SUNIL VASUDEVA & ORS. versus SUNDAR GUPTA & ORS. on 2 July 2019

SUPREME COURT REPORTS

[2019] 8 S.C.R.

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SUNIL VASUDEVA & ORS.

v.

SUNDAR GUPTA & ORS.

(Civil Appeal No. 5140 of 2019)

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JULY 02, 2019

[A. M. KHANWILKAR AND AJAY RASTOGI, JJ.]

Income Tax Act, 1961 – s.293 – One late ‘KL’ and his son‘PG’ constituted HUF which owned the subject property standingin their joint names, also having other properties at Calcutta –‘KL’Cinstituted suit in 1957 before the High Court of Calcutta against‘PG’ claiming the subject property including other properties as hisself-acquired properties – Respondents are the sons of ‘PG’–Appellants are the legal heirs of late VNV, who was the lawyer of‘KL’ and who purchased the subject property in open auctionDconducted by the Income Tax Department – In 1985, the respondentnos.1-3 filed Title Suit in Delhi inter alia seeking declaration tocontinue to be the owners of the suit property – Said respondentsalso filed Writ Petition No.18500(W) of 1985 against the Union ofIndia and the appellants in the High Court of Calcutta for declaringthat the purported sale to VNV and issuance of the confirmationEcertificate of sale is null and void – Judgment reserved by HighCourt of Calcutta in March/April, 1986 – Writ Petition dismissed bythe Single Judge of the High Court on 26[th ]Oct. 1990 – In themeanwhile, the Title Suit was dismissed on 3[rd] Oct. 1986 –Respondents filed application for recalling the order dtd. 26th Oct.F1990 and for deciding the writ petition on merits – Single Judge ofthe High Court of Calcutta vide order dtd. 20[th] Nov. 1998 recalledthe order dtd. 26th Oct.1990 inter alia with the direction to hear thematter on merits– Appellants filed appeal– Division Bench of theHigh Court of Calcutta did not interfere – Appellants filed SLP –Dismissed – Thereafter, appellants filed application in the disposedGof Writ Petition No.18500(W) of 1985 inter alia praying that therespondents be restrained from proceeding with any advertisementfor sale of suit property– Single Judge of the High Court vide orderdtd. 31st March, 2006 held that the application was not maintainable– Respondents filed appeal – Dismissed vide order dtd. 19th Oct.

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2012– Respondents filed Review Application against the said orderand the order dtd. 31[St ]March, 2006 – By the impugned order, theorder dtd. 19th Oct. 2012 was reviewed and consequently the orderdtd. 31st March, 2006 was also set aside, directing the Writ PetitionNo.18500(W) of 1985 to be heard on merits – On appeal, held:s.293 puts complete bar of filing suit in any civil court against therevenue/income tax authority – Mandate of law remained unnoticedwhen the Single Judge of the High Court in Writ Petition No.18500(W) of 1985 passed order on 26th Oct. 1990 relegating theparties to address in the alleged pending Civil Suit No. 471 of 1985in Delhi although it was dismissed much prior to the pronouncementof the Judgment dtd. 26th Oct. 1990 – Even in the LPA, either partydid not bring it to the notice of the Court, the mandate of law asenvisaged u/s.293 – High Court took note of the same in its reviewjurisdiction concluding that there appears to be an error apparenton the face of record and consequently allowed the application forreview, recalling the order dated 19th Oct. 2012 and setting asidethe order dtd. 31st March, 2006 – In the facts and circumstances,the issues on merits raised in the Writ Petition No.18500(W) of 1985not dilated upon – But, if the civil suit was not maintainable asalleged in view of s.293 and this was the purported defence of therespondents and of the Income Tax Department, no party could beleft remediless and whatever the grievance, the party has raisedbefore the Court of law, has to be examined on its own merits – Noerror committed by the High Court in passing the impugned judgment–Writ Petition No.18500(W) of 1985 be decided by the High Courtof Calcutta on its own merits, expeditiously as possible – Code ofCivil Procedure, 1908 – Or. 9, r.2.

Conclusion

Practice & Procedure – Review – Principles for – Discussed– Code of Civil Procedure, 1908 – s.114.

