REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(s).5140 OF 2019 (Arising out of SLP(C ) No(s). 5449 OF 2015)

SUNIL VASUDEVA & ORS. ….Appellant(s)

VERSUS

SUNDAR GUPTA & ORS. ….Respondent(s)

J U D G M E N T

Rastogi, J.

1. Leave granted.

2. The present appeal is being filed against the impugned

judgment dated 24th September, 2014 passed by the High Court

of Calcutta in RVW No. 272 of 2012 recalling the Order dated 19th

October, 2012 and while setting aside the order dated 31st March,

2006 restoring the  Writ Petition  No. 18500(W) of 1985 to  be

heard on its own merits as expeditiously as possible which is a

subject matter of challenge in appeal before us.

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3. The facts that emerge from the multitude and collateral and

exhaustive pleadings of the parties in nutshell are that

respondent nos. 1, 2 and 3 (writ petitioners) are the grandsons of

Kirodimull Lohariwala and sons of Premchand Gupta both since

deceased, who constituted a H.U.F.  which owned property No.

43, Prithviraj Road, New Delhi(subject property) standing in their

joint names having other properties at Calcutta.

4. The present appellants are alleged to be the legal heirs of

late V. N. Vasudeva who happens to be the income tax

practitioner and lawyer of late Kirodimull Lohariwala had

purchased the subject property in an open auction conducted by

the Income Tax Department on 18th  August, 1964 for a

consideration  of  Rs. 2,60,000/­ and the sale certificate  with

respect to the suit property was issued on 1st April, 1965.

5. In  August, 1957, late  Kirodimull Lohariwala instituted a

Suit No. 1451 of 1957 before the High Court of Calcutta against

Premchand  Gupta claiming the said property including other

properties as his self­acquired properties and in the interregnum

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period, the official receiver was appointed over the subject

property by the High Court of Calcutta, who took possession of

the property on 1st May, 1958.  The said property (43, Prithviraj

Road,  New  Delhi)  was purported to be sold under  Certificate

proceedings initiated by Income Tax Department for recovery of

alleged income tax dues of Sambhuram Kirodimull HUF to late

V.N. Vasudeva for a sum of Rs. 2,60,000/­ on 18th August, 1964.

6. At this stage, objection was raised by late Kirodimull

Lohariwala against such purported sale to V.N. Vasudeva for the

reason that no leave was obtained from the High Court of

Calcutta which was although overruled by the Chief

Commissioner, Delhi on 26th February, 1965.  At the same time,

application was filed by the Income Tax Department in the said

Suit No. 1451 of 1957 praying for (a) condonation of the omission

to obtain leave of Court before putting the Delhi property for sale

and (b) leave be given to it to complete the said sale of the Delhi

property in favour of  V.N.  Vasudeva and  to give further  effect

thereto.  A certification of confirmation of sale was issued by the

District Collection Officer, Delhi purporting to confirm the said

purported sale  dated 18th  August,  1964  in  favour  of late  V.N.

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Vasudeva.  At this stage, order was passed by the High Court of

Calcutta on the application of Union of India dated 8th

September, 1965 granting liberty to the Income Tax Department

to put the Delhi property for sale by public auction or private

treaty to the best purchaser or purchasers that can be got for the

same.   What will be the effect of the later order passed by the

High Court of Calcutta dated 8th September, 1965 in reference to

the order of the District Collection Officer, Delhi for confirmation

of the auction sale will not be advisable for this Court to examine.

7. A detailed correspondence took place between the Income

Tax Department and late Premchand Gupta (father of respondent

nos. 1­3)  which is not required to be dilated in the instant

proceedings.

8. At this stage, respondent nos. 1­3 filed Title Suit No. 471 of

1985(Sundar Gupta & Ors. Vs. Sita Vasudeva & Ors.) before the

District Judge at Delhi on 19th May, 1985 for seeking declaration

to continue to be the owners of the suit property and for

injunction restraining the auction purchaser V.N. Vasudeva,

predecessor of  the appellants  from changing the nature of  the

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property.   Indisputedly, Income tax authorities were not

impleaded as parties to the suit.

