REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  4584    OF  2009  (Arising out of SLP (Civil) No. 19736 of 2006)

Inderchand Jain (D) through L.Rs. …. Appellant

Versus

Motilal (D) through L.Rs. …. Respondent

J U D G M E N T

S.B. SINHA, J.

1. Leave granted.  

2. The jurisdiction of a Court and/or the extent thereof to review its  

own decision is the question involved in this appeal.  It arises out of a  

judgment and order dated 13.10.2006 passed by a learned Single Judge of  

the High Court of Judicature for Rajasthan, Jaipur Bench, Jaipur in S.B.  

Civil  Review Petition No.33/2006 in S.B.  Civil  First  Appeal  No.36 of  

1976 and and S.B. Civil First Appeal No.36 of 1976.   

3. Before adverting to the aforementioned question, we may notice the  

admitted facts.

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An agreement was entered into by and between the parties on or  

about  15.10.1972 whereby and  whereunder  Inder  Chand Jain-appellant  

had agreed to sell a ‘haveli’ to Motilal – respondent for a consideration of  

Rs.1,15,000/-, out of which a sum of Rs.20,000/- was paid in advance.  

Respondent filed a suit for specific performance before the District  

Judge, Jaipur City, in which a decree was passed on 11.11.1975.   Being  

dissatisfied, the appellant filed Civil First Appeal before the High Court  

which was allowed on 12.03.1987 whereby the judgment and order of the  

trial court was set aside.   

On an intra court appeal filed by the respondent, a Division Bench  

of the High Court by its order dated 26.10.2005 remanded the matter back  

to the learned Single Judge for deciding the appeal afresh.

By an order dated 11.08.2006, a learned Single Judge of the High  

Court  allowed  the  appeal  once  again  and  set  aside  the  judgment  and  

decree of the trial court.  

4. Both  the  parties  filed  review petitions  before  the  learned  Single  

Judge of the High Court under Order XLVII Rule 1 of the Code of Civil  

Procedure  seeking  review  of  the  judgment  dated  11.08.2006.   By  the  

impugned judgment and order the learned Single Judge while allowing  

both  the  review petitions  recalled  its  earlier  judgment  and order  dated  

11.08.2006 and directed the appeal to be listed for rehearing.  

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5. Thus, the appellant-defendant is before this Court.

6. Mr. C.A. Sundaram, learned Senior Counsel appearing on behalf of  

the appellant would urge :-

i) That the High Court exceeded its jurisdiction in exercise of  

its review jurisdiction in so far it, for all intent and purport,  

acted as an appellate court.  

ii) The High Court in its review jurisdiction neither could re-

appreciate the evidence brought on record by the parties nor  

could exercise its discretionary jurisdiction under Section 20  

of the Specific Relief Act, 1963.  

iii) On the face of the findings of the Division Bench of the High  

Court  that  the  plaintiff-respondent  had not  been ready and  

willing to perform his part of the contract as provisions of  

Section 20(2)(b) of the Specific Relief Act,  1963 could be  

invoked only in a case when the High Court had come to the  

conclusion that the plaintiff has made out a case of grant of  

decree for specific performance and not otherwise.  

iv) A finding of fact having been arrived at that the purported  

contention  of  the  plaintiff  that  the  agreement  for  sale  was  

modified  in  terms  whereof  in  place  of  Rs.1,15,000/-  the  

plaintiff-respondent was to pay a sum of Rs.80,000/- having

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been disbelieved, the High Court committed a serious error in  

passing the impugned judgment.  

7. Mr. K.K. Venugopal, learned senior counsel appearing on behalf of  

the respondent, on the other hand, would urge that the High Court while  

passing the judgment dated 26.10.2005 took into consideration the salient  

features of this case as also the subsequent events and, thus, was justified  

in passing its order, viz.:

(i) the possession of the premises in question had already been  

delivered;  

(ii) the  settlement  arrived  at  by  and  between  the  parties  with  

regard to the reduction of the amount of consideration stood  

admitted inasmuch as according to the appellant himself in  

the event the tenants were evicted a sum of Rs. 11000/- may  

be deducted from the amount of consideration.