Dismissing the appeal, the Court

HELD : 1.1 Section 293 of the Income Tax Act, 1961 putsa complete bar of filing suit in any civil court against the revenue/income tax authority and the mandate of law remain unnoticedwhen the order came to be passed by the Single Judge of theHigh Court in Writ Petition No.18500(W) of 1985 decided on26[th] October, 1990 while relegating the parties to address in the AB

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Aalleged pending Civil Suit No. 471 of 1985 before the DistrictJudge at Delhi although it was dismissed much prior to thepronouncement of the Judgment dated 26[th] October, 1990. Evenin the LPA, the Division Bench of the High Court granted libertyto the respondents to file a fresh civil suit in respect of the subjectproperty in Delhi and either party has not brought to the noticeBof the Court the mandate of law as envisaged under Section 293of the Income Tax Act, 1961 that the civil suit against the Incometax Department is not maintainable under the law, which appearsto be mistakenly omitted by the Court in arriving at the rivalclaims of the parties. It was taken note of by the High Court in itsCreview jurisdiction and arrived to the conclusion that there appearsto be an error apparent on the face of record and consequentlyallowed the application for review, recalled the Order dated 19[th]October, 2012 and set aside the Judgment and Order dated 31[st]March, 2006 passed in miscellaneous application and forrestoration of Writ Petition No. 18500(W) of 1985 to be heard onDits own merits under the impugned judgment dated 24[th]September, 2014. [Paras 26-27] [1202-C-G]

1.2 The effect of Section 293 of the Income Tax Act hasbeen mistakenly omitted under the judgment in review and thatapart, the consequential effect of the order of the High Court onEan application filed by the Union of India in Civil Suit No. 1451 of1957 dated 8[th] September, 1965 was open to be examined in thewrit proceedings and it was the defence of the Income TaxDepartment in the reply to the review application and also beforethis Court in their counter affidavit that in the auction sale whichFwas held in the month of August, 1964, the permission from theCourt was not obtained and after the order came to be passed ontheir application by the Single Judge of the High Court in SuitNo. 1451 of 1957 dated 8[th] September, 1965, it will certainly affectthe auction sale held by the Income Tax Department in reference to the subject property in question and it was their standGthroughout in the proceedings. The Single Judge of the HighCourt of Calcutta heard and reserved the judgment in WritPetition No. 18500(W) of 1985 in March/April 1986 and afternearly four and half years, the judgment pronounced on 26[th]October, 1990 relegating the parties to raise all the contentionsH

to their defence in the pending civil suit before the District Judge,Delhi itself indicates that the Single Judge was not inclined toexpress its opinion on merits obviously for the reason that if thefinding was recorded, it would have prejudiced the rights of theparties to the litigation to be examined in the alleged pendingcivil suit in the District Court, Delhi which although was dismissedon 3[rd] October, 1986 much before the pronouncement of thejudgment dated 26[th] October, 1990 by the Single Judge of theHigh Court.[Paras 29, 30] [1204-A-F]

1.3 In the given facts and circumstances, the issues onmerits raised in the Writ Petition No. 18500(w) of 1985 filed atthe instance of the respondents before the High Court of Calcuttanot dilated, but if the civil suit was not maintainable as alleged inview of Section 293 of the Income Tax Act and this was thepurported defence of the respondents and of the Income TaxDepartment and consequential effect to the Order dated 8[th]September, 1965 of which a reference has been made, no partycould be left remediless and whatever the grievance the partyhas raised before the Court of law, has to be examined on its ownmerits. There appears no error being committed by the HighCourt in passing the impugned judgment dated 24[th] September,2014 in exercise of its review jurisdiction and that needs nointerference by Supreme Court. The Writ Petition No.18500(w)of 1985 be decided by the High Court of Calcutta on its ownmerits, after hearing the parties, in accordance with law. Sincethe dispute is pending for sufficiently long time, the High Courtis expected to give priority to the matter and decide the writpetition expeditiously as possible. [Paras 31-32] [1204-G-H;1205-A-C]

Kamlesh Verma v. Mayawati and Others (2013) 8 SCC320 – relied on.

N. Vasudeva v. Kirodimal AIR 1965 SC 440 – referredto.

Case Law Reference

(2013) 8 SCC 320AIR 1965 SC 440

relied onrelied on

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ACIVIL APPELLATE JURISDICTION : Civil Appeal No. 5140of 2019.

