Calcutta High Court (Appellete Side)
For The vs Shri Ratanlal Singh] And on 22 December, 2011
Author: Dipankar Datta
Bench: Dipankar Datta
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22.12.2011 C.O. 4105 of 2011
Mr. Ashis Chandra Bagchi
Mr. P.K. Mitra
......... for the petitioner.
Mr. Pratap Chatterjee
Mr. Aniruddha Chatterjee
Mr. Nilay Sengupta
......for the opposite party.
1.The opposite party and her predecessor-in-interest (hereafter the plaintiffs) sued the petitioner (hereafter the defendant) for recovery of possession of the suit property for building/rebuilding purpose. The suit property was described in the schedule of the plaint as follows:
"ALL THAT two rooms situated on north-eastern corner of the first floor of the outhouses of premises No. 12, Shakespeare Sarani, Kolkata - 700 071 and butted and bounded as follows:
ON THE NORTH : By remaining portion of the out houses. ON THE SOUTH : By room on the First floor out houses.
ON THE EAST : By Tripura Bhawan.
ON THE WEST : By new building under construction."
2. The suit was decreed by the trial Court on May 15, 2006. The petitioner challenged the decree before 2 the tribunal constituted under the West Bengal Land Reforms and Tenancy Tribunal Act. By an order dated February 9, 2007 passed by the tribunal, the decree was set aside and the suit remanded to the trial Court for fresh decision.
3. The order of the tribunal was challenged in by the plaintiffs before this Hon'ble Court by filing a writ petition under Article 226 of the Constitution.
4. In course of consideration of the writ petition, the Division Bench had appointed a surveyor for measuring the area under occupation of the defendant. The surveyor reported that the defendant was occupying 392.05 sq.ft. of area.
5. A Division Bench of this Court by judgment and order dated April 17, 2008 allowed the writ petition.
The order impugned dated February 9, 2007 passed by the tribunal was set aside and the decree passed by the trial Court affirmed with certain modification. It was held that the plaintiffs do get a decree for recovery of khas possession of the suit property by evicting the defendant. He was directed to quit, vacate and deliver peaceful possession of the suit property measuring 218.63 sq.ft. within thirty days 3 from the date of the order, in default whereof the plaintiffs would be at liberty to execute the decree in accordance with law. It was further observed that if the defendant vacates and delivers peaceful vacant possession of the suit property, the plaintiffs shall demolish the suit property within two months from the date of taking delivery of possession and thereafter, within two months, shall deliver vacant possession of the room to the defendant in the building already constructed by them, the area of which shall be 218.66 sq.ft. It was further held that in the event of default, the defendant would be entitled to take effective steps against the plaintiffs before the appropriate authority for restoration of possession in accordance with law.
6. The judgment and order dated April 17, 2008 was carried by the defendant to the Supreme Court by filing a special leave petition. Upon hearing learned counsel for the parties, the Supreme Court disposed of the special leave petition by an order dated July 28, 2008 which reads as follows:
"The High Court had appointed a Local Commissioner to ascertain the exact measurement of the area under the occupation of the petitioner-tenant. The Local 4 Commissioner opined that the total area under the occupation of the petitioner is 392.05 sq.ft. The High Court in its impugned order has found that the area under the occupation of the petitioner is 218.63 sq.ft. Learned senior counsel appearing on caveat makes a statement that the order of the High Court be modified to the extent that the area under the occupation of the petitioner be taken as 392.05 sq.ft., as opined by the Local Commissioner, and after reconstruction, as directed by the High Court, the petitioner shall be given the area measuring 392.05 sq.ft.
We order accordingly.
With this modification, the special leave petition is disposed of."
7. Immediately after the suit was decreed by the trial Court, the plaintiffs had levied execution seeking recovery of khas vacant peaceful possession of the suit property as per the schedule, in tabular form, on August 1, 2006.
