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2013 DIGILAW 3985 (MAD)

Ranganayakiammal v. Saraswathiammal

2013-11-25

R.S.RAMANATHAN

body2013
Judgment : 1. The petitioners filed O.S.No.357 of 1991 on the file of the Subordinate Court, Udumalpet, for partition of their half share in the suit property and the suit was decreed. The defendants 1, 3 to 5 preferred first Appeal in A.S.No.392 of 1995 before this Court and the first Appeal was allowed in Part on 10.8.2007. The petitioners herein aggrieved by the orders passed in A.S.No.392 of 1995 filed Review Petition No.159 of 2007 to review the judgment rendered in A.S.No.392 of 1995 and that Review Petition was later dismissed as withdrawn. 2. The petitioners filed Special Leave Petition before the Hon'ble Supreme Court against the judgment and decree dated 10.8.2007 made in A.S.No.392 of 1995 and the Special Leave Petition was also dismissed on 31.3.2008 and the Review Petition preferred against the said order before the Hon'ble Supreme Court was also dismissed and the attempts made by the petitioners to prefer a Curative Petition also failed. Thereafter, the petitioners filed a Review Petition in S.R.No.94580 of 2011 to review the Judgment and decree made in A.S.No.392 of 1995 dated 10.8.2007 along with M.P.No.1 of 2012 to condone the delay of 1500 days in filing the Review Application. 3. Mrs.Hema Sampath, learned Senior Counsel appearing for the respondents 1 and 3 raised a preliminary objection to the maintainability of the Review Petition on the ground that the earlier Review Petition, namely, Review Petition No.159 of 2007 was dismissed as withdrawn and no liberty was given and therefore, the present Review Petition is not maintainable. The learned Senior Counsel also submitted that no acceptable reasons were stated in the affidavit by the petitioners to condone the delay of 1500 days and the first petitioner who was prosecuting the Special Leave Petition before the Supreme Court from 2011 onwards cannot plead ignorance about the Court procedures and therefore, the delay was not properly explained. The respondents 1 and 3 also filed a counter opposing the Petition to condone the delay. 4. As the maintainability of Review Petition was also raised by the respondents 1 and 3 and they also opposed the Petition to condone the delay, I decided to hear parties on both aspects and the both the learned counsel submitted their arguments in that regard. 5. 4. As the maintainability of Review Petition was also raised by the respondents 1 and 3 and they also opposed the Petition to condone the delay, I decided to hear parties on both aspects and the both the learned counsel submitted their arguments in that regard. 5. Mr.M.N.S.Mohamed Habeed Raja, learned counsel for the petitioners submitted that the Appeal before this Court was conducted by the son of the first petitioner who was the second respondent in A.S.No.392 of 1995 and he died on 27.10.2007, immediately, after the judgment rendered in A.S.No.392 of 1995, and, therefore, the first petitioner was not properly advised and she was bona fidely prosecuting the Special Leave Petition before the Hon'ble Supreme Court and even after the dismissal of the Special Leave Petition at the admission stage, she made arrangements to file Review Petition and after the dismissal of the Review Petition, a Curative Petition was filed. But, unfortunately, the counsel at Delhi did not take proper steps to pursue the Curative Petition and those facts came to the knowledge of the first petitioner only in August, 2011 and immediately, thereafter, a Copy Application was filed on 26.8.2011 for getting certified copy of the judgment and decree made in A.S.No.392 of 1995 and the same was made ready on 28.2.2011 and after collecting papers from the counsel who conducted Appeal, the present Review Petition was filed through a new counsel on 25.10.2011 and therefore, the delay of 1500 days had happened in filing the Review Application. He, therefore, submitted that the petitioners were diligently prosecuting the proceedings before the Hon'ble Supreme Court and after coming to know that the proceedings in the Hon'ble Supreme court were dismissed, steps were taken to file the Review Petition before this Court. He, therefore, submitted that the delay may be condoned as there is no wilful default on the part of the petitioners. 6. The learned counsel for the petitioners further submitted that review in Review Petition No.159 of 2007 was filed to review the judgment in A.S.No.392 of 1995 and during the pendency of the Review Application, Special Leave Petition was filed before the Honb'le Supreme Court challenging the judgment in A.S.No.392 of 1995 and they have realised that after filing of Special Leave Petition before the Hon'ble supreme Court, the petitioners cannot proceed with the Review Petition No.159 of 2007. Therefore, he sought permission of this Court to withdraw the Review Petition No.159 of 2007 and permission was granted as per the endorsement made by the learned counsel for the petitioners and Review Petition was dismissed on 28.3.2008. He also submitted that withdrawing of Review Petition No.159 of 2007 will not be a bar to the filing of the present Review Petition inasmuch as no order on merits was passed in Review Petition No.159 of 2007 and the Review Petition was withdrawn due to the pendency of the Special Leave Petition filed before the Supreme Court and that was also mentioned in the endorsement. Therefore, withdrawal of the earlier Review Petition No.159 of 2007 is not a bar to file the present Review Application. The learned counsel for the petitioner has further submitted that even after the dismissal of the Special Leave Petition at the admission stage and when the dismissal was not on merits, the Review Petition is maintainable before this Court to review the judgment rendered in A.S.No.392 of 1995 and relied on the judgments reported in (2008) 5 Supreme Court Cases 58 in the matter of Vimlesh Kumari Kulshrestha vs. Sambhajirao and another; (2011) 8 SCC 679 in the matter of Bakshi Dev Raj (2) and another vs. Sudheer Kumar; and 2013 (1) CTC 335 in the matter of R.Sentil Kumar v. Vilvanatha Mudalier (Died), in support of his contentions. 