V.GOPALA GOWDA, C.J:

1. This review petition is filed by the respondent in Writ Appeal No.367 of 2011 to review the judgment dated 27.10.2011 of this Court passed in the said appeal contending that the findings and reasons recorded are erroneous and error in law apparent on the face of the record and that fraud was played upon this Court by the appellant by way of suppressing certain relevant material facts and the previous litigation between the parties in respect of the very same subject matter.

2. The review petitioner-respondent in the writ appeal filed O.S. No.606 of 2001 before the Civil Judge (Jr. Divn.), Puri for permanent injunction against opp. party-appellant in respect of the property in question. The opp. party-appellant as a lessee of the property in question filed W.P.(C) No.6429 of 2010 praying for an order directing the review petitioner to deposit the usage charges/compensation/mesne profit or rent for use and occupation of the premises in question. The prayer of the appellant opp. party was rejected by the learned Single Judge merely on the ground that the claim for rent by the appellant cannot be made in a suit for injunction. Correctness of the said order was challenged in the writ appeal alleging that the review petitioner is a trespasser on the basis of false agreement whereas the review petitioner claimed that he was a tenant and he was to pay a sum of Rs.25,000/- to the opp. party in respect of the property in question. The reliance placed upon the agreement for claiming right, title and interest was disputed by the petitioner herein. According to the agreement, the review petitioner was to pay a sum of Rs.25,000/- for each month to the present opp. party-appellant. The appeal was allowed accepting the case of the opp. party with a direction to the petitioner to deposit a sum of Rs.25,000/- per month from the date of his entering into possession of the premises in question before the trial court. It was further observed that the amount shall be deposited before the learned lower court and if the opp. party-appellant succeeds on the question of ownership right, the trial court shall record a finding in this regard, it will take the deposit towards user charges and if it fails, the lower court would be at liberty to pass appropriate order in accordance with law. The said order was challenged before the Supreme Court by the review petitioner urging various contentions by filing Special Leave to Appeal (Civil) No.35132/2011. The Special Leave Petition vide order dated 5.1.2012 was dismissed holding that there is no ground to interfere with the order dated 27.10.2011 which is sought to be reviewed in this review petition. Thereafter the present review petition is filed by the petitioner on 16.3.2012 with an application registered as Misc. Case No.126/2012 under Section 5 read with Section 14 of the Limitation Act seeking for condonation of delay of 111 days as pointed out by the Registry in filing the review petition, and another application registered as Misc. Case No.240/2012 under Order 1, Rule 10 read with Chapter-VI, Rule 27(a) of the Orissa High Court Rules requesting this Court to implead the Collector, Puri and the Tahasildar, Puri as opp. parties contending that they are necessary parties to the proceedings particularly having regard to the facts stated in the review petition that the property in question has been resumed by the State Government from the opp. party herein. That petition was also allowed vide order dated 12.9.2012. The prayer for condonation of delay though objected to, having regard to the rival, factual and legal contentions urged in this case, this Court is of the view that the matter requires consideration. Therefore, the review petition is required to be examined. Hence, the delay of 111 in filing this review petition is condoned.

3. For the purpose of exercise of review power, it is necessary to know the relevant facts to appreciate the factual, rival and legal contentions urged with a view to find out whether the order sought to be reviewed is required to be reviewed or not.

4. The opp. party-appellant on the basis of fraudulent assertions that it continues to be the lessee of the property involved in the proceedings as averred at para-2 of the writ petition and para-1 of the writ appeal moved an application before the Civil Court in O.S. No.606/2001 for deposit of amounts towards rent/damages/compensation against the management of M/s Hotel Repose Ltd. from 15.3.2001. The said petition was rejected on 21.6.2011 holding that the said prayer is beyond the suit prayer for injunction especially when the landlord and tenant relationship had been refuted by the review petitioner. The opp. party-appellant filed W.P.(C) No.6429 of 2010 against the said order.