(iii) The  plaintiff-  respondent  had  deposited  the  entire  balance  

amount on 25.09.1975, i.e., two months prior to the passing  

of  the  decree  and,  thus,  there  could  not  be  any  doubt  or  

dispute that the plaintiff- respondent had all along been ready  

and willing to perform his part of contract.

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(iv) Appellant,  after  passing of  the decree by the learned Trial  

Court  despite  having  preferred  an  appeal  having  himself  

agreed for execution of the sale deed must be held to have  

accepted  the  judgment  and,  thus,  could  not  have  been  

permitted to turn round and contend that the plaintiff was not  

ready and willing to perform his part of contract.   

(v) Withdrawal  of  an  amount  of  Rs.  35,000/-  in  terms  of  the  

judgment  of  the  Trial  Court  by  the  appellant  without  any  

demur would not in law alter the situation.

(vi) A registered deed of sale having been executed pursuant to  

the  order  of  the  Executing  Court  and the  appellant  having  

been  put  in  possession  of  the  premises  in  suit  having  

expended  a  huge  amount  by  way  of  renovation  of  the  

‘haveli’,  the  learned  Judge  rightly  found  that  it  would  be  

inequitable  to  refuse  to  pass  a  judgment  of  specific  

performance of contract.

8. Section 114 of the Code of Civil Procedure (for short “the Code”)  

provides  for  a  substantive  power  of  review  by  a  Civil  Court  and  

consequently by the appellate courts.  The words “subject as aforesaid”  

occurring in Section 114 of the Code means subject to such conditions and  

limitations as may be prescribed as appearing in Section 113 thereof and

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for the said purpose, the procedural conditions contained in Order 47 of  

the Code must be taken into consideration.

9. Section 114 of the Code although does not prescribe any limitation  

on the power of the court but such limitations have been provided for in  

Order 47 of the Code; Rule 1 whereof reads as under:

“17.  The  power  of  a  civil  court  to  review its  judgment/decision  is  traceable  in  Section  114  CPC.  The  grounds  on  which  review  can  be  sought are enumerated in Order 47 Rule 1 CPC,  which reads as under:

“1.  Application  for  review  of  judgment.—(1)  Any person considering himself aggrieved—

(a) by a decree or order from which an appeal is  allowed,  but  from  which  no  appeal  has  been  preferred,

(b) by a decree or order from which no appeal is  allowed, or

(c) by a decision on a reference from a Court of  Small Causes,

and  who,  from  the  discovery  of  new  and  important  matter  or  evidence  which,  after  the  exercise  of  due  diligence  was  not  within  his  knowledge or could not be produced by him at  the time when the decree was passed or  order  made,  or  on account of some mistake or error  apparent  on the  face  of  the  record,  or  for  any  other  sufficient  reason,  desires  to  obtain  a  review  of  the  decree  passed  or  order  made  against him, may apply for a review of judgment  to the court which passed the decree or made the  order.”

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An application for review would lie inter alia when the order suffers  

from an error apparent on the face of the record and permitting the same  

to  continue  would  lead  to  failure  of  justice.    In  Rajendra  Kumar v.  

Rambai [AIR 2003 SC 2095], this Court held :

“The  limitations  on  exercise  of  the  power  of  review  are  well  settled.  The  first  and  foremost  requirement  of  entertaining  a  review  petition  is  that the order, review of which is sought, suffers  from any error apparent on the face of the order  and  permitting  the  order  to  stand  will  lead  to  failure of justice. In the absence of any such error,  finality attached to the judgment/order cannot be  disturbed.”

The power of review can also be exercised by the court in the event  

discovery  of  new and  important  matter  or  evidence  takes  place  which  

despite  exercise  of due diligence was not  within the knowledge of the  

applicant or could not be produced by him at the time when the order was  

made.   An application for review would also lie  if  the order  has been  

passed  on  account  of  some  mistake.   Furthermore,  an  application  for  

review shall also lie for any other sufficient reason.

10. It is beyond any doubt or dispute that the review court does not sit  

in appeal over its own order.  A re-hearing of the matter is impermissible

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in law.  It constitutes an exception to the general rule that once a judgment  

is  signed or  pronounced,  it  should  not  be  altered.   It  is  also  trite  that  

exercise of inherent jurisdiction is not invoked for reviewing any order.   

Review is not appeal in disguise.   

