IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE [ENTITY] THURSDAY, THE 11TH DAY OF OCTOBER 2012/19TH ASWINA 1934 [CASE NUMBER] () AGAINST THE ORDER/JUDGMENT IN [CASE NUMBER] DATED 3/02/2011 REVIEW PETITIONER/LEGAL HEIR OF DECEASED 1ST RESPONDENT: [ENTITY], S/O.LATE [ENTITY], C 101 TATA SYMPHONY, CHANDIVILI FARM ROAD, POWAI, MUMBAI. BY ADVS.SRI.M.P.SREEKRISHNAN [ENTITY] RESPONDENT(S)/APPELLANT & RESPONDENTS 2 TO 5: 1. [ENTITY], [ENTITY], [ENTITY], [ENTITY],THIRUVALLA-689 103. 2. [ENTITY], [ENTITY], AYYAMPILLI P.O., ERNAKULAM-682 501. 3. [ENTITY],CINE VILLA, KOCHUVEETTIL HOUSE, VAZHUVADI MURI,THAZHAKKARA VILLAGE-690 102. 4. [ENTITY],CINE VILLA, KOCHUVEETTIL HOUSE, VAZHUVADI MURI, THAZHAKKARA VILLAGE-690 102. 5. [ENTITY], [ENTITY], [ENTITY], THAZHAKKARA MURI, THAZHAKKARA VILLAGE-690 102. R1 BY ADV. [ENTITY] [ENTITY] R2 BY ADV. [ENTITY] R3 & R4 4 BY ADV. [ENTITY] R5 BY ADV. SRI.SIBY MATHEW SRI.PHILIP J.VETTICKATTU [ENTITY] THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 11-10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts "CR" [ENTITY], J. R.P. No.263 of 2012 IN A.S. No.533 OF 2002 Dated this the 11thday of October, 2012 O R D E R
This review petition is filed by the legal heir of the first respondent in [CASE NUMBER], seeking a review of the judgment delivered on 3.2.2011. The brief facts of the case are as follows:
2. The first respondent herein instituted [CASE NUMBER] on the file of the Court of the Subordinate Judge of Mavellikara joining the predecessor-in-interest of the review petitioner as the sole defendant.
The relief sought in the suit was declaration of the plaintiff's title and possession over the plaint schedule property, fixation of the northern boundary of plaint schedule item No.1, to permit the plaintiff to put up a compound wall on the northern boundary of plaint schedule item No.1, recovery of possession of that portion of item No.1 of the plaint schedule if any portion thereof is found to be in possession of the defendant and a permanent prohibitory injunction restraining the defendant from interfering with the plaintiff's peaceful possession and enjoyment of the plaint schedule property.
3. The plaint schedule property consists of two items. Item No.1 is a parcel of land of 2.01 acres in extent, consisting of 60 cents in Sy No.27/8-B and 1.41 acres in Sy No.27/8-C of Thazhakkara Village, Mavellikara Taluk, Alappuzha District. Item No.2 is a parcel of land 35 cents in extent, situate in Sy No.31/4-B of Thazhakkara Village, Mavellikara Taluk, Alappuzha District. It was contended that the said lands originally belonged to the plaintiff's great grandfather late [ENTITY], that as per a Will executed by him on 4th Edavom 1087ME, registered as document No.6/1087ME of SRO, Mavellikara, the plaint schedule property was set apart to the share of [ENTITY], the plaintiff's paternal grandfather and that under the said will, the plaintiffs paternal grandfather was in possession and enjoyment of 2.36 acres of land more particularly described in the plaint schedule. It is stated that on the death of [ENTITY], the plaint schedule property devolved on his sons [ENTITY] (the plaintiff's father who died in the year 1952) and [ENTITY] (who died issue less in 1964). The plaint proceeds to state that [ENTITY] died in the year 1952 and Smt.[ENTITY], wife of late [ENTITY] passed away in the year 1971, that the share of late [ENTITY] in the plaint schedule property devolved on the sons of [ENTITY], viz the plaintiff and [ENTITY]. It was alleged that the plaintiff has obtained the share of [ENTITY] who is residing in America ever since 1974 and that the plaintiff is constrained to institute the suit on account of the refusal of the defendant to give consent for the construction of a compound wall separating the plaint schedule property from the property belonging to the defendant, situated on the northern side of the plaint schedule property. The sole defendant resisted the suit by filing a written statement contending inter alia that the plaintiff has no right, title or interest over the plaint schedule property and that his right if any, is lost by adverse possession and limitation. He also disputed the identity and description of the plaint schedule property.
