Bakshi Dev Raj & Anr vs Sudheer Kumar

Bakshi Dev Raj & Anr. .... Appellant(s)

Versus

Sudhir Kumar .... Respondent(s)

J U D G M E N T

P.Sathasivam,J.

1) These appeals are directed against the final judgment

and orders dated 18.03.2008 and 08.09.2008 passed by the

High Court of Jammu & Kashmir at Jammu in Civil Second

Appeal No. 19 of 2005 and Review Petition (C) No. D-5 of 2008

respectively whereby the High Court dismissed the second

appeal and the review petition filed by the appellants herein.

2) Brief facts:

(a) Shri Harbans Lal, father of the appellant No.1, purchased

the land in dispute measuring 40 kanal 4 marlas bearing

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Khasra No. 65 in Village Chak Gainda, Tehsil Kathua from one

Gurdas by way of a registered sale deed dated 18.03.1959. The

said land falls in Khasra No. 109/65 and the same was

recorded in the name of the father of the appellant No.1 and

after his father's death the name of appellant No.1 was

recorded from Kharif 1987.

(b) The plot of Sudhir Kumar-the respondent herein is on

the southern side of the land of the appellants. On

29.04.1991, the respondent herein filed a civil suit being No.

17/Civil/1991 in the Court of sub-Judge, Kathua seeking a

declaratory decree to the effect that he is the owner and in

possession of the suit land measuring and bounded by East

Kathua Kalibari Road 90' West Police Line measuring 96',

North Land of Bakshi Dev Raj (appellant No. 1 herein) and

South, Lane 460' situated at Ward No.1 Village Chak Gainda,

Tehsil Kathua and further sought decree for permanent

injunction restraining the appellants herein in the suit land.

On 06.04.1993, the appellants herein filed a joint written

statement in the above civil suit. The trial Court, vide

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judgment dated 25.04.2003, dismissed the suit filed by the

respondent herein.

(c) Aggrieved by the said judgment, the respondent filed Civil

First Appeal No.6 in the Court of District & Sessions Judge,

Kathua. The first appellate Court, vide judgment and decree

dated 09.06.2005, set aside the judgment and order dated

25.04.2003, passed by the trial Court and allowed the appeal

in favour of the respondent.

(d) Challenging the same, the appellants filed Second Appeal

No. 19 of 2005 before the High Court of Jammu & Kashmir at

Jammu. Vide judgment dated 18.03.2008, the second appeal

was disposed of by the High Court by modifying the decree

with the consent of both the parties.

(e) Against the said order, a special leave petition bearing

S.L.P. (C) No. 10939 of 2008 was filed by the appellants herein

before this Court and the same was dismissed as withdrawn

on 14.05.2008. On 21.05.2008, the appellants filed a review

petition being Review Petition (C) No. D-5/2008 before the

High Court for review of the order dated 18.03.2008 passed in

Second Appeal. The learned single Judge of the High Court, by

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order dated 08.09.2008, dismissed the review petition filed by

the appellants.

(f) Aggrieved by the final orders dated 18.03.2008 passed by

the High Court in Second Appeal and the order dated

08.09.2008 in the review petition, the appellants filed the

present appeals before this Court by way of special leave

petitions.

3) Heard Mr. Dinesh Kumar Garg, learned counsel for the

appellants and Mr. Ranjit Kumar, learned senior counsel

appearing for the respondent.

4) The questions which arise for consideration in these

appeals are:

i) Whether Review Petition (C) No. D-5/2008 filed before the

High Court against the judgment in Second Appeal No.

19 of 2005 is maintainable in view of dismissal of SLP (C)

No. 10939 of 2008 dated 14.05.2008 by this Court filed

against the said Second Appeal?

ii) Whether the statement of the counsel conveying that the

parties have settled and modified the decree without a

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written document or consent from the appellants is

acceptable? and

iii) Whether dismissal of SLP as withdrawn without leave of

the Court to challenge the impugned order therein before

an appropriate court/forum is a bar for availing such

remedy?

