Case: Erach Boman Khavar Vs. Tukaram Sridhar Bhat

being experienced in the matter – it does not give the right anew to the party to agitate the matter further nor does it confer jurisdiction on the court itself to further probe the correctness of the decision arrived at: review of a judgment cannot be had on the basis of this liberty. The circumstances under which review can be had are provided under Order 47 of the Code of Civil Procedure. In any event, law is well settled on this score that the power to review is not any inherent power and it must be conferred by law either specifically or by necessary implication.” 36. After so stating the Court referred to the decision in State of U.P. v. Brahm Datt Sharma [((1987) 2 SCC 179) ] wherein it has been held that when proceedings stand terminated by final disposal of writ petition it is not open to the court to reopen the proceedings by means of a miscellaneous application in respect of a matter which provided a fresh cause of action, for if the said principle is not followed, there would be confusion and chaos and the finality of the proceedings would cease to have any meaning. 37. Coming to the case at hand, the Division Bench, after reproducing paragraph 19 of the judgment in Kewal Chand Mimani’s case, held that the liberty granted by the learned single Judge to file an application was not maintainable, for the liberty granted by the learned single Judge cannot be used to seek from him orders which are contrary to his principal order rejecting the company application for grant of leave. On a studied scrutiny of the order passed by the learned single Judge on 23.2.2006, we find that the Division Bench has committed three fundamental errors, namely (i) that the learned single Judge had rejected the application; (ii) that liberty granted could only mean the parties to seek further direction pursuant to the said order; and (iii) that the liberty granted by the learned single Judge could not be used to seek from him any relief which is contrary to the main order.38. It is clear to us that the learned single Judge had not dealt with the application for grant of leave on merits; that the application was disposed of on the basis of a submission made by the third respondent that if an application for amendment is filed in the pending suit, he would not oppose the same; that the learned Company Judge on the basis of the statement recorded that it was not necessary to grant the present Judge’s Summons; and that liberty was granted to the applicant to apply if necessary. The Division Bench, we are disposed to think, has erroneously opined that the learned single Judge in the main part of the order having rejected the application could not have granted liberty to apply for filing of another application. As we notice, the Division Bench has not appositely appreciated the ratio laid down in Kewal Chand Mimani (supra) wherein the High Court had pronounced a judgment and, as a matter of practice, has stated “liberty to mention” and in that context, this Court stated that that did not confer jurisdiction on the High Court to dwell upon a different issue in a disposed of case. In fact, in the said case the order passed by this Court on earlier occasion has been reproduced wherein liberty was granted to get the matter adjudicated which, in the context, simply conveyed that as the controversy relating to transposition therein was pending before the High Court and the order indicated that the applicants were at liberty to raise all objections including the transposition and the right to contest in the capacity as appellants. When this Court said “liberty was granted to get the matter adjudicated”, it meant that it was open to the petitioner in the SLP to raise all contentions before the High Court as the High Court itself had granted liberty in the order which was the subject-matter of challenge and the matter was sub-judice. We are only analyzing on this score to highlight that words, namely, “grant of liberty” are to be understood, regard being had to the context in which they are used. Context is really material. Had the learned Company Judge adjudicated the matter on merits, the matter would have been absolutely different. He had, in fact, on the basis of a statement made by the learned counsel for the third respondent, had not dwelled upon the merits and, in that context, had granted liberty to applicant to apply, if necessary. It is eminently so because the learned Judge has also stated “it is not necessary to grant the present Judge’s Summons”. Thus, the application for grant of leave was really not dealt with on merits and on the basis of a statement of respondent No. 3 the learned Company Judge opined that it was not necessary for the present and in that context liberty was granted. The principles stated in Arjun Singh (supra), Satyadhyan Ghosal (supra) and the other authorities clearly spell out that principle of res judicata operates at the successive stages in the same litigation but, the basic foundation of res judicata rests on delineation of merits and it has at least an expression of an opinion for rejection of an application. As is evident, there has been no advertence on merits and further the learned Company Judge has guardedly stated two facets, namely, “not necessary to grant present Judge’s Summons” and “liberty to applicant to apply, if necessary”. On a seemly reading of the order we have no shadow of doubt that the same could not have been treated to have operated as res judicata as has been held by the Division Bench. Therefore, the irresistible conclusion is that the Division Bench has fallen into serious error in dislodging the order granting leave by the learned Company Judge to file a fresh suit. 39. In view of the aforesaid analysis,