4. In the trial court, the plaintiff was examined as PW-I and the neighbouring land owner as PW-2. Exts.A1 and A2 were produced and marked on the side of the plaintiff. On the side of the defendant, DWs 1 to 4 were examined and Exs.B1 to B13 were produced and marked. The trial court on an analysis of the evidence oral and documentary available in the case held that the plaintiff has not proved title to or possession over the plaint scheduled property. The trial court also noticed that though the plaintiff claims title to the plaint scheduled property on the strength of a Will executed by his great grandfather not even a certified copy thereof is produced. The trial court also held that the identity of the plaint scheduled property with reference to the Will executed in the year 1087ME and the devolution of title exclusively in the plaintiff, have not been proved. The suit was accordingly dismissed by decree and judgment delivered on 21.3.2002. Aggrieved by the decree and judgment dismissing the suit, the plaintiff filed [CASE NUMBER] in this Court. While [CASE NUMBER] was pending, the appellant/plaintiff filed [CASE NUMBER] to implead the second respondent in this review petition as the additional second respondent in the appeal on the allegation that the sole defendant had during the pendency of the appeal, transferred the suit property to her. Later, respondents 3, 4 and 5 in this review petition were impleaded as additional respondents 3, 4 and 5 in the appeal on the allegation that the additional second respondent has transferred portions of the suit property to them.
5. After the appeal was filed, a certified copy of the Will relied on by the appellant/plaintiff was produced in this Court along with [CASE NUMBER], an application filed under [SECTION] of the [ACT] to receive it into evidence on the side of the appellant. [CASE NUMBER] came up for hearing before a learned single Judge of this Court on 3.2.2011. After hearing the learned counsel on both sides, the learned single Judge held that no purpose will be served by remanding the suit to the trial court for fresh disposal having regard to the pleadings and the materials on record and that the only possible solution is therefore to dismiss the appeal, giving an opportunity to the plaintiff to file a comprehensive suit to establish his right. The appeal was accordingly dismissed with the following observations:-
"After hearing the learned counsel for both sides, I feel that even if this case is remanded, the matter will remain in the same state of confusion and therefore the only possible solution is to dismiss the appeal giving an opportunity to the plaintiff to file a comprehensive suit which is legally sustainable establishing all his rights which takes in the right to partition etc. So this appeal is dismissed with the said reservation in favour of the plaintiff. Parties are directed to bear their respective costs. I make it also clear that if any transfer is effected and if the suit is filed within a period of two months or even if it is prior to the institution of the suit, it will be all bound by the ultimate decision on the right of the parties.
6. Though the additional second respondent in the appeal filed [CASE NUMBER] in the Apex Court from the judgment delivered on 3.2.2011 in [CASE NUMBER], the said Special Leave Petition was dismissed in limine on 10.5.2012. The order passed by the Apex Court is extracted below.
"Heard the learned counsel for the petitioner and perused the record. The Special Leave Petition is dismissed on the ground of delay and also on the merits."
7. The legal heir of the first respondent in the appeal, has filed this review petition seeking a review of the judgment delivered on 3.2.2011 in [CASE NUMBER] to the extent it permits the appellant/plaintiff to institute a fresh suit in respect of the plaint schedule property notwithstanding the dismissal of the appeal and the observation therein that if a fresh suit is filed within two months from the date of the judgment, even if any transfer is made prior to the institution of the suit, it will be bound by the ultimate decision in the suit regarding the rights of parties. The main ground raised in the review petition is that after having upheld the decree dismissing the suit, this Court erred in allowing the appellant/plaintiff to institute a fresh suit in relation to the same subject matter and also in observing that if such a suit is instituted within two months, transfers if any made even prior to the institution of such a suit, will be bound by the ultimate decision in the suit regarding the rights of parties. It is contended that as no application for permission to withdraw [CASE NUMBER] on the file of the Court of the Subordinate Judge of Mavelikkara had been filed in terms of the stipulations contained in [SECTION] of the [ACT], this Court erred in reserving liberty with the appellant/plaintiff to institute a fresh suit.
