Paragraph numbers below are the court’s original numbering, recovered from the source text.
14. It is no doubt true that the learned Trial Judge decreed the suit inter alia opining that in terms of the modified contract, the plaintiff was to pay a further sum of Rs. 80,000/- only to the defendant. The defendant did not accept the said finding. He -…_ preferred an appeal. Admittedly, he filed three applications for stay. The learned Single Judge before whom th~/third stay application came up for hearing, by an order datetl 9.11.1977 recorded as under: ''This is the 3rd stay application. No new ground exists for grant of stay. Indeed, the equities are not in favour of the defendant. Since ihe defendant was not in a position to deliver the vacant possession of the Haveli in suit, the plaintiffs were entitled to a decree for specific performance, on [2009) 11 S.C.R. payment of Rs. 80,000/- in the shape of its price. Admittedly, the plaintiffs deposited Rs. 20,000/- on 15.10.1972 and Rs. 95,000/- on 24.09.1975, i.e., Rs. 1, 15,000/- in all, towards the price of the Haveli on the expectation that the defendant would deliver vacant possession. The contention that the plaintiffs are not entitled to execute the decree beca.use a sum of Rs. 60,000/- is not in deposit, is wholly unwarranted. The plaintiffs had actually c deposited Rs. 1, 15,000/, as stated above. The deposit was tantamount to payment. As the 2nd condition becomes operative, the plaintiffs withdrew the excess amount of Rs. 35,000/- as well as the costs amounting to Rs. 7075/-. They were entitled to their costs and therefore could deduct the same under Order XX rule 6(3) of the Code of Civil Procedure and, therefore, Rs. 7075/- have to be deducted from Rs. ….. 60,0001-. The order sheet of the executing court dated 15. 10.1977 shows that a ·creditor of the defendant has withdrawn Rs. 6952.37 p. There is no non-compliance of the terms of the decree on the part of the plaintiffs and they are entitled to get the 2 sale-deeds registered in the terms of the decree and no question of requiring the plaintiffs to deposit the .x further sum of Rs. 7000/- arises. The application for stay is, therefore, rejected." It was in the aforementioned situation, Mr. Sundaram may G be justified in contending that the appellant had no other option but to agree to the execution of the document. The learned Single Judge by an order dated 12.03.1987 ·""'- allowed the appeal and the judgment of the Trial Court was set aside. INDERCHAND JAIN (D) THROUGH L.RS. v. MOTILAL 267 (D) THROUGH L.RS. [S.B. SINHA, J.] –('""
15. On an intra-court appeal by the respondent, the matter A was finally heard by the Division Bench. As regards, the effect of unconditional withdrawal of the amount during pendency of the appeal, the Division Bench noticed: "It appears that S.B. Civil First Appeal No.36/1976 was filed on April 22, 1976 by the defendant -respondent and during pendency of the first appeal, the amount deposited by the plaintiff was withdrawn by the defendant …. unconditionally and the Executing Court thereafter registered the sale deed in pursuance of the decree of the c lower court. However, at the time of deciding the First Appeal, this fact escaped attention of the learned Single Judge. In our opinion, it was necessary for the learned Single Judge to analyse the effect of unconditional withdrawal of money by the defendant during the pendency of appeal." t-
16. Keeping in view the aforementioned finding, the Division Bench could have remitted the matter for a limited purpose. It, however, did not do so. It unjustifiably remitted the entire matter. Legality of such an order is, however, not in question.
17. The learned Single Judge of the High Court upon consideration of all materials and evidences available on-record allowed the appeal and set aside the judgment and decree passed by the learned Trial Judge by an order dated 11.08.2006, stating : " … Thus, in view of the evidence brought on record it must be concluded that the plaintiff respondent has not been able to prove the said oral agreement with respect to the. G reduction of sale price by Rs. 35,000/-. It· has not been _;-; established as to at which place and on what date the alleged oral agreement between the parties had taken place. Meaning thereby, the plaintiff Motilal, in my considered view, was not ready and willing to purchase the haveli in question at any point of time … … Since the plaintiff accepted the payment after execution of decree by registration of sale deed through court on 24.02.1978, therefore, withdrawal/ acceptance of Rs. 45972/- in compliance of executing court's order dated 10.03.1978 cannot be said to have an adverse effect on the case of the defendant appellant." ·
18. The said judgment was accepted as no appeal was )… preferred thereagainst. It was only thereafter a review C application was.filed by both the parties.
