Karnataka High Court
Sri. J D Mosses vs Smt. Meka Sheshamma on 11 June, 2019
Bench: B.V.Nagarathna, K.Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JUNE, 2019
PRESENT
THE HON'BLE MRS. JUSTICE B.V. NAGARATHNA
AND
THE HON'BLE MR. JUSTICE K. NATARAJAN
REVIEW PETITION No.610 OF 2017
BETWEEN:
1. SRI J.D. MOSSES
S/O. SRI J.B. DEVANANDAN,
AGED ABOUT 67 YEARS,
RESIDENT OF RAGHAVENDRA COLONY,
JANNAPURA EXTENSION,
BHADRAVATHI.
2. SMT. J.M. JASMIN
W/O. SRI J.D. MOSSES,
AGED ABOUT 58 YEARS,
RESIDENT OF RAGHAVENDRA COLONY,
JANNAPURA EXTENSION,
NEW TOWN, BHADRAVATHI. ... PETITIONERS
(BY SRI K.N. PHANINDRA, SENIOR COUNSEL FOR
SMT. VAISHALI HEGDE, ADVOCATE)
AND:
1. SMT. MEKA SHESHAMMA
W/O. SRI LATE MEKA BAPANNA,
AGED ABOUT 81 YEARS,
RESIDENT OF BAPANNA CAMP,
MALLIGENAHALLI,
REPRESENTED BY HER GPA HOLDER,
P. SUBRAMANYA, S/O. SUBBA RAO,
AGED ABOUT 45 YEARS,
RESIDENT OF MALLIGENAHALLI,
HOLEHONNUR HOBLI,
BHADRAVATHI.
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2. SRI V.S. LAJARIS
S/O. SRI SOLOMAN,
AGED ABOUT 73 YEARS,
RESIDENT OF RAGHAVENDRA COLONY,
JANNAPURA EXTENSION,
NEW TOWN, BHADRAVATHI. ... RESPONDENTS
(BY SRI K.A. PRAKASH, ADVOCATE FOR R-1;
SMT. SUNAYANA BASU MALIK, ADVOCATE FOR R-2)
THIS REVIEW PETITION IS FILED UNDER ORDER 47 RULE
1 READ WITH SECTION 114 OF THE C.P.C. PRAYING TO ALLOW
THE REVIEW PETITION AND REVEIW THE ORDER DATED 3-9-
2013 PASSED IN R.F.A. NO.1021 OF 2004 AND CONSEQUENTLY
ALLOW THE APPEAL IN ITS ENTIRETY, IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS REVIEW PETITION COMING ON FOR FURTHER
ORDERS, THIS DAY, NAGARATHNA, J., MADE THE
FOLLOWING:
ORDER
There is delay of 1502 days in filing this review petition. I.A. No.1 of 2018 is filed seeking condonation of delay.
2. We have heard Sri K.N. Phanindra, learned senior counsel appearing for the petitioners and Sri K.A. Prakash, learned counsel for respondent No.1, not only on I.A. No.1 of 2018, but also on the question of maintainability of review petition.
3. This review petition is preferred against the judgment and decree passed by this Court in Regular First 3 Appeal No. 1021 of 2004 on 03/09/2013 by which the appeal was dismissed on merits. The said appeal was filed by the petitioners herein, being aggrieved by the judgment and decree dated 26/06/2004 passed in Original Suit No.31 of 1992 by the Court of the Civil Judge (Senior Division) and Judicial Magistrate First Class, Bhadravathi, the said suit filed by respondent No.1 being decreed.
4. At this stage, it is pertinent to mention as against the judgment passed by this Court in Regular First Appeal No.1021 of 2004, a Petition for Special Leave to Appeal (C) No.33605 of 2013 was filed before the Hon'ble Supreme Court by the petitioners herein. On hearing learned counsel for the respective parties, the Special Leave Petition was dismissed by order dated 24/04/2017. Thereafter, on 14/11/2017, this review petition has been filed. That is how there is a delay of 1502 days in filing this review petition which is about four years two months.
5. Learned senior counsel appearing for the petitioners submitted that although the petitioners herein were unsuccessful before the Hon'ble Supreme Court, 4 nevertheless, this review petition is maintainable in as much as there is no merger of the judgment of this Court with that of the Hon'ble Supreme Court which has dismissed the Special Leave Petition filed against the judgment in Regular First Appeal No.1021 of 2004. In support of his submission, he placed reliance on Khoday Distilleries Limited (now known as Khoday India Limited) & others vs. Sri Mahadeshwara Sahakara Sakkare Karkhane Limited, Kollegal (under liquidation) represented by the liquidator, [(2019)4 SCC 376] (Khoday Distilleries Limited). He also relied upon another judgment of the Hon'ble Supreme Court in the case of Kunhayammed & others vs. State of Kerala & another, [(2000)6 SCC 359] (Kunhayammed). He submitted that the delay in filing the review petition is due to the bona fide reason that the petitioners herein had approached the Hon'ble Supreme Court against the judgment passed in RFA No.1021/2004 and were prosecuting the same and after the dismissal of the special leave petition on 24/04/2017, this review petition has been filed. Learned senior counsel contended 5 that the delay in filing the review petition may be condoned and the review petition may be heard on merits.
