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2008 DIGILAW 405 (GAU)

Union of India v. Harinagar Sugar Mills Limited

2008-06-02

BROJENDRA PRASAD KATAKEY

body2008
JUDGMENT B.P. Katakey, J. 1. The respondent in MFA No. 54/2007 filed an application being Application No. 88/20004 against the Railway Administration for refund of freight over charge amounting to Rs. 3,54,236/- with interest contending that the goods booked vide different railway receipts were not delivered in the destination station but was delivered at a station much before the destination station though they collected the freight up to the destination station as well as the demurrage charged. The respondents in MFA No. 89/2007 approached the learned Tribunal in Application No. 149/2005 claiming compensation for short delivery of the consignment at the destination station as well as challenging the penalty imposed for the excess weight detected in enroute weighment. In both the cases the railway contested the claim. In the reply filed in Application No. 88/04, it has been contended by the railway that as the goods reached the destination station JTTN before effecting the interception/diversion order, such interception order stands automatically cancelled in terms of the Indian Railway Commercial Manual and thereafter, the goods were arranged to be delivered at DMV (diversion station) at the request of the applicant who undertook to pay all necessary charges/railway dues and therefore, the applicant is liable to pay the freight as well as demurrage charges. In Application No. 149/2005, the Railway Administration in the objection apart from other grounds have taken the stand that the Tribunal has no jurisdiction to entertain any dispute relating to the imposition of penal charges for excess weight detected. 2. The learned Tribunal on the basis of the materials available on record vide orders dated 5-9-2006 and 7-12-2006 directed the Railway Administration to pay a sum of Rs. 1,78,200/- and Rs. 5,20,800/- with interest and cost in respect of Application Nos. 88/2004 and 149/2005, respectively. In Application No. 149/05, the learned Tribunal has also condoned the penal charges imposed by the Railway Administration. The Railway Administration thereafter, filed review petitions, which were registered a Review Petition Nos. 19/2006 and 2/2007, respectively, seeking review of the aforesaid judgments and orders passed by the learned Tribunal, which were, however, dismissed vide orders dated 11-4-2007 and 7-3-2007. The Railway Administration in the present appeals has challenged both the original judgments and orders as well as the orders passed in the review petition rejecting the same. 3. I have heard Mr. S. Sarma and Mr. The Railway Administration in the present appeals has challenged both the original judgments and orders as well as the orders passed in the review petition rejecting the same. 3. I have heard Mr. S. Sarma and Mr. U.K. Nair, the learned Counsel for the appellants and Mr. A.K. Saraf, the learned Sr. Counsel appearing on behalf of the respondents. 4. The learned Counsel for the appellants have submitted that the learned Tribunal without recording any finding on the question involved passed by the judgments and orders, in as much as it did not take into consideration the plea of the Railway Administration relating to the request made by the applicant for sending back the consignment from the destination station to another station with an undertaking to pay all the railway charges and also the provisions contained in the Indian Railway Commercial Manual relating to cancellation of the interception/diversion order. According to the learned Counsel, the learned Tribunal did not also consider the plea of the Railway relating to the jurisdiction to entertain the application challenging the penalty imposed due to the over weight detected during enroute weighment. It has further been contended that the Tribunal also did not consider the endorsement contained in the RR while passing the impugned judgment and orders and, therefore, it is a fit case where the judgments and orders passed by the learned Tribunal may be set aside and the matter may be remitted to the learned Tribunal for giving a fresh decision on all the questions raised. 5. Dr. Saraf, the learned Sr. counsel has submitted that since the Railway Administration filed the review petitions, seeking review of the judgments and orders before the learned Tribunal, the appeals against the original judgments and orders are not maintainable. On the submission of remand, Dr. Saraf, the learned Sr. counsel has contended that as the learned Tribunal has not answered all the questions raised before it, the matter may be remanded to the learned Tribunal provided the appeals, are maintainable. Dr. Saraf has placed reliance on two decisions of this Court in Suren Baruah v. Bhogeswari Rajkhowa 2002 3 GLT 495 as well as on the order dated 24-3-2008 passed in Misc. Dr. Saraf has placed reliance on two decisions of this Court in Suren Baruah v. Bhogeswari Rajkhowa 2002 3 GLT 495 as well as on the order dated 24-3-2008 passed in Misc. Case No. 2354/2007 arising out of MFA No. 51/2007 (General Manager, NF Railway v. Hills Trade Agencies), in support of his contention that since the original order has merged with the order rejecting the review petition, no further appeal lies against the original order in view of Order 47, Rule 7, CPC and the order rejecting the review petition being not an appealable order and the Railway Administration having exercised their right of review, relief by way of the appeal is not available to it. 6. Mr. Sarma replying to the argument of the learned Sr. counsel for the respondents, relating to the maintainability of the appeal, has submitted that the present appeals also being against the original judgments and orders passed by the learned Tribunal, review of which orders were sought for but were rejected, the present appeals are maintainable as Order 47, Rule 7, CPC debars appeal against the order rejecting the review petition. According to the learned Counsel, when the review petition is rejected, the original order sought to be reviewed does not merge with the order rejecting the review petition and, therefore, the original order can be challenged in appeal as provided under Section 23 of the Railway Claims Tribunal Act, 1987. Such order merges with the order passed in the review petition only when the application for review is accepted by the learned Tribunal, then, naturally the appellant cannot challenge the original order in appeal as the said original order be come non est. The learned Counsel in sup port of his contention has placed reliance on the decision of the Apex Court in Kunhayammed v. State of Kerala [2000] 245 ITR 360 (SC) ; Rekha Mukherjee v. Ashis Kumar Das AIR 2005 SC 1944 and Manohar v. Jaipalsingh AIR 2008 SC 429 . 