IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. CIVIL FIRST APPEAL NO.152/2013
Smt. Saroj & Ors.
Prabhu Narain Mathur & Anr.
Date of Judgment :: 07th February, 2014
HON'BLE MR. JUSTICE ARUN BHANSALI
Mr. H.R. Soni, for the appellants.
Mr. M.D. Boob )
Mr. Mahesh Joshi ), for the respondents.
BY THE COURT:
This appeal is directed against judgment and decree dated
22.01.2013 passed by Additional District Judge No.1, Jodhpur
Metropolitan, Jodhpur, whereby, the suit filed by the plaintiffs for
partition and permanent injunction has been dismissed and
order dated 22.02.2013 passed by said Court, whereby, the
judgment dated 22.01.2013 was reviewed and the counter claim
filed by the defendant No.1 for possession, which was originally
dismissed, has been decreed.
The facts in brief may be noticed thus: the appellants-
plaintiffs filed a suit, inter alia, with the averments that they are
legal representatives of late Kailash Narayan Mathur (KNM) and
defendant No.1 Prabhu Narayan Mathur (PNM) is younger
brother of late KNM; the families of KNM and PNM were joint and
both the families were living together; as PNM had no issue, he
alongwith his wife were living with the family of KNM as
members of KNM's family; KNM expired in the year 2001; it was 2
then claimed that late KNM and PNM purchased plot No. 60,
Sector 4/F from the Urban Improvement Trust, Jodhpur ('the
UIT, Jodhpur') by jointly paying the consideration; on account of
cordial relations between the parties, the licence was got issued
in the name of PNM so that loan can be obtained from the office
of PNM in his name; for the same reason, the lease deed was
also issued in the name of PNM; both the brothers raised
construction on the plot, which amount was spent by both the
brothers; earlier PNM used to live in the suit house only but was
now staying at another place for last two years; the suit
property was plaintiffs' ancestral property and was joint
undivided property of the joint Hindu Family of plaintiffs and
PNM, which has not been partitioned by metes and bounds; the
original title deeds of the suit property were in the power and
possession of PNM; plaintiffs were in possession of the ground
floor and were residing therein and the first floor is in PNM's
possession and has been locked; it was, therefore, claimed in
the plaint that only because title deeds stand in the name of
PNM, he cannot claim sole ownership and both the plaintiffs and
PNM have equal share; on account of the fact that PNM's name
was indicated in the title deeds and the prices of the properties
have gone up, PNM's intentions have changed and he wanted to
sell the suit property, regarding which, he has not right; he has
got the electricity connection at the suit premises disconnected
and threatened to dispossess them from the suit property;
ultimately it was prayed that the suit property be partitioned by
metes and bounds and separate possession be given; it be
declared that the suit property was joint undivided property of 3
the Hindu undivided family belonging to plaintiffs and PNM;
permanent injunction was sought against defendant No.1 from
dispossessing the plaintiffs from the suit property; transferring
the same or encumber the same and to maintain status quo;
injunction was sought against respondent No.2 Jodhpur Vidhyut
Vitaran Nigam Limited, Jodhpur ('JVVNL') for immediate
restoration of electricity connection without interference by PNM.
PNM filed written statement and counter claim alleging
therein that that the plaint was defective, proper court fees has
not been paid; the plaintiffs are jointly residing in the property
belonging to the defendant as licencees; no Hindu undivided
family existed; the suit plot was purchased by PNM from UIT,
Jodhpur in auction in the year 1973 and in the year 1974 loan of
Rs.24,500/- was obtained from RSEB (PNM's employer) and
construction was raised on the ground floor in the year 1974-75
and some amount was spent from salary and Provident Fund; it
was indicated that one more brother Suresh Narayan Mathur is
also there; KNM and plaintiff Smt. Saroj had purchased plots
from UIT, Jodhpur at Saraswati Nagar and Subhash Nagar,
which were sold on account of marriages of four daughters and
excessive expenses of the family; KNM and his family, on
account of their weak financial condition was permitted to live in
his (PNM) house; on account of the fact that the defendant does
not have any issue, the plaintiffs want to grab the property; the
plaintiffs were mere licencees; there were criminal proceedings
between plaintiffs and PNM and his wife on account of
misbehaviour by plaintiffs; the electricity connection was
disconnected on account of the plaintiffs non-paying the 4
In the counter claim it was stated that the suit plot was
purchased by PNM from his own income and construction was
raised after obtaining loan from the department in the year
1974-75 and during 1998-99; the plaintiffs were in possession of
one room and store on the ground floor of the house, which has
three rooms; two rooms, kitchen, toilet and bathroom etc. are
jointly being used and the first and second floor are in PNM's
possession; the suit property exclusively belongs to him and all
the title documents are in his name; respecting the elder
brother, he (KNM) was permitted to live in the house alongwith
his family; when the plaintiffs started misbehaving, they were
told to shift elsewhere, which resulted in their change of attitude
and they started claiming the property belonging to joint Hindu
family and has filed the suit, whereas, plaintiffs were only
licencees; their licence has been cancelled by registered notice
dated 23.05.2011; it was claimed that defendant (PNM) was
entitled to exclusive possession by way of mandatory injunction
as he is owner of the property and plaintiff's (KNM) family was
licencee; his use of the premises be not disturbed by the KNM's
family. It was prayed in the counter claim that the joint
possession of the ground floor be put to an end and possession
of the ground floor be handed over to defendant (PNM).
A reply to the said counter claim was filed by the plaintiffs;
it was denied that the suit property was purchased or the same
belonged to PNM alone, but the same was claimed as undivided
property of joint family; the property was jointly purchased by
KNM and PNM; the fact of taking loan and raising construction by 5
PNM was denied and it was claimed that the construction was
raised from joint funds; the facts about possession etc. were
also denied; it was denied that possession of plaintiffs was that
The plaintiffs also filed replication and it was denied that
appropriate court fees has not been paid; alleging the
possession as licencees was also denied; it was claimed that wife
of KNM had sold her jewellery and had handed over the amount
to her husband, from which, KNM purchased the suit property
and raised construction; from before the construction of the
house, the families of KNM and PNM were living together
alongwith their sisters; PNM was posted outside Jodhpur and
whenever he used to visit Jodhpur he would stay with them; the
documents filed with the written statement do not prove the
possession of the defendant.
The trial court framed ten issues, which read as under:
"1. आय व द-पत क पद सखय त न म वर त पड स व म प क ज यद द व द ग एव पततव द सखय एक क सयक
ममल#कयत क एव सयक पर%व % क अववभ लजत ज यद द ह*?
2. आय व द-पत क पद सखय त न म वर त ज यद द व ल भख, ण/ सव. क1ल शन % य एव पततव द सखय एक न
सयक रप स % मश खर क%क ख% द ककय थ एव तनम
भ सयक कम ई क % मश स ककय थ ?