8. I heard Sri.[ENTITY], learned counsel appearing for the review petitioner, Smt.[ENTITY], learned counsel appearing for the first respondent, Sri.[ENTITY], learned counsel appearing for the second respondent, Sri.[ENTITY], learned counsel appearing for respondents 3 and 4 and Sri.[ENTITY], learned counsel appearing for the fifth respondent. Sri.[ENTITY], learned counsel appearing for the review petitioner contended that the observations made by this Court in paragraph 4 of the impugned judgment would stand in the way of the review petitioner from contesting the second suit already instituted by the appellant/plaintiff ([CASE NUMBER] on the file of the Court of the Subordinate Judge of Mavelikkara) by raising a plea that the findings in [CASE NUMBER] and [CASE NUMBER] would operate as resjudicata and therefore, this Court ought not to have made such an observation. The learned counsel for the review petitioner contended that in the absence of an application for permission to withdraw [CASE NUMBER] in terms of the provisions contained in [SECTION] of the [ACT] and even without an oral request in that regard, this Court erred in reserving liberty with the appellant/plaintiff to institute a fresh suit. Relying on the decision of the Privy Council in Fateh Singh and Others v. Jagannath Bakhsh Singh and Another (AIR 1925 PC
55) and the Apex Court in [PRECEDENT], the learned counsel for the review petitioner contended that this Court's observation that notwithstanding the dismissal of the earlier suit, a fresh suit can be filed will not enable the appellant/plaintiff to institute a fresh suit and that he would still be precluded by the principles of resjudicata from instituting such a suit, having regard to the fact that the decree dismissing [CASE NUMBER] was affirmed by this Court by the impugned judgment itself. The learned counsel appearing for respondents 2 to 4 reiterated the contentions raised by the learned counsel appearing for the review petitioner.
9. Per contra, Smt.[ENTITY], learned counsel appearing for the first respondent (appellant/plaintiff) contended that as the additional second respondent in the appeal had unsuccessfully challenged the judgment of this Court by filing a Special Leave Petition in the Apex Court, the review petition is not maintainable and is liable to be dismissed on that short ground. The learned counsel for the first respondent further contended relying on the decisions of the Apex Court in [PRECEDENT], [PRECEDENT] and [PRECEDENT] that in exercise of the jurisdiction under [SECTION] of the [ACT], it is not permissible to rehear and correct erroneous decisions and even assuming that the decision in the instant case is erroneous, the remedy available to the review petitioner is to challenge the judgment before the Apex Court and not to seek a review of the judgment. The learned counsel for the first respondent contended that an error which is not self evident and has to be detected by a process of reasoning cannot be said to be an error apparent on the face of the record so as to attract the jurisdiction under [SECTION] of the [ACT], that expect after a long drawn out process of reasoning this Court cannot pronounce on the issues raised in the review petition and therefore, no relief can be granted in the instant review petition. The learned counsel for the first respondent contended relying on the decision of the Apex Court in [PRECEDENT] that the sole defendant in the suit (first respondent in the appeal) was represented by counsel and therefore, the review petitioner, his son, could not have filed the instant review petition by engaging another lawyer. Relying on the decision of a learned single Judge of this Court in [PRECEDENT] the learned counsel for the first respondent contended that the review petitioner cannot set up a defence which was not set up by his predecessor-in-interest in the appeal and therefore on that score also, he is not entitled to institute and maintain the instant review petition. Relying on the decision of the Apex Court in State of Nagaland and Another v. Toulvi Kibami and Another (2003 (8) SCC 671) the learned counsel for the first respondent contended that after the judgment sought to be reviewed was delivered, the appellant/plaintiff has instituted [CASE NUMBER] in the Court of the Subordinate Judge of Mavellikara, that summons was issued in the said suit to the defendants therein who are parties to the instant review petition, that they have entered appearance and filed written statements and therefore, as the judgment sought to be reviewed has already been implemented, the review petition is not maintainable. The learned counsel lastly contended that the decree dismissing [CASE NUMBER] is not in agreement with the judgment, that in the judgment this Court did not direct that the judgment and decree of the trial court shall stand confirmed and therefore, the review petitioner cannot be heard to contend that by the judgment sought to be reviewed, the decree and judgment of the trial court were confirmed. Reliance was placed on [SECTION] of the [ACT] in support of the said contention.