5) The present appellants filed Second Appeal No. 19 of

2005 before the High Court questioning the judgment and

decree dated 09.06.2005 of the first appellate Court in First

Appeal No.6. While admitting the above second appeal, the

High Court framed two questions of law, one, as to whether

the report of the Commissioner is admissible evidence without

its formal proof and the other, whether the reliance can be

placed on a site plan prepared by an Architect when the same

record is available with the Revenue Authorities which has

been withheld by the plaintiff. It is further seen from the order

of the High Court that during the course of submissions, both

the counsel agreed that without addressing the questions of

law so formulated, the matter can be settled by modifying the

decree impugned in appeal by incorporating the area of land

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under Survey No. 110/65 with the boundary between the

lands thereunder and Survey No. 109/65 belonging to other

side being the Sheesham and Shreen trees currently existing

on the spot. They further conceded that whatever of their

respective land falling on either side would not be claimed by

them and the Sheesham and Shreen trees would be

respondent's property to be cut by him within a reasonable

period of time. Based on the above submissions by both the

counsel, the High Court modified the impugned decree in the

following manner:

"(a) The suit of respondent/plaintiff is decreed restraining

other side from interfering or causing any interference or

encroaching upon any portion of his land measuring 11

kanals 12 marlas under survey No 110/65 along with his

other proprietary land whatever existing on spot.

(b) The sheesham and shreen trees existing on spot would

be the boundary line between two parcels of land belonging

to rival sides as aforementioned with the exact demarcating

line running from centre of trees, which would be property of

respondent/plaintiff to be cut by him at an appropriate time

without undue delay.

(c) Whenever proprietary land of either parties falls on

other side of the trees to form part of Opposite Party land

stands conceded to each other by respective parties over

which their claims would be deemed to have been

abandoned.

(d) No costs."

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6) By pointing out that the concession given by the counsel

for the appellants before the High Court was not lawful and in

violation of Section 23 of the Indian Contract Act, 1872 and

that the second appeal was disposed of without hearing on

substantial questions of law framed by the Court, the

appellants filed Review Petition (C) No. No.D-5/2008. Even

before the High Court, an objection was raised as to the

maintainability of the review petition by pointing out the

following objections:

"(a) that once the petitioner had preferred an appeal before

the Supreme Court, the review was barred under O. 47 Rule

1 Sub-Rule (1) of C.P.C.

(b) that application is time barred, period of limitation

prescribed for filing review in terms of Rule 66 Sub Rule (3)

of J&K High Court Rules is 30 days.

(c) that review application can be maintained only if some

evidence or matter has been discovered and it was not within

the knowledge of petitioner when the decree was passed or

where there was a mistake or an error apparent on the fact

of record."

7) In view of the above objections, the learned single Judge

heard the review petition both on merits and its

maintainability at length. A contention was raised with

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reference to Order XXIII Rule 3 of the Code of Civil Procedure,

1908 (hereinafter referred to as "CPC") and Order XLVII sub-

rule (1) of Rule 1, ultimately, after finding that the question

raised is not a question of law and not an error apparent on

the face of the record, dismissed the review petition. In the

present appeal, the appellants challenged not only the

dismissal of the review petition but also final judgment in

second appeal filed before the High Court. With these factual

details, let us consider the questions posed in the earlier

paragraphs. Inasmuch as Mr. Ranjit Kumar, learned senior

counsel for the respondent raised an objection as to the

maintainability of the present appeal, let us consider the same

at the foremost and finally the merits of the impugned order of

the High Court.