6. Per contra, learned counsel for respondent No.1, at the outset submitted that the review petition is not maintainable before this Court. That the petitioners, being aggrieved by the judgment passed by this Court in RFA.No.1021/2004, preferred special leave petition before the Hon'ble Supreme Court. On 24/04/2017, the Hon'ble Supreme Court, after hearing the respective parties dismissed the special leave petition. Subsequently, the petitioners herein could not have approached this Court by way of this review petition without obtaining leave or liberty from the Hon'ble Supreme Court. In support of his submission, he placed reliance on another judgment of the Hon'ble Supreme Court in the case of Abbai Maligai Partnership Firm & another vs. K.Santhakumaran & others, [(1998)7 SCC 286] (Abbai Maligai Partnership Firm). He submitted that the review petition may be dismissed as not maintainable.
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7. In the circumstances, we have considered the issue of maintainability of the review petition in the first instance. The facts narrated above would not call for any reiteration except highlighting that the petitioners herein were the appellants in RFA.No.1021/2004, which was dismissed by a detailed judgment on 03/09/2013. Being aggrieved by the dismissal of the regular first appeal, the petitioners herein preferred a Petition for Special Leave to Appeal (C) No.33605/2013 before the Hon'ble Supreme Court. On 24/04/2017, the Hon'ble Supreme Court dismissed the special leave petition with the following order:
"Item No.41 Court No.7 Section IVA
SUPREME COURT OF INDIA
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C)
No.33605/2013
(Arising out of impugned final judgment and order dated 03/09/2013 in RFA No.1021/2004 passed by the High Court of Karnataka at Bangalore) J.D.MOSSES & ANR. Petitioner(s) VERSUS MEKA SHESHAMMA Respondent(s) (With interim relief and office report) 7 Date: 24/04/2017 This petition was called on for hearing today.
CORAM:
HON'BLE MR. JUSTICE A.K.SIKRI HON'BLE MR. JUSTICE ASHOK BHUSHAN For Petitioner(s) Mr. Raju Ramahchandran, Sr.Adv.
Mr. Sriram P., Adv.
Mr. Vishnu Shankar M.S., Adv.
Mr. Vijay Kumar, Adv.
For Respondent(s)
Mr. K.A.Prakash, Adv.
Mr. Anuj Bhandari Adv.
Mr. Naveen Kr.Gautam, Adv.
Upon hearing the counsel the court made the following:
ORDER The special leave petition is dismissed."
8. It is the contention of learned senior counsel for the petitioners that when the special leave petition is dismissed simpliciter or without any detailed order being passed either approving, modifying or reversing the same and in the absence of any leave to appeal being granted, the doctrine of merger would not apply and that this Court has the jurisdiction and is empowered to entertain a review petition thereafter. Also the principle of res judicata would not apply.
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9. The counter argument of learned counsel for respondent No.1 is, once the special leave petition is dismissed by the Hon'ble Supreme Court after hearing both sides, the High Court or for that matter, any other inferior Court cannot entertain any review petition as it is against judicial propriety, as the order of the Hon'ble Supreme Court cannot be ignored by the unsuccessful party who had approached the Hon'ble Supreme Court in the first instance. In this regard, it is also contended that the review petition in the instant case has been filed subsequent to the dismissal of the special leave petition by the Hon'ble Supreme Court. This is not a case where the review petition was filed prior to the filing of the special leave petition or after the special leave petition was filed and before its dismissal as a review petition may be considered by this Court during the pendency of the special leave petition before the Hon'ble Supreme Court but after the dismissal of the same.
10. The aforesaid arguments would indicate two aspects of the matter: while learned senior counsel for the 9 petitioners is emphasizing that the doctrine of merger would not apply in the instant case, learned counsel for respondent No.1 is emphasizing on judicial propriety of the High Court to entertain a review petition after the dismissal of the special leave petition. Therefore, in light of the aforesaid principles, we would like to refer to the judicial precedent on the maintainability of this petition.
11. In Kunhayammed, the Hon'ble Supreme Court has elaborated on the doctrine of merger to state that it is neither a doctrine of constitutional law nor a doctrine statutorily recognised. It is a common law doctrine founded on principles of propriety in the hierarchy of justice delivery system. In State of Madras Vs. Madurai Mills Co. Ltd. [AIR 1967 SC 681], it has been observed that the doctrine of merger is not a doctrine of rigid and universal application and it cannot be said that wherever there are two orders, one by the inferior authority and the other by a superior authority, passed in an appeal or revision there is a fusion or merger of two orders irrespective of the subject-matter of the appellate or revisional order and the scope of the appeal or revision 10 contemplated by the particular statute. The application of the doctrine depends on the nature of the appellate or revisional order in each case and the scope of the statutory provisions conferring the appellate or revisional jurisdiction.