9. Respondent nos. 1­3 also filed Writ Petition bearing C.O. No.

18500(W)  of  1985 against the  Union of India and the  present

appellants in the High Court of Calcutta regarding the purported

sale of the Delhi property to late V.N. Vasudeva under auction

dated 18th August, 1964 declaring that the purported sale dated

18th August, 1964 and issuance of the certificate of confirmation

of sale dated 1st April, 1965 in respect of the Delhi property be

declared as null and void and the subject property be remained

under attachment by income tax authorities.

10. Taking assistance of the order of the High Court of Calcutta

dated  8th  September, 1965  passed on an application filed by

Union of India of which a reference has been made,

affidavits/counter affidavits were filed by the respective parties

and the writ petition(C.O. No. 18500(W) of 1985) was heard and

judgment was reserved by High Court of Calcutta in March/April,

1986 and   after almost four and a half years, the Writ Petition

was dismissed by  the Single  Judge of the  High Court  on 26th

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October, 1990 dealing with the submissions and arriving to the

conclusion that since the writ petitioners have resorted to

alternative remedy of filing suit  in the court of  District Judge,

Delhi which although was pending on the date when the

judgment  was reserved(Title  Suit  No.  471 of  1985)  keeping all

points raised before the High Court of which a reference has been

left open to be agitated by the parties in the pending Title Suit

No. 471/1985 but the fact is that Title Suit No. 471/1985 which

was pending on the date when the judgment was reserved by the

High Court  in March/April,  1986 came to be dismissed under

Order 9 Rule 2 Code of Civil Procedure due to non­serving upon

the  main defendants vide order dated 3rd  October, 1986 and

either of the party has not brought this fact to the notice of the

Court about the later developments of which reference has been

made.   Immediately thereafter, respondent nos. 1­3 filed an

application for recalling/setting aside the order dated 26th

October, 1990 and for deciding the writ petition on merits.   

11. After hearing the parties, Single Judge of the High Court of

Calcutta under its order dated 20th November, 1998 allowed the

application filed by respondent nos. 1­3 and recalled the Order

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dated 26th October, 1990 by restraining Vasudevas from dealing

with the subject property with the direction to hear the matter on

merits.

12. The present appellants preferred appeal against the Order

dated  20th  November,  1998.  The  Division  Bench of the  High

Court of Calcutta in M.A.T. No. 87 of 1999 disposed of the appeal

under its Order dated 17th August, 2001 without interfering with

the order of recalling on review application dated 20th November,

1998 but as it reflects from the record, the present appellants

after taking note of the Order dated 17th August, 2001 considered

appropriate to prefer SLP(C ) No. 22491 of 2001 before this Court

which came to be dismissed at the motion stage on 10th January,

2002.   

13. The present appellants thereafter filed application being

C.A. No. 3557 of 2005 in the disposed of  Writ Petition No.

18500(W) of 1985 inter alia praying that the respondents be

restrained from proceeding with any advertisement for sale of suit

property as no such liberty has been given by the Court.  Single

Judge of the High Court, after hearing the parties, held that there

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was nothing  pending before the  Court  and  thus the  aforesaid

miscellaneous application was held to be not maintainable under

its Order dated 31st March, 2006.   

14. The  Order  dated  31st  March,  2006  passed  by the  Single

Judge of the High Court came to be assailed by the respondents

in appeal that came to be dismissed vide Order dated 19th

October 2012 with liberty to the respondents to file a fresh suit

on the self­same cause of action in Delhi,  if  so advised.   The

respondents preferred Review Application being RVW No.

272/2012 against the  impugned  judgment dated 19th  October,

2012 and also the Order dated 31st  March, 2006.   By the

impugned order dated 24th September, 2014, the Order dated 19th

October, 2012 was reviewed and in consequence, the order dated

31st March, 2006 was set aside and directed the Writ Petition No.