Compromise of Suit

8) Order XXIII of CPC deals with "Withdrawal and Adjustment

of Suits". Rule 3 of Order XXIII speaks about "compromise of

suit" which reads as under:

"3. Compromise of suit.- Where it is proved to the

satisfaction of the Court that a suit has been adjusted wholly

or in part by any lawful agreement or compromise in writing

and signed by the parties, or where the defendant satisfies

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the plaintiff in respect of the whole or any part of the subject

matter of the suit, the Court shall order such agreement,

compromise or satisfaction to be recorded, and shall pass a

decree in accordance therewith so far as it relates to the

parties to the suit, whether or not the subject matter of the

agreement, compromise or satisfaction is the same as the

subject matter of the suit:

Provided that where it is alleged by one party and denied by

the other that an adjustment or satisfaction has been arrived

at, the Court shall decide the question; but no adjournment

shall be granted for the purpose of deciding the question,

unless the Court, for reasons to be recorded, thinks fit to

grant such adjournment.

Explanation--An agreement or compromise which is void or

voidable under the Indian Contract Act, 1872 (9 of 1872),

shall not be deemed to be lawful within the meaning of this

rule."

9) The very same rule was considered by this Court in

Gurpreet Singh vs. Chatur Bhuj Goel, (1988) 1 SCC 270. In

that case, the respondent therein Chatur Bhuj Goel, a

practising advocate at Chandigarh first lodged a criminal

complaint against Colonel Sukhdev Singh, father of the

appellant, under Section 420 of the Indian Penal Code 1860

(hereinafter referred to as "the IPC"), after he had served the

respondent with a notice dated 11.07.1979 forfeiting the

amount of Rs.40,000/- paid by him by way of earnest money,

alleging that he was in breach of the contract dated

04.06.1979 entered into between Colonel Sukhdev Singh,

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acting as guardian of the appellant, then a minor, and the

respondent, for the sale of residential house No. 1577,

Sector-18-D, Chandigarh for a consideration of Rs,2,85,000/-.

In terms of the agreement, the respondent was to pay a further

sum of Rs.1,35,000/- to the appellant's father - Colonel

Sukhdev Singh by 10.07.1979 when the said agreement of sale

was to be registered and vacant possession of the house

delivered to him, and the balance amount of Rs.1,10,000/- on

or before 31.01.1980 when the deed of conveyance was to be

executed. The dispute between the parties was that according

to Colonel Sukhdev Singh, there was failure on the part of the

respondent to pay the amount of Rs.1,35,000/- and get the

agreement registered, while the respondent alleged that he had

already purchased a bank draft in the name of the appellant

for Rs.1,35,000/- on 07.07.1979 but the appellant's father did

not turn up to receive the same. Although the Additional

Chief Judicial Magistrate by order dated 31.10.1979 dismissed

the complaint holding that the dispute was of a civil nature

and no process could issue on the complaint, the learned

Single Judge, by his order dated 11.02.1980 set aside the

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order of the learned Additional Chief Judicial Magistrate

holding that the facts brought out clearly warranted an

inference of dishonest intention on the part of Colonel

Sukhdev Singh and accordingly directed him to proceed with

the trial according to law. Aggrieved Colonel Sukhdev Singh

came up in appeal to this Court by way of special leave. While

construing Order XXIII Rule 3 of CPC, this Court concluded

thus:

"10. Under Rule 3 as it now stands, when a claim in suit

has been adjusted wholly or in part by any lawful agreement

or compromise, the compromise must be in writing and

signed by the parties and there must be a completed

agreement between them. To constitute an adjustment, the

agreement or compromise must itself be capable of being

embodied in a decree. When the parties enter into a

compromise during the hearing of a suit or appeal, there is

no reason why the requirement that the compromise should

be reduced in writing in the form of an instrument signed by

the parties should be dispensed with. The court must

therefore insist upon the parties to reduce the terms into

writing."

It is clear from this decision that during the course of hearing,

namely, suit or appeal, when the parties enter into a

compromise, the same should be reduced in writing in the

form of an instrument and signed by the parties. The

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substance of the said decision is that the Court must insist

upon the parties to reduce the terms into writing.

