INDERCHAND JAIN (D) THROUGH L.RS. versus MOTILAL (D) THROUGH L.RS.

Citation: [2009] 11 S.C.R. 252 · Decided: 21-07-2009 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Appeal(s) allowed

Cited by 4 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
B 
[2009] 11 S.C.R. 252 
INDERCHAND JAIN (D) THROUGH L.RS. 
v. 
MOTILAL (D) THROUGH L.RS. 
(Civil Appeal No. 4584 of 2009) 
JULY 21, 2009 
[S.8. SINHA AND DEEPAK VERMA, JJ.] 
Code of Civil Procedure, 1908 - 'Or. 47 r. 1, s. 114 -
Review· petition - Maintainability of - Agreement for sale 
C between parties - Suit for specific performance decreed in 
favour of buyer - High Court in first appeal, setting aside the 
decree - Remittance of matter by Division Bench of High 
Court- Decree again set aside by Single Judge of High Court 
- R.eview petition by parties - Single Judge of High Court 
D allowed the petitions, recalled the earlier judgment and issued 
directi.on. for re-hearing - Sustainability of - Held: Not 
sustainable - Review application would lie when order suffers 
from an error on the face of record or there is discovery of new 
fact or there are sufficient reasons - Review Court does not 
E sit in appeal over its own order - High Court wrongly applied 
the principles of law - There was no discovery of new fact -
Thus, order of High Court set aside. 
Appellant-defendant entered into an agreement to 
sell property to respondent-plaintiff for Rs. 1, 15,000/- out 
F of which Rs. 20,000/- was paid in advance. Respondent 
filed suit for specific performance. The trial court decreed 
the suit in his favour holding that.in terms of the modified 
contract, the respondent was to pay a further sum of Rs. 
80;0001- only to the appellant. Aggrieved, appellant filed 
G an appeal and the order of trial court was set aside. 
During pendency of the appeal, the appellant 
unconditionally withdrew the amount deposited· by the 
respondent. Respondent file~ intra court appeal. Division 
Bench of High Court remitted the matter. Single Judge of 
H 
252 
• 
.J. 
-
INOERCHANO JAIN (0) THROUGH L.RS. v. MOTILAL 253 
(0) THROUGH L.RS. 
High Court again allowed the appeal and set aside the 
A 
order of trial court. The parties filed review petition before 
the Single Judge of High Court ul Or. 47 r. 1 CPC. The 
Single Judge recalled its earlier judgment and directed 
the appeal to be listed for re-hearing. Hence the present 
appeal. 
a 
Allowing the appeal, the Court 
HELD: 1.1. Section 114 CPC provides for a 
substantive power of review by a Civil Court and 
consequently by the appellate courts~ Section 114 of the c, 
Code although does not prescribe any limitation on the 
power of the, court but such limitations have been 
provided for in Order 47 Rule 1. An application for review 
would lie inter alia when the order suffers from an error 
apparent on the face of the record and permitting the 0 · 
same to continue would lead to failure of justice. The 
power of review can also be exercised by the court in the 
event of discovery of new and important matter or · 
evidence takes place which despite exercise of due 
diligence was not within the knowledge of the applicant 
E 
or could not be produced by him at the time when the 
order was made. An application for review would also lie 
if the order has been passed on accoll..nt~-e 
mistake. Furthermore, an application for review shall also 
lie for any other sufficient reason. The review court does 
F 
not sit in appeal over its own order. A re-hearing of the 
rltatter is impermissible. in law. It constitutes an exception 
to the general rule that once a judgment is signed or 
pronounced, it should not be altered. The exercise of 
inherent jurisdiction is not invoked for reviewing any 
G 
order. Review is not appeal in disguise. [Paras 8, 9· and 
10] (260-H; 261-A-C; 262-A, C-F] 
Rajendra Kumar v. Rambai AIR 2003 SC 2095; Lily 
Thomas v. Union of India AIR 2000 SC 1650, referred to. 
H 
254 
SUPREME COURT REPORTS 
. [2009) 11 S.C.R. 
·-y-
A 
1.2. Section 16(c) of the Specific Relief Act, 1963 
mandates that the 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 
B willing to perform his part of contract. Such readiness 
and willingness on the part of t~e plaintiff is not confined 
o-nfy to the stage of filing of the plaint but also .at the 
• 
subsequent stage, viz., at the hearing. Tht: readiness and 
_.._ 
willingness on the part of the plaintiff in view of his 
c categorical admission, therefore, was a conditional one. 
It was not absolute. Probably keeping in view the effect 
. 
. 
of such conditional offer made by him, he deposi

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