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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
I.A. NOS. 3-5 & I.A. D.No. 37212 OF 2013
IN
CIVIL APPEAL NO. 8653 OF 2012
SATYA JAIN (D) & ORS. ...Appellant(s)
Versus
ANIS AHMED RUSHDIE (D) TH. LRS. & ORS ... Respondent(s)
With
I.A. NOS. 12-13 & 14-15 OF 2013
IN
CIVIL APPEAL NOS. 8675-8676 OF 2012
O R D E R
RANJAN GOGOI, J.
1. Civil Appeal No. 8653 of 2012 and other connected
appeals were allowed by this Court by judgment and order
dated 3.12.2012.
The decree passed by the Appellate Bench of
the High Court of Delhi in RFA (OS) No. 11/1984 was set aside
and
the suit for specific performance filed by the plaintiffs 1
(since deceased), 2 and 3 was decreed in the following terms :-
“30....We are of the further view that the
sale deed that will now have to be
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executed by the defendants in favour of
the plaintiffs will be for the market price of
the suit property as on the date of the
present order.
As No material, whatsoever
is available to enable us to make a correct
assessment of the market value of the suit
property as on date we request the learned
trial judge of the High Court of Delhi to
undertake the said exercise with such
expedition as may be possible in the
prevailing facts and circumstances.
31. All the appeals shall accordingly stand
allowed in terms of our above conclusions
and directions.”
2. I.A. Nos. 3-5, 12-13, 14-15 and D.No. 37212 of 2013 have
been filed seeking impleadment/clarification/modification/
correction of the judgment dated 3.12.2012, in the
circumstances noted below.
3. I.A. Nos. 3-5 have been filed by one Amit Jain, Rahul Jain
and Smt. Aruna Jain contending that during the pendency of the
Civil Appeal before this Court, out of total suit property
measuring 5373 Sq. Yds., two parcels measuring 1500 Sq. Yds.,
in all, were sold by Ms. Sameen Rushdie Momen (respondent
No.1 in Civil Appeal No. 8653/2012 and Respondent 1B in Civil
Appeals No. 8675-76 of 2012) in favour of the applicants. On
the said basis, the applicants seek impleadment and
clarification of the judgment dated 3.12.2012 to mean that the
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successor-in-interest of the original defendant (late Anis Ahmed
Rushdie) i.e. Ms. Sameen Rushdie Momen, has been left with
the right of ownership in respect of only 3873 Sq. Yds. of the
property situated at No. 4, Flag Staff Road, Civil Lines, Delhi.
4. I.A. Nos. 12-13 have been filed by Narender Jain and Arvind
Jain (original plaintiffs No.2 & 3) seeking the following reliefs :-
“(a) modify/clarify/correct Paragraphs
29 and 30 of the judgment and order
dated 3.12.2012 as mentioned in the
present application;
(b) correct the typographical errors in the
judgment and order dated 3.12.2012 as
mentioned in Paragraph 8 of this
application;
(c) pass such other and further orders as
may be deemed fit and proper in the
facts and circumstances of the present
case.”
5. In the aforesaid I.As. the applicants have, inter alia, stated
that Ms. Sameen Rushdie Momen who is the legal heir/
successor-in-interest of the deceased sole defendant Anis
Ahmed Rushdie (by virtue of a Will dated 9.1.1984 executed by
Anis Ahmed Rushdie and accepted by the other legal heirs) had
executed a irrevocable General Power of Attorney dated
4.11.2010 with consideration in favour of one Fine Properties
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Private Limited disposing of all her rights, shares and interest
etc. in the suit property “as on whereon basis” subject to the
following salient terms:-
“1. That, the FIRST-PARTY agrees to
absolutely grant to the SECONDPARTY all his rights, shares, interest,
liens, registrations clear-titles, etc. in
the un-encumbered plot/property/
house bearing no. 4, Flag Staff Road,
Delhi-110054 alongwith:
unauthorized Occupant/ User (i.e.
late Sh. BHIKU RAM JAIN): and
another unauthorized-Occupant/
User (i.e. legal-heirs of late Mr. I.M.