8. After disposal of the special leave petition, the plaintiffs had filed an application before the Division Bench for enforcing the order of the Supreme Court. Upon hearing the parties and on consideration of Order XLV Rule 15, Civil Procedure Code, the application was disposed of on September 3, 2008 with the following order:
"In view of above we direct that the judgment passed by this Bench on 17th April, 2008 in WPLRT No.148 of 2007 be modified to that extent as has been specifically stated in the 5 order passed by the Hon'ble Supreme Court in SLP (Civil) No.16730 of 2008 dated 28th July, 2008 and to be transmitted in terms of the Order XLV Rule 15 (1) & (2) of the Code of Civil Procedure for execution of the same. Department is directed to make necessary correction in the judgment and order dated 17.04.2008 in WPLRT No.148 of 2007 passed by this Bench in terms of the Hon'ble Apex Court's order and issue fresh certified copy, if applied for."
9. In terms of the aforesaid order, the learned Judge of the trial Court corrected the decree by an order dated December 16, 2008.
10. On or about July 22, 2011, the plaintiffs filed an application before the trial Court, inter alia, praying for amendment of the original judgment and decree dated May 15, 2006 in the manner as stated in the schedule written thereunder, reading as follows:
"All that the entire First Floor Outhouses measuring 392.05 sq.ft. situated on the north eastern portion of the premises No. 12, Shakespeare Sarani, Police Station Shakespeare Sarani, Kolkata-700 071 and butted and bounded as follows:
On the North : The Premises No.14 Shakespeare Sarani, Kolkata.
On the South : The side open space of the premises No.12, Shakespeare Sarani, Kolkata-700 071. On the East : The Tripura Bhawan in Pretoria Street.
On the West : Partly the open space and partly the new
building at the Premises No.12,
Shakespeare Sarani, Kolkata-700 071." 6
11. It is noted that during its pendency, the first plaintiff passed away without being able to reap the fruits of the decree.
12. The learned Judge of the executing Court considered the application of the plaintiffs dated July 22, 2011 on September 19, 2011. By order no.54 passed on that date, the learned Judge allowed the application of the plaintiffs and granted liberty to amend the petition of execution in terms of prayer made therein. In terms of the order, the second plaintiff being the opposite party herein filed an application for execution of the decree on November 2, 2011.
13. Soon thereafter, the defendant on December 7, 2011 made an application before the executing Court under Section 151 of the Code praying for a direction on the plaintiffs to record the proper schedule in view of the judgment and decree of the High Court and the order of the Supreme Court failing which the application for execution may be rejected.
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14. Since one of the plaintiffs had passed away, the opposite party filed a written objection to the aforesaid application.
15. The learned Judge of the executing Court by order no.58 dated January 13, 2011 rejected the application dated December 7, 2011 on contest and fixed December 16, 2011 for delivery of possession.
16. This order is the subject matter of challenge in this revisional application under Article 227 of the Constitution.
17. Mr. Bagchi, learned advocate for the defendant contends that the decree of the trial Court having merged in the order of the Supreme Court, the executing Court could not have corrected the decree. Referring to Section 152 of the Code, he contends that it is only arithmetical or clerical errors that can be corrected by the Court that passed the decree and the learned Judge of the executing Court erred in the exercise of his jurisdiction in granting the prayer of the opposite party.
18. He takes specific objection to insertion of the words "the entire first floor outhouses" in the schedule of 8 the suit property by virtue of the order dated September 19, 2011. According to him, the learned Judge of the executing Court failed to exercise jurisdiction vested in him by disallowing the application dated December 7, 2011 of the defendant by the impugned order.
19. He also contends that the remedy of the opposite party lies in obtaining a clarification from the Supreme Court. Relying on the decisions of the Supreme Court reported in AIR 1974 SC 1380 [M/s. Gojer Brothers (P) Ltd. v. Shri Ratanlal Singh] and AIR 2003 Supreme Court 4179 (State of Punjab v. Darshan Singh), he urges that the effective decree as it stands today is that of the higher appellate Court and nothing can be inserted in the decree at this stage.