From the Judgment and Order dated 24.09.2014 of the High Courtof Calcutta in R.V.W. No. 272 of 2012.

Mukul Rohtagi, Jaideep Gupta, Siddharth Luthra, Sr. Advs., VikasBMehta, Rajat Sehgal, Ranjan Mukherjee, Mohan Prasad Gupta, ShekharVyas, Rajat Nair, Ms. Nitya Rao, Surya Kant, Mrs. Anil Katiyar, Advs.for the appearing parties.

Petitioner-in-person

CRespondent-in-person

The Judgment of the Court was delivered by RASTOGI, J. 1. Leave granted.

2. The present appeal is being filed against the impugned judgmentdated 24[th] September, 2014 passed by the High Court of Calcutta inDRVW No. 272 of 2012 recalling the Order dated 19[th] October, 2012 andwhile setting aside the order dated 31[st] March, 2006 restoring the WritPetition No. 18500(W) of 1985 to be heard on its own merits asexpeditiously as possible which is a subject matter of challenge in appealbefore us.E

3. The facts that emerge from the multitude and collateral andexhaustive pleadings of the parties in nutshell are that respondent nos. 1,2 and 3 (writ petitioners) are the grandsons of Kirodimull Lohariwalaand sons of Premchand Gupta both since deceased, who constituted aH.U.F. which owned property No. 43, Prithviraj Road, New Delhi(subjectFproperty) standing in their joint names having other properties at Calcutta.

4. The present appellants are alleged to be the legal heirs of lateV. N. Vasudeva who happens to be the income tax practitioner andlawyer of late Kirodimull Lohariwala had purchased the subject propertyin an open auction conducted by the Income Tax Department on 18[th]GAugust, 1964 for a consideration of Rs. 2,60,000/- and the sale certificatewith respect to the suit property was issued on 1[st] April, 1965.

5. In August, 1957, late Kirodimull Lohariwala instituted a SuitNo. 1451 of 1957 before the High Court of Calcutta against PremchandGupta claiming the said property including other properties as his self-Hacquired properties and in the interregnum period, the official receiver was appointed over the subject property by the High Court of Calcutta,who took possession of the property on 1[st] May, 1958. The said property(43, Prithviraj Road, New Delhi) was purported to be sold underCertificate proceedings initiated by Income Tax Department for recoveryof alleged income tax dues of Sambhuram Kirodimull HUF to late V.N.Vasudeva for a sum of Rs. 2,60,000/- on 18[th] August, 1964.

6. At this stage, objection was raised by late Kirodimull Lohariwalaagainst such purported sale to V.N. Vasudeva for the reason that noleave was obtained from the High Court of Calcutta which was althoughoverruled by the Chief Commissioner, Delhi on 26[th] February, 1965. Atthe same time, application was filed by the Income Tax Department inthe said Suit No. 1451 of 1957 praying for (a) condonation of the omissionto 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 infavour of V.N. Vasudeva and to give further effect thereto. A certificationof confirmation of sale was issued by the District Collection Officer,Delhi purporting to confirm the said purported sale dated 18[th] August,1964 in favour of late V.N. Vasudeva. At this stage, order was passedby the High Court of Calcutta on the application of Union of India dated8[th] September, 1965 granting liberty to the Income Tax Department toput the Delhi property for sale by public auction or private treaty to thebest purchaser or purchasers that can be got for the same. What will bethe effect of the later order passed by the High Court of Calcutta dated8[th] September, 1965 in reference to the order of the District CollectionOfficer, Delhi for confirmation of the auction sale will not be advisablefor this Court to examine.

7. A detailed correspondence took place between the Income TaxDepartment and late Premchand Gupta (father of respondent nos. 1-3)which is not required to be dilated in the instant proceedings.

8. At this stage, respondent nos. 1-3 filed Title Suit No. 471 of1985(Sundar Gupta & Ors. Vs. Sita Vasudeva & Ors.) before theDistrict Judge at Delhi on 19[th] May, 1985 for seeking declaration tocontinue to be the owners of the suit property and for injunction restrainingthe auction purchaser V.N. Vasudeva, predecessor of the appellantsfrom changing the nature of the property. Indisputedly, Income taxauthorities were not impleaded as parties to the suit.

