Allowed

Deepak Kumar B v. Sahara Prime City Ltd.

Karnataka HC25 Mar 2024RP/36/2024

Case brief

AI extract

What is this about?

Review petition against the High Court's modification of a temporary injunction order in an appeal decided without notice to plaintiff No.2. Holding that deciding the matter without hearing a party violated natural justice, the court recalled its earlier order and directed the appeal be listed afresh with plaintiff No.2 heard.

What did the court decide?

Order dated 04.01.2024 in MFA No.8523/2023 recalled; appeal directed to be posted for admission with petitioner heard; listed on 02.04.2024.

Deepak Kumar B Vs Sahara Prime City Ltd. — Specific Performance | Karnataka HC (2024)

¶1

¶2

NC: 2024:KHC:12199 RP No. 36 of 2024

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU R

¶4

DATED THIS THE 25^TH DAY OF MARCH, 2024

¶5

BEFORE

¶6

THE HON'BLE MR JUSTICE H.P.SANDESH

¶7

REVIEW PETITION NO. 36 OF 2024 IN

¶8

M.F.A.NO.8523/2023

¶9

BETWEEN:

¶10

DEEPAK KUMAR B., S/O BHAWARLA KOTHARI AGED ABOUT 41 YEARS, R/AT HOUSE NO.131 11^TH MAIN, KAPILA MARGA SIDDARTHANAGAR MYSORE-570011

¶11

…PETITIONER

¶12

(BY SRI L. SRINIVASA BABU, ADVOCATE)

¶13

AND:

¶14

Digitally signed by SHARANYA T Location: HIGH COURT OF KARNATAKA

¶15

SAHARA PRIME CITY LTD., A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 HAVING ITS OFFICE AT 3^RD FLOOR, EXECUTIVE OFFICE HOTEL SAHARA STAR VILE PARLE MUMBAI MAHARASTRA-400021 PRESENTLY REPRESENTED BY ITS AUTHORIZED SIGNATORY SRI K.B.NAGARAJ

¶16

(VIDE ORDER DATED 12.03.2024)

¶17

SRI SHIVSHANKAR DUDHALE S/O GANGADHAR

¶18

2 - NC: 2024:KHC:12199 RP No. 36 of 2024

¶19

AGED ABOUT 55 YEARS, R/AT ‘AMEESH CHS’, 44/A/404, NEAR TILAK NAGAR POLICE STATION, CHEMBUR TILAK NAGAR MUMBAI-400089

¶20

THE SAIN PROCESSING AND WEAVING MILLS PVT. LTD., A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 HAVING ITS OFFICE AT 3^RD FLOOR, EXECUTIVE OFFICE HOTEL SAHARA STAR VILE PARLE MUMBAI MAHARASTRA-400021 PRESENTLY REPRESENTED BY ITS AUTHORIZED SIGNATORY DWARAKANATH GOVIND

¶21

SRI JAGESHWAR PRASAD S/O NANHE AGED ABOUT 51 YEARS R/AT RAIBHAN KHAND POST MOHANLAL GANJ UTTAR PRADESH-226301

¶22

SRI RAVIPRATHAP SHAHI S/O VIJAY BHAHUDUR SHAHI AGED ABOUT 51 YEARS, RESIDING AT JANAKIPURAM SECTOR D-II, LUCKNOW UTTAR PRADESH-226301

¶23

SRI ASHWIN KUMAR DUBEY S/O NARENDRANATH DUBEY AGED ABOUT 44 YEARS R/AT HOUSE NO.239, HARPUR NEW BASTHI BILLILA NEAR DHUMBABA MANDIR UTTAR PRADESH-226301.

¶24

…RESPONDENTS

¶25

¶26

NC: 2024:KHC:12199 RP No. 36 of 2024

¶27

(BY SRI. MADHUKAR DESHPANDE, ADVOCATE FOR R1; SRI KRISHNAMOORTHY D & SRI ASHISH RAM D., ADVOCATES FOR R2; NOTICE NOT ORDERED IN R/O R3 TO R6)

¶28

THIS REVIEW PETITION UNDER ORDER 47 RULE 1 R/W SECTION 114 OF CPC, PRAYING TO REVIEW THE ORDER PASSED IN MFA NO.8523/2023 DATED 04/01/2024 OF THIS HON'BLE COURT AND PASS ORDER BY CONSIDERING FACTS, CIRCUMSTANCES AND MERITS IN THE PETITION AND ETC.