5. It is the further case of the review petitioner that the opp. party- appellant deliberately suppressed the admitted facts and documents from this Court that the opp. party had certified that the matter involved in the said writ petition was only in W.P.(C) No.10735 of 2006 disposed of on 7.4.2008 and OJC No,.15699 of 2001 disposed of on 12.5.2004. Further, it is certified that the matter out of which this appeal arises was never before this Honble Court in any form whatsoever except W.P.(C) No.6429 of 2010 disposed of on 21.6.2011 by one of the Honble Judges of the Honble Court.

6. It is stated that the opp. party-appellant willfully and deliberately suppressed that the matter was also before this Court in OJC No.12596/2001 disposed of on 10.10.2011 and W.P.(C) No.17035/2006 disposed of on 10.7.2006 and W.P.(C) No.9196/2010 disposed of on 19.5.2010.

7. Further, the opp. party willfully suppressed that the lis in question effecting lease deed 27.9.1965 expired in 1995, which fact has not been taken judicial notice by this Court in the very writ petition. The writ petitioner also did not take any step for renewal of lease on/before/after 1995. The writ petitioner also suppressed the fact that his application for renewal had long been rejected.

8. So far as the ownership and/or lease in favour of the opp. party- appellant is concerned, the same was resumed by the Tahasildar, Puri on 15.9.2006 in Resumption Case No.1 of 2006. So far as the opp. partys application for extension or renewal of the lease registered as B.P.L. Case No.150 of 1995 is concerned, the appropriate revenue authority passed orders as early as on 2.8.2010 holding that the suit land cannot be settled in its favour and the same has been resumed. Further, it suppressed that it has filed T.S. No.290 of 1992 for eviction and arrears of rent and mesne profits on 2.9.1992 and the same has been decreed by the Civil Court on 9.4.2010 whereunder the defendants therein have been directed to pay Rs.3,98,500/- to the opp. party and for eviction. It also filed an application for execution, which was registered as Execution Case No.3 of 2011 for delivery of property, eviction and recovery of the decretal dues.

9. The further case of the review petitioner is that the opp. party has abused the process of the Court by suppressing the fact from the Court that the lease of the property is expired and property is resumed in favour of the Government in 2006. The opp. party insisted for implementation of the terms of the agreement when there never existed any privity of contract between the opp. party and the review petitioner. One of the Directors was merely a witness to the signatory and thus the terms thereof are not available to be specifically performed at the instance of the opp. party, who was not a party to such agreement. Further, it was not brought to the notice of the Court that the opp. party as early as 13.7.2001 returned the review petitioners draft for Rs.75,000/- asserting that it had never any relationship with him either as tenant or otherwise whatsoever.

10. Further, as per opp. partys own admission, the review petitioner was the guarantor for M/s Hotel Repose Ltd. and a proceeding was initiated against the guarantor by Debts Recovery Tribunal in the case filed by the State Bank of India.

11. The opp. party filed counter on 26.8.2003 before the lower court admitting that the building requires repair without which it may collapse at any time. It shows that from 2003 the building is in dilapidated condition.

12. Further, the opp. party lodged an F.I.R. against the review petitioner and the Superintendent of Police after due investigation submitted final report No.07 of 2005. The said report reveals that the said building has remained closed without any occupation. So also, the fact of pendency of L.P.A. No.23 of 2006 was also suppressed.

13. Further, in response to the proclamation notice, the opp. party had filed an application for settlement of the said property in issue registered as Urban Lease Case No.7 of 2009 in the Court of the Tahasildar, Puri. The opp. party being aware and conscious of resumption and rejection of his renewal application also appeared in the said matter and filed its objection statement. Therefore, it is stated that documentary evidence regarding the writ petition proceeding, original suit proceeding and proceeding before the Revenue authority have been fraudulently suppressed by the opp. party herein. Therefore, the same could not be earlier filed.

14. Learned Senior Counsel Mr Bijan Ray on behalf of the petitioner submitted that the legal position is that the documents filed along with the review petition are available to be considered to examine the contentious issue that needs determination by this Court as the opp. party suppressed the relevant material facts and the documents from the Court for determination of the issue that arose for consideration. Therefore, the order passed in the writ appeal is a nullity and requires to be reviewed by examining the factual and the documentary evidence against the opp. party for the purpose of finding out as to whether the opp. party is entitled for the relief granted in the writ appeal after setting aside the order of the learned Single Judge passed in the writ petition.

