M/S Prime Properties vs Sana Lakshmi Devi (Died) Through Her Lrs

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2022 (Arising out of S.L.P.(C) No. 6464 of 2022)

M/S PRIME PROPERTIES .....Appellant(s)

VERSUS

SANA LAKSHMI DEVI (DIED) THROUGH HER LRS & ORS. .....Respondent(s)

JUDGMENT

DINESH MAHESHWARI,J.

Leave granted.

2. This appeal is directed against the judgment and

order dated 14.03.2022 as passed by the High Court for

Telangana at Hyderabad in CRP No. 204 of 2022, whereby the

High Court has disapproved the order dated 29.12.2021 passed

by the Court of I Additional Senior Civil Judge, Ranga Reddy

District at L.B. Nagar, allowing the review application

under Order XLVII Rule 1 of the Code of Civil Procedure,

1908. While allowing the review application, the Trial Court

has taken the subsequent pleadings filed by the plaintiff in

the form of rejoinder on record, in supersession of its

earlier order dated 29.11.2021, whereby such a permission

was declined.

3. The matter essentially relates to filing of pleadings Signature Not Verified

but, various factors and aspects have got entangled because Digitally signed by NEETA SAPRA Date: 2022.10.01 18:30:41 IST Reason:

of the long pendency and multifarious incidental

1 proceedings. However, for the present purpose, suffice

would be to notice the relevant background aspects and

proceedings to the extent relevant to the questions at hand.

They are as follows:

3.1. The plaintiff-appellant has filed O.S. No. 898 of

2001 in the Court of I Additional Senior Civil Judge, Ranga

Reddy District at L.B. Nagar against the defendant No. 1 –

Society seeking cancellation of sale deed dated 15.04.1996

in relation to a parcel of land situated in Survey No. 1007

at Kukatpally Village, Balanagar Mandal, Ranga Reddy

District. The appellant has also filed three other suits,

being O.S. Nos. 899 to 901 of 2001 for similar reliefs in

respect of other parcels of land in the said Survey No.

1007.

3.2. The issues in the suit were framed on 19.08.2005.

Then, the plaintiff was permitted to amend the plaint on

17.01.2006. According to the contesting respondents, the

appellant did not carry out amendment for a long time and

ultimately the suits were dismissed for non-prosecution on

05.11.2008. Then the suits were restored only in the year

2011.

3.3. Thereafter, the contesting respondents herein filed

I.A. No. 787 of 2018 in O.S. No. 898 of 2001 seeking their

impleadment as party defendants. This application was

dismissed on 31.12.2018. However, the High Court

disapproved the order so passed by the Trial Court and

2 allowed the impleadment of contesting respondents in the

order dated 27.03.2019 passed in CRP No. 391 of 2019. The

order so passed by the High Court was sought to be

challenged by the appellant in SLP(C) No. 11052 of 2019 in

this Court but, the same was dismissed by the Order dated

08.05.2019. In this order, this Court took note of the fact

that the Trial Court had been directed to decide the suit

within six months; and while reiterating such directions,

this Court also made it clear that any other impleadment of

individual members in future will not either derail or delay

the proceeding in the suit. For ready reference, the

relevant contents of the order dated 08.05.2019 could be re-

produced as under: -

“The Special Leave Petition is dismissed since it is from an order impleading individual members.

The trial Court has been asked to decide the Suits within a period of 6 months. We make it clear that individual impleadments of members in futuro will not, in any manner, either derail or delay further proceedings in the Suits. We reiterate that the trial Court must decide the Suits within a period of 6 months from today.”

3.4. On 06.06.2019, the Trial Court allowed another

application moved by the appellant for amendment of the

plaint. According to the contesting respondents, the

amended copy of the plaint was filed only on 25.03.2021 by

adding them as defendants. It has also been pointed out

that on 19.08.2020, this Court again directed the Trial

Court to decide the suits within six months in C.P. No. 433

3 of 2020. On 23.07.2021, the legal representatives of the

deceased defendant No. 3 were brought on record as defendant

Nos. 9 to 11. On 26.07.2021, the appellant filed the

amended plaint by including the newly impleaded parties as

defendants.

3.5. Thereafter, the plaintiff filed I.A. No. 438 of 2021

seeking leave to amend the plaint and on 21.09.2021, the

appellant filed amended plaint wherein, according to the

contesting respondents, the appellant modified the cause

title as also the averments and the prayers.

3.6. The material aspect of the present matter is that on

27.09.2021, the contesting respondents filed their written

statements to the amended plaint. The defendant No. 1-

Society also filed additional written statement. It has been

the case of the appellant that on 20.10.2021, the defendant

No. 2 filed additional written statement raising new

grounds.

