TMI Blog2019 (8) TMI 374X X X X Extracts X X X X X X X X Extracts X X X X ..... Suit No. 1451 of 1957 dated 8th September, 1965, it will certainly affect the auction sale held by the Income Tax Department in reference to the subject property in question and it was their stand throughout in the proceedings. We are not inclined to dilate the issues on merits raised in the Writ Petition No. 18500(w) of 1985 filed at the instance of the respondents before the High Court of Calcutta, but if the civil suit was not maintainable as alleged in view of Section 293 of the Income Tax Act and this was the purported defence of the respondents and of the Income Tax Department and consequential effect to the Order dated 8th September, 1965 of which a reference has been made by us, no party could be left remediless and whatever the grievance the party has raised before the Court of law, has to be examined on its own merits. Appeal dismissed. - Civil Appeal No(s).5140 of 2019 (Arising out of SLP(C ) No(s). 5449 of 2015) - - - Dated:- 2-7-2019 - Mr. Justice A.M. Khanwilkar And Mr. Justice Ajay Rastogi For the Petitioner(s) : Mr. Vikas Mehta, AOR, Mr. Rajat Sehgal, Adv. And Mr. Mithun Shashank, Adv. For the Respondent(s) : Mr. Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the High Court of Calcutta which was although overruled by the Chief Commissioner, Delhi on 26th February, 1965. At the same time, application was filed by the Income Tax Department in the said Suit No. 1451 of 1957 praying for (a) condonation of the omission to obtain leave of Court before putting the Delhi property for sale and (b) leave be given to it to complete the said sale of the Delhi property in favour of V.N. Vasudeva and to give further effect thereto. A certification of confirmation of sale was issued by the District Collection Officer, Delhi purporting to confirm the said purported sale dated 18th August, 1964 in favour of late V.N. Vasudeva. At this stage, order was passed by the High Court of Calcutta on the application of Union of India dated 8th September, 1965 granting liberty to the Income Tax Department to put the Delhi property for sale by public auction or private treaty to the best purchaser or purchasers that can be got for the same. What will be the effect of the later order passed by the High Court of Calcutta dated 8th September, 1965 in reference to the order of the District Collection Officer, Delhi for confirmation of the auction sale will not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame to be dismissed under Order 9 Rule 2 Code of Civil Procedure due to nonserving upon the main defendants vide order dated 3rd October, 1986 and either of the party has not brought this fact to the notice of the Court about the later developments of which reference has been made. Immediately thereafter, respondent nos. 13 filed an application for recalling/setting aside the order dated 26th October, 1990 and for deciding the writ petition on merits. 11. After hearing the parties, Single Judge of the High Court of Calcutta under its order dated 20th November, 1998 allowed the application filed by respondent nos. 13 and recalled the Order dated 26th October, 1990 by restraining Vasudevas from dealing with the subject property with the direction to hear the matter on merits. 12. The present appellants preferred appeal against the Order dated 20th November, 1998. The Division Bench of the High Court of Calcutta in M.A.T. No. 87 of 1999 disposed of the appeal under its Order dated 17th August, 2001 without interfering with the order of recalling on review application dated 20th November, 1998 but as it reflects from the record, the present appellants afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 24th September, 2014 primarily does not satisfy the basic principles of law regarding maintainability of the review application and even in the impugned judgment, neither the High Court has been able to decipher new and important matter from the evidence which, after the exercise of due diligence, was not in the knowledge of the review petitioner nor pointed out any mistake or error apparent on the face of record or suggested any other sufficient reason calling for review. In the given circumstances, the very order impugned dated 24th September, 2014 passed by the High Court of Calcutta is not sustainable in law and deserves interference by this Court. 17. Learned counsel further submits that the respondent nos. 13 in fact are repeatedly abusing the legal process and launching litigation in regard to the subject property for more than 50 years and their real purpose of filing Writ Petition No. 18500(W) of 1985 was to withhold the Income Tax Department from attaching and selling other properties in Calcutta. It is only by alleging that the suit property in Delhi was legally headed by the Department and the suit property be put into sale afresh. