Rajasthan High Court
Shri Vaidik Shivdutt Joshi ... vs Smt. Shakuntala Devi W/O (Late ... on 23 March, 2022
Bench: Prakash Gupta
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
(1) S.B. Civil Review Petition No. 8/2022
in
S.B. Civil Revision Petition No. 218/2019
1. Shri Vaidik Shivdutt Joshi (Yagiq) @ Shivdutt Joshi S/o
Shri Nathulal Ji, (Since Deceased Through LRs)
2. Smt. Kamleshwari Devi D/o Shri Radheyshyam, W/o Shri
Bharat Das, Resident of 316, Near Kaljug Halwai,
Khuteton Ka Rasta, Kishanpole Bazar, Jaipur (Raj.)
3. Anisha D/o Shri Bharat Das, Resident Of 316, Near Kaljug
Halwai, Khuteton Ka Rasta, Kishanpole Bazar, Jaipur
(Raj.)
4. Ritika D/o Shri Bharat Das, Resident Of 316, Near Kaljug
Halwai, Khuteton Ka Rasta, Kishanpole Bazar, Jaipur
(Raj.)
5. Pooja D/o Shri Bharat Das, Resident Of 316, Near Kaljug
Halwai, Khuteton Ka Rasta, Kishanpole Bazar, Jaipur
(Raj.)
----Petitioners
Versus
1. Smt. Shakuntala Devi W/o (Late) Shri Hanuman Prasad
Agarwal, R/o House No. 1199, Mahant Niwai Ka Rasta,
Ramganj Bazar, Jaipur (Raj.)
2. Shri Hanuman Prasad Agarwal S/o Shri Surajnarayan
Agarwal, (Since Deceased Through Lrs), R/o House No.
1199, Mahant Niwai Ka Rasta, Ramganj Bazar, Jaipur
(Raj.)
2/1. Smt. Shakuntala Devi W/o (Late) Shri Hanuman Prasad
Agarwal, R/o House No. 1199, Mahant Niwai Ka Rasta,
Ramganj Bazar, Jaipur (Raj.)
2/2. Shri Girish Agarwal S/o (Late) Shri Hanuman Prasad
Agarwal, R/o House No. 1199, Mahant Niwai Ka Rasta,
Ramganj Bazar, Jaipur (Raj.)
2/3. Shri Manish Agarwal S/o (Late) Shri Hanuman Prasad
Agarwal, R/o House No. 1199, Mahant Niwai Ka Rasta,
Ramganj Bazar, Jaipur (Raj.)
2/4. Smt. Meenakashi Agarwal W/o Shri Sunil Kumar Agarwal
(Downloaded on 24/03/2022 at 08:47:32 PM)
(2 of 11) [CRW-8/2022]
D/o (Late) Shri Hanuman Prasad Agarwal, R/o House No.
1199, Mahant Niwai Ka Rasta, Ramganj Bazar, Jaipur
(Raj.)
3. Smt. Sarita Sharama W/o Shri Beniprasad Sharma,
Resident Of 10/46, Malviya Nagar, Jaipur (Raj.)
----Respondents
(2) S.B. Civil Review Petition No. 9/2022
In
S.B. Civil Revision Petition NO. 270/2019
1. Shri Vaidik Shivdutt Joshi (Yogiq) @ Shivdutt Joshi S/o
Shri Nathulal Ji, (Since Deceased Through Lrs)
2. Smt. Kamleshwari Devi D/o Shri Radheyshyam W/o Shri
Bharat Das, Resident of 316, Near Kaljug Halwai,
Khuteton Ka Rasta, Kishanpole Bazar, Jaipur (Raj.)
3. Anisha D/o Shri Bharat Das, Resident Of 316, Near
Kaljug Halwai, Khuteton Ka Rasta, Kishanpole Bazar,
Jaipur (Raj.)
4. Ritika D/o Shri Bharat Das, Resident of 316, Near Kaljug
Halwai, Khuteton Ka Rasta, Kishanpole Bazar, Jaipur
(Raj.)
5. Pooja D/o Shri Bharat Das, Resident Of 316, Near Kaljug
Halwai, Khuteton Ka Rasta, Kishanpole Bazar, Jaipur
(Raj.)
