Ranganayakiammal and Others vs Saraswathiamml and Others

R.S. Ramanathan, J.—The petitioners filed O.S. No. 357 of 1991 on the file of the Subordinate Court, Udumalpet, for partition of their half

share in the suit property and the suit was decreed. The defendants 1, 3 to 5 preferred first Appeal in A.S. No. 392 of 1995 before this Court and

the first Appeal was allowed in Part on 10.8.2007. The petitioners herein aggrieved by the orders passed in A.S. No. 392 of 1995 filed Review

Petition No. 159 of 2007 to review the judgment rendered in A.S. No. 392 of 1995 and that Review Petition was later dismissed as withdrawn.

The petitioners filed SLP before the Hon''ble Supreme Court against the judgment and decree dated 10.8.2007 made in A.S. No. 392 of 1995

and the SLP was also dismissed on 31.3.2008 and the Review Petition preferred against the said order before the Hon''ble Supreme Court was

also dismissed and the attempts made by the petitioners to prefer a Curative Petition also failed. Thereafter, the petitioners filed a Review Petition

in S.R. No. 94580 of 2011 to review the Judgment and decree made in A.S. No. 392 of 1995 dated 10.8.2007 along with M.P. No. 1 of 2012

to condone the delay of 1500 days in filing the Review Application.

Mrs. Hema Sampath, learned Senior Counsel appearing for the respondents 1 and 3 raised a preliminary objection to the maintainability of the

Review Petition on the ground that the earlier Review Petition, namely, Review Petition No. 159 of 2007 was dismissed as withdrawn and no

liberty was given and therefore, the present Review Petition is not maintainable. The learned Senior Counsel also submitted that no acceptable

reasons were stated in the affidavit by the petitioners to condone the delay of 1500 days and the first petitioner who was prosecuting the SLP

before the Supreme Court from 2011 onwards cannot plead ignorance about the Court procedures and therefore, the delay was not properly

explained. The respondents 1 and 3 also filed a counter opposing the Petition to condone the delay.

As the maintainability of Review Petition was also raised by the respondents 1 and 3 and they also opposed the Petition to condone the delay, I

decided to hear parties on both aspects and the both the learned counsel submitted their arguments in that regard.

Mr. M.N.S. Mohamed Habeed Raja, learned counsel for the petitioners submitted that the Appeal before this Court was conducted by the son

of the first petitioner who was the second respondent in A.S. No. 392 of 1995 and he died on 27.10.2007, immediately, after the judgment

rendered in A.S. No. 392 of 1995, and, therefore, the first petitioner was not properly advised and she was bona fidely prosecuting the SLP

before the Hon''ble Supreme Court and even after the dismissal of the SLP at the admission stage, she made arrangements to file Review Petition

and after the dismissal of the Review Petition, a Curative Petition was filed. But, unfortunately, the counsel at Delhi did not take proper steps to

pursue the Curative Petition and those facts came to the knowledge of the first petitioner only in August, 2011 and immediately, thereafter, a Copy

Application was filed on 26.8.2011 for getting certified copy of the judgment and decree made in A.S. No. 392 of 1995 and the same was made

ready on 28.2.2011 and after collecting papers from the counsel who conducted Appeal, the present Review Petition was filed through a new

counsel on 25.10.2011 and therefore, the delay of 1500 days had happened in filing the Review Application. He, therefore, submitted that the

petitioners were diligently prosecuting the proceedings before the Hon''ble Supreme Court and after coming to know that the proceedings in the

Hon''ble Supreme court were dismissed, steps were taken to file the Review Petition before this Court. He, therefore, submitted that the delay may

be condoned as there is no wilful default on the part of the petitioners.

The learned counsel for the petitioners further submitted that review in Review Petition No. 159 of 2007 was filed to review the judgment in

A.S. No. 392 of 1995 and during the pendency of the Review Application, SLP was filed before the Hon''ble Supreme Court challenging the

judgment in A.S. No. 392 of 1995 and they have realised that after filing of SLP before the Hon''ble supreme Court, the petitioners cannot

proceed with the Review Petition No. 159 of 2007. Therefore, he sought permission of this Court to withdraw the Review Petition No. 159 of

2007 and permission was granted as per the endorsement made by the learned counsel for the petitioners and Review Petition was dismissed on

28.3.2008. He also submitted that withdrawing of Review Petition No. 159 of 2007 will not be a bar to the filing of the present Review Petition

inasmuch as no order on merits was passed in Review Petition No. 159 of 2007 and the Review Petition was withdrawn due to the pendency of

the SLP filed before the Supreme Court and that was also mentioned in the endorsement. Therefore, withdrawal of the earlier Review Petition No.

