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HARIDAS DAS V SMT. USHA RANI BANIK 2006 (3) SCALE 287 (PASAYAT, J.)

HARIDAS DAS V SMT. USHA RANI BANIK 2006 (3) SCALE 287 (PASAYAT, J.)

 

FACTS

  • Kalipada Das (the original owner of the suit property) entered into an oral agreement with the appellant to sell his property to the appellant.
  • The appellant paid 45,000 out of the agreed consideration of 46,000 and was handed over possession of the property with a promise that the sale deed would be executed in favour of the appellant within 3 years.
  • The appellant learnt that Kalipada was trying to sell part property and mortgage another part of the property.
  • Kalipada threatened dispossession leading the Appellant to ask for execution of the sale deed by paying the rest 1,000, instituting a suit (Suit 1) seeking confirmation of possession and permanent injunction from dispossessing the appellant and from selling the suit property. In the same plaint, the appellant exclusively reserved the right to file another suit for getting the sale deed executed.
  • An interim order directed Kalipada to maintain the status quo w.r.t. to the suit property.
  • The appellant filed another suit (Suit 2) for specific performance for the execution of the sale deed.
  • However, during the pendency of the proceedings, Kalipada executed and registered a sale deed in favour of the respondent which prompted the appellant to file yet another suit (Suit 3) for cancellation of the said sale deed.
  • Suit 3 was decreed and the sale deed was cancelled by the Munsif. The district judge allowed the appeal by the Respondent and set aside the decree. On the second appeal, the High Court allowed and restored the decree.
  • However, on review application by the respondent, the High Court held that Suit 2 was hit by Order II since no leave was obtained under Order II Rule 2 of the CPC. Thereby the judgment & decree of the 1st appellate court (district judge) was affirmed and that of the Munsif reversed.
  • Hence, the appellant filed an appeal against the order of the High Court.

 

ISSUE

 Whether the High Court was justified in reviewing the order which was passed in the Second appeal.

 

HELD

The SC allowed the appeal without imposing costs. It set aside the judgment of the High Court in review and restored the judgment and order of the second appeal.

 

  • If the order in question is appealable, the aggrieved party has adequate and efficacious remedy and the court should exercise the power to review its order with the greatest circumspection.
  • There are definite limits to the power of review. Section 114 merely states that an aggrieved may apply for review of judgment to the court which passed the decree or order.
  • The review proceedings are strictly confined to the scope and ambit of Order XLVII Rule 1. The power of review may be exercised on:
    • (1) the discovery of a new and important matter of evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made,
    • (2) it may be exercised where some mistake or error apparent on the face of the record is found,
    • (3) it may also be exercised on any sufficient ground.
  • There is a real difference between an “erroneous decision” and a decision vitiated by “error apparent”. An erroneous decision can be reheard and corrected. But, if without any elaborate argument, one could point to the error and could say there could reasonably be no two opinions, then a clear case of error apparent on the face of the record would be made out.
  • Error apparent on the face of the record is not:
    • (1) which is established by long drawn process of reasoning on points where there may be two opinions,
    • (2) the alleged error which is far from self-evident.
  • A review application cannot be an appeal in disguise and can only be heard for patent error. It cannot be exercised on the ground that the decision was erroneous on merit.
  • High Court erred in two respects:
    • (1) The question of whether Suit 2 was barred by Order II Rule 2 was irrelevant in Suit 3.
    • (2) Holding that no leave was prayed in Suit 1 under Order II Rule 2 was unnecessary since the appellant reserved the right to institute suit for specific performance at the end of the plaint. Additionally, Order II Rule 2 had no application in Suit 3.

 

COMMENTARY

 Pursuant to a sale agreement, the first buyer paid the price of the suit property and took over possession. Thereafter, he filed a title suit for confirmation of his possession and for restraining the seller from dispossessing him or selling the same to any other party. In the plaint, he specifically stated that he was reserving his right to file a further suit to get the sale deed executed. Later, he filed a second suit to get the sale deed executed. Meanwhile, the original owner executed a deed of sale of the same property in favour of another party. The first buyer filed a third title suit for cancellation of the sale deed. The third title suit was decreed by the trial court and decree was upheld by the high court. However, the high court on a review petition held that the second suit of the plaintiff was barred by O 2, r 2 of the Code of Civil Procedure 1908 and set aside the decree. On appeal, the Supreme Court held that in the circumstances of the case, the question whether the second title suit of the appellant was barred by O 2, r 2 of the Code of Civil Procedure 1908 was irrelevant so far as the third suit was concerned. Apparently, the third suit arose out of a distinct cause of action and was not barred.