Bharat Builder Pvt. Ltd. and Others Vs. Parijat Flat Owners Coop. Housing Society Ltd.
EmailAppeal: Civil Appeal No. 2302 of 1999
(Arising out of SLP (C) No. 5491 of 1999)
(Arising out of SLP (C) No. 5491 of 1999)
Petitioner: Bharat Builder Pvt. Ltd. and Others
Respondent: Parijat Flat Owners Coop. Housing Society Ltd.
Apeal: Civil Appeal No. 2302 of 1999
(Arising out of SLP (C) No. 5491 of 1999)
(Arising out of SLP (C) No. 5491 of 1999)
Judges: S.P. BHARUCHA & R.C. LAHOTI, JJ.
Date of Judgment: Sep 04, 1999
Head Note:
CONSTITUTION
Consititution of India, 1950
Articles 136, 144 – Earlier SLP disposed of with directions to move review application and for disposal by High Court “regardless to technicalities of limitations” – Yet, High Court dismissing the petition on grounds that fresh issue cannot be heard – Issue of “admission” by party. Held that orders are set-aside and matter remitted back, to be placed before other Judges than those who passed orders.(Para 9)
Consititution of India, 1950
Articles 136, 144 – Earlier SLP disposed of with directions to move review application and for disposal by High Court “regardless to technicalities of limitations” – Yet, High Court dismissing the petition on grounds that fresh issue cannot be heard – Issue of “admission” by party. Held that orders are set-aside and matter remitted back, to be placed before other Judges than those who passed orders.(Para 9)
JUDGEMENT:
ORDER
1. The respondent appears.
2. Leave granted.
3. The order under challenge was passed by a Division Bench of the High Court at Bombay on a review application in the following circumstances.
4. On 19-12-1997, on a special leave petition (SLP (C) No. 22776 of 1997) filed by the appellant against the respondent, the following order was passed:
“The Division Bench of the High Court at Bombay has, in the judgment and order under appeal, noted that the petitioner and the respondent had in an earlier writ petition, jointly filed, pleaded that the deed whose construction is relevant here ‘is a sale and not a lease’. The High Court took the view that this pleading was sufficient to reach the conclusion that the deed ‘is an agreement for a sale’.
We have been shown the relevant averments in the earlier writ petition. It appears that the High Court has not consid-ered whether the admission is of a sale or an agreement to sell. We think that, in the circumstances, the petitioner should move the Division Bench of the High Court in this be-half, by the convenient means of a review petition.
We make it clear that the High Court shall decide, after hearing parties on the review petition, whether the admission is of a completed sale or of an agreement to sell and whether, by reason thereof, the provisions of the Maharashtra Ownership Flats (Regulation and Promotion of Construction, Sale, Manage-ment and Transfer) Act will apply. Regardless of the technical limitations of the review petition, these questions shall be addressed.
Mr. K.K. Venugopal, learned counsel for the petitioner, states that the review petition shall be moved within 4 weeks. Mr. Harish N. Salve, learned counsel for the respondent, states that, pending the review petition, no steps shall be taken to execute the decree that is under challenge.
The SLP is disposed of accordingly.” (emphasis supplied)
5. The review petition was heard by the two learned Judges who had passed the order which was the subject-matter of the earlier SLP. The order on the review petition states
“it is contended that the Supreme Court while disposing of the abovesaid SLP has called upon this Court to decide. In inter-preting the document Exh. E whether the admission made by the parties construing the document Exh. E in the earlier writ petition is of a completed sale or an agreement to sale and whether by reason thereof the provisions of the Maharashtra Ownership Flats (Regulation and Promotion of Construction, Sale, Management and Transfer) Act will apply. In fact the aforesaid question was not at all a question raised in the suit in the trial court or before this Court. In fact the main question that was posed in the appeal was as to whether Exh. E was properly construed by the lower court as one of agreement to sell or as indenture of lease”.
The Division Bench has, therefore, come to the conclusion that
“rightly or wrongly an impression has been created while read-ing our judgment that we have solely relied upon the judgment of his Court in previous writ petition in interpreting the document Exh. E. This misunderstanding must have been crept in partly due to some clerical mistake occurred in some places in the judgment by using phrases agreement for sale instead of agreement to sell. However, the issue posed to be examined as directed by the Supreme Court is not the issue which was raised in the trial court or the Appellate Court and it is not permis-sible for us to go into such a fresh issue in this review application, first time. In view of this we do not find any merit in the contentions of the applicant and review applica-tion is, therefore, liable to be rejected”.
(emphasis supplied)
6. The Division Bench has not read the order that we passed on 19-12-1997. We have asked the Division Bench to consider the questions set out in the third paragraph of the order. To enable it to do so we have asked the appellants to move it “by the convenient means of a review petition”. We have ordered: “Regard-less of the technical limitations of the review petition these questions shall be addressed.” Nonetheless, it has not done so.