10. I have considered the submissions made at the Bar by the learned counsel on either side. I shall first consider whether the review petition is maintainable for the reason that the second respondent in the appeal (the second respondent herein) had unsuccessfully moved the Apex Court by filing a Special Leave Petition from the judgment sought to be reviewed. It is no doubt true that the second respondent herein, who was the second respondent in the appeal, had filed [CASE NUMBER] in the Apex Court. That Special Leave Petition accompanied by an application to condone the delay in filing it came up for consideration before the Apex Court on 10.5.2012 and was dismissed. The order passed by the Apex Court is extracted below for easy reference.
"Heard the learned counsel for the petitioner and perused the record. The Special Leave Petition is dismissed on the ground of delay and also on the merits."
11. In [PRECEDENT] the Apex Court considered the question whether the dismissal of a Special Leave Petition by a non speaking order would stand in the way of the High Court from exercising the review jurisdiction conferred on it under [SECTION] of the [ACT]. After a survey of the case law on point and the relevant statutory provisions, the Apex Court held as follows:
"39. We have catalogued and dealt with all the available decisions of this Court brought to our notice on the point at issue. It is clear that as amongst the several two-Judge Bench decisions there is a conflict of opinion and needs to be set at rest. The source of power conferring binding efficacy on decisions of this Court is not uniform in all such decisions. Reference is found having been made to (i) [SECTION] of the [ACT],
(ii) doctrine of merger, (iii) res judicata, and (iv) Rule of discipline flowing from this Court being the highest Court of the land.
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 of the maintainability of the petition. The Court may apply its mind to the merit worthiness 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 [SECTION] of the [ACT] is attracted to such an order. Grounds entitling exercise of review jurisdiction conferred by [SECTION], [SECTION] of the [ACT] 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 [SECTION], [SECTION] of the [ACT] act as guidelines) are not necessarily the same on which this Court exercises discretion to grant or not to grant special leave to appeal while disposing of a petition for the purpose. Mere rejection of 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 [SECTION] of the [ACT]. 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.
41. Once a special leave petition has been granted, the doors for the exercise of appellate jurisdiction of this Court have been let open. The order impugned before the Supreme Court becomes an order appealed against. Any order passed thereafter would be an appellate order and would attract the applicability of doctrine of merger. It would not make a difference whether the order is one of reversal or of modification or of dismissal affirming the order appealed against. It would also not make any difference if the order is a speaking or non-speaking one. Whenever this Court has felt inclined to apply its mind to the merits of the order put in issue before it though it may be inclined to affirm the same, it is customary with this Court to grant leave to appeal and thereafter dismiss the appeal itself (and not merely the petition for special leave) though at times the orders granting leave to appeal and dismissing the appeal are contained in the same order and at times the orders are quite brief. Nevertheless, the order shows the exercise of appellate jurisdiction and therein the merits of the order impugned having been subjected to judicial scrutiny of this Court.
42. "To merge" means to sink or disappear in something else; to become absorbed or extinguished; to be combined or be swallowed up. Merger in law is defined as the absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist, but the greater is not increased; an absorption or swallowing up so as to involve a loss of identity and individuality. (See [PRECEDENT], pp. 1067-1068).
43. We may look at the issue from another angle.
The Supreme Court cannot and does not reverse or modify the decree or order appealed against while deciding a petition for special leave to appeal. What is impugned before the Supreme Court can be reversed or modified only after granting leave to appeal and then assuming appellate jurisdiction over it. If the order impugned before the Supreme Court cannot be reversed or modified at the SLP stage obviously that order cannot also be affirmed at the SLP stage.
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 sub-ordinate 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 [SECTION] of the [ACT] is divisible into two stages. 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 special leave petition is converted into an appeal.
