Jain (D) Th. LRS. Vs. Motilal (D) Th.LRS.  INSC 1252 (21 July 2009)
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4584 OF
2009 (Arising out of SLP (Civil) No. 19736 of 2006) Inderchand Jain (D) through
L.Rs. .... Appellant Versus Motilal (D) through L.Rs. .... Respondent
The jurisdiction of a Court and/or the extent thereof to review
its own decision is the question involved in this appeal. It arises out of a
judgment and order dated 13.10.2006 passed by a learned Single Judge of the
High Court of Judicature for Rajasthan, Jaipur Bench, Jaipur in S.B. Civil
Review Petition No.33/2006 in S.B. Civil First Appeal No.36 of 1976 and and
S.B. Civil First Appeal No.36 of 1976.
Before adverting to the aforementioned question, we may notice the
agreement was entered into by and between the parties on or about 15.10.1972
whereby and whereunder Inder Chand Jain-appellant had agreed to sell a `haveli'
to Motilal - respondent for a consideration of Rs.1,15,000/-, out of which a
sum of Rs.20,000/- was paid in advance.
filed a suit for specific performance before the District Judge, Jaipur City,
in which a decree was passed on 11.11.1975. Being dissatisfied, the appellant
filed Civil First Appeal before the High Court which was allowed on 12.03.1987
whereby the judgment and order of the trial court was set aside.
intra court appeal filed by the respondent, a Division Bench of the High Court
by its order dated 26.10.2005 remanded the matter back to the learned Single
Judge for deciding the appeal afresh.
order dated 11.08.2006, a learned Single Judge of the High Court allowed the
appeal once again and set aside the judgment and decree of the trial court.
Both the parties filed review petitions before the learned Single Judge
of the High Court under Order XLVII Rule 1 of the Code of Civil Procedure
seeking review of the judgment dated 11.08.2006. By the impugned judgment and
order the learned Single Judge while allowing both the review petitions
recalled its earlier judgment and order dated 11.08.2006 and directed the
appeal to be listed for rehearing.
Thus, the appellant-defendant is before this Court.
Mr. C.A. Sundaram, learned Senior Counsel appearing on behalf of
the appellant would urge :- i) That the High Court exceeded its jurisdiction in
exercise of its review jurisdiction in so far it, for all intent and purport,
acted as an appellate court.
High Court in its review jurisdiction neither could re- appreciate the evidence
brought on record by the parties nor could exercise its discretionary
jurisdiction under Section 20 of the Specific Relief Act, 1963.
the face of the findings of the Division Bench of the High Court that the
plaintiff-respondent had not been ready and willing to perform his part of the
contract as provisions of Section 20(2)(b) of the Specific Relief Act,
1963 could be invoked only in a case when the High
Court had come to the conclusion that the plaintiff has made out a case of
grant of decree for specific performance and not otherwise.
finding of fact having been arrived at that the purported contention of the
plaintiff that the agreement for sale was modified in terms whereof in place of
Rs.1,15,000/- the plaintiff-respondent was to pay a sum of Rs.80,000/- having 4
been disbelieved, the High Court committed a serious error in passing the
Mr. K.K. Venugopal, learned senior counsel appearing on behalf of
the respondent, on the other hand, would urge that the High Court while passing
the judgment dated 26.10.2005 took into consideration the salient features of
this case as also the subsequent events and, thus, was justified in passing its
possession of the premises in question had already been delivered;
settlement arrived at by and between the parties with regard to the reduction
of the amount of consideration stood admitted inasmuch as according to the
appellant himself in the event the tenants were evicted a sum of Rs. 11000/-
may be deducted from the amount of consideration.
plaintiff- respondent had deposited the entire balance amount on 25.09.1975,
i.e., two months prior to the passing of the decree and, thus, there could not
be any doubt or dispute that the plaintiff- respondent had all along been ready
and willing to perform his part of contract.
Appellant, after passing of the decree by the learned Trial Court despite
having preferred an appeal having himself agreed for execution of the sale deed
must be held to have accepted the judgment and, thus, could not have been
permitted to turn round and contend that the plaintiff was not ready and
willing to perform his part of contract.
