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S.A.R. Somasundaram & Another v. Minor Cibiraj, rep. by next friend & Mother, M. Jayanthi & Others

S.A.R. Somasundaram & Another
v.
Minor Cibiraj, rep. by next friend & Mother, M. Jayanthi & Others

(High Court Of Judicature At Madras)

Review Application No. 122 Of 2010 In A.S.S.R. No. 98941 Of 2009 | 19-08-2010


(Prayer in Review Application No. 122 of 2010: Review Application is filed under Section 114 read with Order 47, Rule 1 of the Code of Civil Procedure against the order of this Court in M.P. No.2 of 2009 in A.S. SR. No.98941 of 2009 dated 7.12.2009, filed under Section 5 of the Limitation Act to condone the delay of 561 days in filing the Appeal against the judgment and decree of the Additional District Court (Fast Tract Court), at Salem dated 18.2.2008 in O.S. No.13 of 2004. Prayer in .A.S. SR. No.98941 of 2009: Appeal sought to be preferred under Section 96 of the Civil Procedure Code against the judgment and decree dated 18.2.2008 made in O.S. No.13 of 2004 on the file of the Additional District Judge (Fast Tract Court-I), at Salem.) F.M. Ibrahim Kalifulla, J. 1. In this Review Application, the main contention of the learned Counsel for the Applicants is that since the Special Leave Petitions against the order under review came to be dismissed in limine at the admission stage, the Doctrine of Merger will not Apply and therefore this Court can examine the review applied for by the Applicants. The learned Counsel for the Applicants relied upon the decision of the Hon’ble Supreme Court reported in Kunhayammed v. State of Kerala, 2000 (6) SCC 359, in support of his submissions. 2. As far as the merits of the Review Application is concerned, the learned Counsel would contend that the value of the property taken as Rs. 35,00,000/- in the order review may not hold good, in as much as, the guideline value as disclosed by the Sub-Registrar, Sankagiri in the Certificate dated 28.7.2010, disclosed the value far less. 3. The learned Counsel also contended that the property as on date fetches a sum of Rs. 7,000/- only by way of monthly rent and therefore, direction to deposit a sum of Rs. 40,00,000/- is highly onerous which calls for review. 4. The learned Counsel further submitted that to show their bona fides, the Applicants are willing to deposit a sum of Rs. 10,00,000/- in fixed deposit in the name of the First Respondent apart from offering a sum of Rs. 1,00,000/- by way of demand draft straight-away and that the Applicants are also prepared to direct their Tenant, who is occupying the property, to send the rent of Rs.7,000/- every month to the First and Second Respondent pending disposal of the Appeal. 5. As against the above submissions, Mr. R. Yashod Varadan, learned Senior Counsel for the Respondents 1 and 2 by referring to paragraph 40 of the judgment of the Hon’ble Supreme Court reported in Kunhayammed v. State of Kerala, 2000 (6) SCC 359, and also by referring to the order passed in S.L.P. Nos. 10298 & 10299 of 2010 dated 16.04.2010, contended that the Applicant’s Special Leave Petitions were not dismissed in limine as claimed by the learned Counsel for the Applicants. 6. According to the learned Senior Counsel, the Hon’ble Supreme Court even while dismissing the Special Leave Petitions made a specific mention that the order under review does not suffer from any legal infirmity warranting interference and that apart the Hon’ble Supreme Court extended the time granted to the Applicants to deposit the amount by four months and thereby the Hon’ble Supreme Court having exercised its powers under Article 136 of the Constitution by passing some positive orders it will not be appropriate for this Court to invoke the review jurisdiction. 7. The learned Senior Counsel also contended that the Respondents 1 and 2 secured the injunction as early as in the year 1999 which order of injunction was revived when the Suit was restored which was originally dismissed for default and that the operation of the order of injunction was duly communicated to the world at large by making paper publications on 20.1.199, 23.12.1993, 13.12.1998 and 11.9.2004 and in the said circumstances, the Applicants cannot claim to be ignorant of the partition Suit and the prohibitory order which was in operation. 