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K. Rama Naidu And 6 Others Petitioners v. S.K Parthasarathy Naidu And 2 Others S

Madras High Court

Sep 27, 2001

Judgment

CaseIQ

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Factual and Procedural Background

This opinion is a judgment on a review petition challenging the judgment in S.A. No. 499 of 2001. The underlying dispute arose from O.S. No. 5006 of 1996, filed by the first respondent for dissolution of a purported partnership and rendition of accounts. The first review petitioner (referred to as RP1) was the first defendant in the original suit; the dispute principally concerns RP1 and respondents 1 and 2.

Material facts as found in the opinion: RP1 needed funds to purchase immovable property and approached respondents 1 and 2. Each (the text states "both of them") advanced a sum of Rs. 1,00,001 to RP1 on terms that he would return the amount together with one-fifth share of the profits realized from the contemplated real estate business. Using those funds, RP1 purchased the suit property. Respondent 2 filed a suit for a bare injunction; respondent 1 filed the substantive suit for dissolution and accounts. Respondents 1 and 2 pleaded that the arrangement was a partnership; RP1 pleaded that it was a loan and additionally contended that recovery claims were barred by limitation.

At trial, the suits of the respondents were dismissed and the appellate court confirmed dismissal. Two second appeals were filed to this Court. The second appeal relating to the injunction suit was dismissed. In the second appeal concerning dissolution of partnership the Court found that the transaction was a loan (debtor-creditor relationship) and, relying on the defendant's admission, granted a decree for recovery of Rs. 1,00,000 together with one-fifth share in the profits, interest and an order to render accounts. RP1 filed the present review petition challenging that judgment.

Legal Issues Presented

Whether there was an error apparent on the face of the record (sufficient to entertain a review) in the Court's finding and decree in the second appeal.
Whether the claim for recovery (on the basis that the transaction was a loan) was barred by the law of limitation, given the dates on which the property was purchased and the dates when profits were to be realised.
Whether the Court was entitled to grant an alternative relief (recovery on the basis of a loan) contrary to the pleadings of the plaintiffs/respondents when an admission by RP1 in his pleadings and the documentary evidence supported that alternative relief.

Arguments of the Parties

Review Petitioner (RP1) — submissions of Mr. A.A. Lawrence

The judgment suffers from an error apparent on the face of the record because RP1 had pleaded that the claim was barred by limitation (para. 17 of the written statement) and thus any admission in the pleadings was not an unconditional admission but qualified by a plea of limitation.
The Court wrongly treated RP1's statement that it was a debt as an admission permitting recovery; the statement was that the debt was time-barred and therefore could not be converted into an unconditional admission to grant relief.
No relief should be granted contrary to the pleadings; respondents consistently maintained the case was one of partnership, so it was improper to grant relief as if the transaction were a loan.
Although the limitation point was not argued earlier, it is a pure question of law and an error apparent on the face of the record that justifies review.
Relied on several precedents (enumerated in the opinion) in support of these contentions.

Respondents — submissions of Mr. G. Subramanian (adopted by first respondent)