3.7. The proceedings leading to the present appeals have

their genesis in the applications filed by the appellant

being I.A. Nos. 891 of 2021, 892 of 2021 and 893 of 2021 in

O.S. No. 898 of 2021 seeking leave to file further pleadings

in the form of rejoinder. In regard to this application,

the contesting parties have different submissions to make.

On one hand, it has been the assertion on behalf of the

appellant that with these applications, the proposed

rejoinder was also attempted to be filed but the same were

4 returned by the office with a direction that the same be

filed when the applications are considered by the Court.

According to the appellant, all the parties were served with

the copies of the applications as also the proposed

rejoinder. The contesting respondents filed counter to the

application I.A. No. 891 of 2021. The contesting respondents

would submit that in such a proposed rejoinder, the

plaintiff-appellant attempted to set up an altogether new

case, and that too, without filing the rejoinder in the

Court.

3.8. On 26.11.2021, the Trial Court heard the arguments on

the applications filed by the appellant seeking leave to

file rejoinder and the matter was reserved for orders.

Then, on 27.11.2021, the appellant purportedly filed the

proposed rejoinder in the office of the Trial Court.

3.9. On 29.11.2021, the Trial Court pronounced its order,

rejecting the application filed by the appellant essentially

on the ground that the proposed rejoinder had not been filed

and in the absence thereof, the applications could not be

granted. The relevant part of consideration of the Trial

Court could be usefully reproduced as under:

“5. …In the absence of filing of rejoinder along with petition to ascertain whether the said rejoinder confines only to reply to written statement and additional written statement, it may not be proper to allow petition blanket permitting the plaintiff to file rejoinder wherein there is every chance to incorporate a new fact.

6. The learned counsel appearing on behalf of respondents/defendants are argued that if at all

5 new fact is pleaded by the petitioner/plaintiff through his rejoinder, the defendant would loose his right to place his defence to the said new fact as there is no provision in law to file the rejoinder to rejoinder. In these circumstances and considering the above discussions, these petitions are not maintainable and accordingly, these petitions are dismissed.”

3.10. Thereafter, on 13.12.2021, the appellant filed review

petitions before the Trial Court, inter alia, with the

submissions that the proposed rejoinder had already been

filed before passing of the order by the Court. The review

petitions so filed by the appellant, after thorough contest,

were allowed by the Trial Court by its order dated

29.12.2021. The Trial Court proceeded to review its order

dated 29.11.2021 and allowed the rejoinder already filed by

the appellant to be taken on record. The relevant part of

consideration of the Trial Court, in allowing the review

application, is also reproduced for ready reference as

under:-

“12. …On reading the provisions together, this court is of the opinion that this case is a fit case to review its order dated 29.11.2021 and permit the petitioner/plaintiff to file the rejoinder which was not placed before this court though filed and is already on record and to allow the same to be on record. The mere filing of rejoinder will not vitiate the rights of the parties and however the parties would lead their evidence and these pleadings would definitely assist the court in deciding the case to its merits. In the circumstances, these petitions are to be allowed. Accordingly, both points are answered.

13. In the result, these petitions are allowed by reviewing the order dated 29.11.2021 and setting aside the same also consequently, the rejoinder which is already filed in Court is taken on record.”

6 3.11. Thereafter, on 31.01.2022, the Trial Court framed

seven additional issues and posted the matter for trial.

However, on 01.02.2022, the contesting respondents

challenged the aforesaid order dated 29.12.2021 by way of

revision petition in the High Court. In the meantime, on

10.01.2022, this Court extended the time for conclusion of

the trial by another six months.

3.12. In the revision petition so filed by the contesting

respondents of this appeal, the High Court disapproved the

order passed by the Trial Court in its impugned order dated

14.03.2022 while, inter alia, observing as under: -

“20. Reverting back to the facts of the present case, as discussed above, the plaintiff has filed original suit in the year 2001 against the sole defendant, thereafter the other defendants were impleaded, more particularly after impleading the present revision petitioners, they have filed a detailed written statement for which the plaintiff has requested the Court below for permission to file rejoinder under Order-VIII, Rule-9 of CPC. Initially, that application filed under Order-VIII, Rule-9 CPC in IA No.891 of 2021 was dismissed by the trial Court, through the common order, dated 29.11.2021. Thereafter, the plaintiff has filed an application under Order- 47, Rule-1 CPC to review the said common order. Accordingly, all these review applications are numbered as IA No.1061 of 2021 in IA No.891 of 2021, IA No.1062 of 2021 in IA No.892 of 2021 and IA No.1063 of 2021 in IA No.893 of 2021 in OS No.898 of 2001. All these review applications were allowed and the orders impugned in IA Nos.891, 892 and 893 of 2021 were set aside and they were substituted with a detailed order permitting the plaintiff to file rejoinder with an observation that rejoinder which was already filed is taken on record. In that view of the matter, since under the grab of review the original order is substituted with the impugned

7 order, I am not inclined to accept the submissions of the learned senior counsel for the plaintiff.