----Petitioners
Versus
1. Smt. Shakuntala Devi W/o (Late) Shri Hanuman Prasad
Agarwal, R/o House No. 1199, Mahant Niwai Ka Rasta,
Ramganj Bazar, Jaipur (Raj.)
2. Shri Hanuman Prasad Agarwal S/o Shri Surajnarayan
Agarwal, (Since Deceased Through Lrs) R/o House No.
1199, Mahant Niwai Ka Rasta, Ramganj Bazar, Jaipur
(Raj.)
2/1. Smt. Shakuntala Devi W/o (Late) Shri Hanuman Prasad
Agarwal, R/o House No. 1199, Mahant Niwai Ka Rasta,
Ramganj Bazar, Jaipur (Raj.)
2/2. Shri Girish Agarwal S/o (Late) Shri Hanuman Prasad
(3 of 11) [CRW-8/2022]
Agarwal, R/o House No. 1199, Mahant Niwai Ka Rasta,
Ramganj Bazar, Jaipur (Raj.)
2/3. Shri Manish Agarwal S/o (Late) Shri Hanuman Prasad
Agarwal, R/o House No. 1199, Mahant Niwai Ka Rasta,
Ramganj Bazar, Jaipur (Raj.)
2/4. Smt. Meenakshi Agarwal W/o Shri Sunil Kumar Agarwal
D/o (Late) Shri Hanuman Prasad Agarwal, R/o House
No. 1199, Mahant Niwai Ka Rasta, Ramganj Bazar,
Jaipur (Raj.)
3. Smt. Sarita Sharma W/o Shri Beniprasad Sharma,
Resident Of 10/46, Malviya Nagar, Jaipur (Raj.)
----Respondents
For Petitioner(s) : Ms. Shobha Gupta, Advocate (through
VC), Ms. Anuradha Upadhyay,
Advocate (through VC)
HON'BLE MR. JUSTICE PRAKASH GUPTA
Order
Date of Order :: 23/03/2022
These two review petitions have been filed by the
petitioners for review of the judgment dated 11.1.2022 passed by
this Court in S.B. Civil Revision Petition Nos. 218/2019 and
270/2019 respectively.
Learned counsel for the petitioners-judgment debtors
submits that the plaintiffs-decree holders Shakuntala Devi and
Hanuman Prasad filed a suit for specific performance of the
agreement dated 2.3.1988, which was decreed by the trial court
vide judgment dated 26.9.1994 and the defendant-judgment
debtor was directed to receive the balance sale consideration of
Rs. 3,99,000/- and to get the sale deed of the disputed property
registered in favour of the plaintiffs-decree holders within a
(4 of 11) [CRW-8/2022]
month. She further submits that the plaintiffs-decree holders
neither paid nor tendered the decreetal amount of Rs. 3,99,000/-
to the defendant within one month. The petitioners filed S.B. Civil
Regular First Appeal No. 63/1995 on 24.11.1994. She further
submits that the plaintiffs-decree holder deposited the balance
sale consideration of Rs. 3,99,000/- in the Court on 16.5.1995 i.e.
after expiry of about 8 months. Thereafter on 5.7.1995, the
plaintiffs-decree holder filed execution petition. On 20.9.1995, an
oral undertaking was given on behalf of the plaintiff-decree
holders before the Coordinate Bench of this Court that the
execution would not be pressed till 5.10.1995, which was
continued from time to time. In this way, there was no interim
order from 26.9.1994 to 20.9.1995. S.B. Civil Regular First Appeal
No. 63/1995 came to be dismissed by the Coordinate Bench of
this Court vide its order dated 15.3.2016. Thereafter Special
Leave Petition was filed, which also came to be dismissed vide
order dated 6.9.2016 with liberty to raise the plea for repudiation
before the executing court.
She further submits that on 27.9.2016, the
petitioners-judgment debtors filed objections before the Executing
Court stating therein that the decree cannot be executed because
no application seeking extension of time was filed. Thereafter, on
17.12.2016, subsequent purchaser filed an application under
Section 148 CPC seeking extension of time upto 16.5.1995, which
was allowed by the Executing Court vide its order dated 29.8.2019
and resultantly the objections filed by the petitioners-judgment
debtors came to be dismissed.