In Lily Thomas v. Union of India [AIR 2000 SC 1650], this Court  

held :

“56. It follows, therefore, that the power of review  can be exercised for correction of a mistake and  not  to  substitute  a  view.  Such  powers  can  be  exercised within the limits  of  the statute  dealing  with the exercise of power. The review cannot be  treated an appeal in disguise.”

11. Respondent  in  his  plaint  inter  alia  raised  a  plea  of  novation  of  

contract.   Such a plea  was advanced on the  premise that  a  substantial  

amount  was  to  be  expended  for  eviction  of  the  tenants  who  were  

occupying the premises in question.   

For  the  said  purpose,  reference  was  made  to  Clause  13  of  the  

agreement dated 15.10.1972.  Undoubtedly, defendant – appellant denied  

and disputed that any modification in the said agreement had taken place  

as a result whereof the balance amount payable was Rs. 80,000/.  A bare  

perusal of Clause 13 of the said agreement categorically shows that the  

expenses for vacating the tenant were to be made through the defendant –

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appellant only.  It was for the defendant – appellant to accept any payment  

from  the  plaintiff  –  respondent.   Clause  13  does  not  envisage  any  

expenditure  on  the  part  of  the  plaintiff  on  the  said  account.   It  may,  

however,  be  correct  that  the  defendant  –  appellant  in  his  deposition  

accepted that he had made a representation to the plaintiff that in the event  

the  tenants  are  evicted  on  payment  of  the  sum  specified  therein,  the  

amount  so  paid  may  be  deducted  from  the  amount  of  consideration.  

According to him, the amount in question was a sum of Rs. 11,000/-.  He,  

however, contended that no amount was paid to the tenant.   

Before  the  learned  Trial  Judge,  both  the  parties  adduced  their  

respective evidences.  The plaintiff – respondent in cross-examination was  

asked the following question:

“Whether  or  not  you are prepared to purchase  the house, even if Sardarmalji and Inderchandji  could  not  settle  the  dispute  of  Rathiji,  as  has  been mentioned by you in your paper?”

In answer thereto, he stated as under:

“If  the  defendant  Inderchandji  is  prepared  &  ready to set off Rs. 30,000/- against the cost of  the house,  then I  am prepared to purchase the  house.”

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12. The readiness and willingness on the part of the plaintiff in view of  

his categorical admission, therefore, was a conditional one.  It  was not  

absolute.  Probably keeping in view the effect of such conditional offer  

made by him, he deposited the entire balance amount of consideration in  

the court on 25.09.1975.

13. Section 16(c) of the Specific Relief Act,  1963 mandates that the  

discretionary relief of specific performance of the contract can be granted  

only in the event the plaintiff not only makes necessary pleadings but also  

establishes that he had all along been ready and willing to perform his part  

of contract.  Such readiness and willingness on the part of the plaintiff is  

not  confined  only  to  the  stage  of  filing  of  the  plaint  but  also  at  the  

subsequent stage, viz., at the hearing.  It has been so held in Umabai and  

Another v.  Nilkanth  Dhondiba  Chavan  (Dead)  By  LRs.  And  Another  

[(2005) 6 SCC 243] in the following terms:

“30. It is now well settled that the conduct of the  parties,  with  a  view to  arrive  at  a  finding  as  to  whether  the  plaintiff-respondents  were  all  along  and still are ready and willing to perform their part  of  contract  as  is  mandatorily  required  under  Section 16(c) of the Specific Relief Act must be  determined having  regard  to  the  entire  attending  circumstances. A bare averment in the plaint or a  statement made in the examination-in-chief would  not  suffice.  The  conduct  of  the  plaintiff- respondents must be judged having regard to the

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entirety  of  the  pleadings  as  also  the  evidences  brought on records.

31.  In  terms  of  Forms  47  and  48  appended  to  Appendix A of the Code of Civil  Procedure, the  plaintiff must plead that “he has been and still is  ready  and  willing  specifically  to  perform  the  agreement on his part of which the defendant has  had  notice”  or  “the  plaintiff  is  still  ready  and  willing  to  pay  the  purchase  money  of  the  said  property  to  the  defendant”.  The  offer  of  the  plaintiff  in  the  instant  case  is  a  conditional  one  and, thus, does not fulfil the requirements of law.”