10) In Pushpa Devi Bhagat (dead) through LR. Sadhna

Rai (Smt.) vs. Rajinder Singh and Others, (2006) 5 SCC

566, the term `instrument' used in above-referred Gurpreet

Singh's case (supra) refers to a writing a formal nature, this

Court explained that when the hearing of letters patent appeal

commenced before the High Court, the parties took time to

explore the possibility of settlement and when the hearing was

resumed, the appellant's father made an offer for settlement

which was endorsed by the counsel for the appellant also. The

respondent was also present there and made a statement

accepting the offer. The said offer and acceptance were not

treated as final as the appeal was not disposed of by recording

those terms. On the other hand, the said proposals were

recorded and the matter was adjourned for payment in terms

of the offer. When the matter was taken up on the next date of

hearing, the respondent stated that he is not agreeable. The

High Court directed that the appeal would now be heard on

merits as the respondent was not prepared to abide by the

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proposed compromise. The said order was challenged before

this Court by the appellant by contending that the matter was

settled by a lawful compromise by recording the statement by

appellant's counsel and the respondent's counsel and the

respondent could not resile from such compromise and,

therefore, the High Court ought to have disposed of the appeal

in terms of the compromise. It is in this factual background,

the question was considered with reference to Gurpreet

Singh's case (supra). This was explained in Pushpadevi's

case (supra) that the distinguishing feature in that case was

that though the submissions made were recorded but that

were not signed by the parties or their counsel, nor did the

Court treat the submissions as a compromise. In

Pushpadevi's case (supra), the Court not only recorded the

terms of settlement but thereafter directed that the statements

of the counsel be recorded. The statement of the counsel were

also recorded on oath read over and accepted by the counsel

to be correct and then signed by both counsel. In view of the

same, in Pushpadevi's case (supra), it was concluded that

there was a valid compromise in writing signed by the parties

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(represented counsel).

11) In the earlier part of our order, we have already recorded

that during the course of hearing of second appeal, both

counsel agreed that without addressing the questions of law so

formulated, the matter can be settled by modifying the decree

impugned in appeal by incorporating the area of land under

Survey No. 110/65 with the boundary between the lands

thereunder and Survey No.109/65 belonging to the other side

being the Sheesham and Shreen trees currently existing on

the spot.

Role of the counsel

12) Now, we have to consider the role of the counsel

reporting to the Court about the settlement arrived at. We

have already noted that in terms of Order XXIII Rule 3 of CPC,

agreement or compromise is to be in writing and signed by the

parties. The impact of the above provision and the role of the

counsel has been elaborately dealt with by this Court in

Byram Pestonji Gariwala vs. Union Bank of India and

Others, (1992) 1 SCC 31 and observed that courts in India

have consistently recognized the traditional role of lawyers and

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the extent and nature of implied authority to act on behalf of

their clients. Mr. Ranjit Kumar, has drawn our attention to

the copy of Vakalatnama (Annexure-R3) and the contents

therein. The terms appended in Vakalatnama enable the

counsel to perform several acts on behalf of his client

including withdraw or compromise suit or matter pending

before the Court. The various clauses in the Vakalatnama

undoubtedly gives power to the counsel to act with utmost

interest which includes to enter into a compromise or

settlement. The following observations and conclusions in

paras 37, 38 and 39 are relevant:

"37. We may, however, hasten to add that it will be prudent

for counsel not to act on implied authority except when

warranted by the exigency of circumstances demanding

immediate adjustment of suit by agreement or compromise

and the signature of the party cannot be obtained without

undue delay. In these days of easier and quicker

communication, such contingency may seldom arise. A wise

and careful counsel will no doubt arm himself in advance

with the necessary authority expressed in writing to meet all

such contingencies in order that neither his authority nor

integrity is ever doubted. This essential precaution will

safeguard the personal reputation of counsel as well as

uphold the prestige and dignity of the legal profession.

