TMI Blog2005 (3) TMI 793X X X X Extracts X X X X X X X X Extracts X X X X ..... s renumbered as Title Suit No.412 of 1977. During pendency of the said suit, the parties entered into settlement pursuant whereto three purported agreements for sale were executed whereby the Appellant agreed to sell the suit premises to the Respondent Nos.1 2 and their mother. The Appellant herein also filed an application for grant of income tax clearance certificate in terms of Section 280-A of the Income Tax Act, 1961. Allegedly, on the ground that the Respondent Nos.1 and 2 and their mother failed to send the draft deeds of sale to the Appellant within the stipulated time despite notices served on them in that behalf, the said agreements were cancelled by the Appellant on 1.6.1990. The mother of Respondent Nos.1 and 2 died. On or about 31.10.1990, the Respondent Nos. 1 and 2 filed a suit before the 9th Assistant District Judge, Alipore, against the Appellant for specific performance of the aforementioned three agreements, which was marked as Title Suit No.49 of 1990. In the said suit, the Respondent Nos.1 and 2 herein filed an application for injunction restraining the Appellant herein from alienating the suit premises. The Appellant filed her written objection specifying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdingly, I arrive at the conclusion that there has been an error or commission while passing the impugned order No.179 dated 20.12.2001 of T.S. 49/90 by omitting to spell out as to whether the earnest money should be refunded or forfeited. This is an error on the face of the record, which can be rectified by passing necessary order in this regard after hearing both sides. So review lies. Therefore, I hold that the application under Order 47, Rule 1 of the C.P.C. is liable to be allowed. Court fee is paid is correct. Hence, it is Ordered That Misc. Case No. 1/02 is allowed on contest without costs. Necessary order will be passed in T.S. 49/90 regarding re-opening of Order No.179 dated 20.12.2001 of that suit in the light of this judgment/order. The Appellant herein preferred an appeal thereagainst before the High Court of Judicature at Calcutta which was marked as First Miscellaneous Appeal No.2817 of 2002. The Respondents also filed an appeal being First Appeal No.124 of 2003 before the High Court allegedly suppressing the fact that the decree dismissing the Title Suit No.49 of 1990 had been partly set aside on the basis of the review application filed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, therefore, has not been accepted. The court has not granted a decree for specific performance of the contract. The question of eviction of the respondents in execution of the decree passed in Title Suit No 412 of 1977 had only a direct relationship with the right of the respondents to continue to possess the tenanted premises in furtherance of their plea of part performance of the terms and conditions of the agreement for sale. Such a right claimed by the respondents herein to continue to possess the same on the basis of her independent right in terms of Section 53-A of the Transfer of Property Act had been negatived by the court. The respondents cannot resist their eviction pursuant to or in furtherance of the decree for eviction passed against them in execution proceedings thereof. THIRD PARTY CLAIM : The Respondent Nos.3 and 4, it may be noticed at this juncture, had set up a case a fresh agreement for sale by and between the parties herein after the death of mother of the plaintiffs (Respondent Nos.1 and 2), Smt. Gouribala Das, on 23.9.1990 in the following terms : That thereafter the respondent No.1 and 2 filed an application under Order VI Rule 17 read with Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Another vs. Nilmadhab Saha and Others [(1922) XXXVI Cal.L.J.484). The learned counsel would contend that the High Court also erred in entertaining the said appeal after passing of the said order dated 15.7.2002 on the premise that the Respondents could appeal in anticipation. Reliance, in this behalf, has been placed on Garikapatti Veeraya vs. N. Subbaiah Choudhury [(1957) SCR 488]. Mr. Mukherjee would urge that as rights had accrued to the Appellant in view of the dismissal of the review petition, the High Court could not have allowed the Respondents to withdraw the review application; once the appeal was filed by the Appellant against the order dated 15.7.2002 setting aside the decree passed in the suit for specific performance of contract in part. It was submitted that the High Court even could not have permitted the Respondents to withdraw their review application in view of the fact that the suit was restored for the limited purpose of considering as to whether the earnest money paid by them should be refunded or forfeited. Reliance, in this connection, has been placed on K.S. Bhoopathy and Others vs. Kokila and Others ((2000) 3 SCR 1168]. In any event, as the Respondents hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stice to them. The learned counsel would further urge that keeping in view the fact that this Court in its judgment and order dated 18.11.2003 in Rekha Mukherjee (supra) has clearly held that the undertaking was operative till the decision of the suit, in view of the judgment and order dated 22.9.2004 passed by the High Court in First Appeal No. 124 of 2003, the suit for specific performance of contract being Title Suit No. 49 of 1990 having been revived, the undertaking would also