The current appeal contests the Calcutta High Court's judgment that annulled the previous order, reinstating the Writ Petition for timely consideration on its merits, which is the focal point of ...
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(s).5140 OF 2019
(Arising out of SLP(C ) No(s). 5449 OF 2015)
SUNIL VASUDEVA & ORS. ….Appellant(s)
VERSUS
SUNDAR GUPTA & ORS. ….Respondent(s)
J U D G M E N T
Rastogi, J.
1.Leave granted.
2.The present appeal is being filed against the impugned
judgment dated 24
th
September, 2014 passed by the High Court
of Calcutta in RVW No. 272 of 2012 recalling the Order dated 19
th
October, 2012 and while setting aside the order dated 31
st
March,
2006 restoring the Writ Petition No. 18500(W) of 1985 to be
heard on its own merits as expeditiously as possible which is a
subject matter of challenge in appeal before us.
1
3.The facts that emerge from the multitude and collateral and
exhaustive pleadings of the parties in nutshell are that
respondent nos. 1, 2 and 3 (writ petitioners) are the grandsons of
Kirodimull Lohariwala and sons of Premchand Gupta both since
deceased, who constituted a H.U.F. which owned property No.
43, Prithviraj Road, New Delhi(subject property) standing in their
joint names having other properties at Calcutta.
4.The present appellants are alleged to be the legal heirs of
late V. N. Vasudeva who happens to be the income tax
practitioner and lawyer of late Kirodimull Lohariwala had
purchased the subject property in an open auction conducted by
the Income Tax Department on 18
th
August, 1964 for a
consideration of Rs. 2,60,000/ and the sale certificate with
respect to the suit property was issued on 1
st
April, 1965.
5.In August, 1957, late Kirodimull Lohariwala instituted a
Suit No. 1451 of 1957 before the High Court of Calcutta against
Premchand Gupta claiming the said property including other
properties as his selfacquired properties and in the interregnum
2
period, the official receiver was appointed over the subject
property by the High Court of Calcutta, who took possession of
the property on 1
st
May, 1958. The said property (43, Prithviraj
Road, New Delhi) was purported to be sold under Certificate
proceedings initiated by Income Tax Department for recovery of
alleged income tax dues of Sambhuram Kirodimull HUF to late
V.N. Vasudeva for a sum of Rs. 2,60,000/ on 18
th
August, 1964.
6.At this stage, objection was raised by late Kirodimull
Lohariwala against such purported sale to V.N. Vasudeva for the
reason that no leave was obtained from the High Court of
Calcutta which was although overruled by the Chief
Commissioner, Delhi on 26
th
February, 1965. At the same time,
application was filed by the Income Tax Department in the said
Suit No. 1451 of 1957 praying for (a) condonation of the omission
to obtain leave of Court before putting the Delhi property for sale
and (b) leave be given to it to complete the said sale of the Delhi
property in favour of V.N. Vasudeva and to give further effect
thereto. A certification of confirmation of sale was issued by the
District Collection Officer, Delhi purporting to confirm the said
purported sale dated 18
th
August, 1964 in favour of late V.N.
3
Vasudeva. At this stage, order was passed by the High Court of
Calcutta on the application of Union of India dated 8
th
September, 1965 granting liberty to the Income Tax Department
to put the Delhi property for sale by public auction or private
treaty to the best purchaser or purchasers that can be got for the
same. What will be the effect of the later order passed by the
High Court of Calcutta dated 8
th
September, 1965 in reference to
the order of the District Collection Officer, Delhi for confirmation
of the auction sale will not be advisable for this Court to examine.
7.A detailed correspondence took place between the Income
Tax Department and late Premchand Gupta (father of respondent
nos. 13) which is not required to be dilated in the instant
proceedings.
8.At this stage, respondent nos. 13 filed Title Suit No. 471 of
1985(Sundar Gupta & Ors. Vs. Sita Vasudeva & Ors.) before the
District Judge at Delhi on 19
th
May, 1985 for seeking declaration
to continue to be the owners of the suit property and for
injunction restraining the auction purchaser V.N. Vasudeva,
predecessor of the appellants from changing the nature of the
4
property. Indisputedly, Income tax authorities were not
impleaded as parties to the suit.
