paramount supreme court

A grave error in allowing the review application: Supreme Court

Supreme Court takes stand against the decision taken by Gwalior High Court by allowing a review application with deletions in Section 114 read with Order 47 Rule 1 CPC. The supreme court shed light on the grave mistakes by the High Court in passing a judgement in the matter of Shri Ram Sahu(dead) v Vinod Kumar Rawat and Ors [CIVIL APPEAL NO.360 OF 2020].

The predecessor of the appellants instituted a suit before the Learned Trial Court against the respondents for declaration of registered Sale Deed dated 25.03.1995 executed by original defendant no.3 in favour of original defendant nos. 1 & 2 regarding a particular House No.28/955 (previous House No.3/1582), situated in Sube Ki Payga, Jiwajiganj, Lashkar, as null and void and for permanent injunction against defendant nos. 1 & 2 restraining defendant nos. 1 & 2 from transferring the disputed property to any other person.

The original plaintiffs claimed the ownership of the disputed property on the basis of the will executed by one Chhimmabai executed in his favour on 19.10.1993. He also claimed that he became the sole owner on the death of the executor and possession holder of the entire house and in the same capacity and that he is in continuous possession over the same. Later, Chhimmabai adopted the defendant, who sold the disputed property in favour of the respondent nos. 1 & 2. Ram Sahu denied the adoption of defendant no.3 by the said Chhimmabai.

The written statement was filed on behalf of the respondents. They denied that the disputed property was the Joint Hindu Family property. Defendant nos. 1 and 2 also claimed to be the bona fide purchasers and in possession of the suit property. The suit was filed in the Trial court where the court disbelieved the case on behalf of plaintiff with respect to the allegations of the will executed. The Learned Trial Court held that the defence had proved that defendant No.3 was adopted by Ghasilal on 26.01.1985 which was got registered later on by Chhimmabai vide Adoption Deed dated 13.05.1992.

Further, plaintiff sought amendment in the relief clause as regards the issuance of permanent injunction and restraining defendant nos.1 and 2 from dispossessing the plaintiffs forcibly from the disputed house.

But, the said application was  dismissed by the High Court on the ground of delay and latches. However, while dismissing the said application the High Court granted permission to the appellants to file a separate suit for the said relief against the defendants.

The plaintiff appealed further through a review application and deleting para 20 of the judgment and order dated 10.12.2013 passed in First Appeal No.241 of 2005, the original plaintiffs preferred the present appeal.

The Supreme Court held that “At this stage, it is required to be noted that after a period of approximately three years from the date of disposal of the First Appeal 16.04.2005 by the High Court and after the impugned order dated 14.07.2017 passed by the High Court in review application, the defendant nos. 1 and 2 – respondents herein in fact filed a separate suit in the Court of Learned Civil Judge, Class I, Gwalior against the appellants herein for receiving possession of the disputed house and compensation, in which the possession of the appellants has been admitted. In the said suit, it is pleaded that the plaintiffs have sent a legal notice to the said defendants ­appellants herein, through the Advocate on 09.08.2017 and demanded to vacate the disputed place but have not vacated and handed over the possession of the disputed place.

High Court has committed a grave error in allowing the review application and deleting the observations made in para 20 of its order dated 10.12.2013 passed in First Appeal No.17.04.2005 in exercise of powers under Section 114 read with Order 47 Rule 1 CPC. Under the circumstances the impugned order is unsustainable and deserves to be quashed and set aside.”

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