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2009(6) Supreme 23
SUPREME COURT OF INDIA
(From Rajasthan High Court)
S.B. Sinha & Deepak Verma, JJ.
Inderchand Jain (D) through L.Rs. — Appellant
versus
Motilal (D) through L.Rs. — Respondent
Civil Appeal No. 4584 of 2009
(Arising out of SLP (Civil) No. 19736 of 2006)
Decided on : 21-07-2009
AIR 2003 SC 2095; AIR 2000 SC 1650 – Relied upon
(b) Specific Relief Act, 1963 – Section 16(c) – Discretionary relief of specific performance of the contract can be granted only in the event the plaintiff not only makes necessary pleadings but also establishes that he had all along been ready and willing to perform his part of contract – Such readiness and willingness on the part of the plaintiff is not confined only to the stage of filing of the plaint but also at the subsequent stage of hearing. (Para 13)
(2005) 6 SCC 243; AIR 2008 SC 143; AIR 1928 PC 208 – Relied upon
(c) Code of Civil Procedure, 1908 – Order VII, rule 7 and Order XLI, rule 33 – Appellate court while exercising its appellate jurisdiction would be entitled to take into consideration the subsequent events for the purpose of moulding the relief – However it does not mean that the court would proceed to do so in a review application despite holding that the plaintiff was not entitled to grant of a decree for specific performance of contract – Balancing of interest would be necessary provided a suit is to be decreed and not when the suit is to be dismissed. (Para 20)
(2005) 4 SCC 741; (2007) 7 SCC 38 – Relied upon
(d) Code of Civil Procedure, 1908 – Order XLI, rule 1 – Filing of an appeal would not amount to automatic stay of the execution of the decree. (Para 22)
(e) Specific Relief Act, 1963 – Section 16(c) – No conditional offer is permissible in a suit for specific performance of contract. (Para 22)
Facts of the case:
1. The jurisdiction of a Court and/or the extent thereof to review its own decision is the question involved in this appeal.
2. An agreement was entered into by and between the parties on or about 15.10.1972 whereby and whereunder Inder Chand Jain-appellant had agreed to sell a ‘haveli’ to Motilal - respondent for a consideration of Rs.1,15,000/-, out of which a sum of Rs.20,000/- was paid in advance.
3. Respondent filed a suit for specific performance before the District Judge, Jaipur City, in which a decree was passed on 11.11.1975. Being dissatisfied, the appellant filed Civil First Appeal before the High Court which was allowed on 12.03.1987 whereby the judgment and order of the trial court was set aside.
4. Both the parties filed review petitions before the learned Single Judge of the High Court under Order XLVII Rule 1 of the Code of Civil Procedure seeking review of the judgment dated 11.08.2006. By the impugned judgment and order the learned Single Judge while allowing both the review petitions recalled its earlier judgment and order dated 11.08.2006 and directed the appeal to be listed for rehearing.
Finding of the Court:
Review is not appeal in disguise.
Result : Appeal allowed.
Key Points: - The appeal court has the power to review its own judgment under Section 114 of the Code, subject to limitations under Order 47 Rule 1 (!) (!) . - Review may be sought on grounds such as error apparent on the face of the record, discovery of new important matter, or for any other sufficient reason (!) (!) . - Specific performance of a contract requires the plaintiff to establish continuous readiness and willingness to perform, not merely at the filing stage but also at the hearing (!) (!) . - A conditional offer by the plaintiff does not satisfy the requirement of readiness and willingness for specific performance (!) (!) . - The court must balance the interests of the parties and cannot proceed to mould relief in a review application if the plaintiff is not entitled to a decree for specific performance (!) (!) .
JUDGMENT
S.B. SINHA, J.—
1. Leave granted.
2. The jurisdiction of a Court and/or the extent thereof to review its own decision is the question involved in this appeal. It arises out of a judgment and order dated 13.10.2006 passed by a learned Single Judge of the High Court of Judicature for Rajasthan, Jaipur Bench, Jaipur in S.B. Civil Review Petition No.33/2006 in S.B. Civil First Appeal No.36 of 1976 and and S.B. Civil First Appeal No.36 of 1976.
3. Before adverting to the aforementioned question, we may notice the admitted facts. An agreement was entered into by and between the parties on or about 15.10.1972 whereby and whereunder Inder Chand Jain-appellant had agreed to sell a ‘haveli’ to Motilal - respondent for a consideration of Rs.1,15,000/-, out of which a sum of Rs.20,000/- was paid in advance. Respondent filed a suit for specific performance before the District Judge, Jaipur City, in which a decree was passed on 11.11.1975. Being dissatisfied, the appellant filed Civil First Appeal before the High Court which was allowed on 12.03.1987 whereby the judgment and order of the trial court was set aside. On an intra court appeal filed by the respondent, a Division Bench of the High Court by its order dated 26.10.2005 remanded the matter back to the learned Single Judge for deciding the appeal afresh. By an order dated 11.08.2006, a learned Single Judge of the High Court allowed the appeal once again and set aside the judgment and decree of the trial court.
4. Both the parties filed review petitions before the learned Single Judge of the High Court under Order XLVII Rule 1 of the Code of Civil Procedure seeking review of the judgment dated 11.08.2006. By the impugned judgment and order the learned Single Judge while allowing both the review petitions recalled its earlier judgment and order dated 11.08.2006 and directed the appeal to be listed for rehearing.
5. Thus, the appellant-defendant is before this Court.
6. Mr. C.A. Sundaram, learned Senior Counsel appearing on behalf of the appellant would urge :-
i) That thsd re-appreciate the evidence brought on record by the parties nor could exercise its discretionary jurisdiction under Section 20 of the Specific Relief Act, 1963.
iii) On the face of the findings of the Division Bench of the High Court that the plaintiff-respondent had not been ready and willing to perform his part of the contract as provisions of Section 20(2)(b) of the Specific Relief Act, 1963 could be invoked only in a case when the High Court had come to the conclusion that the plaintiff has made out a case of grant of decree for specific performance and not otherwise.
iv) A finding of fact having been arrived at that the purported contention of the plaintiff that the agreement for sale was modified in terms whereof in place of Rs.1,15,000/- the plaintiff-respondent was to pay a sum of Rs.80,000/- having been disbelieved, the High Court committed a serious error in passing the impugned judgment.
7. Mr. K.K. Venugopal, learned senior counsel appearing on behalf of the respondent, on the other hand, would urge that the High Court while passing the judgment dated 26.10.2005 took into consideration the salient features of this case as also the subsequent events and, thus, was justified in passing its order, viz.:
(i) the possession of the premises in question had already been delivered;
(ii) the settlement arrived at by and between the parties with regard to the reduction of the amount of consideration stood admitted inasmuch as according to the appellant himself in the event the tenants were evicted a sum of Rs. 11000/- may be deducted from the amount of consideration.
(iii) The plaintiff- respondent had deposited the entire balance amount on 25.09.1975, i.e., two months prior to the passing of the decree and, thus, there could not be any doubt or dispute that the plaintiff- respondent had all along been ready and willing to perform his part of contract.
(iv) Appellant, after passing of the decree by the l
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