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2007 DIGILAW 3068 (MAD)

C. C. India Pvt Ltd. , formerly known as C. C. Impex (P) Ltd. , rep. By its Director, Alwarpet, Chennai v. Avastra Design Studio rep. By its PartnerKhader Nawz khan Road, Chennai & Another

2007-09-19

S.ASHOK KUMAR

body2007
Judgment : 2. The brief facts of the case are as follows:- The petitioner is the tenant. This court passed a detailed order on 20.4.2007 directing the petitioner to vacate the premises and hand over vacant possession on or before 30.9.2007. At the time of disposing of the CRPs nearly 9 months have lapsed and this court granted a further period of 6 months i.e., upto 30.9.2007 for handing over vacant possession. But without doing so, the petitioner has filed Special Leave Petition before the Honble Supreme Court of India in SLP (Civil) Nos:12004 and 12005 of 2007. On 30.7.2007, the Honble Supreme Court, after hearing the arguments of counsel appeared for both sides, passed the following Order: "Heard. We see no reason to interfere. The Special Leave Petition is dismissed." 3. Thereafter, the petitioner filed the Review Applications with applications to condone the delay of 72 days in preferring the said review applications. The only reason shown for the delay is that the petitioner was pursuing his remedy before the Honble Supreme Court of India. 4. Mr.Abudukumar Rajarathinam, learned counsel appearing for the respondent would contend that this is a sheer abuse of process of the court in view of the judgment pronounced by the Honble Supreme Court in 1998 (7) SCC 386 (Abbai Maligai Partnership Firm and another Vs. K.Sanathakumaran and others) wherein Their Lordships have 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 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 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. By passing the impugned order on 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 matter 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 4. 1994 passed in the review petitions is hereby set aside. The respondents shall pay Rs.10,000/= as costs." 5. The above judgment was also considered in Kunhayammod and others Vs. State of Kerala and another reported in JT 2000 (9) SC 110 and the Honble Apex Court held as follows:- "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-Judge 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 re versed 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 judicial discipline”. The High Court thereafter entertained review petitions which were highly belated and having condoned the delay re versed 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 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. 27. A petition for leave to appeal to this Court may be dismissed by a non-speaking order or by a speaking order. Whatever be the phraseology employed in the order of dismissal, if it is a non-speaking order, i.e., it does not assign reasons for dismissing the special leave petition, it would neither attract the doctrine of merger so as to stand substituted in place of the order put in issue before it nor would it be a declaration of law by the Supreme Court under Article 141 of the Constitution for there is no law which has been declared. If the order of dismissal be supported by reasons then also the doctrine of merger would not be attracted because the jurisdiction exercised was not an appellate jurisdiction but merely a discretionary jurisdiction refusing to grant leave to appeal. We have already dealt with this aspect earlier. Still the reasons stated by the Court would attract applicability of Article 141 of the Constitution if there is a law declared by the Supreme Court which obviously would be binding on all the courts and tribunals in India and certainly the parties thereto. We have already dealt with this aspect earlier. Still the reasons stated by the Court would attract applicability of Article 141 of the Constitution if there is a law declared by the Supreme Court which obviously would be binding on all the courts and tribunals in India and certainly the parties thereto. The statement contained in the order other than on points of law would be binding on the parties and the court or tribunal, whose order was under challenge on the principle of judicial discipline, this Court being the Apex Court of the country. No court or tribunal or parties would have the liberty of taking or canvassing any view contrary to the one expressed by this Court. The order of Supreme Court would mean that it has declared the law and in that light the case was considered not fit for grant of leave. The declaration of law will be governed by Article 141 but still, the case not being one where leave was granted, the doctrine of merger does not apply. The Court sometimes leaves the question of law open. Or it sometimes briefly lays down the principle, may be, contrary to the one laid down by the High Court and yet would dismiss the special leave petition. The reasons given are intended for purposes of Article 141. This is so done because in the event of merely dismissing the special leave petition, it is likely that an argument could be advanced in the High Court that the Supreme Court has to be understood as not to have differed in law with the High Court. 41. Once a special leave petition has been granted, the doors for the exercise of appellate jurisdiction of this Court have been let open. The order impugned before the Supreme Court becomes an order appealed against. Any order passed thereafter would be an appellate order and would attract the applicability of doctrine of merger. It would not make a difference whether the order is one of reversal or of modification or of dismissal affirming the order appealed against. It would also not make any difference if the order is a speaking or non-speaking one. Any order passed thereafter would be an appellate order and would attract the applicability of doctrine of merger. It would not make a difference whether the order is one of reversal or of modification or of dismissal affirming the order appealed against. It would also not make any difference if the order is a speaking or non-speaking one. Whenever this Court has felt inclined to apply its mind to the merits of the order put in issue before it though it may be inclined to affirm the same, it is customary with this Court to grant leave to appeal and thereafter dismiss the appeal itself (and not merely the petition for special leave) though at times the orders granting leave to appeal and dismissing the appeal are contained in the same order and at times the orders are quite brief. Nevertheless, the order shows the exercise of appellate jurisdiction and therein the merits of the order impugned having been subjected to judicial scrutiny of this Court." 6. The facts of this case are exactly similar to the facts of the case reported in 1998 (7) SCC 386 . The order of the Honble Supreme Court in the present case has been passed after hearing both parties. It cannot be said that it is a non speaking order, because the reason is given that after hearing both the parties, there is no necessity to interfere with the order. It is not an one word order, but a reasonable order after hearing both the parties. Therefore, a further review against my own order cannot be filed before this court. 7. Learned counsel for the respondent would also submit that the petitioner/tenant has not paid the rent so far. However, Learned counsel for the petitioner would submit that already he has paid advance rent of Rs.7,55,000/=. But, even after deducting the said advance rent of Rs.7.55 lakhs, still the tenant is liable to pay Rs.3,29,640/=. When questioned about the arrears of rent, the learned counsel for the petitioner would submit that the tenant has not recognised the respondent as his Landlord. This submission of the learned counsel for the petitioner has no meaning. It is the petitioner who himself impleaded the respondent in the suit filed by him against the erstwhile owner on the ground that the respondent has become the subsequent owner of the suit property. This submission of the learned counsel for the petitioner has no meaning. It is the petitioner who himself impleaded the respondent in the suit filed by him against the erstwhile owner on the ground that the respondent has become the subsequent owner of the suit property. After impleading him in the suit filed by him before the City Civil Court, being the owner of the property, it is not fair to submit that the petitioner is not recognising the respondent as his landlord. 8. In the result, both the applications to condone the delay, as well as the review applications, which are in S.R. stage, are dismissed. No costs.