38. Considering the traditionally recognised role of counsel

in the common law system, and the evil sought to be

remedied by Parliament by the C.P.C. (Amendment) Act,

1976, namely, attainment of certainty and expeditious

disposal of cases by reducing the terms of compromise to

writing signed by the parties, and allowing the compromise

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decree to comprehend even matters falling outside the

subject matter of the suit, but relating to the parties, the

legislature cannot, in the absence of express words to such

effect, be presumed to have disallowed the parties to enter

into a compromise by counsel in their cause or by their duly

authorised agents. Any such presumption would be

inconsistent with the legislative object of attaining quick

reduction of arrears in court by elimination of uncertainties

and enlargement of the scope of compromise.

39. To insist upon the party himself personally signing the

agreement or compromise would often cause undue delay,

loss and inconvenience, especially in the case of non-

resident persons. It has always been universally understood

that a party can always act by his duly authorised

representative. If a power-of-attorney holder can enter into

an agreement or compromise on behalf of his principal, so

can counsel, possessed of the requisite authorisation by

vakalatnama, act on behalf of his client. Not to recognise

such capacity is not only to cause much inconvenience and

loss to the parties personally, but also to delay the progress

of proceedings in court. If the legislature had intended to

make such a fundamental change, even at the risk of delay,

inconvenience and needless expenditure, it would have

expressly so stated."

13) In Jineshwardas (D) by LRs and Others vs. Jagrani

(Smt) and Another, (2003) 11 SCC 372, this Court, by

approving the decision taken in Byram Pestonji's case

(supra), held that a judgment or decree passed as a result of

consensus arrived at before Court, cannot always be said to be

one passed on compromise or settlement and adjustment. It

may, at times, be also a judgment on admission.

14) In Jagtar Singh vs. Pargat Singh and Others, (1996)

11 SCC 586, it was held that counsel for the appellant has

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power to make a statement on instructions from the party to

withdraw the appeal. In that case, respondent No.1 therein,

elder brother of the petitioner filed a suit for declaration

against the petitioner and three brothers that the decree dated

04.05.1990 was null and void which was decreed by

subordinate Judge, Hoshiarpur on 29.09.1993. The petitioner

therein filed an appeal in the Court of Additional Distruct

Judge, Hoshiarpur. The counsel made a statement on

15.09.1995 that the petitioner did not intend to proceed with

the appeal. On the basis thereof, the appeal was dismissed as

withdrawn. The petitioner challenged the order of the

appellate court in the revision. The High Court confirmed the

same which necessitated filing of SLP before this Court.

Learned counsel for the petitioner contended that the

petitioner had not authorized the counsel to withdraw the

appeal. It was further contended that the court after

admitting the appeal has no power to dismiss the same as

withdrawn except to decide the matter on merits considering

the legality of the reasoning of the trial Court and the

conclusions either agreeing or disagreeing with it. Rejecting

17

the said contention, the Court held as under:

"3. The learned counsel for the petitioner has contended

that the petitioner had not authorised the counsel to

withdraw the appeal. The Court after admitting the appeal

has no power to dismiss the same as withdrawn except to

decide the matter on merits considering the legality of the

reasoning of the trial court and the conclusions either

agreeing or disagreeing with it. We find no force in the

contention. Order III Rule 4 CPC empowers the counsel to

continue on record until the proceedings in the suit are duly

terminated. The counsel, therefore, has power to make a

statement on instructions from the party to withdraw the

appeal. The question then is whether the court is required to

pass a reasoned order on merits against the decree appealed

from the decision of the Court of the Subordinate Judge?

Order 23 Rules 1(1) and (4) give power to the party to

abandon the claim filed in the suit wholly or in part. By

operation of Section 107(2) of the CPC, it equally applies to

the appeal and the appellate court has co-extensive power to

permit the appellant to give up his appeal against the

respondent either as a whole or part of the relief. As a

consequence, though the appeal was admitted under Order

41 Rule 9, necessarily the Court has the power to dismiss

the appeal as withdrawn without going into the merits of the

matter and deciding it under Rule 11 thereof.

4. Accordingly, we hold that the action taken by the counsel

is consistent with the power he had under Order III Rule 4

CPC. If really the counsel has not acted in the interest of the

party or against the instructions of the party, the necessary

remedy is elsewhere and the procedure adopted by the court

below is consistent with the provisions of CPC. We do not

find any illegality in the order passed by the Additional

District Judge as confirmed by the High Court in the

revision."

