Doctorine of merger is not only the universal principle doctrine of Finality is also there observes HC

Filing of review after dismissal of SLP by SC amounts to abuse of process of law holds HC

30/05/2018

JAMMU, May 30: The Hon'ble High Court of J&K at Jammu comprising of Justice Tashi Rabstan has held in a significant order that filing of Review petition after dismissal of SLP by SC amounts to abuse of process of law.
This Judgment was passed in the case of Jammu Motors Pvt. Ltd. v. Neelam Kumari and others.
Mr. Sourabh Malhotra, Advocate appeared for the Review Petitioner and Mr. Gagan Basotra, Advocate appeared for R- 1 to 3.Mr. Amit Gupta, Advocate appeared for R-4.
The High Court observed "Appellant-Review Petitioner is seeking review of judgment/order dated 14.11.2017 passed by this Court in Civil Miscellaneous Appeal, diarized as CIMA No. 155/2013, by virtue of which, Appeal filed by Appellant-Review Petitioner has been dismissed.
Mr Amit Gupta, Counsel for respondents submitted that filing of present review petition is abuse of process of law as the same is hit by doctrine of finality.
The Court observed as follows: "He contends that in Meghmala & Ors. v. G. Narasimha & others (2010) 8 SCC 383, the issue, as has emerged in the present case, has been crystallized to the effect that in case a litigant prefers a review petition prior to filing a Special Leave Petition before the Supreme Court and review petition remains pending till Special Leave Petition is dismissed, review petition deserves to be considered. In case, review petition is filed subsequent to dismissal of Special Leave Petition, the process of filing review petition amounts to abuse of process of the Court and that the Supreme Court is of considered opinion that filing of such a review petition at belated stage amounts to abuse of process of the Court and such petition is not maintainable.
4. Learned counsel for respondents also vehemently argues that in the present case, Appellant-Review Petitioner first preferred SLP before the Supreme Court, which was, however, dismissed on 07.12.2017 and thereafter present review petition has been moved before this Court. Thus, filing of Review Petition after failing before the Apex Court is sheer abuse of process of the law as the Hon’ble Supreme Court has not granted any leave to the Appellant-Review Petitioner for moving any Review Petition.
5. Heard learned counsel for the parties and perused the record.
6. The Review is sought on the ground that while taking the appeal for final disposal, application bearing MP No. 228/2013, for placing on record below mentioned documents, was not considered:-
(i) The judgment dated 22.11.2013, passed by Judicial Magistrate, First Class, Jammu, acquitting the driver of the offending vehicle of offences under Sections 279/304-A RPC;
(ii) The statement of Vipan Kumar (owner of the offending vehicle) under Section 161 Cr. P.C., affirming that vehicle was handed over to mechanic, Ranjit Singh, in his freelance personal capacity and the mechanic/driver was paid a sum of INR.2500/- (Rupees Two Thousand Five Hundred only) for conducting accidental repairs upon the Santro Car; and
(iii) The statement of eyewitness, Rakesh Kumar alias Rinku Dogra, under Section 161 Criminal Procedure Code, affirming that the car never entered the premises of the appellant company and was, in fact, repaired by some other private mechanic.
7. This Court, after hearing both the sides, vide judgment/order dated 14.11.2017, review whereof is sought, did not find any case for interference with the well-reasoned judgment of learned Tribunal and as such, dismissed the appeal. However, with a view to appreciate the relief claimed in the review petition, wherein apprehension has been voiced that if consideration would have been accorded to the application (MP No.228/2013) and for that matter, the evidence discovered by the Appellant-Review Petitioner, the conclusion drawn by this Court in its judgment dated 14.11.2017, would have been totally different.
8. I have gone through the interim orders passed from time to time by this Court in appeal (CIMA No.155/2013). On 26.08.2013, application (MP No.228/2013), was listed along with main appeal and MP No.610/2013. Though application (MP No.610/2013), taken up by this Court, was disposed of, yet counsel appearing for appellant-review petitioner did not opt to press application (MP No.228/2013) and this Court directed final consideration of the matter. Thereafter, vide order dated 02.06.2014, Appeal was admitted to hearing. Whereas application (MP No.228/2013) was also listed, however, appellant’s counsel did not again press for the said application. Afterwards, a number of times, aforesaid application was listed but was not pressed by counsel representing the appellant-review petitioner, till the matter was finally heard.