15. Mr Ray placed reliance upon the decision of the Supreme Court in the case of Chengalveraya Naidu (dead) by L.Rs. v. Jagannath (dead) by L.Rs. and others, AIR 1994 SC 853 [LQ/SC/1993/933] , wherein the Supreme Court has held that withholding of vital document relevant to litigation is fraud on Court. He also placed reliance on the case of Kunhayammed & others v. State of Kerala & Anr, (2000) 6 SCC 359 [LQ/SC/2000/1013] ( para-43), relating to the Doctrine of Merger theory and maintainability of the review petition in the High Court even after dismissal of the S.L.P. by the Supreme Court under sub-rule (1) of Order 47 of the C.P.C. He further contended that the order sought to be reviewed is error apparent on the face of the record on account of suppression of the relevant material facts and the legal position is well settled.

16. Learned Senior Counsel Mr S.P. Mishra on behalf of the opp. party opposed the review petition contending that the review petition is not maintainable. He has placed reliance upon the Two-Judge Bench judgment of the Supreme Court in the case of Gangadhar Palo v. Revenue Divisional Officer & another, (2001) 4 SCC 602, wherein Kunhayammeds case is referred to at para-7. According to this judgment, when a special leave petition is dismissed with reasons, however meager (it can be even of just one sentence) there is a merger of the judgment of the High Court in the order of the Supreme Court without giving any reasons, there is no merger of the judgment of the High Court with the order of the Supreme Court. Hence, the judgment of the High Court has attained finality. Some reason having been given by the Supreme Court in its order dismissing the SLP, the review petition seeking review of the order passed by this Court in the writ appeal is not maintainable as the order sought to be reviewed has merged with the order passed in the S.L.P.

17. Mr Mishra further contended that review petitioner to avoid payments as a subterfuge filed three petitions before the trial court: (i) for direction to depute an Engineer to assess the condition of the building in question, (ii) for payment of the amount installments, and (iii) for a direction to pay the amount in installment. Hence, when the review petitioner on his own sought for time to deposit the amount in the writ appeal which is sought to be reviewed, the review petition is not maintainable and is liable to be dismissed as the review petitioner cannot be allowed to enjoy the property without payment of rent or user charges or compensation.

18. The review petitioner has forcefully occupied the premises on the basis of the forged agreement alleged to have been executed in presence of this opp. party. In the said agreement/MOU the review petitioner agreed to pay Rs.25,000/- per month with enhancement thereof to the opposite party. It is also admitted that he had entered the premises since March 2001. Therefore, there is no infirmity/suppression of materials by the present opp. party in the writ appeal. Further, the fact remains that the review petitioner is in possession of property and it amounts to abuse of the process of the Court and wastage of Courts time. It is contended that no litigant has right to unlimited drought on the Court time and public money in order to get his affairs settled in the manner he wishes.

19. It is further stated that the opp. party applied for renewal of khasmal lease in 1995 in BPL Case No.150 of 1995 in the month of May. As nothing was done till 2010, the present opp. party filed writ application before this Court. It has categorically mentioned about the resumption proceedings illegally initiated at the behest of the review petitioner in the said writ application. The opp. party after coming to know about the proceeding from sources as no notice was issued to the opp. party appeared through counsel and filed petition to furnish him the ground of resumption but no steps was taken by the Collector. This Court in W.P.(C) No.9196 of 2010 directed the Collector to dispose of the BPL case within three months from the date of the order and till disposal no coercive action is to be taken against the opp. party. The State Government could have filed a review to get the order modified to the extent that since the land had already been resumed, the order of the High Court could not be carried out. The opp. party immediately on 9.6.2010 intimated the Collector and the Tahasildar about the order by registered post but neither any document was supplied nor any notice of hearing was issued by the Collector. The opp. party also filed a petition for supply of documents that was not heeded to. The Collector after getting the direction from this Court issued notice to this respondent to attend the hearing of the BPL case.