8. The learned Senior Counsel further contended that the Applicants purchased the property by way of two Sale Deeds on 27.10.2004 and 21.2.2007 respectively and one of the properties was sold by the First Applicant to the Second Applicant on 21.2.2007, for a sale consideration of Rs. 12,68,000/- in the year 2007 and therefore the present stand of the Applicants that the property was valued at an exorbitant sum cannot be accepted. 9. Having heard the learned Counsel for the respective parties, we find force in the submissions of the learned Senior Counsel for the Respondents 1 and 2. As rightly contended by the learned Senior Counsel the order of the Hon’ble Supreme Court passed in the Special Leave Petitions is not a simple order of dismissal in limine. The Hon’ble Supreme Court apart from making it clear that the order under review does not suffer from any legal infirmity also proceeded to extend the time granted in the said order by four months. 10. In such circumstances, if this Court were to exercise the review jurisdiction and pass any orders, that will amount to meddling with the orders of the Hon’ble Supreme Court, which this Court is not inclined to exercise. In fact, in paragraph 40 of the decision reported in Kunhayammed v. State of Kerala, 2000 (6) SCC 359, the Supreme Court has stated the legal position as under: “40. 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.” (Emphasis added) 11. The set of expressions made therein makes it abundantly clear that no Court subordinate to the Hon’ble Supreme Court should make any attempt to pass any order that would directly or indirectly cause any dent in the order of the Hon’ble Supreme Court. Therefore, on the ground itself, we are not inclined to entertain this Review Application as that would result in modifying the time extension granted by the Hon’ble Supreme Court, which this Court is not expected to do after the Hon’ble Supreme Court, which this Court is not expected to do after the Hon’ble Supreme Court has exercised their discretion by granting extension of time. 12. That apart, as rightly contended by the learned Senior Counsel for the Respondents 1 and 2, the Applicants having purchased two items of property in violation of the order of injunction granted by the Civil Court and having disposed of one of the items alone for a consideration of Rs. 12,68,000/- in the year 2007, certainly it cannot be held that the value assessed in a sum of Rs. 35,00,000/- in the month of December, 2009 can be held to be on a higher side. Such a claim of the Applicants cannot be a ground for review of our order dated 7.12.2009. 13. That being so, the present offer of the Applicants creting a deposit of Rs. 10,00,000/- or payment of a sum of Rs. 1,00,000/- and offer of rent derived from the property can be no stretch of imagination be a ground for reviewing our order dated 7.12.2009. 14. That apart, when the Hon’ble Supreme Court rejected the Special Leave Petitions the Applicants did not seek for any reservation or liberty to move this Court for review. In this context, it will be worthwhile to refer to the judgment of the Hon’ble Supreme Court reported in Abhishek Maviya v. Additional Welfare Commissioner, AIR 2008 SC 1222 in paragraph 8 of the Hon’ble Supreme Court has held as under: “8. We find no merit in Appellant’s contention. The order dated 4.5.1999 of this Court specifically refers to the error in the order describing the Appellant as “deceased” and dismissed the SLP as withdrawn with the following observation: “He wants to apply to the Additional Welfare Commissioner for correction. We express no opinion in that behalf”. No liberty was reserved to file a fresh Appeal or seek review of the order dated 13.3.1997 on merits. The order dated 13.3.1997 having attained finality, his efforts to re-agitate the issue again and again is an exercise in futility. We are therefore of the view that Appeal is liable to be dismissed.” 15. Having regard to our above conclusions, we do not find any merit in the Review Application. The Review Application stands dismissed.

Advocates List

For the Petitioner P. Valliappan, Advocate. For the Respondent R. Yashod Varadan, Senior Counsel for R. Sunil Kumar, Advocate.

For Petitioner
  • Shekhar Naphade
  • Mahesh Agrawal
  • Tarun Dua
For Respondent
  • S. Vani
  • B. Sunita Rao
  • Sushil Kumar Pathak

Bench List

HON'BLE MR. JUSTICE F.M. IBRAHIM KALIFULLA

HON'BLE MR. JUSTICE T.S. SIVAGNANAM

Eq Citation

LQ 2010 HC 15383