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Gujarat High Court · body

2012 DIGILAW 629 (GUJ)

Ramilaben Vinubhai Patel v. Induben

2012-08-31

RAVI R.TRIPATHI

body2012
Judgment Ravi R. Tripathi, J.—The present application is filed by the original appellants-plaintiffs praying that: “14. (A) This Honourable Court would be pleased to admit and allow the application and pass direction on the Common Oral Order dated 28.04.2010/06.05.2010, passed by this Honourable Court in Appeal From Order No. 63 of 2009 and Appeal From Order 54 of 2009, and be pleased to modify/clarify the same; (B) This Honourable Court under Article 215 of the Constitution of India would be pleased to clarify the order dated 28.04.2010/06.05.2010, passed by this Honourable Court in Appeal From Order No. 63 of 2009 and Appeal From Order 54 of 2009, to the extent recording in the common order that 1/3rd portion of entire land in question i.e. 2060.5 sq. meters will be kept open and no development activity will be undertaken on that land, in the interest of justice;” 2. Heard learned Advocate Mr. Amit M. Panchal with learned Advocate Mr. Manan A. Shah for the applicant, learned Senior Advocate Mr. P.C. Kavina with learned Advocate Mr. A.B. Munshi for Respondent No. 1 and learned Senior Advocate Mr. Mihir Joshi with learned Advocate Mr. Amit Thakkar for Respondent Nos. 13, 14 and 15. 3. Learned Advocate for the applicants submitted that there is a mistake which has crept-in, in Para-10 of the order, wherein the Court stated that, “. . . . . It is clarified that by this order, 1/3rd portion of the land in question, viz. marked portion on page 17 of Civil Application No. 13021 of 2009, will be kept open and no development activity will be undertaken on that land.” 3.1 Learned Advocate for the applicants submitted that the marked portion on page No. 17 of the Civil Application was only 1029.00 sq. mtrs., which ought to have been 2060.50 sq. mtrs. Learned Advocate for the applicants invited attention of the Court to a Table, setting out that Jiviben Parbhubhai had 50% share, which comes to 8950 sq. mtrs., Induben Jayantibhai had 16.66% share, which comes to 2983.33 sq. mtrs., Lalubhai Mavjibhai had 16.66% share, which comes to 2983.33 sq. mtrs. and Sumanben Arvindbhai had 16.66% share, which comes to 2983.33 sq. mtrs. and total comes to 17900 sq. mtrs. of land. mtrs., Induben Jayantibhai had 16.66% share, which comes to 2983.33 sq. mtrs., Lalubhai Mavjibhai had 16.66% share, which comes to 2983.33 sq. mtrs. and Sumanben Arvindbhai had 16.66% share, which comes to 2983.33 sq. mtrs. and total comes to 17900 sq. mtrs. of land. 3.2 Learned Advocate for the applicants invited attention of the Court to a decision of the Hon’ble the Apex Court in the matter of M.M. Thomas vs. State of Kerala & Ors., reported in (2000) 1 SCC 666 . Learned Advocate for the applicants relied upon Paras-13 to 17 of this judgment and submitted that it will be within the powers of this Court to exercise powers of review in view of specific language of Article 215 of the Constitution of India. 3.3 Learned Advocate for the applicants next relied upon a decision of the Hon’ble the Apex Court in the matter of Kunhayammed & Ors. vs. State of Kerala & Ors., reported in (2000) 6 SCC 359 , in support of his contention that in light of language of Articles 136 and 141 of the Constitution of India, the present Review Application is maintainable and requires to be entertained by this Court. 3.4 Learned Advocate for the applicants next relied upon a decision of the Hon’ble the Apex Court in the matter of Gangadhara Palo vs. Revenue Divisional Officer & Ors., reported in (2011) 4 SCC 602 . He relied upon the observations made by the Hon’ble the Apex Court in Paras 3, 4 5, 11 and 12. 4. Learned Senior Advocate Mr. Kavina for Respondent No. 1 and learned Senior Advocate Mr. Joshi for Respondent Nos. 13, 14 and 15 submitted that this Court cannot and shall not entertain this Review Application in light of the law laid down by the Hon’ble the Apex Court in the matter of Kunhayammed (Supra), wherein the Hon’ble the Apex Court had an occasion to consider in detail a similar question as to when a Review Application can be entertained by the High Court, when the parties have approached the Hon’ble the Apex Court by filing SLP. Learned Senior Advocates invited attention of the Court to paras-26 and 40 of the said judgment, which are reproduced for ready perusal: “26. Learned Senior Advocates invited attention of the Court to paras-26 and 40 of the said judgment, which are reproduced for ready perusal: “26. The underlying logic attaching efficacy to an order of the Supreme Court dismissing S.L.P. after hearing counsel for the parties is discernible from a recent Three-Judges Bench decision of this Court in Abbai Maligai Partnership Firm & Anr. vs. K. Santhakumaran & Ors., 1998 (7) SCC 386 . 