Full Judgment
1
G.A. No. 1310 of 2011
A.P.O.T. No. 657 of 2010
A.O.R.C. No.1 of 2010
A.O.R.C. No.2 of 2010
In the High Court at Calcutta
In Appeal From Its Original Civil Jurisdiction
Original Side
Present :
The Hon'ble Justice J.N. Patel, Chief Justice
And
The Hon'ble Justice Dr. Sambuddha Chakrabarti
Pramod Kumar Jalan
Versus
Banwarilal Jalan
For the Applicant : Mr. S.N. Mukherjee, Senior Advocate Mr. Jayjit Ganguly, Advocate
Mr. Sayentan Basu, Advocate
Mr. Ashish Chowdhury, Advocate
For the Respondents : Mr. S.P. Sarkar, Advocate Mr. D.N. Sharma, Advocate
Mr. Ajoy Chowdhury, Advocate
Heard on : 23.11.2011
Order on : 22.12.2011
The petitioner is the original respondent who has filed this application for
review of the judgment and order dated 4th March, 2011 passed by the Division
Bench of this Court in G.A. No.3725 of 2010, A.P.O.T. No. 657 of 2010, A.O.R.C. 2
No.1 of 2010 and A.O.R.C. No.2 of 2010 (Banwarilal Jalan vs. Pramod Kumar
Jalan). The respondent has raised a preliminary issue as to the maintainability of
the review application on the premise that a Special Leave Petition preferred
against the order dated 4th March, 2011 was dismissed in limine by the Supreme
Court and, therefore, it will not be permissible for this Court to entertain the
review application.
It was submitted on behalf of the respondent that the preliminary issue of
maintainability of the petition be first decided before proceeding with the review
petition.
This case pertains to the bequest relating to the tenancy right in respect of
the north-west ground floor flat at premises No.10, Lower Rawdon Street,
Calcutta-700020, which the father of the executor held as a monthly tenant
under a trust. The Will stipulated that such tenancy should go to a grandson of
the testators through another son. The Probate of the joint and mutual Will was
granted to the executor on September 06, 2007. Since then, administration of the
estate is complete.
It is the case of the petitioner, legatee of the said flat, that the executor
refused to give assent to the said legacy of the petitioner under Section 332 of the
Indian Succession Act and, therefore, the petitioner on or about May, 2009 filed a
suit in the Alipore Court being Title Suit No.1442 of 2009 against the respondent
who was impleaded therein as defendant No1 in his capacity as the executor, as
well as in his capacity as a trustee (impleaded therein as defendant No.4) for a 3
declaration that he was entitled to the tenancy right in respect of the bequeathed
flat and also for other consequential relief by way of injunction.
On an interlocutory application filed by the petitioner in the said suit, on or
about May 4, 2009 an order of status quo was passed by the Learned Trial
Judge. An appeal was preferred from the said order but the same was rejected.
The respondent (defendant nos. 1 and 4 in the said suit) filed an
application under Section 151 of the Code of Civil Procedure, seeking permission
to appoint security guard to safeguard the safety of the said flat. The application
came to be rejected by the order dated 8th February, 2010. A revisional
application filed by the respondent in the High Court was also rejected by order
dated 21st April, 2010 and the learned Judge directed that the respondent should
hand over the said flat to the petitioner, but the petitioner would hold the same
in his capacity as a special officer of the Court until disposal of the suit. A
Special Leave Petition was filed against the said order and the same was rejected.
Thereafter, the respondent refused to comply with the direction contained in the
Order dated 21st April, 2011. Contempt proceeding had been initiated by the
petitioner and the same is pending.
It is the case of the petitioner that he was advised to file an application
under Section 301 of the Indian Succession Act for removal of the executor,
respondent herein, for his insolent refusal to comply with the directions of the
testator in his Will.
By way of counterblast, the respondent filed an application under Section
301 of the Indian Succession Act seeking declaration to the effect that bequest of 4
the tenancy right of a flat is void and unlawful and as such he has no obligation
to give any assent to the said legacy or transfer of the said flat in favour of the
petitioner.
Both the applications were heard and disposed of by judgment and order
dated 10th December, 2010 by the learned single Judge of this Court who
directed the respondent as the executor, to give assent to the said legacy in
favour of the petitioner and dismissing the respondent's application filed under
Section 302 of the said Act.
This led to filing of an appeal before the Division Bench of this Court which
was disposed of by order dated 4th March, 2011 by this Court. The Division
Bench accepted the submissions of the respondent and held that bequest of a
monthly tenancy right, being in favour of a person not included within the
definition of 'tenant' under Section 2(g) of the West Bengal Premises Tenancy Act,
1997, is void and illegal.
Aggrieved by the order dated 4th March, 2011 a Special Leave Petition was
preferred which came to be dismissed in limine by the Supreme Court.