19. Whereas the defendant – appellant filed a review application confined to the question that he was entitled to the restitution of the property and mesne profit in respect whereof 0 the l~arned Single Ju~ge. of the Hi~h Court did not ~~ss any . specific order, the application for review filed by the respondent was on the merit of the judgment. The relevant grounds of review which have been placed before us relate to : (i) Unconditional withdrawal of some amount by one of the creditors of the defendant as also the defendant himself; (ii) The defendant's application before the Executing Court that he was ready and willing to ;get the sale deed executed on receipt of amount in cash and the said admission allegedly was not brought to the notice of the court; (iii) While holding that there was no agreement to reduce the sale consideration, the High Court had ignored the fact that it was an admitted case of the parties, as stipulated in the contract, that the defendants would get the premises vacated from the tenants within three months. (iv) Appellant had prayed for an alternative relief, viz., INDERCHAND JAIN (D) THROUGH L.RS. v. MOTILAL 269 (D) THROUGH L.RS. [S.B. SINHA, J.] ……,- that he was ready to get the decree for specific performance of contract by paying Rs. 1, 15,000/-. The court did not consider the evidence of DWs 1 to 6 in their proper perspective. (v) The court did not consider that the property could not be restored back to the defendant – appellant and ~s such the court should have exercised its .A discretionary jurisdiction .
20. The issues raised before the appellate court, viz., c whether there had been a novation of cJntract or whether the plaintiff was ready and willing to perform his part of contract, – as is required under Section 16(c) of the Specific Relief Act, are essentially questions of fact. The Trial Judge had determined the said issues which were appealed against. An appeal is a continuation of the suit. Any decision taken by the appellate court would relate back unless a contrary intention is shown to the date of institution of the suit: There cannot be any doubt that the appellate court while exercising its appellate jurisdiction would be entitled to take into consideration the subsequent events for the purpose of rrioulding the relief as e: envisaged under Order 7, Rule 7 read with Order 41, Rule 33 of the Code of Civil Procedure. The same sh~H. however, not mean that the c_~urt 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. For the purpose of obtaining a decree for specific performance of contract, the court must arrive at a conclusion that the plaintiff not only pleaded but also established his readiness and willingness to perform his part of contract throughout. Exercising the discretionary jurisdiction one way or the other having regard to Section 20(2)(b) would depend tnereupon arriving at a _,,7 finding of such fact. Balancing of interest would be necessary provided a suit is to be decreed and not when the suit is to be dismissed. [2009) 11 S.C.R.
21. The sequence of events to which we have adverted to heretobefore clearly go to show that the appellate court were all along aware of the main issues touching the merit of the matter. They were also aware as to the effect or otherwise of the withdrawal of the amount by the appellant unconditionally as B also by his cr~ditor. The plaintiff – respondent on the aforementioned premise was entitled to contend and in fact contended that unconditional withdrawal of a part of the deposited amount would preclude the appellant from pursuing the appeal. The question as to whether by reason of such c withdrawal, he had accepted the judgment passed by the learned Trial Judge and, thus, was estopped and precluded from pursu~g his appellate remedy was one of the points which fell for con ideration before the appellate court. Keeping in view the entirety of the facts and circumstances of the case, the appellate court arrived at two crucial findings: '"f (i) The plaintiff had not been all along ready and willing to deposit the balance sum of Rs. 95,000/-. (ii) The unconditional withdrawal on the part of the defendant was invoh.mtary. The events which had taken place subsequently, viz., registration of the said deed of sale, purported taking over of possession of the suit premises by the plaintiff and alleged ,A; F expenditure incurred by him for renovation of the building, were within the knowledge of the parties and the court. It was, therefore, not a discovery of a new fact which despite due diligence the plaintiff could not bring to the notice of the court.
22. Order 41, Rule 1 of the Code stipulates that filing of an appeal would not amount to automatic stay of the execution 'f:', of the decree. The law acknowledges that during pendency of the appeal it is possible for the decree holder to get the decree executed. The execution of the decree during pendency of the H appeal would, thus, be subject to the restitution of the property INDERCHAND JAIN (D) THROUGH L.RS. v. MOTILAL 271 (D) THROUGH L.RS. [S.S. SINHA, J.] in the event the appeal is allowed and the decree is set aside. A The court only at the time of passing a judgment and decree reversing that of the appellate court should take into consideration the subsequent events, but, by no stretch of imagination, can refuse to do so despite arriving at the findings that the plaintiff would not be entitled to grant of a decree. a Discretionary jurisdiction, it is trite, can be exercised provided there is any room for the court to do same and not otherwise . The court while exercising its jurisdiction would not act arbitrarily or beyond the contours of law. The contention of the plaintiff that he had also prayed for grant of a decree in the alternative, viz., c in the event the court came to the conclusiora that there had been no novation of contract, he was ready and willing to deposit the entire amount. No conditional offer was permissible in a suit for specific performance of contract.