20. According to the learned counsel for the opp. party, this review petition is filed on a limited question as to whether the review petitioner is liable to deposit the amount in the Court below for occupying the premises. This Court has directed the review petitioner to make the deposit before the trial court and not with the opp. party.

21. In view of the above pleadings, the following questions emerge for consideration in this review petition:

(i) Whether the review petition is maintainable despite the order sought to be reviewed not having been interfered with by the apex Court by dismissal of the SLP

(ii) Whether the review petition is required to be allowed in view of the error apparent on the face of the record for the reason that the decision rendered on the basis of fraudulent pleadings and suppression of material facts in relation to the lease of the property in favour of the petitioner, non-disclosure of resumption of the property by the State Government on 15.9.2006 and non- disclosure of previous lis between the parties to the notice of this Court

(iii) What order

22. Point nos. (i) and (ii) are inter-related and hence the same are answered together. It is not in dispute that the judgment dated 27.11.2011 passed in W.A.No.367 of 2011 sought to be reviewed in this review petition was challenged before the Supreme Court in S.L.P.No.35132 of 2011 and the apex Court dismissed the special leave petition as the apex Court found no ground to interfere with the said order. Despite the said factual position, the present review petition is filed on two grounds, namely, suppression of relevant material facts by the opposite party which were within his knowledge and withholding of certain material documents and non- disclosure of the lease period which has already expired and non renewal of the lease and resumption of the land on 15.9.2006 by the State Government in Resumption Case No.1 of 2006 with a view to get an order from this Court in the writ appeal. Therefore, the same amounts to fraud played on the Court by the opposite party is the ground on which the review petition is filed seeking for review of the order sought to be reviewed placing reliance upon the judgment of the Supreme Court in Chengalveraya Naidus case (supra), wherein the Apex Court at paragraph-8 of the said judgment held as hereunder:

8.The facts of the present case leave no manner of doubt that Jagannath obtained the preliminary decree by playing fraud on the court. A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by anothers loss. It is a cheating intended to get an advantage. Jagannath was working as a clerk with Chunilal Sowcar. He purchased the property in the court auction on behalf of Chunilal Sowcar. He had, on his own volition, executed the registered release deed (Ex. B-15) in favour of Chunilal Sowcar regarding the property in dispute. He knew that the appellants had paid the total decretal amount to his master Chunilal Sowcar. Without disclosing all these facts, he filed the suit for the partition of the property on the ground that he had purchased the property on his own behalf and not on behalf of Chunilal Sowcar. Non-production and even non-mentioning of the release deed at the trial is tantamount to playing fraud on the court. We do not agree with the observations of the High Court that the appellants-defendants could have easily produced the certified registered copy of Ex. B-15 and non-suited the plaintiff. A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party.

