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2011 DIGILAW 1546 (CAL)

Pramod Kumar Jalan v. Banwarilal Jalan

2011-12-22

J.N.PATEL, SAMBUDDHA CHAKRABARTI

body2011
JUDGMENT 1. The petitioner is the original respondent who has filed this application for review of the judgment and order dated 4th March, 2011 passed by the Division Bench of this Court in G.A. No. 3725 of 2010, A.P.O.T. No. 657 of 2010, A.O.R.C. No.1 of 2010 and A.O.R.C. No.2 of 2010 (Banwarilal Jalan vs. Pramod Kumar Jalan). The respondent has raised a preliminary issue as to the maintainability of the review application on the premise that a Special Leave Petition preferred against the order dated 4th March, 2011 was dismissed in limine by the Supreme Court and, therefore, it will not be permissible for this Court to entertain the review application. 2. It was submitted on behalf of the respondent that the preliminary issue of maintainability of the petition be first decided before proceeding with the review petition. 3. This case pertains to the bequest relating to the tenancy right in respect of the north-west ground floor flat at premises No.10, Lower Rawdon Street, Calcutta-700020, which the father of the executor held as a monthly tenant under a trust. The Will stipulated that such tenancy should go to a grandson of the testators through another son. The Probate of the joint and mutual Will was granted to the executor on September 06, 2007. Since then, administration of the estate is complete. 4. It is the case of the petitioner, legatee of the said flat, that the executor refused to give assent to the said legacy of the petitioner under Section 332 of the Indian Succession Act and, therefore, the petitioner on or about May, 2009 filed a suit in the Alipore Court being Title Suit No. 1442 of 2009 against the respondent who was impleaded therein as defendant No. 1 in his capacity as the executor, as well as in his capacity as a trustee (impleaded therein as defendant No. 4) for a declaration that he was entitled to the tenancy right in respect of the bequeathed flat and also for other consequential relief by way of injunction. 5. On an interlocutory application filed by the petitioner in the said suit, on or about May 4, 2009 an order of status quo was passed by the Learned Trial Judge. An appeal was preferred from the said order but the same was rejected. 6. The respondent (defendant nos. 5. On an interlocutory application filed by the petitioner in the said suit, on or about May 4, 2009 an order of status quo was passed by the Learned Trial Judge. An appeal was preferred from the said order but the same was rejected. 6. The respondent (defendant nos. 1 and 4 in the said suit) filed an application under Section 151 of the Code of Civil Procedure, seeking permission to appoint security guard to safeguard the safety of the said flat. The application came to be rejected by the order dated 8th February, 2010. A revisional application filed by the respondent in the High Court was also rejected by order dated 21st April, 2010 and the learned Judge directed that the respondent should hand over the said flat to the petitioner, but the petitioner would hold the same in his capacity as a special officer of the Court until disposal of the suit. A Special Leave Petition was filed against the said order and the same was rejected. Thereafter, the respondent refused to comply with the direction contained in the Order dated 21st April, 2011. Contempt proceeding had been initiated by the petitioner and the same is pending. 7. It is the case of the petitioner that he was advised to file an application under Section 301 of the Indian Succession Act for removal of the executor, respondent herein, for his insolent refusal to comply with the directions of the testator in his will. 8. By way of counterblast, the respondent filed an application under Section 301 of the Indian Succession Act seeking declaration to the effect that bequest of the tenancy right of a flat is void and unlawful and as such he has no obligation to give any assent to the said legacy or transfer of the said flat in favour of the petitioner. 9. Both the applications were heard and disposed of by judgment and order dated 10th December, 2010 by the learned single Judge of this Court who directed the respondent as the executor, to give assent to the said legacy in favour of the petitioner and dismissing the respondent’s application filed under Section 302 of the said Act. 10. This led to filing of an appeal before the Division Bench of this Court which was disposed of by order dated 4th March, 2011 by this Court. 10. This led to filing of an appeal before the Division Bench of this Court which was disposed of by order dated 4th March, 2011 by this Court. The Division Bench accepted the submissions of the respondent and held that bequest of a monthly tenancy right, being in favour of a person not included within the definition of tenant under Section 2(g) of the West Bengal Premises Tenancy Act, 1997, is void and illegal. 11. Aggrieved by the order dated 4th March, 2011 a Special Leave Petition was preferred which came to be dismissed in limine by the Supreme Court. 12. Learned Counsel appearing for the legatee petitioner contended, as a proposition of law that a party is entitled to file an application for review under Order 47 of the Code of Civil Procedure as a matter of right provided:- (i) Such right is not time-barred, and (ii) The Hon’ble Supreme Court while dismissing the Special Leave Petition in limine, has not admitted the petition and consequently did not decide the matter on merits in other words, the impugned order has not merged with the Hon’ble Supreme Court’s order. 13. Counsel for the petitioner cited many cases on various aspects of the matter but kept the case of Kunhayammed reported in AIR 2000 SC 2587 =(2000) SCC 359 and Gangadhara Palo reported in (2011) 4 SCC 602 at the forefront of his argument in support of his aforesaid submissions. 