18500(W) of 1985 to  be  heard on its own  merits  which is a

subject matter of challenge at the instance of the appellants in

the instant appeal.

15. Mr. Mukul Rohatgi, learned senior counsel for the

appellants with his usual vehemence submits that the present

review petition filed by the respondents was not maintainable as

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none of the grounds which have been taken note of meets the

principles of review jurisdiction of the Court as envisaged under

Order 47 Rule 1 Code of Civil Procedure which entails the basic

principles for entertaining the review petition and this Court in

Kamlesh Verma Vs. Mayawati and Others   1  has laid down the

principles where review can be said to be maintainable.

16. Learned counsel submits that in the instant case,

respondents have failed to canvass the principles for

maintainability of a review application and the Order passed by

the High Court under its review jurisdiction impugned dated 24th

September, 2014 primarily does not satisfy the basic principles of

law regarding maintainability of the review application and even

in the impugned judgment, neither the High Court has been able

to decipher new and important matter from the evidence which,

after the exercise of due diligence, was not in the knowledge of

the review petitioner nor pointed out any mistake or error

apparent on the face of record or suggested any other sufficient

reason calling for review.   In the given circumstances, the very

order impugned dated 24th September, 2014 passed by the High

1 2013(8) SCC 320

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Court of Calcutta is not sustainable in law and deserves

interference by this Court.

17. Learned counsel further submits that the respondent nos.

1­3 in fact are repeatedly abusing the legal process and

launching  litigation  in regard to the subject property  for  more

than 50 years and their real purpose of filing Writ Petition No.

18500(W) of 1985 was to withhold the Income Tax Department

from attaching and selling other properties in Calcutta.  It is only

by alleging that the suit property in Delhi was legally headed by

the Department and the suit  property be put  into sale afresh.

However, the fact is that the auction sale of suit property was

accepted by the owner of the said property Kirodimull Lohariwala

which is evident from a reply which he filed to an application in

the  suit for  eviction against the  predecessor in  interest  of the

appellants and was taken note by the Single Judge in its Order

dated 26th October, 1990.

18. Learned counsel further submits that detailed judgment of

the Single Judge of the High Court dated 26th October, 1990 has

dealt with the several grounds raised on  merits and  merely

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because the Judge has finally granted liberty to the respondents

in raising all questions in the first instance in the pending suit in

Delhi(Suit  No.  471 of 1985) which was  indeed pending on the

date when the judgment was reserved and was dismissed much

before  the pronouncement of the  judgment dated 26th  October

1990 but the Single Judge of the High Court has dealt with all

the issues and repelled the same in its judgment dated  26th

October, 1990.

19. In the given circumstances,  learned counsel submits that

recalling of the order dated 26th  October, 1990  under review

jurisdiction of the High Court and relegating the parties to square

one would be nothing but abuse of the legal process and needs to

be curbed and that is the reason for which the appellants have

approached this  Court by filing an  appeal despite the  public

auction held by the Income Tax Department in the year 1964 in

favour of the predecessor in interest, V.A. Vasudeva and after the

purported sale stands confirmed overruling the objections of the

original owner of the  property dated  26th  February 1965  and

issuance of certificate of confirmation of sale dated 1st  April,

1965, still they are unable to get fruits of the subject property in

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question and relegating them to the year 1985 that too after more

than 34 years of the property put to auction would not be in the

interest of justice and that needs to be interfered by this Court.

20. Per contra, learned senior counsel for the respondents,

Mr.  Jaideep  Gupta  and  Mr.  Siddharth  Luthra  and Mr.  Ashok

Gupta, respondent in person, on the other hand, while

supporting the judgment impugned dated 24th September, 2014

submits that  auction  of the subject  property in  question  was

never confirmed and submits that in February 1957 Kirodimull

Lohariwala (grandfather of the respondents) appointed V.N.