RP1's admission was not a qualified admission; RP1 had categorically acknowledged the transaction to be a loan and accepted his indebtedness.
The limitation point ought to have been raised when the second appeal was argued; it was not then urged and thus RP1 cannot seek review solely on that ground.
On facts, the right to recover the amount would arise only after RP1 purchased the property and realised profits. The material dates are: purchase of suit property on 12.3.1990 and entry into agreement with prospective purchasers in January 1991. The suits were filed within three years from those dates and therefore are not time-barred.
RP1's own pleadings (para. 32 and para. 33) and his later counter indicate that repayment and the share of profits were to be received when the final sale deed was executed; accordingly, limitation does not bar the claims.
Referred to the decision in Shanmugasundara Nadar v. Tamil Nadu Housing Board on the scope of review and the preference for substantial justice over mere technicalities.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
S. Nagaraj v. State of Karnataka, 1993 Supp. (4) SCC 595	Principle that justice transcends procedural technicalities; mistakes may justify recalling an order.	Extract quoted at the outset to emphasize that rectification/review springs from the court's obligation to avoid injustice.
Baskaran v. Commr. Of College Education, 1995 (2) CTC 513	Discussed important features and principles applicable to review applications.	Referred to by the Division Bench and the three principles from that decision are reproduced and applied as background for review scope.
Jamna Kuer v. Lal Bahadur, AIR 1950 F.C. 131	Error apparent on the face of the record justifies review even if due to counsel's mistake.	Court acknowledged the proposition but held that the circumstances relied on by RP1 did not establish such an error in this case.
Jagjivandas Bikhabhai v. Sumanbhai Narottamdas, AIR 1967 Guj. 1	Plaintiff cannot obtain a decree on a defendant's case if the claim is barred by limitation.	Held to reinforce respondents' position; the Court found the claim was not time-barred, so this precedent did not aid RP1.
Ram Surat v. Shitla Prasad, AIR 1975 All. 270	Review maintainable where an important piece of evidence was missed.	Court found this precedent did not assist RP1 because no such omission applicable here was shown.
Mt. Rukhmabai v. Ganpatrao, AIR 1932 Nag. 177	Omission to notice a statutory provision is a ground for review.	Court noted principle but found the limitation question favored respondents and not RP1.
Karim Ismail v. Abdul Rahiman, AIR 1953 Bom. 353	Plea of limitation taken first in appeal should nevertheless be considered by the appellate court.	Applied in favour of respondents: the limitation plea was considered and found not to bar the suit.
Firm Srinivas Ram Kumar v. Mahabir Prasad, AIR 1951 SC 177	Where a defendant admits facts in his pleadings, the court may grant an alternative relief based on that admission.	Relied upon by this Court to justify granting a recovery decree based on RP1's admission that the transaction was a loan.
Messrs. Trojan & Company v. Rm. N.N. Nagappa Chettiar, AIR 1953 SC 235	Court cannot base decision on grounds outside pleadings nor grant relief not asked for without amendment.	Cited to show that in this case the loan case arose in the written statement and both courts accepted it, so the rule did not prevent granting the alternative relief.
Om Prakash v. Ram Kumar, 1991 (1) SCC 441	Plaintiff cannot raise a new cause of action based on a defendant's plea unless plaint is amended.	Applied to hold that no new cause of action was introduced here; the loan basis existed in the same suit documents (Exs. A1–A4).
Shanmugasundara Nadar v. Tamil Nadu Housing Board, 1988 (2) L.W. 57	Limits on review power; preference for substantial justice over technical considerations; review corrects patent errors or overlooked material but does not permit re-deciding the case.	Court relied on the quoted paragraphs to justify preferring substantial justice and to explain the restricted scope of review applied in the present matter.

Court's Reasoning and Analysis

The Court proceeded in a structured manner:

Recapitulation of review principles: The Court began by citing authoritative statements (S. Nagaraj and Baskaran) on the limited grounds for review—error apparent on face of record, serious irregularity (e.g., breach of natural justice), or mistake of fact causing a miscarriage of justice.
Examination of facts and documentary evidence: The Court examined four key documents (Ex-A1 to Ex-A4). Those documents expressly contemplated that the sums advanced would be repaid only after the suit property was purchased, plotted out, sold and profits realised; the repayment obligation therefore arises only after realization of profits.
Chronology and limitation analysis: Relevant dates were identified from the record: purchase of the property by RP1 on 12.3.1990; agreement for sale with third parties in January 1991; suit filed on 26.4.1991. On this basis the Court reasoned that respondents' rights to claim repayment and profit-share arose only after realization of profits (post-purchase/sale) and the substantive claims were filed within three years of those triggering events.
Admission and alternative relief: The Trial Court and the First Appellate Judge had found the transaction to be a loan. RP1 had, in his pleadings, acknowledged aspects of the debt and the one-fifth profit share. The Court applied the principle from Firm Srinivas Ram Kumar that where the defendant admits relevant facts, a court may grant an alternative relief consistent with that admission, even if it was not the specific relief originally pleaded by the plaintiff.
Reviewability assessment: The Court examined the authorities relied on by RP1 (including Jamna Kuer, Jagjivandas, Ram Surat, Mt. Rukhmabai, Karim Ismail and others) and concluded that none established an error apparent on the face of the record warranting review. The limitation arguments were considered to be questions of law already addressed by the Court on the basis of the chronological facts and documents; that consideration led to the conclusion that the claims were not time-barred.
Balancing substantial justice against technical considerations: Relying on Shanmugasundara Nadar, the Court emphasized preferring substantial justice over technicalities. Given the documentary admissions, factual findings by two courts that the transaction was a loan, and the timing of events, the Court concluded that granting recovery in accordance with the admitted loan terms was consistent with justice and the limited scope of review.
Conclusion of analysis: The Court held that RP1 had not demonstrated either an error apparent on the face of the record or the other limited grounds for review. The alternative relief granted in the second appeal was supported by admission, documents and findings of fact; thus rectification was unnecessary.