Lal): and portion of the property in
possession of the FIRST-PARTY.
And the SECOND PARTY has
accepted to be the Attorney for the
purchase acquisition and possessing
of the entire-property, for the total
CONSIDERATION of Rs.4,50,00,000/-
(Rupees Four-Crores and Fifty Lacs)
only through this presently executed
and registered G.P.A.
Sufficiency of the above
CONSIDERATION for signing and
executing of this G.P.A. is hereby
acknowledged (payments and
receipts) by both Parties.
(vii) Para 6 of the said General Power of
Attorney reads under:-
6. That, the SECOND-PARTY shall
pursue and bear the entire charge, costs,
expenses, fees, etc. regarding the
following:-Page 5
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• R.F.A. (OS) No. 11 of 1984;
• Special Leave Petition (S.L.P.) or
equivalent, etc. before the Supreme
Court of India), if subsequently filed
thereafter;
Effective from the date of execution and
registration of this G.P.A.
(vii) Para 8 of the said General Power of Attorney
reads as under :-
8. That, on handing over the payment of: fullCONSIDERATION to the FIRST-PARTY, by the
SECOND-PARTY, the FIRST-PARTY ceases to
exercise any rights, interests, liens, titles, etc.
(what-so-ever) in the said plot/property/house;
and the Attorney for the same shall absolutely
stand in favour of the SECOND-PARTY (in all
respects what-so-ever).’
(viii) Para 12 of the said General Power of Attorney
reads as under :-
12. That, the CONSIDERATION-amounts shall
not be returned/refunded, by the FIRST-PARTY
to the SECOND-PARTY.
Also, the amount paid, incurred, etc. and
expenses, cost etc. and incidentals thereto
towards the Registration (eg. Stamp Duty, etc.)
by the SECOND-PARTY shall also not be
returned/refunded/reimbursed).”
6. In the light of the aforesaid facts, the applicants state that
directions contained in judgment dated 3.12.2012 requiring the
legal heirs of the deceased sole defendant, i.e., Respondents 1A
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to 1D (in Civil Appeal No. 8675-76 of 2012) to execute the sale
deed in favour of the plaintiffs, at the market price of the suit
property as on the date of the judgment, would require
appropriate modification inasmuch as the defendant respondents are not entitled to the said reliefs having already
parted with the suit property.
7. The applicants further/alternatively contend that in view of
the several decisions of this Court referred to in paragraph 5 of
the I.A., the judgment of the Court directing execution of the
sale deed by the defendant-respondents in favour of the
plaintiffs at the market price as on the date of the said
judgment i.e. 3.12.2012 would also require appropriate
modification.
8. In addition to the above, correction of certain
typographical errors specifically mentioned in paragraph 8 of
the I.A. have been prayed for by the applicants.
9. I.A. Nos. 14-15 of 2013 have also been filed by plaintiffs 2
and 3, i.e., Narender Jain and Arvind Jain seeking to bring to the
notice of the Court that Fine Properties Private Limited has filed
an I.A. before the learned Trial Judge of the High Court seeking
certain orders in respect of the execution of the sale deed in
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terms of the judgment of this Court dated 3.12.2012. The
applicants contend that notice has been issued in the aforesaid
I.A. by the learned Trial Judge of the High Court without any
justifiable basis and the same needs to be appropriately
interfered with by this Court. In any event, the proceedings in
the aforesaid I.A. are required to be stayed till a decision is
rendered by this Court in the present I.As.
10. In addition to the above, I.A. D.No.37212 of 2013 has been
filed by one Chopra Marketing Private Limited seeking
impleadment in C.A. No. 8653 of 2012 on the basis that an
agreement to sell the suit property was executed by and
between the applicant and persons claiming to be the Attorneys
of the defendant-respondents pursuant whereto the applicant
had parted with a sum of Rs. 2 crores as advance payment.
According to the applicant it had subsequently come to its
knowledge that rights in the suit property had already been
created in favour of the Fine Properties Private Limited as well
as the applicants in I.A. 3-5 for which reason a FIR dated
8.12.2012 has been filed by the applicant before the
Jurisdictional Police Station, i.e., Economic Offences Wing, Delhi.