12. Further, according to the Hon'ble Supreme Court, the logic underlying the doctrine of merger is, there cannot be more than one decree or operative orders governing the same subject-matter at a given point of time. When a decree or order passed by an inferior court, tribunal or authority was subjected to a remedy available under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy. Once the superior court has disposed of the lis before it either way - whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the court, tribunal or the authority below. However, the doctrine is not of 11 universal or unlimited application. The nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or which could have been laid shall have to be kept in view. On the appellate jurisdiction exercised by the Hon'ble Supreme Court under Article 132 of the Constitution and the residuary power under Article 136 of the Constitution, it was opined, if the petition seeking grant of leave to appeal is dismissed, it is an expression of opinion by the Court that a case for invoking appellate jurisdiction of the Court was not made out.
13. A catena of cases have been discussed in Kunhayammed with regard the effect of a non-speaking order of dismissal of a special leave petition. That a mere rejection of special leave petition would not result in the doctrine of merger coming into play; neither would it result in the application of the principle of res judicata nor constructive res judicata. It has also been observed that a non-speaking order of dismissal of a special leave petition cannot lead to an assumption that it had necessarily 12 decided by implication, the correctness of the decision under challenge.
14. But, prior to Kunhayammed, in Sree Narayana Dharmasanghom Trust Vs. Swami Prakasananda and Others, [1997 (6) SCC 78], it was held that if against an order of the High Court, a petition for special leave to appeal is dismissed in limine, the order of the High Court cannot be reviewed by the High Court subsequent to dismissal of special leave petition by Supreme Court. It was further observed therein that even after dismissal of the special leave petition in limine, the same would operate as a final order between the parties and any order passed by the High Court subsequently operates as a res judicata as far as the parties thereto are concerned. It was further distinguished by observing that the dismissal of a writ petition under Article 32 of the Constitution by the Hon'ble Supreme Court would not operate as a res judicata for exercising jurisdiction by the High Court under Article 226 of the Constitution. But, that principle is entirely different from the review of an order 13 under Order XLI Rule 1 of the Code of Civil Procedure, 1908.
15. Similarly, in State of Maharashtra and Anr. Vs. Prabhakar Bhikaji Ingle, 1996 (3) SCC 463, it was observed that the dismissal of a special leave petition without a speaking order does not constitute res judicata but the order dealt with in special leave petition, disposed of by a non-speaking order cannot be subjected to review by the Tribunal. While saying so, the aspect of judicial discipline has been borne in mind by the Hon'ble Supreme Court.
16. In Kunhayammed at paragraph No.26, reference has been made to another earlier decision in Abbai Maligai Partnership Firm relied upon by learned counsel for the respondents in the context of special leave petition being dismissed after hearing learned counsel for the parties. The same requires a detailed consideration.
17. Abbai Maligai Partnership Firm is a judgment of three Hon'ble Judges of the Supreme Court which castigated the High Court for entertaining a review petition 14 after the dismissal of the special leave petition and also reviewing the earlier order passed by the said Court after condoning a delay of 221 days in filing the review petition. While the facts of the said case are in paragraph No.2, the Hon'ble Supreme Court at paragraph No.4 has made certain categorical observations which are in the nature of strictures passed against the High Court for entertaining the review petition and allowing it. For immediate reference, paragraph Nos.2 to 4 are extracted as under:
"2. The Rent Controller ordered eviction of the appellants in an eviction petition filed by Respondents 1 and 2 on the ground of willful default in payment of rent and bona fide requirement of the premises by Respondents 1 and 2 for their own business. On appeal filed by the appellant-tenants, it was found that there was a bona fide dispute with regard to the title of the property which could be decided by the civil court. The appellate authority set aside the order of the Rent Controller on 27-8-1983. Respondents 1 and 2 thereupon preferred revision petitions in the High Court and by its order dated 7-1-1987, the High Court rejected both the revision petitions, confirming the view of the appellate authority. Aggrieved by the orders of the High Court dated 7- 1-1987, Respondents 1 and 2 filed SLPs (C) Nos.4039-4040 of 1987. The appellants appeared 15 on caveat in the Supreme Court. Both sides were represented by Senior Advocates of this Court. After hearing learned counsel for the parties, the special leave petitions were dismissed on 16-9- 1987. After the dismissal of the special leave petitions by this Court, the respondents filed review petitions CMPs Nos.44 and 45 of 1994 in the High Court seeking review of the order, dismissing civil Revision Petitions Nos.4974 and 4975 of 1983 on 7-1-1987. It was the order dated 7-1-1987 (supra) which was the subject-matter of challenge in SLPs (C) Nos.4039-4040 of 1987. There was also a delay of 221 days in filing the review petitions in the High Court after the dismissal of the special leave petitions. The learned Single Judge, by the order impugned before us, not only condoned the delay of 221 days but also reviewed the earlier orders made on 7-1-1987, reversed the orders made in civil revision petitions and allowed civil revision petitions and ordered eviction of the tenant-
appellants. Aggrieved, the appellants are before us against the order dated 7-4-1994 made in the review petitions.
3. We have heard learned counsel for the parties.
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, 16 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 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. The respondents who approached the High Court after the dismissal of their SLPs by this court, abused the process of the court and indulged in vexatious litigation. We strongly deprecate the manner in which the review petitions were filed and heard in the High Court after the dismissal of the SLPs by this court. The appeals deserve to succeed on that short ground. The appeals are, consequently, allowed and the impugned order dated 7-4-1994 passed in the 17 review petitions is hereby set aside. The respondents shall pay Rs.10,000 as costs."