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d V.N. Vasudeva, an income tax practioner(father of appellant nos. 1 2) as his income tax lawyer and constituted attorney. V.N. Vasudeva took full advantage of his fiduciary relation and became tenant of the subject property on a paltry sum of ₹ 300/per month. On May 1, 1958, Official Receiver was appointed in Suit No. 1451 of 1957 by High Court of Calcutta inter alia includes Delhi property. Since V.N. Vasudeva did not pay rent of the Delhi property and set up a fictitious agreement between himself Kirodimull Lohariwala for adjustment of rents against his professional fees, this Court castigated V.N. Vasudeva in V.N. Vasudeva Vs. Kirodimal AIR 1965 SC 440 arising out of the eviction proceeding holding that V.N. Vasudeva avoided payment of the monthly rent of ₹ 300/to the Income Tax Officer(as Delhi property was under attachment of Income Tax Department). 21. Learned counsel further submits that Civil Court does not have any jurisdiction to deal with such matters in view of Section 293 of the Income Tax Act, 1961 and the only remedy available to the respondents is to file a writ petition under Article 226 of Constitution of India. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Income Tax Department in Suit No. 1451 of 1957 praying for (a) condonation of the omission to obtain leave of Court before putting the Delhi property for sale and (b) leave be given to it to complete the said sale of the Delhi property in favour of V.N. Vasudeva and to give further effect thereto. On an application filed by Income Tax Department, the Single Judge of the High Court of Calcutta in its Order dated 8th September, 1965 taking note of the rival contention of the parties observed as follows:- A.N. Ray (In Chambers) Kirodimull Bhiwaniwala, also know as Kirodimull Lohariwala resident at Sadar Bazar, Raigarh in the State of Madhya Pradesh, outside the jurisdication of this court. Vs. 1. Premchand Gupta residing at 181A, Chittaranjan Avenue, Calcutta within the said jurisdiction. 2. Pawan Gupta 3. Sunder Gupta the last two being minors under the age of 18 years residing at 181 A, Chittaranjan Avenue, Calcutta with the said jurisdiction. 4. Smt. Asrafi Devi alias Sm. Surfi Devi residing at Sadar Bazar, Raigarh, in the State of Madhya Pradesh outside the said jurisdiction. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... either party has not brought to the notice of the Court the mandate of law as envisaged under Section 293 of the Income Tax Act, 1961 that the civil suit against the Income tax Department is not maintainable under the law, which appears to be mistakenly omitted by the Court in arriving at the rival claims of the parties. 27. It was taken note of by the High Court in its review jurisdiction and arrived to the conclusion that there appears to be an error apparent on the face of record and consequently allowed the application for review, recalled the Order dated 19th October, 2012 and set aside the Judgment and Order dated 31st March, 2006 passed in miscellaneous application and for restoration of Writ Petition No. 18500(W) of 1985 to be heard on its own merits under the impugned judgment dated 24th September, 2014. 28. The basic principles in which the review application could be entertained have been eloquently examined by this Court in Kamlesh Verma (supra) wherein this Court held as under: 20. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute: 20.1. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it No. 1451 of 1957 dated 8th September, 1965 was open to be examined in the writ proceedings and it was the defence of the Income Tax Department in the reply to the review application and also before this Court in their counter affidavit that in the auction sale which was held in the month of August, 1964, the permission from the Court was not obtained and after the order came to be passed on their application by the Single Judge of the High Court in Suit No. 1451 of 1957 dated 8th September, 1965, it will certainly affect the auction sale held by the Income Tax Department in reference to the subject property in question and it was their stand throughout in the proceedings. 30. We find that the Single Judge of the High Court of Calcutta heard and reserved the judgment in Writ Petition No. 18500(W) of 1985 in March/April 1986 and after nearly four and half years, the judgment pronounced on 26th October, 1990 relegating the parties to raise all the contentions to their defence in the pending civil suit before the District Judge, Delhi itself indicates that the Single Judge was not inclined to express its opinion on merits obviously for the reason that if the finding w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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