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]37. Coming to the case atDivision Bench, after reproducing paragraph 19 of the judgment in Kewal Chandcase, held that the liberty granted by the learned single Judge to file an application was not maintainable, for the liberty granted by the learned single Judge cannot be used to seek from him orders which are contrary to his principal order rejecting the company application for grant of leave. On a studied scrutiny of the order passed by the learned single Judge on 23.2.2006, we find that the Division Bench has committed three fundamental errors, namely (i) that the learned single Judge had rejected the application; (ii) that liberty granted could only mean the parties to seek further direction pursuant to the said order; and (iii) that the liberty granted by the learned single Judge could not be used to seek from him any relief which is contrary to the main order.38. It is clear to us that the learned single Judge had not dealt with the application for grant of leave on merits; that the application was disposed of on the basis of a submission made by the third respondent that if an application for amendment is filed in the pending suit, he would not oppose the same; that the learned Company Judge on the basis of the statement recorded that it was not necessary to grant the presentSummons; and that liberty was granted to the applicant to apply if necessary. The Division Bench, we are disposed to think, has erroneously opined that the learned single Judge in the main part of the order having rejected the application could not have granted liberty to apply for filing of another application. As we notice, the Division Bench has not appositely appreciated the ratio laid down in Kewal Chand Mimani (supra) wherein the High Court had pronounced a judgment and, as a matter of practice, has statedand in that context, this Court stated that that did not confer jurisdiction on the High Court to dwell upon a different issue in a disposed of case. In fact, in the said case the order passed by this Court on earlier occasion has been reproduced wherein liberty was granted to get the matter adjudicated which, in the context, simply conveyed that as the controversy relating to transposition therein was pending before the High Court and the order indicated that the applicants were at liberty to raise all objections including the transposition and the right to contest in the capacity as appellants. When this Court saidwas granted to get the matterit meant that it was open to the petitioner in the SLP to raise all contentions before the High Court as the High Court itself had granted liberty in the order which was the subject-matter of challenge and the matter was sub-judice. We are only analyzing on this score to highlight that words, namely,are to be understood, regard being had to the context in which they are used. Context is really material. Had the learned Company Judge adjudicated the matter on merits, the matter would have been absolutely different. He had, in fact, on the basis of a statement made by the learned counsel for the third respondent, had not dwelled upon the merits and, in that context, had granted libertyto applicant toapply, if necessary. It is eminently so because the learned Judge has also statedis not necessary to grant the present. Thus, the application for grant of leave was really not dealt with on merits and on the basis of a statement of respondent No. 3 the learned Company Judge opined that it was not necessary for the present and in that context liberty was granted. The principles stated in Arjun Singh (supra), Satyadhyan Ghosal (supra) and the other authorities clearly spell out that principle of res judicata operates at the successive stages in the same litigation but, the basic foundation of res judicata rests on delineation of merits and it has at least an expression of an opinion for rejection of an application. As is evident, there has been no advertence on merits and further the learned Company Judge has guardedly stated two facets, namely,necessary to grant presenty toto apply, ifOn a seemly reading of the order we have no shadow of doubt that the same could not have been treated to have operated as res judicata as has been held by the Division Bench. Therefore, the irresistible conclusion is that the Division Bench has fallen into serious error in dislodging the order granting leave by the learned Company Judge to file a fresh suit.