(Underlining by us)
18. The judgment in Abbai Maligai Partnership Firm has been considered by the three Judge Bench of the Hon'ble Supreme Court in Kunhayammed at paragraph No.26 in the following terms:
"26. The underlying logic attaching efficacy to an order of the Supreme Court dismissing SLP after hearing counsel for the parties is discernible from a recent three-Judges Bench decision of this Court in Abbai Maligai Partnership Firm v. K. Santhakumaran. In the matter of eviction proceeding initiated before the Rent Controller, the order passed therein was subjected to appeal and then revision before the High Court. Special leave petitions were preferred before the Supreme Court where the respondents were present on caveat. Both the sides were heard through the Senior Advocates representing them. The special leave petitions were dismissed. The High Court thereafter entertained review petitions which were highly belated and having condoned the delay reversed the orders made earlier in civil revision petitions. The orders in review were challenged by filing appeals under leave granted on special leave petitions. This Court observed that what was done by the learned Single Judge was "subversive of 18 judicial discipline". The facts and circumstances of the case persuaded this Court to form an opinion that the tenants were indulging in vexatious litigations, abusing the process of the Court by approaching the High Court and the very entertainment of review petitions (after condoning a long delay of 221 days) and then reversing the earlier orders was an affront to the order of this Court. However the learned Judges deciding the case have nowhere in the course of their judgment relied on doctrine of merger for taking the view they have done. A careful reading of this decision brings out the correct statement of law and fortifies us in taking the view as under."
(underlining by us)
19. The aforesaid underlined sentences bring out clearly the fact that in Kunhayammed case, the Hon'ble Supreme Court did not disapprove the judgment in Abbai Maligai Partnership Firm. After referring to the judgment in Abbai Maligai Partnership Firm from paragraph No.27 onwards, the preface to the doctrine of merger has been stated with reference to several decisions.
20. Thereafter, reference was made to Gopalbandhu Biswal Vs. Krishna Chandra Mohanty & others, [(1998) 4 SCC 447] which was in the context of 19 rejection of a special leave petition against the order of administrative tribunal and a review petition being filed thereafter. On perusal of the reasoning therein, it was held that the case proceeded on its own peculiar facts. Further, in Supreme Court Employees Welfare Association Vs. Union of India and Another, [(1989) 4 SCC 187], it has been held that when the special leave petition is summarily dismissed, the Court does not lay down any law under Article 141 of the Constitution.
Ultimately, at paragraph No.37 of Kunhayammed, it has been held as under:
"37. Let us assume that the review is filed first and the delay in SLP is condoned and the special leave is ultimately granted and the appeal is pending in this Court. The position then, under Order 47 Rule 1 CPC is that still the review can be disposed of by the High Court. If the review of a decree is granted before the disposal of the appeal against the decree, the decree appealed against will cease to exist and the appeal would be rendered incompetent. An appeal cannot be preferred against a decree after a review against the decree has been granted. This is because the decree reviewed gets merged in the decree passed on review and the appeal to the superior court 20 preferred against the earlier decree - the one before review - becomes infructuous."
And at paragraph No.38 it is stated as under:
"38. The review can be filed even after SLP is dismissed is clear from the language of Order 47 Rule 1(a). Thus the words "no appeal" has been preferred in Order 47 Rule 1(a) would also mean a situation where special leave is not granted. Till then there is no appeal in the eye of law before the superior court. Therefore, the review can be preferred in the High Court before special leave is granted, but not after it is granted. The reason is obvious. Once special leave is granted the jurisdiction to consider the validity of the High Court's order vests in the Supreme Court and the High Court cannot entertain a review thereafter, unless such a review application was preferred in the High Court before special leave was granted."
Thereafter, at paragraph 44, the summation of the conclusions are given, wherein it has been observed that doctrine of merger is not a doctrine of universal or unlimited application. It would 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 of merger.
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21. On a reading of the same, it becomes evident that when the review petition has been filed first and the special leave is ultimately granted and the appeal is pending before the Supreme Court the review petition cannot be entertained by the High Court. This is because the judgment reviewed gets merged with the judgment passed in the review petition and the appeal before the Supreme Court preferred against the earlier judgment, becomes infructuous. But if the review petition is filed after the special leave is dismissed, then it would mean that special leave has not been granted. In that event, it can be held that review can be filed in the High Court before special leave is granted or when it is rejected, but not after it is granted. Once special leave is granted, the jurisdiction to consider the validity of the High Court's order vests in the Supreme Court unless review petition is preferred in the High Court before special leave was granted. Another situation that would arise is when a review petition is filed by one party before the High Court that passed the judgment seeking review of that judgment and another party has approached the Supreme Court for 22 seeking a higher relief than what was granted by the High Court. Can such a review petition be barred? But in the instant case, the review petition has been filed before this Court after the dismissal of the special leave petition after hearing both sides. In such an event, the question which would arise is whether the position as it obtains in the judgment of Abbai Maligai Partnership Firm applies or not. In our view, it squarely applies.