3. आय व द ग व दगसत ज यद द क9 बटव ड क%व न क एव तनषध ज ज % क%व न क अधधक % ह*?
4. आय पततव द सखय एक न सव. क1ल शन % य व उनक पर%व % क सदसयA क9 असथ ई त % प% तल मलजल क द9 कम%A म श मल त %हव स क अनमतत द थ एव
व द ग क उपय9ग उपभ9ग ल ईसनस क ह1 सतयत स ह*?
5. आय व द ग न घ9ष तमक ड/क ब बत पय प नय य- श#क अद नह ककय ह*?
6. आय व द ग न पततव द सखय एक क पक म नग% सध % नय स ज9धप% द % ज % अनज पत एव ल ज / / क9 %द क%व न ब बत क9ई सह यत व द-पत म नह र ह ह1 इसमलए व द ग क व द कन,नन मनटनबल नह ह*?
(आदश ददन क 7/04/2012 स यह ववव दक delet ककय गय )
7. आय व द ग क ह1 मसयत म त ल ईसनस क ह9न स एव ल ईसनस जर%य %लजसट/ न9दटस %द क%न स पततव द
सखय एक व द ग स तल मलजल क ववव ददत ढ रA क
कबज प प क%न क अधधक % ह*?
8. आय व द ग पततव द सखय द9 क ववरद इस पक % क तनषध ज क ड/क प न क अधधक % ह* कक पततव द
सखय द9 व द सखय द9 क न म स तनयम नस % ववदत
सबध ज % क%?
10. आय व द द % कबज प तप ज यद द हत क यम क गई म मलयत एव उस प% अद ककय गय नय य-श#क अपय प
On behalf of plaintiffs, statements of PW-1 Smt. Saroj,
PW-2 Manish Mathur, PW-3 Ravi, PW-4 Laxmi Narayan Trivedi,
PW-5 Om Prakash Sharma, PW-6 Sumer Chand Mathur, PW-7
Rajrani alias Raj Kumari Mathur and PW-8 Kishan Lal Choudhary
were recorded and twelve documents were exhibited.
On behalf of defendant (PNM) he himself was examined as
DW-1 and DW-2 Suresh Narayan, his brother was examined and
eighty one documents were exhibited.
It would be appropriate to notice at this stage that before
the plaintiffs were cross examined on the affidavits filed by
them, an application under Order VI, Rule 17 CPC was filed by
the plaintiffs, inter alia, seeking to amend averments in the
plaint and take so called explanatory pleas that the suit property
was purchased and construction thereon raised with the
contribution of funds by way of selling jewellery of KNM and
PNM's mother and that of Smt. Saroj and by laons obtained by
The application was opposed by the defendant PNM and
the trial court by its order dated 21.05.2012 though came to the
conclusion that the amendment sought related to evidence,
which was contrary to Order VI, Rule 2 CPC, however, ultimately 7
came to the conclusion that in view of proviso to Order VI, Rule
17 CPC as the trial had commenced, rejected the application.
The trial court dealt with issue Nos. 1, 2 and 4 together
and came to the conclusion that the plaintiffs had failed to prove
issue Nos. 1 and 2, which pertained to the nature of suit
property being joint as claimed by plaintiffs and the construction
having been raised jointly by KNM and PNM. On issue No. 4 the
trial court came to the conclusion that status of the plaintiffs was
not that of licencees, but they were akin to joint Hindu family
and they were staying in the two rooms and ground floor
alongwith PNM jointly; on issue No. 3, the trial court came to the
conclusion that the plaintiffs were not entitled for partition;
under issue No.5 it was held that court fees paid by the plaintiffs
was sufficient; under issue No. 7, it was held that as the joint
Hindu family was not dissolved and the possession was
permissive and plaintiffs had not filed suit for possession and the
notice terminating licence was given after filing of the suit, PNM
was not entitled for possession in the said suit and was free to
file separate suit for the said purpose; under issue No. 8, it was
held that as the plaintiffs had no right on the suit property, they
were not entitled to seek separate electricity connection; issue
No. 10 was decided by holding that sufficient court fees for
seeking mandatory injunction has been paid on the counter
claim and as the suit is not for possession, it cannot be said that
the court fees paid was insufficient and issue No. 9 relating to
relief was decided holding that the plaintiffs were not entitled to
any relief, however, the defendant was also not entitled for
possession and ultimately by judgment and decree dated 8
22.01.2013 ordered for dismissal of suit as well as the counter
While the appellants apparently did not take any action
qua the judgment and decree dated 22.01.2013, the respondent
No.1 PNM filed application under Order XLVII, Rule 1 CPC read
with Section 151 CPC seeking review of judgment and decree
dated 22.01.2013 to the extent the counter claim filed by him
was dismissed. It was, inter alia, claimed in the review petition
that the court has erroneously observed in the judgment that
there was no prayer in the counter claim seeking possession and
the findings based on such erroneous assumption recorded in
issue Nos. 7, 9 and 10 were based on error apparent on face of
the record. It was also contended that certain judgments were
not considered, which has resulted in dismissal of the counter
claim and, therefore, it was prayed that the review petition be
allowed and in terms of Order XLVII, Rule 8 CPC, the suit be
reheard and after rehearing, the same be decided as per law and
Petition seeking review was contested by the appellant on
several counts. It was stated that the issue sought to be raised
in the review petition cannot be said to be error apparent on
face of record and, therefore, the review petition was not
maintainable and the same was liable to be dismissed.
After hearing the parties, the trial court by its judgment
dated 22.02.2013 came to the conclusion that the counter claim
was for seeking possession as well and, therefore, the error
committed by the court was required to be modified and the
review petition was liable to be allowed. Thereafter the learned 9
trial court went on to pass order on the said review petition and
ordered taking of the suit 35/2011 on the number and issue No.
9 in the judgment dated 22.01.2013, which pertained to relief
was amended and the counter claim was accepted and plaintiffs-
appellants were directed to vacate the premises within a period
of three months and hand over the possession to PNM.
The appeal was admitted by this Court on 13.05.2013 and
parties were directed to maintain status quo regarding
possession of the suit property till final disposal of the appeal
and by order dated 18.07.2013 it was directed that the
electricity connection of the appellants be reconnected on the
condition that the entire outstanding shall be paid by the
appellants, the same would not create any new right, in case the
appeal is decided against the appellants, the electricity
connection and the equipment would be removed at their
At the outset it was contended by learned counsel for the
appellants that the amendment application filed by the
appellants-plaintiffs was wrongly rejected by the trial court,
which has caused immense prejudice to the appellants. It was
submitted that on the one hand the trial court observed in the
order dated 21.05.2012 rejecting the application under Order VI,
Rule 17 CPC that the amendment sought pertained to evidence
to indicate as to how the suit property was that of joint Hindu
family and, contrary thereto, in the impugned judgment the
evidence led by the appellants regarding the fact alleged in the
amendment application have not been considered on the ground
that the same was beyond the pleadings of the parties. It was 10
submitted that the amendment sought was merely explanatory,
which could not have been refused. Reliance was placed on
judgment of this Court in Mahendra Singh Gehlot v. Gopal
Arora : 2008 (4) RLW 3681.