15) The analysis of the above decisions make it clear that the

counsel who was duly authorized by a party to appear by

executing Vakalatnama and in terms of Order III Rule 4,

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empowers the counsel to continue on record until the

proceedings in the suit are duly terminated. The counsel,

therefore, has power to make a statement on instructions from

the party to withdraw the appeal. In such circumstance, the

counsel making a statement on instructions either for

withdrawal of appeal or for modification of the decree is well

within his competence and if really the counsel has not acted

in the interest of the party or against the instructions of the

party, the necessary remedy is elsewhere. Though learned

counsel for the appellant vehemently submitted that the

statement of the counsel before the High Court during the

course of hearing of Second Appeal No. 19 of 2005 was not

based on any instructions, there is no such material to

substantiate the same. No doubt, Mr. Garg has placed

reliance on the fact that the first appellant was bedridden and

hospitalized, hence, he could not send any instruction.

According to him, the statement made before the Court that

too giving of certain rights cannot be sustained and beyond

the power of the counsel. It is true that at the relevant time,

namely, when the counsel made a statement during the course

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of hearing of second appeal one of the parties was ill and

hospitalized. However, it is not in dispute that his son who

was also a party before the High Court was very much

available. Even otherwise, it is not in dispute that till filing of

the review petition, the appellants did not question the

conduct of their counsel in making such statement in the

course of hearing of second appeal by writing a letter or by

sending notice disputing the stand taken by their counsel. In

the absence of such recourse or material in the light of the

provisions of the CPC as discussed and interpreted by this

Court, it cannot be construed that the counsel is debarred

from making any statement on behalf of the parties. No

doubt, as pointed out in Byram Pestonji (supra), in order to

safeguard the present reputation of the counsel and to uphold

the prestige and dignity of legal profession, it is always

desirable to get instructions in writing.

Maintainability of Review Petition

16) Now, let us consider the maintainability of the review

petition filed before the High Court after dismissal of SLP (C)

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No. 10939 of 2008 before this Court. It is not in dispute that

the High Court, by order dated 18.03.2008, based on the

statement of both counsel disposed of Second Appeal No. 19 of

2005 by modifying the decree as stated therein. Against the

said order of the High Court, the appellants preferred the

above said SLP before this Court. By order dated 14.05.2008,

this Court after hearing the counsel for the appellants passed

the following order:

"Learned counsel for the petitioner prays to withdraw the

petition. Prayer made is accepted. The special leave petition

is dismissed as withdrawn"

A reading of the above order makes it clear that based on the

request of the counsel, the SLP came to be dismissed as

withdrawn. It is also clear that there is no permission or

reservation or liberty for taking further action. However,

dismissal of SLP is not a bar for filing review before the same

Court. This aspect was considered by a three-Judge Bench of

this Court in Kunhayammed and Others vs. State of

Kerala and Another, (2000) 6 SCC 359. The above aspect

was dealt with elaborately in paras 38, 40 and 44.

21 "38. The review can be filed even after SLP is dismissed is

clear from the language of Order 47 Rule 1(a). Thus the

words "no appeal" has been preferred in Order 47 Rule 1(a)

would also mean a situation where special leave is not

granted. Till then there is no appeal in the eye of law before

the superior court. Therefore, the review can be preferred in

the High Court before special leave is granted, but not after

it is granted. The reason is obvious. Once special leave is

granted the jurisdiction to consider the validity of the High

Court's order vests in the Supreme Court and the High

Court cannot entertain a review thereafter, unless such a

review application was preferred in the High Court before

special leave was granted.

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 petitioner's

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

CPC 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 1 CPC act as guidelines) are

not necessarily the same on which this Court exercises

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discretion to grant or not to grant special leave to appeal

while disposing of a petition for the purpose. Mere rejection

of a 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. 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.