22. However, learned senior counsel for the petitioners has drawn our attention to Khoday Distilleries Limited, which is a recent judgment of a three Judge Bench of the Hon'ble Supreme Court passed on an order of reference by a two Judge Bench (which has also referred to Abbai Maligai Partnership Firm), to contend that under similar circumstances, the Hon'ble Supreme Court had set aside an order passed by this Court in a review petition, which was filed after the dismissal of the special leave petition by the Hon'ble Supreme Court. It was observed that despite the dismissal of the special leave petition by the Supreme Court, a review petition could be maintained before the High Court. While holding so, the Hon'ble 23 Supreme Court has referred to paragraph No.26 of Kunhayammed, which is extracted by us above, wherein reference has been made to the judgment in Abbai Maligai Partnership Firm. But, it has also been stated in paragraph No.24 of Khoday Distilleries Limited that Abbai Maligai Partnership Firm was decided on its peculiar facts.
23. Before proceeding further, it would be necessary to summarise the background leading to the reference to a larger Bench in Khoday Distilleries Limited.
(a) By an order dated 19.10.2012 made in Khoday Distilleries Limited, reference was made by a two Judge Bench of the Hon'ble Supreme Court to a larger Bench to consider the issue of principle of res judicata and doctrine of merger in relation to statutory appeal and the appeal invoking Article 136 of the Constitution. In the said reference order inter alia, the earlier decisions of the Hon'ble Supreme Court in the case of Palan Roman Catholic Mission Vs. S. Bagirathi Ammal, (2009) 16 SCC 657, K.Rajamouli Vs. A.V.K.N. Swamy (2001) 5 SCC 37, (K.Rajamouli) and Gangadhara Palo Vs. 24 Revenue Division Officer, (2011) 4 SCC 602, (Gangadhara Palo) were referred to by observing that there was some conflict between the judgments in K.Rajamouli and Gangadhara Palo vis-à-vis the observations made in Abbai Maligai Partnership Firm.
(b) In K.Rajamouli, after referring to the judgment in Abbai Maligai Partnership Firm, Sree Narayana Dharmasanghom Trust and Prabhakar Bhikaji Ingle, at paragraph 4 it has been held as under:
"4. Following the decision in the case of Kunhayammed we are of the view that the dismissal of the special leave petition against the main judgment of the High Court would not constitute res judicata when a special leave petition is filed against the order passed in the review petition provided the review petition was filed prior to filing of special leave petition against the main judgment of the High Court. The position would be different where after dismissal of the special leave petition against the main judgment a party files a review petition after a long delay on the ground that the party was prosecuting remedy by way of special leave petition. In such a situation the 25 filing of review would be an abuse of the process of the law. We are in agreement with the view taken in Abbai Maligai Partnership Firm that if High Court allows the review petition filed after the special leave petition was dismissed after condoning the delay, it would be treated as an affront to the order of the Supreme Court."
(c) In Gangadhara Palo, a two Judge Bench of the Hon'ble Supreme Court held that the observations made in K.Rajamouli was a stray observation and did not amount to a precedent.
(d) Subsequently, in Khoday Distilleries Limited, a three Judge Bench dealt on the question of extinguishment of the power to review a judgment once leave was granted in a special leave petition and the appeal is decided and whether the doctrine of merger applies.
(e) In the said case, it was observed that the High Court before exercising its review jurisdiction has to examine whether the same would amount to breach of judicial discipline after considering the scope and power exercised under Article 136 of the Constitution. It was 26 further observed that if the petition seeking grant of leave to appeal is dismissed, it is an expression of opinion by the Supreme Court that a case for invoking the appellate jurisdiction of the Court was not made out. But, significantly, it has also been observed that in spite of a petition for special leave to appeal having been filed, the judgment, decree or order against which leave to appeal has been sought for, continues to be final, effective and binding as between the parties. The Court thereafter analysed a number of cases where orders of different nature were passed and dealt with the judgments by classifying them in the following categories:
(i) Dismissal at the stage of special leave petition - without reasons - no res judicata, no merger.
(ii) Dismissal of the special leave petition by speaking or reasoned order - no merger, but rule of discipline and Article 141 attracted.
(iii) Leave granted - dismissal without reasons -
merger results.
Subsequently, in paragraph 24, it was observed as under:
"24. Having noted the aforesaid two judgments and particularly the fact that the earlier 27 judgment in the case of Abbai Maligai Partnership Firm is duly taken cognisance of and explained in the latter judgment, we are of the view that there is no conflict insofar as ratio of the two cases is concerned. Moreover, Abbai Maligai Partnership Firm was decided on its peculiar facts, with no discussion on any principle of law, whereas Kunhayammed is an elaborate discourse based on well accepted propositions of law which are applicable for such an issue. We are, therefore, of the view that detailed judgment in Kunhayammed lays down the correct law and there is no need to refer the cases to larger Bench, as was contended by the counsel for the appellant."
