In Radha Krishna Prasad vs. Ram Bilash Prasad & Ors. (2026), Patna High Court's Justice Sunil Dutta Mishra delivered a 10-page long judgement dated January 30, 2026. The review application was filed under Order XLVII, Rule 1 of the Code of Civil Procedure, 1908 against the judgment dated October 21, 2024 passed by the High Court in a First Appeal of 2008 whereby the appeal preferred by the review petitioner/appellant was dismissed affirming the judgment and decree dated November 29, 2007 passed by the Trial Court in a Title Suit of 2004 filed by the review petitioner/appellant.
Justice Mishra judgement concluded:"13. This Court also finds no merit in the
submission that the impugned judgment suffers from an error apparent on
the face of the record. The findings returned in the First Appeal are
reasoned findings based on appreciation of evidence and application of
settled legal principles governing suits for specific performance. An
alleged erroneous conclusion or a possible alternative view does not
constitute an error apparent warranting review under Order XLVII Rule 1
of the C.P.C. 14. In view of the foregoing discussion, this Court is of
the considered opinion that none of the grounds urged in the review
application satisfies the statutory parameters laid down under Order
XLVII Rule 1 of the C.P.C. The petitioner has failed to point out any
error apparent on the face of the record or any other sufficient reason
warranting interference with the judgment under review. Consequently,
the review petition is devoid of merit and is liable to be dismissed.
15. Accordingly, the instant civil review is dismissed at the stage of
admission. 16. There shall be no order as to costs."
The Court recorded that it was apparent from the record that the review petitioner/appellant had filed the suit for specific performance of contract for sale on the basis of agreement for sale dated January 25, 2002 claiming that defendants/respondents failed to comply the terms of the said contract and avoided the execution and registration of sale deed, while the plaintiff (petitioner/appellant) was always willing and ready to perform his part of contract to pay the balance consideration of money. As per the defendants, defendant no.1 had received Rs.60,000/- as advance from plaintiff and executed an agreement for sale dated 18.09.2001 in his favour for a total sum of Rs.2,70,000/-. The said agreement was prepared in duplicate, one copy remained with plaintiff and one copy with defendant. The case of the defendant was that he signed the document dated January 25, 2002 for extension of period believing the words of plaintiff and he had not received any amount of Rs.60,000/- as advance from the plaintiff. The Trial Court dismissed the Title Suit of 2004 on contest filed by petitioner/appellant/plaintiff vide judgment and decree dated November 29, 2007 wherein it was held that the agreement for sale of the suit land between the parties was executed on September 18, 2001 after receiving Rs.60,000/- as advance amount, for consideration amount of Rs.2,70,000/- for two kattha i.e. at the rate of Rs.1,35,000/- per kattha and alleged agreement of sale dated January 25, 2002 was indirectly extension of time period of the agreement of sale dated September 18, 2001 which was done taking trust under the circumstances whereby inserting the less rate of agreed consideration amount and accordingly, the agreement of sale dated January 25, 2002 was not a valid and legal document.
The First Appeal No.15 of 2008 was filed by the petitioners was dismissed by the High Court vide a 25-page long judgment dated October 21, 2024 by Justice Mishra. He had relied on the decision of the Supreme Court in Aloka Bose vs. Parmatma Devi & Ors. reported in AIR 2009 SC 1527 wherein it was noted that all agreements of sale are bilateral contracts as promises are made by both. The vendor agreeing to sell and purchaser agreeing to purchase. It cannot be said that unless agreement is signed both by vendor and purchaser, it is not a valid contract. Even an oral agreement of sale is valid. If so, a written agreement signed by one of the parties, if its evidences such as oral agreement will also be valid. Moreover, in India, an agreement of sale signed by vendor alone and delivered to the purchaser and accepted by the purchaser has always been considered to be a valid contract and in the event of breach by the vendor, it can be specifically enforced by the purchaser. He had observed: "23. The law is now well settled that even where the agreement of sale is not registered, the document can be received as evidence for considering the relief of specific performance and the inadmissibility will confine only to the protection sought under Section 53-A of the Transfer of Property Act. The Hon’ble Supreme Court in R. Hemlata Vs. Kashturi reported in 2023 SCC OnLine 381 observed that unregistered agreement to sell in question shall be admissible in evidence in a suit for specific performance and the proviso is exception to the first part of Section 49. In K.B. Saha and Sons Pvt. Limited Vs. Development Consultant Limited reported in (2008) 8 SCC 564, the Hon’ble Supreme Court held that a document is required to be registered, but if unregistered can still be admitted in evidence of a contract in a suit for specific performance."
In P. Ravindranath & Anr. vs. Sasikala & Ors. reported in 2024 SCC OnLine SC 1749, teh Supreme Court observed: “Relief of specific performance of contract is a discretionary relief. As such, the courts while exercising power to grant specific performance of contract, need to be extra careful and cautious in dealing with the pleadings and the evidence in particular led by the plaintiffs. The plaintiffs have to stand on their own legs to establish that they have made out case for grant of relief of specific performance of contract. The Act, 1963 provides certain checks and balance which must be fulfilled and established by the plaintiffs before they can become entitled for such a relief. The pleadings in a suit for specific performance have to be very direct, specific and accurate. A suit for specific performance based on bald and vague pleadings must necessarily be rejected. Section 16(c) of the 1963 Act requires readiness and willingness to be pleaded and proved by the plaintiff in a suit for specific performance of contract. The said provision has been widely interpreted and held to be mandatory.”
