9911796707
Advanced Search 
TMI Blog2019 (8) TMI 374X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 1, 2 and 3 (writ petitioners) are the grandsons of Kirodimull Lohariwala and sons of Premchand Gupta both since deceased, who constituted a H.U.F. which owned property No. 43, Prithviraj Road, New Delhi(subject property) standing in their joint names having other properties at Calcutta. 4. The present appellants are alleged to be the legal heirs of late V. N. Vasudeva who happens to be the income tax practitioner and lawyer of late Kirodimull Lohariwala had purchased the subject property in an open auction conducted by the Income Tax Department on 18th August, 1964 for a consideration of Rs. 2,60,000/and the sale certificate with respect to the suit property was issued on 1st April, 1965. 5. In August, 1957, late Kirodimull Lohariwala instituted a Suit No. 1451 of 1957 before the High Court of Calcutta against Premchand Gupta claiming the said property including other properties as his selfacquired 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 1st May, 1958. The said property (43, Prithviraj Road, New Delhi) was purported to be sold under Certificate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tta regarding the purported sale of the Delhi property to late V.N. Vasudeva under auction dated 18th August, 1964 declaring that the purported sale dated 18th August, 1964 and issuance of the certificate of confirmation of sale dated 1st April, 1965 in respect of the Delhi property be declared as null and void and the subject property be remained under attachment by income tax authorities. 10. Taking assistance of the order of the High Court of Calcutta dated 8th September, 1965 passed on an application filed by Union of India of which a reference has been made, affidavits/counter affidavits were filed by the respective parties and the writ petition(C.O. No. 18500(W) of 1985) was heard and judgment was reserved by High Court of 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 on 26th October, 1990 dealing with the submissions and arriving to the conclusion that since the writ petitioners have resorted to alternative remedy of filing suit in the court of District Judge, Delhi which although was pending on the date when the judgment was reserved(Title Suit No. 471 of 1985) keeping all points ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the respondents to file a fresh suit on the selfsame cause of action in Delhi, if so advised. The respondents preferred Review Application being RVW No. 272/2012 against the impugned judgment dated 19th October, 2012 and also the Order dated 31st March, 2006. By the impugned order dated 24th September, 2014, the Order dated 19th October, 2012 was reviewed and in consequence, the order dated 31st March, 2006 was set aside and directed the Writ Petition No. 18500(W) of 1985 to be heard on its own merits which is a subject matter of challenge at the instance of the appellants in the instant appeal. 15. Mr. Mukul Rohatgi, learned senior counsel for the appellants with his usual vehemence submits that the present review petition filed by the respondents was not maintainable as none of the grounds which have been taken note of meets the principles of review jurisdiction of the Court as envisaged under Order 47 Rule 1 Code of Civil Procedure which entails the basic principles for entertaining the review petition and this Court in Kamlesh Verma Vs. Mayawati and Others 2013(8) SCC 320 has laid down the principles where review can be said to be maintainable. 16. Learned counsel submits t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el submits that recalling of the order dated 26th October, 1990 under review jurisdiction of the High Court and relegating the parties to square one would be nothing but abuse of the legal process and needs to be curbed and that is the reason for which the appellants have approached this Court by filing an appeal despite the public auction held by the Income Tax Department in the year 1964 in favour of the predecessor in interest, V.A. Vasudeva and after the purported sale stands confirmed overruling the objections of the original owner of the property dated 26th February 1965 and issuance of certificate of confirmation of sale dated 1st April, 1965, still they are unable to get fruits of the subject property in question and relegating them to the year 1985 that too after more than 34 years of the property put to auction would not be in the interest of justice and that needs 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 judgment impugned dated 24th September, 2014 submits that auction of the subject property in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 decided by any Court of competent jurisdiction and further submits that no prejudice either way has been caused to the parties as they are being relegated 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 their assistance perused the material available on record. 25. From the material on record, it manifests that the subject property (43, Prithviraj Road, New Delhi) was purported to be sold in the certificate proceedings initiated by Income Tax Department for recovery of income tax dues of Sambhuram Kirodimull HUF to the auction purchaser late V.N. Vasudeva for a sum of Rs. 2,60,000/on August 18, 1964. Kirodimull objected against such purported sale to V.N. Vasudeva because no leave was obtained from the High Court of Calcutta which was overruled by the Chief Commissioner, Delhi and confirmed the purported sale in favour of V.N. Vasudeva vide Order dated 26th February, 1965. At ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te treaty to the best purchaser or purchasers that can be got for the same. Witness, Sri Himanshu Kumar Bose, Chief Justice at Calcutta aforesaid the eighth day of September, one thousand nine hundred and sixty five. S.K. Mandal - Attorney Sutt & Sen - Attorneys S.B. Banerjee 20.1.1966 For Registrar 26. That apart, Section 293 of the Income Tax Act, 1961 put a complete bar of filing suit in any civil court against the revenue/income tax authority and the mandate of law remain unnoticed when the order came to be passed by the Single Judge of the High Court in Writ Petition No. 18500(W) of 1985 decided on 26th October, 1990 while relegating the parties to address in the alleged pending Civil Suit No. 471 of 1985 before the District Judge at Delhi although it was dismissed much prior to the pronouncement of the Judgment dated 26th October, 1990. Even in the LPA, the Division Bench of the High Court granted liberty to the respondents to file a fresh civil suit in respect of the subject property in Delhi and either party has not brought to the notice of the Court the mandate of law as envisaged under Section 293 of the Income Tax Act, 1961 that the civil suit against the In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... face of the record should not be an error which has to be fished out and searched. (viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition. (ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived." 29. Taking note of the exposition of the above principles let us consider the facts on record and it reveals that the effect of Section 293 of the Income Tax Act has been mistakenly omitted under the judgment in review and that apart, the consequential effect of the order of the High Court on an application filed by the Union of India in Civil Suit No. 1451 of 1957 dated 8th September, 1965 was open to be examined in the writ proceedings and it was the defence of the Income Tax Department in the reply to the review application and also before this Court in their counter affidavit that in the auction sale which was held in the month of August, 1964, the permission from the Court was not obtained and after the order came to be passed on their application by the Single Judge of the High Court in Suit No. 1451 of 1957 dated 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
