Kunjika Construction Private Limited Thru.Vijay Jain vs. The Commissioner Of Income Tax (Appeals)

Whereas the appellant-defendant filed a review application confined to the question that he was entitled to the restitution of the property and mesne profit in respect whereof the learned Single Judge of the High Court did not pass 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) The appellant had prayed for an alternative relief viz. 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 appellant- defendant and as such the court should have exercised its discretionary jurisdiction.

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 moulding the relief as envisaged under Order 7 Rule 7 read with Order 41 Rule 33 of the Code of Civil Procedure. The same shall, however, 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.

Order 41 Rule 1 of the Code stipulates that filing of an appeal would not amount to automatic stay of the execution 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 appeal would, thus, be subject to the restitution of the property in the event the appeal is allowed and the decree is set aside. 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.

Contention of Mr Venugopal that the defendant having accepted novation of contract but only the quantum of the amount being different, the court could have asked the respondent-plaintiff 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 reappreciation of evidence which was beyond the review jurisdiction of the High Court.

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 summarised 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 CPC. (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 an error which must strike one on mere looking at the record and would not require any long-drawn process of reasoning on the points where there may conceivably be two opinions. (iii) Power of review may not be exercised on the ground that the decision was erroneous on merits. (iv) Power 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 gravabit.” In our opinion, the principles of law enumerated by it, in the facts of this case, have wrongly been applied.” The Apex Court while dealing with the scope of review has held that re-appreciation of evidence and rehearing of case without there being any error apparent on the face of the record is not permissible in light of provisions as contained U/s 114 and Order 47 Rule 1 of Code of Civil Procedure, 1908. The Apex Court in the case of S. Bagirathi Ammal Vs. Palani Roman Catholic Mission, reported in (2009) 10 SCC 464 in paragraphs 12 and 26 has held as under :- “12. An error contemplated under the Rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. In other words, it must be an error of inadvertence. It should be something more than a mere error and it must be one which must be manifest on the face of the record. When does an error cease to be mere error and becomes an error apparent on the face of the record depends upon the materials placed before the court. If the error is so apparent that without further investigation or enquiry, only one conclusion can be drawn in favour of the applicant, in such circumstances, the review will lie. Under the guise of review, the parties are not entitled to rehearing of the same issue but the issue can be decided just by a perusal of the records and if it is manifest can be set right by reviewing the order. With this background, let us analyse the impugned judgment of the High Court and find out whether it satisfies any of the tests formulated above.

As held earlier, if the judgment/order is vitiated by an apparent error or it is a palpable wrong and if the error is self-evident, review is permissible and in this case the High Court has rightly applied the said principles as provided under Order 47 Rule 1 CPC. In view of the same, we are unable to accept the arguments of learned Senior Counsel appearing for the appellant, on the other hand, we are in entire agreement with the view expressed by the High Court.” Keeping in view the aforesaid judgment, this court does not find any reason to review the order dated 20.07.2017 passed in I.T.A. No.52/2017 Resultantly, this Review Petition stands dismissed. Certified copy as per rules. (S.C. Sharma)