Thereafter the judgment dated 22.01.2013 was questioned
on several counts. It was, inter alia, submitted that the detailed
cross-examination of DW-1 has not at all been adverted by the
trial court, which clearly reflects that the said witness PNM was
hiding much more than what he was stating before the Court.
In reply to several straight forward obvious questions, reply was
avoided, which clearly indicates that the witness was not telling
The documentary evidence placed on record does not
prove that the defendant PNM alone spent the amount on
construction, material witnesses like the construction contractor
and watchman, who was engaged at the time of construction
were not produced, persons belonging to the community, to
which, the parties belong were not examined, clearly goes to
show that the defendant failed to prove that entire amount for
purchase of the plot and for raising construction was spent by
him. In the entire oral and documentary evidence, the
defendant PNM has failed to disclose the source of funds. The
bank account, passbooks etc. have not been produced;
admittedly at the relevant time the salary of defendant PNM was
Rs.550/- per month and, therefore, in absence of specific
source, it cannot be assumed merely on account of the title
documents that the property belongs to the defendant. It was
further submitted that the trial court has assumed that loan 11
amounting to Rs.24,500/- was utilized for raising construction,
when in fact there is no evidence worth the name to prove
actual disbursement, inasmuch as, the basic conditions of the
sanction have not been shown to have been fulfilled/complied.
The disbursement was also sought to be questioned on account
of delayed payment of 3/4 of the auction amount, which amount
of Rs.3,300/- alongwith interest was deposited after about four
months of such alleged disbursement and no reason was
It was further submitted that specific admission of the
parties is available on record that from the time the defendant
was a student, both the brothers alongwith their father were
living together and stayed in a rented accommodation, which
was shared by both the families and when the house was
constructed all of them shifted to the said house and
subsequently one brother Suresh Narayan alongwith sister and
mother shifted to another house. The said events clearly
indicate existence of a joint family and, therefore, unless the
defendant was able to show something more than mere title
documents, it cannot be assumed that the suit property
belonged to him and, therefore, the findings recorded by the
trial court deserve to be set aside. Further, wholly inadmissible
evidence has been looked into and relied on by the trial court.
Launching a scathing attack on the order passed by the
trial court reviewing the judgment dated 22.01.2013 by its order
dated 22.02.2013, it was submitted that the said order was
wholly without jurisdiction and could not have been passed by
the trial court. It was submitted that plea sought to be raised in 12
the review petition cannot be said to be error apparent on face
of record and, therefore, the trial court was not justified in
reviewing its earlier judgment dated 22.01.2013. It was further
submitted that the procedure followed by the trial court while
dealing with the review petition is against the express provisions
of Order XLVII and specifically Order XLVII Rule 8 CPC. It was
submitted that the violation of procedure under Order XLVII,
whereby, after allowing the review petition, it was incumbent on
the trial court to either at once rehear or fix the suit for
rehearing, whereas, straightaway the relief clause in the
judgment dated 22.01.2013 has been amended and counter
claim of the respondent has been decreed, which has resulted in
grave injustice to the appellants.
Reliance was placed on judgments in Maji Mohan Kanwar
v. State of Rajasthan : AIR 1967 (Raj.) 264, Anandi Prasad
Dwivedi & Anr. v. State of M.P. : 2010 ILR (MP) 1904, M/s. Jain
Studios Ltd. v. Shin Satellite Public Co. Ltd. : AIR 2006 SC 2686,
1995 SC 455, Brajraj Singh & Ors. v. State of Rajasthan & Ors. :
D.B. Review Petition No.106/2008 decided on 30.05.2012 by the
Rajasthan High Court and Ghanashyam Sahoo v. Kendrapara
Municipality & Ors. : AIR 2006 Orissa 69.
Per contra, learned counsel for the respondent-defendant
PNM contended that there is no substance in the suit filed by the
plaintiffs and the submissions made by learned counsel for the
appellants, the judgment and decree dated 22.01.2013 and
judgment and order dated 22.02.2013 reviewing the judgment
dated 22.01.2013 do not call for any interference; it was 13
submitted that documents (Exhibits-A/1 to A/3) and admission
by plaintiffs regarding signatures on the said documents create
estoppel against them and the contentions raised to the contrary
are absolutely baseless; the photographs (Exhibits-A/4 to A/13)
clearly establish the possession of the defendant PNM on the
entire suit property except for two rooms; the documents
(Exhibits-A/13 to A/69) are bills relating to purchase of
goods/construction material utilized in construction of the suit
property; the water, electricity, telephone and gas connections
are all in the name of defendant PNM; the burden of proof
regarding the alleged jointness/co-ownership squarely lay on the
plaintiffs, which they have utterly failed to discharge; Sections
91 and 92 of the Evidence Act bar oral evidence contrary to the
contents of written documents; the suit filed by the plaintiffs is
barred under Section 4 of the Benami Transactions (Prohibition)
Act, 1988 ('the Benami Act'); PW-2 Manish and PW-3 Ravi were
not even born in the year 1973-74 and, therefore, their evidence
is meaningless; none of the witnesses have stated anything
about sale of ornaments either belonging to mother of KNM and
PNM or those belong to plaintiff No.1 Saroj; the ration card of
KNM's family did not mention PNM's name; the plaintiffs tried to
build up a case of contribution in the purchase of the plot and
construction of house on account of alleged sale of jewellery
belonging to the mother and appellant No.1 Saroj alongwith
loans obtained by KNM, however, they have utterly failed to
prove any of the three stands; the evidence of PW-7 Rajrani, the
sister, and PW-8 a neighbour, who were produced in rebuttal
was wholly unreliable as PW-7 Rajrani was too young at the time 14
of purchase and PW-8 was posted outside Jodhpur during the
period 1971 to 1981.
Replying to the submissions made on rejection of
application under Order VI, Rule 17 CPC, it was submitted that
the trial court was justified in rejecting the application filed by
the plaintiffs, inasmuch as, no whisper was made regarding sale
of jewellery belonging to the mother and/or plaintiff No.1 and
obtaining of loans by KNM in the plaint and, therefore, such a
plea could not have been raised by way of amendment of the
pleadings after the trial had commenced; it was submitted that
the trial court has rejected the plea in this regard on both the
aspects i.e. lack of pleadings & evidence and, therefore, besides
the fact that the rejection of application under Order VI, Rule 17
CPC was justified, it cannot be said that the same has caused
any prejudice to the plaintiffs.
