IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMP (M) No. 1168 of 2008 and Civil Review Petition No.75 of 2008 Reserved on : 12th August, 2009 Date of Decision: 2nd September, 2009 Smt. Simmi Karol Petitioner Versus R.K.Madan and another Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? Yes. For the petitioner : Mr.Chetan Sharma, Sr. Advocate, with Mr.Shrawan Dogra, Advocate. For the respondent: Mr.Satyan Vaidya, Advocate. Sanjay Karol, J. Petitioner herein is the judgment-debtor and has filed the present petition for review of the judgment dated 23.4.2008 passed by this Court in RSA No.450 of 2007, titled as Simmi Karol vs. R.K.Madan and another. Petition is accompanied by an application under Section 5 of the Limitation Act read with Section 151 of the Code of Civil Procedure being CMP (M) No.1168 of 2008, seeking condonation of delay in filing the review petition. The delay is of 187 days. On 8.1.2009 notice was issued to the respondents on the application. The decree-holders have opposed the application. The petitioner herein is referred to as defendant-licensee and the respondents herein are referred to as plaintiffs-licensors. Whether the reporters of Local Papers are allowed to see the Judgment? 2 In terms of licence deed dated 30.6.2002 entered into between the plaintiffs and defendant, the plaintiffs’ premises situated on The Mall, Shimla was given on licence @ Rs.40,000/- per month with effect from July, 2002. With the licence period expiring on 30.6.2003 and the defendant failing to hand over the possession of the premises to the plaintiffs, Civil Suit No.61-1/2003, titled as R.K.Madan and another vs. Simmi Karol, was filed on 2.7.2003 which was decreed in terms of judgment and decree dated 6.7.2007 passed by learned Civil Judge (Junior Division), Court No.5, Shimla. The defendant assailed the same before the District Judge, Shimla by way of Civil Appeal No.35-S/13 of 2007, titled as Simmi Karol vs. R.K.Madan and another and in terms of judgment and decree dated 17.9.2007, the District Judge upheld the judgment and decree passed by the trial Court. The defendant’s appeal being RSA No.450 of 2007 stands dismissed on merits in terms of judgment dated 23.4.2008. The Court upheld the findings of the trial Court and held the plaintiffs entitled to possession of suit premises and payment of mesne profits @ Rs.40,000/- per month commencing from 1.7.2003 till the handing over of the peaceful and vacant possession of the suit premises. The judgment and decree passed by this Court was further assailed by the defendant before the Apex Court by way of Special Leave to Appeal (Civil) No.14000/2008, titled as Simmi Karol vs. R.K.Madan and another, which was ultimately withdrawn. The matter came up for hearing before the Apex Court on different dates and the orders passed are being reproduced in entirety as under:- 3 2.6.2008 “For the petitioner(s) Mr.Huzefa Ahmadi, Adv. Mr.Rajiv Sarin, Adv. Mr.Abhimeet Sinha, Adv. Mr.Chander Shekhar Ashri, Adv. For the respondent(s): We are not inclined to issue notice so far as the merits are concerned. Learned counsel for the petitioner argued for some time. When we were not inclined to issue notice and we were to pass an order of dismissal, the counsel submitted that this is a commercial premises and some time may be given. In our opinion, it would be appropriate, if for that limited purpose, notice should be issued. Hence notice only for the purpose of granting time returnable after summer vacation. Meanwhile, the petitioner will not be evicted.” 22.8.2008 “For the petitioner(s): Mr.Chander Shekhar Ashri, Adv. Mr.Abhineet Sinha, Adv. For the respondent(s) Mr. Dharmesh Misra, Adv. Mr.P.K.Bakshi, Adv. Learned counsel P.K.Bakshi appearing for Mr.Dharmesh Misra Advocate states that they do not want to file counter Affidavit. Office has to take appropriate steps as per rule.” 17.11.2008 “For the petitioner(s): Mr.Abhimeet Sinha, Adv.] Mr.Huzefa Ahmadi, Adv. Mr.Chander Shekhar Ashri, Adv. For the respondent(s) Mr.Pradeep Kumar Bakshi, Adv. Dismissed as withdrawn” After the withdrawal of the Special Leave petition the present review petition, alongwith the accompanying application seeking condonation of delay was filed on 2.12.2008. 