Holding and Implications

Holding:

REVIEW PETITION DISMISSED with costs of Rs. 5,000.

Direct consequences for the parties (as stated in the opinion):

The earlier judgment in the second appeal stands: the transaction is treated as a loan and the respondents were entitled to a decree for recovery of the amounts advanced (noted as Rs. 1,00,000 in the decree) together with one-fifth share in the profits, interest and a direction that RP1 render accounts.
RP1's contention that the claim was barred by limitation was rejected on the facts and dates in the record; the Court found that the right to recover crystallised only after purchase and realisation of profits and that the suits were filed within the appropriate limitation periods.
The review petition was dismissed; the Court ordered costs of Rs. 5,000 to be paid by the review petitioner.

Broader implications:

This opinion applies established principles on the limited scope of review, the circumstances in which an alternative relief may be granted based on admission in pleadings, and the preference for substantial justice over technical pleadings when the factual record and admissions support the alternative relief. The opinion itself does not purport to lay down a new legal doctrine; it resolves the review petition by applying existing authorities and the record before the Court.

Show all summary ...

1. “Justice is a virtue which transcends all barriers. Neither the rules of procedures nor technicalities of law can stand in its way…… Even the law bends before justice…. If the Court finds that the order was passed under a mistake…. Mistake is accepted as valid reason to recall an order. Difference lies in the nature of mistake and scope of rectification depending on if it is fact or law. But the root from which the power flows is the anxiety to avoid injustice…… If the Court is satisfied of the injustice then it is its constitutional and legal obligation to set it right by recalling its order.

Rectification of an order thus stems from the fundamental principles that justice is above all. It is exercised to remove the error and not for disturbing finality.”

The above is the extract from S. Nagaraj v. State of Karnataka, 1993 Supp. (4) SCC 595 which was referred to by a Division Bench of this Court in Baskaran v. Commr. Of College Education, 1995 (2) CTC 513 while dealing with the important features of a review application. In the same decision, the following principles were also laid:

“(1) If the judgment is vitiated by an error apparent on the face of the record in the sense that it is evident on a mere looking at the record without any long-drawn process of reasoning, “a review application is maintainable.

(2) If there is a serious irregularity in the proceeding, such as violation of the principles of natural justice, a review application can be entertained.

(3) If a mistake is committed by an erroneous assumption of a fact, which if allowed to stand would cause miscarriage of justice, then also an application for review can be entertained.

It is not necessary to point out that the above principles are applicable de hors the provisions of Order 47, Rule 1 of the Code of Civil Procedure.”

2. This review petition is against the judgment in S.A No. 499 of 2001. This appeal arises out of O.S No. 5006 of 1996 filed by the first respondent herein, for dissolution of partnership and rendition of accounts. The first review petitioner was the first defendant and the second respondent was the second defendant. The main controversy is only between these persons.