23. Contention of Mr. Venugopal that the defendant having -t" accepted novation of contract but only the quantum of the amount being different, the court could have asked the plaintiff – respondent to deposit a further sum of Rs. 24,000/- cannot be accepted for more than one reason. Apart from the fact that such a contention had never been raised before the appellate court, keeping in view the finding of fact arrived at that there had in fact been no novation of contract, such a course of action was not open. In any view of the matter, the same would amount to re-appreciation of evidence which was beyond the review Jo. jurisdiction of the High Court.
24. We have noticed hereinbefore, that under what circumstances the aforementioned amount of Rs. 1, 15000/- was deposited by the respondent. He might have been advised to do so keeping in view the fact that, according to him, he was ready and willing to perform his part of contract provided the –"' balance amount of consideration was reduced to Rs. 80,000/
25. The High Court had rightly noticed the review jurisdiction of the court, which is as under: "The law on the subject – exercise of power of review, as propounded by the Apex Court and various other High .Courts may be summarized as hereunder: (i) Review proceedings are not by way of appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 C.P.C. (ii) Power of review may be exercised when some mistake or error apparent on the fact of record is found. But error on the face of record must be such c an error which must strike one on mere looking at the record and would not .re((uire any long drawn process of reasol)ing~,0n the>points where there may be conceivable tie~o opinions. (iii) Power of review may not be exercised on the ,ground that the decision was erroneous on merits. "")– (iv) Pdwer of review can also be exercised for any sufficient reason which is wide enough to include a misconception of fact or law by a court or even an Advocate. (v) An application for review may be necessitated by way of invoking the doctrine 'actus curiae neminem g ravabit'." k
26. In our opinion, the principles of law enumerated by it, in the facts of this case, have wrongly been applied. In Board of Control for Cricket in India & Anr. v. Netaji Cricket Club & Ors. [(2005) 4 SCC 7 41 ], this Court held : "89. Order 47 Rule 1 of the Code provides for filing an application for review. Such an application for review would 'y.._ be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is INDERCHAND JAIN (D) THROUGH L.RS. v. MOTILAL 273 (D) THROUGH L.RS. [S.S. SINHA, J.] ·–r necessitated on account of some mistake or for any other sufficient reason. 90. Thus, a mistake on the part of the court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefor. What would constitute sufficient reason would depend on the facts and circumstances of the case. The ,J.. words "sufficient reason" in Order 47 Rule 1 of the Code are wide enough to include a misconception of fact or law c by a court or even an advocate. An application for review may be necessitated by way of invoking the doctrine "actus curiae neminem gravabit"." It was furthermore observed: "94. In Rajesh D. Darbar and Ors. v. Narasingrao Krishnaji Kulkarni and Ors. (2003)7SCC219 , this Court noticed: "4. The impact of subsequent happenings may now be spelt out. First, its bearing on the right of action, second, on the nature of the relief and third, on its importance to create or destroy substantive rights. Where the nature of the relief, as originally sought, has become obsolete or unserviceable or a new form of relief will be more efficacious on account of developments subsequent to the suit or even during the appellate stage, it is but fain that the relief is moulded, varied or reshaped in the light of updated facts. The courts can take; notice of the subsequent events —ti and can mould the relief accordingly. But there is a rider .to these well establis~ed principles. This can be done only in exceptional circumstances, some of which have been highlighted above. This equitable principle cannot, however, stand in the -y way of the court adjudicating the rights already vested by a statlite. ·This well settled p.osition need not detain us, wf:len t~e second point u_rged by the appellants is focused. There can be no quarrel with tbe proposition as noted .by the High Court that a party cannot be made to suffer on account of an act of the Court. There is a well recognised maxim of equity, namely, actus curiae neminem gravabit which means an act of the Court shall prejudice no ).._ c man. This maxim is founded upon justice and good sense which sel'Ves a safe and certain guide for the administration of law. The other max:im is, lex non cogit ad impossibilia, i.e. the law does not compel a man to do that what he cannot possibl~ perform". Furthermore, in Jagmohan Singh v. State of Punjab & Ors. [(2007) 7 SCC 38], this Court_beld : –)- "It is furthermore evident that Order 47 Rule 1 of the Code of Civil Procedure does not precludeJhe High Court or a court to take into consideration any subsequent event. If imparting–of ju~ice in a given situation is the goal of the judi_<?jary,—the co~rt may take into consideration (of course on-rare occasions) the subsequent events." 27. Foi~the reasons aforementioned, the impugned F judgment cannot be sustained which is set aside accordingly. The appeal is allowed. However, it would be open to the plaintiff – respondent to file an appropriate application for recovery of such amount or amounts which he ri:i~_gbj_have expended towards renovation of the building, which may be considered on its own merits. The court shall furthermore -determine the amount of mesne profit which became payable to the appellant. -.,.. __ It would be open to the court to adjust the amount payable by the plaintiff to the defendant and vice-versa. H N.J. Appeal allowed.