S. NARAHARI AND ORS versus S.R. KUMAR AND ORS. on 5 July 2023

[2023] 10 S.C.R.

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S. NARAHARI AND ORS.

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S.R. KUMAR AND ORS.

(Civil Appeal No. 4289-4290 of 2023)

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JULY 05, 2023

[KRISHNA MURARI AND SANJAY KAROL, JJ.]

Code of Civil Procedure, 1908 – Or. XLVII r. 7 – ConstitutionOf India – Art. 141 – Whether liberty granted by Supreme Court toCapproach the High Court in review, automatically places the saidmatter in the escalation matrix, and makes the remedy of SpecialLeave Petition available again – Held: It is necessary for the sameto be adjudicated and deliberated upon by a larger bench of theSupreme Court.

DReferring the matter to the larger Bench, the Court HELD: 1. If a dismissal of Special Leave Petition by way ofa nonspeaking order is not considered law under Article 141 ofthe Constitution of India, the same also cannot be considered asres judicata, and therefore, in every such dismissal, even in casesEwhere the dismissal is by way of a withdrawal, the remedy of filinga fresh Special Leave Petition would still persist. Further, if onthe said reasoning, a remedy to file a review in the High Court isallowed, then the same reasoning cannot arbitrarily excludethe filing of a subsequent Special Leave Petition. [Para 39][1019-F-G]F

2. This Court is aware of the fact that such an interpretation,if expanded beyond the specific scope of filing a review in theHigh Court is allowed, it would open the floodgates of litigation,and would essentially mean that every dismissal of Special LeavePetition must be accompanied with reasons declaring the same.G[Para 40][1020-A-B]

3. Therefore, to put a quietus to such an issue, it is necessaryfor the same to be adjudicated and deliberated upon by a largerbench of this Court. [Para 41][1020-C]

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S. NARAHARI AND ORS. v. S.R. KUMAR AND ORS.

Sandhya Educational Society v. Union Of India (2014)7 SCC 701; Vinod Kapoor v. State Of Goa (2012) 7SCC 701; Khoday Distilleries Ltd. v. Sri MahadeshwaraSahakara Sakkare Karkhane Ltd (2019) 4 SCC 376 :[2019] 3 SCR 411; Kunhayammed v. State of Kerala(2000) 6 SCC 359 : [2000] 1 Suppl. SCR 538 – referredto.

CIVIL APPELLATE JURISDICTION: Civil Appeal (Diary) No.23775 of 2022.

From the Judgment and Order dated 15.07.2022 in RP No. 365 of2022 and dated 20.12.2019 in RFA No. 392 of 2012 of the High Court ofKarnataka at Bengaluru.

Devdutt Kamat, Sr. Adv., Saket Gogia, Javedkar, Dhawesh Pahuja,Ms. Gauri Pande, Man Singh, Ms. Awantika Manohar, Advs. for theAppellants.

Nishant Ramakantrao Katneshwarkar, Ms. Suvarna Ganu, SanketS Deshpande, Advs. for the Respondents.

The Judgment of the Court was delivered by KRISHNA MURARI, J.

Delay condoned.

2. Leave granted.

3. The present appeals are directed against the impugned orderand judgment dated 20.12.2019 in RFA No. 392 of 2012 (DEC) andimpugned judgment and order dated 15.07.2022 in Review Petition No.365 of 2022 passed by the High Court of Karnataka at Bengaluru,(hereinafter referred to as “High Court”), whereby, both, the Appealand the review preferred by the appellants herein were dismissed.

4. The relevant facts necessary for the adjudication of the presentappeals, for the sake of convenience, are being mentioned herein.

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A5. One Late Arosji Rao was the original owner of the suit propertyand had two daughters. The said Late Arosji Rao, before his death,executed a Will dated 17.07.1945, bequeathing the suit property to bothof his daughters in equal share. In the said Will, among other things, itwas stated that both the legatees were to enjoy the suit property duringtheir entire lifetime, and thereafter, the same was to be transferred toBtheir respective male heirs. The said late Arosji Rao subsequently diedon 30.09.1945, and the abovementioned Will was probated.