¶29

THIS PETITION, COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:

¶30

ORDER

¶31

This matter is listed for admission. Heard the learned

¶32

counsel for review petitioner.

¶33

This Court earlier disposed M.F.A.No.8523/2023 wherein challenge was made granting of relief of temporary injunction invoking provision under Order 39 Rule 1 and 2 of CPC restraining defendants, their agents, servants or any persons acting on behalf of the defendants are restrained from alienating the suit schedule property either by their own acts or through the acts of such of those persons instructed by the defendants to anyone pending disposal of the suit. This order was modified by

¶34

¶35

NC: 2024:KHC:12199 RP No. 36 of 2024

¶36

this Court directing the defendants to deposit an amount of Rs.5,00,00,000/- within one month from the date of order and while passing such order, this review petitioner who is the plaintiff No.2 before the Trial Court seeking the relief of specific performance was not heard and only the plaintiff No.1 who made an application before the Trial Court under Order 39 Rule 1 and 2 of CPC was heard and this Court modified the order. Hence, the present review petition is filed.

¶37

The counsel appearing for the review petitioner would vehemently contend that this Court having heard the matter in his absence, set-aside the order of the Trial Court in granting the relief of the temporary injunction and modified the order of the Trial Court. The counsel would vehemently contend that this Court while disposing the M.F.A.No.8523/2023, no notice was given to this review petitioner who is the 2^nd plaintiff in the said suit and contend that the petitioner has invested substantial amount of money towards the advance payment and order passed by this Court is clear violation of principles of

¶38

5 - NC: 2024:KHC:12199 RP No. 36 of 2024

¶39

natural justice. The review petitioner has every right to defend the order of the Trial Court which was challenged before this Court and since it was not notified to this review petitioner, an order was passed which was modified led to great injustice to the review petitioner. The counsel also would vehemently contend that there are several disputes which have to be cleared before the execution of sale deed actually if it is executed. The petitioner has always ready and willing to perform his part of contract and already paid Rs.3,00,00,000/- as advance sale consideration and when the investment was made by the review petitioner and also when the sale agreement is in favour of both the 1^st plaintiff as well as this review petitioner/2^nd plaintiff and having invested substantial amount, he is entitled for due execution of sale deed. The order passed by this Court in his absence, it affects his right and the same causes prejudice to his right. When the petitioner is a stake holder in the properties in question and he is having agreement in his favour along with co-agreement holder and the valuable right of this

¶40

¶41

NC: 2024:KHC:12199 RP No. 36 of 2024

¶42

petitioner was lost in not depending the order passed by the Trial Court while hearing this matter. When the valuable right has been affected while passing such an order and the same causes prejudice to the review petitioner and hence, it requires interference.

¶43

The counsel in support of his argument, he relied upon the judgment reported in (2012) 9 Supreme Court Cases 683 in case of Union of India V/s Sandur Manganese and Iron Ores Limited and others wherein discussed with regard to the grounds of review and violation of principles of natural justice and also non service of notice in S.L.Ps subsequently converted into civil appeals. The Apex Court held that principles of natural justice embody the right of every person to represent his interest to Court of justice pronouncing the judgment which adversely affects interest of the party to proceedings who was not given a chance to represent his/its case to unacceptable under principles of natural justice, Union of India was not given an opportunity to represent his case due to mistake on the part of Registry

¶44

7 - NC: 2024:KHC:12199 RP No. 36 of 2024

¶45

and hence, the review petition was admitted and scope of

¶46

Order 47 Rule 1 of CPC also discussed and the same is the ground for review i.e., violation of principles of natural justice.