14. Counsel for the respondent, in turn, also relied on cases decided by the Hon’ble Supreme Court and, in particular, two decisions of the Division Bench of this Hon’ble Court, namely, Puranmall Goenka case reported in 2006 (3) CHN 737 and West Bengal Dairy & Poultry Development Corporation Limited case reported in (2009) 4 CHN page 288 which in turn was relied on and followed Abbai Maligai case reported in AIR 1999 SC 1486 = (1998) 7 SCC 386 in support of his contention that once a Special Leave Petition preferred from impugned order has been dismissed, regardless of whether it was dismissed at the threshold or after admission of the same, no review application is maintainable from the self same order. 15. In Palani Roman Catholic Mission vs. S. Bagirathi Ammal reported in (2009) 16 SCC 657 , the Supreme Court held:- “4. 15. In Palani Roman Catholic Mission vs. S. Bagirathi Ammal reported in (2009) 16 SCC 657 , the Supreme Court held:- “4. This Court in Kunhayammed vs. State of Kerala has taken the view that an order of the nature made in the special leave petition arising out of the order of the High Court, which is a non-speaking order, does not attract the doctrine of merger and it would not substitute the order impugned in the special leave petition proceedings with the result that the Court was not inclined to exercise its discretion so as to allow the appeal to be filed. 5. This Court has in the said decision proceeded to state that a review can be filed in such a case even after special leave petition is dismissed inasmuch as no leave had been granted to file an appeal and until there is no appeal in the eye of the law in the superior court, review can be preferred in the High Court.” 16. In Fuljit Kaur vs. State of Punjab reported in (2010) 11 SCC 455 , the Supreme Court observed:- 7. There is no dispute to the settled proposition of law that dismissal of the special leave petition in limine by this Court does not mean that the reasoning of the judgment of the High Court against which the special leave petition has been filed before this Court stands affirmed or the judgment and order impugned merges with such order of this Court on dismissal of the petition. It simply means that this Court did not consider the case worth examining for the reason, which may be other than merit of the case. Nor such an order of this Court operates as res judicata. An order rejecting the special leave petition at the threshold without detailed reasons therefore does not constitute any declaration of law or a binding precedent. [Vide Workmen vs. Cochin Port Trust, Ahmedabad Mfg. & Calico Printing Co. Ltd. vs. Workmen, Indian Oil Corpn. Ltd. vs. State of Bihar, Supreme Court Employees' Welfare Assn. vs. Union of India, Yogendra Narayan Chowdhury vs. Union of India, Union of India vs. Sher Singh, V.M. Salgaocar & Bros. (P) Ltd. vs. CIT, Saurashtra Oil Mills Assn. v. State of Gujarat, Union of India vs. Jaipal Singh and Y. Satyanarayan Reddy vs. Mandal Revenue Officer]. 9. Ltd. vs. State of Bihar, Supreme Court Employees' Welfare Assn. vs. Union of India, Yogendra Narayan Chowdhury vs. Union of India, Union of India vs. Sher Singh, V.M. Salgaocar & Bros. (P) Ltd. vs. CIT, Saurashtra Oil Mills Assn. v. State of Gujarat, Union of India vs. Jaipal Singh and Y. Satyanarayan Reddy vs. Mandal Revenue Officer]. 9. In Kunhayammed vs. State of Keralai this Court reconsidered the issue and some of the above referred judgments and came to the conclusion that dismissal of special leave petition in limine by a non-speaking order may not be a bar for further reconsideration of the case for the reason that this Court might not have been inclined to exercise its discretion under Article 136 of the Constitution. The declaration of law will be governed by Article 141 where the matter has been decided on merit by a speaking judgment as in that case the doctrine of merger would come into play. This Court laid down the following principles: (SCC pp. 383-84, para 44) (i) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before a superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of the law. (ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. The first stage is up to the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and the special leave petition is converted into an appeal. (iii) The doctrine of merger is not a doctrine of universal or unlimited application. It will 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. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. It will 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. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of a petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter. (iv) An order refusing special leave to appeal may be a non-speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the court was not inclined to exercise its discretion so as to allow the appeal being filed. (v) If the order refusing leave to appeal is a speaking order i.e. gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting the special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties. The Court came to the conclusion that where the matter has been decided by a non-speaking order in limine the party may approach the Court for reconsideration of the case in exceptional circumstances. 17. The Court came to the conclusion that where the matter has been decided by a non-speaking order in limine the party may approach the Court for reconsideration of the case in exceptional circumstances. 17. In the light of ratio in Kunhayammed’s case referred to above and more particularly the decision of the Hon’ble Supreme Court in the case of Gangadhara Palo reported in (2011) 4 SCC 602 we are inclined to accept the submission made on behalf of the petitioner that in the facts of this case, review application is maintainable. 18. However, in view of the fact that a contrary view had been taken by two earlier Division Benches in the two cases referred to above namely, Puranmall Goenka case reported in 2006 (3) CHN 737 and West Bengal Dairy & Poultry Development Corporation Limited case reported in (2009) 4 CHN Page 288 we refer the following question for decision by a Larger Bench:- Whether by reason of the dismissal of the Special Leave Petition by Hon’ble Supreme Court against an order passed by the High Court, it is permissible for the High Court to entertain an application for review in respect of the self same Order.