44. To sum up, our conclusions are:

(i) Where an appeal or revision is provided against an order

passed by a court, tribunal or any other authority before

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 law.

(ii) The jurisdiction conferred by Article 136 of the

Constitution is divisible into two stages. The first stage is

upto 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

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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 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.

(vi) Once leave to appeal has been granted and appellate

jurisdiction of Supreme Court has been invoked the order

passed in appeal would attract the doctrine of merger; the

order may be of reversal, modification or merely affirmation.

(vii) On an appeal having been preferred or a petition seeking

leave to appeal having been converted into an appeal before

the Supreme Court the jurisdiction of High Court to

entertain a review petition is lost thereafter as provided by

sub-rule (1) of Rule 1 of Order 47 CPC."

24 17) In view of the principle laid down above by this Court,

even after dismissal of SLP, the aggrieved parties are entitled

to move the court concerned by way of review. In the case on

hand, though the appellants moved an SLP in this Court

against the order of the High Court in Second Appeal,

admittedly, the SLP was dismissed as withdrawn without the

leave of the Court.

18) Similar question was considered by this Court in

Sarguja Transport Service vs. State Transport Appellate

Tribunal, M.P., Gwalior, and Others, (1987) 1 SCC 5. In

this decision it was held that where a petitioner withdraws a

petition filed by him in the High Court under Article 226/227

without permission to institute a fresh petition, remedy under

Article 226/227 should be deemed to have been abandoned by

the petitioner in respect of the cause of action relied on in the

writ petition and it would not be open to him to file a fresh

petition in the High Court under the same article though other

remedies like suit or writ petition before the this Court under

Article 32 would remain open to him. It was further held that

the principle underlying Rule 1 of Order XXIII of CPC should

25

be extended in the interests of administration of justice to

cases of withdrawal of writ petition also. The main contention

urged by the learned counsel for the petitioner in that case

was that the High Court was in error in rejecting the writ

petition on the ground that the petitioner had withdrawn the

earlier writ petition in which he had questioned the order

passed by the Tribunal on 04.10.1985 without the permission

of the High Court to file a fresh petition. It was urged by the

learned counsel that since the High Court had not decided the

earlier petition on merits but only had permitted the petitioner

to withdraw the petition, the withdrawal of the said earlier

petition could not have been treated as a bar to the

subsequent writ petition. While considering the said question,

this Court considered sub-rule 3 of Rule 1 of Order 23 CPC

and its applicability to writ petitions filed under Article

226/227 and held as under:

"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

26

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. 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

rignt guaranteed under Article 21 of the Constitution since

such a case stands on a different footing altogether. We,

however leave this question open."

19) In the light of the discussion in the earlier paragraphs

even after dismissal of an SLP with or without reasons, the

aggrieved party is entitled to file a review. In view of the

language used in Order XLVII Rule 1(a) of CPC which relates

to "Review", the present Review Petition (C) No. D-5/2008)

cannot be dismissed on the ground of maintainability. Based

on the above discussion and reasons, we hold that the review

27

petition filed by the appellants was maintainable but in view of

Order III Rules 1 and 4, Chapter relating to the role of

Pleaders, and in view of the conduct of the appellants in not

raising any objection as to the act of their counsel except filing

review petition, we are not inclined to accept the claim of the

appellants.

20) Finally, Mr. Garg vehemently contended that by the

concession of their counsel, appellants lost their property and

they suffered huge loss in terms of money. On perusal of the

modified decree as available in the order of the High Court in

Second Appeal No. 19 of 2005 and the sketch produced about

the existence of Sheesham and Shreen trees running as a

demarcating line and whenever those trees fall on either side

the parties having ownership of the land get right to use the

same, we are unable to accept the said contention also.

21) In the light of the above discussion, we find no merit in

both the appeals. Consequently, the same are dismissed.

There shall be no order as to costs.

...............................................J.

28

(P. SATHASIVAM)

...............................................J.

(H.L. GOKHALE)

NEW DELHI;

4th AUGUST, 2011.

29