Yet again in  Sita Ram & Ors. v.  Radhey Shyam, [AIR 2008 SC  

143],  while referring to Ardeshir H. Mam v. Flora Sassoon [AIR 1928 PC  

208] this Court opined as under :

“  the  Privy  Council  observed  that  where  the  injured party sued at law for a breach, going to the  root of the contract, he thereby elected to treat the  contract  as  at  an  end  himself  and  as  discharged  from the obligations.  No further  performance  by  him was either contemplated or had to be tendered.  In  a  suit  for  specific  performance  on  the  other  hand, he treated and was required by the Court to  treat the contract as still subsisting. He had in that  suit to allege, and if the fact was traversed, he was  required  to  prove  a  continuous  readiness  and  willingness  from the  date  of  the  contract  to  the  time of the hearing, to perform the contract on his  part”

14. It is no doubt true that the learned Trial Judge decreed the suit inter  

alia opining that in terms of the modified contract, the plaintiff was to pay

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a further sum of Rs. 80,000/- only to the defendant.  The defendant did not  

accept  the said finding.  He preferred an appeal.   Admittedly,  he filed  

three applications for stay.  The learned Single Judge before whom the  

third stay application came up for hearing, by an order dated 9.11.1977  

recorded as under:

“This  is  the  3rd stay  application.   No new  ground  exists  for  grant  of  stay.   Indeed,  the  equities are not in favour of the defendant.   

Since the defendant was not in a position to  deliver the vacant possession of the Haveli in suit,  the plaintiffs were entitled to a decree for specific  performance,  on  payment  of  Rs.  80,000/-  in  the  shape  of  its  price.   Admittedly,  the  plaintiffs  deposited  Rs.  20,000/-  on  15.10.1972  and  Rs.  95,000/- on 24.09.1975, i.e., Rs. 1,15,000/- in all,  towards the price of the Haveli on the expectation  that  the  defendant  would  deliver  vacant  possession.

The  contention  that  the  plaintiffs  are  not  entitled to execute the decree because a sum of Rs.  60,000/- is not in deposit, is wholly unwarranted.  The plaintiffs had actually deposited Rs. 1,15,000/,  as stated above.  The deposit  was tantamount to  payment.

As the 2nd condition becomes operative, the  plaintiffs  withdrew  the  excess  amount  of  Rs.  35,000/-  as  well  as  the  costs  amounting  to  Rs.  7075/-.   They  were  entitled  to  their  costs  and  therefore could deduct the same under Order XX  rule  6(3)  of  the  Code  of  Civil  Procedure  and,  therefore, Rs. 7075/- have to be deducted from Rs.  60,000/-.  The order sheet of the executing court  dated  15.10.1977  shows  that  a  creditor  of  the  defendant has withdrawn Rs. 6952.37 p.

There is no non-compliance of the terms of  the decree on the part of the plaintiffs and they are

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entitled  to  get  the  2  sale-deeds  registered  in  the  terms of the decree and no question of requiring  the  plaintiffs  to  deposit  the  further  sum  of  Rs.  7000/- arises.

The  application  for  stay  is,  therefore,  rejected.”

It  was  in  the  aforementioned  situation,  Mr.  Sundaram  may  be  

justified in contending that the appellant had no other option but to agree  

to the execution of the document.

The learned Single Judge by an order dated 12.03.1987 allowed the  

appeal and the judgment of the Trial Court was set aside.

15. On an intra-court appeal by the respondent, the matter was finally  

heard  by  the  Division  Bench.   As regards,  the  effect  of  unconditional  

withdrawal  of the amount during pendency of the appeal,  the Division  

Bench noticed:

“It appears that S.B. Civil First Appeal No.36/1976  was  filed  on April  22,  1976 by the  defendant  – respondent and during pendency of the first appeal,  the  amount  deposited  by  the  plaintiff  was  withdrawn  by  the  defendant  unconditionally  and  the Executing Court thereafter registered the sale  deed in pursuance of the decree of the lower court.  However, at the time of deciding the First Appeal,  this  fact  escaped  attention  of  the  learned  Single

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Judge.   In  our  opinion,  it  was  necessary for  the  learned  Single  Judge  to  analyse  the  effect  of  unconditional  withdrawal  of  money  by  the  defendant during the pendency of appeal.”

