REPORTABLE                           

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs.4641-4642 OF 2009

Bakshi Dev Raj & Anr.                                     .... Appellant(s)

Versus

Sudhir Kumar        .... Respondent(s)

J U D G M E N T

P.Sathasivam,J.

1)  These appeals are directed against the final  judgment  

and orders dated 18.03.2008 and 08.09.2008 passed by the  

High Court of Jammu & Kashmir at Jammu in Civil Second  

Appeal No. 19 of 2005 and Review Petition (C) No. D-5 of 2008  

respectively  whereby  the  High  Court  dismissed  the  second  

appeal and the review petition filed by the appellants herein.

2)  Brief facts:

(a)    Shri Harbans Lal, father of the appellant No.1, purchased  

the  land  in  dispute  measuring  40  kanal  4  marlas  bearing  

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Khasra No. 65 in Village Chak Gainda, Tehsil Kathua from one  

Gurdas by way of a registered sale deed dated 18.03.1959. The  

said  land  falls  in  Khasra  No.  109/65  and  the  same  was  

recorded in the name of the father of the appellant No.1 and  

after  his  father’s  death  the  name  of  appellant  No.1  was  

recorded from Kharif 1987.   

(b)  The plot of Sudhir Kumar-the respondent herein is on  

the  southern  side  of  the  land  of  the  appellants.   On  

29.04.1991, the respondent herein filed a civil suit being No.  

17/Civil/1991 in the Court of sub-Judge, Kathua seeking a  

declaratory decree to the effect that he is the owner and in  

possession of the suit land measuring and bounded by East  

Kathua  Kalibari  Road  90’  West  Police  Line  measuring  96’,  

North Land of  Bakshi  Dev Raj  (appellant  No.  1 herein)  and  

South, Lane 460’ situated at Ward No.1 Village Chak Gainda,  

Tehsil  Kathua  and  further  sought  decree  for  permanent  

injunction restraining the appellants herein in the suit land.  

On  06.04.1993,  the  appellants  herein  filed  a  joint  written  

statement  in  the  above  civil  suit.   The  trial  Court,  vide  

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judgment dated 25.04.2003,  dismissed the suit  filed by the  

respondent herein.

(c) Aggrieved by the said judgment, the respondent filed Civil  

First Appeal No.6 in the Court of District & Sessions Judge,  

Kathua.  The first appellate Court, vide judgment and decree  

dated  09.06.2005,  set  aside  the  judgment  and  order  dated  

25.04.2003, passed by the trial Court and allowed the appeal  

in favour of the respondent.   

(d) Challenging the same, the appellants filed Second Appeal  

No. 19 of 2005 before the High Court of Jammu & Kashmir at  

Jammu.   Vide judgment dated 18.03.2008, the second appeal  

was disposed of  by the High Court by modifying the decree  

with the consent of both the parties.  

(e) Against the said order,  a special  leave petition bearing  

S.L.P. (C) No. 10939 of 2008 was filed by the appellants herein  

before this Court and the same was dismissed as withdrawn  

on 14.05.2008.   On 21.05.2008, the appellants filed a review  

petition  being  Review  Petition  (C)  No.  D-5/2008  before  the  

High Court for review of the order dated 18.03.2008 passed in  

Second Appeal. The learned single Judge of the High Court, by  

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order dated 08.09.2008, dismissed the review petition filed by  

the appellants.   

(f) Aggrieved by the final orders dated 18.03.2008 passed by  

the  High  Court  in  Second  Appeal  and  the  order  dated  

08.09.2008  in  the  review  petition,  the  appellants  filed  the  

present  appeals  before  this  Court  by  way   of  special  leave  

petitions.

3) Heard Mr. Dinesh Kumar Garg, learned counsel for the  

appellants  and  Mr.  Ranjit  Kumar,  learned  senior  counsel  

appearing for the respondent.

4) The  questions  which  arise  for  consideration  in  these  

appeals are:

i) Whether Review Petition (C) No. D-5/2008 filed before the  

High Court against the judgment in Second Appeal No.  