7. Referring to the decisions of this Court on which the learned Sr. 7. Referring to the decisions of this Court on which the learned Sr. counsel for the respondents has placed reliance, it has been submitted by the learned Counsel for the appellants that in the judgments and orders passed by this Court the question - whether the original judgment and decree is merged with the order rejecting the review application - was not considered and appeal against the original judgment order held to be not maintainable mainly because of the provisions contained in Order 47, Rule 7, CPC, which only debars an appeal against an order rejecting the review petition. It has further been submitted by the learned Counsel for the appellant that in view of the judgments passed by the Apex Court, the appeals preferred by the appellant against the original judgment and orders are maintainable, as the review petitions were rejected by the learned Tribunal. 8. The first question, which, therefore, requires consideration in the present appeals, is whether the appeal preferred by the appellant against the original judgments and orders are maintainable, when the review petitions filed seeking review of such judgments and orders were rejected by the learned Tribunal, in other words whether the original judgments and orders merged with the orders rejecting the review petitions passed by the learned Tribunal. Doctrine of merger is neither a doctrine of constitutional law nor a doctrine statutorily recognized. It is a common law doctrine founded on principles of propriety in the hierarchy of justice delivery system, as observed by the Apex Court in Kunhayammed (supra). The Apex Court in State of Madras v. Madurai Mills Co. Ltd. [1967] 1 SCR 732, which decision was relied upon in Kunhayammed (supra) has 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 the 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 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. 9. 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. 9. It has further been observed in Kunhayammed (supra) that the logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject-matter at a given point of time and 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 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 the authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the Court, Tribunal or authority below. The Apex Court, however, opined that the doctrine is not an universal or unlimited application and while applying the said doctrine 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. The Apex Court in the said case has held that when the special leave petition is dismissed by it without reason there is no res judicata and the doctrine of merger cannot be applied and, therefore, the order against which the special leave petition was filed but was rejected without reason can be reviewed by the High Court, as the special leave petition is not an appeal but an application seeking leave of the Court to file the appeal. But when the special leave is granted an appeal is registered, the order appealed against merged with the appellate order passed by it even if such appeal is dismissed by a non-speaking order. 10. The Apex Court in Kunhayammed (supra) following on its earlier decision in Sushil Kr. But when the special leave is granted an appeal is registered, the order appealed against merged with the appellate order passed by it even if such appeal is dismissed by a non-speaking order. 10. The Apex Court in Kunhayammed (supra) following on its earlier decision in Sushil Kr. Sen v. State of Bihar [1975] 3 SCR 942 has further observed that the doctrine of merger, which is usually applicable to orders passed in exercise of appellate or revisional jurisdiction is applicable also to orders passed in exercise of review jurisdiction. It has further been observed that an effect of allowing an application for review of a decree is to vacate a decree passed and the decree that is subsequently passed on review, whether it modifies, reverses or confirms the decree originally passed, is a new decree superseding the original one. It has further been held by the Apex Court that in that case an appeal cannot be preferred against a decree after a review against the decree has been granted, as the decree reviewed gets merged in the decree passed on review and the appeal to the superior Court preferred against earlier decree - the one before review - becomes infructuous. 11. The scope of review under Section 114 read with Order 47, Rule 1, CPC as well as under Rule 32 of the Railway Claims Tribunal (Procedure) Rules, 1987 are very limited. A review petition can be entertained only when there is an error apparent on the face of the record or on discovery of new and important matter or evidence, which the party seeking review, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order was made or for any other sufficient reason. It is a settled position of law that the review is not an appeal in disguise. The scope of review as well as the appeal is completely different, while the review petition is limited to what has been stated above, the appellate jurisdiction is wide and in first appeal the Court can go into the question of fact even. 12. It is a settled position of law that the review is not an appeal in disguise. The scope of review as well as the appeal is completely different, while the review petition is limited to what has been stated above, the appellate jurisdiction is wide and in first appeal the Court can go into the question of fact even. 12. The review petition can be filed seeking review of a decree or order from which an appeal is allowed but no appeal has been preferred or from which no appeal is allowed or against the decision on a reference of a Court of small causes. 