Bombay High Court
Parmeshwar Rambhau Jamdade And ... vs Bajrang Limbaji Jamdade And ... on 2 December, 2016
Bench: S.P. Deshmukh
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drp
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
REVIEW APPLICATION STAMP NO. 6180 OF 2015
IN
SECOND APPEAL NO.795 OF 2010
1. Parmeshwar Rambhau Jamdade APPLICANTS
Age - 47 years, Occ - Service & Agriculture
R/o Kamkheda, Taluka and Dist- Beed
2. Syed Taher Ali s/o Jainulla Abedin Quadri,
Age - 55 years, Occ - Trade,
R/o Beed Prop, Mangal Decorators,
Netaji Maindan, (New Bhaji Mandi)
Beed, District - Beed
VERSUS
1. Bajrang Limbaji Jamdade RESPONDENTS
Age - 53 years, Occ - Agriculture
R/o Kamkheda, Taluka and District - Beed
2. Shahurao s/o Babaji Jamdade,
Died Through LRs
2A. Chatrabhuj s/o Shahurao Jamdade,
Age - 65 years, Occ - Agriculture
2B. Ashok s/o Shahurao Jamdade
Age - 55 years, Occ - Agriculture
2C. Sunil s/o Shahurao Jamdade,
Age - 42 years, Occ - Agriculture
2A to 2C R/o Kamkheda,
Taluka and District - Beed
2D. Kantabai w/o Dagdu Bahir,
Age - 60 years, Occ - Housewife,
R/o Navgan Rajuri
Taluka and District - Beed
2E. Radhabai w/o Uttamrao Rahade,
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Age - 50 years, Occ - Housewife
R/o Ketrua, Taluka and District - Beed
2F. Kusum w/o Vitthalrao Hatode,
Age - 48 years, Occ - Housewife
R/o Pachegaon, Taluka and District - Beed
2G. Shamal w/o Suresh Kavthekar,
Age - 45 years, Occ - Housewife
R/o Pitthi Naigaon,
Taluka and District - Beed
3. Bansi s/o Keshavrao Maske,
Age - 35 years, Occ - Agriculture
R/o Kamkheda, Taluka and District - Beed
4.
Madlasa w/o Ankush Giri
Age - 60 years, Occ - Agriculture
R/o Mudapuri, Taluka - Georai
District - Beed
5. Rajubai w/o Shrimant Lonkar,
Age - 52 years, Occ - Agriculture
R/o Kamkheda, Taluka and District - Beed
.......
Mr. Girsh K. Thigale (Naik) Advocate for the applicants
Mr. Amol Joshi h/f Mr. R. S. Deshmukh, Adv. for respondent No.1
.......
[CORAM : SUNIL P. DESHMUKH, J.]
DATE : 2nd DECEMBER, 2016
ORAL JUDGMENT :
1. Heard learned advocates for the appearing parties.
2. Learned advocate Mr. Naik-Thigale for the review applicant
purports to raise a case, which in his estimate would reflect error
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apparent on the face, as would emerge in order to lay a review
of the order dated 27th November, 2014 in second appeal No.795
of 2010.
3. After hearing learned advocates, there appears to be
general consensus with regard to certain occurrences viz.,
agreement of sale had been executed by applicants in favour of
respondents No.1 and 3, a suit based on agreement of sale for
specific performance had been instituted by plaintiffs No.1 and 2
and subsequently plaintiff No.2 had withdrawn himself from the
fray, who in turn had been arrayed as defendant No.4 in said
suit. Accordingly, amendments to the plaint were carried out and
defendant No.4 too had filed his written statement.
4. In the interregnum it appears that certain other documents
had come to the fore, which apparently are inconsistent
according to learned advocate for the review applicants.
5. On these broad facts learned advocate for the review
applicants submits that it is discernible that the contract which
had been entered into in favour of plaintiffs No.1 and 2 jointly
was not a severable one and in the circumstances the suit ought
to have failed. He further submits that failure of suit had been all
the more necessitated as plaintiff No.2 had withdrawn himself
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from claim in the suit unconditionally, which is an absolute right
of a litigant, as such the purported agreement of sale loses its
efficacy. He further goes on to contend that the readiness and
willingness as had been shown in the claim with the withdrawal
of plaintiff No.2, joint readiness and willingness even if pleaded,
would not be a case which can be said to satisfy conditions under
section 16 (c) of the Specific Relief Act.