19 of 2005 is maintainable in view of dismissal of SLP (C)  

No. 10939 of 2008 dated 14.05.2008 by this Court filed  

against the said Second Appeal?   

ii) Whether the statement of the counsel conveying that the  

parties have settled and modified the decree without a  

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written  document  or  consent  from  the  appellants  is  

acceptable?   and

iii) Whether dismissal of SLP as withdrawn without leave of  

the Court to challenge the impugned order therein before  

an  appropriate  court/forum is  a  bar  for  availing  such  

remedy?

5) The  present  appellants  filed  Second  Appeal  No.  19  of  

2005  before  the  High  Court  questioning  the  judgment  and  

decree dated 09.06.2005 of the first appellate Court in First  

Appeal No.6.  While admitting the above second appeal,  the  

High Court framed two questions of law, one, as to whether  

the report of the Commissioner is admissible evidence without  

its  formal  proof  and the other,  whether the reliance can be  

placed on a site plan prepared by an Architect when the same  

record  is  available  with  the  Revenue  Authorities  which has  

been withheld by the plaintiff.  It is further seen from the order  

of the High Court that during the course of submissions, both  

the counsel agreed that without addressing the questions of  

law so formulated, the matter can be settled by modifying the  

decree impugned in appeal by incorporating the area of land  

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under  Survey  No.  110/65  with  the  boundary  between  the  

lands thereunder and Survey No. 109/65 belonging to other  

side being the Sheesham and Shreen trees currently existing  

on the  spot.   They  further  conceded that  whatever  of  their  

respective land falling on either side would not be claimed by  

them  and  the  Sheesham  and  Shreen  trees  would  be  

respondent’s  property to be cut by him within a reasonable  

period of time.  Based on the above submissions by both the  

counsel, the High Court modified the impugned decree in the  

following manner:

“(a) The suit of respondent/plaintiff is decreed restraining  other  side  from interfering  or  causing  any  interference  or  encroaching  upon  any  portion  of  his  land  measuring  11  kanals 12 marlas under survey No 110/65 along with his  other proprietary land whatever existing on spot.

(b) The sheesham and shreen trees existing on spot would  be the boundary line between two parcels of land belonging  to rival sides as aforementioned with the exact demarcating  line running from centre of trees, which would be property of  respondent/plaintiff to be cut by him at an appropriate time  without undue delay.

(c) Whenever  proprietary  land  of  either  parties  falls  on  other side of the trees to form part of Opposite Party land  stands  conceded  to  each  other  by  respective  parties  over  which  their  claims  would  be  deemed  to  have  been  abandoned.

(d) No costs.”

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6) By pointing out that the concession given by the counsel  

for the appellants before the High Court was not lawful and in  

violation of Section 23 of the Indian Contract Act, 1872 and  

that the  second appeal was disposed of without hearing on  

substantial  questions  of  law  framed  by  the  Court,  the  

appellants filed Review Petition (C)  No.  No.D-5/2008.   Even  

before  the  High  Court,  an  objection  was  raised  as  to  the  

maintainability  of  the  review  petition  by  pointing  out  the  

following objections:

“(a) that once the petitioner had preferred an appeal before  the Supreme Court, the review was barred under O. 47 Rule  1 Sub-Rule (1) of C.P.C.

(b) that  application  is  time  barred,  period  of  limitation  prescribed for filing review in terms of Rule 66 Sub Rule (3)  of J&K High Court Rules is 30 days.

(c) that review application can be maintained only if some  evidence or matter has been discovered and it was not within  the knowledge of petitioner when the decree was passed or  where there was a mistake or an error apparent on the fact  of record.”

7) In view of the above objections, the learned single Judge  

heard  the  review  petition  both  on  merits  and  its  

maintainability  at  length.   A  contention  was  raised  with  

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reference to Order XXIII Rule 3 of the Code of Civil Procedure,  

1908 (hereinafter referred to as “CPC”) and Order XLVII sub-

rule (1) of Rule 1, ultimately, after finding that the question  

raised is not a question of law and not an error apparent on  

the face of the record,  dismissed the review petition. In the  

present  appeal,  the  appellants  challenged  not  only  the  

dismissal  of  the  review  petition  but  also  final  judgment  in  

second appeal filed before the High Court. With these factual  

details,  let  us  consider  the  questions  posed  in  the  earlier  

paragraphs.  Inasmuch as Mr. Ranjit Kumar, learned senior  

counsel  for  the  respondent  raised  an  objection  as  to  the  

maintainability of the present appeal, let us consider the same  

at the foremost and finally the merits of the impugned order of  

the High Court.  