4 Since there was no stay of the operation of the decree, in the meanwhile, the plaintiffs-decree holders filed Execution Petition No.10-10 of 2008, titled as R.K.Madan and another vs. Smt. Simmi Karol, seeking execution of judgment and decree passed by the Court. In the said Execution petition, the judgment debtor filed objections, which stands dismissed by the learned Civil Judge (Jr. Division), Court No.5, Shimla, in terms of order dated 2.5.2009. Assailing the same the judgment debtor-defendant filed a petition under Article 227 of the Constitution of India being CMPMO No. 382 of 2009, titled as Smt. Simmi Karol vs. R.K.Madan and another, which was also listed and heard alongwith this matter and is being disposed of separately. The decree dated 6.7.2007 passed by the trial Court, as subsequently affirmed by this Court has not been executed till date as neither has the defendant handed over the possession of the suit premises nor paid the use and occupation charges since 2003 till date. The total decretal amount comes to more than Rs.29 lacs as on 31.8.2009. The main ground on the basis of which the petitioner has sought review of the judgment passed by this Court on 23.4.2008, is reproduced as under:- “A. Because the petitioner has discovered that respondents herein did not have the exclusive right either to give the suit premises on lease or to initiate the proceedings. The Municipal Corporation, Shimla records that there are three owners of the suit premises in question, the respondents herein being two of them . There is nothing on record to establish that the respondents were given the authority or consent in this regard by the third owner, namely Smt. Bindu. It is submitted that in the absence of such an authority or consent of Smt. Bindu the proceedings ought not to have been initiated by the 5 respondents herein. Further, the respondents have therefore given wrong affidavit before the courts below that they are the owners of the suit premises. There is no mention in the affidavit that there are three owners of the suit premises and that the respondents are the co-owners of the suit premises having only 2/3rd share in the suit premises. That the respondents have willfully suppressed this material fact from the courts below. The respondents have therefore not approached the court with clean hands.” Pertinently this is also the main ground raised in the objections to the execution petition filed by the tenant. The application seeking condonation of delay is reproduced in verbatim as under:- “1. That the applicant/petitioner has filed a civil Review Petition in this Hon’ble Court. 2. That the applicant filed Regular Second Appeal No.450/2007 in this Hon’ble High Court and the same was decided on 23.4.2008. The applicant applied for the certified copy of the judgment of the Regular Second Appeal No.450/2007 and after obtaining the same, filed a Special Leave Petition (Civil) 14000/2008 in the Hon’ble Supreme Court of India. The Counsel for the applicant raised certain pleas which has not been considered by the Hon’ble high court in Regular Second Appeal No.450/2007 and the Hon’ble Supreme Court, however, dismissed the Special Leave Petition as withdrawn and while disposing of the Special Leave Petition, petitioner asked the counsel to approach this Hon’ble Court for review if he so desires. 3. That the order in Special Leave Petition was passed by the Hon’ble Supreme Court on 17.11.2008 and in case the period of limitation is to be taken from the order of the Hon’ble Supreme Court, then the Review Petition is within limitation and in case the date of passing of the judgment in Regular Second Appeal 450/2007 is taken, then the review 6 petition is barred by 193 days. There is no intention and malafide on the part of the applicant in not filing the Review Petition in this Hon’ble Court. There are sufficient reasons in condoning the delay in filing the Review Petition against the judgment passed in Regular Second Appeal No.450/2007 as the judgment of the Hon’ble High Court in the appeal was challenged in the Hon’ble Supreme Court of India. It is, therefore, prayed that in view of the submissions made above, the present application may be allowed and the delay if any, be condoned in filing the Review Petition in the interest of justice.” The reason for delay in filing the review petition is the pendency of the Special Leave Petition filed before the Apex Court. Evidently the defendant did not withdraw the Special Leave Petition with liberty to file a review petition before this Court. The question, therefore, which needs to be considered is as to whether it would be just, proper and lawful for this Court to review an order against which the SLP stands dismissed as withdrawn by the defendant. In my view the review Application alongwith and application seeking condonation of delay needs to be dismissed. In Abbai Maligai Partnership Firm and another vs. K.Santhakumaran and others, (1998) 7 SCC 386, the Apex Court was while dealing with a case where SLPs filed by the tenant, assailing the order dated 7.1.1987 passed by the High Court were dismissed by the Supreme Court on 16.9.1987. After the dismissal of SLPs, the party approached the High Court seeking review of its earlier order dated 7.1.1987. The High