REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4584 OF 2009

(Arising out of SLP (Civil) No. 19736 of 2006)

Inderchand Jain (D) through L.Rs. …. Appellant

Versus

Motilal (D) through L.Rs. ….Respondent

J U D G M E N T

S.B. SINHA, J.

1.Leave granted.

2.The jurisdiction of a Court and/or the extent thereof to review its

own decision is the question involved in this appeal. It arises out of a

judgment and order dated 13.10.2006 passed by a learned Single Judge of

the High Court of Judicature for Rajasthan, Jaipur Bench, Jaipur in S.B.

Civil Review Petition No.33/2006 in S.B. Civil First Appeal No.36 of

1976 and and S.B. Civil First Appeal No.36 of 1976.

3.Before adverting to the aforementioned question, we may notice the

admitted facts.

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An agreement was entered into by and between the parties on or

about 15.10.1972 whereby and whereunder Inder Chand Jain-appellant

had agreed to sell a ‘haveli’ to Motilal – respondent for a consideration of

Rs.1,15,000/-, out of which a sum of Rs.20,000/- was paid in advance.

Respondent filed a suit for specific performance before the District

Judge, Jaipur City, in which a decree was passed on 11.11.1975. Being

dissatisfied, the appellant filed Civil First Appeal before the High Court

which was allowed on 12.03.1987 whereby the judgment and order of the

trial court was set aside.

On an intra court appeal filed by the respondent, a Division Bench

of the High Court by its order dated 26.10.2005 remanded the matter back

to the learned Single Judge for deciding the appeal afresh.

By an order dated 11.08.2006, a learned Single Judge of the High

Court allowed the appeal once again and set aside the judgment and

decree of the trial court.

4.Both the parties filed review petitions before the learned Single

Judge of the High Court under Order XLVII Rule 1 of the Code of Civil

Procedure seeking review of the judgment dated 11.08.2006. By the

impugned judgment and order the learned Single Judge while allowing

both the review petitions recalled its earlier judgment and order dated

11.08.2006 and directed the appeal to be listed for rehearing.

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5.Thus, the appellant-defendant is before this Court.

6.Mr. C.A. Sundaram, learned Senior Counsel appearing on behalf of

the appellant would urge :-

i)That the High Court exceeded its jurisdiction in exercise of

its review jurisdiction in so far it, for all intent and purport,

acted as an appellate court.

ii)The High Court in its review jurisdiction neither could re-

appreciate the evidence brought on record by the parties nor

could exercise its discretionary jurisdiction under Section 20

of the Specific Relief Act, 1963.

iii)On the face of the findings of the Division Bench of the High

Court that the plaintiff-respondent had not been ready and

willing to perform his part of the contract as provisions of

Section 20(2)(b) of the Specific Relief Act, 1963 could be

invoked only in a case when the High Court had come to the

conclusion that the plaintiff has made out a case of grant of

decree for specific performance and not otherwise.

iv)A finding of fact having been arrived at that the purported

contention of the plaintiff that the agreement for sale was

modified in terms whereof in place of Rs.1,15,000/- the

plaintiff-respondent was to pay a sum of Rs.80,000/- having

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been disbelieved, the High Court committed a serious error in

passing the impugned judgment.

7. Mr. K.K. Venugopal, learned senior counsel appearing on behalf of

the respondent, on the other hand, would urge that the High Court while

passing the judgment dated 26.10.2005 took into consideration the salient

features of this case as also the subsequent events and, thus, was justified

in passing its order, viz.:

(i)the possession of the premises in question had already been

delivered;

(ii)the settlement arrived at by and between the parties with

regard to the reduction of the amount of consideration stood

admitted inasmuch as according to the appellant himself in

the event the tenants were evicted a sum of Rs. 11000/- may

be deducted from the amount of consideration.

(iii)The plaintiff- respondent had deposited the entire balance

amount on 25.09.1975, i.e., two months prior to the passing

of the decree and, thus, there could not be any doubt or

dispute that the plaintiff- respondent had all along been ready

and willing to perform his part of contract.

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(iv)Appellant, after passing of the decree by the learned Trial

Court despite having preferred an appeal having himself

agreed for execution of the sale deed must be held to have

accepted the judgment and, thus, could not have been

permitted to turn round and contend that the plaintiff was not

ready and willing to perform his part of contract.

(v)Withdrawal of an amount of Rs. 35,000/- in terms of the

judgment of the Trial Court by the appellant without any

demur would not in law alter the situation.

(vi)A registered deed of sale having been executed pursuant to

the order of the Executing Court and the appellant having

been put in possession of the premises in suit having

expended a huge amount by way of renovation of the

‘haveli’, the learned Judge rightly found that it would be

inequitable to refuse to pass a judgment of specific

performance of contract.