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6. The two daughters of the original owner Lt. Arosji Rao, Smt.Kamala Bai and Smt. Anusuya Bai, as joint owners of the bequeathedsuit property, executed a lease deed in favour of one M/s Rajatha TrustCfor a period of 45 years. During the tenure of the said lease, on 07.07.1988,Smt. Kamala Bai passed away, and as per the Will of the original suitowner, part of the suit property was to flow to the heirs of Smt. KamalaBai.

7. After the death of Smt. Kamala bai, a dispute arose betweenDher heirs and Smt. Ansuya Bai, on account of which, Smt. Ansuya Bai,filed a suit for partition and possession of her part of the bequeathed suitproperty. The matter was however settled by both the parties, and acompromise decree was passed. It was agreed upon by both the partiesto divide the suit property in equal shares.E

8. Subsequent to the compromise decree, the sons of Smt. AnsuyaBai, who are the respondent No.1 and respondent No.2 herein, filed asuit against their mother and the sons of Late Smt. Kamala Bai, seekingmandatory injunction.

9. During the said suit, Smt. Ansuya Bai leased the suit propertyFto the appellants herein for a period of 51 years. The appellants thenstarted construction of a commercial complex on the suit property,however, the respondents, as against the said construction, got a stayorder in their favour.

10. In the aforesaid suit, the Trial Court, apart from framing otherGrelevant issues, also framed five additional issues which are as under :-

I.Whether the plaintiffs prove that the defendant no. 1 hasonly life interest in the suit property?

II.Whether the plaintiffs prove that the defendant no. 1 hasno right to deal with the suit property beyond her life time?H

III.Whether the plaintiffs further proves that any leases, etc.,of the suit property by the defendant no. 1 for the periodbeyond her life time are void and not binding upon them?

IV.Whether the defendant no. 7 proves that he has lawfullyentered into an agreement of sale with defendant no. 2 and3 for their respective portion of property?

V.Whether the defendant no. 7 proves that there will bemiscarriage of justice if this suit is decreed against the entireschedule property?

11. Vide order and judgment dated 11.04.2002, the Learned TrialCourt dismissed the suit filed by the respondents herein, vacated thestay order, and held that the compromise decree entered into betweenthe parties is binding on the respondents.

12. Aggrieved by the same, the respondents preferred an appealin the High Court. During the pendency of the said appeal, Smt. AnsuyaBai passed away. Further, the respondents also filed an application underOrder VI Rule 17 of CPC for amendment of plaint and sought for arelief of recovery of possession of property.

13. Vide order and judgment dated 10.08.2007, the High Courtdid not disturb the finding of the Trial Court regarding the compromisedecree being binding on the respondents, however, in respect of theadditional relief of possession of part of suit property, the matter wasremanded to the Trial Court, for proper adjudication.

14. Aggrieved by the same, the appellant No.1 herein filed SpecialLeave Petition in this Court, and during the pendency of the said SpecialLeave Petition, the Trial Court proceeded with the matter remanded toits jurisdiction.

15. Vide order and judgment dated 29.10.2011, the Trial Court onthe limited ground of possession of part of the suit property, decreed thesuit in favour of the respondent no.1 and respondent no.2 herein.

16. Aggrieved by the aforesaid judgment and decree of the TrialCourt, the petitioner(s) therein filed another appeal in the High Court.During the pendency of the said first appeal before the High Court, theSpecial Leave Petition filed in this Court by the petitioner(s)/appellant(s)was dismissed vide order dated 03.01.2013 on the ground that the reliefprayed for in the Special Leave Petition had exhausted itself.