9.Respondent nos. 13 also filed Writ Petition bearing C.O. No.
18500(W) of 1985 against the Union of India and the present
appellants in the High Court of Calcutta regarding the purported
sale of the Delhi property to late V.N. Vasudeva under auction
dated 18
th
August, 1964 declaring that the purported sale dated
18
th
August, 1964 and issuance of the certificate of confirmation
of sale dated 1
st
April, 1965 in respect of the Delhi property be
declared as null and void and the subject property be remained
under attachment by income tax authorities.
10.Taking assistance of the order of the High Court of Calcutta
dated 8
th
September, 1965 passed on an application filed by
Union of India of which a reference has been made,
affidavits/counter affidavits were filed by the respective parties
and the writ petition(C.O. No. 18500(W) of 1985) was heard and
judgment was reserved by High Court of Calcutta in March/April,
1986 and after almost four and a half years, the Writ Petition
was dismissed by the Single Judge of the High Court on 26
th
5
October, 1990 dealing with the submissions and arriving to the
conclusion that since the writ petitioners have resorted to
alternative remedy of filing suit in the court of District Judge,
Delhi which although was pending on the date when the
judgment was reserved(Title Suit No. 471 of 1985) keeping all
points raised before the High Court of which a reference has been
left open to be agitated by the parties in the pending Title Suit
No. 471/1985 but the fact is that Title Suit No. 471/1985 which
was pending on the date when the judgment was reserved by the
High Court in March/April, 1986 came to be dismissed under
Order 9 Rule 2 Code of Civil Procedure due to nonserving upon
the main defendants vide order dated 3
rd
October, 1986 and
either of the party has not brought this fact to the notice of the
Court about the later developments of which reference has been
made. Immediately thereafter, respondent nos. 13 filed an
application for recalling/setting aside the order dated 26
th
October, 1990 and for deciding the writ petition on merits.
11.After hearing the parties, Single Judge of the High Court of
Calcutta under its order dated 20
th
November, 1998 allowed the
application filed by respondent nos. 13 and recalled the Order
6
dated 26
th
October, 1990 by restraining Vasudevas from dealing
with the subject property with the direction to hear the matter on
merits.
12.The present appellants preferred appeal against the Order
dated 20
th
November, 1998. The Division Bench of the High
Court of Calcutta in M.A.T. No. 87 of 1999 disposed of the appeal
under its Order dated 17
th
August, 2001 without interfering with
the order of recalling on review application dated 20
th
November,
1998 but as it reflects from the record, the present appellants
after taking note of the Order dated 17
th
August, 2001 considered
appropriate to prefer SLP(C ) No. 22491 of 2001 before this Court
which came to be dismissed at the motion stage on 10
th
January,
2002.
13.The present appellants thereafter filed application being
C.A. No. 3557 of 2005 in the disposed of Writ Petition No.
18500(W) of 1985 inter alia praying that the respondents be
restrained from proceeding with any advertisement for sale of suit
property as no such liberty has been given by the Court. Single
Judge of the High Court, after hearing the parties, held that there
7
was nothing pending before the Court and thus the aforesaid
miscellaneous application was held to be not maintainable under
its Order dated 31
st
March, 2006.
14.The Order dated 31
st
March, 2006 passed by the Single
Judge of the High Court came to be assailed by the respondents
in appeal that came to be dismissed vide Order dated 19
th
October 2012 with liberty to the respondents to file a fresh suit
on the selfsame cause of action in Delhi, if so advised. The
respondents preferred Review Application being RVW No.
272/2012 against the impugned judgment dated 19
th
October,
2012 and also the Order dated 31
st
March, 2006. By the
impugned order dated 24
th
September, 2014, the Order dated 19
th
October, 2012 was reviewed and in consequence, the order dated
31
st
March, 2006 was set aside and directed the Writ Petition No.