159 of 2007 is not a bar to file the present Review Application. The learned counsel for the petitioner has further submitted that even after the

dismissal of the SLP at the admission stage and when the dismissal was not on merits, the Review Petition is maintainable before this Court to

review the judgment rendered in A.S. No. 392 of 1995 and relied on the judgments reported in Vimlesh Kumari Kulshrestha Vs. Sambhajirao and

Another, ; Bakshi Dev Raj and Another Vs. Sudhir Kumar, ; and Bakshi Dev Raj and Another Vs. Sudhir Kumar, , in support of his contentions.

On the other hand, the learned Senior Counsel, Mrs. Hema Sampath, submitted that the reasons stated for condoning the delay cannot be

accepted having regard to the conduct of the petitioners. The learned Senior Counsel submitted that the suit was filed by the first petitioner, her

two sons and daughters and even assuming that her son, Govindaraj, died, immediately, after pronouncement of judgment in the first Appeal, the

petitioners filed SLP and were diligently prosecuting the same and also filed Review Petition before the Hon''ble Supreme Court to review the

order passed in the SLP and also took steps file a Curative Petition. Therefore, it cannot be contended that the petitioners were not aware of the

legal procedures. The learned Senior Counsel also submitted that the Review Petition No. 159 of 2007 was withdrawn after the death of

Govindaraj, the second review petitioner in that Review Petition, and SLP (Civil) in CC No. 3240 of 2008 was dismissed on 31.3.2008 and

Review Petition in D. No. 18770 of 2008 filed to review the order passed in SLP (Civil) in CC No. 3240 of 2008 was also dismissed on merits

on 1.4.2009 and no explanation was given for keeping quiet till the middle of 2011 for filing the present Review Petition and therefore, the

petitioners deliberately caused the delay and therefore, they are not entitled to any indulgence. The learned Senior Counsel further submitted that

though the Review Petition is maintainable after the dismissal of the SLP by a non-speaking order, they have withdrawn the earlier Review Petition

No. 159 of 2007 without getting any liberty, and therefore, the present Review Petition is not maintainable and it is barred under Order 23 Rule 1

CPC. The learned Senior Counsel fairly placed before this Court the judgment of the Hon''ble Supreme Court rendered in the SLP (Civil) No.

490 of 2012 dated 19.10.2012 in the matter of Khoday Distilleries and others vs. Mahadeshwara S.S.K. Ltd. wherein the Hon''ble Supreme

Court referred the question to a larger Bench to decide whether the Review Petition is maintainable before the High Court after the SLP filed

against the judgment of the High Court was dismissed in limine by a non-speaking order. The learned Senior Counsel, therefore, submitted that

having regard to the conduct of the petitioners in keeping quiet for nearly 2 years after the dismissal of the Review Petition before the Hon''ble

Supreme Court, and having regard to the withdrawal of the earlier Review Petition No. 159 of 2007, the Review is not maintainable and the

petition to condone the delay is also liable to be dismissed.

It is submitted that the Review Petition No. 159 of 2007 was filed to review the judgment in A.S. No. 392 of 1995 and during the pendency of

the same, the petitioner filed the SLP before the Hon''ble Supreme Court challenging the judgment in A.S. No. 392 of 1995. Thereafter, the

Review Petition No. 159 of 2007 was dismissed as withdrawn on the basis of the endorsement made by the counsel appearing for the petitioners

on 28.3.2008, which reads as follows:-

On 28.3.2008

I may be permitted to withdraw the Review Petition No. 159/07 in A.S. No. 392/95. In this matter, SLP has been filed before the Hon''ble

SUPREME COURT. Hence, I may be permitted to not press this Review Petition.

Counsel for petitioners/Respondents/Plaintiffs

Sd/-

on 28.3.08

C. Selvaraj, Advocate.

Therefore, the question that arises for consideration is whether the second Review is maintainable after the withdrawal of the earlier Review

Petition.

The learned counsel for the petitioners relied on the judgment reported in (2008) 5 Supreme Court Cases 58 cited supra and submitted that

Order 23 Rule 1(3)(b) CPC cannot be applied to the facts of the case inasmuch as the Review Petition No. 159 of 2007 was withdrawn after

filing of the SLP before the Hon''ble Supreme Court and though no liberty was obtained for withdrawing the Review Petition, they have stated in

the endorsement that SLP was filed and therefore, the Review Petition was not pressed and that would lead to the presumption that the High Court

had granted liberty while allowing the petitioners to withdraw the Review Petition. He also submitted that the Review Petition is maintainable after

the dismissal of the SLP by a non-speaking order and relied on the judgment reported Bakshi Dev Raj and Another Vs. Sudhir Kumar, . Having

regard to the judgment rendered in SLP Civil No. 490 of 2012 referred to above, the parties are entitled to file a Review Petition even after the

dismissal of the SLP as the maintainability of such Review Application has been referred to the Larger Bench of the Hon''ble Supreme Court.

