M/S PRIME PROPERTIES versus SANA LAKSHMI DEVI (DIED) THROUGH HER LRS. & ORS. on 29 September 2022

1. Leave granted.

2. This appeal is directed against the judgment and order dated14.03.2022 as passed by the High Court for Telangana at Hyderabad inCRP No. 204 of 2022, whereby the High Court has disapproved theorder dated 29.12.2021 passed by the Court of I Additional Senior Civil AB

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AJudge, Ranga Reddy District at L.B. Nagar, allowing the reviewapplication under Order XLVII Rule 1 of the Code of Civil Procedure,1908. While allowing the review application, the Trial Court has takenthe subsequent pleadings filed by the plaintiff in the form of rejoinder onrecord, in supersession of its earlier order dated 29.11.2021, wherebysuch a permission was declined.B

3. The matter essentially relates to filing of pleadings but, variousfactors and aspects have got entangled because of the long pendencyand multifarious incidental proceedings. However, for the present purpose,suffice would be to notice the relevant background aspects andproceedings to the extent relevant to the questions at hand. They are asCfollows:

3.1. The plaintiff-appellant has filed O.S. No. 898 of 2001 in theCourt of I Additional Senior Civil Judge, Ranga Reddy District at L.B.Nagar against the defendant No. 1 – Society seeking cancellation ofsale deed dated 15.04.1996 in relation to a parcel of land situated inDSurvey No. 1007 at Kukatpally Village, Balanagar Mandal, Ranga ReddyDistrict. The appellant has also filed three other suits, being O.S. Nos.899 to 901 of 2001 for similar reliefs in respect of other parcels of landin the said Survey No. 1007.

3.2. The issues in the suit were framed on 19.08.2005. Then, theEplaintiff was permitted to amend the plaint on 17.01.2006. According tothe contesting respondents, the appellant did not carry out amendmentfor a long time and ultimately the suits were dismissed for non-prosecutionon 05.11.2008. Then the suits were restored only in the year 2011.

3.3. Thereafter, the contesting respondents herein filed I.A. No.F787 of 2018 in O.S. No. 898 of 2001 seeking their impleadment as partydefendants. This application was dismissed on 31.12.2018. However,the High Court disapproved the order so passed by the Trial Court andallowed the impleadment of contesting respondents in the order dated27.03.2019 passed in CRP No. 391 of 2019. The order so passed by theGHigh Court was sought to be challenged by the appellant in SLP(C) No.11052 of 2019 in this Court but, the same was dismissed by the Orderdated 08.05.2019. In this order, this Court took note of the fact that theTrial Court had been directed to decide the suit within six months; andwhile reiterating such directions, this Court also made it clear that anyother impleadment of individual members in future will not either derailH

or delay the proceeding in the suit. For ready reference, the relevantcontents of the order dated 08.05.2019 could be re-produced as under: - “The Special Leave Petition is dismissed since it is froman order impleading individual members.

The trial Court has been asked to decide the Suits withina period of 6 months. We make it clear that individualimpleadments of members in futuro will not, in any manner,either derail or delay further proceedings in the Suits.

We reiterate that the trial Court must decide the Suitswithin a period of 6 months from today.”

3.4. On 06.06.2019, the Trial Court allowed another applicationmoved by the appellant for amendment of the plaint. According to thecontesting respondents, the amended copy of the plaint was filed only on25.03.2021 by adding them as defendants. It has also been pointed outthat on 19.08.2020, this Court again directed the Trial Court to decidethe suits within six months in C.P. No. 433 of 2020. On 23.07.2021, thelegal representatives of the deceased defendant No. 3 were brought onrecord as defendant Nos. 9 to 11. On 26.07.2021, the appellant filed theamended plaint by including the newly impleaded parties as defendants.

3.5. Thereafter, the plaintiff filed I.A. No. 438 of 2021 seekingleave to amend the plaint and on 21.09.2021, the appellant filed amendedplaint wherein, according to the contesting respondents, the appellantmodified the cause title as also the averments and the prayers.

3.6. The material aspect of the present matter is that on 27.09.2021,the contesting respondents filed their written statements to the amendedplaint. The defendant No. 1- Society also filed additional writtenstatement. It has been the case of the appellant that on 20.10.2021, thedefendant No. 2 filed additional written statement raising new grounds.

