NEERAJ JAIN & ANR. vs SUBHASH VOHRA
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of order : 5th February, 2024
+ Review Pet. 42/2024 in RFA 64/2024
NEERAJ JAIN & ANR. ….. Appellants
Through: Mr.Harshvardhan Pandey, Advocate with appellants in person
versus
SUBHASH VOHRA ….. Respondent
Through: Mr. Amit Gupta, Mr. Tarun Bagga, Mr. Shiv Verma, Ms. Muskan Nagpal, Advocates with Respondent in-person
CORAM:
HON’BLE MR. JUSTICE CHANDRA DHARI SINGH
ORDER
CHANDRA DHARI SINGH, J (Oral)
1. The appellants vide the instant review petition filed under Order XLVII Rule 1 read with Section 151 of Code of Civil Procedure, 1908, (CPC hereinafter) seeks the following reliefs:
A. Review the order dated 24.1.2024 to the extent it denies interim relief of stay of impugned judgment;
(B). Pass an such order(s)/directions as this Hon’ble Court may deem fit and proper in the present circumstances of the case.
2. The relevant facts that have led to the filing of the accompanying Regular First Appeal (RFA hereinafter) are reproduced herein below:
a) The appellants approached the respondent in the year 2010 as owners of shop bearing no. X/212, Mohalla Ram Nagar, Gandhi Nagar, Delhi 31 (hereinafter suit property) for a total sale consideration amount of Rs.40,50,000/-.
b) Thereafter, the parties executed an Agreement to Sell dated 20th July, 2010, whereby the part payment of Rs.20,50,000/- was made by the respondent to the appellants and the remaining payment was agreed to be paid on the date of execution of the sale deed on or before 30th August, 2010.
c) Since, the appellants failed to execute the sale deed, as agreed upon by the parties, hence in light of the same the respondent lodged an F.I.R bearing No. 289/10 under Section 420 read with Section 34 of the IPC against the appellants at Police Station Gandhi Nagar, Delhi.
d) Pursuant to which the appellants were convicted in the trial by the learned Metropolitan Magistrate respondent and were subsequently, acquitted by learned Additional Session Judge in appeal.
e) During the course of investigation of the criminal case, it came to the light that the brother of the appellants had filed a partition suit titled Anil Jain Vs. Prabhash Jain & Ors. before learned ADJ, Tis Hazari, Delhi and the same was pending at the time of execution of the agreement to sell dated 20th July, 2010.
f) Thereafter, vide order dated 5th August, 2010, the learned Trial Court granted an order for injunction with respect to the suit property due to which the said agreement to sell could not be specifically performed.
g) Aggrieved by the actions of the appellants the respondent herein filed a suit seeking a money decree for a sum of Rs.41,00,000/- along with pendente lite and future interest at the rate of 18%.
h) In view of the same, the learned Trial Court passed a money decree in favour of the respondent herein, for a recovery of sum of Rs.20,50,000/- with interest at the rate of 8% from 6th September, 2011, till the date of its realization observing that the Agreement to Sell dated 20th July, 2010, executed between the parties was proven and the said amount was paid as a part of advance money for purchasing a shop.
i) The appellants preferred the accompanying Regular First Appeal No.64 of 2024 under Section 96 of Code of Civil Procedure, 1908, read with Order XLI of Code of Civil Procedure, 1908, against the judgment and decree dated 17th October, 2023, (impugned judgment/decree hereinafter) in C.S. No. 124/2016 passed by the Learned ADJ-03, East, Karkardooma Courts, Delhi (ADJ hereinafter).
j) An application for stay bearing no. CM APPL. No.4651/2024 was preferred before this Court by the appellants seeking stay on the execution of the judgment/decree passed by the learned Trial Court, against which the appellants has preferred the instant appeal.
k) This Court passed an order dated 24th January, 2024, (impugned Order hereinafter) observing that since the appellant submit that they are financially incapable to deposit the decretal amount with this Court, therefore no interim stay can be granted in favour of the appellants.
l) Aggrieved by the impugned order dated 24th January 2024, the appellants have preferred the instant review petition.