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 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. to 39. x x x x x 40. 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, (iv) 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 offers contest to the maintainability of the petition. The Court may apply its mind to the meritworthiness 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 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 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. 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.” (emphasis supplied) 4.1 Learned Senior Advocates submitted that in the present case, the Review Application is filed much after SLP was dismissed by order dated 15.11.2010. The factual matrix of it is that the applicants have chosen to approach this Court by way of the present Review Application after the parties approached the Hon’ble the Apex Court by way of the aforesaid SLP, which came to be dismissed by the aforesaid order dated 15.11.2010. Learned Senior Advocates submitted that once the SLP is dismissed by the Hon’ble the Apex Court, Review Application is no remedy to the present applicants. 4.2 In support of their submission, learned Senior Advocates also relied upon a decision of the Hon’ble the Apex Court in the matter of Meghmala & Ors. vs. G.Narasimha Reddy & Ors., reported in (2010) 8 SCC 383 . Learned Senior Advocates invited attention of the Court to Paras-19 and 25 of the said judgment. For ready perusal, the said paras are reproduced hereunder: “19. In M/s. Kabari Pvt. Ltd. vs. Shivnath Shroff & Ors., AIR 1996 SC 742 , this Court had taken a view that the court cannot entertain an application for review if before making the review application, the superior court had been moved for getting the self-same relief, for the reason that for the self-same relief two parallel proceedings before the two forums cannot be taken. 20. to 24. xxxxx 25. 20. to 24. xxxxx 25. Thus, the law on the issue stands crystallized to the effect that in case a litigant files a review petition before filing the Special Leave Petition before this Court and it remains pending till the Special Leave Petition stands dismissed, the review petition deserves to be considered. In case it is filed subsequent to dismissal of the Special Leave Petition, the process of filing review application amounts to abuse of process of the court.” (emphasis supplied) 5. This Court is of the opinion that as the Hon’ble the Apex Court while dismissing the Special Leave to Appeal (Civil) No(s). 16913-16914/2010 by order dated 15.11.2010 was pleased to incorporate Paras-9 and 10 of judgment and order dated 28.04.2010 /06.05.2010 in Appeal from Order No. 54 of 2009 with Appeal from Order No. 63 of 2009 and the quotation is prefixed with, ‘The relevant portions of the impugned order read thus:-’ and quotation is suffixed by, ‘In our view, the learned Single Judge did not commit any error by setting aside the order of injunction passed by the trial Court after two years of the institution of the suit’. The directions given by the learned Single Judge are essentially just and do not call for interference under Article 136 of the Constitution’, instead of re-writing the contents of Paras-9 and 10 of this Court, quoted by the Hon’ble the Apex Court and succeeded by the aforesaid observations of the Hon’ble the Apex Court, for all practical purposes, it becomes the order passed by the Hon’ble the Apex Court and therefore, this Court is of the opinion that the Review Application cannot be entertained by this Court. 6. In view of the aforesaid discussion, the Court finds that the present application for review is not maintainable and the same cannot be entertained by this Court. The application is accordingly dismissed. Rule is discharged. No costs. 7. At the request of the learned Advocate for the applicants, it is clarified that the Court has not gone into the merits of the application and the facts of the case.