TaxTMI 
TaxTMI 
2009 (7) TMI 1029
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....ic 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. On an 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. By an 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. 4. 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. 5. Thus, the appellant-defendant is before this Court. 6. Mr. C.A. Sundaram, learned Senior Counsel appearing on behalf of the appellant would u....
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....ntend that the plaintiff was not ready and willing to perform his part of contract. (v) 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. (vi) A 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. 8. 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 aforesaid"; occurring in Section 114 of the Code means subject to such conditions and limitations as may be prescribed as appearing in Section 113 thereof and for the said purpose, the procedural conditions contained in Order 47 of the Code must be taken into consideration. 9. Section 114 of the Code although does not prescribe any limitation on the power of the court but such limitatio....
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....ssible 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. Review is not appeal in disguise. In Lily Thomas v. Union of India [AIR 2000 SC 1650], this Court held : "56. 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." 11. 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 question. For the 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 s....
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....ir 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 entirety of the pleadings as also the evidences brought on records. 31. In 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." Yet again 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....
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....itled 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. The 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 document. The learned Single Judge by an order dated 12.03.1987 allowed the appeal and the judgment of the Trial Court was set aside. 15. 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: "It 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. However, at the time of deciding the First Appeal, this fact escaped attention of the learned Single Judge. In o....
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....he court; (iii) 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. (iv) 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. (v) The 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 discretionary jurisdiction. 20. 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 i....
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....ture 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. 22. 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 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. The court 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....
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....sitated by way of invoking the doctrine `actus curiae neminem gravabit'." 26. In our opinion, the principles of law enumerated by it, in the facts of this case, have wrongly been applied. In Board of Control for Cricket in India & Anr. v. Netaji Cricket Club & Ors. [(2005) 4 SCC 741], this Court held : "89. 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. 90. Thus, 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. An application for review would also be maintainable if there exists sufficient reason therefor. What would constitute sufficient reason 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 fo....