Compromise of Suit

8)  Order XXIII of CPC deals with “Withdrawal and Adjustment  

of Suits”.  Rule 3 of Order XXIII speaks about “compromise of  

suit” which reads as under:

“3.  Compromise  of  suit.- Where  it  is  proved  to  the  satisfaction of the Court that a suit has been adjusted wholly  or in part by any lawful agreement or compromise in writing  and signed by the parties, or where the defendant satisfies  

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the plaintiff in respect of the whole or any part of the subject  matter  of  the suit,  the Court  shall  order such agreement,  compromise or satisfaction to be recorded, and shall pass a  decree  in  accordance  therewith  so far  as  it  relates  to  the  parties to the suit, whether or not the subject matter of the  agreement,  compromise or  satisfaction is  the same as the  subject matter of the suit:

Provided that where it is alleged by one party and denied by  the other that an adjustment or satisfaction has been arrived  at, the Court shall decide the question; but no adjournment  shall  be granted for the purpose of deciding the question,  unless the Court,  for reasons to be recorded, thinks fit  to  grant such adjournment.

Explanation—An agreement or compromise which is void or  voidable under the Indian Contract Act,  1872 (9 of 1872),  shall not be deemed to be lawful within the meaning of this  rule.”   

9) The  very  same  rule  was  considered  by  this  Court  in  

Gurpreet Singh vs. Chatur Bhuj Goel, (1988) 1 SCC 270.  In  

that  case,  the  respondent  therein  Chatur  Bhuj  Goel,  a  

practising  advocate  at  Chandigarh  first  lodged  a  criminal  

complaint  against  Colonel  Sukhdev  Singh,  father  of  the  

appellant, under Section 420 of the Indian Penal Code 1860  

(hereinafter referred to as “the IPC”),  after he had served the  

respondent  with  a  notice  dated  11.07.1979  forfeiting  the  

amount of Rs.40,000/- paid by him by way of earnest money,  

alleging  that  he  was  in  breach  of  the  contract  dated  

04.06.1979  entered  into  between  Colonel  Sukhdev  Singh,  

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acting as guardian of  the  appellant,  then a minor,  and the  

respondent,  for  the  sale  of   residential  house  No.   1577,  

Sector-18-D, Chandigarh for a consideration of Rs,2,85,000/-.  

In terms of the agreement, the respondent was to pay a further  

sum  of  Rs.1,35,000/-  to  the  appellant’s  father  -  Colonel  

Sukhdev Singh by 10.07.1979 when the said agreement of sale  

was  to  be  registered  and  vacant  possession  of  the  house  

delivered to him, and the balance amount of Rs.1,10,000/- on  

or before 31.01.1980 when the deed of conveyance was to be  

executed. The dispute between the parties was that according  

to Colonel Sukhdev Singh, there was failure on the part of the  

respondent to pay the amount of Rs.1,35,000/- and get the  

agreement registered, while the respondent alleged that he had  

already purchased a bank draft in the name of the appellant  

for Rs.1,35,000/- on 07.07.1979 but the appellant’s father did  

not  turn  up  to  receive  the  same.   Although  the  Additional  

Chief Judicial Magistrate by order dated 31.10.1979 dismissed  

the complaint holding that the dispute was of a civil  nature  

and no process could issue on the complaint,   the  learned  

Single  Judge,  by  his  order  dated  11.02.1980  set  aside  the  

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order  of  the  learned  Additional  Chief  Judicial  Magistrate  

holding  that  the  facts  brought  out  clearly  warranted  an  

inference  of  dishonest  intention  on  the  part  of  Colonel  

Sukhdev Singh and accordingly directed him to proceed with  

the trial according to law.  Aggrieved Colonel Sukhdev Singh  

came up in appeal to this Court by way of special leave.  While  

construing Order XXIII Rule 3 of CPC, this Court concluded  

thus:  

“10. Under Rule 3 as it now stands, when a claim in suit  has been adjusted wholly or in part by any lawful agreement  or  compromise,  the  compromise  must  be  in  writing  and  signed  by  the  parties  and  there  must  be  a  completed  agreement between them. To constitute an adjustment, the  agreement  or  compromise  must  itself  be  capable  of  being  embodied  in  a  decree.  When  the  parties  enter  into  a  compromise during the hearing of a suit or appeal, there is  no reason why the requirement that the compromise should  be reduced in writing in the form of an instrument signed by  the  parties  should  be  dispensed  with.  The  court  must  therefore  insist  upon the parties  to  reduce the terms into  writing.”