20. He, accordingly, prays for an order to correct the error committed by the learned Judge of the executing Court.
21. Mr. Chatterjee, learned senior advocate appearing for the opposite party vehemently opposes the application. According to him, the concept of merger does not apply here and the decisions cited by Mr. 9 Bagchi have no manner of application. The Court's attention is drawn to the report of the Commissioner which was taken into consideration by the Supreme Court. The Commissioner having found the defendant to occupy 392.05 sq.ft. on the first floor of premises no.12 Shakespeare Sarani, which is available area on the entire first floor of the said premises, attempt of the defendant to seek interference of this Court at this stage when the lis has attained finality by reason of the order of the Supreme Court, according to him, is nothing but a strategy to kill time.
22. He also invites the Court's attention to ground no. D urged by the defendant before the Supreme Court and submits that his claim that he occupied 1104 sq.ft. of area was not accepted and the order of the High Court directing him to vacate having been upheld even by the Supreme Court, he can have no cause for grievance warranting interference by this Court in exercise of power under Article 226 of the Constitution. The defendant, he further submits, is under a liability to vacate the suit property to the extent of area occupied by him viz. 392.05 sq.ft. and 10 is entitled to be provided with similar quantum of area in terms of the order passed by the High Court, since confirmed by the Supreme Court. He, accordingly, prays for dismissal of the revisional application.
23. I have heard learned advocates for the parties.
24. It is noted that the order dated September 19, 2011 has not been challenged by the defendant before the appropriate forum; instead, the petition under Section 151 of the Code was filed. The executing Court was right in observing that it had no power to review its order dated September 19, 2011, which was passed on contest. It is settled law that the Court would not exercise its inherent power saved by Section 151 of the Code if the party aggrieved has a remedy under the Code. The petition under Section 151 could not have been entertained by the learned Judge of the executing Court to recall his earlier order, which the defendant had not challenged before any higher forum. The learned Judge was, therefore, right in his observation.
25. However, I do not wish to dismiss the revisional application only on the ground that the petition 11 under Section 151 was not maintainable and proceed to deal with the claim raised by Mr. Bagchi on merits.
26. The argument of Mr. Bagchi on the doctrine of merger can be answered by referring to the decision of the Supreme Court reported in AIR 2000 SC 2587 (Kunhayammed v. State of Kerala). This decision discusses in detail when a judgment and/or order of a subordinate Court or tribunal would merge in the order of the Supreme Court. It would be profitable to quote the relevant passages, reading as under :
"40. A petition seeking grant of special leave to appeal may be rejected for several reasons. For example, it may be rejected (i) as barred by time, or (ii) being a defective presentation, (iii) the petitioner having no locus standi to file the petition, (iv) the conduct of the petitioner disentitling him to any indulgence by the Court,
(iv) the question raised by the petitioner for consideration by this Court being not fit for consideration or deserving being dealt with by the Apex Court of the country and so on. The expression often employed by this Court while disposing of such petitions are "heard and dismissed", "dismissed", "dismissed as barred by time" and so on. May be that at the admission stage itself the opposite party appears on caveat or on notice and offers contest of the maintainabilty of the petition.
The Court may apply its mind to the meritworthiness of the petitioner's prayer seeking leave to file an appeal and having formed an opinion may say "dismissed on 12 merits". Such an order may be passed even ex parte, that is, in the absence of the opposite party. In any case, the dismissal would remain a dismissal by a non-speaking order where no reasons have been assigned and no law has been declared by the Supreme Court. The dismissal is not of the appeal but of the special leave petition. Even if the merits have been gone into, they are the merits of the special leave petition only. In our opinion neither doctrine of merger nor Article 141 of the Constitution is attracted to such an order. Grounds entitling exercise of review jurisdiction conferred by Order 47, Rule 1 of the C.P.C. or any other statutory provision or allowing review of an order passed in exercise of writ or supervisory jurisdiction of the High Court (where also the principles underlying or emerging from Order 47, Rule 1 of the C.P.C. act as guidelines) are not necessarily the same on which this Court exercises discretion to grant or not to grant special leave to appeal while disposing of a petition for the purpose. Mere rejection of special leave petition does not take away the jurisdiction of the Court, tribunal or forum whose order forms the subject-matter of petition for special leave to review its own order if grounds for exercise of review jurisdiction are shown to exist. Where the order rejecting an SLP is a speaking order, that is, where reasons have been assigned by this Court for rejecting the petition for special leave and are stated in the order still the order remains the one rejecting prayer for the grant of leave to appeal. The petitioner has been turned away at the threshold without having been allowed to enter in the appellate jurisdiction of this Court. Here also the doctrine of merger would not apply. But the law stated or declared by this Court in its order shall attract applicability of Article 141 of the Constitution. The reasons assigned by this Court in its order expressing its adjudication (expressly or by necessary implication) on point of fact or law shall take away the jurisdiction of any other Court, tribunal or authority to 13 express any opinion in conflict with or in departure from the view taken by this Court because permitting to do so would be subversive of judicial discipline and an affront to the order of this Court. However this would be so not by reference to the doctrine of merger.