18500(W) of 1985 to be heard on its own merits which is a
subject matter of challenge at the instance of the appellants in
the instant appeal.
15.Mr. Mukul Rohatgi, learned senior counsel for the
appellants with his usual vehemence submits that the present
review petition filed by the respondents was not maintainable as
8
none of the grounds which have been taken note of meets the
principles of review jurisdiction of the Court as envisaged under
Order 47 Rule 1 Code of Civil Procedure which entails the basic
principles for entertaining the review petition and this Court in
Kamlesh Verma Vs. Mayawati and Others
1
has laid down the
principles where review can be said to be maintainable.
16.Learned counsel submits that in the instant case,
respondents have failed to canvass the principles for
maintainability of a review application and the Order passed by
the High Court under its review jurisdiction impugned dated 24
th
September, 2014 primarily does not satisfy the basic principles of
law regarding maintainability of the review application and even
in the impugned judgment, neither the High Court has been able
to decipher new and important matter from the evidence which,
after the exercise of due diligence, was not in the knowledge of
the review petitioner nor pointed out any mistake or error
apparent on the face of record or suggested any other sufficient
reason calling for review. In the given circumstances, the very
order impugned dated 24
th
September, 2014 passed by the High
1 2013(8) SCC 320
9
Court of Calcutta is not sustainable in law and deserves
interference by this Court.
17.Learned counsel further submits that the respondent nos.
13 in fact are repeatedly abusing the legal process and
launching litigation in regard to the subject property for more
than 50 years and their real purpose of filing Writ Petition No.
18500(W) of 1985 was to withhold the Income Tax Department
from attaching and selling other properties in Calcutta. It is only
by alleging that the suit property in Delhi was legally headed by
the Department and the suit property be put into sale afresh.
However, the fact is that the auction sale of suit property was
accepted by the owner of the said property Kirodimull Lohariwala
which is evident from a reply which he filed to an application in
the suit for eviction against the predecessor in interest of the
appellants and was taken note by the Single Judge in its Order
dated 26
th
October, 1990.
18.Learned counsel further submits that detailed judgment of
the Single Judge of the High Court dated 26
th
October, 1990 has
dealt with the several grounds raised on merits and merely
10
because the Judge has finally granted liberty to the respondents
in raising all questions in the first instance in the pending suit in
Delhi(Suit No. 471 of 1985) which was indeed pending on the
date when the judgment was reserved and was dismissed much
before the pronouncement of the judgment dated 26
th
October
1990 but the Single Judge of the High Court has dealt with all
the issues and repelled the same in its judgment dated 26
th
October, 1990.
19.In the given circumstances, learned counsel submits that
recalling of the order dated 26
th
October, 1990 under review
jurisdiction of the High Court and relegating the parties to square
one would be nothing but abuse of the legal process and needs to
be curbed and that is the reason for which the appellants have
approached this Court by filing an appeal despite the public
auction held by the Income Tax Department in the year 1964 in
favour of the predecessor in interest, V.A. Vasudeva and after the
purported sale stands confirmed overruling the objections of the
original owner of the property dated 26
th
February 1965 and
issuance of certificate of confirmation of sale dated 1
st
April,
1965, still they are unable to get fruits of the subject property in
11
question and relegating them to the year 1985 that too after more
than 34 years of the property put to auction would not be in the
interest of justice and that needs to be interfered by this Court.
20.Per contra, learned senior counsel for the respondents,
Mr. Jaideep Gupta and Mr. Siddharth Luthra and Mr. Ashok
Gupta, respondent in person, on the other hand, while
supporting the judgment impugned dated 24
th
September, 2014
submits that auction of the subject property in question was
never confirmed and submits that in February 1957 Kirodimull
Lohariwala (grandfather of the respondents) appointed V.N.
Vasudeva, an income tax practioner(father of appellant nos. 1 &
2) as his income tax lawyer and constituted attorney. V.N.