11. We have heard the learned counsels for the parties.
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12. An application for modification/clarification of a final order
passed by this Court is not contemplated by the provisions of
the Supreme Court Rules, 1966 which specifically provides the
remedy of review and also lays down the procedure governing
the consideration of a review application by this Court.
In fact,
filing of such applications for modification has been deprecated
by this Court in Delhi Administration Vs. Gurdip Singh
Uban & Ors. [(2000) 7 SCC 296] and A.P. SRTC & Ors. Vs.
Abdul Kareem [(2007) 2 SCC 466].
It is in the above backdrop
that we must proceed to examine the prayers made in the I.As.
filed.
13. Insofar as I.A. Nos.3-5 are concerned, suffice it will be to
note that the facts stated therein, on the basis of which the
prayer for modification/clarification has been made, were not
before the Court at the time when the judgment dated
3.12.2012 was rendered. In I.A. Nos.14-15 and I.A. D.No. 37212
of 2013 the reliefs sought are based on facts and events which
have occurred subsequent to the order of this Court. Not only
on the basis of the principles of law laid down by this Court in
Gurdip Singh Uban and Abdul Kareem (supra), even
otherwise, the said I.As. would not be maintainable and the
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prayers made therein cannot be granted. The applicants seek
to reopen concluded issues and alteration of the consequential
directions which have attained finality. Such a course of action
is not permissible and at best the parties may be left with the
option of seeking such remedies as may be open in law to
vindicate any perceived right or claim. We, therefore, dispose of
the I.A. Nos.3-5, 14-15 and D.No. 37212 of 2013 in the above
terms.
14. Insofar as I.A. Nos.12-13 of 2013 are concerned,
Shri Shanti Bhushan, learned senior counsel for the applicants
has submitted that an application seeking review of this Court’s
judgment dated 3.12.2012, to the extent prayed for in the I.As.,
has been filed. That apart, Shri Bhushan has drawn our
attention to some typographical errors in the judgment dated
3.12.2012. We, therefore, deem it proper to consider the
aforesaid I.As. on a slightly different footing.
15. Insofar as typographical errors and the suggested
corrections mentioned in para 8 of the I.As. are concerned, we
have examined the contents of the relevant paragraphs of the
judgment dated 3.12.2012. On such consideration, we find that
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occurred. Consequently, we correct the said errors in the
following terms.
(i) Para 2 of the judgment dated 3.12.2012 be read as
follows :
“2. The appellants, Narendra Jain (original
Plaintiff No.2), and Arvind Jain (original Plaintiff No. 3)
also claim to be the Legal heirs and representatives
of the original plaintiff No. 1 who had along with
Narendra Jain and Arvind Jain instituted suit No.
994/1977 in the High Court of Delhi seeking a decree
of specific performance in respect of an agreement
dated 22.12.1970 executed by and between original
plaintiff No.1 (Bhikhu Ram Jain) and the original
defendants Anis Ahmed Rushdie in respect of a
property described as Bungalow No.4, Flag Staff
Road, Civil Lines, Delhi (hereinafter referred to as
the ‘suit property’). The plaintiff Nos. 2 and 3 are the
sons of the original plaintiff No.1. The suit was
decreed by the learned trial judge. The decree
having been reversed by a Division Bench of the
High Court the present appeals have been filed by
the original plaintiff No.2, Narendra Jain and Arvind
Jain (original Plaintiff No.3) and the other appellants
who claim to be vested with a right to sue on the
basis of the claims made by the original plaintiffs in
the suit. It is, however, made clear at the very
outset that though all such persons claiming a right
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to sue through the deceased plaintiffs 1 and 3 are
being referred to hereinafter as the plaintiffs and an
adjudication of the causes/claims espoused is being
made herein the said exercise does not, in any way,
recognize any right in any such impleaded ‘plaintiffs’
which Question(s) are left open for decision if and
when so raised.”
(ii) In paragraph 4 of the judgment dated 3.12.2012 the
date of the filing of the suit mentioned as 3.11.1997
be read as 3.11.1977.
