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The Code Of Civil Procedure (Amendment) Act, 2002
THE BENAMI TRANSACTIONS (PROHIBITION) ACT, 1988
Section 4 in The Code Of Civil Procedure (Amendment) Act, 2002
Amrik Singh vs State Of Rajasthan on 17 December, 1993
Sant Lal Jain vs Avtar Singh on 12 March, 1985

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Rajasthan High Court - Jodhpur
Smt.Saroj & Ors vs Prabhu Narain & Anr on 7 February, 2014

1

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

:JUDGMENT:

S.B. CIVIL FIRST APPEAL NO.152/2013

Smt. Saroj & Ors.

Vs.

Prabhu Narain Mathur & Anr.

Date of Judgment :: 07th February, 2014

PRESENT

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:

REPORTABLE

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

electricity charges.

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

of licencees.

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 )

6

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%?

9. अनत9ष?

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

ह*?"

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

KNM.

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

claim.

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

procedure.

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

expenses.

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 truth.

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

forthcoming.

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,

Smt. Meera Bhanja v. Smt. Nirmala Kumari Choudhary : AIR

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.

16

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

be sustained.

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

appeal:-

(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?

17

(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

thus:-

"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

inapplicable.

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

being filed.

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

time.

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

allowed.

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.

22

(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

amended.

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.]

2........

3........

23

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.

5........

6........

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

under:-

"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

as under:-

"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

complicated arguments.

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

case.

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

accordingly.

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:-

"Issue No.4:

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*।

Issue No.7:

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 ।

Issue No.10:

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 ।"

30

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

case remanded.

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

respondent-defendant.

31

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:

ORDER 41

Appeals from Original Decrees

32

"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.

Illustration

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

as under:

"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."

(emphasis supplied)

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

hereinbefore.

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

decree.

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.

No costs.

(ARUN BHANSALI), J.

A.K.Chouhan/-