8. Section 114 of the Code of Civil Procedure (for short “the Code”)

provides for a substantive power of review by a Civil Court and

consequently by the appellate courts. The words “subject as aforesaid”

occurring in Section 114 of the Code means subject to such conditions and

limitations as may be prescribed as appearing in Section 113 thereof and

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for the said purpose, the procedural conditions contained in Order 47 of

the Code must be taken into consideration.

9. Section 114 of the Code although does not prescribe any limitation

on the power of the court but such limitations have been provided for in

Order 47 of the Code; Rule 1 whereof reads as under:

“17. The power of a civil court to review its

judgment/decision is traceable in Section 114

CPC. The grounds on which review can be

sought are enumerated in Order 47 Rule 1 CPC,

which reads as under:

“1. Application for review of judgment.—(1)

Any person considering himself aggrieved—

(a) by a decree or order from which an appeal is

allowed, but from which no appeal has been

preferred,

(b) by a decree or order from which no appeal is

allowed, or

(c) by a decision on a reference from a Court of

Small Causes,

and who, from the discovery of new and

important matter or evidence which, after the

exercise of due diligence was not within his

knowledge or could not be produced by him at

the time when the decree was passed or order

made, or on account of some mistake or error

apparent on the face of the record, or for any

other sufficient reason, desires to obtain a

review of the decree passed or order made

against him, may apply for a review of judgment

to the court which passed the decree or made the

order.”

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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 same

to continue would lead to failure of justice. In Rajendra Kumar v.

Rambai [AIR 2003 SC 2095], this Court held :

“The limitations on exercise of the power of

review are well settled. The first and foremost

requirement of entertaining a review petition is

that the order, review of which is sought, suffers

from any error apparent on the face of the order

and permitting the order to stand will lead to

failure of justice. In the absence of any such error,

finality attached to the judgment/order cannot be

disturbed.”

The power of review can also be exercised by the court in the event

discovery of new and important matter or evidence takes place which

despite exercise of due diligence was not within the knowledge of the

applicant 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 account of some mistake. Furthermore, an application for

review shall also lie for any other sufficient reason.

10. It is beyond any doubt or dispute that the review court does not sit

in appeal over its own order. A re-hearing of the matter is impermissible

8

in law. It constitutes an exception to the general rule that once a judgment

is signed or pronounced, it should not be altered. It is also trite that

exercise of inherent jurisdiction is not invoked for reviewing any order.

Review is not appeal in disguise.

In Lily Thomas v. Union of India [AIR 2000 SC 1650], this Court

held :

“56. It follows, therefore, that the power of review

can be exercised for correction of a mistake and

not to substitute a view. Such powers can be

exercised within the limits of the statute dealing

with the exercise of power. The review cannot be

treated an appeal in disguise.”

11.Respondent in his plaint inter alia raised a plea of novation of

contract. Such a plea was advanced on the premise that a substantial

amount was to be expended for eviction of the tenants who were

occupying the premises in question.

For the said purpose, reference was made to Clause 13 of the

agreement dated 15.10.1972. Undoubtedly, defendant – appellant denied

and disputed that any modification in the said agreement had taken place

as a result whereof the balance amount payable was Rs. 80,000/. A bare

perusal of Clause 13 of the said agreement categorically shows that the

expenses for vacating the tenant were to be made through the defendant –

9

appellant only. It was for the defendant – appellant to accept any payment

from the plaintiff – respondent. Clause 13 does not envisage any

expenditure on the part of the plaintiff on the said account. It may,

however, be correct that the defendant – appellant in his deposition

accepted that he had made a representation to the plaintiff that in the event

the tenants are evicted on payment of the sum specified therein, the

amount so paid may be deducted from the amount of consideration.

According to him, the amount in question was a sum of Rs. 11,000/-. He,

however, contended that no amount was paid to the tenant.

Before the learned Trial Judge, both the parties adduced their

respective evidences. The plaintiff – respondent in cross-examination was

asked the following question:

“Whether or not you are prepared to purchase

the house, even if Sardarmalji and Inderchandji

could not settle the dispute of Rathiji, as has

been mentioned by you in your paper?”

In answer thereto, he stated as under:

“If the defendant Inderchandji is prepared &

ready to set off Rs. 30,000/- against the cost of

the house, then I am prepared to purchase the

house.”

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12. The readiness and willingness on the part of the plaintiff in view of

his 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 deposited the entire balance amount of consideration in

the court on 25.09.1975.

13. 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 willing to perform his part

of contract. Such readiness and willingness on the part of the plaintiff is

not confined only to the stage of filing of the plaint but also at the

subsequent stage, viz., at the hearing. It has been so held in Umabai and

Another v. Nilkanth Dhondiba Chavan (Dead) By LRs. And Another

[(2005) 6 SCC 243] in the following terms:

“30. It is now well settled that the conduct of the

parties, with a view to arrive at a finding as to

whether the plaintiff-respondents were all along

and still are ready and willing to perform their part

of contract as is mandatorily required under

Section 16(c) of the Specific Relief Act must be

determined having regard to the entire attending

circumstances. A bare averment in the plaint or a

statement made in the examination-in-chief would

not suffice. The conduct of the plaintiff-

respondents must be judged having regard to the

11

entirety of the pleadings as also the evidences

brought on records.