Vasudeva, an income tax practioner(father of appellant nos. 1 &

2) as his income tax lawyer and constituted attorney.   V.N.

Vasudeva took full advantage of his fiduciary relation and

became tenant of the subject property on a paltry sum of  Rs.

300/­ per month.   On May 1, 1958, Official Receiver was

appointed in Suit No. 1451 of 1957 by High Court of Calcutta

inter alia includes Delhi property.   Since V.N. Vasudeva did not

pay rent of the Delhi property and set up a fictitious agreement

between himself & Kirodimull Lohariwala for adjustment of rents

against his professional fees, this Court castigated V.N. Vasudeva

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in  V.N.  Vasudeva  Vs.  Kirodimal   2  arising out of the eviction

proceeding holding that V.N. Vasudeva avoided payment of the

monthly rent  of  Rs.  300/­ to the Income Tax Officer(as  Delhi

property was under attachment of Income Tax Department).  

21. Learned counsel further submits that Civil Court does not

have any jurisdiction to deal with such matters in view of Section

293 of the Income Tax Act, 1961 and the only remedy available to

the respondents is to file  a  writ  petition  under  Article  226 of

Constitution of India.

22. Learned counsel further submits that the Writ Petition No.

18500(W) of 1985 filed at the instance of the respondents indeed

came to be decided on 26th October, 1990 but has not taken note

of the effect of Section 293 of the Income Tax Act, 1961 and the

consequential effect of the order dated 8th  September, 1965

passed by the High Court of Calcutta of which a reference has

been made and also the fact that judgment remain pending for

almost four and half years and prior thereto, the Title Suit No.

471 of 1985 was dismissed and in the given circumstances, the

2 AIR 1965 SC 440

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conclusion arrived at by the Single Judge that all contentions are

available to  be raised  in  the  pending suit (in  Delhi) in  sequel

thereof was a mere observation and could not be said to be a

finding recorded on the subject matter and this what has been

projected by the High Court in relegating the parties to appear

before the Single Judge of the High Court and addressed in Writ

Petition  No.  18500(W) of 1985  on  merits and that cannot  be

termed to be beyond its review jurisdiction as envisaged under

the law.

23. Learned counsel submits that if the Writ Petition No.

18500(W) of 1985 filed at the instance of the respondents is not

heard on merits, they will remain remediless as their contentions

have not yet been decided by any Court of competent jurisdiction

and further submits that no prejudice either way has been

caused to the parties as they are being relegated back to address

on merits in the Writ Petition No. 18500(W) of 1985, having all

contentions to be raised in the proceedings.  

24. We  have  heard learned  counsel for the  parties  and  with

their assistance perused the material available on record.

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25. From the material on record, it manifests that the subject

property (43,  Prithviraj  Road,  New Delhi)  was purported to  be

sold in the certificate proceedings initiated by Income Tax

Department for recovery of income tax dues of Sambhuram

Kirodimull HUF to the auction purchaser late V.N. Vasudeva for a

sum of  Rs. 2,60,000/­ on August 18, 1964.  Kirodimull objected

against such purported sale to V.N. Vasudeva because no leave

was obtained from the High Court of Calcutta which was

overruled by the Chief Commissioner, Delhi and confirmed the

purported sale in favour of V.N. Vasudeva vide Order dated 26th

February, 1965.   At this stage, application  was filed by the

Income Tax Department in Suit No. 1451 of 1957 praying for (a)

condonation of the omission to obtain leave of Court before

putting the Delhi property for sale and (b) leave be given to it to

complete the said sale  of the  Delhi  property in favour  of  V.N.

Vasudeva and to give further effect thereto.   On an application

filed by Income Tax Department, the Single Judge of the High

Court of Calcutta in its Order dated 8th September, 1965 taking

note of the rival contention of the parties observed as follows:­

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“A.N. Ray (In Chambers)

Kirodimull Bhiwaniwala, also know as Kirodimull Lohariwala resident at  Sadar  Bazar,  Raigarh in the State of Madhya Pradesh, outside the jurisdication of this court.  