9. Learned counsel for respondents contends and rightly so that review petition filed by the appellant-review petitioner is not maintainable on the ground that appellant-review petitioner had already questioned the judgment, under review, before the Supreme Court in an SLP, which has been dismissed vide Order dated 07.12.2017. The Supreme Court, while dismissing SLP has not granted any leave/liberty to appellant-review petitioner to file any review petition before this Court. Learned counsel also states that appellant-review petitioner did not prefer review petition prior to filing of SLP or at any time before the SLP was finally decided by the Supreme Court.
10. There is no gainsaying that appellant-review petitioner has not furnished a single reason as to why appellant-review petitioner did not choose to file review petition before this Court when it preferred SLP or before the same was dismissed. It is further contended that reason was crystal clear that the ground on the basis of which appellant-review petitioner is seeking review, was never urged by counsel representing appellant-review petitioner, who argued the matter before this Court. Perusal of record reveals that the application, filed by appellant-review petitioner with the main Appeal before this Court for placing on record certain documents at the appellate stage, was not pressed. When counsel confronted with the fact that evidence before Trial Court was closed with the consent of appellant-review petitioner and no such material was ever placed before the trial Court, he could not tender any ground contrary thereto. The order sheet in the appeal file clearly establishes that it was with the consensus of parties that the matter was listed for final adjudication. And finally, on 14.11.2017, this Court dismissed the appeal after hearing the parties at length.
11. It is also contended on behalf of counsel for respondents that even after passing of judgment dated 14.11.2017 by this Court, appellant-review petitioner had moved an application before the learned Registrar Judicial of this Court with a prayer that the amount to be paid to the claimants in terms of judgment dated 14.11.2017 may be deferred as appellant-review petitioner had preferred an SLP against the said judgment and till the SLP is decided, the amount may not be released. This, according to learned counsel for respondents, and rightly so stated, again clearly shows that appellant-review petitioner had no intention to file any review petition before this Court and it is only after dismissal of the SLP, an effort is being made to re-agitate the matter again which is not legally permissible.
12. After dismissal of SLP, there is no question of filing review petition when the same was not filed prior to dismissal of SLP and moreover there is no ground available to seek review after dismissal of SLP by the Supreme Court. It is also contended that despite dismissal of SLP vide order dated 07.12.2017, appellant-review petitioner has not satisfied the whole Award till date and again an effort is being made to delay the payment to claimants by preferring present review petition. Thus, it is contended that filing of present review petition is abuse of process of Court and is hit by doctrine of finality.
13. In support of his submission, learned counsel for appellant-review petitioner has placed a very heavy reliance on the judgment of the Supreme Court in the case titled Kunhayammed and others v. State of Kerala and another, reported in AIR 2000 SC 2587, to contend that there is no bar to file review and in case the Special Leave Petition is dismissed in limine, party aggrieved may file a Review Petition before the High Court.
14. Appellant-review petitioner has got his right closed himself for leading evidence before the trial Court. So once the evidence stands closed and no whisper muchless any document was ever produced before the trial Court and no evidence was adduced after getting sufficient opportunity there, present review petition is just an afterthought and, therefore, same is devoid of any merit, more especially after dismissal of SLP. On the contrary, perusal of application (MP No.228/2013) would show that it is an application for placing on record certain documents which were never produced before the trial Court and there is no application as alleged to lead any evidence, before this Court and the grounds agitated now, were also not urged by counsel for appellant-review petition, as such, there is no error apparent on the face of the record.
15. There is a fallacy in the arguments of learned counsel for appellant-review petitioner as there was no application moved by appellant-review petitioner to produce additional evidence. On the contrary, perusal of application divulges that application, filed with original CIMA and relief sought therein, was only for placing on record certain documents and nothing is said about the witnesses to be proved. The counsel for appellant-review petitioner had never urged at the time of final hearing, nor did he press the application, but only final hearing was sought. Even otherwise Order XLI Rule 27 CPC stipulates:
“27. Production of additional evidence in Appellate Court.— (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary in the Appellate Court. But if:-
a) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or
aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or
b) the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the appellate court may allow such evidence or document to be produced or witness to be examined.
2) Wherever additional evidence is allowed to be produced by the Appellate Court, the Court shall record the reasons for its admission.”
16. What emerges from the above is that case of the appellant-review petitioner is not covered by any of the above legal provisions. Moreover, application filed by appellant-review petitioner along with CIMA, was not for producing additional evidence and the material was never placed before the Trial Court. Besides, evidence was voluntarily closed by appellant-review petitioner himself and this was the reason that counsel appearing for appellant-review petitioner had never urged the said ground to consider aforesaid application and no review petition was ever filed by appellant-review petitioner before dismissal of SLP by the Supreme Court.