Withdrawal of an amount of Rs. 35,000/- in terms of the judgment of the Trial
Court by the appellant without any demur would not in law alter the situation.
registered deed of sale having been executed pursuant to the order of the
Executing Court and the appellant having been put in possession of the premises
in suit having expended a huge amount by way of renovation of the `haveli', the
learned Judge rightly found that it would be inequitable to refuse to pass a
judgment of specific performance of contract.
Section 114 of the Code of Civil Procedure (for short "the
Code") provides for a substantive power of review by a Civil Court and
consequently by the appellate courts. The words "subject as
in Section 114 of the Code means subject to such conditions and limitations as
may be prescribed as appearing in Section 113 thereof and 6 for the said
purpose, the procedural conditions contained in Order 47 of the Code must be
taken into consideration.
Section 114 of the Code although does not prescribe any limitation
on the power of the court but such limitations have been provided for in Order
47 of the Code; Rule 1 whereof reads as under:
The power of a civil court to review its judgment/decision is traceable in
Section 114 CPC. The grounds on which review can be sought are enumerated in
Order 47 Rule 1 CPC, which reads as under:
Application for review of judgment.--(1) Any person considering himself
aggrieved-- (a) by a decree or order from which an appeal is allowed, but from
which no appeal has been preferred, (b) by a decree or order from which no
appeal is allowed, or (c) by a decision on a reference from a Court of Small
Causes, and who, from the discovery of new and important matter or evidence
which, after the exercise of due diligence was not within his knowledge or
could not be produced by him at the time when the decree was passed or order
made, or on account of some mistake or error apparent on the face of the record,
or for any other sufficient reason, desires to obtain a review of the decree
passed or order made against him, may apply for a review of judgment to the
court which passed the decree or made the order."
application for review would lie inter alia when the order suffers from an
error apparent on the face of the record and permitting the same to continue
would lead to failure of justice. In Rajendra Kumar v.
[AIR 2003 SC 2095], this Court held :
limitations on exercise of the power of review are well settled. The first and
foremost requirement of entertaining a review petition is that the order,
review of which is sought, suffers from any error apparent on the face of the
order and permitting the order to stand will lead to failure of justice. In the
absence of any such error, finality attached to the judgment/order cannot be
of review can also be exercised by the court in the event discovery of new and
important matter or evidence takes place which despite exercise of due
diligence was not within the knowledge of the applicant or could not be
produced by him at the time when the order was made. An application for review
would also lie if the order has been passed on account of some mistake.
Furthermore, an application for review shall also lie for any other sufficient
It is beyond any doubt or dispute that the review court does not
sit in appeal over its own order. A re-hearing of the matter is impermissible 8
in law. It constitutes an exception to the general rule that once a judgment is
signed or pronounced, it should not be altered. It is also trite that exercise
of inherent jurisdiction is not invoked for reviewing any order.
not appeal in disguise.
Thomas v. Union of India [AIR 2000 SC 1650], this Court held :
It follows, therefore, that the power of review can be exercised for correction
of a mistake and not to substitute a view. Such powers can be exercised within
the limits of the statute dealing with the exercise of power. The review cannot
be treated an appeal in disguise."
Respondent in his plaint inter alia raised a plea of novation of
contract. Such a plea was advanced on the premise that a substantial amount was
to be expended for eviction of the tenants who were occupying the premises in
said purpose, reference was made to Clause 13 of the agreement dated
15.10.1972. Undoubtedly, defendant - appellant denied and disputed that any
modification in the said agreement had taken place as a result whereof the
balance amount payable was Rs. 80,000/. A bare perusal of Clause 13 of the said
agreement categorically shows that the expenses for vacating the tenant were to
be made through the defendant - 9 appellant only. It was for the defendant -
appellant to accept any payment from the plaintiff - respondent. Clause 13 does
not envisage any expenditure on the part of the plaintiff on the said account.
