Andhra Pradesh High Court - Amravati
Uppalapati Vivekanandaandstyling ... vs Santhi Ashramam, Rep By Its Secretary ... on 27 November, 2024
APHC010364662005
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3397]
(Special Original Jurisdiction)
WEDNESDAY ,THE TWENTY SEVENTH DAY OF NOVEMBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA
KRISHNA RAO
I.A.No.5 of 2024 in
SECOND APPEAL NO: 860/2005
Between:
1. UPPALAPATI VIVEKANANDAANDSTYLING HIMSELF AS GAJULA
VIVEKANAN, S/O.LATE RADHA KRISHNA CHOWDARY, HINDU
R/O.YOGASHRAM, PEDA WALTAIR, VISAKHAPATNAM-7
And 4 others
...PETITIONERS/APPELLANTS/
DEFENDANTS
AND
1. SANTHI ASHRAMAM REP BY ITS SECRETARY P LAKSHMI A
SOCIETY, registered under Societies Registration Act 21/1860, having
its main mission of peace at Thotapalli Hills, Via Sankavaram, East
Godavari District.
...RESPONDENT/APPELLANT/
PLAINTIFF
IA NO: 5 OF 2024
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased to
take up the present review Application in I.A. No: 2 of 2024 in SA no: 860 of
2005 and dispose of the same on merits by excluding the period spent in
prosecuting the litigation before the Hon'ble Supreme Court previously.
Counsel for the Petitioners:
1. P V A PADMANABHAM
Counsel for the Respondent:
1. V R MACHAVARAM, REP. BY P. SRI RAGHU RAM,
SENIOR COUNSEL
The Court made the following:
Order:
The petitioners filed the application under Section 14 of the Limitation
Act, 1963 with a prayer to take up the present review application in I.A.No.2 of
2024 in S.A.No.860 of 2005 and dispose of the same on merits by excluding
the period spent in prosecuting the litigation before the Supreme Court as
prayed in the affidavit of the petitioners.
2. The brief averments in the affidavit of the 3rd petitioner are as follows:
(i) It is contended that the 2nd petitioner is his mother and the 4th and
5th petitioners are his brother and sister, respectively. The application in
I.A.No.2 of 2024 is filed seeking to review the judgment dated 01-11-2023 in
S.A.No.860 of 2005 for the grounds set out in the memorandum of review
petition. The above review is filed in time and there is no delay in filing the
same before this Court and he is legitimately entitled for exclusion of the
period spent in prosecuting the proceedings before the Supreme Court in
S.L.P.No.27400/2023 and the subsequent Review Petition (C) No.443 of 2024
for the purpose of maintainability of the present review.
(ii) The 3rd petitioner further contended that this Court dismissed the
above second appeal vide judgment dated 01-11-2023 and the copy of the
order was dispatched and made available to them by the Registry of this Court
on 29-11-2023. They approached the Supreme Court by way of an S.L.P.,
filed immediately i.e. on 07-12-2023 and the same was taken on file as
S.L.P.No.27400/2023 on 10-12-2023. The Supreme Court vide order
dated 14-12-2023 dismissed the S.L.P. at the stage of admission itself.
On 12-01-2024, they preferred Review Petition (C) No.443/2024 before the
Supreme Court seeking to review the order dated 14-12-2023 in
S.L.P.No.27400/2023 and the same was subsequently dismissed by the Apex
Court by an order dated 05-9-2024 at the stage of admission itself. Thus, the
main S.L.P. as well as the review petition (C) were dismissed at the stage of
admission and as such, it has no impact on the present review before this
Court.
(iii) The 3rd petitioner further contended that the 3rd petitioner pursued
the lis before the Supreme Court in S.L.P and by a subsequent review petition
referred above till 05-9-2024, diligently, bona fidely and in good faith. Further,
the grounds of present review could not be noticed and were not pursued by
them before the Supreme Court and the S.L.P was not decided on merits and
was dismissed at the stage of admission. There is no delay on their part in
approaching this Court in the present review since the period spent in
prosecuting the lis before the Supreme Court, as above, is to be excluded for
the purpose of maintainability of the review.
