Calcutta High Court (Appellete Side)
Jyotsna Mazumdar vs Gouri Chakraborty @ Malakar on 10 March, 2025
Author: Tapabrata Chakraborty
Bench: Tapabrata Chakraborty
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IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Tapabrata Chakraborty
&
The Hon'ble Justice Partha Sarathi Chatterjee
RVW 35 of 2023
+
IA No. CAN 1 of 2023
Jyotsna Mazumdar
Vs.
Gouri Chakraborty @ Malakar
In
FA 02 of 2022
For the petitioner/respondent no. 1 :Mr. Haradhan Bannerjee, Ld. Sr. Adv.,
Mr. A. Pan.
For the opposite party no. 1/ appellant : Mr. Pinaki Ranjan Mitra,
Mr. Ashim Kumar Roy.
For the opposite party no.2/respondent no.2 : Mr. Tanmoy Bhattarcharyya,
Mr. Somnath Das,
Mr. M. Mallick,
Ms. Joyeeta Kundu,
Mr. D. Banerjee.
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Hearing is concluded on : 26.02.2025
Judgment on : 10.03.2025
Partha Sarathi Chatterjee, J.
1. The present Memorandum of Review along with its connected application has
been filed seeking a review of the judgment dated 12th December, 2022,
passed in FA 2 of 2022. By this judgment, the appeal was allowed, setting
aside the judgment and decree dated 30th March, 2019, passed by the learned
Civil Judge, Senior Division, 3rd Court, Howrah, in Title Suit No. 159 of
2009.
2. The succinct summary of the facts that need to be outlined to address the
issues raised in the proceeding is that One Jyotsna Mazumdar, the
plaintiff/respondent/petitioner (hereinafter referred to as “Jyotsna”),
instituted a suit for the specific performance of a contract. In the plaint,
Jyotsna contended that the suit property belonged to defendant no.
1/Appellant/Opposite Party no. 1 (hereinafter referred to as “Gouri”). Gouri
had entered into an agreement for the sale of the suit property to Jyotsna for
a consideration of Rs. 12 lakhs within a month from the date of execution of
the agreement. An advance payment of Rs. 3 lakhs were also made to Gouri.
3. The agreement stipulated that Gouri would provide the documents related to
the suit property to Jyotsna within the specified period. However, Gouri only
supplied those documents at the end of 2008. After verifying the documents,
Jyotsna approached Gouri for the execution and registration of the deed of
sale. In response, Gouri refused to execute and register the deed, contending
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that the agreement had become void. One morning, Jyotsna noticed that Ajit
Das, defendant no. 2/respondent/Opposite Party no. 2 (hereinafter referred
to as “Ajit”), was attempting to construct a boundary wall by bringing
labourers and building materials. However, this attempt was thwarted by
Jyotsna’s timely intervention. These events led Jyotsna to file the suit.
4. After considering the pleadings and evidence presented by both parties, the
learned Trial Court found merit in Jyotsna’s contention and, accordingly,
decreed the suit. Aggrieved by the judgment and decree, Gouri filed the
appeal, FA 2 of 2022. As previously noted, by the judgment and decree dated
12.12.2022, the appeal was allowed, setting aside the Trial Court’s judgment
and decree. Seeking a review of this judgment, Jyotsna has initiated the
present proceeding.
5. Mr. Banerjee, the learned advocate representing Jyotsna, argues that there is
an error apparent on the face of the record. According to him, an error of law
has occurred in the judgment dated 12.12.2022, as the Court failed to
properly apply the provisions of Section 16(c) and 20 of the Specific Relief
Act, 1963. As per these sections, he contends, a Court, while dealing with a
suit or appeal for the specific performance of a contract, is required to
consider the conduct of the parties. He claims that this Court omitted to
consider the conduct of Gouri and fell into error by reversing the judgment
and decree of the learned Trial Court. In support of his contention, he cites a
decision, reported at (2015) 1 SCC 705 (Zarina Siddique vs. A. Ramalingam
Alias R. Amarnathan).