(iii) 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 or merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under [SECTION] of the [ACT] 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 [SECTION] of the [ACT]. 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 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 Supreme Court the jurisdiction of High Court to entertain a review petition is lost thereafter as provided by [SECTION] of the [ACT]"
12. The Apex Court held that even an order dismissing the Special Leave Petition with the observation "dismissed on merits"
would remain a dismissal by a non-speaking order where no reasons have been assigned and no law has been declared, that even if the merits had been gone into, it is on the merits of the Special Leave Petition only and the mere rejection of a Special Leave Petition by a non-speaking order does not take away the jurisdiction of the Court, Tribunal or Forum whose order forms the subject-matter of the petition for special leave, to review its own order, if grounds for exercise of review jurisdiction are shown to exist. The Apex Court held that even in cases where the order rejecting a Special Leave Petition is a speaking order, that is, where reasons have been assigned by the Apex Court for rejecting the Special Leave Petition and are stated in the order, still the order remains one rejecting the prayer for grant of leave to appeal, that as the petitioner has been turned away at the threshold without having been allowed to enter in the appellate jurisdiction of the Apex Court, the doctrine of merger would not apply.
In the instant case, as noticed earlier, the Special Leave Petition was dismissed by a non-speaking order. In the light of the principles laid down by the Apex Court in [PRECEDENT] (supra), I find no reason why the review petition cannot be entertained by this Court. I accordingly overrule the objection raised by the learned counsel for the first respondent to the maintainability of the review petition.
13. I shall next consider the question whether a long drawn out process of reasoning is required to pronounce on the issue arising in the instant case, namely, whether even while dismissing the appeal and affirming the decree and judgment of the trial court, this Court could have reserved liberty with the unsuccessful plaintiff to institute a fresh suit. The Apex Court has in [PRECEDENT] held that in exercise of the power of review a learned single Judge of the High Court could not have construed a document differently and held that it is a Will and not a settlement as was held by another learned Judge when the Second Appeal, was first heard and disposed of. It was held that if the party is aggrieved by the judgment of the learned single Judge sitting in Second Appeal, the appropriate remedy was to file an appeal and the remedy by way of reviewed was misconceived. In [PRECEDENT] the Apex Court held that the Division Bench of the High Court could not have reviewed the earlier judgment by reconsidering the entire evidence with a view to finding out the alleged apparent error for justifying the invocation of review powers. The Apex Court also referred to and relied on the decisions in [PRECEDENT] and [ENTITY], Lakshmi Narayanan Hegde v. Mallikarjun Bhavanabba, Tirumale [AIR 1960 SC 137] to hold that an error which has to be established by a long drawn process of reasoning on points where there may be conceivably two opinions, can hardly be said to be an error apparent on the face of the record. It was also held that where an alleged error is far from self evident and if it can be established, it has to be established by lengthy and complicated arguments, it cannot be said to be an error apparent on the face of the record. The same view was reiterated by the Apex Court in [PRECEDENT]. It was held that under [SECTION] of the [ACT], it is not permissible for an erroneous decision to be re-heard and corrected and that a review petition has a limited purpose and cannot be allowed to be an appeal in disguise. It is relying on the principles emerging from the aforesaid decisions of the Apex Court that, the learned counsel for the first respondent contended that the instant review petition is not maintainable. Review is sought in the instant case on the ground that this Court could not have after upholding the judgment and decree passed by the trial court dismissing the suit filed by the appellant/plaintiff, reserved liberty with him to file a fresh suit seeking partition and other appropriate reliefs. The contention raised by the review petitioner, which is supported by respondents 2 to 5 is that in the absence of an application for permission to withdraw the suit, this Court could not have after upholding the decree and judgment of the trial court granted liberty to the appellant/plaintiff to institute a fresh suit. The fact that a fresh suit has been filed and the defendants (the review petitioner and respondents 2 to 5) have entered appearance and filed their written statements in the said suit is not in dispute.