(iv) The 3rd petitioner further contended that in view of the present
application under Section 14 of the Limitation Act, he has also filed a memo
seeking to withdraw the application in I.A.No.1 of 2024 filed under Section 5 of
the Limitation Act. It is prayed that this Court may be pleased to take up the
present review application in I.A.No.2 of 2024 in S.A.No.860 of 2005 and
dispose of the same on merits by excluding the period spent in prosecuting
the litigation before the Supreme Court.
3. Brief averments in the counter filed by the respondent/plaintiff are as
follows:
(i) It is contended that the petitioners have filed a miscellaneous
application before the Supreme Court seeking extension of time to vacate the
premises which was granted to them by the last order of the Supreme Court
dated 04-10-2024 in M.A.No.2047 of 2024 in S.L.P.No.26400 of 2024 up to
30-11-2024, subject to filing undertaking and the petitioners have filed
an unconditional undertaking on 17-10-2024. The present affidavit of the
petitioners suppresses the aforesaid information from the notice of this Court
which itself shows how bona fide the petitioners are prosecuting the
proceedings.
(ii) It is further contended that this Court was inclined to adjudicate on
the condone delay application first. Thereafter, the petitioners have taken
time and have filed the present application under Section 14 of the Limitation
Act and have also filed a memo stating that they would not press the
application in I.A.No.1 of 2024 filed under Section 5 of the Limitation Act.
(iii) It is further contended that the petitioners admitted that the present
review petition was filed on 06-4-2024 along with an application for
condonation of delay i.e. I.A.No.1 of 2024. It is evident that the present review
petition is filed after dismissal of the S.L.P on 14-12-2023 as is evident from
the three orders of the Supreme Court dismissing the S.L.P on 14-12-2023,
dismissing the review petition by order dated 05-9-2024 and granting two
months' extension to the petitioners by order dated 04-10-2024. Thus, after
availing benefits of the said orders, the petitioners are now pressing the
present review petition seeking condonation of delay under Section 14 of the
Limitation Act.
(iv) It is further contended that Section 14 of the Limitation Act says
exclusion of time in proceeding bona fide in a Court without jurisdiction. At the
outset, it cannot be said that the remedies of preferring S.L.P., filing of review
petition in the S.L.P., seeking of extension of time to vacate the schedule
premises before the Supreme Court were all before a wrong Court which had
no jurisdiction to entertain the proceedings and as such, Section 14 of the
Limitation Act on the face of it, has no application at all. If the application of
the petitioners under Section 14 of the Limitation Act is accepted, it would
tantamount to accepting that the Supreme Court had no jurisdiction to
entertain the S.L.P under Article 136 of the Constitution of India and all the
three orders passed by the Supreme Court were without jurisdiction, which is
highly preposterous and absurd, to say the least. It is an obvious attempt of
the petitioners to wriggle out of the orders of the Supreme Court and the
undertaking given by them before the Supreme Court and with that in mind,
they seek to claim that the proceedings in S.L.P and review petition were
prosecuted bona fide before the wrong Court. By no stretch of imagination,
such a contention can be sustained in law. Therefore, the petitioners are
neither diligent nor bona fide nor are acting in good faith but are indulging in
forum shopping and are attempting to wriggle out of the orders of the
Supreme Court and their undertaking given before the Supreme Court, which
cannot be permitted by this Court. Even the review petition lacks any merit as
observed by the Supreme Court and none of the grounds raised in the present
review petition have any substance. Both the application filed by the
petitioners under Section 14 of the Limitation Act and the review application
are liable to be rejected with exemplary costs as the petitioners have been
harassing this respondent in spite of succeeding in the litigation in several
rounds right up to the Supreme Court.
4. Heard Sri P.V.A. Padmanabham, learned counsel for the petitioners/
appellants and Sri P. Sri Raghu Ram, learned Senior Counsel, representing
Sri V.R. Machavaram, learned counsel for the respondent/ respondent.
5. Now, the points for determination in the present application are:
(1) Whether Section 14 of the Limitation Act is applicable to the
present case ?
(2) Whether there are any grounds to allow the petition filed by the
petitioners ? and
(3) To what extent ?
6. Points 1 and 2: Whether Section 14 of the Limitation Act is applicable
to the present case and whether there are any grounds to allow the petition
filed by the petitioners ?