9. Respondent nos. 1-3 also filed Writ Petition bearing C.O. No.18500(W) of 1985 against the Union of India and the present appellants A

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Ain the High Court of Calcutta regarding the purported sale of the Delhiproperty to late V.N. Vasudeva under auction dated 18[th] August, 1964declaring that the purported sale dated 18[th] August, 1964 and issuanceof the certificate of confirmation of sale dated 1[st] April, 1965 in respectof the Delhi property be declared as null and void and the subject propertybe remained under attachment by income tax authorities.B

10. Taking assistance of the order of the High Court of Calcuttadated 8[th] September, 1965 passed on an application filed by Union ofIndia of which a reference has been made, affidavits/counter affidavitswere filed by the respective parties and the writ petition(C.O. No.18500(W) of 1985) was heard and judgment was reserved by High CourtCof 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 on26[th] October, 1990 dealing with the submissions and arriving to theconclusion that since the writ petitioners have resorted to alternativeremedy of filing suit in the court of District Judge, Delhi which althoughDwas 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 areference has been left open to be agitated by the parties in the pendingTitle Suit No. 471/1985 but the fact is that Title Suit No. 471/1985 whichwas pending on the date when the judgment was reserved by the HighCourt in March/April, 1986 came to be dismissed under Order 9 Rule 2ECode of Civil Procedure due to non-serving upon the main defendantsvide order dated 3[rd] October, 1986 and either of the party has not broughtthis fact to the notice of the Court about the later developments of whichreference has been made. Immediately thereafter, respondent nos. 1-3filed an application for recalling/setting aside the order dated 26[th] October,F1990 and for deciding the writ petition on merits.

11. After hearing the parties, Single Judge of the High Court ofCalcutta under its order dated 20[th] November, 1998 allowed the applicationfiled by respondent nos. 1-3 and recalled the Order dated 26[th] October,1990 by restraining Vasudevas from dealing with the subject propertyGwith the direction to hear the matter on merits.

12. The present appellants preferred appeal against the Orderdated 20[th] November, 1998. The Division Bench of the High Court ofCalcutta in M.A.T. No. 87 of 1999 disposed of the appeal under itsOrder dated 17[th] August, 2001 without interfering with the order ofHrecalling on review application dated 20[th] November, 1998 but as it reflects from the record, the present appellants after taking note of theOrder dated 17[th] August, 2001 considered appropriate to prefer SLP(C) No. 22491 of 2001 before this Court which came to be dismissed at themotion stage on 10[th] 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 1985inter alia praying that the respondents be restrained from proceedingwith any advertisement for sale of suit property as no such liberty hasbeen given by the Court. Single Judge of the High Court, after hearingthe parties, held that there was nothing pending before the Court andthus the aforesaid miscellaneous application was held to be notmaintainable under its Order dated 31[st] March, 2006.

14. The Order dated 31[st] March, 2006 passed by the Single Judgeof the High Court came to be assailed by the respondents in appeal thatcame to be dismissed vide Order dated 19[th] October 2012 with liberty tothe respondents to file a fresh suit on the self-same cause of action inDelhi, if so advised. The respondents preferred Review Application beingRVW No. 272/2012 against the impugned judgment dated 19[th] October,2012 and also the Order dated 31[st] March, 2006. By the impugnedorder dated 24[th] September, 2014, the Order dated 19[th] October, 2012was reviewed and in consequence, the order dated 31[st] March, 2006was set aside and directed the Writ Petition No. 18500(W) of 1985 to beheard on its own merits which is a subject matter of challenge at theinstance of the appellants in the instant appeal.

15. Mr. Mukul Rohatgi, learned senior counsel for the appellantswith his usual vehemence submits that the present review petition filedby the respondents was not maintainable as none of the grounds whichhave been taken note of meets the principles of review jurisdiction ofthe Court as envisaged under Order 47 Rule 1 Code of Civil Procedurewhich entails the basic principles for entertaining the review petition andthis Court in Kamlesh VermaVs. Mayawati and Others1 has laiddown the principles where review can be said to be maintainable.

