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2000 DIGILAW 2078 (SC)

AMRUTLAL SHIVLAL PATEL v. PRABHUDAS SHIVLAL PATEL

2000-12-04

BRIJESH KUMAR, R.C.LAHOTI

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( 1 ) LEAVE granted. ( 2 ) THE facts insofar as relevant for the purpose of these appeals are stated as under: the plaintiff Prabhudas Shivlal Patel, respondent before us, filed a suit for declaration, possession and injunction. He also filed an application for grant of ad interim injunction under Order 39 Rules 1 and 2 of the Code of civil Procedure. The trial court dismissed the application. The plaintiff preferred an appeal to the High Court which too was dismissed vide order dated 26-3-1998. On 31-3-1999 the plaintiff moved an application requesting the High Court to recall its earlier order dated 26-3-1998. One of the pleas raised before the High Court in the application seeking review, vide ground (1) para (5), was that the decision in R. Rajagopal Reddy v. Padmini chandrasekharan1 which was relied on in the appellate order was "overruled" by a subsequent decision of the Supreme Court in Rebti Devi v. Ram Dutt. The High Court condoned the delay in filing the review application, allowed the same, recalled the order dated 26-3-1998 and restored the appeal to file solely on the ground as stated by the High Court"in view of the latest decision of the Supreme Court reported in Rebti devi the order passed by this Court dated 26-3-1998 is recalled. "the aggrieved defendant (respondent before the High Court) has come up to this court by filing this appeal by special leave. ( 3 ) LEARNED counsel for the appellant has submitted that the plea taken in ground (1) para (5) of the review application before the High Court is factually incorrect and therefore the very premise on which the High Court has proceeded to recall its earlier order is non-existent. There is substance in this submission. In the case of Rebti Devi this Court has not overruled its earlier decision in R. Rajagopal Reddy rather the earlier decision has been explained and affirmed. ( 4 ) THE view taken by the High Court in the order under appeal is apparently erroneous. The High Court was, therefore, not justified in recalling its earlier order by allowing the review application on the ground on which it has done. The order of the High Court cannot therefore be sustained. ( 4 ) THE view taken by the High Court in the order under appeal is apparently erroneous. The High Court was, therefore, not justified in recalling its earlier order by allowing the review application on the ground on which it has done. The order of the High Court cannot therefore be sustained. ( 5 ) HOWEVER, it is pointed out that the plea dealt with by the High Court was only one of the several pleas raised in the review application and there were other pleas raised which could have persuaded the High Court to exercise its review jurisdiction, but the High Court did not enter into the merits of those pleas inasmuch as the High Court found a singular plea enough for the purpose of recalling its earlier order. In our opinion, learned counsel for the respondent is right in submitting that the pleas other than the one dealt with by the High Court in the order under appeal deserve to be dealt with by the High Court for the limited purpose of examining whether a case for review was made out or not. ( 6 ) IN the above facts and circumstances of the case, the appeals are allowed. The order dated 28-1-2000 is set aside. The case is sent back to the high Court for the purpose of hearing the parties and disposing of the review application afresh other than on ground (1) para (5) of the review application. Civil Appeals Nos. 7071-72 of 2000 [arising out of SLPs (C) Nos. 8689-90 of 2000] ( 7 ) LEAVE granted. ( 8 ) THESE appeals are filed by the appellants who claim to be lis pendens purchasers. The only grievance raised by the appellants is that in spite of their having acquired an interest in the property, through lis pendens, they were not heard by the High Court before passing the order dated 28-1-2000 disposing of the review application preferred by Respondent 1. We are not entering into the merits of the plea so raised, inasmuch as we have already formed an opinion in the appeals preferred by the defendant that the review application deserves to be heard and disposed of afresh. We are informed that the appellants have already been joined as a party to the proceedings. We are not entering into the merits of the plea so raised, inasmuch as we have already formed an opinion in the appeals preferred by the defendant that the review application deserves to be heard and disposed of afresh. We are informed that the appellants have already been joined as a party to the proceedings. Needless to say, the appellants herein, being party to the proceedings before the High Court, shall be heard on the review application filed by the plaintiff before the High Court before passing any order thereon. ( 9 ) ACCORDINGLY, these appeals be treated as disposed of in the terms indicated hereinabove. No costs. ( 10 ) LET the matter be placed before the High Court in the second week of january 2001 for directions.