Justifying the order dated 22.02.2013 passed by the trial
court on the review petition, it was submitted that the trial court
has found mistake apparent on face of the record, as despite a
clear case pleaded in the cross-objection seeking possession of
the suit property, the trial court had observed in the judgment
dated 22.01.2013 that there was no prayer in this regard and,
therefore, the trial court was justified in reviewing its order. It
was also contended that the trial court was justified in modifying
the decree dated 22.01.2013 while passing the order on the
review petition and granting the relief of possession to the
defendant PNM as the Court, even otherwise, could have passed
such order. Reliance was placed on Smt. Pushpa Sharma v
Gopal Lal Rawat : 1986 (2) WLN 130 and Sant Lal Jain v. Avtar 15
Singh : (1985) 2 SCC 332.
It was further contended that non-compliance of provisions
of Order XLVII, Rule 8 CPC is mere irregularity and, in view of
provisions of Section 99 CPC, the decree cannot be reversed in
appeal on account of such irregularity. Reliance was placed on
Mallikar Junappa Kalyanshetti v. Rudrasetti Sangasetti Patil
Mahagamkar & Anr. : AIR 1959 Andhra Pradesh 305. It was
further submitted that this Court while exercising its powers
under Order XLI, Rule 33 CPC should reverse the findings on
issue Nos.4, 7 and 10, though defendant-respondent PNM has
not filed any cross-objection under Order XLI, Rule 22 CPC for
doing complete justice between the parties. Reliance was placed
on Pralhad & Ors. v. State of Maharashtra & Anr. : 2010 DNJ
(SC) 942, C. Cheriathan v. P. Narayanan Embranthiri & Ors. :
2009 (1) Civil Court Cases 482, East India Hotels Ltd. v. Smt.
Mahendra Kumari & Anr. : 2009 (3) Civil Court Cases 146.
It was submitted that the plaintiffs were mere licencees
and for the purpose of licence any written document or
consideration is not necessary. Certain judgments on this
aspect were also cited. It was also contended that there is
difference between living jointly and having joint property. Mere
permission to use the property cannot turn a self acquired
property as a joint family property. Reliance was placed on
Jetharam & Ors. v. Hazarimal : AIR 1952 Rajasthan 28,
Chiranjilal & Anr. v. Gordhan & Anr. : AIR 1957 Rajasthan 102,
Madan Lal v. The Controller of Estate Duty, Delhi & Rajasthan,
New Delhi: 1969 ILR (Raj.) 290 and several other judgments on
the said aspect.
In rejoinder, learned counsel for the appellants-plaintiffs
rebutted the submissions made by learned counsel for the
respondent-defendant. It was submitted that power under
Order XLI, Rule 33 CPC cannot be invoked in the present case.
Reliance was placed on Laxman Tatyaba Kankate & Anr. v.
Taramati Harishchandra Dhatrak : 2010 (7) SCC 717 and
Municipal Council, Jaipur v. Seth Hameer Mal Golecha : D.B.
Special Appeal (Civil) No.64/1986 decided by this Court on
19.03.2012. It was submitted that the suit cannot be said to be
barred under Benami Act. Reliance was placed on Marcel Martins
v. M. Printer & Ors. : 2012 (5) SCC 314.
It was further submitted that the very fact that the
defendant-respondent has made a prayer for invoking powers
under Order XLI, Rule 33 CPC and has made submissions
invoking Section 99 CPC clearly establishes that the trial court
has committed grave error and, therefore, the judgment cannot
Learned counsel for the JVVNL submitted that Nigam was
justified in its action and has complied with the interim order.
I have considered the rival submissions made at the Bar.
The following issues arise for determination in the present
(A). Preliminary issues:
(i) Whether the suit filed by the appellants is barred under the Benami Transactions (Prohibition) Act, 1988?
(ii) Whether the trial court was justified in rejecting the application filed by the appellants under Order VI, Rule 17 CPC?
(iii) Whether the judgment and order dated 22.02.2013 passed by the trial court on application for review filed by respondent No.1 is legal and justified?
(B) Issues on merit:-
(i) Whether the appellants' predecessor KNM was co-owner of the suit property with PNM/the suit property is joint property of the parties? (ii) Whether the appellants are mere licencees? (iii) Whether the appellants are entitled to reliefs claimed in the plaint?
(iv) Whether the defendant PNM is entitled to reliefs as claimed in the counter claim?
Preliminary issues :
(i) The plea regarding the Benami Act
A plea has been raised in the written statement by
the defendant PNM that the allegations in the plaint constitute
the transaction regarding the suit property as Benami and,
therefore, the suit was barred under Section 4 of the Benami
Act. A bare reading of the plaint reveals that it is not the case of
the appellants that the property in fact belonged to KNM and
was purchased and construction thereon was raised in the name
of PNM. The plea in fact is that the same was purchased out of
joint funds and, therefore, apparently, the plea in the plaint
cannot be termed as a plea regarding holding the property as
Benami. The provisions of Section 4 of the Benami Act read
"4. Prohibition of the right to recover property held benami.-(1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other 18
person shall lie by or on behalf of a person claiming to be the real owner of such property.
(2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property.
(3) Nothing in this section shall apply,- (a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or
(b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity."
Sub-section (b) of Section 4(3) of the Benami Act provides
for exception in a case where a person in whose name the
property is held is a trustee or other person standing in a
fiduciary capacity and the property is held for the benefit of
another person for whom he is a trustee or towards whom he
stands in such capacity. The allegations made in the plaint,
even if, read in the context of the Benami Act, at worst, would
constitute a plea under Sub-clause (b) of Section 4(3) of the
Benami Act and, as such, the suit cannot be said to be barred.
Recently, Hon'ble Supreme Court in the case of Marcel
Martins (supra) while dealing with a suit filed by father/sisters
against their son/brother claiming co-ownership of a house
standing in the name of the respondent brother, held that the
suit filed by the respondents therein would fall within the
mischief of Section 4 of the Benami Act, unless the conditions
contained in Sub-sections (1) and (2) thereof are held to be
inapplicable by reason of anything contained in Sub-section (3).
Sub-section 4(3)(b) of the Benami Act specifically saves a 19
transaction where the property is held by the person, who
stands in a fiduciary capacity for the benefit of a person towards
whom he stands in such capacity and ultimately held the Act
Besides the above, neither any issue was framed by the
trial court on the said aspect nor the same appears to have been
pressed by the defendant PNM in the submissions made before
the trial court. As such, there is apparently no substance in the
plea raised by the defendant PNM about suit being barred under
the provisions of the Benami Act, the plea is, therefore, rejected.
