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Thursday, April 11, 2013

SLP is not maintainable, since the main order was not challenged but only the order passed in the review petition alone was challenged in this SLP. Hence, the SLP is, therefore, not maintainable and the same is dismissed.


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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Special Leave Petition (Civil) NO.4616 of 2010
Municipal Corporation of Delhi .. Petitioner
Versus
Yashwant Singh Negi .. Respondent
J U D G M E N T
K. S. Radhakrishnan, J
1. This special leave petition has been preferred against the
order dated 11.09.2009 passed by the High Court of Delhi in
Review Petition No.79 of 2009 in LPA No.1233 of 2006. Mr.
Nidhesh Gupta, learned senior counsel appearing for the
respondent raised a preliminary objection that the special leave
petition is not maintainable since the main judgment rendered by
the High Court on 5.11.2008 in LPA No.1233 of 2006 was not
challenged.Page 2
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2. Mr. Sanjiv Sen, learned counsel appearing for the petitioner
placed considerable reliance on the judgment of this Court in
Eastern Coalfields Limited v. Dugal Kumar (2008) 14 SCC 295
and submitted that the said judgment would apply to the facts of
this case and the SLP is perfectly maintainable, even though the
petitioner had not challenged the original order passed by the
High Court on 5.11.2008. Learned counsel submitted that on
dismissal of the review petition, the earlier order stood merged, in
the order passed in the review petition, consequently, the SLP is
perfectly maintainable. Considerable reliance was placed on
paragraphs 21 and 22 of the above Judgment, which read as
under:
“21. Having heard the learned counsel for the parties,
in our opinion, the appeal deserves to be partly allowed.
So far as the technical objection raised by the Company
with regard to territorial jurisdiction of the High Court of
Calcutta is concerned, in our opinion, it would not be
appropriate to set aside the order passed in favour of
the writ petitioner on that ground. It is clear from the
record that the writ petition came up for admission
hearing on 6-9-1999 and the counsel for the appellant
Company was present. Not only that he did not raise
any objection as to territorial jurisdiction of the court, he
expressly made a statement before the court to pass
“usual order”. Accordingly, an order was passed
directing the Company to allot “balance quantity of
1008 MT” of coal to the writ petitioner. We are,
therefore, unable to uphold the contention of thePage 3
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learned counsel for the appellant Company that the
High Court of Calcutta had no territorial jurisdiction to
entertain the writ petition.
22. But we are also unable to uphold the contention of
the writ petitioner that the appeal is not maintainable
since the Company had challenged the order passed in
review petition dated 28-1-2002 and not the main order
dated 17-2-2000 dismissing intra-court appeal.”
3. We find ourselves unable to agree with the views expressed
by this Court in Eastern Coalfields Limited (supra). In our view,
once the High Court has refused to entertain the review petition
and the same was dismissed confirming the main order, there is
no question of any merger and the aggrieved person has to
challenge the main order and not the order dismissing the review
petition because on the dismissal of the review petition the
principle of merger does not apply. In this connection reference
may be made to the Judgment of this Court in Manohar S/o
Shankar Nale and others v. Jaipalsing S/o Shivlalsing
Rajput and others (2008) 1 SCC 520 wherein this Court has
taken the view that once the review petition is dismissed the
doctrine of merger will have no application whatsoever. This
Court in DSR Steel (Private) Limited v. State of Rajasthan
and others (2012) 6 SCC 782 also examined the variousPage 4
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situations which might arise in relation to the orders passed in
review petitions. Reference to paragraphs 25, 25.1, 25.2 and 25.3
is made, which are extracted below for ready reference:
“25. Different situations may arise in relation to review
petitions filed before a court or tribunal.
25.1. One of the situations could be where the review
application is allowed, the decree or order passed by the
court or tribunal is vacated and the
appeal/proceedings in which the same is made are
reheard and a fresh decree or order passed in the same.
It is manifest that in such a situation the subsequent
decree alone is appealable not because it is an order in
review but because it is a decree that is passed in a
proceeding after the earlier decree passed in the very
same proceedings has been vacated by the court
hearing the review petition.
25.2. The second situation that one can conceive of is
where a court or tribunal makes an order in a review
petition by which the review petition is allowed and the
decree/order under review is reversed or modified. Such
an order shall then be a composite order whereby the
court not only vacates the earlier decree or order but
simultaneous with such vacation of the earlier decree or
order, passes another decree or order or modifies the
one made earlier. The decree so vacated reversed or
modified is then the decree that is effective for the
purposes of a further appeal, if any, maintainable under
law.
25.3. The third situation with which we are concerned in
the instant case is where the revision petition is filed
before the Tribunal but the Tribunal refuses to interfere
with the decree or order earlier made. It simply dismisses
the review petition. The decree in such a case suffersPage 5
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neither any reversal nor an alteration or modification. It
is an order by which the review petition is dismissed
thereby affirming the decree or order. In such a
contingency there is no question of any merger and
anyone aggrieved by the decree or order of the Tribunal
or court shall have to challenge within the time
stipulated by law, the original decree and not the order
dismissing the review petition. Time taken by a party in
diligently pursing the remedy by way of review may in
appropriate cases be excluded from consideration while
condoning the delay in the filing of the appeal, but such
exclusion or condonation would not imply that there is a
merger of the original decree and the order dismissing
the review petition.”
4. We are in complete agreement with the principle laid down
by this Court in DSR Steel (Private) Limited (supra) and
applying the 3rd situation referred to therein in paragraph 25.3, we
are inclined to dismiss this special leave petition. We find force in
the contention made by the learned senior counsel appearing for
the respondent that this SLP is not maintainable, since the main
order was not challenged but only the order passed in the review
petition alone was challenged in this SLP. Hence, the SLP is,
therefore, not maintainable and the same is dismissed. 
……………………………..J.
(K.S. Radhakrishnan)
……………………………..J.Page 6
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(Dipak Misra)
New Delhi,
April 08, 2013

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