The law is well settled that relief of specific performance, the plaintiff has to prove that he was ready and willing to perform the part of contract. It has been held in U.N. Krishnamurthy (since deceased) thr. LRs. Vs. A.M. Krishnamurthy (2022) SCC OnLine SC 840.
Supreme Court in His Holiness Acharya Swami Ganesh Dassji Vs. Sita Ram Thapar reported in (1996) 4 SCC 526 has made a distinction between ‘readiness’ and ‘willingness’ and the manner in which the said parameters are to be scrutinized in deciding a suit for specific performance. It is observed therein that by readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price for determining his willingness to perform his part of the contract, the conduct has been properly scrutinized. The factum of readiness and willingness to perform plaintiff’s part of contract is to be adjudged with respect to the conduct of the party and the attending circumstances. The Court may infer from the facts and circumstances where the plaintiff was ready and was always ready and willing to perform his part of the contract. Both readiness as well as willingness have to be established by the plaintiff on whom the burden is cast in a suit for specific performance of an agreement. Therefore, the question would arise as to “whether the plaintiff discharged such burden in the instant case”. The plaintiff has failed to discharge his burden to prove that he was ready and willing to perform his part of contract. The plaintiff never agreed to pay the remaining consideration amount i.e. Rs.2,10,000/- as per the agreement of sale dated 18.09.2001.
Supreme Court in K.S. Vidyanadam & Ors. vs. Vairavan reported in (1997) 3 SCC 1 has held that every suit for specific performance need not be decreed because it is filed within the period of limitation by ignoring the time limits stipulated in the agreement. The Court will also “frown” upon suits which are not filed immediately after the breach/refusal. The fact that limitation is three years does not mean that a purchaser can wait 1 or 2 years to file a suit and obtain specific performance. The three-year period is intended to assist the purchasers in special cases as for example, where the major part of the consideration has been paid to the vendor and possession has been delivered in part performance, where equity shifts in favour of the purchaser. These observations were reiterated in Saradamani Kandappan vs. S. Rajalakshmi and Ors. reported in (2011) 12 SCC Justice Mishra noted: "32. In my view, the conduct of plaintiff was not reflective of his readiness as well as willingness on his part to pursue the agreement of sale of the suit land, in terms of Section 16(c) of the Act."
Section 16(c) of the Specific Relief Act, 1963 mandates “readiness and willingness” on part of the plaintiff and it is a condition precedent for obtaining relief of grant of specific performance. The Courts will apply greater scrutiny and strictness when considering whether the purchaser was ready and willing to perform his part of contract.
The Supreme Court in Basavaraj vs. Padmavathi & Anr. reported in (2023) 4 SCC 239 referred to the judgment in Ramrati Kuer vs. Dwarika Prasad Singh reported in AIR 1967 SC 1134 : 1967 (1) SCR 153, Indira Kaur & Ors. vs. Sheo Lal Kapoor reported in (1988) 2 SCC 488 and subsequent decision in Beemaneni Mahalakshmi vs. Gangumalla Appa Rao (since dead) by LRs. reported in (2019) 6 SCC 233 (para-14) on the aspect of readiness and willingness on the part of buyer. It was observed and held that unless the plaintiff was called upon to produce the passbook, accounts or documentary evidence either by the defendant or the Court orders him to do so, no adverse inference can be drawn against the plaintiff as to whether he had the means to pay the balance consideration.
Upon perusal of judgment of the Trial Court, considering facts and circumstances of the case and materials available on record, the High Court had upheld the judgment of the Trial Court that the agreement of sale (Bai Beyana) with respect to suit land was executed by defendant in favour of the plaintiff on September 18, 2001 in which consideration amount with respect to the suit land was Rs.1,35,000/- per kattha. It was observed by this Court that the petitioner herein was not entitled to get the decree of specific performance on the basis of alleged agreement of sale dated January 25, 2002 and accordingly, the suit was liable to be dismissed. The counsel for the petitioner submitted that the impugned judgment suffered from error apparent on the face of the record and was passed with material irregularity in exercise of its jurisdiction. The counsel assailed the finding recorded by the High Court in the First Appeal to the effect that the Trial Court had rightly held the agreement for sale dated September 18, 2001, fixing the consideration at Rs.1,35,000/- per kattha and that the plaintiff was not entitled to a decree for specific performance on the basis of the agreement dated January 25, 2002. It was submitted that the said finding suffers from an error apparent on the face of the record inasmuch as this Court proceeded on the erroneous premise that the agreement for sale dated January 25, 2002 on which the plaintiff case is based is not a valid and enforceable document and the original agreement for sale dated September 18, 2001 was a valid document.