It is clear from this decision that during the course of hearing,  

namely,  suit  or  appeal,  when  the  parties  enter  into  a  

compromise,  the  same should  be  reduced in  writing  in  the  

form  of  an  instrument  and  signed  by  the  parties.   The  

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substance of the said decision is that the Court must insist  

upon the parties to reduce the terms into writing.                

10) In  Pushpa Devi Bhagat (dead)  through LR. Sadhna  

Rai  (Smt.) vs.  Rajinder  Singh and Others,  (2006)  5  SCC  

566,  the term ‘instrument’  used in above-referred  Gurpreet  

Singh’s case (supra) refers to a writing a formal nature, this  

Court explained that when the hearing of letters patent appeal  

commenced before the High Court,  the parties took time to  

explore the possibility of settlement and when the hearing was  

resumed, the appellant’s father made an offer for settlement  

which was endorsed by the counsel for the appellant also.  The  

respondent  was  also  present  there  and  made  a  statement  

accepting the offer.  The said offer and acceptance were not  

treated as final as the appeal was not disposed of by recording  

those  terms.   On  the  other  hand,  the  said  proposals  were  

recorded and the matter was adjourned for payment in terms  

of the offer.  When the matter was taken up on the next date of  

hearing, the respondent stated that he is not agreeable.  The  

High Court directed that the appeal would now be heard on  

merits as the respondent was not prepared to abide by the  

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proposed compromise. The said order was challenged before  

this Court by the appellant by contending that the matter was  

settled by a lawful compromise by recording the statement by  

appellant’s  counsel  and  the  respondent’s  counsel  and  the  

respondent  could  not  resile  from  such  compromise  and,  

therefore, the High Court ought to have disposed of the appeal  

in terms of the compromise.  It is in this factual background,  

the  question  was  considered  with  reference  to  Gurpreet  

Singh’s case (supra).   This was explained in  Pushpadevi’s  

case  (supra) that the distinguishing feature in that case was  

that  though the  submissions  made  were  recorded  but  that  

were not signed by the parties or their counsel,  nor did the  

Court  treat  the  submissions  as  a  compromise.   In  

Pushpadevi’s case (supra),  the Court not only recorded the  

terms of settlement but thereafter directed that the statements  

of the counsel be recorded.  The statement of the counsel were  

also recorded on oath read over and accepted by the counsel  

to be correct and then signed by both counsel.  In view of the  

same,  in  Pushpadevi’s case (supra),  it  was concluded that  

there was a valid compromise in writing signed by the parties  

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(represented counsel).  

11) In the earlier part of our order, we have already recorded  

that  during  the  course  of  hearing  of  second  appeal,  both  

counsel agreed that without addressing the questions of law so  

formulated, the matter can be settled by modifying the decree  

impugned in appeal by incorporating the area of land under  

Survey  No.  110/65  with  the  boundary  between  the  lands  

thereunder and Survey No.109/65 belonging to the other side  

being the Sheesham and Shreen trees currently  existing on  

the spot.  

Role of the counsel

12) Now,  we  have  to  consider  the  role  of  the  counsel  

reporting to the Court about the settlement arrived at.   We  

have already noted that in terms of Order XXIII Rule 3 of CPC,  

agreement or compromise is to be in writing and signed by the  

parties.  The impact of the above provision and the role of the  

counsel  has  been  elaborately  dealt  with  by  this  Court  in  

Byram Pestonji  Gariwala vs.  Union  Bank  of  India  and  

Others, (1992) 1 SCC 31 and observed that  courts in India  

have consistently recognized the traditional role of lawyers and  

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the extent and nature of implied authority to act on behalf of  

their clients.  Mr. Ranjit Kumar, has drawn our attention to  

the  copy  of  Vakalatnama  (Annexure-R3)  and  the  contents  

therein.   The  terms  appended  in  Vakalatnama  enable  the  

counsel  to  perform  several  acts  on  behalf  of  his  client  

including  withdraw  or  compromise  suit  or  matter  pending  

before  the  Court.   The  various  clauses  in  the  Vakalatnama  

undoubtedly  gives power  to  the  counsel  to  act  with utmost  

interest  which  includes  to  enter  into  a  compromise  or  

settlement.   The  following  observations  and  conclusions  in  

paras 37, 38 and 39 are relevant:

“37. We may, however, hasten to add that it will be prudent  for  counsel  not  to  act  on  implied  authority  except  when  warranted  by  the  exigency  of  circumstances  demanding  immediate adjustment of suit by agreement or compromise  and the signature of the party cannot be obtained without  undue  delay.  In  these  days  of  easier  and  quicker  communication, such contingency may seldom arise. A wise  and careful  counsel will  no doubt arm himself  in advance  with the necessary authority expressed in writing to meet all  such contingencies in order that neither his authority nor  integrity  is  ever  doubted.  This  essential  precaution  will  safeguard  the  personal  reputation  of  counsel  as  well  as  uphold the prestige and dignity of the legal profession.

38. Considering the traditionally recognised role of counsel  in  the  common  law  system,  and  the  evil  sought  to  be  remedied  by  Parliament  by  the  C.P.C.  (Amendment)  Act,  1976,  namely,  attainment  of  certainty  and  expeditious  disposal  of cases by reducing the terms of  compromise to  writing signed by the parties, and allowing the compromise  

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decree  to  comprehend  even  matters  falling  outside  the  subject matter of the suit,  but relating to the parties,  the  legislature cannot, in the absence of express words to such  effect, be presumed to have disallowed the parties to enter  into a compromise by counsel in their cause or by their duly  authorised  agents.  Any  such  presumption  would  be  inconsistent  with  the  legislative  object  of  attaining  quick  reduction of arrears in court by elimination of uncertainties  and enlargement of the scope of compromise.

39. To insist upon the party himself personally signing the  agreement or compromise would often cause undue delay,  loss  and  inconvenience,  especially  in  the  case  of  non- resident persons. It has always been universally understood  that  a  party  can  always  act  by  his  duly  authorised  representative. If a power-of-attorney holder can enter into  an agreement or compromise on behalf of his principal, so  can  counsel,  possessed  of  the  requisite  authorisation  by  vakalatnama,  act  on behalf  of  his  client.  Not  to  recognise  such capacity is not only to cause much inconvenience and  loss to the parties personally, but also to delay the progress  of  proceedings in court.  If  the  legislature  had intended to  make such a fundamental change, even at the risk of delay,  inconvenience  and  needless  expenditure,  it  would  have  expressly so stated.”

13) In  Jineshwardas (D) by LRs and Others vs.  Jagrani  

(Smt)  and  Another,  (2003)  11  SCC  372,  this  Court,  by  

approving  the  decision  taken  in  Byram  Pestonji’s  case  

(supra), held that a judgment or decree passed as a result of  

consensus arrived at before Court, cannot always be said to be  

one passed on compromise or settlement and adjustment.  It  

may, at times, be also a judgment on admission.  

14) In  Jagtar Singh vs.  Pargat Singh and Others, (1996)  

11 SCC 586, it was held that counsel for the appellant has  

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power to make a statement on instructions from the party to  

withdraw the appeal.  In that case, respondent No.1 therein,  

elder  brother  of  the  petitioner  filed  a  suit  for  declaration  

against the petitioner and three brothers that the decree dated  

04.05.1990  was  null  and  void  which  was  decreed  by  

subordinate Judge, Hoshiarpur on 29.09.1993.  The petitioner  

therein  filed  an  appeal  in  the  Court  of  Additional  Distruct  

Judge,  Hoshiarpur.   The  counsel  made  a  statement  on  

15.09.1995 that the petitioner did not intend to proceed with  

the appeal.  On the basis thereof, the appeal was dismissed as  

withdrawn.   The  petitioner  challenged  the  order  of  the  

appellate court in the revision.  The High Court confirmed the  

same  which  necessitated  filing  of  SLP  before  this  Court.  