(f) On a reading of the above, it becomes clear that in Khoday Distilleries Limited, there has been no over- ruling of the judgment passed in Abbai Maligai Partnership Firm. In fact, it has been held that there is no conflict between Abbai Maligai Partnership Firm and Kunhayammed. Thereafter, reference has been made to K.Rajamouli to observe that while the dismissal of the special leave petition against the impugned judgment of the High Court would not constitute res judicata, when special leave petition is filed against the order passed in 28 the review petition provided the review petition was filed prior to filing of special leave petition against the main judgment of the High Court, the position would be different after the dismissal of the special leave petition against the judgment a review petition is filed after a long delay. In the said case, the party filed a review petition before the High Court after a long delay on the ground that the party was prosecuting the remedy by way of special leave petition. In such a situation, the filing of the review was held to be an abuse of process of the law. It is further noted that in K.Rajamouli, the Hon'ble Supreme Court was in agreement with the view taken in Abbai Maligai Partnership Firm that if the High Court allows the review petition filed after the special leave petition was dismissed after condoning the delay, it would be treated as an affront to the order of the Supreme Court although in Gangadhar Palo, the same was held to be a stray observation.
(g) Thus, on a reading of the judgment in Khoday Distilleries Limited, it is clear that the judgment in Abbai Maligai Partnership Firm has neither been over-ruled nor held to be bad in law. Further, even in Kunhayammed, 29 there is no such observation that Abbai Maligai Partnership Firm was not in accordance with law. In Khoday Distilleries Limited, however, it has been stated that Abbai Maligai Partnership Firm was decided on its peculiar facts.
24. Hence, we refer to the facts of the case in Khoday Distilleries Limited and the facts of the present case.
(a) In Khoday Distilleries Limited, respondent No.1 therein had filed original suit against the appellant therein before the City Civil Court at Bengaluru for recovery of a sum of Rs.1,00,76,630/- along with interest. The City Civil Court after trial had dismissed the suit as barred by limitation by its judgment and decree dated 11/11/2005 after giving a finding on merits that the money was payable by the appellant to respondent No.1 therein.
(b) Being aggrieved, respondent No.1 had preferred regular first appeal before this Court. By judgment dated 12/11/2008, the same was allowed by holding that the suit filed was within the period of limitation. Accordingly, this Court passed a decree for the amount claimed with 30 interest at the rate of 12% per annum from the date of demand i.e., 19/07/1994 up to 03/08/1994 and interest was granted at the rate of 10% per annum from 04/08/1994 till the date of payment.
(c) Being aggrieved, the appellant preferred special leave petition before the Hon'ble Supreme Court which was dismissed on 04/12/2009 after condoning the delay. After dismissal of the special leave petition, respondent No.1 therein filed execution petition before the trial court. After the dismissal of the special leave petition, respondent No.1 had filed an application for rectification of the judgment which was allowed on 20/10/2010 directing the appellant to pay the decretal amount with interest and costs.
(d) The appellant therein after dismissal of the special leave petition filed a review petition seeking the review of the judgment dated 12/11/2008 passed by this Court contending that this Court had granted relief which was not even sought for by respondent No.1 therein in the suit. It was found that the plaintiff therein had not claimed any interest at any particular rate and he had not prayed 31 for interest from a particular date and he had also not prayed for interest on different rates also. Thus, the decree passed by this Court was not based on the prayer sought for by the plaintiff in the suit. This mistake appeared on the face of the record. Hence, the judgment dated 12/11/2008 as corrected on 20/10/2010 was sought to be reviewed. It was also pleaded that the award of interest from 04/08/1994 was also without jurisdiction, since it was not claimed by respondent No.1 therein in the trial court. The review petition was dismissed by order dated 09/09/2011 by holding that the Hon'ble Supreme Court has dismissed the special leave petition on 04/12/2009 that the judgment and decree passed by this Court had been confirmed by the Hon'ble Supreme Court and therefore, question of entertaining any review did not arise.
(e) Against the order passed in the review petition, the matter was taken up in special leave petition, which was referred to larger Bench to consider the question as to whether the review petition was maintainable before this Court after the special leave petition was dismissed by the 32 Hon'ble Supreme Court. It has to be noted that the precise question arose in the background of the aforesaid facts.
(f) In the instant case, the petitioners herein as defendant Nos.1 and 2 in O.S. No.31 of 1992 had filed Regular First Appeal No.1021 of 2004 against the judgment and decree passed in the said suit by the Court of Civil Judge (Sr.Dn.) and JMFC, Bhadravathi decreeing the suit of the respondents-plaintiffs by granting the relief of declaration of title in respect of the suit schedule property and holding that the two registered sale deeds i.e., sale deed dated 30/04/1987 executed by defendant No.1 in favour of defendant Nos.2 and 3 and sale deed dated 20/11/1987 by defendant No.3 in favour of defendant No.2 were not binding on the plaintiff and were of no consequence to her title. Consequently, an order of perpetual injunction to prevent the defendants and their agents or servants from interfering in any manner with the plaintiff's peaceful possession and enjoyment of the suit schedule property was also granted. In the regular first appeal filed by the petitioners herein, this Court after 33 referring to the facts and contentions of respective parties, raised as many as six points for consideration and by a detailed judgment dismissed the appeal on appreciation of the entire oral and documentary evidence on record by holding that the judgment of the trial court did not warrant any interference.
