REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs.4641-4642 OF 2009
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
10
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
11
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
12
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
14
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
15
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
16
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,
18
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)
20
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.
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"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
22
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.
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