Vs.

1. Premchand Gupta residing at 181­A, Chittaranjan  Avenue,  Calcutta  within the said jurisdiction.

2. Pawan Gupta 3. Sunder Gupta

the last two being minors under the age of 18 years residing at 181 A, Chittaranjan Avenue, Calcutta with the said jurisdiction.

4. Smt.  Asrafi  Devi alias  Sm.  Surfi  Devi residing at Sadar Bazar, Raigarh, in the State of Madhya Pradesh outside the said jurisdiction.

Upon reading on the part of the Union of India through its Income Tax Officer, Raigarh Civils, Raigarh (hereinafter referred to as the said applicant union), a Mastered Summons bearing date the third day of March last and an affidavit of Sanat Kumar Mukherjee of the due service thereof affirmed on the fifth day of April last and a petition of the said applicant and an affidavit of Ramdas Rambhorose Misra in verification thereof affirmed on the fifteenth day of March last and the exhibits annexed to the said petition and marked respectively A,B,C and D and an affidavit of Ramdas Rambhorose Misra of Raigarh affirmed on the Seventeenth day  of  June  last  all filled this  day  and upon reading on the  part the  of the  defendants  an affidavit of Premchand Gupta affirmed on the fifth day of May last and filed this day and upon hearing Mr. D. Gupta advocate for the said applicant Union and Mr. D.C. Basu advocate  for the defendants (the plaintiffs nor appearing either in person or by advocate, or attorney).

It is  ordered that the said  applicant  Union  be  at liberty to  put  up the  Delhi  property  being the joint moveable and immoveable properties including Premises  No.43,  Prithviraj  Road,  New Delhi, for  sale

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either by public auction or by private treaty to the best purchaser or purchasers that can be got for the same.

Witness, Sri Himanshu Kumar Bose, Chief Justice at Calcutta aforesaid the eighth day of September, one thousand nine hundred and sixty five.

S.K. Mandal – Attorney

Sutt & Sen – Attorneys

   S.B. Banerjee 20.1.1966

        For Registrar

26. That apart, Section 293 of the Income Tax Act, 1961 put a

complete bar of filing suit in any civil court against the

revenue/income tax authority  and the mandate of law remain

unnoticed when the order came to be passed by the Single Judge

of the High Court in Writ Petition No. 18500(W) of 1985 decided

on 26th October, 1990 while relegating the parties to address in

the alleged pending Civil Suit No. 471 of 1985 before the District

Judge at  Delhi although it  was  dismissed  much  prior to the

pronouncement of the Judgment dated 26th October, 1990.  Even

in the LPA, the Division Bench of the High Court granted liberty

to the respondents to file a fresh civil suit in respect of the

subject property in Delhi and either party has not brought to the

notice of the Court the  mandate of law as envisaged under

Section 293 of the Income Tax Act, 1961 that the civil suit

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against the Income tax Department is not maintainable under the

law,  which appears to  be  mistakenly  omitted by the  Court in

arriving at the rival claims of the parties.

27. It was taken note of by the High Court in its review

jurisdiction and arrived to the conclusion that there appears to

be  an  error  apparent  on the face  of record  and  consequently

allowed the application for review, recalled the Order dated 19th

October, 2012 and set aside the Judgment and Order dated 31st

March, 2006 passed in miscellaneous application and for

restoration of Writ Petition No. 18500(W) of 1985 to be heard on

its own merits under the impugned judgment dated 24th

September, 2014.

28. The basic principles in which the review application could

be entertained have been eloquently examined by this Court in

Kamlesh Verma (supra) wherein this Court held as under:­

“20. Thus,  in  view of  the  above,  the  following  grounds  of review are maintainable as stipulated by the statute:

20.1. When the review will be maintainable:

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(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;

(ii) Mistake or error apparent on the face of the record;

(iii) Any other sufficient reason.