17. The Hon’ble Supreme Court in Meghmala & Ors. v. G. Narasimha & others (2010) 8 SCC 383, has in paragraphs 17 and 18 after discussing the legal position, held:
“17. Thus, the law on the issue stands crystallized to the effect that in case a litigant files a review petition before filing the Special Leave Petition before this Court and it remains pending till the Special Leave Petition stands dismissed, the review petition deserves to be considered. In case it is filed subsequent to dismissal of the Special Leave Petition, the process of filing review application amounts to abuse of process of the court.
18. In view of the above, we are of the considered opinion that filing of such a review application by the respondents at a belated stage amounts to abuse of process of the Court and such an application is not maintainable. Thus, the High Court ought not to have entertained the writ petition against the order of dismissal of the review application by the Special Court and the order of the High Court to that extent is liable to be set aside.”
18. Appellant-review petitioner, in the present case, has not preferred any review petition before his SLP has been dismissed on 07.12.2017, as such, present review petition has been filed at belated stage that too after dismissal of SLP which, as such, is sheer abuse of process of Court. Worth to be seen is that it is the same lawyer who filed Review Petition and who also preferred SLP before the Supreme Court, and besides appellant-review petitioner had moved an application before the learned Registrar Judicial for deferring the payment to claimants till his SLP is considered. Having said so, filing of this Review Petition after failing before the Supreme Court is sheer abuse of process of the law inasmuch as the Supreme Court after hearing the petitioner has dismissed the said SLP and no leave to file the review has been granted to him. My aforesaid view is fortified by the law laid down in this regard by the Supreme Court in Sunil Kumar v. State of Harayana AIR 2012 SC 1754, wherein at paragraph 10 it is held:
“10. Learned counsel for the petitioner placed a very heavy reliance on the judgment of this Court in Kunhayammed and others v. State of Kerala and another (2000) 6 SCC 359, wherein this Court has held that in case the special leave petition is dismissed by this Court in limine, party aggrieved may file a review petition before the High Court. The said judgment has been explained in various subsequent judgments observing that in case the review petition has been filed before the High Court prior to the date the special leave petition is dismissed by this Court, the same may be entertained. However, a party cannot file a review petition before the High Court after approaching the Supreme Court as it would amount to abuse of process of the court. (See: Meghmala and others v. G.Narasimha Reddy and others. (2010) 8 SCC 383). The ratio of the aforesaid case has no application in the instant case as that was a matter dealing with civil cases.”
19. Learned counsel for the respondents contends that the Supreme Court in Meghmala’s case (supra) has clearly held that review is permissible after dismissal of SLP if the same is filed prior to the decision or prior to filing of SLP and the Review Petition is not maintainable after dismissal of SLP. It has also been held by the Supreme Court that doctrine of merger is not a doctrine of universal, but doctrine of finality is also to be seen, once superior court has dismissed the SLP. No effort has been made by the applicant prior to dismissal of SLP. Application filed after dismissal of SLP has been held by the Supreme Court to be abuse of process of Court and entertainment of such a review application was in affront to its order and it was subversive of judicial discipline.
20. On a plain reading of instant review petition, one thing, which is conspicuous, is that the point, which has been highlighted by appellant-review petitioner, was never urged by counsel appearing on behalf of appellant-review petitioner at the time of argumentation of the appeal, when it came up for final hearing. A ground of challenge, reflected in the appeal if not urged at the time of hearing will be deemed to have been not pressed. In fact, counsel, who had earlier appeared and argued the matter at the time of hearing, is different from the counsel who has filed the instant review petition. An affidavit ought to have been filed by the counsel concerned, who had appeared in the matter at the time of arguing to the extent that the matter was urged but not dealt with in the judgment, only then, would it constitute a good ground for seeking a review.
21. Judgment relied upon by learned counsel for appellant-review petitioner is distinguished by the Supreme Court in Megmala’s case (supra) after discussing in length both the judgments viz. Kunhayayammed and others v. State of Kerala and another reported in AIR 2000 SC 2587 and Abhai Maligai Partnership Firm and another v. K. Santhakumaran and others reported in AIR 1999 SC 1486. The plea of appellant-review petitioner that if consideration would have been accorded to the application (MP No.228/2013) and for that matter evidence now discovered by appellant-review petitioner, conclusion drawn by this Court vide its judgment dated 14.11.2017, would have been totally different is, for all what has been discussed above, totally misconceived.
22. In the given circumstances, no ground for review is made out. Accordingly, Review Petition is dismissed...”

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