¶47

Per Contra, the counsel appearing for the respondents would vehemently contend that first of all the application is filed only by the plaintiff No.1 and the same is not on behalf of the plaintiff No.2. The counsel also brought to notice of this Court the affidavit filed by the plaintiff No.1 and the same is not on behalf of the plaintiff No.2, when such being the case, when he has not made any application restraining the defendant from alienating the property and his right has not been affected. The counsel also brought to notice of this Court that the plaintiff Nos.1 and 2 both of them have been represented through their independent counsel, the same has not prejudice any right. The counsel also would vehemently contend that only on the ground of violation of principles of natural justice, cannot be a ground to review the order. The counsel also would vehemently contend that when no

¶48

¶49

NC: 2024:KHC:12199 RP No. 36 of 2024

¶50

prejudice is caused to the review petitioner, question of entertaining the review petition does not arise. The counsel also would vehemently contend that no ground is urged in the review petition in that the order, apparently on the face of record an error has been crept in passing an order. The counsel would vehemently contend that it is not

¶51

the ground of the review petitioner that this Court when modified the order, the same not causes any prejudice to him and directing to deposit an amount of Rs.5,00,00,000/- has not been set-out any ground in the review petition. Hence, the same cannot be accepted.

¶52

The counsel in support of his argument, he relied upon the judgment of the Apex Court reported in (2013) 8 Supreme Court Cases 337 in case of Union of India V/s Sandur Manganese and Iron Ores and brought to notice of this Court that the earlier decision given by the counsel appearing for the review petitioner and while admitting the review petition, such an order was passed. The counsel referring the judgment reported above would vehemently contend that when no prejudice

¶53

¶54

NC: 2024:KHC:12199 RP No. 36 of 2024

¶55

has been passed to the review petitioner herein and brought to notice of this Court the grounds of review jurisdiction in paragraph No.9 as well as scope of review of judgments or orders by the Supreme Court regarding Article 137 and also the discussion made in the order even with regard to the second contention, counsel brought to notice of this Court the detail discussion made by the Apex Court in paragraph No.23 referring scope of Order 47 Rule 1 of CPC wherein also held that a review petition, it must be remembered has a limited purpose and cannot be allowed to be ‘an appeal in disguise’. The counsel also brought to notice of this Court discussion made in paragraph No.24 also held that arriving at the conclusion that review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 of CPC. The counsel also brought to notice of this Court paragraph No.25 wherein also discussion is made that as long as point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is

¶56

10 -

¶57

NC: 2024:KHC:12199 RP No. 36 of 2024

¶58

possible under the review jurisdiction. Hence, in review jurisdiction, the Court shall interfere only when there is a glaring omission or patent mistake or when a grave error has crept in the impugned judgment, which we fail to notice in the present case. The counsel also brought to notice of this Court paragraph No.30 wherein also discussed with regard to the valid ground for exercising the power under review jurisdiction. The counsel referring this judgment also would vehemently contend that when no prejudice is caused to the review petitioner, question of entertaining the review petition does not arise.

¶59

Having heard the review petitioner’s counsel

¶60

and also the counsel appearing for respondents and also taking into note of material on record and particularly it is not in dispute that this Court has disposed of M.F.A.No.8523/2023 and while disposing of the Miscellaneous First Appeal, though this review petitioner was a party to the proceedings, no notice has been served and only the plaintiff No.1 entered through his counsel by filing a caveat petition and Miscellaneous First Appeal was

¶61

11 -

¶62

NC: 2024:KHC:12199 RP No. 36 of 2024

¶63

disposed of. No dispute with regard to the fact that the Trial Court has granted an order of temporary injunction and also the counsel appearing for the review petitioner brought to notice of this Court in paragraph No.11, this Court set-aside the order of the Trial Court i.e., granting of relief of temporary injunction and modified the order directing the appellant to deposit an amount of Rs.5,00,00,000/- since an amount of Rs.3,00,00,000/was paid to the appellant in view of the agreement entered between the parties. The fact that no opportunity was given to the review petitioner is also not in dispute.

