Bombay High Court
Avinash Kesari Mali vs Laxmikant R. Sawant on 16 December, 2022
Author: Anuja Prabhudessai
Bench: Anuja Prabhudessai
P.H. Jayani 13 RPAST23651.2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
REVIEW PETITION (ST.) NO.23651 OF 2022
IN
APPEAL FROM ORDER NO. 438 OF 2022
Avinash Kesari Mali ... Petitioner
v/s.
Laxmikant R. Sawant .... Respondent
Mr. G.N. Salunkhe i/b. Mr. Makarand Raut a/w. Hima Khuman
for the Petitioner.
Mr. Sanjay Jain a/w. Ms. Aanchal Singhania, Mr. Vishal Thaker
and Ms. Anjali Trivedi i/b. M/s. V. Thakers Advocates for the
Respondent.
CORAM: SMT. ANUJA PRABHUDESSAI, J.
DATED : 16th DECEMBER, 2022.
P. C. :-
1. Heard Mr. Salunkhe, learned counsel for the Petitioner and Mr. Sanjay Jain, learned counsel for the Respondent.
2. The Petitioner herein has sought review of the order dated 06/07/2022 in Appeal from Order No.438/2022. By the said order, this Court had allowed the Appeal and set-aside the impugned order dated 05/03/2022 to the extent of rejecting prayer clause (b). 1/12
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3. The brief facts necessary to decide the review petition are as under. The Respondent herein, hereinafter referred to as the Appellant, had filed Appeal from Order assailing dismissal of notice of motion in S.C. Suit No.1667 of 2019. The dispute was in respect of tenanted premises admeasuring 135 sq. ft. in plot no. 633, Village Shimpoli, of Saraswati Gupta. The predecessor of the Appellant had decided to redevelop the property. Saraswati Gupta had entered into an agreement with the predecessor of the Appellant consenting redevelopment. Said Saraswati Gupta, by deed of assignment dated 20/04/2007 assigned her rights in respect of the said premises in favour of the Petitioner herein. The Appellant has filed a suit for eviction of the Petitioner on the ground of subletting whereas the Petitioner has filed a suit for declaration of his tenancy rights. Both these suits are pending trial.
4. Since the Petitioner refused to vacate and handover possession of the said premises for the purpose of redevelopment, the Appellant filed a suit with a notice of motion. The said notice of motion was dismissed by the Trial Court. In an appeal from order, this Court by order dated 06/07/2022, which is sought to be reviewed, held that the Petitioner was bound by the terms of the agreement between Saraswati Gupta and the predecessor of the Appellant and accordingly she was liable to 2/12 P.H. Jayani 13 RPAST23651.2022.doc vacate and handover possession of the suit premises temporarily for a period of 24 months for the purpose of redevelopment. It was held that the question whether the Petitioner was a trespasser or a tenant would be adjudicated in the suit. Hence, the following order was passed:-
" (ii) The defendant is directed to vacate the suit premises and hand over vacant possession of the suit premises within a period of four weeks from the date of uploading of this order.
(iii) The Plaintiff shall hand over to the defendant possession of shop no.2 having carpet area of 135 sq.ft. as per the sanctioned plan, within 24 months from the date the defendant vacates the premises.
(iv) The Plaintiff shall ensure that the columns of the shop no.2 are in alignment with the walls of the premises.
(v) The Plaintiff shall deposit before this Court Rs.1,20,000/- per annum towards compensation of alternative accommodation from the date the defendant vacates the premises till he is put in possession of the new premises.
(vi) The Plaintiff shall not claim any equity in his favour on the basis of the interim relief granted. "
5. The Petitioner challenged the said order in Special Leave to 3/12 P.H. Jayani 13 RPAST23651.2022.doc Appeal No.14452/2022, which came to be dismissed on 12/09/2022. The order in Special Leave to appeal reads thus :-
"Having heard learned counsel for the respective parties and, more particularly the operative part of the impugned judgment and order in para 14, we are of the opinion that the High Court has passed a balanced order protecting the rights of both the parties.