3. Learned counsel appearing on behalf of the appellants submitted that they are not in a position to deposit the decretal amount since the appellant no. 1 is currently employed as a peon in a private medical clinic and the appellant no.2 is currently unemployed. Therefore, in light of the financial disability and the prevailing medical condition of the appellants, it was submitted before this Court on the date of passing of the impugned, that the appellants are not in a position to deposit the decretal amount.
4. It is submitted that pursuant to the passing of the impugned order, the son-in-law of the appellants has offered to advance a loan of Rs. 20 lakhs to the appellants for depositing the decretal amount with this Court, in order to seek stay on the execution of the impugned judgment/decree.
5. It is submitted that the appellants pleaded before this Court on the date of passing of the impugned order to accept the security in the form of shop, bearing no. 212 situated at Ram Nagar Chowk, Gandhi Nagar, Delhi (the Shop hereinafter). It is settled position of law that the High Court may permit furnishing of security instead of insisting on deposit of decretal amount in cash of the said amount and the learned counsel for the appellants have placed reliance on case titled Sihor Nagar Palika Bureau v. Bhabhlubhai Virabhai & Co., (2005) 4 SCC 1 to substantiate the said contention.
6. It is submitted that the shop has been attached and directed to be sold via auction by the orders dated 9th January, 2024, and 19th January, 2024, passed by the learned ADJ. Moreover, the said auction will lead to irreparable loss to the appellants.
7. Hence, in light of the foregoing submissions, the learned counsel for the appellants submitted that this Court may grant them the liberty to either deposit the said decretal amount or securitize the shop and accordingly, grant stay on the execution of the impugned judgment/decree.
8. Per Contra, the learned counsel appearing on behalf of the respondent vehemently opposed the instant review petition submitting to the effect that the same is liable to be dismissed being devoid of any merits.
9. It is submitted that the appellants cannot seek appreciation of new evidence placed on record in the garb of a review petition. The review petition has a very limited scope and cannot be allowed to be an appeal in disguise.
10. It is further submitted that the appellants cannot be permitted to re-agitate and reargue the contentions that have already been adjudicated upon by the Court. The appellants on the date of passing of the impugned order sought the securitization of the shop which was not permitted by this Court. Therefore, the review petition is not maintainable since the same relief was sought during the course of the argument on stay application and that the same had been denied by this Court.
11. It is submitted that the power of review can be exercised for correction of a mistake which is apparent on the face of it and not to substitute the view expressed in the order which under review.
12. It is submitted that there is no force in the arguments advanced by the appellants as they have not been able to bring forth any contentions to make the instant petition amenable to be entertained under the review jurisdiction of this Court.
13. In view of the foregoing submissions, the learned counsel submitted that the instant review petition, being devoid of any merits, is liable to be dismissed.
14. Heard the learned counsel appearing on behalf of the parties and perused the record.
15. Before delving into the merits of the instant case, it is pertinent to state the settled position of law with regard to the scope of powers conferred upon this Court under its review jurisdiction and also to ascertain the extent of such intervention.
16. The Honble Supreme Court in Sanjay Kumar Agarwal v. State Tax Officer (1), 2023 SCC OnLine SC 140, highlighted the underlying principle for review and stated both the conditions for and against the exercise of review jurisdiction. The relevant paragraphs are reproduced herein below:
8. Before adverting to the contentions raised by the learned counsels for the parties, let us regurgitate the well settled law on the scope of review as contemplated in Order XLVII of the Supreme Court Rules read with Order XLVII of CPC.
9. In the words of Krishna Iyer J., (as His Lordship then was) a plea of review, unless the first judicial view is manifestly distorted, is like asking for the Moon. A forensic defeat cannot be avenged by an invitation to have a second look, hopeful of discovery of flaws and reversal of result
A review in the Counsel’s mentation cannot repair the verdict once given. So, the law laid down must rest in peace.
10. It is also well settled that a party is not entitled to seek a review of a judgment delivered by this 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.
11. In Parsion Devi v. Sumitri Devi, this Court made very pivotal observations:
9. Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error 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 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC 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.
12. Again, in Shanti Conductors Private Limited v. Assam State Electricity Board, a three Judge Bench of this Court following Parsion Devi v. Sumitri Devi (supra) dismissed the review petitions holding that the scope of review is limited and under the guise of review, the petitioner cannot be permitted to reagitate and reargue the questions which have already been addressed and decided.