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A17. However, while dismissing the said Special Leave Petition,this Court held that since the first appeal filed against the judgment dated29.10.2011 was still pending before the High Court and that there wereissues raised in the Special Leave Petition qua the remand order, thisCourt gave liberty to the petitioner(s) therein to raise all such questionsbefore the High Court in the pending appeal without being influenced byBthe remand order. Subsequently, the said first appeal also came to bedismissed vide judgment dated 20.12.2019.

18. Aggrieved by the dismissal of the first appeal, the petitioner(s)/appellant(s) filed another Special Leave Petition before this Court,however, the same was dismissed as withdrawn with liberty to approachCthe High Court by means of filing a review petition.

19. For the sake of clarity, in such a case where a multiplicity ofproceedings exists, we find it crucial to clarify that as far as the presentappeals are concerned, challenge is confined to two orders dated20.12.2019 and 15.07.2022 passed by the High Court.

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20. At the first instance, by way of an earlier Special Leave Petition,the original impugned order of the High Court dated 20.12.2019 waschallenged. This Court had dismissed the same, however liberty wasgranted to the petitioner(s)/appellant(s) to approach the High Court byway of a review.

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21. The said liberty was utilized by the appellant(s), and a reviewwas filed in the High Court. The same however, was dismissed by theHigh Court vide impugned order and judgment dated 15.07.2022.

22. In the present appeals, both, the original impugned order byFthe High Court in appeal, as well as the order in review by the HighCourt, are being challenged.

ANALYSIS

23. The Ld. counsel appearing on behalf of both the parties wereheard in great detail.

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24. At the first instance, the Ld. Counsel appearing on behalf ofthe respondents has raised a preliminary objection as far as themaintainability of the present appeals are concerned.

25. We are of the considered opinion that only after the issue ofmaintainability is decided upon, can this Court enter into the merits ofH

the case. The issue of maintainability of Special Leave Petition is akin toa rite of passage, and only after it is deemed that Special Leave Petitionis maintainable, can an entry be taken into the merits of a dispute.

26. It is the contention of the respondents that as far as an appealby way of Special leave against an order passed in review is concerned,the provisions of Order XLVII rule 7 make it amply clear that the sameis not permissible, that is to say, no appeal by way of Special LeavePetition against an order passed in review is maintainable.

27. Further, it has also been contended by the respondents, thatthis Court, while dismissing the original Special Leave Petition filed bythe petitioner(s) therein, while it granted liberty to the petitioners toapproach the High Court in review, did not give the petitioners specificpermission to file a subsequent Special Leave Petition before this Court.Such lack of explicit permission, as per the respondent, places a bar onthe petitioners to approach this Court again. For this, the respondent hasrelied on the case ofSandhya Educational Society Vs. Union Of India1

28. As far as first contention of the respondent is concerned, weconcur with the same. Order XLVII rule 7 of the CPC makes it amplyclear that no Special Leave Petition can be filed against an order passedin review, and as such, does not require our further consideration. For aready reference, the same is being reproduced herein:

“Order of rejection not appealable. Objections to ordergranting application.

(1) An order of the Court rejecting the application shall notbe appealable; but an order granting an application may beobjected to at once by an appeal from the order granting theapplication or in an appeal from the decree or order finallypassed or made in the suit.

(2) Where the application has been rejected in consequenceof the failure of the applicant to appear, he may apply for anorder to have the rejected application restored to the file,and, where it is proved to the satisfaction of the Court that hewas prevented by any sufficient cause from appearing whensuch application was called on for hearing, the Court shallorder it to be restored to the file upon such terms as to costs A

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Aor otherwise as it thinks fit, and shall appoint a day for hearingthe same.

(3) No order shall be made under sub-rule (2) unless noticeof the application has been served on the opposite party.

29. The appellants however, to overcome such bar, in the presentBappeals, have not only impugned the order passed by the High Court inreview, but has also impugned the original order passed by the HighCourt in appeal. The limited question, therefore, posed before us for ourconsideration, is whether liberty granted by this Court to approach theHigh Court in review, automatically places the said matter matter in theCescalation matrix, and makes the remedy of Special Leave Petitionavailable again.