The undisputed facts are that the suit in O.S.No.812 of 1996 for
cancellation of gift deed dated 21-12-1949 and recovery of possession was
filed by the respondent/plaintiff against the 1st petitioner herein/deceased sole
defendant and the said suit was dismissed on merits by the learned trial Judge
on 25-9-1999. Aggrieved thereby, the respondent herein filed A.S.No.736 of
2000 before the first appellate Court and the learned first appellate Judge
allowed the appeal by setting aside the finding given by the learned trial
Judge. Later, the 1st petitioner herein/deceased sole defendant filed
S.A.No.860 of 2005 before this Court. During the pendency of the second
appeal, the petitioners 2 to 5/appellants 2 to 5 were brought on record as legal
representatives of the deceased sole appellant as per Court order dated
27-12-2021 in I.A.No.3 of 2013. On hearing both sides, the second appeal
was dismissed by this Court on merits on 01-11-2023 by directing the
petitioners herein to deliver the vacant possession of the suit schedule
property within two months from 01-11-2023. Aggrieved thereby, the
petitioners herein filed S.L.P.No.27400 of 2023 and the same was dismissed
by the Apex Court on 14-12-2023 on hearing both sides, by directing the
petitioners herein to vacate the suit schedule property and on the request
made by the petitioners herein on application, the time was extended till
30-9-2024, provided the petitioners have to give unconditional undertakings
that they will vacate the schedule premises by 30-9-2024 and the petitioners
have also given an undertaking before the Apex Court. After dismissal of
special leave petition before the Apex Court, again the petitioners herein filed
a review petition before the Apex Court in Review Petition (C) No.443/2024 on
12-01-2024, subsequently a miscellaneous petition is filed before the Apex
Court by the petitioners herein by giving an unconditional undertaking by all
the petitioners before the Apex Court that they will vacate the schedule
premises by 30-4-2024. Pending revision petition before the Apex Court, the
present review petition was filed before the Registry of this Court on
06-4-2024 and that review petition was returned by the Registry on the same
day. Subsequently on 05-9-2024, the review petition filed by the petitioners
herein before the Apex Court was dismissed. After dismissal of the review
petition by the Apex Court, the present review application was resubmitted
before the Registry of this Court on 12-9-2024 along with a petition in I.A.No.1
of 2024 filed under Section 5 of the Limitation Act to condone the delay of 127
days in filing the review application. After filing of the application under
Section 5 of the Limitation Act, the respondent herein filed a counter in the
petition in I.A.No.1 of 2024 filed under Section 5 of the Limitation Act and the
said I.A.No.1 of 2024 (petition filed under Section 5 of the Limitation Act) was
posted for hearing and subsequently, the petitioners herein filed a memo for
withdrawing the petition in I.A.No.1 of 2024 filed under Section 5 of the
Limitation Act and they have withdrawn the petition in I.A.No.1 of 2024 filed
under Section 5 of the Limitation Act and subsequently, the petitioners also
given an undertaking before the Apex Court that they will vacate the schedule
premises by 30-11-2024. At this stage, the petitioners herein filed this present
application under Section 14 of the Limitation Act. The above series of facts
clearly reveal that the petitioners wanted to prosecute the review petition
subsequent to dismissal of S.L.P and review petition by the Apex Court and
they resubmitted the review petition along with a petition under Section 5 of
the Limitation Act to condone the delay of 127 days on 12-9-2024. It seems
that the petitioners were defeated in S.L.P and also review petition before the
Apex Court and to drag on the proceedings, the petitioners herein filed this
present application.
7. The material on record reveals that aggrieved against the judgment
and decree passed in the second appeal by this Court on 01-11-2023, the
petitioners herein filed an S.L.P and the same was dismissed by the Apex
Court on hearing both sides, subsequently the review petition filed by the
petitioners is also dismissed and subsequently, the petitioners intend to
prosecute the review petition along with a petition filed under Section 5 of the
Limitation Act. If the petitioners intend to file a review petition against
the judgment and decree passed by this Court in the second appeal
on 01-11-2023, they have to file a review petition initially prior to approach the
Apex Court within a stipulated time, but the petitioners herein approached the
higher Court i.e., the Apex Court and filed an S.L.P and on hearing both sides,
the same was dismissed by the Apex Court. Initially, this Court granted two
months' time to the petitioners for vacating the schedule premises after
dismissing the second appeal and that the said two months' time is elapsed by
01-01-2024. The time granted by the Apex Court is not separate proceedings.