(5 of 11) [CRW-8/2022]
She further submits that as per the provisions of Order
20 Rule 12A CPC, the trial court was required to specify the
period, within which the payment of balance sale consideration
was to be made by the decree holders to the petitioners-judgment
debtors in case of specific performance. She further submits that
the balance sale consideration was not deposited by the decree
holders within a month and the same was deposited on 16.5.1995
i.e. after about 8 months and that too without filing an application
seeking extension of time or without an application seeking
condonation of delay in depositing the amount. She further
submits that for the first time, the application for extension of
time was filed on 17.12.2016 and no reason much less sufficient
reason was given in the application as to why the balance
consideration was not paid or deposited within one month. The
explanation given in the application was that due to wrong legal
advise, it could not be filed, which was not a sufficient cause. Even
the application was not supported by an affidavit of the advocate
concerned.
She further submits that on 16.5.1995 when the
amount was deposited, the decree holders were assuming that no
time limit was fixed for depositing the amount and therefore, no
extension of time was needed. When the petitioners-judgment
debtors filed the objections, the application under Section 148 CPC
readwith Section 28 of Specific Relief Act came to be filed seeking
extension of time. She further submits that under Section 148 of
the CPC, a maximum 30 days' time may be extended, but not
beyond that.
She further submits that this Court while dismissing the
revision petition distinguished the judgment passed by the Hon'ble
(6 of 11) [CRW-8/2022]
Apex Court in the case of Prem Jeevan Versus K.S. Venkata
Raman and Another reported in (2017) 11 SCC 57, whereas the
said judgment is fully applicable to the facts of the instant case.
She further submits that this Court distinguished the
judgment passed in the case of Bhupinder Kumar Versus
Angrej Singh reported in (2009) 8 SCC 766, whereas the said
judgment is also squarely applicable to the facts of the present
case. In the said case, there was no deposit till the application for
rescission of contract was filed and in the present case also, no
application for extension of time was filed before filing the
objections.
She further submits that the judgment passed in the
case of Surinder Pal Soni Versus Sohan Lal (D) through LRs
& Ors. reported in (2020) 15 SCC 771 and Mangilal Soni
through his Power of Attorney Holder Versus Suresh
Chandra Swarnkar - S.B. Civil Revision Petition No. 141/2019,
which dealt with the doctrine of merger of the judgment of the
trial court with that of the appellate court has no relevance in the
present case.
She has also relied upon the judgment passed by the
Hon'ble Apex Court in the case of Chanda Devi Versus Rattni
reported in 2007 (14) SCC 26 and submits that the plaintiffs were
required to deposit the balance sale consideration within the
period in the first instance and only then the defendant was
required to execute the sale deed within the time frame fixed.
She further submits that the essential ingredient for
extension of time was that decree holders were required to show
that they had the money with them and they were ready and
willing to deposit the amount and sufficient reason should have
(7 of 11) [CRW-8/2022]
been given in the application as to why the amount could not be
deposited in time. The application is bereft of any explanation
much less reasonable explanation. The decree holders have not
placed anything on record that they had the money with them.
The application seeking extension has been filed by the
subsequent purchaser and that too after about 22 years and
extension has been granted with retrospective effect, which is not
permissible. Hence, the judgment dated 11.1.2022 passed by this
Court is liable to be reviewed.
Heard. Considered.
From the material on record, it is evident that pursuant
to the judgment and decree dated 26.9.1994, the decree holders
filed challan in order to deposit the balance sale consideration of
Rs. 3,99,000/-, which was accepted by the executing court.
Pursuant thereto, the balance sale consideration of Rs. 3,99,000/-
was deposited in State Bank of Bikaner and Jaipur through challan
on 15.5.1995.