It may, however, be correct that the defendant - appellant in his deposition
accepted that he had made a representation to the plaintiff that in the event
the tenants are evicted on payment of the sum specified therein, the amount so
paid may be deducted from the amount of consideration.
to him, the amount in question was a sum of Rs. 11,000/-. He, however,
contended that no amount was paid to the tenant.
the learned Trial Judge, both the parties adduced their respective evidences.
The plaintiff - respondent in cross-examination was asked the following
or not you are prepared to purchase the house, even if Sardarmalji and
Inderchandji could not settle the dispute of Rathiji, as has been mentioned by
you in your paper?"
thereto, he stated as under:
the defendant Inderchandji is prepared & ready to set off Rs. 30,000/-
against the cost of the house, then I am prepared to purchase the house."
The readiness and willingness on the part of the plaintiff in view
of his categorical admission, therefore, was a conditional one. It was not
absolute. Probably keeping in view the effect of such conditional offer made by
him, he deposited the entire balance amount of consideration in the court on
Section 16(c) of the Specific Relief Act, 1963 mandates that the discretionary relief of specific
performance of the contract can be granted only in the event the plaintiff not
only makes necessary pleadings but also establishes that he had all along been
ready and willing to perform his part of contract. Such readiness and
willingness on the part of the plaintiff is not confined only to the stage of
filing of the plaint but also at the subsequent stage, viz., at the hearing. It
has been so held in Umabai and Another v. Nilkanth Dhondiba Chavan (Dead) By
LRs. And Another [(2005) 6 SCC 243] in the following terms:
It is now well settled that the conduct of the parties, with a view to arrive
at a finding as to whether the plaintiff-respondents were all along and still
are ready and willing to perform their part of contract as is mandatorily
required under Section 16(c) of the Specific Relief Act
must be determined having regard to the entire attending circumstances. A bare
averment in the plaint or a statement made in the examination-in-chief would
not suffice. The conduct of the plaintiff- respondents must be judged having
regard to the 11 entirety of the pleadings as also the evidences brought on
terms of Forms 47 and 48 appended to Appendix A of the Code of Civil Procedure,
the plaintiff must plead that "he has been and still is ready and willing
specifically to perform the agreement on his part of which the defendant has
had notice" or "the plaintiff is still ready and willing to pay the
purchase money of the said property to the defendant". The offer of the
plaintiff in the instant case is a conditional one and, thus, does not fulfil
the requirements of law."
in Sita Ram & Ors. v. Radhey Shyam, [AIR 2008 SC 143], while referring to
Ardeshir H. Mam v. Flora Sassoon [AIR 1928 PC 208] this Court opined as under :
the Privy Council observed that where the injured party sued at law for a
breach, going to the root of the contract, he thereby elected to treat the
contract as at an end himself and as discharged from the obligations. No
further performance by him was either contemplated or had to be tendered.
In a suit
for specific performance on the other hand, he treated and was required by the
Court to treat the contract as still subsisting. He had in that suit to allege,
and if the fact was traversed, he was required to prove a continuous readiness
and willingness from the date of the contract to the time of the hearing, to
perform the contract on his part"
It is no doubt true that the learned Trial Judge decreed the suit
inter alia opining that in terms of the modified contract, the plaintiff was to
pay 12 a further sum of Rs. 80,000/- only to the defendant. The defendant did
not accept the said finding. He preferred an appeal. Admittedly, he filed three
applications for stay. The learned Single Judge before whom the third stay
application came up for hearing, by an order dated 9.11.1977 recorded as under:
is the 3rd stay application. No new ground exists for grant of stay. Indeed,
the equities are not in favour of the defendant.
defendant was not in a position to deliver the vacant possession of the Haveli
in suit, the plaintiffs were entitled to a decree for specific performance, on
payment of Rs. 80,000/- in the shape of its price. Admittedly, the plaintiffs
deposited Rs. 20,000/- on 15.10.1972 and Rs. 95,000/- on 24.09.1975, i.e., Rs.
1,15,000/- in all, towards the price of the Haveli on the expectation that the
defendant would deliver vacant possession.
contention that the plaintiffs are not entitled to execute the decree because a
sum of Rs. 60,000/- is not in deposit, is wholly unwarranted.
plaintiffs had actually deposited Rs. 1,15,000/, as stated above. The deposit
was tantamount to payment.