30. In the case ofVinod Kapoor Vs. State Of Goa2, the petitionertherein had filed a Writ in the High Court and the same was dismissed.As against this, the petitioner therein, filed a review in the High CourtDand also filed Special Leave Petition in the Supreme Court. When theSpecial Leave Petition came to be heard, the petitioner therein statedthat he had already filed a review, and hence, sought liberty to withdrawthe case, and on the same grounds, the Special Leave Petition wasdismissed as withdrawn.

E31. After the withdrawal of the Special Leave Petition, the reviewpetition was heard by the High Court, however, the same was dismissed.Aggrieved by the said dismissal of the review, the petitioner therein,filed another Special Leave Petition in the Supreme Court.

32. While dealing with a similar fact circumstance as in the presentFcase, wherein a consecutive Special Leave Petition was filed and theorder in the original Special Leave Petition only gave an explicit libertyto approach the High Court, this Court held that the subsequent SpecialLeave Petition was not maintainable. The relevant paragraphs of thesaid judgment are being produced herein:

“There is nothing in the decisions cited by the appellant toGshow that this Court has taken a view different from the viewtaken in Abhishek Malviya v. Additional Welfare Commissionerand Another (supra) with regard to maintainability of anappeal by way of Special Leave under Article 136 of the H2 (2012) 7 SCC 701

S. NARAHARI AND ORS. v. S.R. KUMAR AND ORS.[KRISHNA MURARI, J.]

Constitution against an order of the High Court after anearlier Special Leave Petition against the same order hadbeen withdrawn without any liberty to file a fresh SpecialLeave Petition. Similarly, there is nothing in the decisions citedby the appellant to show that this Court has taken a view thatagainst the order of the High Court rejecting an applicationfor review, an appeal by way of Special Leave under Article136 of the Constitution is maintainable.

In the result, we hold that the Civil Appeals are notmaintainable and we accordingly dismiss the same….”

33. Further, in the case of Sandhya Education Society (Supra),a two-Judge Bench of this Court, while accepting the principle laid downin the Vinod Kapoor Judgment (Supra), categorically held that onceSpecial Leave Petition is dismissed as withdrawn, if no explicit libertyhas been granted to approach the Supreme Court by way of a subsequentSpecial Leave Petition, the same cannot be allowed. For a readyreference, the relevant extract of the said judgment is being placedhereunder:

“This Court in Vinod Kapoor v. State of Goa, has categoricallyobserved that once the special leave petition is dismissed aswithdrawn without obtainingg appropriate permission to filea special leave petition once over again after exhausting theremedy of review petition before the High Court, the same isnot maintainable.”

34. Per contra, the Ld. Counsel appearing on behalf of theappellants has relied upon the case of Khoday Distilleries Ltd. Vs. Sri3Mahadeshwara Sahakara Sakkare Karkhane Ltd., wherein it hasbeen observed that the doctrine of merger is not applicable in caseswhere the dismissal of Special Leave Petition is by way of a non-speakingorder. The relevant paragraphs of the said judgment, for the sake ofconvenience, are being reproduced herein:

“We reiterate the conclusions relevant for these cases asunder:

(Kunhayammed case |Kunhayammed v. State of Kerala,(2000) 6 SCC359]. SCC p. 384)

3 (2019) 4 SCC 376

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“(iv) An order refusing special leave to appeal may be a non-speaking order or a speaking one. In either case it does notattract the doctrine of merger. An order refusing special leaveto appeal does not stand substituted in place of the orderunder challenge. All that it means is that the Court was notinclined to exercise its discretion so as to allow the appealbeing filed.

