CASE NO.: Appeal (civil) 11517 of 1995 PETITIONER: KABARI PVT. LTD. RESPONDENT: SHIVNATH SHROFF AND ORS. DATE OF JUDGMENT: 01/12/1995 BENCH: G.N. RAY & DR. A.S. ANAND JUDGMENT:
JUDGEMENT
1995 SUPP. (6) SCR 77
The Judgment of the Court was delivered by ‘
G.N. RAY, J. Leave granted. Heard learned counsel for the parties.
The Appeals arising out of Special leave petition (Civil) Nos. 6912 and
6914 of 1994 which have been preferred against the order of the Division
Bench of the Calcutta High Court passed on the Review Application for
recalling the order dismissing Appeal No. 619 of 1992 arising out of Suit
No. 531 of 1981 instituted in the ordinary original civil jurisdiction of
the Calcutta High Court. The appeals arising out of Special leave petition
(Civil) Nos. 6254 and 6913 of 1994 are directed against the order passed by
the Division Bench of the Calcutta High Court on the Review Application for
setting aside the order passed in Appeal No. 410 of 1992 arising out of an
order refusing to grant extension of time to effect amendment of plaint in
Suit No. 531 of 1981. For the purpose of appreciating the rival contentions
of the parties in these appeals, the relevant facts relating to the
aforesaid Suit No. 531 of 1981 and two appeals being Appeal Nos. 619 and
410 of 1992 arising out of Suit No. 531 of 1981 are to be noted as
hereunder.
There was an agreement on September 21, 1978, for sale of Property No. 8A.
Burdwan Road, Calcutta, for a consideration of Rs. 2 lacs between the
plaintiffs and the defendants. The agreement was signed in the Office of
Solicitors of the defendants-Vendors, namely. M/s. Khaitan & Co. The
plaintiff No. 1 was already in possession of the said property. Pursuant to
such agreement, the plaintiff had paid earnest money by cheque on August
28, 1978. On January 15. 1979, a further sum of Rs. 15,000 was paid by the
plaintiff No. 1 by cheque. The Draft Deed of Conveyance was duly approved
by the Solicitors of the vendors. The Vendors made an application on June
23, 1980 for permission for sale in favour of the plaintiffs before the
authorities under the Urban Land and Ceiling Act. On July 1, 1981, the
Solicitors of the vendors, namely, M/s. Khaitan & Co. informed the
solicitors of the plaintiffs that the permission to sale had been refused
by the authorities under the Urban Land and Ceiling Act. The Vendors,
however, transferred the said premises No. 8A. Burdwan Road, in favour of
M/s. Kabari Pvt. Ltd. after obtaining permission from the Urban Land and
Ceiling authority. The plaintiffs, namely, Shivanath Sharoff & Ors., filed
the suit for specific performance of the agreement in the ordinary original
civil jurisdiction of the Calcutta High Court being Suit No. 531 of 1981.
In the said suit, an application for interim injunction restraining the
defendants, namely, the Vendors from dealing with or disposing or the said
premises was made and an ad interim order was passed on such application
for interim injunction in favour of the plaintiff. On July 20, 1981 the
interlocutory application appeared as New Motion when the defendants
(Vendors) appeared and submitted before the Court that the said premises
No. 8A, Burdwan Road, had already been transferred to a third party,
namely. M/s. Kabari Pvt. Ltd. It was also contended by the defendants that
the agreement of sale dated September 21, 1978 in favour of the plaintiffs
ceased to exist due to refusal to sell the said property by the authorities
under the Urban Land and Ceiling Act. The defendants (Vendors) also stated
that by four separate deeds of conveyance all dated July 6. 1981 the said
premises had been conveyed in favour of the said M/s. Kabari Pvt. Ltd. On
March 8, 1982, the plaintiffs made an application in the said Suit No. 531
of 1981 for amendment of the plaint seeking to implead M/s. Kabari Pvt.
Ltd. and also to effect other amendments in the body and prayer of the
plaint. On June 1, 1982. M/s. Kabari Pvt. Ltd. affirmed an affidavit and
filed the same in Court. On July 9, 1982, the Court after hearing the
parties including M/s. Kabari Pvt. Ltd. allowed the application for
amendment of plaint and the added respondent, namely, the said M/s. Kabari
Pvt. Ltd. was restrained from alienating or encumbering the disputed
premises. On July 14, 1982, fresh writ of summons was directed to be issued
for service on the added respondent, namely, M/s. Kabari Pvt. Ltd. It is
the case of the plaintiffs that the plaintiffs by their letter requested
their Solicitors M/s. T. Banerjee & Co. to comply with the orders passed by
the Court for effecting service upon the added respondent. It is the
further case of the plaintiff that on July 28, 1982, the plaintiffs also
requested M/s. T. Banerjee & Co. to carry out the amendment and to serve
the writ of summons. It may be stated here that after purchasing the suit
property M/s. Kabari Pvt. Ltd. filed a suit for eviction of the plaintiffs
from the suit premises before the learned Subordinate Judge, Allbore. By an
order dated September 22, 1982, the said suit was transferred to the High
Court for disposal and the same is pending before the High Court.