In the case of Aribam Tuleshwar Sharma Versus
Aribam Pishak Sharma reported in 1979 SC 1047, it has been
held that:
"..But, there are definitive limits to the
exercise of the power of review. The power of
review may be exercised on the discovery of
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, it may be exercised
where some mistake or error apparent on the
face of the record is found; it may also be
exercised on any analogous ground. But, it may
(8 of 11) [CRW-8/2022]
not be exercised on the ground that the decision
was erroneous on merits. That would be the
province of a Court of appeal. A power of review
is not to be confused with appellate power which
may enable an Appellate Court to correct all
manner of errors committed by the Subordinate
Court."
(Emphasis supplied by me)
In the case of Northern India Caterers (India) Ltd.
Versus Lt. Governor of Delhi reported in AIR 1980 SC 674, it
has been held that:
"A party is not entitled to seek a review of
a judgment delivered by the Court merely for
the purpose of a rehearing and a fresh decision
of the case. The normal principle is that a
judgment pronounced by the Court is final and
departure from that principle is justified only
when circumstances of a substantial and
compelling character make it necessary to do so.
Whatever may be the nature of the proceeding,
it is beyond dispute that a review proceeding
cannot be equated with the original hearing of
the case and the finality of the judgment
delivered by the Court will not be reconsidered
except where a glaring omission or a patent
mistake or a grave error has been crept in
earlier by judicial fallibility."
In the case of Parsion Devi Versus Sumiri Devi
reported in 1997 (8) SCC 715, Hon'ble Supreme Court observed
as under:
"Under Order XLVII Rule 1, Code of Civil
Procedure, a judgment may be open to review
inter alia, if there is a mistake or an error
(9 of 11) [CRW-8/2022]
apparent on the face of the record. An error
which is not self evident and has to be detected
by a process of reasoning, can hardly be said to
be an error apparent on the face of the record
justifying the Court to exercise its power of
review under Order XLVII, Rule 1, Code of Civil
Procedure. In exercise of the jurisdiction under
Order XLVII, Rule 1, Code of Civil Procedure, it is
not permissible for an erroneous decision to be
reheard and corrected. A review petition, it must
be remembered has a limited purpose and
cannot be allowed to be an appeal in disguise."
(Emphasis Supplied by me)
In the case of Haridas Das Versus Smt. Usha Rani
Bank and others reported in AIR 2006 SC 1634, it has been held
by the Hon'ble Apex Court:
"In order to appreciate the scope of a
review, Section 114 of the Code of Civil
Procedure, has to be read, but this section does
not even adumbrate the ambit of interference
expected of the Court since it merely states that
it "may make such order thereon as it thinks fit."
The parameters are prescribed in Order XLVII of
the Code of Civil Procedure, and for the
purposes of this lis, permit the Defendant to
press for a rehearing "on account of some
mistake or error apparent on the face of the
records or for any other sufficient reason." The
former part of the rule deals with a situation
attributable to the applicant, and the latter to a
jural action which is manifestly incorrect or on
which two conclusions are not possible. Neither
of them postulate a rehearing of the dispute
(10 of 11) [CRW-8/2022]
because a party had not highlighted all the
aspects of the case or could perhaps have
argued them more forcefully and / or cited
binding precedents to the Court and thereby
enjoyed a favourable verdict. This is amply
evident from the explanation in Rule 1 of the
Order XLVII which states that the fact that the
decision on a question of law on which the
judgment of the Court is based has been
reversed or modified by the subsequent decision
of a superior court in any other case, shall not
be a ground for the review of such judgment.
Where 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."
(Emphasis supplied by me)
Thus, it is settled position of law that power of review is
available only when there is a mistake or an error apparent on the
face of the record. In my considered view, in the garb of the
instant review petitions, counsel for the review petitioners seems
to be trying to re-argue the case on merits, which is not
permissible.
Taking into consideration the facts and circumstances of
the case and judgment passed by this Court in S.B. Civil Revision
Petition Nos. 218/2019 and 270/2019 on 11.1.2022, I find no
error apparent on the face of the record in the aforesaid
judgment.
(11 of 11) [CRW-8/2022]
For the aforesaid reasons, I find no force in these
review petitions and the same being bereft of any merit is liable to
be dismissed, which stand dismissed accordingly.
Registry is directed to place a copy of this order in
connected file.
(PRAKASH GUPTA),J
DK/5-6
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