6. He claims that although, due to the passage of time, it may not be possible to
provide a reminder to the Court, arguments regarding the conduct of the
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parties were advanced, but the Court overlooked this aspect. Since this issue
cannot be raised in appeal, Jyotsna has approached this Court seeking a
review of the judgment. To support his argument, he cites the decision
reported in Shankar K. Mandal & Ors. vs. State of Bihar & Ors. (2003) 9
SCC 519.
7. Mr. Banerjee asserts that, in passing the judgment dated 12.12.2022, this
Court overlooked the established legal principle that a party seeking a decree
for specific performance is not required to deposit the money in Court or
keep the money ready throughout the entire duration of the proceedings.
Referring to two decisions, reported at (2006) 4 CHN 476 (Abhijit Dey vs.
Learned West Bengal Administrative Tribunal & Ors.) & AIR 2021 SC 3055
(Mani Squre Ltd. & Anr. vs. Nemai Chandra Kumar (D) & Ors.), he
contends that omission to consider the settled legal principle is error
apparent on the face of the record.
8. He further argues that the Court failed to consider that Jyotsna, being a
businesswoman, would not keep her money idle. Although her bank
passbook and Income Tax Return did not reflect that she had the balance
amount of the consideration money readily available, this does not imply that
she was not ready to perform her part of the contract. To invigorate his
argument, he cites the decisions, reported at 2022 SCC OnLine SC 1391 (P.
Daivasigamani vs. S. Sambandan), AIR 1967 SC 868 (Gomathinayagam
Pillai & Ors. vs. Palaniswami Nadar).
9. In response, Mr. Mitra, the learned advocate representing Gouri, argues that
under the guise of a review, an issue cannot be re-agitated, nor can a Court be
invited to rehear the entire matter or entertain any new issues. He submits
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that a review is not an appeal in disguise. Referring to paragraph 14 of the
judgment, Mr. Mitra points out that the entire argument advanced by Mr.
Banerjee was already addressed. He further asserts that the contention raised
by Mr. Banerjee today was never raised during the hearing of the appeal. He
claims that the conduct of both parties was duly considered by this Court. To
support his argument, Mr. Mitra cites the decision reported in 2023 (1) ICC
95 (SC) (S. Madhusudan Reddy vs. V. Narayan Reddy & Ors).
10. Mr. Bhattacharya, entering appearance on behalf of Ajit, adopted the
submission of Mr. Mitra and places his reliance on a decision, reported at
2024 7 SCR 1077 (S. Tirupathi Rao vs. M. Lingamaiah & Ors.).
11. Undeniably, Section 114 and Order 47, Rule 1 of the Code of Civil Procedure,
1908, govern the right of an aggrieved party to seek a review of a decree,
order, or judgment, and prescribe the procedure for such a remedy,
respectively. According to the legislative mandate enshrined in these
provisions, a Court can be invited to review its judgment only on three
grounds: (i) the discovery of new and important matter or evidence, which,
despite due diligence, was not within the applicant’s knowledge or could not
have been produced at the time the decree was passed or the order made; (ii)
a mistake or error apparent on the face of the record; or (iii) any other
sufficient reason.
12. It is a settled proposition of law that the power of review should not be
confused with the appellate power, which allows an appellate court to correct
all errors made by a subordinate court. The contentions raised and decided in
the main proceedings cannot be reopened or re-agitated under the guise of a
review petition.
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13. In the present case, Jyotsna seeks a review of the judgment on the ground
that there is an error apparent on the face of the record. Needless to state that
there is a distinct difference between a mere erroneous decision and an error
apparent on the face of the record. An error can be considered apparent on
the face of the record only when it is patent, easily identifiable without the
need for elaborate argument, and leaves no room for controversy. Such an
error is immediately obvious, as if it stares at one upon a simple glance. The
term ‘error apparent on the face of the record’ refers to an error that can be
discerned by a mere perusal of the record, without reference to any external
matter, and one that strikes the observer immediately, without requiring a
lengthy process of reasoning to pinpoint the error. (See, the decisions of S.
Tirupathi Rao (supra) and S. Madhusudan Reddy (supra).