Vasudeva took full advantage of his fiduciary relation and
became tenant of the subject property on a paltry sum of Rs.
300/ per month. On May 1, 1958, Official Receiver was
appointed in Suit No. 1451 of 1957 by High Court of Calcutta
inter alia includes Delhi property. Since V.N. Vasudeva did not
pay rent of the Delhi property and set up a fictitious agreement
between himself & Kirodimull Lohariwala for adjustment of rents
against his professional fees, this Court castigated V.N. Vasudeva
12
in V.N. Vasudeva Vs. Kirodimal
2
arising out of the eviction
proceeding holding that V.N. Vasudeva avoided payment of the
monthly rent of Rs. 300/ to the Income Tax Officer(as Delhi
property was under attachment of Income Tax Department).
21.Learned counsel further submits that Civil Court does not
have any jurisdiction to deal with such matters in view of Section
293 of the Income Tax Act, 1961 and the only remedy available to
the respondents is to file a writ petition under Article 226 of
Constitution of India.
22.Learned counsel further submits that the Writ Petition No.
18500(W) of 1985 filed at the instance of the respondents indeed
came to be decided on 26
th
October, 1990 but has not taken note
of the effect of Section 293 of the Income Tax Act, 1961 and the
consequential effect of the order dated 8
th
September, 1965
passed by the High Court of Calcutta of which a reference has
been made and also the fact that judgment remain pending for
almost four and half years and prior thereto, the Title Suit No.
471 of 1985 was dismissed and in the given circumstances, the
2 AIR 1965 SC 440
13
conclusion arrived at by the Single Judge that all contentions are
available to be raised in the pending suit (in Delhi) in sequel
thereof was a mere observation and could not be said to be a
finding recorded on the subject matter and this what has been
projected by the High Court in relegating the parties to appear
before the Single Judge of the High Court and addressed in Writ
Petition No. 18500(W) of 1985 on merits and that cannot be
termed to be beyond its review jurisdiction as envisaged under
the law.
23.Learned counsel submits that if the Writ Petition No.
18500(W) of 1985 filed at the instance of the respondents is not
heard on merits, they will remain remediless as their contentions
have not yet been decided by any Court of competent jurisdiction
and further submits that no prejudice either way has been
caused to the parties as they are being relegated back to address
on merits in the Writ Petition No. 18500(W) of 1985, having all
contentions to be raised in the proceedings.
24.We have heard learned counsel for the parties and with
their assistance perused the material available on record.
14
25.From the material on record, it manifests that the subject
property (43, Prithviraj Road, New Delhi) was purported to be
sold in the certificate proceedings initiated by Income Tax
Department for recovery of income tax dues of Sambhuram
Kirodimull HUF to the auction purchaser late V.N. Vasudeva for a
sum of Rs. 2,60,000/ on August 18, 1964. Kirodimull objected
against such purported sale to V.N. Vasudeva because no leave
was obtained from the High Court of Calcutta which was
overruled by the Chief Commissioner, Delhi and confirmed the
purported sale in favour of V.N. Vasudeva vide Order dated 26
th
February, 1965. At this stage, application was filed by the
Income Tax Department in Suit No. 1451 of 1957 praying for (a)
condonation of the omission to obtain leave of Court before
putting the Delhi property for sale and (b) leave be given to it to
complete the said sale of the Delhi property in favour of V.N.
Vasudeva and to give further effect thereto. On an application
filed by Income Tax Department, the Single Judge of the High
Court of Calcutta in its Order dated 8
th
September, 1965 taking
note of the rival contention of the parties observed as follows:
15
“A.N. Ray (In Chambers)
Kirodimull Bhiwaniwala, also know as Kirodimull
Lohariwala resident at Sadar Bazar, Raigarh in the
State of Madhya Pradesh, outside the jurisdication of
this court.
Vs.
1.Premchand Gupta residing at 181A,
Chittaranjan Avenue, Calcutta within the said
jurisdiction.