Learned  counsel  for  the  petitioner  contended  that  the  

petitioner  had  not  authorized  the  counsel  to  withdraw  the  

appeal.   It  was  further  contended  that  the  court  after  

admitting the appeal  has no power  to dismiss  the same as  

withdrawn except to decide the matter on merits considering  

the  legality  of  the  reasoning  of  the  trial  Court  and  the  

conclusions either agreeing or disagreeing with it.  Rejecting  

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the said contention, the Court held as under:  

“3. The  learned  counsel  for  the  petitioner  has  contended  that  the  petitioner  had  not  authorised  the  counsel  to  withdraw the appeal. The Court after admitting the appeal  has no power to dismiss the same as withdrawn except to  decide the matter on merits considering the legality of the  reasoning  of  the  trial  court  and  the  conclusions  either  agreeing  or  disagreeing  with  it.  We  find  no  force  in  the  contention. Order III Rule 4 CPC empowers the counsel to  continue on record until the proceedings in the suit are duly  terminated.  The  counsel,  therefore,  has  power  to  make  a  statement  on instructions  from the  party  to  withdraw the  appeal. The question then is whether the court is required to  pass a reasoned order on merits against the decree appealed  from the decision of  the Court  of  the Subordinate Judge?  Order  23  Rules  1(1)  and  (4)  give  power  to  the  party  to  abandon the  claim filed  in  the  suit  wholly  or  in  part.  By  operation of Section 107(2) of the CPC, it equally applies to  the appeal and the appellate court has co-extensive power to  permit  the  appellant  to  give  up  his  appeal  against  the  respondent  either  as  a  whole  or  part  of  the  relief.  As  a  consequence, though the appeal was admitted under Order  41 Rule 9, necessarily the Court has the power to dismiss  the appeal as withdrawn without going into the merits of the  matter and deciding it under Rule 11 thereof.

4. Accordingly, we hold that the action taken by the counsel  is consistent with the power he had under Order III Rule 4  CPC. If really the counsel has not acted in the interest of the  party or against the instructions of the party, the necessary  remedy is elsewhere and the procedure adopted by the court  below is consistent with the provisions of CPC. We do not  find  any  illegality  in  the  order  passed  by  the  Additional  District  Judge  as  confirmed  by  the  High  Court  in  the  revision.”

15) The analysis of the above decisions make it clear that the  

counsel  who  was  duly  authorized  by  a  party  to  appear  by  

executing  Vakalatnama  and  in  terms  of  Order  III  Rule  4,  

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empowers  the  counsel  to  continue  on  record  until  the  

proceedings  in  the  suit  are  duly  terminated.   The  counsel,  

therefore, has power to make a statement on instructions from  

the party to withdraw the appeal. In such circumstance, the  

counsel  making  a  statement  on  instructions  either  for  

withdrawal of appeal or for modification of the decree is well  

within his competence and if really the counsel has not acted  

in the interest of the party or against the instructions of the  

party,  the  necessary  remedy is  elsewhere.   Though learned  

counsel  for  the  appellant  vehemently  submitted  that  the  

statement  of  the  counsel  before  the  High  Court  during  the  

course of hearing of Second Appeal No. 19 of 2005 was not  

based  on  any  instructions,  there  is  no  such  material  to  

substantiate  the  same.   No  doubt,  Mr.  Garg  has  placed  

reliance on the fact that the first appellant was bedridden and  

hospitalized,  hence,  he  could  not  send  any  instruction.  

According to him, the statement made before the Court that  

too giving of certain rights cannot be sustained and beyond  

the power of the counsel.  It is true that at the relevant time,  

namely, when the counsel made a statement during the course  

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of  hearing  of  second  appeal  one  of  the  parties  was  ill  and  

hospitalized.  However, it is not in dispute that his son who  

was  also  a  party  before  the  High  Court  was  very  much  

available.  Even otherwise, it is not in dispute that till filing of  

the  review  petition,  the  appellants  did  not  question  the  

conduct  of  their  counsel  in  making  such  statement  in  the  

course of hearing of second appeal by writing a letter or by  

sending notice disputing the stand taken by their counsel.  In  

the absence of such recourse or material in the light of the  

provisions of  the  CPC as discussed and interpreted  by this  

Court,  it  cannot  be  construed that  the  counsel  is  debarred  

from  making  any  statement  on  behalf  of  the  parties.   No  

doubt, as pointed out in Byram Pestonji  (supra), in order to  

safeguard the present reputation of the counsel and to uphold  

the  prestige  and  dignity  of  legal  profession,  it  is  always  

desirable to get instructions in writing.  