16. Learned counsel submits that in the instant case, respondentshave failed to canvass the principles for maintainability of a reviewapplication and the Order passed by the High Court under its reviewjurisdiction impugned dated 24[th] September, 2014 primarily does not 1 2013 (8) SCC 320

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Asatisfy the basic principles of law regarding maintainability of the reviewapplication and even in the impugned judgment, neither the High Courthas been able to decipher new and important matter from the evidencewhich, after the exercise of due diligence, was not in the knowledge ofthe review petitioner nor pointed out any mistake or error apparent onthe face of record or suggested any other sufficient reason calling forBreview. In the given circumstances, the very order impugned dated 24[th]September, 2014 passed by the High Court of Calcutta is not sustainablein law and deserves interference by this Court.

17. Learned counsel further submits that the respondent nos. 1-3in fact are repeatedly abusing the legal process and launching litigationCin regard to the subject property for more than 50 years and their realpurpose of filing Writ Petition No. 18500(W) of 1985 was to withholdthe Income Tax Department from attaching and selling other propertiesin Calcutta. It is only by alleging that the suit property in Delhi waslegally headed by the Department and the suit property be put into saleDafresh. However, the fact is that the auction sale of suit property wasaccepted by the owner of the said property Kirodimull Lohariwala whichis evident from a reply which he filed to an application in the suit foreviction against the predecessor in interest of the appellants and wastaken note by the Single Judge in its Order dated 26[th] October, 1990.

E18. Learned counsel further submits that detailed judgment of theSingle Judge of the High Court dated 26[th] October, 1990 has dealt withthe several grounds raised on merits and merely because the Judge hasfinally granted liberty to the respondents in raising all questions in thefirst instance in the pending suit in Delhi(Suit No. 471 of 1985) whichwas indeed pending on the date when the judgment was reserved andFwas dismissed much before the pronouncement of the judgment dated26[th] October 1990 but the Single Judge of the High Court has dealt withall the issues and repelled the same in its judgment dated 26[th] October,1990.

19. In the given circumstances, learned counsel submits thatGrecalling of the order dated 26[th] October, 1990 under review jurisdictionof the High Court and relegating the parties to square one would benothing but abuse of the legal process and needs to be curbed and that isthe reason for which the appellants have approached this Court by filingan appeal despite the public auction held by the Income Tax DepartmentHin the year 1964 in favour of the predecessor in interest, V.A. Vasudeva and after the purported sale stands confirmed overruling the objectionsof the original owner of the property dated 26[th] February 1965 andissuance of certificate of confirmation of sale dated 1[st] April, 1965, stillthey are unable to get fruits of the subject property in question andrelegating them to the year 1985 that too after more than 34 years of theproperty put to auction would not be in the interest of justice and thatneeds 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 judgmentimpugned dated 24[th] September, 2014 submits that auction of the subjectproperty in question was never confirmed and submits that in February1957 Kirodimull Lohariwala (grandfather of the respondents) appointedV.N. Vasudeva, an income tax practioner(father of appellant nos. 1 &2) as his income tax lawyer and constituted attorney. V.N. Vasudevatook full advantage of his fiduciary relation and became tenant of thesubject 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 HighCourt of Calcutta inter alia includes Delhi property. Since V.N. Vasudevadid not pay rent of the Delhi property and set up a fictitious agreementbetween himself & Kirodimull Lohariwala for adjustment of rents againsthis professional fees, this Court castigated V.N. Vasudeva in V.N.

VasudevaVs. Kirodimal2 arising out of the eviction proceeding holdingthat V.N. Vasudeva avoided payment of the monthly rent of Rs. 300/- tothe Income Tax Officer(as Delhi property was under attachment ofIncome Tax Department).

21. Learned counsel further submits that Civil Court does nothave any jurisdiction to deal with such matters in view of Section 293 ofthe Income Tax Act, 1961 and the only remedy available to therespondents is to file a writ petition under Article 226 of Constitution ofIndia.