Hence the same is a nullity in the eye of law. The impugned judgment was not interfered with by the apex court since there was no ground to interfere. Therefore, it is urged by Shri S.P.Mishra, learned senior counsel on behalf of the opposite party, that the judgment is affirmed by the Supreme Court and placing reliance on a recent decision of the apex Court in Gangadhar Palo v. Revenue Divisional Officer (supra) he contended that by dismissal of the SLP the order passed in the SLP was merged with the order passed in the writ appeal. Learned counsel for the petitioner placed reliance on the decision of the Supreme Court in Kunhayammed and others v. State of Kerala (supra) in support of the doctrine of merger theory with the judgment of the Supreme Court after dismissal of the SLP where the Supreme Court after interpreting Order 47, Rule 1 read with Article 136 of the Constitution after referring to its earlier decision reported in Narayana Dharmasangham Trust v. Swami Prakasananda, 1997 (6) SCC 78 [LQ/SC/1997/682] held that the said decision is not good law and laid down the legal proposition in para 44 that an order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed. Strong reliance is placed by the learned counsel for the petitioner upon the said decision regarding maintainability of the review petition. The said legal contention is seriously rebutted by Shri S.P.Misra, learned senior counsel for the opposite party, by placing reliance upon the following judgments. He placed reliance in the case of Sow Chandra Kanta and another v.Sk. Habib AIR 1975 SC 1500 [LQ/SC/1975/115] in support of the legal contention that once the application for special leave to appeal is dismissed, application for review of order will virtually amount to a rehearing. Once an order has been passed by the Supreme Court, the said order cannot be lightly interfered with. Next decision on which he placed reliance is Abbai Maligai Partnership Firm and another v. K.Santhakumaran and others, AIR 1999 SC 1486 [LQ/SC/1998/927] wherein it has been held that exercise of review jurisdiction after the special leave petition against the self-same order had been dismissed by the Supreme Court, interference by the High Court by entertaining the review petition was subversive of judicial discipline. The very entertainment of the review petition was an affront to the order of the Supreme Court. He also placed reliance on another judgment of the Supreme Court in Meghmala and others v. G.Narasimha Reddy & others, 2010 AIR SCW 5281 and also on a Division Bench decision of this Court in Governing Body of Ispat College, Rourkela v. State of Orissa, OLR 2011 Suppl.II 455 to which judgment one of us (V.Gopala Gowda, CJ) was a party wherein this Court after interpreting Order 47, Rules 1 and 2 of the Code of Civil Procedure has held that the power of review is available only when there is a mistake or an error apparent on the face of the record and not for correcting an erroneous decision. With reference to the aforesaid rival legal contention, we are of the view that the reliance placed by Mr. Bijan Ray, learned senior counsel for the petitioner, on Kunhayammeds case supra is squarely applicable to the fact situation as the supreme court in that case threadbare examined section 100 read with Article 136 of the Constitution with regard to the doctrine of merger and also Order 47, Rule 1 C.P.C. regarding maintainability of the review petition even after dismissal of the S.L.P. against the judgment which is sought to be reviewed. It is worthwhile to extract the paragraphs wherein the apex Court dealt with the doctrine of merger and the maintainability of the review. The same reads as under:

34. The doctrine of merger and the right of review are concepts which are closely interlinked. If the judgment of the High Court has come up to this Court by way of a special leave, and special leave is granted and the appeal is disposed of with or without reasons, by affirmance or otherwise, the judgment of the High Court merges with that of this Court. In that event, it is not permissible to move the High Court by review because the judgment of the High Court has merged with the judgment of this Court. But where the special leave petition is dismissed there being no merger, the aggrieved party is not deprived of any statutory right of review, if it was available and he can pursue it. It may be that the review court may interfere, or it may not interfere depending upon the law and principles applicable to interference in the review. But the High Court, if it exercises a power of review or deals with a review application on merits in a case where the High Courts order had not merged with an order passed by this Court after grant of special leave the High Court could not, in law, be said to be wrong in exercising statutory jurisdiction or power vested in it.

35. It will be useful to refer to Order 47 Rule 1 of the Code of Civil Procedure 1908. It reads as follows:

1. Application for review of judgment.(1) Any person considering himself aggrieved

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed, or

(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the court which passed the decree or made the order.

(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review.

Explanation.The fact that the decision on a question of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment.

36. For our purpose it is clause (a) sub-rule (1) which is relevant. It contemplates a situation where an appeal is allowed but no appeal has been preferred. The Rule came up for consideration of this Court in Thungabhadra Industries Ltd. v. Govt. of A.P.22 in the context of Article 136 of the Constitution of India. The applicant had filed an application for review of the order of the High Court refusing to grant a certificate under Article 133 of the Constitution. The applicant also filed an application for special leave to appeal in respect of the same matter under Article 136 along with an application for condonation of delay. The Supreme Court refused to condone the delay and rejected the application under Article 136. When the application for review came up for consideration before the High Court, it was dismissed on the ground that the special leave petition had been dismissed by the Supreme Court. This Court held that the crucial date for determining whether or not the terms of Order 47 Rule 1(1) CPC are satisfied is the date when the application for review is filed. If on that date no appeal has been filed it is competent for the court hearing the petition for review to dispose of the application on the merits notwithstanding the pendency of the appeal, subject only to this, that if before the application for review is finally decided the appeal itself has been disposed of, the jurisdiction of the court hearing the review petition would come to an end. On the date when the application for review was filed the applicant had not filed an appeal to this Court and therefore there was no bar to the petition for review being entertained.