13. Recently, in Shri Ram Sahu (Dead) Through Legal Representatives v. Vinod Kumar Rawat, this Court restated the law with regard to the scope of review under Section 114 read with Order XLVII of CPC.
14. In R.P. (C) Nos. 1273-1274 of 2021 in Civil Appeal Nos. 8345-8346 of 2018 (Arun Dev Upadhyaya v. Integrated Sales Service Limited), this Court reiterated the law and held that:
15. From the above, it is evident that a power to review cannot be exercised as an appellate power and has to be strictly confined to the scope and ambit of Order XLVII Rule 1CPC. An error on the face of record must be such an error which, mere looking at the record should strike and it should not require any long-drawn process of reasoning on the points where there may conceivably be two opinions.
15. It is very pertinent to note that recently the Constitution Bench in Beghar Foundation v. Justice K.S. Puttaswamy (Retired), held that even the change in law or subsequent decision/judgment of co-ordinate Bench or larger Bench by itself cannot be regarded as a ground for review.
16. The gist of the afore-stated decisions is that:
(i) A judgment is open to review inter alia if there is a mistake or an error apparent on the face of the record.
(ii) 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.
(iii) 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 record justifying the court to exercise its power of review.
(iv) In exercise of the jurisdiction under Order 47 Rule 1 CPC, it is not permissible for an erroneous decision to be reheard and corrected.
(v) A Review Petition has a limited purpose and cannot be allowed to be an appeal in disguise.
(vi) Under the guise of review, the petitioner cannot be permitted to reagitate and reargue the questions which have already been addressed and decided.
(vii) An error on the face of record must be such an error which, mere looking at the record should strike and it should not require any long-drawn process of reasoning on the points where there may conceivably be two opinions.
(viii) Even the change in law or subsequent decision/judgment of a co-ordinate or larger Bench by itself cannot be regarded as a ground for review.
17. In this backdrop, this Court is of the view that a review petition is to be exercised sparingly and should not be allowed to be an appeal in disguise. Since the scope under the review jurisdiction is limited, the appellants cannot be permitted to re-agitate and reargue the questions already addressed and adjudicated upon under the guise of review.
18. For a High Court to exercise its power of review there must be an error/mistake apparent on the face of the record. An error which is highlighted by way of reasoning to such effect is not an error apparent on the face of it and hence, jurisdiction under review may not be exercised. The High Court is conferred with powers of review which is distinct from that of an appellate forum. The said power is neither the inherent power of this Court, nor is the review a means for covert appeal.
19. It is the case of the appellants that the appellants are financially disabled to deposit the decretal amount and by way of the instant review petition it is submitted before this Court that the appellants son-in-law is willing to advance a loan for a sum of Rs.20 lakhs. Lastly, the appellants contend that this Court may permit them to securitize the shop before this Court.
20. In rival submissions, the respondent submitted that new facts cannot be adjudicated by the Court in a review petition. Moreover, re- hearing of the matter is impermissible and the instant revision petition is an appeal in the garb of a revision petition.
21. The relevant portion of the said impugned order is reproduced herein below:
6. Qua CM APPL. No.4651/2024 seeking interim relief, in reply to a specific Court query during the course of proceedings, the learned counsel appearing on behalf of the appellant submitted that he is not able to deposit the decretal amount.
7. In terms of orders dated 9th January, 2024 and 19th January, 2024, and the response to the specific Court query, I am not inclined to grant any interim relief, at this stage.
22. Upon perusal of the impugned order, the order dated 9th January, 2024 passed by the learned Additional District Judge categorically mentions that the appellants have refused to pay the decretal amount. Further, as per order dated 19th January, 2024, by the learned Additional District Judge appointed the Court Auctioneer for auction/sale of the attached suit property. Moreover, this Court during the course of arguments asked the appellant whether the appellant will deposit the decretal amount with this Court. The appellant submitted to this effect that the appellant are not in a capacity to deposit the decretal amount.