(iii) In paragraph 6 of the judgment dated 3.12.2012 the
date 22.12.1977 be read as 22.12.1970.
(iv) Paragraph 8 of the judgment dated 3.12.2012 be
replaced by following paragraph :-
“8. Aggrieved by the aforesaid judgment and decree
passed by the learned trial Judge, the original
defendant had filed an appeal which was allowed by
the impugned judgment dated 31.10.2011.
During
the proceedings of the appeal before the High Court
the original plaintiff 1 as well as the original
defendant had died.
As already noticed, while the
original plaintiff No.2 and original plaintiff No.3
continue to remain on record as appellants, the
remaining appellants claim to be the legal
heirs/representatives of the deceased plaintiff No.1.
In so far as the original defendant in the suit is
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concerned the legal representatives of the said
defendant are on record having been so
impleaded.”
16. This will bring the Court to a consideration of the prayer for
clarification/modification of the direction for execution of the
sale deed by the defendants in favour of the plaintiffs at the
market price as on 3.12.2012.
The first ground on which such
modification has been sought is that during the pendency of the
appeals all rights in the suit property have been transferred by
the defendant-respondents to one Fine Properties Private
Limited for valuable consideration and therefore, the said
defendant-respondents are not entitled to any relief much less
the relief of the market value of the property.
Additionally, it
has been contended that instead of the defendant-respondents
it is the Registrar of the Delhi High Court who should be
directed to execute the sale deed in favour of the plaintiffs.
17. We have already observed that the facts surrounding the
alleged transfer of the suit property or the rights over the said
property by the defendant-respondents to Fine Properties
Private Limited were not before the Court at the time of hearing
of the appeals in question or even at the time when the
judgment dated 3.12.2012 was rendered. Though the aforesaid
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facts along with the supporting documents were filed by way of
an additional paper book no specific order of the Court was
sought or granted to the appellants to rely on the said
documents.
In such circumstances, the aforesaid facts now
sought to be brought on record cannot be a legitimate basis for
any modification of our judgment even if the I.As. in question
are construed to be applications for review of our judgment
dated 3.12.2012.
18. The aforesaid prayer for modification is based on the
additional ground that the same is contrary to the several
decisions of this Court reference to which has been made in
para 5 of the I.A.
We do not consider the abovestated ground to
be a justifiable or sufficient cause to alter our direction(s) for
execution of the sale deed at the market price inasmuch as the
said direction was passed by us in the peculiar facts and
circumstances of the present case enumerated below.
19. In paragraph 10 of the judgment dated 3.12.2012, the
statement made on behalf of the appellants (Plaintiffs) that
they are ready and willing to offer an amount of Rs.6 crores for
the property as against the sum of Rs.3.75 lakhs as mentioned
in agreement dated 22.12.1970 has been specifically recorded.
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It is the aforesaid “offer” made on behalf of the
appellants/plaintiffs that had led to the direction in question
inasmuch as no material was available to Court to find out as to
whether the offered amount of Rs.6 crores was, in any way,
indicative of the market value of the property.
It is in such a
situation that the direction to execute the sale deed at the
market price and the request to the learned Trial Judge to
determine the same came to be recorded in the judgment
dated 3.12.2012. It is, therefore, clear that we did not intend to
lay down any law of general application while issuing the
direction for execution of the sale deed at the market price as
on the date of the judgment i.e. 3.12.2012.
20. The exercise by the learned Trial Judge
in terms of our
judgment dated 3.12.2012 is yet to be made.
The aforesaid
determination, naturally, will be made by the learned single
Judge only after affording an opportunity to all the affected
parties and after taking into account all relevant facts and
circumstances.
Furthermore, any party aggrieved by such
determination will be entitled to avail of such remedies that
may be open in law to such a party.
In view of the above, we do
not deem it to be necessary to cause any variation or
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modification in the aforesaid direction contained in our
judgment dated 3.12.2012.
21. Accordingly, I.A. Nos. 12-13 of 2013 shall stand disposed of
in the above terms.
...…………………………J.
[P. SATHASIVAM]
.........……………………J.
[RANJAN GOGOI]
New Delhi,
May 8, 2013.