Further, in the Judgment reported in Bakshi Dev Raj and Another Vs. Sudhir Kumar, , the Hon''ble Supreme Court held that a Review can be filed

after the dismissal of the SLP by the Hon''ble Supreme Court by a non-speaking order.

But, in this case, the question that arises for consideration is after having withdrawn the earlier Review Petition, the present Review Petition is

maintainable or not?

Admittedly, no liberty was sought for by the petitioners while making endorsement for withdrawing the Review Petition No. 159 of 2007. But,

they have mentioned filing of the SLP before the Supreme Court and thereafter, withdrew the Review Petition No. 159 of 2007. In the judgment

reported in Vimlesh Kumari Kulshrestha Vs. Sambhajirao and Another, , the Hon''ble Supreme Court held that Order 23 Rule 14 CPC cannot be

made applicable if the earlier suit was withdrawn after the filing of the subsequent suit. But, in the judgment reported in Sarguja Transport Service

Vs. State Transport Appellate Tribunal, M.P., Gwalior and Others, , it has been held as follows:-

The point for consideration is whether a petitioner after withdrawing a writ petition filed by him in the High Court under Article 226 of the

Constitution of India without the permission to institute a fresh petition can file a fresh writ petition in the High Court under that article. On this point

the decision in Daryao case is of no assistance. But we are of the view that the principle underlying Rule 1 of Order XXIII of the Code should be

extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground

of public policy as explained above. It would also discourage the litigant from indulging in bench-hunting tactics. In any event there is no justifiable

reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution once

again. While the withdrawal of a writ petition filed in a High Court without permission to file a fresh writ petition may not bar other remedies like a

suit or a petition under Article 32 of the Constitution of India since such withdrawal does not amount to res judicata, the remedy under Article 226

of the Constitution of India should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ

petition when he withdraws it without such permission. In the instant case the High Court was right in holding that a fresh writ petition was not

maintainable before it in respect of the same subject-matter since the earlier writ petition had been withdrawn without permission to file a fresh

petition. We, however, make it clear that whatever we have stated in this order may not be considered as being applicable to a writ petition

involving the personal liberty of an individual in which the petitioner prays for the issue of a writ in the nature of habeas corpus or seeks to enforce

the fundamental right guaranteed under Article 21 of the Constitution since such a case stands on a different footing altogether. We, however leave

this question open.

In the said judgment, scope of the Order 23, Rule 1 CPC was considered. Though the withdrawal does not amount to res judicata, the parties

after withdrawal had abandoned their cause of action in the earlier Review Petition by withdrawing the same without getting permission. The

judgment reported in Sarguja Transport Service Vs. State Transport Appellate Tribunal, M.P., Gwalior and Others, was not brought to the

knowledge of the Hon''ble Supreme Court while deciding the case reported in Vimlesh Kumari Kulshrestha Vs. Sambhajirao and Another, .

Further, it is not a case where liberty was sought for and without passing any order regarding liberty and the Court permitted the petitioner to

withdraw the Review Petition. Had liberty been sought for along with the withdrawal of the Review Petition, it could be presumed that while

granting withdrawal the Court also granted liberty as the Court cannot split the prayer as stated in Mulla''s Code of Civil Procedure, 17th Edition

Page 674, relied on the Judgment reported in Vimlesh Kumari Kulshrestha Vs. Sambhajirao and Another, .

In this case, no such permission was sought for while withdrawing the Review Petition No. 159 of 2007. Therefore, having regard to the

judgment reported in Sarguja Transport Service Vs. State Transport Appellate Tribunal, M.P., Gwalior and Others, , which was also relied on by

the Hon''ble Supreme court in the judgment reported in Bakshi Dev Raj and Another Vs. Sudhir Kumar, and having regarding to the provision of

Order 23 Rule 1 CPC, the present Review Petition, after withdrawing the earlier Review Petition without seeking any liberty is not maintainable.

As rightly submitted by the learned Senior Counsel, the delay of 1500 days was also not properly explained. Admittedly, SLP (Civil) 3240 of

2008 was dismissed on 31.3.2008 and the Review Petition Diary No. 18770/2008 was also dismissed on 1.4.2009 and no explanation was given

for not taking any further steps to file the Review Petition immediately. Though it was alleged that Curative Petition was filed before the Hon''ble

Supreme Court, no details were given regarding the date on which, the petitioners came to know about the non-prosecution of Curative Petition

and they cannot be heard to say that the petitioners who were diligently prosecuting the SLP have kept quiet without getting information from their

counsel regarding the result of the Curative Petition. Hence, I am of the opinion that the delay has not been properly explained and on that ground

also, the petition in M.P. No. 1 of 2012 in Review Application SR No. 94580 of 2011 is liable to be dismissed. In the result, the Miscellaneous

Petition is dismissed and Review Petition is also not maintainable and the same is rejected for the reasons stated above.