3. Certain facts are not in dispute. The first review petitioner (RP1 in short) needed funds to purchase certain immovable properties. He approached respondents 1 and 2 and both of them gave him a sum of Rs. 1,00,001. The purpose for which RP1 wanted to purchase the immovable property was to do some real estate business and realise profits. The agreement was that he would return this amount together with one-fifth share in the profits realised. With the aid of the amounts given by respondents 1 and 2, RP1 purchased the immovable property.

4. Apprehending that RP1 will not abide by the understanding between them, the second respondent filed a suit for bare injunction and the first respondent filed the above suit. In this substantive suit, the second respondent filed a written statement wherein he prayed that the first respondent's suit may be decreed as prayed for, for which he also undertook to pay the necessary court-fee. It was the case of respondents 1 and 2, that the agreement between the three of them was a partnership agreement. That is why RP1 agreed to give them a share in the profits.

5. The stand of RP1 on the other hand, was that the amount was given as a loan and there was no partnership. He admitted the loan and also that he agreed to give a share in the profits, RP1 in his written statement would state that the relief of recovery of amounts advanced was barred by limitation. The suits filed by both the respondents 1 and 2 were dismissed and the first Appellate Court confirmed this. Therefore, two second appeals were filed before this Court. The second appeal that arose out of the suit for bare injunction was dismissed.

6. In the other second appeal, which was for dissolution of partnership, an argument was advanced on behalf of the respondents that if the suit documents were not found to be partnership agreements, then on the basis of the admission of RP1 that it was only a loan, relief should be granted. In support of this proposition reliance was placed on Firm Srinivas Ram Kumar v. Mahabir Prasad, AIR 1951 SC 177.

7. This was accepted by this Court and while the findings of the Courts below regarding the relief for dissolution of partnership was confirmed, a decree was granted for recovery of a sum of Rs. 1,00,000 together with one-fifth share in the profits along with interest and RP1 was directed to render accounts. It is against this, the review has been filed.

8. Mr. A.A Lawrence, learned counsel for the review petitioner submitted that the judgment suffers from an error apparent on the face of the record. He pointed out to the defence raised by RP1 that the claim was barred by limitation. In para No. 17 of the written statement, RP1 had clearly stated that the relationship between the parties was that of a creditor and a debtor and the debt was barred by limitation. He also submitted that the relief was granted on the basis that there was an admission by RP1, whereas it is clear that RP1 had not made any unconditional admission. He had merely stated that it was a debt, but a debt that was time barred and therefore, this statement made in defence cannot be construed as an admission and relief cannot be granted on that basis. He also submitted that no relief shall be granted contrary to the pleadings. When persistently the respondents 1 and 2 had stuck to their stand that it was only a partnership agreement and not a loan, it was not open to this Court to grant them a relief as though the amount advanced was a loan. The learned counsel submitted that eventhough the Trial Court had given a finding that the transaction was a loan transaction both the respondents had attacked this, finding as erroneous and maintained that the relationship between the parties was only in the nature of a partnership. He also submitted that though this question of limitation had not been argued at that time, since it is a question of pure law and since the error also stares in the face, this Court shall review the judgment on that basis. He relied on several judgments to support his case.

(1) Jamna Kuer v. Lal Bahadur, AIR 1950 F.C 131; Jagjivandas Bikhabhai v. Sumanbhai Narottamdas, AIR 1967 Guj. 1; (3) Ram Surat v. Shitla Prasad, AIR 1978 All. 270; (4) Mt. Rukhmabai v. Ganpatrao, AIR 1932 Nag. 177; (5) Debi Sahai-Gulzari Mal of Delhi v. Basheshar Lal-Bansi Dhar, AIR 1928 Lah. 919; (6) Karim Ismail v. Abdul Rahiman, AIR 1953 Bom. 353; (7) Firm Sriniwas Rani Kumar v. Mahabir Prasad, AIR 1951 S.C 177; (8) Messrs. Trojan & Company v. Rm. N.N Nagappa Chettiar., AIR 1953 SC 235; (9) Om Prakash v. Ram Kumar, 1991 (1) SCC 441.