Learned Counsel appearing for the legatee petitioner contended, as a
proposition of law that a party is entitled to file an application for review under
Order 47 of the Code of Civil Procedure as a matter of right provided:
i) Such right is not time-barred, and
ii) The Hon'ble Supreme Court while dismissing the Special Leave
Petition in limine, has not admitted the petition and consequently 5
did not decide the matter on merits; in other words, the impugned
order has not merged with the Hon'ble Supreme Court's order.
Counsel for the petitioner cited many cases on various aspects of the
matter but kept the case of Kunhayammed reported in AIR 2000 SC 2587=(2000)
6 SCC 359 and Gangadhara Palo reported in (2011) 4 SCC 602 at the
forefront of his argument in support of his aforesaid submissions.
Counsel for the respondent, in turn, also relied on cases decided by the
Hon'ble Supreme Court and, in particular, two decisions of the Division Bench of
this Hon'ble Court, namely, Puranmall Goenka case reported in 2006 (3) CHN
737 and West Bengal Dairy and; Poultry Development Corporation Limited case
reported in (2009) 4 CHN page 288 which in turn was relied on and followed
Abbai Maligai case reported in AIR 1999 SC 1486=(1998) 7 SCC 386 in support
of his contention that once a Special Leave Petition preferred from impugned
order has been dismissed, regardless of whether it was dismissed at the
threshold or after admission of the same, no review application is maintainable
from the self same order.
In Palani Roman Catholic Mission v. S. Bagirathi Ammal reported in
(2009) 16 SCC 657, the Supreme Court held :
"4. This Court in Kunhayammed v. State of Kerala has taken the view that an order of the nature made in the special leave petition arising out of the order of the High Court, which is a non-speaking order, does not attract the doctrine of merger and it would not substitute the order impugned in the special leave petition proceedings with the result that the Court was not inclined to exercise its discretion so as to allow the appeal to be filed.
5. This Court has in the said decision proceeded to state that a review can be filed in such a case even after special leave petition is dismissed 6
inasmuch as no leave had been granted to file an appeal and until there is no appeal in the eye of the law in the superior court, review can be preferred in the High Court."
In Fuljit Kaur v. State of Punjab reported in (2010) 11 SCC 455, the
Supreme Court observed :
7. There is no dispute to the settled proposition of law that dismissal of the special leave petition in limine by this Court does not mean that the reasoning of the judgment of the High Court against which the special leave petition has been filed before this Court stands affirmed or the judgment and order impugned merges with such order of this Court on dismissal of the petition. It simply means that this Court did not consider the case worth examining for the reason, which may be other than merit of the case. Nor such an order of this Court operates as res judicata. An order rejecting the special leave petition at the threshold without detailed reasons therefore does not constitute any declaration of law or a binding precedent. [Vide Workmen v. Cochin Port Trust, Ahmedabad Mfg. and; Calico Printing Co. Ltd. v. Workmen, Indian Oil Corpn. Ltd. v. State of Bihar, Supreme Court Employees' Welfare Assn. v. Union of India, Yogendra Narayan Chowdhury v. Union of India, Union of India v. Sher Singh, V.M. Salgaocar and; Bros. (P) Ltd. v. CIT, Saurashtra Oil Mills Assn. v. State of Gujarat, Union of India v. Jaipal Singh and Y. Satyanarayan Reddy v. Mandal Revenue Officer].
9. In Kunhayammed v. State of Kerala14 this Court reconsidered the issue and some of the abovereferred judgments and came to the conclusion that dismissal of special leave petition in limine by a non-speaking order may not be a bar for further reconsideration of the case for the reason that this Court might not have been inclined to exercise its discretion under Article 136 of the Constitution. The declaration of law will be governed by Article 141 where the matter has been decided on merit by a speaking judgment as in that case the doctrine of merger would come into play. This Court laid down the following principles: (SCC pp. 383-84, para 44) '(i) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before a 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 the law. 7
(ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. The first stage is up to 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 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 a 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.'
The Court came to the conclusion that where the matter has been decided by a non-speaking order in limine the party may approach the Court for reconsideration of the case in exceptional circumstances."
In the light of ratio in Kunhayammed's case referred to above and more
particularly the decision of the Hon'ble Supreme Court in the case of Gangadhara 8
Palo reported in (2011) 4 SCC 602 we are inclined to accept the submission made
on behalf of the petitioner that in the facts of this case, review application is
maintainable.
However, in view of the fact that a contrary view had been taken by two
earlier Division Benches in the two cases referred to above namely, Puranmall
Goenka case reported in 2006 (3) CHN 737 and West Bengal Dairy and; Poultry
Development Corporation Limited case reported in (2009) 4 CHN Page 288 we
refer the following question for decision by a Larger Bench :
Whether by reason of the dismissal of the Special Leave Petition by Hon'ble
Supreme Court against an order passed by the High Court, it is permissible for
the High Court to entertain an application for review in respect of the self same
ORDER
(Sambuddha Chakrabarti, J.) (J.N. Patel, C.J.)