16. Keeping in view the aforementioned finding,  the Division Bench  

could have remitted the matter for a limited purpose.  It, however, did not  

do so.  It  unjustifiably remitted the entire matter.   Legality of such an  

order is, however, not in question.

17. The learned Single Judge of the High Court upon consideration of  

all materials and evidences available on record allowed the appeal and set  

aside the judgment and decree passed by the learned Trial Judge by an  

order dated 11.08.2006, stating :

“…Thus,  in  view  of  the  evidence  brought  on  record  it  must  be  concluded  that  the  plaintiff  respondent has not been able to prove the said  oral agreement with respect to the reduction of  sale  price  by  Rs.  35,000/-.   It  has  not  been  established  as  to  at  which  place  and  on  what  date  the  alleged  oral  agreement  between  the  parties  had taken place.  Meaning thereby,  the  plaintiff Motilal, in my considered view, was not  ready  and  willing  to  purchase  the  haveli  in  question at any point of time…

…Since the plaintiff accepted the payment after  execution of decree by registration of sale deed

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through  court  on  24.02.1978,  therefore,  withdrawal/  acceptance  of  Rs.  45972/-  in  compliance  of  executing  court’s  order  dated  10.03.1978 cannot  be  said  to  have  an  adverse  effect on the case of the defendant appellant.”

18. The  said  judgment  was  accepted  as  no  appeal  was  preferred  

thereagainst.  It was only thereafter a review application was filed by both  

the parties.

19. Whereas  the  defendant  –  appellant  filed  a  review  application  

confined  to  the  question  that  he  was  entitled  to  the  restitution  of  the  

property and mesne profit in respect whereof the learned Single Judge of  

the High Court did not pass any specific order, the application for review  

filed by the respondent was on the merit of the judgment.  The relevant  

grounds of review which have been placed before us relate to :

(i) Unconditional  withdrawal  of  some  amount  by  one  of  the  

creditors of the defendant as also the defendant himself;

(ii) The defendant’s application before the Executing Court that  

he was ready and willing to get the sale deed executed on  

receipt of amount in cash and the said admission allegedly  

was not brought to the notice of the court;

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(iii) While holding that there was no agreement to reduce the sale  

consideration, the High Court had ignored the fact that it was  

an admitted case of the parties, as stipulated in the contract,  

that the defendants would get the premises vacated from the  

tenants within three months.

(iv) Appellant had prayed for an alternative relief,  viz.,  that he  

was  ready  to  get  the  decree  for  specific  performance  of  

contract by paying Rs. 1,15,000/-.  The court did not consider  

the evidence of DWs 1 to 6 in their proper perspective.

(v) The  court  did  not  consider  that  the  property  could  not  be  

restored back to the defendant – appellant and as such the  

court should have exercised its discretionary jurisdiction.

20. The issues raised before the appellate court, viz., whether there had  

been a novation of contract or whether the plaintiff was ready and willing  

to perform his part of contract, as is required under Section 16(c) of the  

Specific Relief Act, are essentially questions of fact.  The Trial Judge had  

determined the said issues which were appealed against.  An appeal is a  

continuation of the suit.  Any decision taken by the appellate court would  

relate back unless a contrary intention is shown to the date of institution of  

the  suit.   There  cannot  be  any  doubt  that  the  appellate  court  while  

exercising  its  appellate  jurisdiction  would  be  entitled  to  take  into

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consideration the subsequent events for the purpose of moulding the relief  

as envisaged under Order 7, Rule 7 read with Order 41, Rule 33 of the  

Code of Civil  Procedure.   The same shall,  however,  not mean that the  

court would proceed to do so in a review application despite holding that  

the plaintiff was not entitled to grant of a decree for specific performance  

of  contract.   For  the  purpose  of  obtaining  a  decree  for  specific  

performance of contract,  the court  must  arrive at  a conclusion that  the  

plaintiff  not  only  pleaded  but  also  established  his  readiness  and  

willingness  to  perform his  part  of  contract  throughout.   Exercising the  

discretionary jurisdiction one way or the other having regard to Section  

20(2)(b) would depend thereupon arriving at a finding of such fact.

Balancing of interest would be necessary provided a suit is to be  

decreed and not when the suit is to be dismissed.