43.*** To sum up our conclusions are :-
(i) Where an appeal or revision is provided against an order passed by a Court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the sub-ordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law.
(ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages.
First stage is up to the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and special leave petition is converted into an appeal.
(iii) Doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability or merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiciton disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter.
(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 14 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 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 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 Supreme Court the jurisdiction of High Court to entertain a review petition is lost thereafter as provided by sub-rule (1) of Rule (1) of Order 47 of the C.P.C."
(underlining for emphasis by me)
27. In the present case, leave to appeal was not granted by the Supreme Court. Question of deciding any 15 civil appeal did not therefore arise. The order dated July 28, 2008 by which the special leave petition was disposed of only corrected the error in specification of the area under occupation of the defendant and declared the area that he would be entitled to in terms of the order of the Division Bench. That order has been passed not in exercise of the appellate jurisdiction of the Supreme Court but in exercise of its discretionary jurisdiction. Mr. Chatterjee is right in submitting that there is no question of merger here. The objection of Mr. Bagchi thus stands overruled.
28. Recovery of possession of the area under occupation of the defendant was sought for by the plaintiffs for building/rebuilding purpose. Although the surveyor appointed by the High Court opined that the defendant was occupying 392.05 sq.ft., the High Court in its order dated April 17, 2008 observed that the defendant was occupying 218.63 sq.ft. which, in fact, was the area of room nos. 3, 4, and 5 as indicated in his report. Be that as it may, the plaintiffs did not dispute the position and on their submission that the defendant would be entitled to 16 put in possession of 392.05 sq.ft., the special leave petition was disposed of. From the materials on record it is clear that the plaintiffs in terms of the order of the Division Bench are obliged to put the defendant in possession of an area measuring 392.05 sq.ft. in the building already constructed by them. It matters little now as to whether the defendant was in occupation of any portion in excess of 392.05 sq.ft., contrary to what was found by the surveyor. The defendant after vacating the suit property is not entitled to be allotted space in the same place that is being occupied by him. His claim that he had been occupying 1104 sq.ft. of area was not accepted by the Supreme Court and, therefore, any claim to the contrary is unworthy of consideration. The defendant all along has successfully thwarted the decree from being executed for number of years by initiating various proceedings thereby even depriving one of the plaintiffs to reap its fruit. I do not consider that interest of justice demands interference in exercise of the power of superintendence under Article 227 of the Constitution. That power is to be exercized 17 sparingly and in exceptional cases. The power is not to be exercised like a bull in a china shop to correct all errors of judgment of a Court acting within the limits of its jurisdiction. The correctional jurisdiction can be exercised in cases were grave dereliction of duty is found or where the subordinate Court acts in flagrant abuse of fundamental principles of law and justice [see: Jai Singh and ors. v. Municipal Corporation of Delhi and ors. : (2009) 10 SCC 385]. No exceptional case has been set up and I find no reason to interfere.
29. The revisional application stands dismissed, without order for costs.
30. The learned Judge shall fix a further date for delivery of possession immediately after receiving a copy of this order.
Urgent photostat certified copy of this order, if applied for, shall be furnished to the applicant at an early date.
(DIPANKAR DATTA, J.)