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2017 DIGILAW 508 (KER)

K. P. JOHN, S/O. PAILY v. MANI VARKEY

2017-03-13

B.KEMAL PASHA

body2017
ORDER : Heard the learned Senior Counsel for the review petitioners and the learned Senior Counsel for the respondents. 2. According to the learned Senior Counsel for the review petitioners, an order getting the delay of 2975 days condoned, through C.M. Application No.495 of 2013, was procured by the respondents by playing fraud on this Court. The argument is that, challenging the order in C.R.P.No.1280 of 2004, the respondents herein had preferred S.L.P.No.14362 of 2005 before the Apex Court. The Apex Court, vide order dated 29.07.2005, dismissed the Special Leave Petition in limine. The order says: "The Special Leave Petition is dismissed." Apparently, it is not a speaking order and further that it was not an order passed after granting the Special Leave. According to the learned Senior Counsel for the review petitioners, the respondents ought not to have suppressed the said fact, and the said fact was deliberately suppressed for canvassing an opinion of this Court, in exercising discretion in their favour, for condoning the said delay of 2975 days. It is also argued that the position would have been different, had the said fact been disclosed by the respondents in C.M. Application No.495 of 2013. In short, it is argued that a person, who seeks equity, must bring equity and being an equitable relief by way of discretionary relief, the suppression of the dismissal of the S.L.P. had resulted in the exercise of discretion of this Court, in favour of the respondents. 3. The learned Senior Counsel for the respondents, based on Kunhayammed and Others v. State of Kerala and Another [ 2000 (6) SCC 359 ], argued that the suppression was not wilful or deliberate and further that it will not make any difference at all, even if the dismissal of the S.L.P. was revealed or not. According to the learned Senior Counsel for the respondents, when the S.L.P. was dismissed in limine, or even in a case, wherein the S.L.P. is kept pending without passing an order, the respondents could have moved this Court for review of the order. According to the learned Senior Counsel for the respondents, when the S.L.P. was dismissed in limine, or even in a case, wherein the S.L.P. is kept pending without passing an order, the respondents could have moved this Court for review of the order. It has been argued that when the S.L.P. was dismissed in limine, it won't result in the merger of the order passed by this Court in the C.R.P., with the order in the S.L.P. According to the learned Senior Counsel for the respondents, the matters to be considered in an appeal and the matters to be considered in a review petition are entirely different and are not in the same zone of consideration. 4. It is true that in C.M. Application No.495 of 2013 in R.P.No.664 of 2013, the review petitioner therein had pleaded that it was on the basis of the legal opinion obtained in the matter that there were every chances for the dismissal of the suit on other grounds, the said review petitioner had not taken further steps for filing a review petition as against order dated 17.05.2005 in C.R.P.No.1280 of 2004. 5. On a perusal of the common judgment passed by this Court, it is evident that this Court has not given any weight to the fact as to whether an S.L.P. was filed or whether an S.L.P. was dismissed in limine. Had the S.L.P. been admitted and subsequently the appeal was dismissed by the Apex Court, it could have been argued that fraud was played on this Court, in getting the order reviewed, especially when, it had effected in a merger. So long as there is no merger, and so long as this Court has the power to entertain a review petition in the matter, the dismissal of the S.L.P. in limine is quite inconsequential. More over, this Court has not relied on the aforesaid ground pleaded by the review petitioner in R.P.No.664 of 2013 regarding the legal opinion, based on which, he had refrained from filing a review petition. When this Court had not given any weight to the said plea taken up by the said review petitioner in condoning the delay, even if it is considered that the dismissal of the S.L.P. in limine has been suppressed, it does not make any difference at all. 6. When this Court had not given any weight to the said plea taken up by the said review petitioner in condoning the delay, even if it is considered that the dismissal of the S.L.P. in limine has been suppressed, it does not make any difference at all. 6. This Court had condoned the delay of 2975 days for filing R.P.No.664 of 2013 through C.M. Application No.495 of 2013, on established legal principles through several precedents of the Apex Court. When the same was done on merits and when the said suppression, even if it is admitted as suppression, has not influenced the mind of this Court in granting the discretionary relief of condoning the delay, there is no question of any further review in the matter. Matters being so, these review petitions are only to be dismissed, and I do so. Regarding the other request for recalling the said order, the same also does not reveal any merits and therefore, the same is also dismissed. In the result, I.A.No.444 of 2016, R.P.No.89 of 2016, R.P.No.90 of 2016 and R.P.No.107 of 2016 are dismissed.