(ii) Amendment of plaint
In the present case after completion of pleadings of
the parties by way of filing of written statement, counter claim,
replication and reply to counter claim, issues were framed by the
trial court on 08.12.2011 and additional issue No.10 was framed
on 07.04.2012. The affidavits of evidence on behalf of the
appellants-plaintiffs were filed on 02.05.2012. Thereafter it
appears that the application under Order VI, Rule 17 CPC was
filed on 15.05.2012 by the plaintiffs, inter alia, with the
averments that certain explanatory facts could not be pleaded in
the plaint by mistake, which were detected while discussing with
the counsel and, therefore, application seeking amendment was
By way of said application, the plaintiffs wanted to
introduce para 3(A), which single paragraph ran into as many as
10 pages and contained several averments, allegations, facts
and contentions with regard to jointness, the purchase of plot in
question and construction thereon. All the facts pertained to the 20
period 1973-74, prior thereto or there around. It would also be
noticed that though in the plaint no plea regarding sale of
plaintiff No.1's jewellery was made, the said fact was introduced
by way of replication. However, by the present amendment two
more pleas regarding sale of KNM and PNM's mother's jewellery
and raising of loan by KNM for the purpose of purchase of plot
and construction thereon were sought to be raised for the first
The trial court by the impugned order dated 21.05.2012
rejected the application for the reasons noticed hereinbefore.
Provisions of Order VI, Rule 17 CPC read thus:-
"17. Amendment of pleadings.-The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."
By amendment in the year 2002, the proviso was
introduced restricting the general power of amendment, if the
application was made after the trial had commenced, unless the
court came to the conclusion that 'inspite of due diligence', the
party could not have raised the matter before the
commencement of trial, no application for amendment can be
The question as to when the trial commences in the
context of the proviso, the Hon'ble Supreme Court in Vidyabai &
Ors. v. Padmalatha & Anr. : 2009 SC 1433 held that trial
commences on the date issues are framed and filing of an 21
affidavit in lieu of examination in chief of the witness would
amount to commencement of proceeding. The Hon'ble Supreme
Court further held that unless the jurisdictional fact as envisaged
in the proviso is found to be existing, the Court will have no
jurisdiction at all to allow the amendment of the plaint.
As noticed hereinbefore, the issues were framed/amended
on 08.12.2011/07.04.2012 and affidavits were filed on
02.05.2012, where after the application was filed, as such,
unless the condition as contained in the proviso is first satisfied,
the amendment as sought cannot be considered/granted.
Therefore, what is required to be examined is as to whether
'inspite of due diligence' the plaintiffs could not have raised the
matter before the commencement of trial? As noticed
hereinbefore, the so called explanatory facts sought to be
alleged pertain to the period around 1973-74 that is almost 36
years prior to the date when the amendment was sought to be
moved. In the application filed, the only explanation given is
that while discussing with the counsel it was thought appropriate
to file the application, which fact does not fulfill the mandatory
requirement of the proviso. The present is a case of not only
lack of due diligence but a case of gross negligence.
So far as the judgment of this Court in Mahendra Singh
Gehlot (supra) is concerned, the same apparently will have no
application in view of the above finding regarding lack of due
diligence on part of the plaintiffs.
Consequently, it cannot be said that the trial court was not
justified in rejecting the application filed by the appellants under
Order VI, Rule 17 CPC.
(iii) Order in review dated 22.02.2013
As noticed earlier, the trial court by judgment and
decree dated 22.01.2013 dismissed the suit filed by the plaintiffs
and rejected the counter claim filed by the respondent.
However, on filing of application by the defendant PNM, by
impugned judgment and order dated 22.02.2013 not only the
application seeking review was allowed, but also the finding on
issue No.9 relating to relief in the judgment was ordered to be
It would be appropriate at this stage to notice provisions of
Order XLVII CPC in so far as the same are relevant for the
purpose of present appeal:-
"1. 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.
(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.
[Explanation.-The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment.]
4. Application where rejected.- (1) Where it appears to the Court that there is no sufficient ground for a review, it shall reject the application. (2) Application where granted.- Where the Court is of opinion that the application for review should be granted, it shall grant the same:
Provided that -
(a) no such application shall be granted without previous notice to the opposite party, to enable him to appear and be heard in support of the decree or order, a review of which is applied for; and
(b) no such application shall be granted on the ground of discovery of new matter or evidence which the applicant alleges was not within his knowledge, or could not be adduced by him when the decree or order was passed or made, without strict proof of such allegation.
7. Order of rejection not appealable. Objection to order granting application.-(1) An order of the Court rejecting the application shall not be appealable; but an order granting an application may be objected to 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.
(2) Where the application has been rejected in consequence of the failure of the applicant to appear, he may apply for an order to have the rejected application restored to the file, and, where it is proved to the satisfaction of the Court that he was prevented by any sufficient cause from appearing when such application was called on for hearing, the Court shall order it to be restored to the file upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for hearing the same. (3) No oreder shall be made under sub-rule (2) unless notice of the application has been served on the opposite party.
8. Registry of application granted, and order for re-hearing.- 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."
The scheme of Order XLVII CPC has been explained by a
Division Bench of this Court in Maji Mohan Kanwar (supra) as
"5. It is clear from the said scheme of O. 47 C.P.C. that it provides three stages for hearing, after a review application is filed. The first stage comes when the application for grant of review is placed before the Judge 24
or Judges under Rule 4, sub-rule (1). At that stage, if it appears to the court that there is not sufficient ground for a review, it should reject the application. If, on the other hand, the court is satisfied that one or more of the grounds detailed in Rule 1 is not made out prima facie, it should order notice to be issued to the opposite party to enable him to appear and be heard in support of the decree or order whose review is applied for. Thus, the first one is an ex parte stage because the opposite party is not present before the court at that time. The next stage is reached when the same application for grant of review is placed for hearing before the Judge or Judges. At this stage, if the court comes to the conclusion that the application for review should be granted, it should grant it under sub-rule (2) of Rule 4. If, however, it is of opinion after hearing the opposite party that the application is not covered by Rule 1, it should be rejected. If the Rule is discharged, the matter ends there. If, on the other hand, the rule is made absolute, then the third stage is reached. This stage is arrived under Rule 8 after the original case is registered and the court rehears it on merits. After rehearing, it may either result in repetition, or in reversal or in variation, of the former decree or order. In either case, since the whole matter is reheard, there is a fresh decree or order."
The said view has again been reiterated in Umrao Singh v.
The Commissioner Khudkasht, Rajasthan Jaipur : 1972 RLW 129
"7. While examining the scheme of O. 47 of the Code of Civil Procedure we find that a review petition is dealt with by the reviewing court at three stages after a review application is filed before it. The first stage is when the application for the grant of review is placed before the Judge or Judges under r. 4, sub-rule (1). At that stage if it appears to the court that there is not sufficient ground for a review it rejects the application. If there is a prima facie case for a Judge to entertain the review application as provided in R. 1 of O. 47, then a notice is issued to the opposite party to appear before the Court. Thus, it is clear that the first order is always passed admitting the review application ex parte. The next stage is reached when after hearing both the parties the Judge has to decide whether the review application should further be heard on merits or not. At this stage if the Court is of opinion that there are no merits in the review application and it does not fall within the four corners of sub-rule (1) of O. 47, then after hearing both the parties it dismisses the application and does not enter into the merits of the case. But the third stage arises only when the Court is of opinion that the former order passed by it need be looked into on merits and it is then that the Court further hears the entire case on merits. Then the third stage is arrived under Rule 8 of O. 47 after the original case is registered and the Court re- 25
hears it on merits. After re-hearing the case, the court can arrive at three conclusions (1) it may confirm its former order, (2) it may reverse the former order, or (3) it may modify it."