2.Pawan Gupta
3.Sunder Gupta
the last two being minors under the age of 18 years
residing at 181 A, Chittaranjan Avenue, Calcutta with
the said jurisdiction.
4.Smt. Asrafi Devi alias Sm. Surfi Devi residing at
Sadar Bazar, Raigarh, in the State of Madhya Pradesh
outside the said jurisdiction.
Upon reading on the part of the Union of India through
its Income Tax Officer, Raigarh Civils, Raigarh
(hereinafter referred to as the said applicant union), a
Mastered Summons bearing date the third day of
March last and an affidavit of Sanat Kumar Mukherjee
of the due service thereof affirmed on the fifth day of
April last and a petition of the said applicant and an
affidavit of Ramdas Rambhorose Misra in verification
thereof affirmed on the fifteenth day of March last and
the exhibits annexed to the said petition and marked
respectively A,B,C and D and an affidavit of Ramdas
Rambhorose Misra of Raigarh affirmed on the
Seventeenth day of June last all filled this day and
upon reading on the part the of the defendants an
affidavit of Premchand Gupta affirmed on the fifth day
of May last and filed this day and upon hearing Mr. D.
Gupta advocate for the said applicant Union and Mr.
D.C. Basu advocate for the defendants (the plaintiffs
nor appearing either in person or by advocate, or
attorney).
It is ordered that the said applicant Union be at
liberty to put up the Delhi property being the joint
moveable and immoveable properties including
Premises No.43, Prithviraj Road, New Delhi, for sale
16
either by public auction or by private treaty to the best
purchaser or purchasers that can be got for the same.
Witness, Sri Himanshu Kumar Bose, Chief Justice
at Calcutta aforesaid the eighth day of September, one
thousand nine hundred and sixty five.
S.K. Mandal – Attorney
Sutt & Sen – Attorneys
S.B. Banerjee
20.1.1966
For Registrar
26.That apart, Section 293 of the Income Tax Act, 1961 put a
complete bar of filing suit in any civil court against the
revenue/income tax authority and the mandate of law remain
unnoticed when the order came to be passed by the Single Judge
of the High Court in Writ Petition No. 18500(W) of 1985 decided
on 26
th
October, 1990 while relegating the parties to address in
the alleged pending Civil Suit No. 471 of 1985 before the District
Judge at Delhi although it was dismissed much prior to the
pronouncement of the Judgment dated 26
th
October, 1990. Even
in the LPA, the Division Bench of the High Court granted liberty
to the respondents to file a fresh civil suit in respect of the
subject property in Delhi and either party has not brought to the
notice of the Court the mandate of law as envisaged under
Section 293 of the Income Tax Act, 1961 that the civil suit
17
against the Income tax Department is not maintainable under the
law, which appears to be mistakenly omitted by the Court in
arriving at the rival claims of the parties.
27.It was taken note of by the High Court in its review
jurisdiction and arrived to the conclusion that there appears to
be an error apparent on the face of record and consequently
allowed the application for review, recalled the Order dated 19
th
October, 2012 and set aside the Judgment and Order dated 31
st
March, 2006 passed in miscellaneous application and for
restoration of Writ Petition No. 18500(W) of 1985 to be heard on
its own merits under the impugned judgment dated 24
th
September, 2014.
28.The basic principles in which the review application could
be entertained have been eloquently examined by this Court in
Kamlesh Verma (supra) wherein this Court held as under:
“20. Thus, in view of the above, the following grounds of
review are maintainable as stipulated by the statute:
20.1. When the review will be maintainable:
18
(i) Discovery of new and important matter or evidence which,
after the exercise of due diligence, was not within knowledge
of the petitioner or could not be produced by him;
(ii) Mistake or error apparent on the face of the record;
(iii) Any other sufficient reason.
The words “any other sufficient reason” have been
interpreted in Chhajju Ram v. Neki [(1921-22) 49 IA 144 and
approved by this Court in Moran Mar Basselios
Catholicos v. Most Rev. Mar Poulose Athanasius AIR 1954
SC 526 to mean “a reason sufficient on grounds at least
analogous to those specified in the rule”. The same principles
have been reiterated in Union of India v. Sandur Manganese
& Iron Ores Ltd. (2013) 8 SCC 337.