21. Undisputedly, the power of review has its own limitations and the order or judgment may be open to review inter alia if there is a mistake or error apparent on the face of the record and permitting the order to stand will lead to failure of justice. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for a patent error. Thus in exercise of power of review, it is not permissible to rehear and correct an erroneous decision.

22. The sum and substance of the aforesaid discussion is that the trial Court has committed grave error in allowing the review petitions by totally substituting the earlier order dated 29.11.2021 with the order impugned dated 29.12.2021 in exercise of powers under Section 114 and Order-47, Rule-1 CPC. Though the learned Judicial Officer has referred to the judgment of Supreme Court in Ram Sahu’s case (2nd supra), in impugned order at para-12, no attempt was made either to distinguish the same or to follow the authoritative pronouncement made by the Hon’ble Supreme Court on the scope of review petitions.

When the facts of the present case are tested on the touch stone of principles laid by the Supreme Court in the above decisions, the answer is in negative, the order impugned suffers from jurisdictional error and infirmities. The learned Judicial Officer is totally misdirected as to the scope of review under Section 114 and Order-47, Rule-1 of CPC in passing the order impugned dated 29.12.2021 and it is not sustainable, liable to be set aside.”

3.13. Assailing the order aforesaid, the appellant filed

present petition seeking leave to appeal, being SLP(C) No.

6464 of 2022, wherein on 13.06.2022 this Court, while

issuing notices, granted stay over the operation and effect

of the impugned order dated 14.03.2022.

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4. In another set of incidental proceedings, on

07.02.2022, the appellant filed an application before the

Trial Court for receiving 89 additional documents, which was

allowed by the Trial Court, against which the contesting

respondents filed CRP no. 315 of 2022 and also sought

interim suspension. As per the facts stated by the

contesting respondents, another application filed by the

appellants for receiving additional documents was also

allowed by the Trial Court on 22.07.2022, though a certified

copy thereof was issued only on 16.09.2022. The said

suspension order dated 04.08.2022 is the subject matter of

SLP(C) No. 16151 of 2022 which is also placed on board today

before us and shall be considered separately.

5. For completion of the background aspects, we may also

take note of the facts stated before us that all the four

suits aforesaid stand clubbed and the evidence is being

recorded in O.S. No. 898 of 2001. These suits have been

transferred upon re-organization of Judicial District to the

Court of Additional Senior Civil Judge Madchalpajgiri

District at Kukutpalti and are re-numbered as O.S. Nos. 588,

589, 590 and 591 of 2022.

6. The learned senior counsel for the plaintiff-

appellant has submitted that the Trial Court had earlier

dismissed the application seeking permission to file

rejoinder on a mistaken impression that the proposed

rejoinder had not been filed and, therefore, when the fact

9 was brought to the notice of the Court that the proposed

rejoinder had, in fact, been filed on 27.11.2021 before

pronouncement of the order dated 29.11.2021, the Trial Court

appreciated the error apparent on the face of the record and

rightly reviewed its earlier order and passed a just order

on 29.12.2021. The High Court, according to the learned

counsel, has erroneously interfered with the just and proper

order passed by the Trial Court while not appreciating that

every Court has inherent power to recall the order and to

rectify a mistake that prejudices a party. According to the

learned counsel, there had not been any jurisdictional error

in the matter and there was no reason for the High Court to

upset the order of the Trial Court in exercise of its

jurisdiction under Article 227 of the Constitution of India.

7. On the other hand, learned counsel for the contesting

respondents has made an elaborate reference to the multiple

proceedings pertaining to the suits in question and has

submitted that the suits filed in the year 2001 are being

dragged on by the plaintiff-appellant for no justified

reason. The learned counsel, with reference to various

proceedings as noticed above, has submitted that with

multiple propositions of amendment of the plaint and then

filing of the amended plaint at its own leisure with

insertion of new averments, the plaintiff-appellant has only

been intending to protract this litigation to the prejudice

of the contesting respondents. It has also been submitted

10 that in the name of rejoinder, the appellant has attempted

to introduce an altogether new case. In this regard, learned

counsel would also refer to the fact that as against 11

pages of amended plaint containing facts in 7 pages, the

appellant attempted to file a rejoinder running into as many

as 38 pages. Learned counsel has also referred to the fact

that after passing of the order by the Trial Court, the

appellant has also attempted to file as many as 89

additional documents on 07.02.2022 and yet further documents

on 26.04.2022.