7. On the other hand, the learned Senior Counsel, Mrs. Hema Sampath, submitted that the reasons stated for condoning the delay cannot be accepted having regard to the conduct of the petitioners. The learned Senior Counsel submitted that the suit was filed by the first petitioner, her two sons and daughters and even assuming that her son, Govindaraj, died, immediately, after pronouncement of judgment in the first Appeal, the petitioners filed Special Leave Petition and were diligently prosecuting the same and also filed Review Petition before the Hon'ble Supreme Court to review the order passed in the Special Leave Petition and also took steps file a Curative Petition. Therefore, it cannot be contended that the petitioners were not aware of the legal procedures. Therefore, it cannot be contended that the petitioners were not aware of the legal procedures. The learned Senior Counsel also submitted that the Review Petition No.159 of 2007 was withdrawn after the death of Govindaraj, the second review petitioner in that Review Petition, and Special Leave Petition (Civil) in CC No.3240 of 2008 was dismissed on 31.3.2008 and Review Petition in D.No.18770 of 2008 filed to review the order passed in Special Leave Petition (Civil) in CC No.3240 of 2008 was also dismissed on merits on 1.4.2009 and no explanation was given for keeping quiet till the middle of 2011 for filing the present Review Petition and therefore, the petitioners deliberately caused the delay and therefore, they are not entitled to any indulgence. The learned Senior Counsel further submitted that though the Review Petition is maintainable after the dismissal of the Special Leave Petition by a non-speaking order, they have withdrawn the earlier Review Petition No.159 of 2007 without getting any liberty, and therefore, the present Review Petition is not maintainable and it is barred under Order 23 Rule 1 CPC. The learned Senior Counsel fairly placed before this Court the judgment of the Hon'ble Supreme Court rendered in the Special Leave Petition (Civil) No.490 of 2012 dated 19.10.2012 in the matter of Khoday Distilleries and others vs. Mahadeshwara S.S.K. Ltd wherein the Hon'ble Supreme Court referred the question to a larger Bench to decide whether the Review Petition is maintainable before the High Court after the Special Leave Petition filed against the judgment of the High Court was dismissed in limine by a non-speaking order. The learned Senior Counsel, therefore, submitted that having regard to the conduct of the petitioners in keeping quiet for nearly 2 years after the dismissal of the Review Petition before the Hon'ble Supreme Court, and having regard to the withdrawal of the earlier Review Petition No.159 of 2007, the Review is not maintainable and the petition to condone the delay is also liable to be dismissed. 8. It is submitted that the Review Petition No.159 of 2007 was filed to review the judgment in A.S.No.392 of 1995 and during the pendency of the same, the petitioner filed the Special Leave Petition before the Hon'ble Supreme Court challenging the judgment in A.S.No.392 of 1995. 8. It is submitted that the Review Petition No.159 of 2007 was filed to review the judgment in A.S.No.392 of 1995 and during the pendency of the same, the petitioner filed the Special Leave Petition before the Hon'ble Supreme Court challenging the judgment in A.S.No.392 of 1995. Thereafter, the Review Petition No.159 of 2007 was dismissed as withdrawn on the basis of the endorsement made by the counsel appearing for the petitioners on 28.3.2008, which reads as follows:- "On 28.3.2008 I may be permitted to withdraw the Review Petition No.159/07 in A.S.No.392/95. In this matter, SLP has been filed before the Hon'ble SUPREME COURT. Hence, I may be permitted to not press this Review Petition. Counsel for petitioners/Respondents/Plaintiffs Sd/- on 28.3.08 C.Selvaraj, Advocate." 9. Therefore, the question that arises for consideration is whether the second Review is maintainable after the withdrawal of the earlier Review Petition. 10. The learned counsel for the petitioners relied on the judgment reported in (2008) 5 Supreme Court Cases 58 cited supra and submitted that Order 23 Rule 1 (3)(b) CPC cannot be applied to the facts of the case inasmuch as the Review Petition No.159 of 2007 was withdrawn after filing of the Special Leave Petition before the Hon'ble Supreme Court and though no liberty was obtained for withdrawing the Review Petition, they have stated in the endorsement that Special Leave Petition was filed and therefore, the Review Petition was not pressed and that would lead to the presumption that the High Court had granted liberty while allowing the petitioners to withdraw the Review Petition. He also submitted that the Review Petition is maintainable after the dismissal of the Special Leave Petition by a non-speaking order and relied on the judgment reported (2011) 8 SCC 679 cited supra. Having regard to the judgment rendered in Special Leave Petition Civil No.490 of 2012 referred to above, the parties are entitled to file a Review Petition even after the dismissal of the SLP as the maintainability of such Review Application has been referred to the Larger Bench of the Hon'ble Supreme Court. Further, in the Judgment reported in (2011) 8 SCC 679 cited supra, the Hon'ble Supreme Court held that a Review can be filed after the dismissal of the SLP by the Hon'ble Supreme Court by a non-speaking order. 