21. The sequence of events to which we have adverted to heretobefore  

clearly go to show that the appellate court were all along aware of the  

main issues touching the merit of the matter.  They were also aware as to  

the effect or otherwise of the withdrawal of the amount by the appellant  

unconditionally as also by his creditor.  The plaintiff – respondent on the  

aforementioned premise was entitled to contend and in fact contended that  

unconditional  withdrawal  of  a  part  of  the  deposited  amount  would

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preclude  the  appellant  from pursuing  the  appeal.   The  question  as  to  

whether  by  reason  of  such  withdrawal,  he  had  accepted  the  judgment  

passed by the learned Trial Judge and, thus, was estopped and precluded  

from pursuing his appellate remedy was one of the points which fell for  

consideration before the appellate court.   

Keeping in view the entirety of the facts and circumstances of the  

case, the appellate court arrived at two crucial findings:

(i) The  plaintiff  had  not  been  all  along  ready  and  willing  to  

deposit the balance sum of Rs. 95,000/-.

(ii) The unconditional withdrawal on the part  of the defendant  

was involuntary.

The events which had taken place subsequently, viz., registration of  

the  said  deed  of  sale,  purported  taking  over  of  possession  of  the  suit  

premises  by  the  plaintiff  and  alleged  expenditure  incurred  by  him for  

renovation of the building, were within the knowledge of the parties and  

the court.  It was, therefore, not a discovery of a new fact which despite  

due diligence the plaintiff could not bring to the notice of the court.

22. Order  41,  Rule  1 of  the  Code stipulates  that  filing of  an appeal  

would not amount to automatic stay of the execution of the decree.  The  

law acknowledges that during pendency of the appeal it is possible for the  

decree holder to get the decree executed.  The execution of the decree

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during pendency of the appeal would, thus, be subject to the restitution of  

the property in the event the appeal is allowed and the decree is set aside.  

The court only at the time of passing a judgment and decree reversing that  

of  the  appellate  court  should  take  into  consideration  the  subsequent  

events,  but,  by  no  stretch  of  imagination,  can  refuse  to  do  so  despite  

arriving at the findings that the plaintiff would not be entitled to grant of a  

decree.  Discretionary jurisdiction, it  is trite,  can be exercised provided  

there is any room for the court to so same and not otherwise.  The court  

while exercising its jurisdiction would not act arbitrarily or beyond the  

contours of law.  The contention of the plaintiff that he had also prayed for  

grant of a decree in the alternative, viz., in the event the court came to the  

conclusion that there had been no novation of contract, he was ready and  

willing to deposit the entire amount.  No conditional offer was permissible  

in a suit for specific performance of contract.

23. Contention of Mr. Venugopal that the defendant having accepted  

novation of contract but only the quantum of the amount being different,  

the court could have asked the plaintiff – respondent to deposit a further  

sum of Rs. 24,000/- cannot be accepted for more than one reason.  Apart  

from the fact  that  such a  contention  had never  been raised before  the  

appellate court, keeping in view the finding of fact arrived at that there  

had in fact been no novation of contract, such a course of action was not

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open.   In  any  view  of  the  matter,  the  same  would  amount  to  re-

appreciation of evidence which was beyond the review jurisdiction of the  

High Court.

24. We have noticed hereinbefore, that under what circumstances the  

aforementioned amount of Rs. 1,15000/- was deposited by the respondent.  

He  might  have  been  advised  to  do  so  keeping  in  view  the  fact  that,  

according to him, he was ready and willing to perform his part of contract  

provided the balance amount of consideration was reduced to Rs. 80,000/.  

25. The High Court had rightly noticed the review jurisdiction of the  

court, which is as under:

“The law on the subject – exercise of power of  review, as propounded by the Apex Court and  various other High Courts may be summarized  as hereunder:

(i) Review proceedings are not by way  of  appeal  and  have  to  be  strictly  confined to the scope and ambit of  Order 47 Rule 1 C.P.C.

(ii) Power of review may be exercised  when  some  mistake  or  error  apparent  on  the  fact  of  record  is  found.   But  error  on  the  face  of  record must be such an error which  must strike one on mere looking at  the  record  and  would  not  require  any  long  drawn  process  of  reasoning on the points where there

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may  be  conceivable  be  two  opinions.