7. It is necessary to point out to the High Court that the Con-stitution of India, in Article 144, requires all authorities, civil and judicial in the territory of India to act in aid of the Supreme Court.
8. It was imperative for the High Court, to have decided the questions that it was required to decide by this Court’s order dated 19-12-1997. For this reason, very fairly, the respondents do not object to the order under challenge being set aside the review petition being sent back to the High Court.
9. The appeal is allowed. The order under challenge is set aside. The review petition is restored to the file of the High Court to be heard and decided afresh. In so deciding, the High Court shall scrupulously follow the requirements of the order of this Court dated 19-12-1997. In the circumstances aforestated, it becomes necessary to require that the review petition shall be listed before learned Judges other than those that passed the order under challenge.
10. Pending further orders no steps shall be taken to execute the decree.
11. No order as to costs.
1. The respondent appears.
2. Leave granted.
3. The order under challenge was passed by a Division Bench of the High Court at Bombay on a review application in the following circumstances.
4. On 19-12-1997, on a special leave petition (SLP (C) No. 22776 of 1997) filed by the appellant against the respondent, the following order was passed:
“The Division Bench of the High Court at Bombay has, in the judgment and order under appeal, noted that the petitioner and the respondent had in an earlier writ petition, jointly filed, pleaded that the deed whose construction is relevant here ‘is a sale and not a lease’. The High Court took the view that this pleading was sufficient to reach the conclusion that the deed ‘is an agreement for a sale’.
We have been shown the relevant averments in the earlier writ petition. It appears that the High Court has not consid-ered whether the admission is of a sale or an agreement to sell. We think that, in the circumstances, the petitioner should move the Division Bench of the High Court in this be-half, by the convenient means of a review petition.
We make it clear that the High Court shall decide, after hearing parties on the review petition, whether the admission is of a completed sale or of an agreement to sell and whether, by reason thereof, the provisions of the Maharashtra Ownership Flats (Regulation and Promotion of Construction, Sale, Manage-ment and Transfer) Act will apply. Regardless of the technical limitations of the review petition, these questions shall be addressed.
Mr. K.K. Venugopal, learned counsel for the petitioner, states that the review petition shall be moved within 4 weeks. Mr. Harish N. Salve, learned counsel for the respondent, states that, pending the review petition, no steps shall be taken to execute the decree that is under challenge.
The SLP is disposed of accordingly.” (emphasis supplied)
5. The review petition was heard by the two learned Judges who had passed the order which was the subject-matter of the earlier SLP. The order on the review petition states
“it is contended that the Supreme Court while disposing of the abovesaid SLP has called upon this Court to decide. In inter-preting the document Exh. E whether the admission made by the parties construing the document Exh. E in the earlier writ petition is of a completed sale or an agreement to sale and whether by reason thereof the provisions of the Maharashtra Ownership Flats (Regulation and Promotion of Construction, Sale, Management and Transfer) Act will apply. In fact the aforesaid question was not at all a question raised in the suit in the trial court or before this Court. In fact the main question that was posed in the appeal was as to whether Exh. E was properly construed by the lower court as one of agreement to sell or as indenture of lease”.
The Division Bench has, therefore, come to the conclusion that
“rightly or wrongly an impression has been created while read-ing our judgment that we have solely relied upon the judgment of his Court in previous writ petition in interpreting the document Exh. E. This misunderstanding must have been crept in partly due to some clerical mistake occurred in some places in the judgment by using phrases agreement for sale instead of agreement to sell. However, the issue posed to be examined as directed by the Supreme Court is not the issue which was raised in the trial court or the Appellate Court and it is not permis-sible for us to go into such a fresh issue in this review application, first time. In view of this we do not find any merit in the contentions of the applicant and review applica-tion is, therefore, liable to be rejected”.
(emphasis supplied)
6. The Division Bench has not read the order that we passed on 19-12-1997. We have asked the Division Bench to consider the questions set out in the third paragraph of the order. To enable it to do so we have asked the appellants to move it “by the convenient means of a review petition”. We have ordered: “Regard-less of the technical limitations of the review petition these questions shall be addressed.” Nonetheless, it has not done so.
7. It is necessary to point out to the High Court that the Con-stitution of India, in Article 144, requires all authorities, civil and judicial in the territory of India to act in aid of the Supreme Court.
8. It was imperative for the High Court, to have decided the questions that it was required to decide by this Court’s order dated 19-12-1997. For this reason, very fairly, the respondents do not object to the order under challenge being set aside the review petition being sent back to the High Court.
9. The appeal is allowed. The order under challenge is set aside. The review petition is restored to the file of the High Court to be heard and decided afresh. In so deciding, the High Court shall scrupulously follow the requirements of the order of this Court dated 19-12-1997. In the circumstances aforestated, it becomes necessary to require that the review petition shall be listed before learned Judges other than those that passed the order under challenge.
10. Pending further orders no steps shall be taken to execute the decree.
11. No order as to costs.