22. Learned counsel further submits that the Writ Petition No.18500(W) of 1985 filed at the instance of the respondents indeed cameto be decided on 26[th] October, 1990 but has not taken note of the effectof Section 293 of the Income Tax Act, 1961 and the consequential effectof the order dated 8[th] September, 1965 passed by the High Court of AB

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ACalcutta of which a reference has been made and also the fact thatjudgment remain pending for almost four and half years and prior thereto,the Title Suit No. 471 of 1985 was dismissed and in the givencircumstances, the conclusion arrived at by the Single Judge that allcontentions are available to be raised in the pending suit (in Delhi) insequel thereof was a mere observation and could not be said to be aBfinding recorded on the subject matter and this what has been projectedby the High Court in relegating the parties to appear before the SingleJudge 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 reviewjurisdiction as envisaged under the law.C

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 decidedby any Court of competent jurisdiction and further submits that noprejudice either way has been caused to the parties as they are beingDrelegated 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 theirassistance perused the material available on record.

25. From the material on record, it manifests that the subjectEproperty (43, Prithviraj Road, New Delhi) was purported to be sold inthe certificate proceedings initiated by Income Tax Department forrecovery of income tax dues of Sambhuram Kirodimull HUF to theauction purchaser late V.N. Vasudeva for a sum of Rs. 2,60,000/- onAugust 18, 1964. Kirodimull objected against such purported sale toFV.N. Vasudeva because no leave was obtained from the High Court ofCalcutta which was overruled by the Chief Commissioner, Delhi andconfirmed the purported sale in favour of V.N. Vasudeva vide Orderdated 26[th] February, 1965. At this stage, application was filed by theIncome Tax Department in Suit No. 1451 of 1957 praying for (a)condonation of the omission to obtain leave of Court before putting theGDelhi property for sale and (b) leave be given to it to complete the saidsale of the Delhi property in favour of V.N. Vasudeva and to give furthereffect thereto. On an application filed by Income Tax Department, theSingle Judge of the High Court of Calcutta in its Order dated 8[th]September, 1965 taking note of the rival contention of the parties observedas follows:-H

“A.N. Ray (In Chambers)

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

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1. Premchand Gupta residing at 181-A, 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 at181 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 saidjurisdiction.

Upon reading on the part of the Union of India through its Income Tax Officer, Raigarh Civils, Raigarh (hereinafterreferred to as the said applicant union), a Mastered Summonsbearing date the third day of March last and an affidavit of SanatKumar Mukherjee of the due service thereof affirmed on thefifth day of April last and a petition of the said applicant and anaffidavit of Ramdas Rambhorose Misra in verification thereofaffirmed on the fifteenth day of March last and the exhibits annexedto the said petition and marked respectively A,B,C and D and anaffidavit of Ramdas Rambhorose Misra of Raigarh affirmed onthe Seventeenth day of June last all filled this day and upon readingon the part the of the defendants an affidavit of Premchand Guptaaffirmed on the fifth day of May last and filed this day and uponhearing Mr. D. Gupta advocate for the said applicant Union andMr. D.C. Basu advocate for the defendants (the plaintiffs norappearing either in person or by advocate, or attorney).

It is ordered that the said applicant Union be at liberty to put upthe Delhi property being the joint moveable and immoveableproperties including Premises No.43, Prithviraj Road, New Delhi,for sale either by public auction or by private treaty to the bestpurchaser or purchasers that can be got for the same.

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AWitness, Sri Himanshu Kumar Bose, Chief Justice at Calcuttaaforesaid the eighth day of September, one thousand nine hundredand sixty five.

S.K. Mandal – Attorney

Sutt & Sen – AttorneysB

S.B. Banerjee20.1.1966

For Registrar

26. That apart, Section 293 of the Income Tax Act, 1961 put acomplete bar of filing suit in any civil court against the revenue/incomeCtax authority and the mandate of law remain unnoticed when the ordercame to be passed by the Single Judge of the High Court in Writ PetitionNo. 18500(W) of 1985 decided on 26[th] October, 1990 while relegatingthe parties to address in the alleged pending Civil Suit No. 471 of 1985before the District Judge at Delhi although it was dismissed much priorDto the pronouncement of the Judgment dated 26[th] October, 1990. Evenin the LPA, the Division Bench of the High Court granted liberty to therespondents to file a fresh civil suit in respect of the subject property inDelhi and either party has not brought to the notice of the Court themandate of law as envisaged under Section 293 of the Income Tax Act,1961 that the civil suit against the Income tax Department is notEmaintainable under the law, which appears to be mistakenly omitted bythe Court in arriving at the rival claims of the parties.