20.2. When the review will not be maintainable:
(i) A repetition of old and overruled argument is not enough to
reopen concluded adjudications.
(ii) Minor mistakes of inconsequential import.
(iii) Review proceedings cannot be equated with the original
hearing of the case.
(iv) Review is not maintainable unless the material error,
manifest on the face of the order, undermines its soundness
or results in miscarriage of justice.
(v) A review is by no means an appeal in disguise whereby
an erroneous decision is reheard and corrected but lies only
for patent error.
(vi) The mere possibility of two views on the subject cannot
be a ground for review.
(vii) The error apparent on the face of the record should not
be an error which has to be fished out and searched.
(viii) The appreciation of evidence on record is fully within the
domain of the appellate court, it cannot be permitted to be
advanced in the review petition.
19
(ix) Review is not maintainable when the same relief sought
at the time of arguing the main matter had been negatived.”
29.Taking note of the exposition of the above principles let us
consider the facts on record and it reveals that the effect of
Section 293 of the Income Tax Act has been mistakenly omitted
under the judgment in review and that apart, the consequential
effect of the order of the High Court on an application filed by the
Union of India in Civil Suit No. 1451 of 1957 dated 8
th
September, 1965 was open to be examined in the writ
proceedings and it was the defence of the Income Tax
Department in the reply to the review application and also before
this Court in their counter affidavit that in the auction sale which
was held in the month of August, 1964, the permission from the
Court was not obtained and after the order came to be passed on
their application by the Single Judge of the High Court in Suit
No. 1451 of 1957 dated 8
th
September, 1965, it will certainly
affect the auction sale held by the Income Tax Department in
reference to the subject property in question and it was their
stand throughout in the proceedings.
20
30.We find that the Single Judge of the High Court of Calcutta
heard and reserved the judgment in Writ Petition No. 18500(W) of
1985 in March/April 1986 and after nearly four and half years,
the judgment pronounced on 26
th
October, 1990 relegating the
parties to raise all the contentions to their defence in the pending
civil suit before the District Judge, Delhi itself indicates that the
Single Judge was not inclined to express its opinion on merits
obviously for the reason that if the finding was recorded, it would
have prejudiced the rights of the parties to the litigation to be
examined in the alleged pending civil suit in the District Court,
Delhi which although was dismissed on 3
rd
October, 1986 much
before the pronouncement of the judgment dated 26
th
October,
1990 by the Single Judge of the High Court.
31.In the given facts and circumstances, we are not inclined to
dilate the issues on merits raised in the Writ Petition No.
18500(w) of 1985 filed at the instance of the respondents before
the High Court of Calcutta, but if the civil suit was not
maintainable as alleged in view of Section 293 of the Income Tax
Act and this was the purported defence of the respondents and of
the Income Tax Department and consequential effect to the Order
21
dated 8
th
September, 1965 of which a reference has been made by
us, no party could be left remediless and whatever the grievance
the party has raised before the Court of law, has to be examined
on its own merits. In our considered view, there appears no
error being committed by the High Court in passing the
impugned judgment dated 24
th
September, 2014 in exercise of its
review jurisdiction and that needs no interference by this Court.
32.We make it clear that what has been observed by us is only
for the purpose of disposal of the present appeal and the Writ
Petition No. 18500(w) of 1985 be decided by the High Court of
Calcutta on its own merits, after hearing the parties, in
accordance with law. Since the dispute is pending for sufficiently
long time, we expect that the High Court will give priority to the
matter and decide the writ petition expeditiously as possible.
33.The appeal is having no merit and is accordingly dismissed
with the observations supra. No costs.
22
34.Pending application(s), if any, stand disposed of.
…………………………..J.
(A.M. KHANWILKAR)
…………………………J.
(AJAY RASTOGI)
NEW DELHI
July 02, 2019
23
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