In March, 1986, M/s T. Banerjee & Co. the Solicitors of the plaintiffs
wrote a latter to the Inspecting Assistant Commissioner of Income tax on
behalf of the plaintiffs that the entire matter relating to the transfer of
the suit premises to Ms. Kabari Pvt. Ltd. was subjudice and pending
decision of the Calcutta High Court. It is stated that Mr. Debashis
Mukherjee, Advocate and Partner of M/s. T. Banerjee & Co. who was dealing
with the said Suit No. 531 of 1981 for the plaintiffs died on November 15,
1990. On June 25, 1991, the suit appeared for scrutiny before the Senior
Master on the original side of the Calcutta High Court and an Assistant of
M/s. T. Banerjee & Co. appeared before the Senior Master and the matter was
adjourned to July 11, 1991. Mr. Khanna, Assistant of M/s. T. Banerjee & Co.
again appeared on behalf of the plaintiffs before the Senior Master on July
11, 1991 and prayed for time. Thereafter, on August 8, 1991 the suit again
appeared for scrutiny before the Senior Master and Mr. Sunil Mitra of M/s.
T. Banerjee & Co. appeared for the plaintiffs before the Senior Master and
prayed for three weeks time. The learned Advocate on behalf of M/s. Kabari
Pvt. Ltd. also appeared and the matter was adjourned till September 3,
1991. According to the plaintiffs. M/s T. Banerjee & Co. orally informed
the plaintiff on August 8, 1991 that the suit had appeared in the scrutiny
list. A letter to that effect was also written .by M/s. T. Banerjee & Co.
to the plaintiffs and according to the plaintiffs such letter was received
by the plaintiffs on August 14, 1991. After receiving oral information from
M/s. T. Banerjee & Co. the plaintiffs wrote on August 9, 1991 to M/s. T.
Banerjee & Co. that the plaintiffs had not been informed about the earlier
order passed on July 19, and July 14, 1982. In the said letter, the
plaintiffs expressed surprises and dissatisfaction as proper steps had not
been taken to effect amendment of the plaint. On September 3, 1991, the
said suit appeared for scrutiny before the Senior Master but since no
sitting had taken place on that date, the matter was preferred till
September 11, 1991. On September 11, 1991, M/s. T. Banerjee & Co. requested
the plaintiffs to call on their office for perusal of the draft application
prepared by the learned counsel and such application was affirmed. On
September 26, 1991, the suit appeared before the Senior Master but nobody
appeared for the plaintiffs. The learned Advocate appearing for M/s. Kabari
Pvt. Ltd. However, submitted that the suit should be directed to be placed
in the special list. Accordingly, an order was passed for placing the suit
in the special list. M/s. T. Banerjee & Co. wrote to the plaintiffs on
September 26, 1991, that the said suit appeared in the scrutiny list and
the same would be placed in the special list for scrutiny. On September 10,
1991, the plaintiffs affirmed an application for extension of time to carry
out the amendment and on October 10, 1991 such application was moved in
Court. It may be stated that M/s. T. Banerjee & Co. acted as Advocate on
Record for the plaintiffs in connection with the application for extension
of time to carry out the amendment. On December 20, 1991 M/s. T. Banerjee &
Co. informed the plaintiff that the application had been adjourned till
January 20,1991. The said application for extension of time to carry out
Amendment was, however dismissed by the Court on March 13, 1992. The
plaintiffs informed their Solicitors M/s. T. Banerjee & Co. on March 17,
1992 that the steps should be taken to prefer appeal. On May 27, 1992, an
appeal against order dated March 13, 1992 dismissing the application for
extension of time to effect amendment was filed. Such appeal was numbered
as appeal No. 410 of 1992. Oh June 18, 1992, the Registry of the High Court
issued notice to M/s. T. Banerjee & Co. informing that the suit should be
set down in the special list of the Hon’ble Judge taking interlocutory
matters from July 14, 1992. Such notice had been received by M/s. T.
Banerjee & Co. The suit appeared before the Court. M/s. Kabari Pvt. Ltd.
also appeared through the learned counsel and the suit was dismissed. It
may be mentioned here that the minutes of the Court proceeding indicate
that Mr. Ranjanam Guha, learned Advocate appeared for the plaintiffs. The
plaintiffs were also informed by M/s. T. Banerjee & Co. that the suit
appeared in the special list and the prayer for a direction that the suit
should go out of the special list was opposed by the defendants including
M/s. Kabari Pvt. Ltd. and the suit was dismissed. The plaintiffs instructed
M/s. T. Banerjee & Co. their Solicitors to prefer an appeal against the
order of dismissal of the suit. Appeal No. 619 of 1992 was filed against
the said order dated July 14, 1992 dismissing the suit. Both the said
appeals, namely, appeal No. 410 of 1992 appeal No. 619 of 1992 were,
however dismissed by a common judgment by the Division Bench of the
Calcutta High Court on February 16, 1993. At this stage the plaintiffs
changed their Solicitors and M/s. L.F. Aggarwala and Co. was engaged as
their Solicitors.
