Review against dismissal of a second appeal concerning property transferred by a 1968 registered sale deed and SAR proceedings. The court held the delayed review was an afterthought after SLP dismissal, no error was pointed out, and dismissed both the review petition and the condonation application.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JHARKHAND, RANCHI
Civil Review No.71 of 2023
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Ashish Ranjan Lal aged about 55 years son of Late Thakur Braj Kishore Lal, resident of Village Hatma, P.O. and P.S. – Lalpur, District
– Ranchi (Jharkhand) ….. Petitioner
1. Deshbandhu Gupta son of Late Mathura Prasad, resident of C/O R.P. Jaiswal Advocate, Kali Babu Street, P.O. G.P.O., P.S. – Kotwali, district – Ranchi
2. Sunita Devi wife of Sudarshan Prasad Gupta, resident of Mission Road Lane, Kanke Road, Ranchi. At present residing Kali Babu Street, P.O. G.P.O. P.S. – Kotwali, District – Ranchi
3. Mithilesh Kumar Singh son of Late Gangu Singh
4. Lila Devi daughter of Late Gangu Singh both residents of Mela Road Tehta, P.O. Tehta, P.S. Makdumpur, district Jahanabad, at present residing at Mission Gali, Kanke Road, P.O. and P.S. – Gonda, District – Ranchi …... Opposite Parties
CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
For the Petitioner :- Mr. Jagdish Haridas Mahajan, Advocate :- Mr. Avilash Kumar, Advocate
For the Opposite Parties :-
3 /16.08.2024 Heard learned counsel appearing for the petitioner.
2. This Civil Review application has been filed for reviewing the judgment dated 05.01.2023 in S.A. No.207 of 2014 whereby the said second appeal was dismissed.
3. Learned counsel appearing for the petitioner submits that the Second Appeal No.207 of 2014 was dismissed by this Court
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vide judgment dated 05.01.2023 and thereafter the petitioner filed the Special Leave Petition (Civil) No.17813 of 2023 which was dismissed by order dated 21.07.2023. He further submits that after the dismissal of the SLP, the present civil review was filed with a delay of 216 days and I.A. No.10729 of 2023 has been filed for condonation of delay. He then submits that Hon’ble the Supreme Court has dismissed the SLP in limine and in view of that the Supreme Court has not decided the matter on merit as such, the civil review petition is maintainable as in view of the doctrine of merger of the orders, the order of this Court passed in Second Appeal is not merged with the SLP. He submits that in view of that the case of the petitioner is covered in the light of the judgment of Hon’ble the Supreme Court in the case of Khoday Distilleries Ltd. versus Sri Mahadeshwara Sahakara reported in Civil Appeal No.2432 of 2019 arising out of SLP (C) No.490 of 2012.
4. Relying on the aforesaid judgment, learned counsel appearing for the petitioner submits that the case of the petitioner is covered in view of principle of merger and in view of that this review petition may kindly be entertained. On this ground, he submits that the delay may kindly be condoned and notice in the review petition may kindly be issued upon the respondents.
5. The learned counsel appearing for the petitioner again repeated the same argument which has already been decided by
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this Court by order dated 05.01.2023 passed in S.A. No.207 of 2014 and thereafter S.L.P. has been dismissed on merit.
6. Second Appeal No.207 of 2014 was decided by this Court by order dated 05.01.2023 on the point of admission itself and the said second appeal was not admitted on any substantial question of law. It is well settled that the second appeal, if any substantial question of law is involved, then only the second appeal can be admitted. By order dated 05.01.2023, the second appeal was dismissed by an elaborate order that too in a case which was not admitted on any question of law. Petitioner herein lost his case in the Trial Court as well as in the First Appellate Court. The points as to whether the property, which was transferred by the predecessors in interest of the plaintiff through registered sale deed of the year 1968, was retained by the predecessors in interest of the plaintiff in the SAR proceeding, however restored back to the recorded raiyat in the said SAR proceeding of the year 1974 was decided by the learned Trial Court which was affirmed by the First Appellate Court. 7. Thus, the said order was passed based on the materials on record and that was a reasoned order. The said order was challenged by the petitioner in Special Leave Petition (Civil) No.17813 of 2023 which was dismissed by order dated 21.07.2023 and after the delay of 216 days, the present review petition has been filed. This is not a case that review petition was filed earlier which was not decided by this Court and it was pending and during
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the pendency of the review petition, the petitioner has moved before the Hon’ble Supreme Court in Special Leave Petition (Civil) No.17813 of 2023 which was dismissed by order dated 21.07.2023. After dismissal of the SLP, the present review petition has been filed after the delay of 216 days which clearly suggests that this was an afterthought of the petitioner.
8. In the judgment relied by the learned counsel appearing for the petitioner, the issue was with regard to the maintainability of the review petition with regard to the pending review petition and subsequently dismissal of the SLP in that background it was decided that the review petition can be maintained, however, in the said judgment itself, it was disclosed and in the same judgment paragraph No.26 and 27 which was sum up as under:-
"4. Following the decision in Kunhayammed [(2000) 6 SCC 359] 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
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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 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 [(1998) 7 SCC 386] 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.
But this is not the case here. In the present case, the review petition was filed well within time and since the review petition was not being decided by the High Court, the appellant filed the special leave petition against the main judgment of the High Court. We, therefore, overrule the preliminary objection of the counsel for the respondent and hold that this appeal arising out of special leave petition is maintainable.”
(a) The conclusions rendered by the three Judge Bench of this Court in Kunhayammed and summed up in paragraph 44 are affirmed and reiterated.