9. Mr. G. Subramanian, learned Senior Counsel made his submissions for the second respondent and they were adopted by the first respondent. First he submitted that the admission made by RP1 was not a qualified one. RPl had categorically acknowledged and admitted that what was granted was a loan. This point of limitation ought to have been urged when the second appeal was argued but was not. It is not open to RPl to seek review of the order on this basis. Even on facts, it was urged that the suit was not barred by limitation. The agreement between the parties was that RPl would purchase the suit property with the funds given by respondents 1 and 2 and return it to them with one-fifth share in the profit realised. The learned senior counsel would further submit that the question of realising profits would arise only after RPl had purchased the suit properties and done real estate business with the same. The right to recover the amount would arise only after RPl purchased the suit property and made profits out of the sale of the same. In this case the suit property was purchased by RPl only on 27.9.1990, and he had agreed to sell to third parties sometime in January 1991. Since both the suits had been filed within three years from that date, the suits were not time barred. In Para No. 32, RPl had stated that the principal and due share of profits can be received only at the time when the final sale deed is executed. Therefore, according to the learned senior counsel it does not lie in the mouth of RP1 to now say that the suit is barred by limitation. He referred to the decision reported in Shanmugasundara Nadar v. Tamil Nadu Housing Board, 1988 (2) L.W 57 in which the power to review was dealt with.

10. Four documents are relevant.

(a) Ex-A1 dated 28.9.1987, is a document executed by RPl acknowledging receipt of a sum of Rs, 1,00,001 from the first respondent wherein he has agreed to repay the said amount after the property is plotted out, sold and profits realised. The share of the profits agreed to be given to the first respondent was one-fifth.

(b) The next document is Ex-A2, dated 8.3.1988 This has been executed by RPl in favour of the first respondent in which Ex-AI is referred to. It is stated therein that as and when the properties are sold RPl would deduct a sum of Rs. 10,75,000 out of the gross profits and return the sum of Rs. 1,00,001 together with one-fifth share in the profits.

(c) Next document is Ex-A3, dated 16.4.1988 This is a receipt signed by RP1 acknowledging the payment of Rs. 1,00,001 from the second respondent.

(d) The next document is Ex-A4. This is also dated 16.4.1988 and executed by RP1 in favour of the second respondent. In this document, there is a reference to the suit property and it is stated therein that this sum of Rs. 1,00,001 has been taken to purchase the suit property and after purchase it would be sold in plots and the amount will be returned after realization of profits together with one-fifth share in the profits. Therefore, a reading of Exs-1 to 4 would show that the liability to repay the amounts advanced arises only after the suit property is purchased, sold and RP1 has realised profits. In fact, while in his written statement in para. 27 it is stated thus:

“In as much as the plaintiff had advanced money to this defendant as a loan transaction at the best the plaintiff could have filed a suit for the return of the money at the appropriate forum, and within the period of limitation.”:

In para. No. 33, this is what the revision petitioner would say:

“The plaintiff and the second defendant knew very well about the agreement of sale dated 5.1.1991 entered into between this defendant and the intending purchasers. Further the plaintiff has agreed to receive the principal loan amount of Rs. 1,00,000 and his due share of profits of Rs. 5,000 (Rupees five thousand only) at the time when the final sale deed is executed by this defendant in favour of the intending purchasers. Similarly, the second defendant also agreed to receive the total sum of Rs, 1, 05,000 (Rupees one lakh and five thousand only) towards principal loan amount and share of profits at the time when the final sale deed is executed.”

This would indicate that RP1 is complaining that the respondents have made a premature claim. A claim may be premature or belated, but not both. In the counter filed by RP1 in this Court on 20.6.1991, he had stated thus:

“I am ready to give one-fifth profit of his share which the plaintiff is legally entitled to get as his share of profit amount. “

11. There is also a reference in the counter that RP1 had entered into an agreement of sale of the suit property for a sale consideration of Rs 11 lakhs in the month of January 1991. The suit property itself was purchased by RP1 only on 12.3.1990 by document No. 1759 of 1990 in the office of the Sub-Registrar, Ambattur.