14. Although no specific ground was raised in the memorandum of review, Mr.
Banerjee contends that certain arguments advanced by him were not
addressed in the judgment dated 12.12.2022. Though Mr. Mitra has
confirmed that Mr. Banerjee’s arguments were fully addressed and he claims
that Mr. Banerjee is attempting to introduce new arguments at this stage
taking recourse to this plea. However, in the case of Shankar K. Mondal &
Ors. (supra), it was ruled that if a party believes a judgment misrepresents
court proceedings, they must immediately call the attention of the very
Judges who have made the record while the matter is still fresh. If no such
step is taken the matter must necessarily end there. In the present case, the
hearing of the appeal was concluded on 15th November 2022 and the
judgment was delivered on 12th December 2022. Review petition was filed on
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17th February, 2023. Thus, at such distance of time, it is difficult to accept
Mr. Banerjee’s claim that his arguments were overlooked.
15. Mr. Banerjee’s primary argument is that this Court omitted to consider the
conduct of the parties. Section 20 of the Specific Relief Act, 1963 grants the
Court equitable discretion to either grant or deny the relief of specific
performance, and this discretion also depends upon the conduct of the
parties. The plaintiff must establish the necessary ingredients to ensure that
the discretion is exercised judiciously in his/her favour. At the same time, the
provisions of this section allow the defendant, in an action for specific
performance, to raise objections against the exercise of such discretion
16. However, it is undisputed that the conduct of the parties in a proceeding is
reflected in their pleadings, evidence, and surrounding circumstances. It is
not claimed that the judgment dated 12.12.2022 was delivered without
considering the pleadings and evidence presented by the parties. Although
the word ‘conduct’ is not explicitly used in the judgment, the paragraphs 23
and 24 of the judgment clearly determine that the parties did not intend for
time to be the essence of the contract. This determination is positively based
on the conduct of the parties as reflected in the evidence on record.
17. Section 16(c) of the Specific Relief Act, 1963 stipulates that specific
performance of a contract cannot be enforced in favour of a person who fails
to aver and prove that he has performed or has always been ready and willing
to perform the essential terms of the contract, except for those terms whose
performance has been prevented or waived by the defendant. Therefore, a
mandatory precondition for obtaining a decree of specific performance is that
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the plaintiff must aver and prove continuous readiness and willingness to
perform their part of the contract.
18. Needless to say, that readiness and willingness must be proved through
evidence. Based on such evidence and the conduct of the parties, the Court
will infer the plaintiff’s readiness and willingness. It is not necessary for the
plaintiff to deposit the money in Court or with the defendant. However, the
plaintiff must demonstrate that he/she has the financial resources to execute
and register the deed. In other words, the plaintiff must prove his/her
capability to execute and register the deed.
19. The record reveals that it was the plaintiff herself who, to prove her readiness
and/or financial capability, submitted certain Income Tax Returns. However,
the Court observed that the ITRs did not demonstrate her ability to pay the
balance consideration. Paragraph 30 and 31 of the judgment dated
12.12.2022 reflects that all the evidence adduced by the parties was
considered and only after this consideration, it was determined that the
plaintiff failed to substantiate her claim that she was ready to perform her
part of contract.
20. Therefore, it is clear that Mr. Banerjee, in his argument, has attempted to re-
agitate issues that were previously raised and decided in the appeal, seeking a
review of the judgment, which cannot be permitted as per settled legal
principles. Mr. Banerjee seeks to introduce a new argument that being a
businesswoman, Jyotsna would not keep money idle but she had capability to
arrange the money. There is no scintilla of doubt regarding the binding
nature of the precedents set in the judgments relied upon by Mr. Banerjee.
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However, the propositions laid down therein would not be of assistance to
the petitioner in this case.
21. Thus, based on the discussions in the preceding paragraphs, we are of the
opinion that the petitioner has failed to demonstrate any error apparent on
the face of the record. Consequently, the review petition and its connected
application are dismissed, however, without any order as to costs.
(Partha Sarathi Chatterjee, J.) (Tapabrata Chakraborty, J.)