3.7. The proceedings leading to the present appeals have theirgenesis in the applications filed by the appellant being I.A. Nos. 891 of2021, 892 of 2021 and 893 of 2021 in O.S. No. 898 of 2021 seekingleave to file further pleadings in the form of rejoinder. In regard to thisapplication, the contesting parties have different submissions to make.On one hand, it has been the assertion on behalf of the appellant thatwith these applications, the proposed rejoinder was also attempted to befiled but the same were returned by the office with a direction that the A

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Asame be filed when the applications are considered by the Court.According to the appellant, all the parties were served with the copies ofthe applications as also the proposed rejoinder. The contesting respondentsfiled counter to the application I.A. No. 891 of 2021. The contestingrespondents would submit that in such a proposed rejoinder, the plaintiff-appellant attempted to set up an altogether new case, and that too, withoutBfiling the rejoinder in the Court.

3.8. On 26.11.2021, the Trial Court heard the arguments on theapplications filed by the appellant seeking leave to file rejoinder and thematter was reserved for orders. Then, on 27.11.2021, the appellantpurportedly filed the proposed rejoinder in the office of the Trial Court.C

3.9. On 29.11.2021, the Trial Court pronounced its order, rejectingthe application filed by the appellant essentially on the ground that theproposed rejoinder had not been filed and in the absence thereof, theapplications could not be granted. The relevant part of consideration ofthe Trial Court could be usefully reproduced as under:D

“5. …In the absence of filing of rejoinder along with petitionto ascertain whether the said rejoinder confines only to replyto written statement and additional written statement, it maynot be proper to allow petition blanket permitting the plaintiffto file rejoinder wherein there is every chance to incorporateEa new fact.

6. The learned counsel appearing on behalf of respondents/defendants are argued that if at all new fact is pleaded by thepetitioner/plaintiff through his rejoinder, the defendant wouldloose his right to place his defence to the said new fact asFthere is no provision in law to file the rejoinder to rejoinder.In these circumstances and considering the above discussions,these petitions are not maintainable and accordingly, thesepetitions are dismissed.”

3.10. Thereafter, on 13.12.2021, the appellant filed review petitionsGbefore the Trial Court, inter alia, with the submissions that the proposedrejoinder had already been filed before passing of the order by the Court.The review petitions so filed by the appellant, after thorough contest,were allowed by the Trial Court by its order dated 29.12.2021. The TrialCourt proceeded to review its order dated 29.11.2021 and allowed therejoinder already filed by the appellant to be taken on record. The relevantH

part of consideration of the Trial Court, in allowing the review application,is also reproduced for ready reference as under:- “12. …On reading the provisions together, this court is of theopinion that this case is a fit case to review its order dated29.11.2021 and permit the petitioner/plaintiff to file therejoinder which was not placed before this court though filedand is already on record and to allow the same to be on record.The mere filing of rejoinder will not vitiate the rights of theparties and however the parties would lead their evidenceand these pleadings would definitely assist the court indeciding the case to its merits. In the circumstances, thesepetitions are to be allowed. Accordingly, both points areanswered.

13. In the result, these petitions are allowed by reviewing theorder dated 29.11.2021 and setting aside the same alsoconsequently, the rejoinder which is already filed in Court istaken on record.”

3.11. Thereafter, on 31.01.2022, the Trial Court framed sevenadditional issues and posted the matter for trial. However, on 01.02.2022,the contesting respondents challenged the aforesaid order dated29.12.2021 by way of revision petition in the High Court. In the meantime,on 10.01.2022, this Court extended the time for conclusion of the trial byanother six months.

3.12. In the revision petition so filed by the contesting respondentsof this appeal, the High Court disapproved the order passed by the TrialCourt in its impugned order dated 14.03.2022 while, inter alia, observingas under: - “20. Reverting back to the facts of the present case, as discussedabove, the plaintiff has filed original suit in the year 2001 againstthe sole defendant, thereafter the other defendants were impleaded,more particularly after impleading the present revision petitioners,they have filed a detailed written statement for which the plaintiffhas requested the Court below for permission to file rejoinderunder Order-VIII, Rule-9 of CPC. Initially, that application filedunder Order-VIII, Rule-9 CPC in IA No.891 of 2021 was dismissedby the trial Court, through the common order, dated 29.11.2021.Thereafter, the plaintiff has filed an application under Order-47, AB

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Rule-1 CPC to review the said common order. Accordingly, allthese review applications are numbered as IA No.1061 of 2021 inIA No.891 of 2021, IA No.1062 of 2021 in IA No.892 of 2021 andIA No.1063 of 2021 in IA No.893 of 2021 in OS No.898 of 2001.All these review applications were allowed and the ordersimpugned in IA Nos.891, 892 and 893 of 2021 were set aside andthey were substituted with a detailed order permitting the plaintiffto file rejoinder with an observation that rejoinder which wasalready filed is taken on record. In that view of the matter, sinceunder the grab of review the original order is substituted with theimpugned order, I am not inclined to accept the submissions of thelearned senior counsel for the plaintiff.