In his evidence RP1 as D.W.3 has stated as follows:-

12. In the second appeal, this Court rejected the case of the respondents 1 and 2 that there existed partnership, but found from the documents that the relationship was that of a debtor and creditor; that there is an agreement to return the loan advanced together with one-fifth share in the profits. This conclusion was arrived at on the basis of the construction of the documents and the finding of the Trial Court that the relationship was that of a creditor and debtor. It was held in the second appeal that though the case of a loan was not pleaded it was an alternative case which the respondents 1 and 2 could have made but did not and it was admitted by RPI in the written statement that he could not say that he was taken by surprise since on the basis of the pleadings, the Trial Court had framed an issue as to whether the transaction was a loan transaction and held that it was a loan. The First Appellate Judge held that,

“In the light of the elucidation of the foregoing factual aspects it is very clear that there is no partnership business between the plaintiff and the defendants and the transaction between the plaintiff and defendants is nothing but a loan transaction.” (Italics supplied)

Therefore, this Court concluded that the amounts that were advanced as loan must be returned as agreed. For this purpose reliance was placed on Firm Srinivas Ram Kumar v. Mahabir Prasad, AIR 1951 SC 177 that when there was an admission by the defendant in his pleadings no injustice can possibly result if the alternative relief is granted. As to the question of limitation it is seen from the aforesaid paragraph that the suit property itself was purchased only on 12.3.1990 and the agreement with the proposed purchaser was entered into in January, 1991 for a sum of Rs. 11,00,000.. Therefore, the respondents 1 and 2 will be entitled to claim return of the sum of Rs. 1, 00,000 advanced together with the one-fifth share of profits within three years from the date on which RP1 has realised profits. At any rate, their right to recover the amount does not arise until RP1 purchased the property. The suit was filed on 26.4.1991 well within time. So the claim is not barred as regards the first respondent. The second respondent only filed an injunction suit. But he filed his written statement in the other suit claiming the substantive relief. This written statement is dated 30.10.1992, also within three years from the date of agreement by RPI, with third parties, that is January, 1991 and also within three years from the date on which RPI purchased the property, which is 12.3.1990 RPI had agreed to return the amounts only after he purchased the suit property and plotted it out and realised profits there from. Therefore, the suit is definitely not barred by limitation.

13. Now, we shall look at the decisions relied on by the learned counsel for the revision petitioner. In Jamna Kuer v. Lal Bahadur, AIR 1950 F.C 131 the Federal Court held that where there is an error apparent on the face of the record, whether the error occurred by reason of the counsel's mistake, it is not a circumstance which can affect the exercise of Court's review jurisdiction. There is no quarrel with this proposition, but none of these circumstance has been made out in this case.

14. In Jagjivandas Bikhabhai v. Sumanbhai Narottamdas, AIR 1967 Guj. 1, the Gujarat High Court held that though it was well-settled that a plaintiff who fails to establish his case can yet get a decree on the case of the defendant, he would not be entitled to get the relief if his claim was barred by limitation. This decision only reinforces the case of the respondents 1 and 2. In the instance it has already been demonstrated that the suit is not barred by time. This decision does not come to the aid of RPI.

15. In Ram Surat v. Shitla Prasad, AIR 1975 All. 270, the Allahabad High Court held that where an important piece of evidence was missed to be considered review was maintainable. This decision also does not help RP1.

16. In Mt. Rukhmabai v. Ganpatrao, AIR 1932 Nag. 177, it was held that an omission to notice a particular provision of law is a satisfactory ground for entertaining an application for review. As already stated the question of limitation is only in favour of respondents 1 and 2.

17. In Karim Ismail v. Abdul Rahiman, AIR 1953 Bom. 353 it was held that though a plea of limitation is taken for the first time in an appeal though not taken in Trial Court the lapse is not material and the Appellate Court must consider it. It has been considered in favour of respondents 1 and 2.