7.1. With reference to all the aforesaid features and

factors, the emphasis of learned counsel for the respondent

has been that by not placing proposed rejoinder before the

Court at the time of consideration of the applications on

26.11.2021, the plaintiff-appellant attempted to seek an

order for taking rejoinder on record without disclosing as

to what was sought to be pleaded therein. Such an attempt,

according to the learned counsel, was rightly disapproved by

the Trial Court. However, the Trial Court got persuaded to

allow the review petition only because of filing of the

rejoinder in the Court after arguments on the applications

and such an approach has rightly been disapproved by the

High Court, particularly when the Trial Court, in its

impugned order dated 29.12.2021, did not even indicate as to

what were the factual aspects for which further pleadings

were sought to be filed.

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8. Having given thoughtful consideration to the rival

submissions, having minutely examined the material placed on

record as also the lists of relevant dates supplied by the

learned counsel for the appellant and by the learned counsel

for the contesting-respondents, we are clearly of the view

that in this matter, essentially pertaining to the operation

of rules of procedure in the trial of civil suits, the views

as taken by the Trial Court in its order dated 29.11.2021

and the order dated 29.12.2021 as also the view as taken by

the High Court in its impugned order dated 14.03.2022 carry

their own shortcomings but, appropriate orders are required

to be passed for ensuring proper progression of the suits.

9. For the view which we propose to take in the matter,

not much of discussion appears in requisite. Suffice it to

observe for the present purpose that in none of the above

referred orders i.e., the orders dated 27.11.2021 and

29.12.2021, the Trial Court ever adverted to the fundamental

aspect as to what were the facts pleaded by the defendants

and what was the core of pleadings so as to form a specific

opinion as to what pleadings called for rejoinder; if at all

rejoinder was to be allowed. On the other hand, fact of the

matter remains that the newly added defendants had filed

written statements on 27.09.2021. Even if there had been

delay in progression of the suit because of variety of

factors and even if a part of those factors could be

referable to the delay on the part of the plaintiff, that

12 cannot take away the substance of the matter as regards the

question as to whether the prayer for filing rejoinder was

to be granted or not.

10. The other side of relevant factors before us is that

in terms of the orders passed by this Court commencing from

the order dated 08.05.2019, the trial is required to be

assigned specific priority. It has been pointed out that by

an order dated 05.06.2022, this Court in a batch of matters

arising out of the same suits, has ordered that the Trial

Court shall be sending specific report as regards progress

of the suits and assign them specific priority so as to

conclude the trial at the earliest, preferably before

31.03.2023. A cognate feature of the matter is that the

Trial Court had framed the issues earlier on 19.08.2005; and

before passing of the impugned order by the High Court, the

Trial Court had framed seven additional issues on

31.01.2022.

11. In a comprehensive consideration of all the relevant

factors and features, we are clearly of the view that this

appeal calls for such orders which may be conducive to the

purpose of expeditious proceeding rather than protraction

because of the procedural aspects relating to the filing of

the pleadings. At the same time, balance of the operations

of the rules of procedure is also required to be ensured, so

as to avoid any likely prejudice to any of the parties.

11.1. In this view of the matter, we are inclined to modify

13 the orders impugned so as to allow the rejoinder to remain

on record but, at the same time, to allow the contesting-

defendants to place on record their further pleadings in the

form of sur-rejoinder, to the extent it may be necessary.

12. Accordingly, this appeal is allowed to the extent and

in the manner indicated above. The impugned order dated

14.03.2022 is set aside but the order passed by the Trial

Court on 29.12.2021 shall be made applicable with the

modification that in the peculiar circumstance of this case,

the defendant Nos. 4 to 11 shall be permitted to place on

record their further pleadings in the form of sur-rejoinder

but only to the extent of new facts, if any, pleaded in the

rejoinder filed by the plaintiff. In other words,

sur-rejoinder shall remain confined to any such fact, if at

all, newly pleaded by the plaintiff in the rejoinder.

13. We also make it clear that this particular

proposition is required to be adopted in this matter,

keeping in view several features and factors including two

significant factors: one, that under the orders passed by

this Court, the trial of the suit is to proceed

expeditiously while the matter ought to be assigned a

specific priority; and second, that on 31.01.2022, Trial

Court had indeed framed additional issues for the trial.

14. We make it clear that no further issues are required

to be framed in this matter and all other aspects of the

14 matter, particularly those relating to pleadings, shall be

examined by the Trial Court at the time of final disposal of

the suit.

15. We reiterate the directions already given by this

Court that the matter ought to be assigned specific priority

so that trial be concluded at the earliest, preferably

before 31.03.2023.

16. The appeal stands disposed of accordingly.

..................J. (DINESH MAHESHWARI)

..................J. (BELA M. TRIVEDI) New Delhi;

September 29, 2022.

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