21. Undisputedly, the power of review has its own limitations andthe order or judgment may be open to review inter alia if there isa mistake or error apparent on the face of the record and permittingthe order to stand will lead to failure of justice. A review is by nomeans an appeal in disguise whereby an erroneous decision isreheard and corrected, but lies only for a patent error. Thus inexercise of power of review, it is not permissible to rehear andcorrect an erroneous decision.

22. The sum and substance of the aforesaid discussion is that thetrial Court has committed grave error in allowing the reviewpetitions by totally substituting the earlier order dated 29.11.2021with the order impugned dated 29.12.2021 in exercise of powersunder Section 114 and Order-47, Rule-1 CPC. Though the learnedJudicial Officer has referred to the judgment of Supreme Court inRam Sahu’s case (2[nd] supra), in impugned order at para-12, noattempt was made either to distinguish the same or to follow theauthoritative pronouncement made by the Hon’ble Supreme Courton the scope of review petitions. When the facts of the presentcase are tested on the touch stone of principles laid by the SupremeCourt in the above decisions, the answer is in negative, the orderimpugned suffers from jurisdictional error and infirmities. Thelearned Judicial Officer is totally misdirected as to the scope ofreview under Section 114 and Order-47, Rule-1 of CPC in passingthe order impugned dated 29.12.2021 and it is not sustainable,liable to be set aside.”

3.13. Assailing the order aforesaid, the appellant filed presentpetition seeking leave to appeal, being SLP(C) No. 6464 of 2022, whereinon 13.06.2022 this Court, while issuing notices, granted stay over theoperation and effect of the impugned order dated 14.03.2022.

4. In another set of incidental proceedings, on 07.02.2022, theappellant filed an application before the Trial Court for receiving 89additional documents, which was allowed by the Trial Court, againstwhich the contesting respondents filed CRP no. 315 of 2022 and alsosought interim suspension. As per the facts stated by the contestingrespondents, another application filed by the appellants for receivingadditional documents was also allowed by the Trial Court on 22.07.2022,though a certified copy thereof was issued only on 16.09.2022. The saidsuspension order dated 04.08.2022 is the subject matter of SLP(C) No.16151 of 2022 which is also placed on board today before us and shallbe considered separately.

5. For completion of the background aspects, we may also takenote of the facts stated before us that all the four suits aforesaid standclubbed and the evidence is being recorded in O.S. No. 898 of 2001.These suits have been transferred upon re-organization of Judicial Districtto the Court of Additional Senior Civil Judge Madchalpajgiri District atKukutpalti and are re-numbered as O.S. Nos. 588, 589, 590 and 591 of2022.

6. The learned senior counsel for the plaintiff-appellant hassubmitted that the Trial Court had earlier dismissed the application seekingpermission to file rejoinder on a mistaken impression that the proposedrejoinder had not been filed and, therefore, when the fact was brought tothe notice of the Court that the proposed rejoinder had, in fact, been filedon 27.11.2021 before pronouncement of the order dated 29.11.2021, theTrial Court appreciated the error apparent on the face of the record andrightly reviewed its earlier order and passed a just order on 29.12.2021.The High Court, according to the learned counsel, has erroneouslyinterfered with the just and proper order passed by the Trial Court whilenot appreciating that every Court has inherent power to recall the orderand to rectify a mistake that prejudices a party. According to the learnedcounsel, there had not been any jurisdictional error in the matter andthere was no reason for the High Court to upset the order of the TrialCourt in exercise of its jurisdiction under Article 227 of the Constitutionof India.

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A7. On the other hand, learned counsel for the contestingrespondents has made an elaborate reference to the multiple proceedingspertaining to the suits in question and has submitted that the suits filed inthe year 2001 are being dragged on by the plaintiff-appellant for nojustified reason. The learned counsel, with reference to variousproceedings as noticed above, has submitted that with multiple propositionsBof amendment of the plaint and then filing of the amended plaint at itsown leisure with insertion of new averments, the plaintiff-appellant hasonly been intending to protract this litigation to the prejudice of thecontesting respondents. It has also been submitted that in the name ofrejoinder, the appellant has attempted to introduce an altogether newCcase. In this regard, learned counsel would also refer to the fact that asagainst 11 pages of amended plaint containing facts in 7 pages, theappellant attempted to file a rejoinder running into as many as 38 pages.Learned counsel has also referred to the fact that after passing of theorder by the Trial Court, the appellant has also attempted to file as manyas 89 additional documents on 07.02.2022 and yet further documents onD26.04.2022.