37. Let us assume that the review is filed first and the delay in SLP is condoned and the special leave is ultimately granted and the appeal is pending in this Court. The position then, under Order 47 Rule 1 CPC is that still the review can be disposed of by the High Court. If the review of a decree is granted before the disposal of the appeal against the decree, the decree appealed against will cease to exist and the appeal would be rendered incompetent. An appeal cannot be preferred against a decree after a review against the decree has been granted. This is because the decree reviewed gets merged in the decree passed on review and the appeal to the superior court preferred against the earlier decree the one before review becomes infructuous.

38. The review can be filed even after SLP is dismissed is clear from the language of Order 47 Rule 1(a). Thus the words no appeal has been preferred in Order 47 Rule 1(a) would also mean a situation where special leave is not granted. Till then there is no appeal in the eye of law before the superior court. Therefore, the review can be preferred in the High Court before special leave is granted, but not after it is granted. The reason is obvious. Once special leave is granted the jurisdiction to consider the validity of the High Courts order vests in the Supreme Court and the High Court cannot entertain a review thereafter, unless such a review application was preferred in the High Court before special leave was granted.

Conclusions

39. We have catalogued and dealt with all the available decisions of this Court brought to our notice on the point at issue. It is clear that as amongst the several two-Judge Bench decisions there is a conflict of opinion and needs to be set at rest. The source of power conferring binding efficacy on decisions of this Court is not uniform in all such decisions. Reference is found having been made to (i) Article 141 of the Constitution, (ii) doctrine of merger, (iii) res judicata, and (iv) rule of discipline flowing from this Court being the highest court of the land.

40. A petition seeking grant of special leave to appeal may be rejected for several reasons. For example, it may be rejected (i) as barred by time, or (ii) being a defective presentation, (iii) the petitioner having no locus standi to file the petition, (iv) the conduct of the petitioner disentitling him to any indulgence by the court, (iv) the question raised by the petitioner for consideration by this Court being not fit for consideration or deserving being dealt with by the Apex Court of the country and so on. The expression often employed by this Court while disposing of such petitions are heard and dismissed, dismissed, dismissed as barred by time and so on. May be that at the admission stage itself the opposite party appears on caveat or on notice and offers contest to the maintainability of the petition. The Court may apply its mind to the meritworthiness of the petitioners prayer seeking leave to file an appeal and having formed an opinion may say dismissed on merits. Such an order may be passed even ex parte, that is, in the absence of the opposite party. In any case, the dismissal would remain a dismissal by a non- speaking order where no reasons have been assigned and no law has been declared by the Supreme Court. The dismissal is not of the appeal but of the special leave petition. Even if the merits have been gone into, they are the merits of the special leave petition only. In our opinion neither doctrine of merger nor Article 141 of the Constitution is attracted to such an order. Grounds entitling exercise of review jurisdiction conferred by Order 47 Rule 1 CPC or any other statutory provision or allowing review of an order passed in exercise of writ or supervisory jurisdiction of the High Court (where also the principles underlying or emerging from Order 47 Rule 1 CPC act as guidelines) are not necessarily the same on which this Court exercises discretion to grant or not to grant special leave to appeal while disposing of a petition for the purpose. Mere rejection of a special leave petition does not take away the jurisdiction of the court, tribunal or forum whose order forms the subject-matter of petition for special leave to review its own order if grounds for exercise of review jurisdiction are shown to exist. Where the order rejecting an SLP is a speaking order, that is, where reasons have been assigned by this Court for rejecting the petition for special leave and are stated in the order still the order remains the one rejecting prayer for the grant of leave to appeal. The petitioner has been turned away at the threshold without having been allowed to enter in the appellate jurisdiction of this Court. Here also the doctrine of merger would not apply. But the law stated or declared by this Court in its order shall attract applicability of Article 141 of the Constitution. The reasons assigned by this Court in its order expressing its adjudication (expressly or by necessary implication) on point of fact or law shall take away the jurisdiction of any other court, tribunal or authority to express any opinion in conflict with or in departure from the view taken by this Court because permitting to do so would be subversive of judicial discipline and an affront to the order of this Court. However this would be so not by reference to the doctrine of merger.