The Apex Court granted time till 30-9-2024 to the petitioners to vacate the
schedule premises. The proceedings in Apex Court are continuous
proceedings after dismissal of the second appeal. The conduct of the
petitioners is very clear that to get over the extension of time, the petitioners
herein used to file one after another petitions and they are neither diligent nor
bona fide nor are acting in good faith and attempting to wriggle out of the
orders of the Apex Court and the undertaking given before the Apex Court by
them for twice.
8. Section 14 of the Limitation Act defines as follows:
"14. Exclusion of time of proceeding bona fide in court without
jurisdiction. --
(1) In computing the period of limitation for any suit the time during
which the plaintiff has been prosecuting with due diligence another civil
proceeding, whether in a court of first instance or of appeal or revision,
against the defendant shall be excluded, where the proceeding relates to the
same matter in issue and is prosecuted in good faith in a court which, from
defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(2) In computing the period of limitation for any application, the time
during which the applicant has been prosecuting with due diligence another
civil proceeding, whether in a court of first instance or of appeal or revision,
against the same party for the same relief shall be excluded, where such
proceeding is prosecuted in good faith in a court which, from defect of
jurisdiction or other cause of a like nature, is unable to entertain it.
(3) Notwithstanding anything contained in rule 2 of Order XXXIII of the
Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1)
shall apply in relation to a fresh suit instituted on permission granted by the
court under rule 1 of that Order where such permission is granted on the
ground that the first suit must fail by reason of a defect in the jurisdiction of
the court or other cause of a like nature.
Explanation.--For the purposes of this section,--
(a) in excluding the time during which a former civil proceeding was
pending, the day on which that proceeding was instituted and the day on
which it ended shall both be counted;
(b) a plaintiff or an applicant resisting an appeal shall be deemed to be
prosecuting a proceeding;
(c) misjoinder of parties or of causes of action shall be deemed to be
a cause of a like nature with defect of jurisdiction."
9. The learned counsel for the petitioners would contend that the S.L.P
was dismissed by the Apex Court at the stage of admission and not decided
on merits. As seen from the averments in the affidavit of the petitioners, the
petitioners reiterated in the affidavit that the S.L.P was not decided on merits
and the same was dismissed at the stage of admission. I am unable to
accept the contention of the learned counsel for the petitioners that the Apex
Court has not decided the S.L.P on merits. As seen from the order copy of
the S.L.P., the Apex Court on hearing both sides dismissed the S.L.P and at
request of learned counsel for the petitioners before the Apex Court, time was
granted till 30-9-2024 for vacating the schedule property on a condition to give
unconditional undertaking by all the petitioners to vacate the premises by
30-9-2024. Accordingly, they have given undertakings before the Apex Court.
Surprisingly in a petition filed under Section 5 of the Limitation Act, the
petitioners suppressed about the undertaking given by them before the Apex
Court. Furthermore, the petitioners also suppressed the undertaking given
before the Apex Court in the present application. The S.L.P was filed against
the judgment and decree passed in the second appeal by this Court. After
dismissal of S.L.P by the Apex Court and also dismissal of review petition by
the Apex Court, the petitioners herein filed an application before this Court
under Section 5 of the Limitation Act and subsequently after filing counter by
the respondent, the said petition filed under Section 5 of the Limitation Act
was not pressed by the petitioners and the petitioners also given an
undertaking again before the Apex Court that they will vacate the schedule
premises and the Apex Court passed an order on 04-10-2024 that to vacate
and handover the possession and time is granted till the end of November,
2024, subject to filing of fresh undertakings on oath, failing which the orders
stand cancelled and the Apex Court also made it clear that no further time
would be granted. Surprisingly, the petitioners herein have not stated the
same either in the petition filed under Section 5 of the Limitation Act or in the
present application under Section 14 of the Limitation Act, it is nothing but
abuse of process of the Court and the petitioners indulged in vexatious
litigation. It seems that having failed in all the attempts before the Apex Court,
the petitioners filed a petition under Section 5 of the Limitation Act to condone
the delay of 127 days in filing the review application, later at the time of
hearing, the said petition was not pressed and again the petitioners filed the
present application. As stated supra, the petitioners are not prosecuting the
legal proceedings in diligently, bona fidely and in good faith.