The  words  “any  other  sufficient  reason”  have  been interpreted in Chhajju Ram v. Neki [(1921-22) 49 IA 144 and approved  by  this  Court  in Moran  Mar  Basselios Catholicos v. Most Rev.  Mar Poulose Athanasius AIR 1954 SC 526 to  mean “a  reason sufficient  on  grounds at  least analogous to those specified in the rule”. The same principles have been reiterated in Union of India v. Sandur Manganese & Iron Ores Ltd. (2013) 8 SCC 337.

20.2. When the review will not be maintainable:

(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.

(ii) Minor mistakes of inconsequential import.

(iii) Review proceedings cannot be equated with the original hearing of the case. (iv)  Review  is  not  maintainable  unless  the  material  error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.

(v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error.

(vi) The mere possibility of two views on the subject cannot be a ground for review.

(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.

(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.

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(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived.”

29. Taking note of the exposition of the above principles let us

consider the facts on record  and it reveals that the effect of

Section 293 of the Income Tax Act has been mistakenly omitted

under the judgment in review and that apart, the consequential

effect of the order of the High Court on an application filed by the

Union of India in Civil Suit No. 1451 of 1957 dated 8th

September, 1965 was open to be examined in the writ

proceedings and it was the defence of the Income Tax

Department in the reply to the review application and also before

this Court in their counter affidavit that in the auction sale which

was held in the month of August, 1964, the permission from the

Court was not obtained and after the order came to be passed on

their application by the Single Judge of the High Court in Suit

No.  1451 of  1957 dated  8th  September,  1965, it  will certainly

affect  the auction sale held by the  Income Tax Department  in

reference  to the  subject  property in  question and  it  was  their

stand throughout in the proceedings.

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30. We find that the Single Judge of the High Court of Calcutta

heard and reserved the judgment in Writ Petition No. 18500(W) of

1985 in March/April 1986 and after nearly four and half years,

the judgment pronounced on 26th  October, 1990 relegating the

parties to raise all the contentions to their defence in the pending

civil suit before the District Judge, Delhi itself indicates that the

Single Judge was not inclined to express its opinion on merits

obviously for the reason that if the finding was recorded, it would

have prejudiced the rights of the parties to the litigation to be

examined in the alleged pending civil suit in the District Court,

Delhi which although was dismissed on 3rd October, 1986 much

before the pronouncement of the judgment dated 26th  October,

1990 by the Single Judge of the High Court.

31. In the given facts and circumstances, we are not inclined to

dilate the issues on merits raised in the Writ Petition No.

18500(w) of 1985 filed at the instance of the respondents before

the High Court of Calcutta, but if the civil suit was not

maintainable as alleged in view of Section 293 of the Income Tax

Act and this was the purported defence of the respondents and of

the Income Tax Department and consequential effect to the Order

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dated 8th September, 1965 of which a reference has been made by

us,  no party could be left remediless and whatever the grievance

the party has raised before the Court of law, has to be examined

on its own merits. In our considered view,  there appears no

error being committed by the High Court in passing the

impugned judgment dated 24th September, 2014 in exercise of its

review jurisdiction and that needs no interference by this Court.

32. We make it clear that what has been observed by us is only

for the purpose of disposal of the present appeal and the Writ

Petition No. 18500(w) of 1985 be decided by the High Court of

Calcutta on its own merits, after hearing the parties, in

accordance with law.  Since the dispute is pending for sufficiently

long time, we expect that the High Court will give priority to the

matter and decide the writ petition expeditiously as possible.

33. The appeal is having no merit and is accordingly dismissed

with the observations supra.  No costs.  

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34. Pending application(s), if any, stand disposed of.

…………………………..J. (A.M. KHANWILKAR)

…………………………J. (AJAY RASTOGI)

NEW DELHI July 02, 2019

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