Case: Tukaram S. Bhat Vs. K.E. Steel Union Limited &amp; Others

who passed the order dated 23rd February, 2006 granted liberty to the respondent No.3 to make, if necessary, a fresh application seeking the same relief was maintainable, in our opinion, also cannot be sustained. The learned Single Judge, after disposing of the company application granted liberty to apply so that the parties could seek further directions pursuant to this order. The liberty granted by the learned Single Judge cannot be used to seek from the learned Single Judge orders which are contrary to his principal order rejecting the company application for grant of leave. In our opinion, the learned counsel appearing for appellant rightly relied on the observations of the Supreme Court in this regard in its judgment in the case of Kewal Chand Mimani referred to above. In our opinion, following observations found in paragraph 19 are important, they read as under:-"19. Another aspect of some importance ought also to be delved into at this stage, to wit, the effect of the liberty granted to mention the matter after the judgment was delivered. It is on this score that Mr. Gupta very strongly contended that the question of reopening the issue by reason of the liberty would not arise. As a matter of fact, it has been contended that by the aforesaid first judgment, the High Court came to a definite finding that the property should immediately be restored back to the possession of the owner of the property and/or the occupier, which cannot but mean the Mimanis, as the case may be this direction as contained in the judgment by itself connotes final disposal and denotes specifically the determination of the issue raised in the matter. The High Court, Mr. Gupta contended, recorded that though many other points were argued and several case laws were cited, but there was felt no necessity for deciding those points as the appeal succeeded on the point of order of requisition not been continued on the basis of a lapsed statute; no doubt, a very convincing reason that when the entire appeal stands disposed off there exists no scope of reopening the issue on the basis of the liberty granted to mention the matter doubt, there is none; liberty to mention cannot be used as a means to achieve an advantage which is not otherwise available in law a question which stands finally decided cannot be reopened, neither has the Court any further jurisdiction upon the signature been appended on the judgment by oral mention. The issue stands concluded as soon as the judgment is pronounced and the same is signed.""Be it noted, however, that the words liberty to mention have been as a matter of fact a phraseology which did come through judicial process without any definite legal sanction for the purpose of clarification if needed, but not otherwise. It is a legal process which has been evolved for convenience and for shortening the litigation so that the parties are not dragged into further and further course of litigation, and it is in this context that the submissions of Mr. Gupta. that the Court has no jurisdiction to reopen the issue on the ground of availability of the legal phraseology of liberty to mention cannot be brushed aside. As noticed hereinabove, the insertion of the above noted legal phraseology is to obliterate any confusion or any difficulty being experienced in the matter it does not give the right anew to the party to agitate the matter further or 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. In this context, reference may be made to the decision in Patel Narshi Thakershi vs. Pradyumnasinghji Arjhunsinghji."; (emphasis supplied).In view of the law laid down by the Supreme Court that normally this practice of granting liberty is adopted by the Court to obliterate any confusion or any difficulty being experienced in the matter, fresh application for the same relief could not have been filed. The Supreme Court in categorical terms has said that grant of such liberty does not give right to the party to agitate the matter further nor does it confer jurisdiction on the Court to further probe the correctness of the decision arrived at or review of the judgment and review of the judgment cannot be had on the basis of such liberty.13. So far as the submission of the learned counsel appearing for appellant that the learned Single Judge Could not have granted leave to continue the second suit because that suit was instituted after obtaining leave from the learned Single Judge which was revoked by the Division Bench of this Court, in our opinion, the submission has no substance. Section 446 of the said Act does not contemplate obtaining of prior leave. If there is a requirement of obtaining prior leave, then before instituting the suit, leave has to be obtained and obtaining of subsequent leave will not validate the institution of the suit. But what is contemplated is merely obtaining of leave. therefore, post facto leave is, also capable of being granted. A suit instituted without obtaining leave will not be per se not maintainable against all the parties to the suit. It will not be maintainable against the company till leave is secured but if leave is applied for and is not granted, the institution of the suit as against the company would be bad. However, as we have held now that the learned Single Judge was not justified in granting leave, obviously the suit cannot be continued. Taking overall view of the matter therefore, following order would meet the ends of justice.

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

Explanation:
0[ds]13. So far as the submission of the learned counsel appearing for appellant that the learned Single Judge Could not have granted leave to continue the second suit because that suit was instituted after obtaining leave from the learned Single Judge which was revoked by the Division Bench of this Court, in our opinion, the submission has no substance. Section 446 of the said Act does not contemplate obtaining of prior leave. If there is a requirement of obtaining prior leave, then before instituting the suit, leave has to be obtained and obtaining of subsequent leave will not validate the institution of the suit. But what is contemplated is merely obtaining of leave. therefore, post facto leave is, also capable of being granted. A suit instituted without obtaining leave will not be per se not maintainable against all the parties to the suit. It will not be maintainable against the company till leave is secured but if leave is applied for and is not granted, the institution of the suit as against the company would be bad. However, as we have held now that the learned Single Judge was not justified in granting leave, obviously the suit cannot be continued. Taking overall view of the matter therefore, following order would meet the ends of justice.