10. The learned counsel for petitioners placed a reliance on
Kunhayammed v. State of Kerala1. The Apex Court held as follows:
"14. The exercise of jurisdiction conferred on this Court by Article 136 of the
Constitution consists of two steps: (i) granting special leave to appeal; and
(ii) hearing the appeal. This distinction is clearly demonstrated by the
provisions of Order 16 of the Supreme Court Rules framed in exercise of the
power conferred by Article 145 of the Constitution. Under Rule 4, the petition
seeking special leave to appeal filed before the Supreme Court under Article
136 of the Constitution shall be in Form No.28. No separate application for
interim relief need be filed, which can be incorporated in the petition itself.
If notice is ordered on the special leave petition, the petitioner should take
steps to serve the notice on the respondent. The petition shall be
accompanied by a certified copy of the judgment or order appealed from and
an affidavit in support of the statement of facts contained in the petition.
Under Rule 10 the petition for grant of special leave shall be put up for
hearing ex parte unless there be a caveat. The court if it thinks fit, may direct
issue of notice to the respondent and adjourn the hearing of the petition.
Under Rule 13, the respondent to whom a notice in special leave petition is
1
(2000) 6 SCC 359
issued or who had filed a caveat, shall be entitled to oppose the grant of
leave or interim orders without filing any written objections. ... ... ... "
The facts in the aforesaid case law are that originally a case was filed
before the Forest Tribunal and against the order passed by the Forest
Tribunal, an S.L.P was filed before the Apex Court and later, the petitioners
approached the Writ Court under Article 226 of the Constitution of India. But
a writ proceeding is wholly different and distinct proceeding. In the case on
hand, after dismissal of second appeal under Section 100 of C.P.C., the
petitioners approached the Apex Court and filed S.L.P and also filed review
petition before the Apex Court and in both the S.L.P and review petition, the
petitioners were defeated and later only filed a review petition with a petition
under Section 5 of the Limitation Act and after not pressing the same, they
filed an application under Section 14 of the Limitation Act. The order passed
by the Apex Court in S.L.P is reiterated as follows:
"No case for interference is made out in exercise of our jurisdiction under
Article 136 of the Constitution of India. The Special Leave Petition is
accordingly dismissed."
11. The learned counsel for petitioners also placed another reliance on
Kalpraj Dharamshi v. Kotak Investment Advisors Ltd.2. The proceedings
in the aforesaid case law relate to National Company Law Appellate Tribunal.
In the aforesaid case, the Apex Court held as follows:
"59. The conditions that are required to be fulfilled for invoking the provisions
of Section 14 of the Limitation Act have been succinctly spelt out in various
judgments of this Court including the one in Consolidated Engg.
Enterprises v. Irrigation Deptt. [Consolidated Engg. Enterprises v. Irrigation
Deptt., (2008) 7 SCC 169] , which read thus : (SCC p. 181, para 21)
"21. Section 14 of the Limitation Act deals with exclusion of time of
proceeding bona fide in a court without jurisdiction. On analysis of the said
section, it becomes evident that the following conditions must be satisfied
before Section 14 can be pressed into service:
2
(2021) 10 SCC 401
(1) Both the prior and subsequent proceedings are civil proceedings
prosecuted by the same party;
(2) The prior proceeding had been prosecuted with due diligence and in
good faith;
(3) The failure of the prior proceeding was due to defect of jurisdiction or
other cause of like nature;
(4) The earlier proceeding and the latter proceeding must relate to the
same matter in issue; and
(5) Both the proceedings are in a court."
The petitioners herein have failed to fulfill the conditions that required
under Section 14 of the Limitation Act.
12. The learned counsel for the respondent placed a reliance on In Re :
Patanjali Ayurved Limited through its Managing Director, Acharya
Balkrishna and Baba Ramdev3 and contend that before the Apex Court, the
petitioners herein given an undertaking that they will vacate the schedule
premises by 30-9-2024 and subsequently on the request of the petitioners
only, the Apex Court granted time till 30-9-2024 and again on application filed
by the petitioners, the Apex Court granted time till 30-11-2024, provided the
petitioners have to file unconditional undertaking that they will vacate the
schedule premises by 30-11-2024 and the Apex Court also further held that
no further time would be granted.
