THE HON’BLE MR JUSTICE R. KANTHA RAO C.C.C.A.M.P.(SR) No.644 of 2011 AND Rev.C.M.P.SR.NO.1300 OF 2011 IN CCCA.NO.328 OF 2003 DATE: 17.02.2011 BETWEEN: Md.Adli Khan .. Appellant And M/s Bharath Petroleum Corporation Ltd. .. Respondent THE HON’BLE MR JUSTICE R. KANTHA RAO C.C.C.A.M.P.(SR) No.644 of 2011 AND Rev.C.M.P.(SR) NO.1300 OF 2011 IN CCCA.NO.328 OF 2003 COMMON ORDER: Heard, Sri J.Prabhakar, learned counsel appearing for the petitioner, Sri M.R.Harsha, learned counsel appearing for the respondent No.1 and Sri O.Manohar Reddy, learned counsel appearing for the respondent No.2. Rev.C.M.P.(SR) No.1300 of 2001 is filed to review the judgment and decree dated 29.07.2009 passed by this Court in C.C.C.A.No.328 of 2003 and to set aside the same. C.C.C.A.M.P.(SR) No.644 of 2011 is filed to extend the time granted for eviction in CCCA No.328 of 2003. This Court by following the judgment in VITHALBHAI PVT.LTD. v UNION OF INDIA[1] ordered eviction of the second respondent and directed to vacate the schedule mentioned premises within one and half years and further directed to pay rent to the appellant at the rate of Rs.20,000/- per month from the date of the judgment till the date of surrendering possession of the premises besides paying arrears of rent, if any, as per the terms existing between the parties. This Court had specifically held that the trial court had not properly exercised its judicial discretion and failed to follow the ratio laid down by the Hon’ble Supreme Court in the decision 1st cited supra and reversed the judgment of the trial Court. This Court held in paras 14 and 15 of the judgment, which was sought to be reviewed as follows: “14. Reliance is placed by the learned counsel for the appellant on VITHALBHAI PVT.LTD. v UNION OF INDIA wherein the Apex Court held that ‘the filing of a suit when there is cause of action though premature does not raise a jurisdictional question, the claim may be well merited and the Court does have jurisdiction to hear the suit and grant the relief prayed for but for the fact that the plaintiff should have waited a little more before entering the portals of the Court. In such a case, the question is one of discretion. In spite of the suit being premature on the date of it’s institution the court may still grant relief to the plaintiff if no manifest injustice or prejudice is caused to the party proceeded against. When the objection as to maintainability of the suit was taken in the written statement but not pressed for decision, the dismissal of the suit on the ground of its being premature, when it came to be decided after 8 years would be travesty of justice more so when the plaintiff was found entitled to a decree otherwise.” 15. In view of the principles laid down in the decision above referred, on the date of rendering its decision by the trial Court, the appellant is entitled for the relief of eviction sought for in the suit against the respondent. Even if it is accepted that notwithstanding the fact that the lease was only for a period of 20 years as stipulated in Ex.B.1 lease deed, the respondent company by virtue of the provisions of the Act is entitled for renewal of lease for a further period of 20 years. The said period also expires during the pendency of the suit. Therefore, directing the appellant to file a fresh suit causes undue hardship and irreparable prejudice to the appellant.” This Court also clarified that the present case does not fall in any one of the categories mentioned by the Supreme Court in he said judgment. Now the learned counsel appearing for the review petitioner would submit that there is a bar created under Burmah Shell (Acquisition of Undertakings in India) Act, 1976 (the Act) against the plaintiff to file this suit and therefore, the judgment rendered by this Court is not in accordance with law laid down by the Apex Court in the decision 1st cited supra. The learned counsel also placed reliance on BHARAT PETROLEUM CORPORATION LTD. V P.KESAVAN AND ANOTHER[2] wherein it was held that Burmah Shell (Acquisition of Undertakings in India) Act, 1976 vis-a-vis the Transfer of Property Act, 1882 and when the appellant had expressed desire to renew the lease, Sections 5(2) and 7(3) would be attracted, the provisions of the Transfer of Property Act, 1882 has no application. The learned counsel also while referring to the provisions under Sections 5(2) and 7(3) and 11 of the Act argued that the Burmah Shell Act has overriding effect, on all other laws for the time being in force. As to the exceptions mentioned in VITHALBHAI PVT.LTD.’s case (1st cited), it may be stated that all the exceptions mentioned by the Supreme Court shall be read together. In fact, there is no specific bar created by the relevant statute for filing the suit on or before occurrence of a particular date. Merely because the period of limitation is prescribed under a special statute, it cannot be said that any statutory bar is created for filing the suit. It has to be understood from the judgment of the Supreme Court that if any such premature filing of the suit goes to the root of the jurisdiction of the Court and the presentation of the plaint is patently void and invalidity is incurable, the premature suit cannot be decreed. In the instant case also the act of filing of the suit by the appellant is not malicious or intended to over reach the Court. Therefore, it shall not be understood that whenever a special statute prescribes limitation for instituting any action, the judgment rendered in VITHALBHAI PVT.LTD. case has no application, if the suit is filed at a premature stage. Learned counsel appearing for the first respondent relied upon a decision reported in DOLAT INDUSTRIES GONAL v KRISHNA OIL INDUSTRIES, JAMNAGAR AND ANOTHER[3] wherein it is laid down that review under Section 114, Order 47 Rule 1 of the Code of Civil Procedure is not permissible on the ground that the court has proceeded on wrong proposition of law and also on the ground that the decision is erroneous on merits. In fact, the judgment rendered by this Court is strictly in accordance with the ratio laid down by the Supreme Court in VITHALBHAI PVT.LTD. case. For any reason, if the judgment is considered to be erroneous on merits, it is not open for review as per the judgment relied upon by the learned counsel appearing for the first respondent and the decision of this court can only be subject to appeal to higher forum. Rev.C.M.P.SR.NO.1300 OF 2011 In view of the aforementioned reasons, the review petition viz. Rev.C.M.P.(SR) No.1300 of 2001 is not maintainable and is accordingly dismissed. There shall be no order as to costs. C.C.C.A.M.P.(SR) No.644 of 2011 In view of the circumstances mentioned by the petitioner in the affidavit filed in support of the petition that it is difficult to it to vacate the premises immediately and as it is searching for an alternative accommodation, three months time is granted to the petitioner to vacate the premises from the date of this order. Accordingly, the petition is allowed. ________________ Date: 17.02.2011 R. KANTHA RAO, J kvrm THE HON’BLE MR JUSTICE R. KANTHA RAO C.C.C.A.M.P.(SR) No.644 of 2011 AND Rev.C.M.P.SR.NO.1300 OF 2011 IN CCCA.NO.328 OF 2003 DATE: 17.02.2011 [1] AIR 2005SC 1891 [2] (2004)9SCC 772 [3] AIR 2002 GUJARAT 91