As would be noticed, the scheme of Order XLVII CPC
envisage that if the application filed by party under Order XLVII,
Rule 1 CPC is granted under Sub-rule (2) of Rule 4, the stage
under Rule 8 arrives, wherein, it is required of the Court to
register the case and rehear the same on merits. The rehearing
may either result in repetition, or in reversal, or in variation of,
the former decree or order, but in either case, since the whole
matter is reheard, there is a fresh decree or order. The third
stage i.e. after the Court decides to grant review under Sub-rule
(2) of Rule 4 CPC can be undertaken either at once for rehearing
the case or the Court may make such order in regard to the
rehearing as it deems fit.
In the present case, apparently the trial court exercised
power to grant the review under Sub-rule (2) of Rule 4 and
decided to rehear the suit 'at once' and has passed the
impugned order dated 22.02.2013, which reads as under:-
"23- प थQ-पततव द पभन , %य क पनववल9कन य धरक मज%, क ज त ह1 तथ मसववल व द सखय 35/2011 क9 पन: नब% प% लक% तन य ददन क 22-1-2013 क ववव दक सखय 9 ज9 अन,त9ष स सबधधत ह1 उसम पततव द क क उनट% कलम सवतव क आध %प% कबज प तप क मज%, ककय ज न य9गय ह1 तथ यह ववव दक सखय 9 ज9 कक तन य क पष T सखय 38 प1% सखय 40 आदश क श षक म प थQ पततव द सखय 1 पभन , %य क क उनट% कलम ववरद व द ग असव क % ककय ज क% ख र%ज ककय ज त ह1 इस भ ग क9 इस पक % त%म म ककय ज व कक प थQ पततव द सखय 1 क क उनट% कलम ववरद व द ग सव क % ककय ज क% आज द ज त ह1 कक पशगत पर%स% म ज9 व द ग बत % अनमतत पततव द पभन , % य क द9 कम%, %स9ई व लट% न ब थरम क %हव स क% %ह ह1 उसक9 त न म ह म ख ल क%क ख ल कबज पततव द पभन , % य क9 सWप तथ तदन नस % तन य व अनत9ष तथ तन य क त लतवक भ ग व ड/क म त%म म क ज व।"
The issue arises as to whether the grant of review under 26
Sub-rule (2) of Rule 4 CPC was justified or not? It would be
seen that the trial court by the impugned judgment and decree
dated 22.01.2013 came to the conclusion that the counter claim
filed by defendant PNM was liable to be rejected as the counter
claim was not for possession. A bare reading of the counter
claim would reveal that inter alia following averments were
made in the counter claim:-
"व द आज पक तनषध ज क आध % प% व दगसत ज यद द क म मलक व पततव द ग क ल ईसनस ह9न क क % तल मलजल लसथत स मल त कबज क ज यद द प% exclusive क बबज ह9न क अधधक % ह1 । व द पततव द ग क9 बदखल क% exclusive कबज ध % क% उपय9ग व उपभ9ग क%न क अधधक % ह1 । व द पततव द ग क ववरद यह व द आज पक तनषध ज क जर%य कबज प तप हत व पततव द ग क दखल सम प क%व न हत यह व द पसतत क% %ह ह1 ।"
''अत: व द पभन % य क त%फ स पसतत ककय ज %ह क उनट% कलम मय हज[ खर[ सदहत सव क % ककय ज क% ड/क ककय ज व। व दगसत मक न क तल मलजल लसथत ठ वA क स मल त कबज क उपय9ग उपभ9ग क9 सम प ककय ज क% व द क9 तल मलजल लसथत ठ वA क कबज ददल य ज व।''
From bare reading of above portions of the counter claim,
it is apparent that the defendant PNM in his counter claim had
sought relief of possession and, therefore, the observations
made by the trial court in the impugned judgment regarding lack
of relief of possession in the counter claim was apparently
contrary to the record.
As to whether the said fact situation of what has been
observed in the judgment and decree dated 22.01.2013
regarding relief of possession in the counter claim and what is
actually contained in the counter claim would fall within the
expression mistake or error apparent on face of record? The
Hon'ble Supreme Court in the case of Smt. Meera Bhanja
(supra), a judgment cited by learned counsel for the appellants 27
has quoted with approval the law in this regard laid down by
Hon'ble Supreme Court in Satyanarayan Laxminarayan Hegde v.
Mallikarjun Bhavanappa Tirumale : AIR 1960 SC 137, which
reads as under:-
"An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior Court to issue such a writ."
From what has been observed hereinbefore, it cannot be
said that the error sought to be projected by defendant PNM is
not self evident and is sought to be established by lengthy and
In view thereof, the exercise of power under Sub-rule (2)
of Order XLVII, Rule 4 CPC by the trial court by impugned
judgment and order dated 22.02.2013 cannot be said to be
illegal and/or incorrect. The reliance placed by learned counsel
for the appellants on judgments in the cases of Anandi Prasad
Dwivedi, M/s. Jain Studios Ltd., Brajraj Singh and Ghanashyam
Sahoo (supra) have no application to the facts of the present
However, the issue does not end there, it would be seen
that immediately on coming to the conclusion about exercise of
its power under Rule 4(2), the trial court proceeded to pass the
impugned order as noticed hereinbefore straightaway amending
the relief granted in the suit in so far as the earlier judgment
dated 22.01.2013 had rejected the counter claim and allowing
the counter claim and directing amendment of decree 28
A bare reading of Rule 8 of Order XLVII CPC would reveal
that when an application for review is 'granted' its note is
required to be taken in the register. These words 'granted' need
to be understood in the light of provisions of Order XLVII, Rule 7
CPC, wherein, it is clarified that order rejecting application is not
appealable and order granting the same can be appealed from.
The latter part of Rule 8 of Order XLVII CPC provides that
where an application is granted, the Court granting it may 'at
once' rehear or make such an order in regard to 'rehearing' a
suit as it deems fit. Thus, in the scheme of said rule grant of
review petition and consequential rehearing are excepted to be
two independent exercises. The Court is permitted and
empowered to undertake this latter exercise of 'rehearing' at
once, but merely because it is taken up at once, it cannot and
does not cease to be an independent or separate exercise.