It is well settled that to attract the applicability of Section 14 of the
Limitation Act, the following requirements must be satisfied by the petitioners:
(1) Both the prior and subsequent proceedings are civil proceedings
prosecuted by the same party;
(2) The prior proceeding had been prosecuted with due diligence and in
good faith;
(3) The failure of the prior proceeding was due to defect of jurisdiction or
other cause of like nature;
3
2024 SCC Online SC 1944
(4) The earlier proceeding and the latter proceeding must relate to the
same matter in issue; and
(5) Both the proceedings are in a court.
In the case on hand, above requirements are lacking, therefore, it is not
a fit case to apply Section 14 of the Limitation Act.
13. The learned counsel for petitioners placed a reliance on Raheem
Shah v. Govind Singh 4 . In the case on hand, the petitioners filed the
application under Section 14 of the Limitation Act and prior to filing of this
application, the petitioners filed a petition under Section 5 of the Limitation Act
and prior to filing the petition under Section 5 of the Limitation Act, the
petitioners approached the Apex Court against the final judgment passed by
this Court in the second appeal and the petitioners are defeated in S.L.P
proceedings and again, the petitioners herein filed a review application before
the Apex Court to review the order passed by the Apex Court in S.L.P and the
same was also dismissed by the Apex Court on merits.
14. The learned counsel for petitioners placed a reliance on Shivdev
Singh v. State of Punjab5. The Apex Court held as follows:
"10. ... ... ... Article 226 of the Constitution does not confer any power on the
High Court to review its own order and, therefore, the second order of Khosla,
J., was without jurisdiction. It is sufficient to say that there is nothing in Article
226 of the Constitution to preclude a High Court from exercising the power of
review which inheres in every Court of Plenary jurisdiction to prevent
miscarriage of justice or to correct grave and palpable errors committed by it.
... ... ..."
In the case on hand, the present proceedings are filed under Section 14
of the Limitation Act but not review petition proceedings.
15. The learned counsel for petitioners relied on Lily Thomas v. Union
of India6. The Apex Court held as follows:
4
2023 SCC Online SC 910
5
1961 SCC Online SC 29
6
(2000) 6 SCC 224
"52. ... ... ... It cannot be denied that justice is a virtue which transcends all
barriers and the rules or procedures or technicalities of law cannot stand in
the way of administration of justice. Law has to bend before justice. If the
Court finds that the error pointed out in the review petition was under
a mistake and the earlier judgment would not have been passed but for
erroneous assumption which in fact did not exist and its perpetration shall
result in a miscarriage of justice nothing would preclude the Court from
rectifying the error. ... ... ..."
The learned counsel for the petitioners also relied on Khoday
Distilleries Ltd. v. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd.7.
The Apex Court held as follows:
"26.2. ..............................................................................................
(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 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
the 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.
7
(2019) 4 SCC 376
(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 the High Court to entertain a review petition is lost thereafter as
provided by sub-rule (1) of Order 47 Rule 1 CPC."
Admittedly, in the case on hand, the second appeal filed by the
petitioners herein was dismissed by this Court on merits on 01-11-2023 and
against the said judgment and decree, without vacating the schedule premises
within two months as ordered by this Court, the petitioners approached the
Apex Court and filed an S.L.P and the same was also dismissed on merits by
the Apex Court and again, the petitioners filed a review application before the
Apex Court and after dismissal of review application, the petitioners inclined to
prosecute the review petition herein along with the petition filed under Section
5 of the Limitation Act and subsequently, after not pressing the petition under
Section 5 of the Limitation Act, the petitioners filed the present application
under Section 14 of the Limitation Act. Therefore, the ratio laid down in the
aforesaid two case laws is not at all applicable to the present case on hand.
16. In the case on hand, as stated supra, after dismissal of S.L.P and
review petition by the Apex Court, the petitioners approached this Court and
filed the review application. All the above events, as narrated supra, made it
clear that the petitioners are cleverly filing one after another application to get
over the time for delivery of the schedule premises to the respondent/plaintiff.
It is also relevant to say that the petitioners herein filed an unconditional
undertaking before the Apex Court that they will vacate the schedule premises
by 30-9-2024 and again, the petitioners approached this Court and submitted
a review application along with a petition under Section 5 of the Limitation Act
to condone the delay of 127 days and at the time of hearing of the petition
under Section 5 of the Limitation Act, that petition was not pressed and
withdrawn and again, the petitioners filed this application. It is also relevant to
say that the Apex Court passed an order directing the petitioners "to vacate
the schedule premises by the end of this month and no further time would be
granted". Therefore, the conduct of the petitioners herein is highly suspicious
and it is nothing but abuse of process of law.
