Sri Dokka
Samuel Vs. Dr. Jacob Lazarus Chelly [1997] INSC 292 (14 March 1997)
K.
RAMASWAMY, G.T. NANAVATI
ACT:
HEADNOTE:
O R D
E R Leave granted.
We
have heard learned counsel on both sides.
This
appeal by special leave arises from the judgment of the learned single judge,
made on February 29,1996 in R.S.A. No. 90/1983 by the
Karnataka High Court. The respondents had filled a suit in the trial Court for
declaration that he had purchased two plots bearing Nos. 307 and 308
admeasuring 40'x31' in Hubli town and for recovery of possession on the plea
that the appellant has no manner of right whatsoever to interfere with his
possession. The trial Court dismissed the suit, On appeal, it was decreed.
In the
second appeal, the learned judge confirmed the same.
But in
the Review application, the single judge reheard the matter and reversed the
decree of the appellate court and confirmed that of the trial Court. Thus, this
appeal by special leave.
It is
seen that by an order passed by court on 24th November, 1995, liberty was given to the
appellant, in the event of the High Court was justified in reviewing the
earlier order and reversing the find recorded by the appellate Court ? It is
not in dispute that the sale deed is for a small sum of Rs. 300/- and odd and
that the property sold commands good market value. The questions arises:
whether
the document was a sale deed or is only a document for collateral purpose? The
respondent himself in an earlier suit had pleaded that it was an agreement of
sale, In view of such an admission, the High Court has wrongly reversed the
decree of the appellate court holding the transaction to be a real sale, In the
second appeal, the High Court confirmed, in the first instance, the decree of
the appellate Court. Subsequently, the High Court has reviewed the judgment and
reconsidered the matter holding that relevant precedents were not cited. Since
this court had given liberty to raise the questions of reviewability of the
judgment of the High court, the question arises whether the High Court could
not have embarked upon appreciation of evidence and considered whether there
was an error apparent on the face on record? It was contended before the
learned single Judge that various decisions were not cited; proper
consideration was paid; in fact the sale deed was acted for valid
consideration. The omission to cite an authority of law is not a ground for
reviewing the prier judgment saying that there is an error apparent on the face
of the record, since the counsel has committed an error in not bringing to the
notice of the Court the relevant precedents. In fact, since the respondent had
claimed that it is not a sale deed but was executed for collateral purpose, it
was for the respondent to establish that the sale was for real consideration and
he had a valid sale deed duly executed by the appellant. The High Court wrongly
placed Burden on the appellant and reviewed the order and heard the matter on
merits. The entire approach of the learned single judge is not correct in law.
The
appeal is accordingly allowed. The impugned order of the High Court stands set
aside and decree of the appellate Court, as confirmed by the High Court in the
first instance, is upheld. In other words, the suit stands decreed. No costs.
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