(iii) Power  of  review  may  not  be  exercised  on  the  ground  that  the  decision was erroneous on merits.

(iv) Power  of  review  can  also  be  exercised for any sufficient  reason  which is wide enough to include a  misconception of  fact  or  law by a  court or even an Advocate.

(v) An application  for  review may be  necessitated by way of invoking the  doctrine  ‘actus  curiae  neminem  gravabit’.”

26. In our opinion, the principles of law enumerated by it, in the facts  

of this case, have wrongly been applied.   

In  Board of Control for Cricket in India & Anr. v.  Netaji Cricket  

Club & Ors. [(2005) 4 SCC 741], this Court held :

“89.  Order  47  Rule  1  of  the  Code  provides  for  filing  an  application  for  review.  Such  an  application for review would be maintainable not  only upon discovery of a new and important piece  of evidence or when there exists an error apparent  on the face of the record but also if the same is  necessitated on account of some mistake or for any  other sufficient reason.

90. Thus, a mistake on the part of the court which  would  include  a  mistake  in  the  nature  of  the  undertaking may also call for a review of the order.  An  application  for  review  would  also  be  maintainable  if  there  exists  sufficient  reason  therefor.  What would constitute  sufficient  reason

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would depend on the facts  and circumstances  of  the case. The words "sufficient reason" in Order 47  Rule 1 of the Code are wide enough to include a  misconception of fact or law by a court or even an  advocate.  An  application  for  review  may  be  necessitated  by  way  of  invoking  the  doctrine  “actus curiae neminem gravabit”.”

It was furthermore observed:

“94. In Rajesh D. Darbar and Ors. v.  Narasingrao  Krishnaji Kulkarni and Ors. (2003)7SCC219 , this  Court noticed:

“4.  The  impact  of  subsequent  happenings  may now be spelt out. First, its bearing on  the right of action, second, on the nature of  the  relief  and  third,  on  its  importance  to  create or destroy substantive rights.  Where  the nature of the relief, as originally sought,  has become obsolete  or  unserviceable or  a  new form of relief will be more efficacious  on account  of  developments  subsequent  to  the suit or even during the appellate stage, it  is but fair that the relief is moulded, varied  or reshaped in the light of updated facts.  

The courts can take notice of the subsequent  events and can mould the relief accordingly.  But there is a rider to these well established  principles.  This  can  be  done  only  in  exceptional  circumstances,  some  of  which  have been highlighted above. This equitable  principle cannot, however, stand in the way  of the court adjudicating the rights already  vested by a statute. This well settled position  need not detain us,  when the second point  urged  by  the  appellants  is  focused.  There  can  be  no  quarrel  with  the  proposition  as  noted by the High Court that a party cannot  be made to suffer on account of an act of the

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Court. There is a well recognised maxim of  equity,  namely,  actus  curiae  neminem  gravabit  which  means  an  act  of  the  Court  shall  prejudice  no  man.  This  maxim  is  founded upon justice and good sense which  serves  a  safe  and  certain  guide  for  the  administration of law. The other maxim is,  lex  non cogit  ad  impossibilia,  i.e.  the  law  does not compel a man to do that what he  cannot possibly perform”.

Furthermore, in Jagmohan Singh v. State of Punjab & Ors. [(2007)  

7 SCC 38], this Court held :

“It is furthermore evident that Order 47 Rule 1 of  the Code of Civil Procedure does not preclude the  High Court  or  a court  to take into consideration  any subsequent event. If imparting of justice in a  given  situation  is  the  goal  of  the  judiciary,  the  court  may  take  into  consideration  (of  course  on  rare occasions) the subsequent events.”

27. For the reasons aforementioned, the impugned judgment cannot be  

sustained  which  is  set  aside  accordingly.   The  appeal  is  allowed.  

However,  it  would  be  open  to  the  plaintiff  –  respondent  to  file  an  

appropriate application for recovery of such amount or amounts which he  

might have expended towards renovation of the building, which may be  

considered on its own merits.  The court shall furthermore determine the  

amount of mesne profit which became payable to the appellant.  It would  

be open to the court to adjust the amount payable by the plaintiff to the  

defendant and vice-versa.

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…………………………….J. [S.B. Sinha]

…………………………….J. [Deepak Verma]

New Delhi July 21, 2009