Maintainability of Review Petition

16) Now,  let  us  consider  the  maintainability  of  the  review  

petition filed before the High Court after dismissal of SLP (C)  

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No. 10939 of 2008 before this Court.  It is not in dispute that  

the  High  Court,  by  order  dated  18.03.2008,  based  on  the  

statement of both counsel disposed of Second Appeal No. 19 of  

2005 by modifying the decree as stated therein.  Against the  

said  order  of  the  High  Court,  the  appellants  preferred  the  

above said SLP before this Court.  By order dated 14.05.2008,  

this Court after hearing the counsel for the appellants passed  

the following order:  

“Learned counsel  for  the  petitioner  prays to  withdraw the  petition.  Prayer made is accepted.  The special leave petition  is dismissed as withdrawn”

A reading of the above order makes it clear that based on the  

request  of  the  counsel,  the  SLP  came  to  be  dismissed  as  

withdrawn.   It  is  also  clear  that  there  is  no  permission  or  

reservation  or  liberty  for  taking  further  action.   However,  

dismissal of SLP is not a bar for filing review before the same  

Court.  This aspect was considered by a three-Judge Bench of  

this  Court  in  Kunhayammed  and  Others vs.  State  of  

Kerala and Another, (2000) 6 SCC 359.  The above aspect  

was dealt with elaborately in paras 38, 40 and 44.   

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“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  Court's  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.

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  petitioner's  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  

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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.

44. To sum up, our conclusions are: (i) Where an appeal or revision is provided against an order  passed by a  court,  tribunal  or  any other  authority  before  superior forum and such superior forum modifies, reverses  or affirms the decision put in issue before it, the decision by  the  subordinate  forum  merges  in  the  decision  by  the  superior forum and it is the latter which subsists, remains  operative and is capable of enforcement in the eye of law. (ii)  The  jurisdiction  conferred  by  Article  136  of  the  Constitution is divisible into two stages.  The first  stage is  upto the disposal of prayer for special leave to file an appeal.  The second stage commences if and when the leave to appeal  is granted and the special leave petition is converted into an  appeal. (iii) The doctrine of merger is not a doctrine of universal or  unlimited  application.  It  will  depend  on  the  nature  of  jurisdiction exercised by the superior forum and the content  or subject-matter of challenge laid or capable of being laid  shall  be  determinative  of  the  applicability  of  merger.  The  

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superior  jurisdiction  should  be  capable  of  reversing,  modifying or affirming the order put in issue before it. Under  Article  136  of  the  Constitution  the  Supreme  Court  may  reverse,  modify  or  affirm  the  judgment-decree  or  order  appealed  against  while  exercising  its  appellate  jurisdiction  and  not  while  exercising  the  discretionary  jurisdiction  disposing of petition for special leave to appeal. The doctrine  of merger can therefore be applied to the former and not to  the latter. (iv) An order refusing special leave to appeal may be a non- speaking order or a speaking one. In either case it does not  attract  the  doctrine  of  merger.  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.

(v) If the order refusing leave to appeal is a speaking order,  i.e., gives reasons for refusing the grant of leave, then the  order  has  two  implications.  Firstly,  the  statement  of  law  contained in the order is a declaration of law by the Supreme  Court within the meaning of Article 141 of the Constitution.  Secondly,  other  than  the  declaration  of  law,  whatever  is  stated in the order are the findings recorded by the Supreme  Court  which  would  bind the  parties  thereto  and  also  the  court, tribunal or authority in any proceedings subsequent  thereto  by  way  of  judicial  discipline,  the  Supreme  Court  being  the  Apex  Court  of  the  country.  But,  this  does  not  amount  to saying that  the order  of  the  court,  tribunal  or  authority  below  has  stood  merged  in  the  order  of  the  Supreme Court rejecting the special leave petition or that the  order of the Supreme Court is the only order binding as res  judicata in subsequent proceedings between the parties.