11. Further, in the Judgment reported in (2011) 8 SCC 679 cited supra, the Hon'ble Supreme Court held that a Review can be filed after the dismissal of the SLP by the Hon'ble Supreme Court by a non-speaking order. 11. But, in this case, the question that arises for consideration is after having withdrawn the earlier Review Petition, the present Review Petition is maintainable or not? 12. Admittedly, no liberty was sought for by the petitioners while making endorsement for withdrawing the Review Petition No.159 of 2007. But, they have mentioned filing of the Special Leave Petition before the Supreme Court and thereafter, withdrew the Review Petition No.159 of 2007. In the judgment reported in (2008) 5 Supreme Court Cases 58 cited supra, the Hon'ble Supreme Court held that Order 23 Rule 14 CPC cannot be made applicable if the earlier suit was withdrawn after the filing of the subsequent suit. But, in the judgment reported in (1987) 1 SCC 5 (Sarguja Transport Service v. STAT), it has been held as follows:- "9. The point for consideration is whether a petitioner after withdrawing a writ petition filed by him in the High Court under Article 226 of the Constitution of India without the permission to institute a fresh petition can file a fresh writ petition in the High Court under that article. On this point the decision in Daryao case is of no assistance. But we are of the view that the principle underlying Rule 1 of Order XXIII of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in bench-hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution once again. It would also discourage the litigant from indulging in bench-hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution once again. While the withdrawal of a writ petition filed in a High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution of India since such withdrawal does not amount to res judicata, the remedy under Article 226 of the Constitution of India should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission. In the instant case the High Court was right in holding that a fresh writ petition was not maintainable before it in respect of the same subject-matter since the earlier writ petition had been withdrawn without permission to file a fresh petition. We, however, make it clear that whatever we have stated in this order may not be considered as being applicable to a writ petition involving the personal liberty of an individual in which the petitioner prays for the issue of a writ in the nature of habeas corpus or seeks to enforce the fundamental right guaranteed under Article 21 of the Constitution since such a case stands on a different footing altogether. We, however leave this question open" In the said judgment, scope of the Order 23, Rule 1 CPC was considered. Though the withdrawal does not amount to res judicata, the parties after withdrawal had abandoned their cause of action in the earlier Review Petition by withdrawing the same without getting permission. The judgment reported in (1987) 1 SCC 5 was not brought to the knowledge of the Hon'ble Supreme Court while deciding the case reported in (2008) 5 SCC 58 . Further, it is not a case where liberty was sought for and without passing any order regarding liberty and the Court permitted the petitioner to withdraw the Review Petition. The judgment reported in (1987) 1 SCC 5 was not brought to the knowledge of the Hon'ble Supreme Court while deciding the case reported in (2008) 5 SCC 58 . Further, it is not a case where liberty was sought for and without passing any order regarding liberty and the Court permitted the petitioner to withdraw the Review Petition. Had liberty been sought for along with the withdrawal of the Review Petition, it could be presumed that while granting withdrawal the Court also granted liberty as the Court cannot split the prayer as stated in Mulla's Code of Civil Procedure, 17th Edition Page 674, relied on the Judgment reported in (2008) 5 SCC 58 cited supra. 13. In this case, no such permission was sought for while withdrawing the Review Petition No.159 of 2007. Therefore, having regard to the judgment reported in (1987) 1 SCC 5 , which was also relied on by the Hon'ble Supreme court in the judgment reported in (2011) 8 SCC 679 and having regarding to the provision of Order 23 Rule 1 CPC, the present Review Petition, after withdrawing the earlier Review Petition without seeking any liberty is not maintainable. 14. As rightly submitted by the learned Senior Counsel, the delay of 1500 days was also not properly explained. Admittedly, Special Leave Petition (Civil) 3240 of 2008 was dismissed on 31.3.2008 and the Review Petition Diary No.18770/2008 was also dismissed on 1.4.2009 and no explanation was given for not taking any further steps to file the Review Petition immediately. Though it was alleged that Curative Petition was filed before the Hon'ble Supreme Court, no details were given regarding the date on which, the petitioners came to know about the non-prosecution of Curative Petition and they cannot be heard to say that the petitioners who were diligently prosecuting the Special Leave Petition have kept quiet without getting information from their counsel regarding the result of the Curative Petition. Hence, I am of the opinion that the delay has not been properly explained and on that ground also, the petition in M.P.No.1 of 2012 in Review Application SR No.94580 of 2011 is liable to be dismissed. 15. In the result, the Miscellaneous Petition is dismissed and Review Petition is also not maintainable and the same is rejected for the reasons stated above.