14. In [PRECEDENT] the Apex Court considered the scope of [SECTION] of the [ACT] and held that the court dealing with an application for permission to withdraw the suit, filed at the appellate stage should feel satisfied that there exist proper grounds/reasons for granting permission for withdrawal of the suit with leave to file a fresh suit and in such a matter, the statutory mandate is not complied with by merely stating that the grant of permission will not prejudice the defendants. The Apex Court held that in case such permission under [SECTION] of the [ACT] is granted at the appellate or second appellate stage, prejudice to the defendant is writ large as he loses the benefit of the decision of the lower court in his favour. Reliance was placed on the decision of the Apex Court in The Executive Officer, Arthanareswarar Temple v. R.Sathyamoorthy and others [AIR 1999 SC 958] wherein it had been held as follows:
"It is true that in a large number of cases decided by the High Courts, it was held while dealing with applications under [SECTION], [SECTION], [ACT], that if an appeal was preferred by an unsuccessful plaintiff against the Judgment of the trial Court dismissing the suit and if the plaintiff appellant wanted to withdraw not only the appeal but also the suit unconditionally, then such a permission so far as the withdrawal of the suit was concerned, can be granted if there was no question of any adjudication on merits in favour of the defendants by the trial being nullified by such withdrawal. On the other hand, if any such findings by the trial Court in favour of the defendant would get nullified, such permission for withdrawal of the suit should not be granted (See [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT], [PRECEDENT]; [PRECEDENT]; [PRECEDENT]. In the present case, the learned Judge felt that no such finding in favour of the Commissioner was being nullified by the withdrawal of the OP at the stage of revision and therefore the withdrawal of OP was permissible".
15. In the instant case, it is not in dispute that no application seeking withdrawal of the suit from which the appeal in the instant case arose, was filed in this Court. Not even an oral request in that regard was admittedly made by the learned counsel for the appellant/plaintiff. In such circumstances, this Court could not have after affirming the decree and judgment of the trial dismissing the suit for declaration of title, reserved liberty with the unsuccessful plaintiff to institute a fresh suit seeking the same relief. Any observation made by this Court while dismissing the appeal, that the dismissal of the suit would not stand in the way of the plaintiff from filing a fresh suit would still be resjudicata. A similar issue arise for consideration in [PRECEDENT] wherein, the Privy Council held as follows:
"When the plaintiffs brought their first suit, they had to show their title to impeach the widow's gift. For this purpose they had to show either that they were some at least of the nearest reversionary heirs, or that the only nearer reversionary heir had colluded with the widow. In their plaint they did not rely on collusion, which they only introduced in their replication. Taking, however, that view of the pleadings which is most favourable to them and treating them as relying equally on both grounds of claim, it is now clear that they can only make out a claim to be some of the next reversioners on the footing of the family custom, and that the allegation of that custom therefore was an allegation which "might and ought to have been made" within the meaning of [SECTION].
Or, to put in another way. One of the alternative cases on which they were basing their title to sue was their nearness of kin, and to prove their nearness of kin it was essential to aver the family custom. They claimed as next heirs, and their claim was dismissed. They cannot fight it over again.
But, as the Judges in the Court of the Judicial Commissioner have observed, some complication was introduced by the language of the Judge who tried the first case and by his expressing himself as if he had power to give leave to bring a fresh suit. It was contended on behalf of the plaintiffs that in so expressing himself he was purporting to exercise the powers given to the Court by [SECTION], which allows the Court in certain cases to grant the plaintiff permission to withdraw from a suit with liberty to issue a fresh suit, in which case the bar against a fresh suit which is otherwise imposed on a plaintiff who abandons his first suit is removed.
The same point was raised at their Lordships' bar, but their Lordships agree with the Court of the Judicial Commissioner that it is not a good one. There was no application for leave to withdraw the suit, nor was it withdrawn: it was dismissed and the power of the learned Judge ceased upon this dismissal. It may have been unfortunate for the plaintiffs that the learned Judge thought that he had a power which he did not possess, but happily, as the Judges on the appeal observed, it is improbable that there was substance in the claim which they have been prevented from further prosecuting. (emphasis supplied) In passing it may be observed that if the learned Judge thought that he was exercising power under [SECTION] he must also have thought that the subject matter of any future suit would be the same subject matter as that of the suit which he dismissed. This confirms the view which the Courts below and their Lordships have taken".
16. The decision of Privy Council in [PRECEDENT] (supra) was followed by the Apex Court in [PRECEDENT] and [PRECEDENT]. In the light of the authoritative pronouncements of the Apex Court and the Privy Council and in the absence of an application for permission to withdraw the suit, no process of reasoning or an analysis of the pleadings or a re- appreciation of the evidence adduced in the case is required to hold that this Court committed an error apparent on the face of the record, when, this Court permitted the unsuccessful plaintiff to institute a fresh suit even after upholding the decision of the trial court dismissing his suit. A mere reading of paragraph 4 of the judgment sought to be reviewed in the light of the principles laid down by the Apex Court and the Privy Council is enough to hold that an observation of the kind made in paragraph 4 of the judgment could not have been made by this Court, while dismissing the plaintiff's appeal.