A supplementary affidavit has been filed on behalf of petitioner in the Review Application to bring on record a copy of “List of Document produced by the accused (defendant/respondent no.1) on September 16, 2004 in Complaint Case of 2003” to show that original copy of Bai Beyana deed dated September 18, 2001 was in custody of defendant no.1 and falsify the case of defendant no.1 that he executed Bai Beyana deed on September 18, 2001 in favour of plaintiff and handed over the original copy of the same to the plaintiff.
The counsel for the petitioner submitted that the original copy of alleged Bai Beyana deed dated September 18, 2001 was never given to the plaintiff and the same is false and fabricated by defendant no.1 and the plaintiff did not conceal the fact regarding the previous agreement to sell. He also submitted that the finding in para 36 of the judgment with respect to concealment of fact regarding the previous agreement to sell was apparently an error on the face of record. He further submitted that non-consideration of this crucial circumstance materially affected the finding recorded in the impugned judgment and, therefore, the present case squarely falls within the permissible parameters of review.
The settled legal position is that the scope of review under Order XLVII Rule 1 of the C.P.C. is extremely limited, and that a review court does not sit in appeal over its own judgment, nor can it re-appreciate evidence or correct an alleged erroneous decision on merits, unless the error complained of is manifest, patent, and apparent on the face of the record. A judgment may be reviewed only on discovery of new and important matter or evidence, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason analogous thereto.
In Malleeswari vs. K. Suguna & Anr. reported in 2025 SCC OnLine SC 1927, the Supreme Court enumerated the scope of civil review under Order XLVII Rule 1 read with Section 114 of the C.P.C. as herein under:
“15. It is axiomatic that the right of appeal cannot be assumed unless expressly conferred by the statute or the rules having the force of a statute. The review jurisdiction cannot be assumed unless it is conferred by law on the authority or the Court. Section 114 and Order 47, Rule 1 of CPC deal with the power of review of the courts. The power of review is different from appellate power and is subject to the following limitations to maintain the finality of judicial decisions:
15.1 The 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.
15.2 Review is not to be confused with appellate powers, which may enable an appellate court to correct all manner of errors committed by the subordinate court.
15.3 In exercise of the jurisdiction under Order 47 Rule 1 of CPC, it is not permissible for an erroneous decision to be reheard and corrected. A review petition, it must be remembered, has a limited purpose and cannot be allowed to be an appeal in disguise.
15.4 The power of review can be exercised for the correction of a mistake, but not to substitute a view. Such powers can be exercised within the limits specified in the statute governing the exercise of power.
15.5 The review court does not sit in appeal over its own order. A rehearing of the matter is impermissible. It constitutes an exception to the general rule that once a judgment is signed or pronounced, it should not be altered. Hence, it is invoked only to prevent a miscarriage of justice or to correct grave and palpable errors.
16. To wit, through a review application, an apparent error of fact or law is intimated to the court, but no extra reasoning is undertaken to explain the said error. The intimation of error at the first blush enables the court to correct apparent errors instead of the higher court correcting such errors. At both the above stages,
detailed reasoning is not warranted.
17. Having noticed the distinction between the power of review and appellate power, we restate the power and scope of review jurisdiction. Review grounds are summed up as follows:
17.1 The ground of discovery of new and important matter or evidence is a ground available if it is demonstrated that, despite the exercise of due diligence, this evidence was not within their knowledge or could not be produced by the party at the time, the original decree or order was passed.
17.2 Mistake or error apparent on the face of the record may be invoked if there is something more than a mere error, and it must be the one which is manifest on the face of the record. Such an error is a patent error and not a mere wrong decision. An error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record.
17.3 Lastly, the phrase ‘for any other sufficient reason’ means a reason that is sufficient on grounds at least analogous to those specified in the other two categories.”
10. This Court has given anxious consideration to the submissions advanced on behalf of the petitioner and has carefully examined the supplementary affidavit, perused the materials on record and considered the settled principles governing the scope of review jurisdiction.
Drawing on these parameters, Justice Mishra observed:"....this Court finds that the document filed and relied upon by the petitioner herein in this review application, i.e., ‘List of Document produced by defendant in Complaint Case No.291(C) of 2003’ to show that the original Bai Beyana dated 18.09.2001 was in custody of defendant no.1, does not conclusively establish that the agreement for sale dated 18.09.2001 was not executed or that it was fabricated, nor does it, by itself, dislodge the concurrent findings recorded by the learned Trial Court and affirmed by this Court in the First Appeal. The mere fact that the original Bai Beyana deed was produced from the custody of the opposite party no.1/defendant at a later point of time or was summoned from another court does not necessarily negate its execution or invalidate the findings arrived at on the basis of oral and documentary evidence already considered. Such a contention, in substance, seeks a re-evaluation of evidence and reassessment of factual conclusions, which is impermissible within the limited scope of review jurisdiction. 12. Furthermore, this Court is of the considered view that the said document filed on behalf of petitioner in this Review Application by way of supplementary affidavit does not have such determinative evidentiary value as would have inevitably altered the conclusion reached in the First Appeal. The findings recorded therein were based on a holistic appreciation of pleadings, evidence and surrounding circumstances, and not solely on the aspect of custody of the original agreement dated 18.09.2001."
No comments:
Post a Comment