revive. ISSUE : The primal question which falls for our consideration in these appeals is as to whether the High Court was justified in entertaining the First Appeal filed by the Respondents herein against the original judgment and decree passed in Title Suit No. 49 of 1990 for specific performance of contract. SCOPE OF REVIEW : The suit filed by the Respondents for grant of specific performance of contract was dismissed. The said decree although was appealable but in view of the order dated 15.7.2002, the said decree in its entirety ceased to operate. Order XLVII Rule 1 CPC postulates filing of an application by a person considering himself aggrieved, by a decree or order from which an appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ein the rights of the parties as regard all or any of the matters in controversy in the suit must have been determined and such determination must be conclusive in nature. The said decisions are not applicable in the instant case. From a bare perusal of the order dated 15.7.2002 passed by the learned trial judge in Misc. Case No.1 of 2002, it would be evident that he had arrived at a conclusion that there had been an error or omission had crept in the judgment dated 20.12.2001 as he had omitted to spell out as to whether the earnest money should be refunded or forfeited. The learned Judge found that there was an error on the face of record which could be rectified by passing the necessary order in that regard after hearing both the sides. He, therefore, while upholding that the review petition was maintainable allowed the said application under Order XLVII Rule 1 CPC. He had thereafter passed an order restoring the Title Suit No.49 of 1990 to its original file and number by order dated 15.7.2002. In view of the aforementioned order, the original decree dated 20.12,2001 did not survive. MAINTAINABILITY OF APPEAL : An appeal preferred against the said order dated 15.7. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd seek a fresh adjudication of the controversy on a clean slate. It may also result in the contesting defendant losing the advantage of adjudication of the dispute by the court or courts below. Grant of permission for withdrawal of a suit with leave to file a fresh suit may also result in annulment of a right vested in the defendant or even a third party. The appellate/second appellate court should apply its mind to the case with a view to ensure strict compliance with the conditions prescribed in Order XXIII Rule 1(3) CPC for exercise of the discretionary power in permitting the suit with leave to file a fresh suit on the same cause of action. Yet another reason in support of this view is that withdrawal of a suit at the appellate/second appellate stage results in wastage of public time of courts which is of considerable importance in the present time in view of large accumulation of cases in lower courts and inordinate delay in disposal of the cases. Before the High Court, the cross objection filed by the Respondents was not pressed. The appeal preferred by the Appellant herein was allowed. It was, therefore, stricto sensu not a case where a prayer was made for withdrawing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ady been superseded by the decree dated September 26, 1961 passed after review, So the appeal filed by the respondent before the High Court could only be an appeal against the decree passed after review. When the High Court came to the conclusion that the Additional District Judge went wrong in allowing the review, it should have allowed the cross appeal. Since no appeal was preferred by the respondent against the decree passed on August 18, 1961, awarding compensation for the land at the rate of ₹ 200 per katha, that decree became final. The respondent made no attempt to file an appeal against that decree when the High Court found that the review was wrongly allowed on the basis that the decree revived and came into life again. Our attention has been drawn to the following regretful concurring opinion of Krishna Iyer, J. by Mr. Sanghi : The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justiciae where the tragic sequel otherwise would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferent footings although some grounds may be overlapping. If a review is granted, the decree stands modified but such modification of a decree is not an ancillary or a supplemental proceeding so as to be revived upon setting aside the decree granting review. In Garikapatti Veeraya (supra), this Court held : Considering the question on principle, an appeal is a proceeding by which the correctness of the decision of an inferior court is challenged before a superior court. A right of appeal therefore can arise by its very nature only when a decision by which a litigant is aggrieved is given, and it sounds praradoxical to say that it arises even before judgment in the case is pronounced In Gour Krishna Sarkar (supra), Asutosh Mookerjee, J. speaking for a Division Bench opined that the Court is competent to determine whether when a review is granted, the case should be re-opened in part or in its entirety, and that the view cannot be supported on principle that whenever an application for review is granted, the entire case must of necessity be reopened and re-considered. It was observed that when a review is made, the original decree ceases to exist as a result of the decis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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