2nd condition becomes operative, the plaintiffs withdrew the excess amount of
Rs. 35,000/- as well as the costs amounting to Rs. 7075/-. They were entitled
to their costs and therefore could deduct the same under Order XX rule 6(3) of
the Code of Civil Procedure and, therefore, Rs. 7075/- have to be deducted from
The order sheet of the executing court dated 15.10.1977 shows that a creditor
of the defendant has withdrawn Rs. 6952.37 p.
no non-compliance of the terms of the decree on the part of the plaintiffs and
they are 13 entitled to get the 2 sale-deeds registered in the terms of the
decree and no question of requiring the plaintiffs to deposit the further sum
of Rs. 7000/- arises.
application for stay is, therefore, rejected."
It was in
the aforementioned situation, Mr. Sundaram may be justified in contending that
the appellant had no other option but to agree to the execution of the
learned Single Judge by an order dated 12.03.1987 allowed the appeal and the
judgment of the Trial Court was set aside.
On an intra-court appeal by the respondent, the matter was finally
heard by the Division Bench. As regards, the effect of unconditional withdrawal
of the amount during pendency of the appeal, the Division Bench noticed:
appears that S.B. Civil First Appeal No.36/1976 was filed on April 22, 1976 by
the defendant - respondent and during pendency of the first appeal, the amount
deposited by the plaintiff was withdrawn by the defendant unconditionally and
the Executing Court thereafter registered the sale deed in pursuance of the
decree of the lower court.
at the time of deciding the First Appeal, this fact escaped attention of the
learned Single 14 Judge. In our opinion, it was necessary for the learned
Single Judge to analyse the effect of unconditional withdrawal of money by the
defendant during the pendency of appeal."
Keeping in view the aforementioned finding, the Division Bench
could have remitted the matter for a limited purpose. It, however, did not do
so. It unjustifiably remitted the entire matter. Legality of such an order is,
however, not in question.
The learned Single Judge of the High Court upon consideration of
all materials and evidences available on record allowed the appeal and set
aside the judgment and decree passed by the learned Trial Judge by an order
dated 11.08.2006, stating :
in view of the evidence brought on record it must be concluded that the
plaintiff respondent has not been able to prove they said oral agreement with
respect to the reduction of sale price by Rs. 35,000/-. It has not been
established as to at which place and on what date the alleged oral agreement
between the parties had taken place. Meaning thereby, the plaintiff Motilal, in
my considered view, was not ready and willing to purchase the haveli in
question at any point of time...
the plaintiff accepted the payment after execution of decree by registration of
sale deed 15 through court on 24.02.1978, therefore, withdrawal/ acceptance of
Rs. 45972/- in compliance of executing court's order dated 10.03.1978 cannot be
said to have an adverse effect on the case of the defendant appellant."
The said judgment was accepted as no appeal was preferred
thereagainst. It was only thereafter a review application was filed by both the
Whereas the defendant - appellant filed a review application
confined to the question that he was entitled to the restitution of the
property and mesne profit in respect whereof the learned Single Judge of the
High Court did not pass any specific order, the application for review filed by
the respondent was on the merit of the judgment. The relevant grounds of review
which have been placed before us relate to :
Unconditional withdrawal of some amount by one of the creditors of the
defendant as also the defendant himself;
defendant's application before the Executing Court that he was ready and
willing to get the sale deed executed on receipt of amount in cash and the said
admission allegedly was not brought to the notice of the court;
While holding that there was no agreement to reduce the sale consideration, the
High Court had ignored the fact that it was an admitted case of the parties, as
stipulated in the contract, that the defendants would get the premises vacated
from the tenants within three months.