31. In terms of Forms 47 and 48 appended to

Appendix A of the Code of Civil Procedure, the

plaintiff must plead that “he has been and still is

ready and willing specifically to perform the

agreement on his part of which the defendant has

had notice” or “the plaintiff is still ready and

willing to pay the purchase money of the said

property to the defendant”. The offer of the

plaintiff in the instant case is a conditional one

and, thus, does not fulfil the requirements of law.”

Yet again in Sita Ram & Ors. v. Radhey Shyam, [AIR 2008 SC

143], while referring to Ardeshir H. Mam v. Flora Sassoon [AIR 1928 PC

208] this Court opined as under :

“ the Privy Council observed that where the

injured party sued at law for a breach, going to the

root of the contract, he thereby elected to treat the

contract as at an end himself and as discharged

from the obligations. No further performance by

him was either contemplated or had to be tendered.

In a suit for specific performance on the other

hand, he treated and was required by the Court to

treat the contract as still subsisting. He had in that

suit to allege, and if the fact was traversed, he was

required to prove a continuous readiness and

willingness from the date of the contract to the

time of the hearing, to perform the contract on his

part”

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

12

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 the

third stay application came up for hearing, by an order dated 9.11.1977

recorded as under:

“This is the 3

rd

stay application. No new

ground exists for grant of stay. Indeed, the

equities are not in favour of the defendant.

Since the 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 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 because a sum of Rs.

60,000/- is not in deposit, is wholly unwarranted.

The plaintiffs had actually deposited Rs. 1,15,000/,

as stated above. The deposit was tantamount to

payment.

As the 2

nd

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.

60,000/-. 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

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entitled to get the 2 sale-deeds registered in the

terms of the decree and no question of requiring

the plaintiffs to deposit the further sum of Rs.

7000/- arises.

The application for stay is, therefore,

rejected.”

It was in the aforementioned situation, Mr. Sundaram may 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.

15. On an intra-court appeal by the respondent, the matter 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 lower court.

However, at the time of deciding the First Appeal,

this fact escaped attention of the learned Single

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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.”

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 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

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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 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 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;

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(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., 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 as such the

court should have exercised its discretionary jurisdiction.

20. The issues raised before the appellate court, viz., whether there had

been a novation of contract 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

17

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. 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 thereupon arriving at a 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.

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 also by his creditor. 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

18

preclude the appellant from pursuing the appeal. The question as to

whether by reason of such withdrawal, he had accepted the judgment

passed by the learned Trial Judge and, thus, was estopped and precluded

from pursuing his appellate remedy was one of the points which fell for

consideration 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:

(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 involuntary.

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 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 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

19

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. Discretionary jurisdiction, it is trite, can be exercised provided

there is any room for the court to so 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., in the event the court came to the

conclusion 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 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

20

open. In any view of the matter, the same would amount to re-

appreciation of evidence which was beyond the review 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 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

21

may be conceivable 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’.”

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 741], this Court held :

“89. Order 47 Rule 1 of the Code provides for

filing an application for review. Such an

application for review would 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

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

22

would depend on the facts and circumstances of

the case. The words "sufficient reason" in Order 47

Rule 1 of the Code are wide enough to include a

misconception of fact or law 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 fair that the relief is moulded, varied

or reshaped in the light of updated facts.

The courts can take notice of the subsequent

events and can mould the relief accordingly.

But there is a rider to these well established

principles. This can be done only in

exceptional circumstances, some of which

have been highlighted above. This equitable

principle cannot, however, stand in the way

of the court adjudicating the rights already

vested by a statute. This well settled position

need not detain us, when the second point

urged by the appellants is focused. There

can be no quarrel with the proposition as

noted by the High Court that a party cannot

be made to suffer on account of an act of the

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Court. There is a well recognised maxim of

equity, namely, actus curiae neminem

gravabit which means an act of the Court

shall prejudice no man. This maxim is

founded upon justice and good sense which

serves a safe and certain guide for the

administration of law. The other maxim is,

lex non cogit ad impossibilia, i.e. the law

does not compel a man to do that what he

cannot possibly perform”.

Furthermore, in Jagmohan Singh v. State of Punjab & Ors. [(2007)

7 SCC 38], this Court held :

“It is furthermore evident that Order 47 Rule 1 of

the Code of Civil Procedure does not preclude the

High Court or a court to take into consideration

any subsequent event. If imparting of justice in a

given situation is the goal of the judiciary, the

court may take into consideration (of course on

rare occasions) the subsequent events.”

27. For the reasons aforementioned, the impugned 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

might 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.

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…………………………….J.

[S.B. Sinha]

…………………………….J.

[Deepak Verma]

New Delhi

July 21, 2009