17. That takes me to the question whether the decree passed in [CASE NUMBER] is in agreement with the judgment therein. Though the learned counsel for the first respondent contended that the decree dismissing the appeal to the extent it recites that the decree and judgment of the trial court be confirmed, is not in agreement with the judgment, a reading of paragraph 4 of the judgment in [CASE NUMBER] discloses that this Court had come to the conclusion that the only possible outcome is a dismissal of the appeal. Consequently, the appeal was dismissed, but with the observation that the plaintiff will be free to file a comprehensive suit to establish his rights including the right to seek partition. With the dismissal of the appeal, the decree and judgment passed by the trial court stood confirmed. All that the decree passed by this Court in the instant appeal recites is that "the decree of the court below be and is hereby confirmed". One cannot dispute the fact that when the appellate court dismisses an appeal from the decree of the trial court, the necessary consequence is confirmation of the decree of the trial court. Therefore, the mere fact the words "the decree of the trial court be confirmed", is lacking in the judgment is not a reason to hold that the decree in the instant appeal is not in agreement with the judgment therein.
18. I shall now consider the question whether the legal heir of the first respondent in the appeal is competent to maintain the review petition. The competence of the review petitioner to seek a review of the judgment dismissing the appeal with observations is questioned on the ground that as the legal heir of the first respondent in the appeal he could not have raised any ground which his predecessor-in-interest had not raised. Reliance is placed on the decision of a learned single Judge of this Court in [PRECEDENT], wherein it was held that a legal heir who is impleaded as a party to the suit, cannot have a plea which is different from the plea raised by his predecessor-in-interest. In the instant case, the predecessor-in-interest of the review petitioner passed away shortly after [CASE NUMBER] was dismissed. The question of filing a review petition arose only later. The predecessor-in-interest of the review petitioner had not put forward any contention in the appeal memorandum regarding the maintainability of a fresh suit after the dismissal of the instant appeal. If the predecessor-in-interest of the review petitioner had been alive, he could have filed a petition seeking a review of the impugned judgment. I therefore find no merit in the contention that the review petitioner is disabled from filing a review petition. The first respondent has also raised a contention that the review petitioner should have filed the review petition through the learned counsel who appeared for his predecessor-in-interest, in the appeal. It is relying on the observations of the Apex Court in [PRECEDENT] that such a contention is put forward. In [PRECEDENT] (supra) the Apex Court was considering an application for clarification which itself was filed after a review petition seeking a review of the judgment in the Special Leave Petition was dismissed. After the Special Leave Petition was dismissed, an application for review was filed through another counsel. That review petition was dismissed. Thereafter through another counsel an application for clarification was filed on the plea that the order is not clear and unambiguous. It was in such circumstances that the Apex Court held that when an appeal or a Special Leave Petition is dismissed, except in rare cases where an error of law or fact is apparent on the record, no review can be filed by an Advocate-on-Record who did not appear in the main case and that too without obtaining the consent of the Advocate-on-Record at the earlier stage. In the case on hand, the said principle has no application. The review petitioner was not a party to the appeal. The review petitioner is also not seeking to review any concession or admission made by his predecessor-in-interest or his counsel. The judgment of this Court in the appeal does not indicate that the respondents in the appeal had consented to the suit being dismissed as withdrawn or liberty being granted to the unsuccessful plaintiff to file a fresh suit. In such circumstances, I find no reason to hold that the instant review petition filed through a counsel who did not appear in the appeal is not maintainable.