6. His thrust appears to be on that while an agreement of
sale has been contended to be executed in favour of two persons
by alleged vendor, after institution of suit for specific
performance one of the plaintiffs withdrawing from the suit,
whether a decree of specific performance would be possible,
since splitting up of the agreement would not be accommodated
by law.
7. Secondly, his case is while plaintiff No.2 had
unconditionally withdrawn from the suit for specific performance,
subsequently, who had been transposed in the array of
defendants, would be able to switch his stands, initially against
execution of agreement and subsequently in favour of its
execution, could be considered by the court for grant of specific
performance.
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8. He purports to state that requirement of section 16 (c) of
the Specific Relief Act, would not be able to said to have been
satisfied in the scenario and this aspect has escaped attention
while decision had been rendered on 27th November, 2014.
9. He submits that decision under review may ostensibly
dwell upon these aspects, however, it cannot be said to be
dealing with the same as would be required.
10.
Learned advocate submits that these are the errors which
emerge on record and are apparent and as such, review
application be granted.
11. Mr. Thigale, learned advocate for the review applicants,
refers to a decision of division bench of this court in the case of
"Dinkar s/o Kisanrao Warade vs. Gajanan Prasad Sahakari Gruh Taran Sanstha
and Others" reported in 2014 (4) Mh.L.J. 299 and draws attention to
observations in the decision as are appearing in paragraph No.22
reading, thus -
"22. The learned Counsel for respondent No. 4 has urged that this Court
cannot sit in appeal over its own judgment and the review jurisdiction
cannot be exercised as a substitute for appellate judgment. In Sant Lal
Gupta and others Versus Modern Cooperative Group Housing Society
Limited and others, reported in (2010) 13 SCC 336, the Hon. Apex Court
has pointed out that an error apparent on the face of record means an
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error which strikes one on mere looking and does not need a long drawn
out process of reasoning on points where there may conceivably be two
opinions. Such error should not require any extraneous matter to show
its incorrectness. Such error may include the giving of reasons that are
bad in law or inconsistent, unintelligible or inadequate. It may also
include the application of a wrong legal test to the facts found, taking
irrelevant considerations into account and failing to take relevant
considerations into ac count, and wrongful admission or exclusion of
evidence, as well as arriving at a conclusion without any supporting
evidence. The perusal of judgment of Cooperative Appellate Court,
points for determination & findings recorded therein and then judgment
delivered by learned Single Judge along with the impugned judgment
dated 12th September, 2008 delivered by this Court in Letters Patent
Appeal, clearly shows failure of this Court to take into account the
considerations, both factual & legal, relevant for exercise of the
appellate jurisdiction as also omission to consider the impact or validity
of material findings recorded by the Cooperative Appellate Court,
resulting into an error apparent on face of record. Merely by referring to
three documents, all the conclusions and findings recorded by the
Cooperative Appellate Court substantiated by it on the basis of material
on record, could not have been set aside & have not, in fact, been set
aside. Failure to look into entire material on record & not coming in
close quarter of the findings on facts recorded by the Cooperative
Appellate Court or then application of mind in writ jurisdiction by the
learned Single Judge, is nothing but an error apparent. We, therefore,
hold that judgment dated 12th September, 2008 suffers from an error
apparent on face of record."
12. Learned advocate for the review applicant in support of his
submissions, refers to and relies on a judgment in case of "Anil
Dinmani Shanakr Joshi and Another V/s. Chief Officer, Panvel Municipal
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Council, Panvel and Another" reported in AIR 2003 Bombay 238 to
emphasise that withdrawal from a suit is not dependent on the
order of court, since in the present case, not only there had been
an application for withdrawal but the same had been granted by
the court and as such, according to him, the suit, as far as
plaintiff No.2 is concerned, stood withdrawn and could not be
revived subsequently.