Appellant had prayed for an alternative relief, viz., that he was ready to get
the decree for specific performance of contract by paying Rs. 1,15,000/-. The
court did not consider the evidence of DWs 1 to 6 in their proper perspective.
court did not consider that the property could not be restored back to the
defendant - appellant and as such the court should have exercised its
The issues raised before the appellate court, viz., whether there
had been a novation of contract or whether the plaintiff was ready and willing
to perform his part of contract, as is required under Section 16(c) of the Specific Relief Act, are essentially questions of fact. The Trial Judge had
determined the said issues which were appealed against. An appeal is a
continuation of the suit. Any decision taken by the appellate court would
relate back unless a contrary intention is shown to the date of institution of
the suit. There cannot be any doubt that the appellate court while exercising
its appellate jurisdiction would be entitled to take into 17 consideration the
subsequent events for the purpose of moulding the relief as envisaged under Order
7, Rule 7 read with Order 41, Rule 33 of the Code of Civil Procedure. The same
shall, however, not mean that the court would proceed to do so in a review
application despite holding that the plaintiff was not entitled to grant of a
decree for specific performance of contract. For the purpose of obtaining a
decree for specific performance of contract, the court must arrive at a
conclusion that the plaintiff not only pleaded but also established his
readiness and willingness to perform his part of contract throughout.
Exercising the discretionary jurisdiction one way or the other having regard to
Section 20(2)(b) would depend thereupon arriving at a finding of such fact.
of interest would be necessary provided a suit is to be decreed and not when
the suit is to be dismissed.
The sequence of events to which we have adverted to heretobefore
clearly go to show that the appellate court were all along aware of the main
issues touching the merit of the matter. They were also aware as to the effect
or otherwise of the withdrawal of the amount by the appellant unconditionally
as also by his creditor. The plaintiff - respondent on the aforementioned
premise was entitled to contend and in fact contended that unconditional
withdrawal of a part of the deposited amount would 18 preclude the appellant
from pursuing the appeal. The question as to whether by reason of such
withdrawal, he had accepted the judgment passed by the learned Trial Judge and,
thus, was estopped and precluded from pursuing his appellate remedy was one of
the points which fell for consideration before the appellate court.
in view the entirety of the facts and circumstances of the case, the appellate
court arrived at two crucial findings:
plaintiff had not been all along ready and willing to deposit the balance sum
of Rs. 95,000/-.
unconditional withdrawal on the part of the defendant was involuntary.
events which had taken place subsequently, viz., registration of the said deed
of sale, purported taking over of possession of the suit premises by the
plaintiff and alleged expenditure incurred by him for renovation of the
building, were within the knowledge of the parties and the court. It was,
therefore, not a discovery of a new fact which despite due diligence the
plaintiff could not bring to the notice of the court.
Order 41, Rule 1 of the Code stipulates that filing of an appeal
would not amount to automatic stay of the execution of the decree. The law
acknowledges that during pendency of the appeal it is possible for the decree
holder to get the decree executed. The execution of the decree 19 during
pendency of the appeal would, thus, be subject to the restitution of the
property in the event the appeal is allowed and the decree is set aside.
only at the time of passing a judgment and decree reversing that of the
appellate court should take into consideration the subsequent events, but, by
no stretch of imagination, can refuse to do so despite arriving at the findings
that the plaintiff would not be entitled to grant of a decree. Discretionary
jurisdiction, it is trite, can be exercised provided there is any room for the
court to so same and not otherwise. The court while exercising its jurisdiction
would not act arbitrarily or beyond the contours of law. The contention of the
plaintiff that he had also prayed for grant of a decree in the alternative,
viz., in the event the court came to the conclusion that there had been no
novation of contract, he was ready and willing to deposit the entire amount. No
conditional offer was permissible in a suit for specific performance of
Contention of Mr. Venugopal that the defendant having accepted
novation of contract but only the quantum of the amount being different, the
court could have asked the plaintiff - respondent to deposit a further sum of
Rs. 24,000/- cannot be accepted for more than one reason. Apart from the fact
that such a contention had never been raised before the appellate court,
keeping in view the finding of fact arrived at that there had in fact been no
novation of contract, such a course of action was not 20 open. In any view of
the matter, the same would amount to re- appreciation of evidence which was
beyond the review jurisdiction of the High Court.
We have noticed hereinbefore, that under what circumstances the
aforementioned amount of Rs. 1,15000/- was deposited by the respondent.
have been advised to do so keeping in view the fact that, according to him, he
was ready and willing to perform his part of contract provided the balance
amount of consideration was reduced to Rs. 80,000/.