18. In Messrs. Trojan & Company v. Rm. N.N Nagappa Chettiar., AIR 1953 SC 235 the Supreme Court held that the decision of a case cannot be based on grounds outside the pleadings of the parties and without an amendment the Court cannot grant the relief not asked for. In the instant case, the written statement sets out the case of loan and both the Courts accepted it.

19. In Om Prakash v. Ram Kumar, 1991 (1) SCC 441 the Supreme Court held that the plaintiff cannot place new cause of action on plea of defendant unless he amends the plaint or files separately. No new cause of action has been placed, the basis of loan is found in the same suit documents Exs-A1 to A4. So this decision will not help.

20. In the decision reported in Shanmugasundara Nadar v. Tamil Nadu Housing Board, 1988 (2) L.W 57 relied on by the learned Senior Counsel on the other hand the following paragraphs are relevant:

“(iii) When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred, for, the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay(vide: Collector, Land Acquisition, Anantnog v. Ms Kariji This Court wrongly preferred technical consideration.

….The power to review is a restricted power which authorises the Court to look through the judgment not in order to substitute a fresh or second judgment but in order to correct it or improve it because some material which it ought to have considered had escaped consideration or failed to be placed before it for any other reason or because it suffers from a patent error which cannot be sustained by any process of reasoning. The Court cannot under cover of review arrogate to itself the power to decide the case over again because it feels then that the assessment of evidence etc., done formerly was faulty or even incorrect. An erroneous view of evidence or law is not a ground for review. A wrong exposition of the law, a wrong application of the law and a failure to apply the correct law have been held to be not sufficient for review. If the Court was aware of what it was doing, even if the decision was erroneous, no review lies. “

21. In this case while deciding the second appeal this Court was aware that the relief that was granted was not what the plaintiff had asked for. But yet, it was granted since the defendant had admitted it and both the parties were aware of this alternative case between them. Further and more importantly the two Courts of fact found that it was a loan. The relief was also granted because on the oral and documentary evidence placed before the Court it was evident that the receipt of loan was admitted. The liability to repay the one-fifth share of profits was also not disputed, on the other hand it was categorically acknowledged. It was clear that the review petitioner after taking advantage of the loan given by the respondents 1 and 2 and after enriching himself with the aid of the said loan should be made to return it as per the agreement and as admitted by him, in the interest of justice. (Italics given)

22. As held by the learned Judge in the decision relied on behalf of the respondents when substantial justice and technical consideration are pitted against each other substantial justice deserves to be preferred. It is not open to the revision petitioner to say that injustice has been done to him because he has been made to repay what he owes to the respondents 1 and 2. The question of limitation was not urged at the time of second appeal. Since the question of limitation is one of law, the review petitioner was permitted to advance this plea to show that there was an error apparent. The scope of review is limited yet this question has been dealt with in detail only to show that the suit is not barred by limitation and that the judgment does not need to be rectified; and there is neither “injudiciousness nor arbitrariness in the approach”. RPI has not pointed out to the existence of either the provisions of O 47, R.1, C.P.C or the three principles spelt out in para No. 1 of the judgment.

23. The question regarding respondents 1 and 2 waiving their right to plead that it is a loan transaction is not a question that falls for review. In the judgment under review it has been held that this relief is inconsistent with the pleadings and yet the relief was granted, for the reasons already stated above. The RPI's complaint, as voiced by the counsel appears to be that the respondent's claim would have been settled had they only waited, but they chose to go to Court. However, what is owed, must be paid, there can be no hedging. The records, without delving deep, reveal the case of a loan which is not time-barred. The pleadings of RPI, his evidence and the factual findings of the Courts below were borne in mind and the alternative relief was granted inspite of the inconsistent pleadings of the respondents 1 and 2 in order to justice and the anxiety to avoid injustice.

24. In these circumstances, there is no need for review. The review petition is, therefore, dismissed with costs of Rs. 5000.