(g) It is noted that this review petition is filed under Order XLVII Rule 1 read with Section 114 of CPC assailing the judgment passed by a co-ordinate Bench of this Court on 03/09/2013. This review petition has been filed on 14/11/2017 almost four years after the judgment was passed by this Court. In the interregnum, the petitioners herein had filed Special Leave Petition No.33605/2013, which was dismissed on 24/04/2017 after hearing both sides. Thus, the petitioners herein, being aggrieved by the judgment of this Court dated 03/09/2013, were prosecuting the special leave petition for almost four years before the Hon'ble Supreme Court and after hearing both sides, the special leave petition was dismissed by order dated 24/04/2017. Subsequently, on 14/11/2017 after a period of nearly seven months, this review petition has 34 been filed. This is not a case where the special leave petition has been dismissed ex parte, or without issuance of notice to the respondent. In this case, the special leave petition has been dismissed after hearing the learned counsel for the petitioners as well as the respondents' counsel. Therefore, it must be construed that the special leave petition has been dismissed on merits and not by exercising discretionary power refusing to entertain the same and without issuing notice to the respondents. In such a case, can it be construed that after the dismissal of the special leave petition, on hearing both sides, a party could maintain a review petition before this Court for seeking review of the judgment or order passed by this Court? What is significant to note is not whether the doctrine of merger applies or the principle of res judicata applies. In our view, in such a case where a special leave petition is dismissed after hearing both sides, the judgment in Abbai Maligai Partnership Firm applies. The reason being once a special leave petition is dismissed after hearing both sides, it would no longer be a case of pure exercise of discretionary power, but on merits. This 35 is because the Hon'ble Supreme Court did not use its discretionary power to dismiss the special leave petition filed by the petitioners herein ex parte but notice was ordered to the respondents herein. After hearing both sides, the special leave petition has been dismissed. It is not a case of dismissal simpliciter but a dismissal after hearing both sides. Therefore, in our view, the doctrine of merger applies. In fact, the Hon'ble Supreme Court has also opined that even if a special leave petition is dismissed by a detailed order, the doctrine of merger would apply even if leave would not have been granted. This is clear on a reading of the judgment in Kunhayammed. The Hon'ble Supreme Court has also opined that the doctrine of merger is not of universal application and each case would have to be considered in light of its facts in order to ascertain as to whether the review petition could be entertained by the High Court after the dismissal of a special leave petition arising from the order / judgment of the High Court although the doctrine of merger would not apply as even according to 36 the Hon'ble Supreme Court, it is not a doctrine of universal application.
25. But, what is more important to note in the instant case is whether there is an abuse of process of this Court and consequently, whether the petitioners are empowered to invoke the review jurisdiction after the Hon'ble Supreme Court has dismissed the special leave petition after hearing the counsel on both sides and therefore, emphasis on judicial propriety and discipline would assume significance. Further, this is also not a case where before the Hon'ble Supreme Court permission was sought for withdrawal of the special leave petition with liberty to file a review petition which we have come across in many cases and on the strength of the liberty granted by the Hon'ble Supreme Court, delay in filing the review petition is condoned by the High Court and the review petitions are entertained and disposed of. But, in the instant case, there is no withdrawal of the special leave petition, on the other hand, the special leave petition is dismissed after hearing the learned counsel on both sides. In fact, in such a circumstance, liberty was not sought to 37 file a review petition and it could not have been sought by the petitioners as they were unsuccessful before the Hon'ble Supreme Court.
26. Further, what is of significance is that the review petition has been filed four years after the dismissal of the regular first appeal by a co-ordinate bench of this Court. It may be that the petitioners herein were prosecuting this special leave petition before the Hon'ble Supreme Court. The Judges who passed the judgment in the regular first appeal have since retired on attaining the age of superannuation and after the dismissal of special leave petition, a second innings, so to say, is sought by the petitioners in filing this review petition. In our view, this is a clear case of abuse of the process of law and of this Court and a clear case of ignoring the Supreme Court order dismissing the special leave petition and venturing to file this review petition, which is wholly speculative in nature. We are afraid that in the instant case, we cannot entertain the review petition owing to judicial discipline and propriety and the glaring facts in the instant case. If our non-entertaining of the review petition is to be 38 construed as an error, then we would say that we may have erred on the side of caution and on being mindful of the judicial discipline and propriety, as highlighted by the learned counsel for the respondents and also the judgment of the Hon'ble Supreme Court on the issue under consideration, particularly the observations in Abbai Maligai Partnership Firm which have not been held to be contrary to law in any subsequent judgments of the Hon'ble Supreme Court.