27. It was taken note of by the High Court in its review jurisdictionand arrived to the conclusion that there appears to be an error apparenton the face of record and consequently allowed the application for review,Frecalled the Order dated 19[th] October, 2012 and set aside the Judgmentand Order dated 31[st] March, 2006 passed in miscellaneous applicationand for restoration of Writ Petition No. 18500(W) of 1985 to be heardon its own merits under the impugned judgment dated 24[th] September,2014.

G28. The basic principles in which the review application could beentertained have been eloquently examined by this Court in KamleshVerma(supra) wherein this Court held as under:- “20. Thus, in view of the above, the following grounds of revieware maintainable as stipulated by the statute:

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20.1. When the review will be maintainable:

(i) Discovery of new and important matter or evidence which,after the exercise of due diligence, was not within knowledge ofthe 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 interpretedin Chhajju Ram v. Neki [(1921-22) 49 IA 144 and approved bythis Court in Moran Mar Basselios Catholicos v. Most Rev. MarPoulose Athanasius AIR 1954 SC 526 to mean “a reasonsufficient on grounds at least analogous to those specified in therule”. The same principles have been reiterated in Union ofIndia v. Sandur Manganese & Iron Ores Ltd. (2013) 8 SCC337.

20.2. When the review will not be maintainable:

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

(ii) Minor mistakes of inconsequential import.

(iii) Review proceedings cannot be equated with the originalhearing of the case.

(iv) Review is not maintainable unless the material error, manifeston the face of the order, undermines its soundness or results inmiscarriage of justice.

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

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

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

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

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

29. Taking note of the exposition of the above principles let usconsider the facts on record and it reveals that the effect of Section 293of the Income Tax Act has been mistakenly omitted under the judgmentBin review and that apart, the consequential effect of the order of theHigh Court on an application filed by the Union of India in Civil Suit No.1451 of 1957 dated 8[th] September, 1965 was open to be examined in thewrit proceedings and it was the defence of the Income Tax Departmentin the reply to the review application and also before this Court in theircounter affidavit that in the auction sale which was held in the month ofCAugust, 1964, the permission from the Court was not obtained and afterthe order came to be passed on their application by the Single Judge ofthe High Court in Suit No. 1451 of 1957 dated 8[th] September, 1965, itwill certainly affect the auction sale held by the Income Tax Departmentin reference to the subject property in question and it was their standDthroughout in the proceedings.

30. We find that the Single Judge of the High Court of Calcuttaheard and reserved the judgment in Writ Petition No. 18500(W) of 1985in March/April 1986 and after nearly four and half years, the judgmentpronounced on 26[th] October, 1990 relegating the parties to raise all theEcontentions to their defence in the pending civil suit before the DistrictJudge, Delhi itself indicates that the Single Judge was not inclined toexpress its opinion on merits obviously for the reason that if the findingwas recorded, it would have prejudiced the rights of the parties to thelitigation to be examined in the alleged pending civil suit in the DistrictCourt, Delhi which although was dismissed on 3[rd] October, 1986 muchFbefore the pronouncement of the judgment dated 26[th] October, 1990 bythe Single Judge of the High Court.

31. In the given facts and circumstances, we are not inclined todilate the issues on merits raised in the Writ Petition No. 18500(w) of1985 filed at the instance of the respondents before the High Court ofGCalcutta, but if the civil suit was not maintainable as alleged in view ofSection 293 of the Income Tax Act and this was the purported defenceof the respondents and of the Income Tax Department and consequentialeffect to the Order dated 8[th] September, 1965 of which a reference hasbeen made by us, no party could be left remediless and whatever theHgrievance 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 beingcommitted by the High Court in passing the impugned judgment dated24[th] September, 2014 in exercise of its review jurisdiction and that needsno interference by this Court.

A

32. We make it clear that what has been observed by us is onlyfor the purpose of disposal of the present appeal and the Writ PetitionBNo. 18500(w) of 1985 be decided by the High Court of Calcutta on itsown merits, after hearing the parties, in accordance with law. Since thedispute is pending for sufficiently long time, we expect that the HighCourt will give priority to the matter and decide the writ petitionexpeditiously as possible.

C

33. The appeal is having no merit and is accordingly dismissedwith the observations supra. No costs.

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

Divya Pandey

Appeal dismissed.

D

E

F

G

H