The High Court had rightly noticed the review jurisdiction of the
court, which is as under:
law on the subject - exercise of power of review, as propounded by the Apex
Court and various other High Courts may be summarized as hereunder:
Review proceedings are not by way of appeal and have to be strictly confined to
the scope and ambit of Order 47 Rule 1 C.P.C.
Power of review may be exercised when some mistake or error apparent on the
fact of record is found. But error on the face of record must be such an error
which must strike one on mere looking at the record and would not require any
long drawn process of reasoning on the points where there 21 may be conceivable
be two opinions.
Power of review may not be exercised on the ground that the decision was
erroneous on merits.
Power of review can also be exercised for any sufficient reason which is wide
enough to include a misconception of fact or law by a court or even an
application for review may be necessitated by way of invoking the doctrine
`actus curiae neminem gravabit'."
In our opinion, the principles of law enumerated by it, in the
facts of this case, have wrongly been applied.
of Control for Cricket in India & Anr. v. Netaji Cricket Club & Ors.
[(2005) 4 SCC 741], this Court held :
Order 47 Rule 1 of the Code provides for filing an application for review. Such
an application for review would be maintainable not only upon discovery of a
new and important piece of evidence or when there exists an error apparent on
the face of the record but also if the same is necessitated on account of some
mistake or for any other sufficient reason.
a mistake on the part of the court which would include a mistake in the nature
of the undertaking may also call for a review of the order.
application for review would also be maintainable if there exists sufficient
reason therefor. What would constitute sufficient reason 22 would depend on the
facts and circumstances of the case. The words "sufficient reason" in
Order 47 Rule 1 of the Code are wide enough to include a misconception of fact
or law by a court or even an advocate. An application for review may be
necessitated by way of invoking the doctrine "actus curiae neminem
In Rajesh D. Darbar and Ors. v. Narasingrao Krishnaji Kulkarni and Ors.
(2003)7SCC219 , this Court noticed:
The impact of subsequent happenings may now be spelt out. First, its bearing on
the right of action, second, on the nature of the relief and third, on its
importance to create or destroy substantive rights. Where the nature of the
relief, as originally sought, has become obsolete or unserviceable or a new
form of relief will be more efficacious on account of developments subsequent
to the suit or even during the appellate stage, it is but fair that the relief
is moulded, varied or reshaped in the light of updated facts.
courts can take notice of the subsequent events and can mould the relief
is a rider to these well established principles. This can be done only in
exceptional circumstances, some of which have been highlighted above. This
equitable principle cannot, however, stand in the way of the court adjudicating
the rights already vested by a statute. This well settled position need not
detain us, when the second point urged by the appellants is focused. There can
be no quarrel with the proposition as noted by the High Court that a party
cannot be made to suffer on account of an act of the 23 Court. There is a well
recognised maxim of equity, namely, actus curiae neminem gravabit which means
an act of the Court shall prejudice no man. This maxim is founded upon justice
and good sense which serves a safe and certain guide for the administration of
law. The other maxim is, lex non cogit ad impossibilia, i.e. the law does not
compel a man to do that what he cannot possibly perform".
in Jagmohan Singh v. State of Punjab & Ors. [(2007) 7 SCC 38], this Court
is furthermore evident that Order 47 Rule 1 of the Code of Civil Procedure does
not preclude the High Court or a court to take into consideration any subsequent
event. If imparting of justice in a given situation is the goal of the
judiciary, the court may take into consideration (of course on rare occasions)
the subsequent events."
For the reasons aforementioned, the impugned judgment cannot be sustained
which is set aside accordingly. The appeal is allowed.
it would be open to the plaintiff - respondent to file an appropriate
application for recovery of such amount or amounts which he might have expended
towards renovation of the building, which may be considered on its own merits.
The court shall furthermore determine the amount of mesne profit which became
payable to the appellant. It would be open to the court to adjust the amount
payable by the plaintiff to the defendant and vice-versa.
..................................J. [S.B. Sinha]