7.1. With reference to all the aforesaid features and factors, theemphasis of learned counsel for the respondent has been that by notplacing proposed rejoinder before the Court at the time of considerationof the applications on 26.11.2021, the plaintiff-appellant attempted toEseek an order for taking rejoinder on record without disclosing as towhat was sought to be pleaded therein. Such an attempt, according tothe learned counsel, was rightly disapproved by the Trial Court. However,the Trial Court got persuaded to allow the review petition only becauseof filing of the rejoinder in the Court after arguments on the applications Fand such an approach has rightly been disapproved by the High Court,particularly when the Trial Court, in its impugned order dated 29.12.2021,did not even indicate as to what were the factual aspects for whichfurther pleadings were sought to be filed.

8. Having given thoughtful consideration to the rival submissions,Ghaving minutely examined the material placed on record as also the listsof relevant dates supplied by the learned counsel for the appellant andby the learned counsel for the contesting-respondents, we are clearly ofthe view that in this matter, essentially pertaining to the operation ofrules of procedure in the trial of civil suits, the views as taken by theTrial Court in its order dated 29.11.2021 and the order dated 29.12.2021H

as also the view as taken by the High Court in its impugned order dated14.03.2022 carry their own shortcomings but, appropriate orders arerequired to be passed for ensuring proper progression of the suits.

9. For the view which we propose to take in the matter, not muchof discussion appears in requisite. Suffice it to observe for the presentpurpose that in none of the above referred orders i.e., the orders dated27.11.2021 and 29.12.2021, the Trial Court ever adverted to thefundamental aspect as to what were the facts pleaded by the defendantsand what was the core of pleadings so as to form a specific opinion as towhat pleadings called for rejoinder; if at all rejoinder was to be allowed.On the other hand, fact of the matter remains that the newly addeddefendants had filed written statements on 27.09.2021. Even if therehad been delay in progression of the suit because of variety of factorsand even if a part of those factors could be referable to the delay on thepart of the plaintiff, that cannot take away the substance of the matteras regards the question as to whether the prayer for filing rejoinder wasto be granted or not.

10. The other side of relevant factors before us is that in terms ofthe orders passed by this Court commencing from the order dated08.05.2019, the trial is required to be assigned specific priority. It hasbeen pointed out that by an order dated 05.06.2022, this Court in a batchof matters arising out of the same suits, has ordered that the Trial Courtshall be sending specific report as regards progress of the suits andassign them specific priority so as to conclude the trial at the earliest,preferably before 31.03.2023. A cognate feature of the matter is thatthe Trial Court had framed the issues earlier on 19.08.2005; and beforepassing of the impugned order by the High Court, the Trial Court hadframed seven additional issues on 31.01.2022.

11. In a comprehensive consideration of all the relevant factorsand features, we are clearly of the view that this appeal calls for suchorders which may be conducive to the purpose of expeditious proceedingrather than protraction because of the procedural aspects relating to thefiling of the pleadings. At the same time, balance of the operations of therules of procedure is also required to be ensured, so as to avoid anylikely prejudice to any of the parties.

11.1. In this view of the matter, we are inclined to modify theorders impugned so as to allow the rejoinder to remain on record but, at AB

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Athe same time, to allow the contesting-defendants to place on recordtheir further pleadings in the form of sur-rejoinder, to the extent it maybe necessary.

12. Accordingly, this appeal is allowed to the extent and in themanner indicated above. The impugned order dated 14.03.2022 is setBaside but the order passed by the Trial Court on 29.12.2021 shall bemade applicable with the modification that in the peculiar circumstanceof this case, the defendant Nos. 4 to 11 shall be permitted to place onrecord their further pleadings in the form of sur-rejoinder but only to theextent of new facts, if any, pleaded in the rejoinder filed by the plaintiff.In other words, sur-rejoinder shall remain confined to any such fact, if atCall, newly pleaded by the plaintiff in the rejoinder.

13. We also make it clear that this particular proposition is requiredto be adopted in this matter, keeping in view several features and factorsincluding two significant factors: one, that under the orders passed bythis Court, the trial of the suit is to proceed expeditiously while the matterDought to be assigned a specific priority; and second, that on 31.01.2022,Trial Court had indeed framed additional issues for the trial.

14. We make it clear that no further issues are required to beframed in this matter and all other aspects of the matter, particularlythose relating to pleadings, shall be examined by the Trial Court at theEtime of final disposal of the suit.

15. We reiterate the directions already given by this Court thatthe matter ought to be assigned specific priority so that trial be concludedat the earliest, preferably before 31.03.2023.

16. The appeal stands disposed of accordingly.

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Divya Pandey

Appeal disposed of.

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