Court not only condoned the delay of 221 days in filing the review petition but also reviewed and reversed its order. In a 7 Special Leave Petition challenging the said order the Apex Court strongly deprecated such practice and held that after dismissal of the SLPs no review petitions could have been entertained by the High Court. The jurisdiction exercised by the High Court was held to be palpably erroneous and the parties who approached the High Court after dismissal of the SLPs by the Apex Court were held to have not only abused the process of the Court but also indulged in vexatious litigation. The Apex Court held that the manner in which the High Court exercised its review jurisdiction to say the least was improper. In a different context though, the Apex Court considered the aforesaid decision in Kunha Yammed and others vs. State of Kerala and another, (2000) 6 SCC 359 wherein it was held that with the simple dismissal of the SLP it could not be contended that the order of the High Court stood merged with that of the Supreme Court and the party could not be deprived of filing a review petition before the High Court. However, the aforesaid decisions came up for consideration again before the Apex Court in K.Rajamouli vs. A.V.K.N.Swamy, (2001) 5 SCC 37 and the Court was pleased to uphold the view taken in Abbai Maligai Partnership Firm (supra) by stating that “We are in agreement with the view taken in Abbai Maligai Partnership Firm that if the High Court allows the review petition filed after the special leave petition was dismissed after condoning the delay, it would be treated as an affront to the order of the Supreme Court. The view taken in K.Rajamouli (supra) came up for consideration before the Apex Court in Green View Tea & Industries vs. Collector, Golaghat, Assam and another, (2004) 4 SCC 122. Here the Apex Court was dealing with a case where prior to the filing of Special 8 Leave Petition, the petitioner before the Supreme Court had already filed a review petition before the High Court seeking review of the order impugned before the Supreme Court. Keeping in view the pendency of the review petition, the SLP was withdrawn. The order dismissing the review petition was challenged by the petitioner before the Supreme Court by filing a Special Leave Petition in which leave was granted. The Addl. Solicitor General appearing for the respondent-State contended that SLP against the substantive judgment of the High Court having been dismissed as withdrawn, there was no question for the High Court entertaining a review application and as such special leave granted in the subsequent Special Leave Petition challenging the order passed in the review petition be revoked. In this background the contention was held to be misconceived and was held as under:- “12. The learned Additional Solicitor General contended that, in view of the fact that the special leave petition against the substantive judgment of the High Court dated 24.6.1998 was dismissed as withdrawn, there was no question of entertaining a review application in respect of the said judgment and sought revocation of the leave granted. In our view, this contention is misconceived. In K.Rajamouli v. A.V.K.N.Swamy this Court was concerned with the same issue. It was held at SCC p.41, para 4:- “The dismissal of the special leave petition against the main judgment of the High Court would not constitute res judicata when a special leave petition is filed against the order passed in the review petition provided the review petition was filed prior to filing of special leave petition against the main judgment of the High Court. The position would be different where after dismissal of the special leave petition against the main judgment a party files a 9 review petition after a long delay on the ground that the party was prosecuting (sic) remedy by way of special leave petition. In such a situation the filing of review would be an abuse of the process of the law.” (emphasis supplied)” That the view taken by the Apex Court in Abbai Maligai Partnership Firm (supra) holds the field is also evident by a subsequent decision of the Apex Court in A.V.Papayya Sastry and others vs. Govt. of A.P. and others, (2007) 4 SCC 221, wherein it has been held as under:- “37. In Kunhayammed, Abbai Maligai was considered and it was observed that in the facts and circumstances of that case, this Court did not approve the order passed by the High Court. The Court noted that in Abbai Maligai this Court did not consider the doctrine of merger. According to the Court, a careful reading of Abbai Maligai “brings out the correct statement of law and fortifies us in taking the view” as taken (SCC p.377, para 26) [See also S.Shanmugavel Nadar vs. State of T.N. ((2002) 8 