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%?
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.]
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 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*।
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 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.