13. The other citation relied upon by learned advocate for the
review applicants is in the case of "Shiv Prasad V/s. Durga Prasad and
Another" reported in (1975) 1 SCC 405 for the similar purpose
drawing attention to paragraph No.12 in the same.
14. Judgment in the case of "Padmakumari and Others V/s. Dasayyan
and Others" reported in (2015) 8 SCC 695 has been relied on to stress
that with withdrawal of plaintiff No.2 from the fray, pleadings as
appearing would not stand to test of requirements under Order
VI, Rule 3 of the Civil Procedure Code and thus would not satisfy
requirements of section 16 (c) of the Specific Relief Act. As such,
it ought to have been considered that there is no readiness and
willingness pleaded as required.
15. While submissions have been advanced on behalf of the
review applicants as aforesaid, the same are sought to be
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countered by Mr. Amol Joshi, learned advocate appearing for the
respondent No.1 referring to that looking at the grounds as have
been taken in the Regular Civil Appeal No.213 of 2003 as also
grounds of Second Appeal No.795 of 2010 and the submissions
on behalf of the appellants would evince that the submissions
now advanced by learned advocate Mr. Naik-Thigale are
altogether foreign and new. None of these grounds had been
taken either in the memoranda of appeals or for that matter
during submissions hitherto. He submits that even if it is to be
considered that such case had been advanced, yet observations
as would appear in the judgment under review, particularly the
ones as appearing in paragraphs No.9, 12, 16 and 17 have taken
into account all the aspects as would be required to have
decision on the points canvassed. He submits that perusal of the
judgment under review would reveal not only facts but also
events those have occurred during litigation have been properly
taken note of and have been dwelt on.
16. Though, during the course of submissions, Mr. Thigale,
learned advocate purported to draw attention to that no original
record had been before the Hon'ble Single Judge while judgment
under review had been delivered, yet the same is repelled by Mr.
Joshi, learned advocate for the respondents stating that almost
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all the documents were placed on record during the course of
hearing.
17. Perusal of the judgment under review would show that
Hon'ble Single Judge in the judgment has referred to
submissions on behalf of the appellants in paragraphs No.3, 4, 5,
6 and 10 and as also to the citations which had been pressed
into service and had quoted relevant observations therein. The
Hon'ble Single Judge has also noted that the plaintiff has
changed his stand during pendency of Miscellaneous Civil Appeal
and further went on to observe that the plaintiff had shown his
willingness and readiness to perform his part of contract in
respect of entire land by paying balance consideration and had
appreciated that there is no question of division of the suit land
in the present case. He had considered in paragraph No.11
quoting excerpts of paragraphs No.6 and 8, from the citation,
would support case of plaintiffs. It had been considered that
theory of novation of contract does not carry any weight. Hon'ble
Single judge has further referred to submissions on behalf of
learned advocate for the review applicants that plaintiff and
defendant No.4 did not express joint readiness and willingness
and, therefore, decree of specific performance could not have
been granted. The Hon'ble Single Judge has observed and noted
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that defendant No.4 has supported case of the plaintiff and the
same has been appreciated in detail by the trial court in
paragraph No.30 and thus has found no substance in the same.
18. As far as submissions in respect of withdrawal being
complete and the matter could not have been proceeded for
decree of specific performance is concerned, under the
circumstances appears to be a ground which does not find place
while case was being proceeded with. Neither in the grounds
which had been taken at first or for that matter nor at second
appellate stage. This is a new ground, which is sought to be
pleaded. In the circumstances, although Mr. Thigale, learned
advocate for the review applicants has vehemently advanced his
submissions, I find it difficult to indulge into his request to
review the judgment and order, which apparently does not show
that the aspects as had been canvassed then have not been
dealt with and the judgment and order is deficient in respect of
the same.
19. While a review is being considered, it may have to be
borne in mind, proceedings may not be considered for other view
could have been possible and those would not be allowed to be
an appeal in disguise. Review application, as such, is
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not being considered and the same stands dismissed.
20. In view of dismissal of review application, civil application
No.3679 of 2015 does not survive and stands disposed of.
[SUNIL P. DESHMUKH, J.]
drp/rast6180