The fact that latter part of Rule 7 of Order XLVII CPC
provides for appeal from the order finally passed or made in the
suit, the decree or the order finally passed, comes into existence
only when consequential rehearing is completed by such Court
either at once or at some other date.
It is apparent from the record of the review petition that
the hearing as envisaged under Rule 4(2) was concluded on
18.02.2013, matter was closed for orders and on 22.02.2013,
the impugned order came to be passed, which apparently is a
conjoint order under Order XLVII, Rule 4 and Order XLVII, Rule
8 CPC. Even if, 'rehearing at once' as envisaged under Rule 8 of
Order XLVII CPC is to be undertaken, the parties have to be 29
heard by the Court before ultimately the judgment as originally
delivered is either maintained, reversed or modified, which
exercise apparently has not been undertaken in the present
case. The lack of such exercise has aparenly resulted in wholly
undesirable consequences, besides depriving the appellants of
right of rehearing. The trial court while passing the judgment
and decree dated 22.01.2013 had, inter alia, observed under
issue Nos.4, 7 and 10 respectively as under:-
ववव दक सखय र % म व द ग क लसथतत बत % ल ईसस क न ह9क% एक सयक दहद पर%व % क प :लसथतत ह9न स इस पक % तन Qत ककय ज त ह1 कक व द ग व दगसत समपतत क तल मलजल क द9 कम%A म पततव द क स थ स मल त क रप म %हव स क%त ह*।
36/ इस ववव दक क9 स बबत क%न क भ % पततव द प% थ । इस सबध म पततव द द % न9दटस पदश-A 80 व द ग क9 ददय गय ह1 लककन ववव दक सखय र % म ह व द ग क9 बत % ल ईसस न म न क% व द ग व पततव द पभन , %य क सथ स थ %हव स क%न आय ह1 तथ सयक पर%व % क ववखण/न नह हआ ह1 इसमलए तल मलजल म ज9 द9 कम%9 क उपय9ग व उपभ9ग क% %ह ह1 उसक मलए व द ग क सयक दहद , पर%व % क ववघटन न ह9न स व प%मममसव पजशन ह9न स पवव द क कबज व पस क द व नह ह9न स तथ द व द य% क पश त _ ल ईसस सम प क%न क ज9 न9दटस ददय गय ह1 व क उणट%-कलम म स मल त %हन बत य ह1 त9 बबन सयक दहद , पर%व % क ववखण/न क व बबन कबज प तप क पततव द सखय एक पशगत भख , ण/ प% व द ग क ल ईसस नह ह9न स कबज प पत क%न क इस व द म अधधक % नह ह1 इसक मलए पततव द पभन , % य अलग स व द-पत कबज प तप क% क%न क मलए सवतत ह1 । अत: इस ववव दक क तन य तद नस % पततव द सखय एक क ववरद ककय ज त ह1 ।
38/ इस ववव दक क9 स बबत क%न क भ % पभन , % य प% ह1 । इस ववव दक क पर%श लन स पकट ह9त ह1 कक पततव द सखय एक पभन , %य न ज9 क उणट%-कलम पसतत ककय ह1 उसम पततव द सखय एक पभन , % य व द ह1 लजसक मलए यह ववव दक वव%धरत ककय गय ह1 लककन र,कक ववव दक सखय र % म पशगत समपतत प% व द ग क बत % ल ईसस ह1 मसयत नह म न ज न स बल#क सयक दहद , पर%व % क प :लसथतत ह9न स औ% व द ग क प%मममसव पजशन ह9न क क % पततव द सखय एक क कबज प तप क द व न ह9न स ज9 नय य-श#क पततव द सखय एक द % क उणट%-कलम म ददय गय ह1 वह आज पक आदश क ददय ह1 ज9 आज पक आदश क मलए पय प नय य-श#क ह1 । अत: इस ववव दक क तन य तद नस % ककय ज त ह1 ।"
However, while deciding the review application and passing
a conjoint order under Order XLVII, Rule 4(2) and Rule 8 CPC,
the order as quoted hereinbefore was passed merely amending
the relief as granted under issue No.9.
If the said relief is transposed in the judgment and decree
dated 22.01.2013, the same results in absolutely undesirable
consequences and would apparently result in wholly conflicting
observations, decision on issues and the relief granted by the
trial court, whereof, the necessity of passing a fresh judgment
and decree after rehearing the parties in the present case
becomes a necessity.
Confronted with the above situation on account of the
procedure adopted by the trial court, learned counsel for the
defendant, as noticed above, relied on provision of Section 99
CPC to contend that the non-compliance of provisions of Rule 8
is merely a irregularity in the proceedings and the same does
not affect the merits of the case or the jurisdiction of the Court
and, as such, the decree cannot be reversed or varied or the
As noticed hererinbefore, as the findings were recorded by
the trial court regarding issue Nos. 4, 7 and 10, which dealt with
the status of the plaintiffs/their nature of occupation and
consequential right of respondent PNM in seeking
possession/sufficiency of Court fees paid, it cannot be said that
the variation in the relief without dealing with the said aspects
again on account of grant of review by the trial court, does not
affect the merit of the case as claimed by learned counsel for the
The judgment of Andhra Pradesh High Court in the case of
Mallikar Junappa Kalyanshetti (supra) relied on by learned
counsel for the respondent-defendant dealt with maintainability
of a revision petition and, in that context, it was observed that
passing of the order in a composite form cannot be said to be an
illegality or material irregularity in the exercise of jurisdiction.
The jurisdiction under Section 115 CPC, which was being
examined in the said judgment and under Section 96 CPC in the
present case is wholly distinct and, therefore, the said judgment
has no application to the present case.
Coming to the alternative argument made by learned
counsel for the respondent-defendant that irrespective of the
order passed by the trial court on application for review, this
Court exercising its powers under Order XLI, Rule 33 CPC must
grant the decree of possession allowing the counter claim by
reversing the findings on issue Nos. 4, 7 and 10 and/or upheld
the decree as amended by judgment and order dated
22.02.2013 passed on petition for review, the same requires
consideration in view of scope of Order XLI, Rule 33 CPC.
In Banarsi & Ors. v. Ram Phal : (2003) 9 SCC 606 the
Hon'ble Supreme Court while considering the scope of Rule 33 of
Order XLI observed and held as under:
"14. The learned counsel for the respondent forcefully argued that even in the absence of appeal preferred by the plaintiff or cross objection taken by the plaintiff- respondent the Appellate Court was not powerless to grant the decree which it has done in exercise of the power conferred by Rule 33 of Order 41 of the CPC, Rule 33 of Order 41 as also Rule 4 thereof, which have to be necessarily together, are set out hereunder:
Appeals from Original Decrees
"33. Power of Court of appeal. -- The
Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decree are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees:
Provided that the Appellate Court shall not make any order under Section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.