Hence, no interference of this court is called for in exercise of powers under Article 136 of the Constitution of India.
The Special Leave Petition stands dismissed. However, it is reiterated that the eviction of the petitioner shall be subject to the ultimate outcome of the proceedings pending before the Small Causes Court.
We request the learned Small Causes Court to finally decide and dispose of the pending proceedings at the earliest, preferably, within a period of 12 months from the date of receipt of the present order.
Pending application stands disposed of."
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6. The Petitioner has sought review of order dated 06/07/2022 on the ground that by letter dated 13/09/2022 the Appellant, without obtaining revised IOD and making changes in sanction plan/IOD, once again called upon the Petitioner to vacate the suit structure failing which the Appellant has threatened to initiate contempt proceedings. The Petitioner replied to the said letter vide reply dated 15/09/2022. The Petitioner stated that after dismissal of SLA he made enquiries with MCGM-Building Proposal Department and learnt that IOD was sanctioned in favour of the Appellant on 19/03/2021. The said IOD has come to an end on 18/03/2022. The Petitioner states that unless the Appellant obtains fresh IOD, the Petitioner is not duty bound to vacate the suit premises and hence the order to that extent, needs to be modified. It is contended that the Petitioner has discovered new and important matter or evidence, which was not within his knowledge despite exercise of due diligence.
7. Learned counsel for the Petitioner states that the IOD has lapsed and that the Petitioner is not liable to handover possession of the suit premises unless the Appellant obtains the IOD. He further submits that the Appellant has also not come forward to execute the agreement, 5/12 P.H. Jayani 13 RPAST23651.2022.doc which is a mandatory condition of the IOD.
8. Learned counsel for the Appellant submits that the review is not maintainable in view of dismissal of Special Leave to Appeal by speaking order. He has relied upon the decision in Khoday Distilleries Limited (now known as Khoday India Limted) and ors. v/s. Sri. Mahadeshwara Sahakara Sakkare Karkhane Limited, Kollegal (2019) 4 SCC 376 to contend that though the doctrine of merger is not applicable, review of the order would be subversive of the judicial discipline. Learned counsel for the Appellant further submits that the IOD was obtained on 19/03/2021 and that the amended plans submitted by the Appellant in view of clause 4 of the order dated 06/07/2022, are processed on 19/10/2022. He further submits that IOD does not lapse after one year and it can be renewed on payment of necessary charges. It is stated that no grounds are made out for review of the order dated 06/07/2022.
9. I have perused the records and considered the submissions advanced by the learned counsel for the respective parties.
10. In Khoday Distilleries Limited (supra), a three Judge Bench of the 6/12 P.H. Jayani 13 RPAST23651.2022.doc Hon'ble Supreme Court while considering the question whether the review petition is maintainable before the High Court seeking review of a judgment against which a special leave petition has already been dismissed, has summed up the legal position as under :-
26) From a cumulative reading of the various judgments, we sum up the legal position as under:
(26.1) The conclusions rendered by the three-Judge Bench of this Court in Kunhayammed v. State of Kerala, (2000) 6 SCC 359 and summed up in paragraph 44 are affirmed and reiterated.
(26.2) We reiterate the conclusions relevant for these cases as under:
"(iv) An order refusing special leave to appeal may be a non-speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed.
(v) If the order refusing leave to appeal is a speaking order, i.e. gives reasons for refusing the grant of leave, then the order has two implications.
Firstly, the statement of law contained in the order is a declaration of law by the Supreme 7/12 P.H. Jayani 13 RPAST23651.2022.doc Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting the special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties.
(vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation.
(vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before the Supreme Court the jurisdiction of High Court to entertain a review petition is lost thereafter as provided by sub-rule (1) of Order 47 Rule 1 of CPC."
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P.H. Jayani 13 RPAST23651.2022.doc (26.3) Once we hold that law laid down in Kunhayammed is to be followed, it will not make any difference whether the review petition was filed before the filing of special leave petition or was filed after the dismissal of special leave petition. Such a situation is covered in para 37 of Kunhayammed case."