23. Therefore, in terms of the orders dated 9th January, 2024, and 19th January, 2024, passed by the learned Additional District Judge as well as this Court querys during the proceedings, this Court was not inclined to grant any interim relief to the appellant at that particular stage.
24. Now adverting to the instant review petition.
25. During the course of arguments, the appellants placed their reliance upon the case titled as Sihor Nagar Palika Bureau v. Bhabhlubhai Virabhai & Co., (2005) 4 SCC 1 in support of contention with regards to securitisation of the Shop. The relevant portion is reproduced herein below:
6. Order 41 Rule 1(3) CPC provides that in an appeal against a decree for payment of amount the appellant shall, within the time permitted by the appellate court, deposit the amount disputed in the appeal or furnish such security in respect thereof as the court may think fit. Under Order 41 Rule 5(5), a deposit or security, as abovesaid, is a condition precedent for an order by the appellate court staying the execution of the decree. A bare reading of the two provisions referred to hereinabove, shows a discretion having been conferred on the appellate court to direct either deposit of the amount disputed in the appeal or to permit such security in respect thereof being furnished as the appellate court may think fit. Needless to say that the discretion is to be exercised judicially and not arbitrarily depending on the facts and circumstances of a given case. Ordinarily, execution of a money decree is not stayed inasmuch as satisfaction of money decree does not amount to irreparable injury and in the event of the appeal being allowed, the remedy of restitution is always available to the successful party. Still the power is there, of course a discretionary power, and is meant to be exercised in appropriate cases.
9. In the facts and circumstances of the present case and having taken into consideration the respective submissions made by the learned counsel for the parties in very many details, we are satisfied to hold that the High Court ought to have permitted furnishing of security instead of insisting on deposit in cash of the amount as directed by the High Court. It is not the case of the respondent that in the event of the appeal being dismissed the decretal amount may not be recovered from the appellant. On the other hand, the appellant has made out a prima facie strong case for the hearing of the appeal on its merits and further a case that public interest would be better served by the amount being retained by the appellant during the pendency of the appeal. While making these observations, we should not be understood as having made any observation touching the merits of the case amounting to prejudging any of the issues arising for decision in the appeal and ex abundanti cautela we clarify that the appeal shall be heard by the High Court on its own merits uninfluenced by anything said in this order. The appellant has already furnished security of immovable property to the satisfaction of the trial court pursuant to the order dated 30-1-2004 passed by this Court.
26. Upon perusal of the above stated judgement it can be fairly summed with regards to staying the execution of the decree that, the High Court is conferred upon discretionary powers which shall be exercised as per the facts and circumstances of each case wherein the Court can direct securitization in any form and shall not insist only on depositing the decretal amount in the form of cash.
27. With respect to the above reasoning this Court is of the view that the reasoning of the Honble Supreme Court cannot be relied upon in the instant review petition since, under a review petition there is very limited scope and the power of review can be exercised only for correction of a view and not for substitution of the view expressed by the Court in the impugned order. Hence, this Court cannot appreciate the law as laid down by the Honble Supreme Court in the aforesaid judgment since, it falls outside the jurisdiction of this Court while adjudicating upon a review petition.
28. Therefore, advertence on merits of the impugned order falls under the jurisdiction of the appellate Court and this Court cannot act as a Court of appeal under its review jurisdiction.
29. In view of the aforesaid discussion, this Court is of the view that the appellants have not been able to show any fundamental error on the face of record that might cause prejudice to their case, hence, a case for review is not made out by the appellants. It is further observed that the appellants have, by way of the instant review petition, sought to rebut the arguments already addressed before this Court in the impugned order as well as it sought that the new fact which arose after passing the impugned order be adjudicated upon by this Court under a review petition, which is against the settled position of law with regard to the grounds for preferring a review petition.
30. Accordingly, this Court is of the view that the instant review petition is liable to be dismissed since there is no material error manifested on the face of the impugned order.
31. Therefore, this Court does not find any merit in the instant review petition. Accordingly, the instant revision stands dismissed, along with pending applications, if any.
32. The order be uploaded on the website forthwith.
CHANDRA DHARI SINGH, J
FEBRUARY 5th, 2024
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Review Pet. 42/2024 in RFA 64/2024 Page 14 of 14