(vi)  Once  leave  to  appeal  has  been  granted  and  appellate  jurisdiction of Supreme Court has been invoked the order  passed in appeal would attract the doctrine of merger; the  order may be of reversal, modification or merely affirmation. (vii) On an appeal having been preferred or a petition seeking  leave to appeal having been converted into an appeal before  the  Supreme  Court  the  jurisdiction  of  High  Court  to  entertain a review petition is lost thereafter as provided by  sub-rule (1) of Rule 1 of Order 47 CPC.”

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17) In view of the principle laid down above by this Court,  

even after dismissal of SLP, the aggrieved parties are entitled  

to move the court concerned by way of review.  In the case on  

hand,  though  the  appellants  moved  an  SLP  in  this  Court  

against  the  order  of  the  High  Court  in  Second  Appeal,  

admittedly, the SLP was dismissed as withdrawn without the  

leave of the Court.   

18) Similar  question  was  considered  by  this  Court  in  

Sarguja Transport Service vs.  State Transport Appellate  

Tribunal, M.P., Gwalior, and Others, (1987) 1 SCC 5.  In  

this decision it was held that where a petitioner withdraws a  

petition filed by him in the High Court under Article 226/227  

without permission to institute a fresh petition, remedy under  

Article 226/227 should be deemed to have been abandoned by  

the petitioner in respect of the cause of action relied on in the  

writ petition and it would not be open to him to file a fresh  

petition in the High Court under the same article though other  

remedies like suit or writ petition before the this Court under  

Article 32 would remain open to him.  It was further held that  

the principle underlying Rule 1 of Order XXIII of CPC should  

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be  extended  in  the  interests  of  administration  of  justice  to  

cases of withdrawal of writ petition also.  The main contention  

urged by the learned counsel for the petitioner in that case  

was  that  the  High  Court  was  in  error  in  rejecting  the  writ  

petition on the ground that the petitioner had withdrawn the  

earlier  writ  petition  in  which  he  had  questioned  the  order  

passed by the Tribunal on 04.10.1985 without the permission  

of the High Court to file a fresh petition.  It was urged by the  

learned counsel that since the High Court had not decided the  

earlier petition on merits but only had permitted the petitioner  

to  withdraw the  petition,  the  withdrawal  of  the  said  earlier  

petition  could  not  have  been  treated  as  a  bar  to  the  

subsequent writ petition.  While considering the said question,  

this Court considered sub-rule 3 of Rule 1 of Order 23 CPC  

and  its  applicability  to  writ  petitions  filed  under  Article  

226/227 and held as under:  

“9. 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  

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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  rignt guaranteed under Article 21 of the Constitution since  such a  case  stands  on  a  different  footing  altogether.  We,  however leave this question open.”

19) In the light of the discussion in the earlier paragraphs  

even after dismissal of an SLP with or without reasons, the  

aggrieved  party  is  entitled  to  file  a  review.   In  view  of  the  

language used in Order XLVII Rule 1(a) of CPC which relates  

to  “Review”,  the  present  Review  Petition  (C)  No.  D-5/2008)  

cannot be dismissed on the ground of maintainability.  Based  

on the above discussion and reasons, we hold that the review  

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petition filed by the appellants was maintainable but in view of  

Order  III  Rules  1  and  4,  Chapter  relating  to  the  role  of  

Pleaders, and in view of the conduct of the appellants in not  

raising any objection as to the act of their counsel except filing  

review petition, we are not inclined to accept the claim of the  

appellants.   

20) Finally,  Mr.  Garg  vehemently  contended  that  by  the  

concession of their counsel, appellants lost their property and  

they suffered huge loss in terms of money.  On perusal of the  

modified decree as available in the order of the High Court in  

Second Appeal No. 19 of 2005 and the sketch produced about  

the  existence  of  Sheesham and  Shreen  trees  running  as  a  

demarcating line and whenever those trees fall on either side  

the parties having ownership of the land get right to use the  

same, we are unable to accept the said contention also.   

21) In the light of the above discussion, we find no merit in  

both  the  appeals.   Consequently,  the  same  are  dismissed.  

There shall be no order as to costs.          

                         .…....…………………………………J.  

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  (P. SATHASIVAM)                          

 .…....…………………………………J.    (H.L. GOKHALE)  

NEW DELHI; 4th AUGUST, 2011.

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