A claims a sum of money as due to him from X or Y, and in a suit against both obtains a decree against X. X, appeals and A and Y are respondents. The Appellate Court decides in favour of X. It has power to pass a decree against Y."
"4. One of several plaintiffs or defendants may obtain reversal of whole decree where it proceeds on ground common to all. -- Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be."
15. Rule 4 seeks to achieve one of the several objects sought to be achieved by Rule 33, that is, avoiding a situation of conflicting decrees coming into existence in the same suit. The abovesaid provisions confer power of widest amplitude on the appellate court so as to do complete justice between the parties and such power is unfettered by consideration of facts like what is the subject matter of appeal, who has filed the appeal and whether the appeal is being dismissed, allowed or disposed of by modifying the judgment appealed against. While dismissing an appeal and though confirming the impugned decree, the appellate court may still direct passing of such decree or making of such order which ought to have been passed or made by the court below in accordance with the findings of fact and law arrived at by the court below and which it would have done had it been conscious of the error committed by it and noticed by the 33
Appellate Court. While allowing the appeal or otherwise interfering with the decree or order appealed against, the appellate court may pass or make such further or other, decree or order, as the case would require being done, consistently with the findings arrived at by the appellate court. The object sought to be achieved by conferment of such power on the appellate court is to avoid inconsistency, inequity, inequality in reliefs granted to similarly placed parties and unworkable decree or order coming into existence. The overriding consideration is achieving the ends of justice. Wider the power, higher the need for caution and care in discretion while exercising the power. Usually the power under Rule 33 is exercised when the portion of the decree appealed against or the portion of the decree held liable to be set aside or interfered by the appellant court is so inseparably connected with the portion not appealed against or left untouched that for the reason of the latter portion being left untouched either injustice would result or inconsistent decrees would follow. The power is subject to at least three limitations: firstly, the power cannot be exercised to the prejudice or disadvantage of a person not a party before the Court: secondly, a claim given up or lost cannot be revived; and thirdly, such part of the decree which essentially ought to have been appealed against or objected to by a party and which that party has permitted to achieve a finality cannot be reversed to the advantage of such party. A case where there are two reliefs prayed for and one is refused while the other one is granted and the former is not inseparably connected with or necessarily depending on the other, in an appeal against the latter, the former relief cannot be granted in favour of the respondent by the appellate court exercising power under Rule 33 of Order 41."
Based on the above observations, in the fact situation of
the said case the Hon'ble Court went on to observe and decide
"21.In the case before us, the Trial Court found the defendant not entitled to decree for specific performance and found him entitled only for money decree. In addition, a conditional decree was also passed directing execution of sale deed if only the defendant defaulted any paying or depositing the money within two months. Thus to the extent of specific performance, it was not a decree outright; it was a conditional decree. Rather, the latter part of the decree was a direction in terrorem so as to secure compliance by the appellant of the money part of the decree in the scheduled time frame. In the event of the appellant having made the payment within a period of two months, the respondent would not be, and would never have been, entitled to the relief of specific performance. The latter decree is not inseparably 34
connected with the former decree. The two reliefs are surely separable from each other and one can exist without the other. Nothing prevented the respondent from filing his own appeal or taking cross-objection against that part of the decree which refused straightaway a decree for specific performance in his favour based on the finding of comparative hardship recorded earlier in the judgment. The dismissal of appeals filed by the appellant was not resulting in any inconsistent, iniquitous, contradictory or unworkable decree coming into existence so as to warrant exercise of power under Rule 33 of Order 41. It was not a case of interference with decree having been so interfered with as to call for adjustment of equities between respondents inter se. By his failure to prefer an appeal or to take cross-objection the respondent has allowed the part of the Trial Court's decree to achieve a finality which was adverse to him."
The above judgment noticed the limitations of exercise of
such power. Admittedly in the present case, the consequential
order on review has been passed by the trial court without
following the due procedure and the mandatory requirement of
'rehearing' post its decision on granting the review, which has
resulted in the apparent conflict between the findings recorded
on various issues and the ultimate relief post review granted by
the trial court. The respondent-defendant has not filed any
cross-objections under Order XLI, Rule 22 CPC questioning the
findings on issues decided against him and which continued to
remain as part of the judgment despite grant of review. Further,
the power apparently is in relation to passing of a decree and
make any order which ought to have been passed or made and
is apparently regarding the final decree which is required to be
passed in view of the findings of the Court and unfettered the
Court from any restriction as are generally observed while
passing a final order, but the same cannot apparently arm the
Court with power to disturb the findings which have not been
questioned as observed by Division Bench of this Court in the 35
case of Municipal Council, Jaipur (supra). Further, in view of the
law laid down by Hon'ble Supreme Court in the case of Banarsi
(supra) the power can be exercised only if the two portions of
decree, if allowed to remain, would result in conflicting decrees,
which is not the situation in the present case.
As such, there is no case made out for exercise of power
under Order XLI, Rule 33 CPC by the respondent in the present
case qua the issue Nos. 4, 7 and 10.
In view of the above, while the order passed by the trial
court on review petition dated 22.02.2013 to the extent of
exercise of power under Order XLVII, Rule 4(2) CPC granting the
petition for review is upheld, the consequential order passed
under Order XLVII, Rule 8 CPC cannot be sustained and,
therefore, to the said extent the same is liable to be set aside
and is, therefore, set aside.
In consequence of the above, the matter is required to be
remanded back to the trial court to deal with the matter from
the stage subsequent to passing of the order under Order XLVII,
Rule 4 (2) CPC and for rehearing the parties and pass judgment
and decree in terms of the observations made hereinbefore.
Issues on merits:
As the preliminary issue relating to the validity of
judgment and order dated 22.02.2013 has been partly decided
in favour of the appellants and the suit is required to be
remanded back to the trial court for decision in terms of
observations made hereinbefore, the issues noticed on merits,
do not call for any determination by this Court at this stage.
The trial court would pass appropriate judgment and 36
decree after rehearing the parties in pursuance of the judgment
on review passed by it on 22.02.2013 to the extent upheld by
this Court and, any of the parties aggrieved by the
determination subsequent thereto by way of judgment and
decree, would be free to take appropriate proceedings according
to law and would also be free to re-agitate the issues on merits
raised in the present proceedings and not determined
Accordingly, in view of the above, the appeal is partly
allowed. The judgment and order dated 22.02.2013 passed by
the trial court on review petition is partly set aside and the suit
No.35/2011 is remanded and restored back to the trial court to
proceed with the same from the stage the application filed by
respondent-defendant was granted under Order XLVII, Rule 4(2)
CPC and after rehearing the parties pass a fresh judgment and
The interim order passed by this Court on 13.05.2013 as
modified by order dated 18.07.2013 shall continue during the
pendency before the trial court.
The parties are directed to appear before the trial court on
17.02.2014. The trial court is directed to decide the matter as
expeditiously as possible. Record be sent back immediately.
(ARUN BHANSALI), J.