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(v) If the order refusing leave to appeal is a speaking orderi.e. gives reasons for refusing the grant of leave, then theorder has two implications. Firstly, the statement of lawcontained in the order is a declaration of law by the SupremeCCourt within the meaning of Article 141 of the Constitution.Secondly, other than the declaration of law, whatever is statedin the order are the findings recorded by the Supreme Courtwhich would bind the parties thereto and also the Court,tribunal or authority in any proceedings subsequent theretoDby way of judicial discipline, the Supreme Court being theApex Court of the country. But, this does not amount to sayingthat the order of the Court, tribunal or authority below hasstood merged in the order of the Supreme Court rejecting thespecial leave petition or that the order of the Supreme CourtEis the only order binding as res judicata in subsequentproceedings between the parties.

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(vi) Once leave to appeal has been granted and appellatejurisdiction of the Supreme Court has been invoked theorder passed in appeal would attract the doctrine of merger;Fthe order may be of reversal, modification or merelyaffirmation.

(vii) On an appeal having been preferred or a petition seekingleave to appeal having been converted into an appeal beforethe Supreme Court the jurisdiction of the High Court toentertain a review petition is lost thereafter as provided bysub-rule (1) of Order 47 Rule 1 CPC”

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35. While the law laid down by the two judgments relied uponby the appellants, and other judgments in line with the said two judgmentsexplicitly state that specific liberty is a requirement for filing a subsequentHSpecial Leave Petition after the withdrawal of the first Special Leave Petition, however, a crack seems to appear in the foundation of thesaid judgments when the judgment of Khoday Distilleries (Supra)isread into in detail.

36. In the case ofKhoday Distelleries (Supra), the question thatwas raised before this Court was different from the present case,however, the underlying logic of the said judgment, in our opinion, hasbearing on the issue raised before us in the present case. In the saidcase, a three judge bench of this Court was tasked with answering thequestion of whether a review petition in the High Court is maintainable,once Special Leave Petition raising the same issue has been dismissed.This Court, while relying upon the case ofKunhayammed Vs. State of Kerela4, held that even after the dismissal of the Special Leave Petition,a review before the High Court is still maintainable.

37. While the conclusion of the said judgment is not relevant tothe present case at hand, however, the reasoning behind coming to thesaid conclusion, in our opinion, has bearing on the present case. ThisCourt, in the abovementioned case, while holding that a review ismaintainable even after the dismissal of Special Leave Petition, observedthat the dismissal of Special Leave Petition by way of a non-speakingorder does not attract the doctrine of merger.

38. In simpler terms, this would essentially mean that even incases where the Special Leave Petition was dismissed as withdrawn,where no reason was assigned by the Court while dismissing the matterand where leave was not granted in the said Special Leave Petition, thesaid dismissal would not be considered as laying down law within theambit of Article 141 of the Constitution of India.

39. If a dismissal of Special Leave Petition by way of a non-speaking order is not considered law under Article 141 of the Constitutionof India, the same also cannot be considered as res judicata, andtherefore, in every such dismissal, even in cases where the dismissal isby way of a withdrawal, the remedy of filing a fresh Special LeavePetition would still persist. Further, if on the said reasoning, a remedy tofile a review in the High Court is allowed, then the same reasoningcannot arbitrarily exclude the filing of a subsequent Special LeavePetition.

4 (2000) 6 SCC 359

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A40. We are painfully aware of the fact that such an interpretation,if expanded beyond the specific scope of filing a review in the HighCourt is allowed, it would open the floodgates of litigation, and wouldessentially mean that every dismissal of Special Leave Petition must beaccompanied with reasons declaring the same.

B41. Therefore, in light of the abovementioned observations, weare of the opinion that to put a quietus to such an issue, it is necessaryfor the same to be adjudicated and deliberated upon by a larger bench ofthis Court. Further, since only after such a preliminary objection is decided,can the merits of the present case be entered into, the same is to beplaced before an appropriate bench after the question of law is decidedCby the larger bench.

42. Accordingly, let the papers of the case be placed before theHon’ble Chief Justice of India for constituting a larger bench.

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Ankit Gyan

(Assisted by : Mahendra Yadav, LCRA)

Matter be placed before Hon’ble CJIfor constituting a larger Bench.

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