¶64

The counsel appearing for the respondents also not dispute the said fact. The counsel for respondents would contend that violation of principles of natural justice cannot be a ground to review order, the said contention cannot be accepted. In view of the principles laid down in the judgment (2012) 9 Supreme Court Cases 683 referred by the review petitioner. The Apex Court categorically held that principles of natural justice embody the right of every person to represent his interest to Court

¶65

12 -

¶66

NC: 2024:KHC:12199 RP No. 36 of 2024

¶67

of justice and pronouncing the judgment which adversely affects interest of the party to proceedings who was not given a chance to represent his/its case to unacceptable under principles of natural justice and scope of review also discussed and also admitted the review petition. No doubt the Apex Court while considering the review petition, in the judgment referred supra of 2013 wherein same parties comes to the conclusion that only when the right has already been decided and also an observation is made that as long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction and scope of review cannot be extended. No doubt the Apex Court also while considering the review petition, taken note of jurisdiction under Article 137 of Constitution of India review of judgment or orders by the Supreme Court was also discussed in paragraph No.9 as well as in paragraph Nos.22 to 25 as discussed above. In the case on hand, it has to be noted that the suit is filed on behalf of the

¶68

13 - NC: 2024:KHC:12199 RP No. 36 of 2024

¶69

plaintiff Nos.1 and 2, the same is for the relief of specific performance. It is not in dispute that the plaintiff Nos.1 and 2 are also the parties to the agreement of sale. Both of them have sought for the relief of specific performance. It is also the case of the review petitioner that he had also invested the money while advancing the money of Rs.3,00,00,000/-along with other co-agreement holder. It is also his case that the modification of the order, it causes prejudice to his right and also there is a force in the contention of the review petitioner counsel that when he is a party to the agreement and also the respondents have not disputes the fact that plaintiff No.2 is a party to the agreement and when the order was passed in favour of plaintiffs before the Trial Court granting the relief of temporary injunction and the same was modified by this Court setting aside the order granting of temporary injunction and directed to deposit the amount, the said order was passed in his absence. He was not heard and also no notice was given to the plaintiff No.2. When he was a party to the agreement and when he sought the

¶70

14 -

¶71

NC: 2024:KHC:12199 RP No. 36 of 2024

¶72

relief of specific performance, I have already pointed out that respondent also not disputes the fact that the plaintiff No.2 is also party to the agreement and the same amounts to prejudice his right. When specific contention is made that he also made the payment along with the plaintiff No.1 while making the payment in favour of the respondent and when such being the case, it definitely amounts causing of prejudice to the right of the plaintiff No.2, though not filed an application by the plaintiff No.2 before the Court and when the order in favour of the plaintiff No.1 before the Trial Court, the said order has been modified. The very contention of the counsel for respondents that it will not prejudice and it will not affect the review petitioner cannot be accepted. No doubt the counsel appearing for the respondents would contend that in terms of the order passed by this Court, already deposited an amount of Rs.5,00,00,000/- though an amount of Rs.3,00,00,000/- was received and deciding the matter in the absence of review petitioner, it will definitely affects the right of the review petitioner. This Court also

¶73

15 - NC: 2024:KHC:12199 RP No. 36 of 2024

¶74

not going to touch upon the merits of the order passed by this Court and only with regard to violation of principles of natural justice as well as the order passed by this Court causes prejudice to the right of review petitioner and the same has not been decided as held by the Apex Court and it will not cause any prejudice will not applies to the case

¶75

on hand and the said judgment i.e., later judgment of 2013 which is referred above will not comes to the aid of the respondent and the matter could be heard only in the presence of respective parties, matter can be considered on merits without expressing any opinion on the merits of

¶76

the case which is already been decided in M.F.A.No.8523/2023 and an opportunity has to be given since he is plaintiff No.2 in the said suit. The suit is also for the relief of specific performance and he has to be heard by giving an opportunity. Hence, it requires invoking of proviso under Order 47 Rule 1 of CPC to review the order. Hence, the order passed by this Court dated 04.01.2024 is recalled and the M.F.A.No.8523/2023 is ordered to post for admission and the review petitioner is directed to

¶77

NC: 2024:KHC:12199 RP No. 36 of 2024

¶78