27. Even though the Hon'ble Supreme Court has in Khoday Distilleries Limited permitted the review petition to be heard by this Court, the same are based on the peculiar facts that obtained in the said case which we have referred to. This is not to say that the judgment of the Hon'ble Supreme Court in Khoday Distilleries Limited is based purely on the facts of the said case. In fact, it is an order passed on a reference to consider as to whether there were conflicting opinions expressed in judgments of the Hon'ble Supreme Court subsequent to Abbai Maligai Partnership Firm or Kunhayammed. While, considering the said issue, the three Judge Bench in Khoday Distilleries 39 Limited has not over-ruled the judgment in Abbai Maligai Partnership Firm but has observed that it was decided on its own peculiar facts. But, we find that the facts which obtained in Abbai Maligai Partnership Firm are replicated in the instant case, inasmuch as in the said case also after the dismissal of the special leave petition after hearing both sides, the review petitions were filed challenging the judgment passed by the High Court after four years and thus, there is a delay of 1051 days in filing the review petitions after the dismissal of the regular first appeal. In Abbai Maligai Partnership Firm, the delay was condoned and the order passed by the High Court was reviewed and reversed and thereafter, the appellants therein filed special leave petition challenging the order passed in the review petition. While allowing the said special leave petition, the Hon'ble Supreme Court made the observations deprecating the manner in which the review petitions were filed and heard by the High Court after the dismissal of the special leave petitions, and the respondents therein were directed to pay costs to the appellants therein.
40
28. We find that the peculiar facts which arise in Abbai Maligai Partnership Firm exactly arise in the instant case also inasmuch as the review petition filed herein is after the dismissal of the special leave petition by the Hon'ble Supreme Court on 24/04/2017. It may be that, in Khoday Distilleries Limited the Hon'ble Supreme Court permitted the review petition to be entertained by this Court by setting aside the order passed by this Court dismissing the review petition as not maintainable, but we are more mindful and conscious of the observations in the nature of strictures passed by the Hon'ble Supreme Court in paragraph No.4 of Abbai Maligai Partnership Firm. The said strictures are serious and it implies that once the Supreme Court dismisses a special leave petition, no review petition could be entertained thereafter by the High Court.
29. In Union of India & Another Vs. Raghubir Singh (Dead) by LRs. etc., [(1989) 2 SCC 754], (Raghubir Singh) a Constitution Bench of the Hon'ble Supreme Court has observed that India is governed by a judicial system identified by a hierarchy of courts, where 41 doctrine of binding precedent is a cardinal feature of its jurisprudence. Unlike in the United Kingdom, in India, we have a written Constitution which represents the supreme law of the land and the Judiciary sits in judgment not only on the implementation of the law by the Executive, but also on the validity of the Legislation made by the Parliament or the State Legislature which is sought to be implemented. That the Supreme Court as the highest court in the entire judicial system, the law declared by it by Article 141 of the Constitution is binding on all courts within the territory of India. That the decisions of the Supreme Court are of significance not merely because they constitute adjudication on the rights of the parties and resolve the dispute between them, but also because in doing so, they embody a declaration of law operating as a binding principle in future cases. More significantly, an order of the Supreme Court passed after hearing the counsel for the respective parties is binding on the parties. Such an order cannot be interfered with by any inferior court, unless leave has been granted to any party to do so expressly. In our view, such a thing cannot be permitted 42 merely because the special leave petition is dismissed. If review petitions are filed and entertained after dismissal of a special leave petition after hearing both sides, it would result in a situation of there being no finality in the matter.
30. Finality in judgments of courts is a salutary principle of law. The Hon'ble supreme Court in Union of India vs. S.P. Sharma, [(2014) 6 SCC 351, para 90], has held that an issue of law can be overruled later on, but a question of fact cannot be re-opened once it has been finally sealed in proceedings inter se between the parties. That the doctrine of finality has to be applied in a strict legal sense. Re-opening of concluded judgments of the Court would not only tantamount to merely an abuse of the process of the court but would have far-reaching adverse effect on the administration of justice. Thus, the principle of finality of litigation is based on a sound firm principle of public policy. In the absence of such a principle great oppression might result under the colour and pretence of law inasmuch as there would be no end to litigation. Further, in Rupa Ashok Hurra vs. Ashok Hurra, [(2002) 4 SCC 388, para 40], it has been 43 observed that the principle of finality is insisted upon not on the ground that a judgment given by the Apex Court is impeccable but on the maxim interest reipublicae ut sit finis litium.
31. Further, the judgment in K.Rajamouli is by a two judge Bench which has followed the observations in Abbai Maligai Partnership Firm, but in Gangadhar Palo, which is also a decision by a two Judge Bench strength, has not appreciated the observations made in Abbai Maligai Partnership Firm. Similarly, in Kunhayammed, which is also a decision of three Hon'ble Judges, has also not over-ruled the judgment in Abbai Maligai Partnership Firm.
32. In fact, in paragraph No.26.3 of Khoday Distilleries Limited a reference has been made to paragraph No.37 of Kunhayammed's case which we have extracted above but we are more conscious and are bound by what is stated in paragraph No.26 in Kunhayammed's case which is an extract of paragraph No.4 of Abbai Maligai Partnership Firm. When the said position of law has been 44 affirmed by a three Judge Bench in Kunhayammed and when Kunhayammed has been affirmed in Khoday Distilleries Limited, in our view, this review petition, which is filed after the dismissal of special leave petition, after hearing the counsel on both sides, by the Hon'ble Supreme Court affirming the judgment of this Court in the regular first appeal, is not maintainable. In the circumstances, we dismiss the review petition as not maintainable.
Consequently, all pending applications stand dismissed.
No costs.
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JUDGE Sd/-
JUDGE kvk / S / RK/-