19. The only other contention that remains to be considered is whether the review petition is liable to be dismissed for the reason that pursuant to the judgment sought to be reviewed, the first respondent has filed a fresh suit, [CASE NUMBER] in the Court of the Subordinate Judge of Mavelikkara. Relying on the decision of the Apex Court in [PRECEDENT] the learned counsel for the first respondent contended that as the impugned judgment has already been acted upon, a review petition is not maintainable. It is contended that in view of the subsequent events that have taken place consequent on the judgment sought to be reviewed, the review petition is not maintainable. In [PRECEDENT] (supra) the Apex Court was considering the question whether the Division Bench of the High Court was right in allowing a review petition after the judgment of the Division Bench which was sought to be reviewed was given effect to and the rules governing service conditions of State Government employees were amended. The first respondent before the Apex Court who held a degree in engineering filed a writ petition in the High Court contending that the second respondent before the Apex Court was not eligible to be promoted to the post of Additional Chief Engineer. He contended that a diploma holder is ineligible to be appointed by promotion as Additional Chief Engineer in view of the fact that as per the rules, the post of Additional Chief Engineer should be filled up from among degree holders. A learned single Judge of the High Court accepted the said contention, allowed the writ petition and set aside the promotion of the diploma holder as Additional Chief Engineer. The State of Nagaland preferred an appeal before the Division Bench. By judgment delivered on 4.9.1995, the Division Bench allowed the appeal, set aside the judgment of the learned single Judge and directed the State Government to decide whether diploma holders could also be promoted to the post of Additional Chief Engineer having regard to the fact that they have rendered meritorious service. Pursuant to the direction of the Division Bench, the State Government amended the relevant rules with retrospective effect from 12.9.1996 to enable promotion of meritorious persons among diploma holders to the post of Additional Chief Engineer. Thereupon, the diploma holder was again promoted as Additional Chief Engineer. In the meanwhile, the degree holder who had moved the High Court filed an application before the Division Bench for a review of the judgment delivered by it on 4.9.1995. The review petition was allowed and the writ appeal filed by the State of Nagaland was dismissed. On appeal, the Apex Court held that in view of the subsequent events that had taken place consequent on the judgment of the Division Bench, the review petition was not maintainable and that the remedy of the writ petitioner is to challenge the promotion of the diploma holder by filing a fresh writ petition.
20. In my considered opinion, the principle laid down by the Apex Court in [PRECEDENT] (supra) can have no application in the instant case for the reason that even in the suit filed pursuant to the judgment sought to be reviewed, the question whether that suit is barred by resjudicata in view of the dismissal of the first suit, which was the subject matter of the instant appeal and the review petition, will arise for consideration. The judgment sought to be reviewed does not put an end to the dispute. [SECTION] of the [ACT] stipulates that any person considering himself to be aggrieved (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a court (exercising Small Cause Jurisdiction), and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the court which passed the decree or made the order. It is evident from a reading of [SECTION] of the [ACT] that a review can be sought by a person considering himself aggrieved by a decree or order from which an appeal is allowed but from which no appeal has been preferred or a decree or order from which no appeal is allowed. The review petitioner who is aggrieved by the decree passed in the appeal to the extent it allows the unsuccessful plaintiff to file a fresh suit even after the dismissal of the first suit filed by him, is in my opinion entitled to seek a review of the judgment on the ground that it is vitiated by a mistake or error apparent on the face of the record. The power of this Court to rectify an error or mistake committed by it is not in my opinion fettered merely for the reason that pursuant to the impugned judgment, the unsuccessful plaintiff has filed a fresh suit. The very issue which is raised in the instant review petition will arise for consideration in the second suit filed by the unsuccessful plaintiff. In the light of the binding decisions of the Privy Council and the Apex Court referred to in paragraphs 15 and 16 above, the issue will necessarily have to be answered in favour of the defendants in the second suit. Unlike in the case before the Apex Court, this Court had not issued a positive direction to the parties but had only reserved a right in favour of the unsuccessful plaintiff to file a fresh suit. The principle laid down by the Apex Court in [PRECEDENT] (supra) can have application only in a case where the court directs one of the parties to do a particular thing and it is complied with and not to a case like the one on hand, where one of the parties has availed the benefit of an observation of this Court, which, as held by me earlier could not have been made while dismissing plaintiff's appeal. I accordingly overrule the said contention as well.
A reading of the impugned judgment discloses that this Court has not considered in detail the pleadings and the evidence available in the case and come to an independent finding on the issues arising for consideration in the appeal. In such circumstances, I am of the opinion that the proper course would be to review and recall the judgment dismissing the appeal, instead of vacating the observation regarding the reservation of the right to file a fresh suit. I accordingly allow the review petition and review and recall the decree and judgment dated 3.2.2011 in [CASE NUMBER]. The Registry is directed to post the appeal for hearing as per roster.
[ENTITY], JUDGE vps/rkc true copy PA to Judge