13. Order 47, Rule 7 of the CPC provides that an order of the Court rejecting an application for review is not appealable but an order granting the application may be challenged by an appeal from the order granting the application or in an appeal finally passed or made in the suit. Therefore, naturally an appeal is not maintainable against the order rejecting a review application. While dealing with the review application, keeping in view the nature of such jurisdiction, the Court is not required to go into the details of the order against which the review sought for, like in appeal, therefore, it cannot be said that such order merges with the order rejecting the prayer for review. But once the review petition is allowed the Court has to rehear the matter and may keep the same order or pass another order. In that case, therefore, the original judgment and order will no longer survive and hence no appeal can be preferred against such order. When the application for review is accepted, what is to be appealed against is the order passed allowing the review petition or the judgment and order that may be passed thereafter, on the main case. But when the review petition is rejected the original judgment and order stands and, therefore, the right of appeal granted under the statute cannot be taken away on the ground that the said order was sought to be reviewed but the review petition was rejected. Such order does not merge with the order rejecting the review petition. 14. The Apex Court in Rekha Mukherjee (supra) has also held that the right of review is a statutory right, which can be invoked if the conditions, therefore, are fulfilled, so is a right of appeal. Such order does not merge with the order rejecting the review petition. 14. The Apex Court in Rekha Mukherjee (supra) has also held that the right of review is a statutory right, which can be invoked if the conditions, therefore, are fulfilled, so is a right of appeal. A right of review and right to appeal stands on different footings, although some grounds may be overlapping. If a review is granted, the decree stands modified but such modification of a decree is not ancillary or a supplemental proceeding so as to be revived upon setting aside the decree granting review. The Apex Court keeping in view the facts and circumstances of that case has further observed that the respondents in that case could have prefer appeal only from that part of the decree in respect of which the review was not granted. In Monohar (supra) the Apex Court has rejected the contention that the remedy of review being a statutory remedy available to an aggrieved party, an order passed in such proceedings would merge with the main judgment and decree. The Apex Court has observed that it is incorrect to contend that where a review petition was dismissed, the doctrine of merger will have any application whatsoever and it is one thing to say that the party was entitled to file an application for review in terms of Section 114 read with Order 47, Rule 1, CPC, but is another thing to say that the decree passed in favour of that party merged with the order dismissing the review application. It has further been observed that the matter might have been different, if the review application had been allowed either wholly or in part in terms whereof an application for execution of the decree could have been filed only against the modified decree. 15. In view of the aforesaid discussion as well as having regard to the ratio laid down by the Apex Court in the decisions discussed above, with all respect, I am unable to persuade myself to accept the decisions of this Court relied upon by the learned Sr. counsel for the respondents. Moreover, in those cases, the question as to whether the original judgment and order gets merged with the order rejecting the application seeking review, has not been raised. counsel for the respondents. Moreover, in those cases, the question as to whether the original judgment and order gets merged with the order rejecting the application seeking review, has not been raised. In the premises, I am of the view that an appeal against the original judgment and order after rejection of the application seeking review, is maintainable. 16. Having held that the present appeals are maintainable, the next question, which requires consideration, is whether the judgments and orders appealed against can be sustained in law. It appears from the judgments and orders passed by the learned Tribunal that the same were passed without taking into consideration the contentions of the Railway Administration as reflected above. The learned Sr. counsel for the respondents in fact has submitted that the matters require to be considered by the learned Tribunal as all the questions raised by the Railway Administration have not been answered. The learned Tribunal has also not gone into the question as to whether it has the jurisdiction to entertain the application questioning the penalty imposed by the Railway Administration due to the excess weight found on enroute weighment. It is the duty of the learned Tribunal to frame and record the issues, both on facts and law, on the basis of the pleadings of the parties as required under Rule 21 of the Railway Claims Tribunal (Procedure) Rules, 1989 and to record finding on each issues. The learned Tribunal has also not gone into the provisions of Indian Railway Commercial Manual relating to the interception/diversion orders while deciding the case. 17. The learned Tribunal having not gone into all the questions, both on facts and law, which it is bound to do before passing the judgment and order, and having passed such judgments only on the basis of the contention of the respondents herein, I set aside the judgments and orders passed by the learned Tribunal and remit the matters to the learned Tribunal for giving fresh decisions. Since the proceedings were instituted in the year 2004/2005, the learned Tribunal is directed to dispose of such proceedings afresh as expeditiously as possible, preferably within a period of six months from the date of receipt of the records. The parties are directed to appear before the learned Tribunal on 9th June, 2008. Since the proceedings were instituted in the year 2004/2005, the learned Tribunal is directed to dispose of such proceedings afresh as expeditiously as possible, preferably within a period of six months from the date of receipt of the records. The parties are directed to appear before the learned Tribunal on 9th June, 2008. Registry is directed to send down the records forthwith so as to reach the learned Tribunal on or before the date fixed for appearance of the parties. 18. The appeals stands allowed to the extent indicated above. The impugned judgments and orders are set aside. No cost. Appeal allowed.