23. By careful reading of the aforesaid legal principles of the apex Court, we are of the considered view that the review petition is maintainable and the reliance placed upon the subsequent judgments which were referred to supra have not been considered in Kunhayammeds case. The subsequent judgment of the apex Court was rendered by a Bench consisting of two Judges. It is well settled principle of law that judgments rendered by larger Bench will prevail upon the judgment rendered by Bench of lesser strength and further the decision in Gangadhara Palo (supra) upon which reliance has been placed by the learned senior counsel for the opposite party having been rendered by a Bench consisting of Two-Judges, we will follow the legal principle enunciated in Kunhayammeds case in support of the case of the petitioner, which is a Three-Judge Bench decision which would prevail over Two-Judge Bench decision is the law declared by the Apex Court in the case of A.R. Antulay v. R.S. Nayak & another, reported in AIR 1988 SC 1531 [LQ/SC/1988/263] (paras-45 & 46). For the aforesaid reason, we are required to answer the second point in favour of the petitioner for the following reasons.

It is an undisputed fact that the petitioner has pleaded in this review petition about the expiry of the lease period in respect of the premises in question and the opposite party filed application for renewal which was the subject matter before the Tahsildar in Resumption Case No. 1 of 2006. The same was rejected and the property was resumed. In support of the same, document Annexure-2 is produced by the petitioner. This fact was suppressed by the opposite party. Another aspect which was suppressed by the opposite party is that the application filed by it to renew the lease registered as B.P.L.Case No.150 of 1995 was rejected by the appropriate revenue authority holding that the suit land cannot be renewed in its favour as the same has been resumed. Another relevant material which has been suppressed is that it had filed T.S.No.290 of 1992 for eviction and arrear rent and mesne profit. The same was decreed by the Civil Court on 9.4.2010 under which the defendants Hotel Repose has been directed to pay Rs.3,98,500.00 to the opposite party and for eviction. The opposite party also filed an application for execution registered as Execution Case No. 3 of 2011 for delivery of property, eviction and recovery of decretal dues. The opposite party has abused the process of Court by suppressing relevant material fact that the lease expired in the year 1995, rejection of its application for renewal and resumption of the land and without pleading the same, the petition has been filed against the order passed in the writ petition which amounts not only to fraud played on Court but is a clear abuse of the process of Court. Besides suppressing the fact from the Court that the lease in favour of the opposite party has been resumed in 2006, the opposite party insisted for implementation of the terms of the agreement when there never exists any privity contract between the opposite party and the review petitioner. One of the Directors was merely a witness to the signatory and thus the terms thereof are not available to be specifically performed at the instance of the opposite party who was not a party to such agreement. Further stand taken by the petitioner is that as early as 13.7.2001 the opposite party while returning the review petitioners draft for Rs.75,000.00 asserted that they never had any relation either as tenant or otherwise whatsoever. This is one more important relevant aspect which has not been brought to the notice of the Court. Further the opposite party on his own admission was the guarantor for M/s Hotel Repose Ltd. and proceeding was initiated against the guarantor by Debts Recovery Tribunal in the case filed by the State Bank of India. The notice issued to him is produced as Annexure-6 and 6/1. Suppression of the said litigation between the parties and relevant admission in the correspondence between the opposite party and the petitioner was not brought to the notice of the Court. Therefore, the same amounts to fraud played on power as alleged by the petitioner. In support of the same reliance placed on paragraph-8 of the decision of the apex Court in Chengalvaraya Naidus with all fours is applicable to this case. The opposite party did not produce or bring to the notice of the court the relevant documents and facts mentioned above which are relevant to the litigation. By withholding the same, it has played fraud on the court as well as on the other side. Non-consideration of the aforesaid facts has rendered the order sought to be reviewed erroneous and error in law and is a nullity. Therefore, we are of the view that the impugned order suffers from error apparent on the face of the record. We are therefore inclined to interfere with the order. Accordingly the impugned order is recalled and the writ appeal be listed for hearing. The parties are directed to produce all the relevant materials by filing an affidavit. The same shall be considered at the time of hearing. Review petition allowed.