(b) We reiterate the conclusions relevant for these cases as under:
"(iv) An order refusing special leave to appeal may be a non-speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed.
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(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 Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation.
(vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before the Supreme Court the jurisdiction of High Court to entertain a review petition is lost thereafter as provided by sub-rule (1) of Rule 1 of Order 47 CPC.”
(c) Once we hold that law laid down in Kunhayammed is to be followed, it will not make any difference whether the review petition was filed before the filing of special leave petition or was filed after the
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dismissal of special leave petition. Such a situation is covered in para 37 of Kunhayammed case.
9. Further reference may be made to the case of Kunhayammed and Others versus State of Kerala and Another reported in (2000) 6 SCC 359 wherein paragraph No.34, 37 and 40 it has been held as under:-
The doctrine of merger and the right of review are concepts which are closely inter-linked. If the judgment of the High Court has come up to this Court by way of a special leave, and special leave is granted and the appeal is disposed of with or without reasons, by affirmance or otherwise, the judgment of the High Court merges with that of this Court. In that event, it is not permissible to move the High Court by review because the judgment of the High Court has merged with the judgment of this Court. But where the special leave petition is dismissed - there being no merger, the aggrieved party is not deprived of any statutory right of review, if it was available and he can pursue it. It may be that the review court may interfere, or it may not interfere depending upon the law and principles applicable to interference in the review. But the High Court, if it exercises a power of review or deals with a review application on merits - in a case where the High Courts order had not merged with an order passed by this Court after grant of special leave - the High Court could not, in law, be said to be wrong in exercising statutory jurisdiction or power vested in it.
Let us assume that the review is filed first and the delay in the SLP is condoned and the special
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leave petition 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 preferred against the earlier decree - the one before review - becomes infructuous.
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,
(v) 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
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offers contest to the maintainability of the petition. The Court may apply its mind to the merit worthiness of the petitioners’ prayer seeking leave to file an appeal and having formed an opinion may say dismissed on 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
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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 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.
10. Further in the case of State (NCT of Delhi) v. K.L. Rathi Steels Ltd. reported in (2023) 9 SCC 757 the question has been answered when review is not maintainable as under:-
(i) In the aforesaid case Union of India vs. Sandur Manganese & Iron Ores Ltd. & Ors. (2013) 8 SCC 337 has also been adverted to wherein this Court delineated on some of the grounds as to when the review will not be maintainable as under: -
“(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications,
(ii) Minor mistakes of inconsequential import,
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(iii) Review proceedings cannot be equated with the original hearing of the case,
(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice,
(v) A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected but lies only for patent error,
(vi) The mere possibility of two views on the subject cannot be a ground for review,
(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched,
(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition, and
(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived.”
11. In view of the above and considering the aforesaid
judgments of Hon’ble the Supreme Court and further finding that the said SLP was disposed of in the following manner on merit :-
“Upon hearing the counsel, the Court made the following order:
Delay Condoned.
We do not find any ground and reason to interfere in
the order impugned. This special leave petition is dismissed.
Pending applications stand disposed of.”
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Thereafter, the present review petition has been filed with a delay of 216 days, the case of the petitioner is not fit to be entertained as learned counsel appearing for the petitioner again tried to reopen the entire case by way of arguing that law point is involved for admitting the second appeal. He has not been able to point out any error in the judgment and again he repeated the same argument which has been decided by this Court by an elaborate order dated 05.01.2023 in S.A. No.207 of 2014.
12. Further the lawyer, who has argued the matter earlier, has not filed the present review petition and new counsel has argued this review petition and tried to reopen the entire case without pointing out any error in the judgment. In the case of T.N. Electricity Board and Anr. versus N. Raju Reddiar reported
in (1997) 9 SCC 736 the Hon’ble Supreme Court held that “Review petition is not and should not be, an attempt for hearing the matter again on merits. Unfortunately, it has become, in recent time, a practice to file such review petitions as a routine, that too, with change of counsel, without obtaining consent of the advocate on record at earlier stage. This is not conducive to healthy practice of the Bar which has the responsibility to maintain the salutary practice of profession.”
13. In view of above facts, reasons and analysis, the review petition is dismissed
14. On merit itself, no ground is made out to entertain the review
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petition and sufficient explanation is not made for condoning the delay of 216 days, as such the I.A. No.10729 of 2023 meant for condonation is also dismissed.
(Sanjay Kumar Dwivedi, J.)
Sangam/
A.F.R.
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2 issues framed by the court
Is a review petition filed after a long delay following dismissal of an SLP maintainable under the doctrine of merger?
Should the delay of 216 days in filing the review be condoned?
Colour shows how this judgement treated each authority
Khoday Distilleries Ltd. versus Sri Mahadeshwara SahakaraDistinguished
Civil Appeal No.2432 of 2019 arising out of SLP (C) No.490 of 2012
Kunhayammed and Others versus State of Kerala and AnotherRelied on¶9
(2000) 6 SCC 359 · Who else cites this
State (NCT of Delhi) v. K.L. Rathi Steels Ltd.Relied on¶10
(2023) 9 SCC 757 · Who else cites this
T.N. Electricity Board and Anr. versus N. Raju ReddiarRelied on¶12
(1997) 9 SCC 736 · Who else cites this
Ashish Ranjan Lal
Deshbandhu Gupta
Sunita Devi
Mithilesh Kumar Singh
Lila Devi
Sanjay Kumar Dwivedi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
