1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CIVIL APPLICATION NO.11826 OF 2009 IN SECOND APPEAL NO.292 OF 2002. Jayawant S/o Dattatraya Murtadak ... Applicant. Versus Namdeo S/o Dada Kolhe and another ... Respondents. ... WITH CIVIL APPLICATION NO.188 OF 2009 IN SECOND APPEAL 292 OF 2002. Jayawant S/o Dattatraya Murtadak ... Applicant. Versus Namdeo S/o Dada Kolhe and another ... Respondents. Mr.K.D.Bade Patil, advocate for the applicant. Mr.A.S.Bajaj, advocate for the Respondent No.1. ... 2 CORAM : V.R.KINGAONKAR,J. Date : 01.12.2009. PER COURT 1. These are applications for condonation of delay and Review of the order dated 26.7.2007, rendered by this Court in S.A.No.292/2002. 2. There is delay of 772 days in filing of the Review Application. The applicant alleges that he had filed Special Leave Petition No.CC 6299-6300/2008. The Special Leave Petition was dismissed by the Hon'ble Supreme Court of India, on 2.5.2008. He submits that he is a senior citizen and always was bed-ridden due to ill- health. His contention is that the delay caused in filing of the Review Application is required to be calculated from the date of dismissal of the Special Leave Petition by the Hon'ble Supreme Court. He points out that he had also sought Review of the order of dismissal of the SLP but his Review petition was also dismissed by the Hon'ble Supreme Court on 12.8.2009. He contended that there was hardly 30 days delay caused from date of dismissal of Review Petition by the 3 Hon'ble Supreme Court. He further submits that the dismissal of the SLP would not amount to res- judicata in filing of the Review Application. 3. The contention of the applicant is that this Court did not consider the pleadings of the original plaintiff and particularly in regard to absence of readiness and willingness would not prove within the socket of Section 16(c) of the Specific Relief Act. He would further submit that the inordinate delay caused by the Respondents in seeking legal recourse for specific performance of the agreement of sale is also not duly considered. It is contended that there is patent error on the face of record in this behalf and, therefore, Review Application deserves consideration. It is further contended that the Respondents were not entitled to seek any protection U/s 53-A of the Transfer of Property Act. 4. Heard learned counsel for the parties. 5. So far as the delay is concerned, it 4 does not stand to reason that the delay needs to be counted from the date of dismissal of the Review Petition by the Hon'ble Supreme Court. The allegation that the applicant was suffering from illness and was unable to file the Review Application within given statutory period is also of no avail. For,he had already filed SLP in the Hon'ble Supreme Court and also had filed Review Petition when the SLP was dismissed. Obviously, he was all along able to approach the Court during the relevant period. There was no legal disability on account of his age or so-called illness. The delay can not be counted from the date of dismissal of the Review Petition because the so called cause for Review Application had arisen soon after the decision of this Court on 26.7.2007. Needless to say, there is no sufficient cause to condone the delay. Hence, the application for delay condonation stands dismissed. 6. I shall now proceed to consider merits of the Review Application, on the assumption that the delay could be condoned. The contention of 5 the applicant that the readiness and willingness within the meaning of Section 16(c) was germane to the dispute and was not considered by this Court is fallacious. What this Court observed is that due to parting of substantial amount of consideration, in view of judgment of the Apex Court in the matter of "Motilal Jain Vs. Ramdasi Devi (Smt.) and others" (2006) 6 Supreme Court Cases 420, an inference could be drawn regarding willingness and readiness of the purchaser. Order dated 26.7.2007 was rendered in view of the attending circumstances. This Court observed that the question of readiness and willingness of the purchaser is required to be gathered from the attending circumstances and conduct of the parties. In support of his contentions Mr.Bade Patil, has referred to various authorities viz; "Umabai and another Vs. Nilkanth Dhondiba Chavan (dead) by L.Rs. and another" 2005 (4) Mh.L.J. 306, "N.P.Thirugnanam (D) by L.Rs. Vs. Dr.R.Jagan Mohan Rao and others" AIR 1996 Supreme Court 116, "Sardar Govindrao Mahadik and another Vs. Devi Sahai and others" AIR 1982 Supreme Court 989 and "Jugraj Singh and another Vs. Labh Singh and 6 others" Jugraj Singh and another Vs. Labh Singh and others" AIR 1995 Supreme Court 945. These are the authorities wherein question regarding pleadings as required U/s 16(3) of the Specific Relief Act and a proof of willingness and readiness was considered. In my opinion it is bygone issue which can not be reopened in the exercise of Review jurisdiction. 7. Another bone of contention raised by learned counsel for the applicant is that dismissal of the SLP by the Apex Court would not amount to merger of such decision in the impugned order and, therefore, Review Application is maintainable. He invited my attention to observations to "Kunhayammed and others Vs. State of Kerala and another" (2000) 6 Supreme Court Cases 359. It is pertinent to notice that while dismissing the SLP, the Hon'ble Supreme Court rendered the order in following words : "Heard learned counsel for the petitioner. Delay condoned. No merits. The Special leave petitions 7 are dismissed." So also, while dismissing the Review Petition Nos.1179-1180 of 2009, the Hon'ble Supreme Court rendered following order : "Delay condoned. We have carefully gone through the review petitions and the connected papers, we find no merits in the review petitions and the same are accordingly dismissed." 8. Though doctrine of merger may not be applicable in such a fact situation, yet, judicial discipline requires that the Review Application should not be considered when the Apex Court has examined the merits of the matter and particularly on two occasions, while dismissing the SLP and while dismissing the Review Petition. A Division Bench of this Court in "Nivruti G. Ahire Vs. State of Maharashtra and others" 2007 (5) Mh.L.J.284, took survey of the relevant case law in the context of the doctrine of merger. The Division Bench also analysed the 8 case of "Kunhayammed and others Vs. State of Kerala and another" (supra). The Division Bench of this Court held that "mere non-application of the doctrine of merger would not entitle the Courts lower in hierarchy to ignore any opinion expressed by the Apex Court, either on the point of fact or law in the order rejecting the SLP and to entertain review application in relation to the order which was the subject matter of the special leave petition." It is observed that "though the order of the lower Court would not merge in the order rejecting the SLP, yet to express any opinion in conflict with or in departure from the view taken by the Apex Court in relation to any fact or law would be subversive of judicial discipline and an affront to the order of the Apex Court." It need not be reiterated that the Apex Court dismissed the SLP by observing that there was "No merits" and so also dismissed the Review Petitions holding that it was meritless. When such orders of the Apex Court clearly indicate consideration of the matter on merits, now it 9 would not amount to disrespect to the opinion of the Supreme Court to entertain the Review Application. 9. Considering the foregoing reasons, both the applications are dismissed. No costs. (V.R.KINGAONKAR,J.) asp/office/Ca1182609