17. As noticed supra, on hearing both sides only, the second appeal was
dismissed by this Court on merits on 01-11-2023 by granting two months' time
to the petitioners herein to vacate the schedule premises and within the said
two months' time, the petitioners filed an S.L.P before the Apex Court against
the final judgment passed by this Court in the second appeal and prior to filing
of S.L.P., the petitioners have not filed review application before this Court.
After dismissal of the S.L.P by the Apex Court, the petitioners herein filed a
review petition before the Apex Court to review the order passed in the S.L.P
by the Apex Court. That review petition was also dismissed by the Apex Court
and later, the petitioners approached this Court for prosecuting the review
application along with the petition filed under Section 5 of the Limitation Act.
After filing counter by the other side at the time of hearing, the petitioners have
not pressed the petition filed under Section 5 of the Limitation Act and filed the
present application under Section 14 of the Limitation Act. The above series
of events clearly reveals that the conduct of the petitioners is highly suspicious
and further goes to show that they are adopting delay tactics to get over the
time, further filing of the present application under Section 14 of the Limitation
Act would be an abuse of process of law.
18. The law is well settled by a Full Bench of the Apex Court in Abbai
Maligai Partnership Firm v. K. Santhakumaran 8. The Full Bench of the
Apex Court held as follows:
"4. The manner in which the learned Single Judge of the High Court
exercised the review jurisdiction, after the special leave petitions against the
selfsame order had been dismissed by this Court after hearing learned
counsel for the parties, to say the least, was not proper. Interference by the
learned Single Judge at that stage is subversive of judicial discipline. The
High Court was aware that the SLPs against the orders dated 7-1-1987 had
already been dismissed by this Court. The High Court, therefore, had no
8
(1998) 7 SCC 386
power or jurisdiction to review the selfsame order, which was the subject-
matter of challenge in the SLPs in this Court after the challenge had failed. By
passing the impugned order on 7-4-1994, judicial propriety has been
sacrificed. After the dismissal of the special leave petitions by this Court, on
contest,
no review petitions could be entertained by the High Court against the same
order. The very entertainment of the review petitions, in the facts and
circumstances of the case, was an affront to the order of this Court.
We express our strong disapproval and hope there would be no occasion in
the future when we may have to say so. The jurisdiction exercised by the
High Court, under the circumstances, was palpably erroneous. ... ... ...."
Undoubtedly, in the case on hand, neither the petitioners are diligent
nor bona fide nor acting in good faith and the petitioners herein are making
attempts to wriggle out the orders of the Apex Court and their unconditional
undertaking given before the Apex Court. Therefore, the same cannot be
permitted. Furthermore, the petitioners suppressed the undertaking given
before the Apex Court twice either in the petition filed under Section 5 of the
Limitation Act or in the present application filed under Section 14 of the
Limitation Act. Since the petitioners approached higher Court against the final
judgment passed by this Court in the second appeal for remedy and having
failed in all attempts before the Apex Court, the petitioners intend to file one
after another petition to get over further extension of time, which was granted
by the Apex Court. As stated supra, the Apex Court held in its order that "the
petitioners have to vacate the premises by the end of this month and no
further time would be granted". As stated supra, the petitioners suppressed
the aforesaid real facts what were happened before the Apex Court and
approached this Court and filed an application under Section 5 of the
Limitation Act and an application under Section 14 of the Limitation Act, after
dismissal of the review petition by the Apex Court after giving unconditional
undertakings before the Apex Court that they will vacate the schedule
premises by the end of this month. Therefore, I am of the considered view
that Section 14 of the Limitation Act does not applicable to the present case.
For the aforesaid reasons, undoubtedly Section 14 of the Limitation Act is not
at all applicable to the present case on hand and the application filed by the
petitioners herein is devoid of merits.
19. Point No.3:- To what extent ?
Resultantly, the interlocutory application is dismissed.
//TRUE COPY//
VENUTHURUMALLI GOPALA KRISHNA RAO,J
Note:-
Issue C.C. today.
(B/o)
Ak
To,
2. Two CD Copies
HIGH COURT
VGKRJ
DATED:27/11/2024
ORDER
SA 860/2005