11. In the instant case, since the Hon'ble Supreme Court has refused special leave to appeal, it would not attract the doctrine of merger. Nevertheless, the Hon'ble Supreme Court had not dismissed the SLA in limine. The reasons assigned by the Hon'ble Supreme Court in the order would bind the parties as well as the court in subsequent proceedings by way of judicial discipline and taking a contrary view would be subversive of judicial discipline.
12. Be that as it may, the power of review under Order 47 Rule 1 of CPC can be exercised (i) upon discovery of new and important matter or evidence which after exercise of due diligence was not within his knowledge or could not be produced; (ii) when there is some mistake or error apparent on the face of the record in the judgment under review; or (iii) for any other sufficient reason. 9/12
P.H. Jayani 13 RPAST23651.2022.doc
13. In the instant case, as noted earlier, the Petitioner has sought review on the ground that the Appellant has not obtained IOD and has not entered into agreement with the Petitioner. These grounds were not raised in the appeal. It is contended that it is only after dismissal of the SLA that the Applicant made enquiries and learnt that the IOD had lapsed. It is contended that this fact was not within his knowledge and could not be discovered despite exercise of due diligence.
14. In Chander Kanta Bansal vs. Rajinder Singh Anand , (2008) 5 SCC 117, the Hon'ble Supreme Court while considering the meaning of the word 'due diligence' has observed that " the words 'due diligence' have not been defined in the Code. According to Oxford Dictionary (Edn. 2006), the word "diligence" means careful and persistent application or effort. "Diligent" means careful and steady in application to one's work and duties, showing care and effort. As per Black's Law Dictionary (18th Edn.), "diligence" means a continual efforts to accomplish something, care; caution; the attention and care required from a person in a given situation. "Due diligence" means the diligence reasonably expected from, and ordinarily exercised by a person who seeks to satisfy a legal requirement or to discharge an obligation. According to Words and Phrases by Drain-Dyspnea 10/12 P.H. Jayani 13 RPAST23651.2022.doc (Permanent Edn. 13-A) "due diligence", in law, means doing everything reasonable, not everything possible. "Due diligence" means reasonable diligence; it means such diligence as a prudent man would exercise in the conduct of his own affairs."
15. In the instant case, as noted above, the Petitioner had not raised the defence of lapsing of the said IOD either in the written statement filed before the Trial Court or in the Appeal from Order. Apart from the bare statement that the information that the IOD has lapsed was not known to the Petitioner despite due diligence, no justifiable reasons are given for not raising this defence or taking prior steps to seek such information. The Appellant has stated that in view of clause (iv) of para 14 of the order under review, the Appellant had to submit amended plans, which are stated to have been processed. As regards execution of agreement, no such argument was raised in the appeal. Moreover, the Petitioner is required to vacate the premises for a temporary period of 24 months. The question whether he is a tenant or trespasser is pending adjudication and execution of agreement will be subject to such adjudication.
16. The application for review is beyond the scope and ambit of 11/12 P.H. Jayani 13 RPAST23651.2022.doc Order 47 Rule 1 of CPC. The records indicate that the Petitioner has not complied with the order has filed the review application only after filing of the execution proceedings. The attempt of the Petitioner is only to delay execution of the order. The Petition is devoid of merits and is accordingly dismissed with costs of Rs.50,000/- to be deposited in Juvenile Justice Fund Account within a period of two weeks from the date of uploading of the order. Details of Juvenile Justice Fund account are as under:-
Name of Account Holder DY-COMMI. (CHILD DEVELOP) AND MEM.SECY. & TRY M S CHILD FUND Account No. 11099464354 Name and Address of State Bank of India, Pune Main Bank Branch, Collector Office Compound, Pune Branch Code 454 IFSC SBIN0000454 MICR 411002002 PREETI H (SMT. ANUJA PRABHUDESSAI, J.) JAYANI Digitally signed by PREETI JAYANI Date: 2022.12.22 18:56:47 +0530 12/12