SCC 361]” As is evident from the order-sheets reproduced hereinabove, the Apex court was inclined to dismiss the special leave petition on 2.6.2008 itself. It was only when the defendant had expressed its willingness to vacate the premises after some time, notice was issued and that too, only for a limited purpose. The defendant having exhausted its remedy in accordance with law now cannot be permitted to adopt dilatory tactics with the object of delaying the execution of the decree and orders passed by various Courts. Whether the Special Leave Petition was dismissed as withdrawn or dismissed in limine would not make any difference. The review petition was filed after the dismissal of the 10 Special Leave Petition. The parties were represented by counsel and the matter stood argued for some time. In effect, the Special Leave petition stood dismissed on 2.6.2008 itself when notice was issued for a limited purpose. Hence in the facts and circumstances of the present case as has been noticed hereinabove, in my considered view this Court cannot interfere to review its earlier order. As to whether in a Special Leave Petition an order passed in a review petition can be filed or not again has been considered by the Apex Court in its various judicial pronouncements, namely, Suseel Finance & Leasing Co. vs. M.Lata and others, (2004) 13 SCC 675, Kumaran Silks Trade (P) Ltd.(2) vs. Devendra and others, (2006) 8 SCC 555, T.N.Housing Board vs. Keeravani Ammal and others, (2007) 9 SCC 255 and Adhyaatamam-Bhamini vs. Jagdish Ambalal Shah, (2006) 13 SCC 686, but, however, this is not an issue before this Court. The Apex Court has reiterated the principles as noticed in S.Nagaraj v. State of Karnataka, 1993 Supp (4) SCC 595, and emphasized the approach to be adopted by the Court while administering justice, which reads as under:- "It is the duty of the court to rectify, revise and re-call its orders as and when it is brought to its notice that certain of its orders were passed on a wrong or mistaken assumption of facts and that implementation of those orders would have serious consequences. An act of Court should prejudice none. "Of all these things respecting which learned men dispute," said Cicero, "there is none more important than clearly to understand that we are born for justice and that right is founded not in opinion but in nature." This very idea was echoed by James Madison (The Federalist, No. 51, p. 352). He said : 11 “Justice is the end of the government. It is the end of the civil society. It ever has been and ever will be pursued, until it be obtained or until liberty be lost in the pursuit." In State of West Bengal and others vs. Kamal Sengupta and another¸(2008) 8 SCC 612, while considering the scope of Order 47 Rule 1, C.P.C., the Court has held as under:- “21. At this stage it is apposite to observe that where a review is sought on the ground of discovery of new matter or evidence, such matter or evidence must be relevant and must be of such a character that if the same had been produced, it might have altered the judgment. In other words, mere discovery of new or important matter or evidence is not sufficient ground for review ex debito justiciae. Not only this, the party seeking review has also to show that such additional matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the Court earlier.” (Emphasis supplied) While passing the judgment and decree dated 23.4.2008 this Court had categorically recorded that the counsel for the defendant had not disputed the execution and contents of the agreement dated 30.6.2002 governing the relationship between the parties. It is not disputed that the only parties to the agreement were the plaintiffs and the defendant, hence the fact that premises were in effect co-owned by another member of the family, who has neither challenged or disputed the authority or the actions of the plaintiffs, in the present case would not have altered the judgment. Further this issue has been elaborately dealt with by me while rendering judgment in CMPMO No.382 of 2009, titled 12 as Smt. Simmi Karol vs. Shri R.K.Madan and another, also decided in today’s date. In the present case it is neither just nor proper to interfere. The protracted litigation must come to an end at some stage and contractual promises and decrees and orders of binding nature must be honoured, implemented and executed at the earliest. This alone would instill and re-enforce confidence of the people in the system of administration of justice. For the aforesaid reasons, no ground for review or condonation of delay is made out. The application for condonation of delay and Civil Review Petition are dismissed with costs which is quantified as Rs.11,000/-. 2nd September, 2009 (Sanjay Karol), (C) Judge.