice and having succeeded therein in part, it was not open to it to
prefer an appeal against the entire decree dated 20.12.2001 whereby the suit in
its entirety was dismissed. The Respondents could have only preferred appeal
only from that part of the decree in respect whereof review was not granted. In
a suit for specific performance of contract, a prayer in the alternative is
ordinarily made to the effect that in the event the court declines to grant a
decree for specific performance of contract, it may direct refund of the
earnest money with interest.
right of review is a statutory right. Such right can be invoked if the
conditions therefor are fulfilled. So is a right of appeal. A right of review
and right to appeal stand on different footings although some grounds may be
overlapping. If a review is granted, the decree stands modified but such
modification of a decree is not an ancillary or a supplemental proceeding so as
to be revived upon setting aside the decree granting review.
Veeraya (supra), this Court held :
the question on principle, an appeal is a proceeding by which the correctness
of the decision of an inferior court is challenged before a superior court.
right of appeal therefore can arise by its very nature only when a decision by
which a litigant is aggrieved is given, and it sounds praradoxical to say that
it arises even before judgment in the case is pronounced" In Gour Krishna Sarkar
(supra), Asutosh Mookerjee, J. speaking for a Division Bench opined that the
Court is competent to determine whether when a review is granted, the case
should be re-opened in part or in its entirety, and that the view cannot be supported
on principle that whenever an application for review is granted, the entire
case must of necessity be reopened and re-considered. It was observed that when
a review is made, the original decree ceases to exist as a result of the
decision of the judge to grant the application for review.
are, therefore, of the opinion that the High Curt was not correct in holding
that the First Appeal filed by the Respondents was maintainable.
order may cause injustice to the Respondents but it is their own creation. This
Court despite sympathy, as was in the case of Sushil Kumar Jain (supra) cannot
hold in their favour ignoring the binding precedents.
Respondents herein cannot take advantage of their own mistake.
had furthermore been taking inconsistent and contradictory stands.
had claimed possession of the suit premises as a tenant in furtherance of a
part performance of contract in terms of Section 53-A of the Transfer of
Property Act and also the title having vested in the State of West Bengal in
terms of the Calcutta Thika Tenancy (Acquisition & Regulation) Act, 1981.
the views we have taken, it is not necessary for us to go into the larger
question as to whether the suit itself could have been dismissed in terms of
Order 12, Rule 6 of the CPC or not.
view of the aforementioned findings, the decree passed in Title Suit No.49 of
1990 having regard to our decision in Civil Appeal No.9131 of 2003 reported in
(2004) 1 SCC 483, the decree has become enforceable.
of Mr. Sanghi to the effect that the undertaking given by the Respondents has
revived is stated to be rejected. The undertaking given by the Appellant is
analogous to an interlocutory injunction restraining her from executing the
decree till the Respondents' suit for specific performance was decided by the
trial court as this Court held that the said undertaking cannot be revived
after the party giving it has been released therefrom [See Cutler vs. Wandsworth
Stadium Ltd. [(1945) 1 All E.R. 103]
the reasons aforementioned, the impugned judgments cannot be sustained which
are set aside accordingly. The appeals are allowed.
in the facts and circumstance of the case, there shall be no order as to costs.