On April 17, 1993, the plaintiffs filed two special leave petitions before
this Court. Special leave petition (C) No. 8083 of 1993 was directed
against dismissal of the appeal No. 410 of 1992 arising out of the order
refusing to extend that time to effect amendment and Special leave petition
(C) No. 8084 of 1993 was directed against dismissal of the appeal No. 619
.of 1992 (which arose out of the order of dismissal of Suit No. 331 of
1981). It may be stated here that M/s. L.P. Agarwalla & Co. acted as
Advocates for the plaintiffs in both the said Special Leave Petitions. The
plaintiffs thereafter filed Review Petitions on June 17,1993 before the
Calcutta High Court for recalling the orders dismissing Appeals Nos. 410 of
1992 and 619 of 1992 and M/s. L.P. Agarwalla & Co. acted as Solicitors for
the plaintiffs/petitioners. It is to be noted here that the plaintiffs did
not mention in the Review Applications that this Court had already been
moved against the said orders of dismissal of the appeals by filing the
aforesaid special leave petitions. The plaintiffs did not make any attempt
to get the said special leave petitions taken up for hearing. On the
contrary, the learned counsel for the petitioners in the said special leave
petitions mentioned the matter on several occasions for adjournment. As a
result, the special leave petitions were not even listed for hearing on
several occasions. It was only after the Review Petitions were allowed by
the Calcutta High Court on March 18, 1994, the special leave petitions were
allowed to be dismissed as withdrawn on the prayer of the petitioners.
Mr. Nariman, learned senior counsel appearing for the petitioners in
Special leave petition (C) Nos. 6913-6914 of 1994 has very strongly
contended that the plaintiffs respondents Shivnath Shroff and others filed
the said Suit No. 531 of 1981 for specific performance of contract in the
High Court and on the prayer of the plaintiffs to amend the body of the
plaint and also the prayer portion, the High Court allowed the prayer as
far back as on July 9, 1982. On July 14, 1982-fresh writ of summons was
directed to be issued for service on Kabari Pvt. Ltd. The plaintiffs in an
attempt to delay the hearing of the suit and in furtherance of the evil
design in adopting dilatory tactics, deliberately failed and neglected to
take steps for effecting amendment of the plaint. The Suit appeared for
scrutiny before the Senior Master of the High Court (Original Side) on June
25, 1991 and thereafter on subsequent dates. But the plaintiffs did not
take steps for effecting amendment even then. Mr. Nariman has submitted
that even if it is accepted that Sri Debashish Mukherjee, Advocate and
partner of M/s T. Banerjee & Co. Solicitors was in charge of the said Suit
No. 531 of 1981 and he having died on November 15, 1990, appropriate steps
in effecting amendment of plaint could not be taken by the plaintiffs on
earlier occasions, there cannot be any reasonable explanation for the
failure on the part of the plaintiffs and their Solicitors in not taking
steps at least from June 25, 1991 when the matter started appearing on
various dates before the Senior Master for scrutiny. It is not the case
that because of death of Sri Mukherjee who was incharge of the said suit,
the Solicitors of the plaintiffs lost sight of the suit. The plaintiffs as
a matter of fact were represented either by an Assistant to the Solicitors
or by an Advocate appearing for the plaintiffs before the Senior Master.
Admittedly, the plaintiffs were informed by their Solicitors on August 8,
1991 that for not taking steps in effecting amendment, the suit was
appearing before the Senior Master for scrutiny. Even then, the plaintiffs
and their Solicitors were not at all diligent to take appropriate steps
immediately. It was only on September 30, 1991 an application for extension
of tune to carry out amendment was affirmed by the plaintiffs and only on
October 10, 1991 such application was moved in Court. The Court, however,
rightly rejected the said application on March 13, 1992 as the plaintiffs
failed to satisfy the Court about the bona fide of the plaintiffs in not
taking steps for effecting amendment from July, 1982, namely, for about 10
years. Mr. Nariman has submitted that the suit thereafter appeared in
‘Special List’. On July 14, when the suit appeared in ‘Special List’, Ms.
Ranjanam Guha, learned Advocate appeared for the plaintiffs. The Court
dismissed the suit for gross negligence on the part of the plaintiffs. Mr.
Nariman has submitted that it is quite evident that the Single Bench of the
High Court rejected the plea of the plaintiffs that there was no laches and
negligence on their part and for negligence and laches on the part of their
solicitors the plaintiffs should not be victimised.
Mr. Nariman has submitted that although special leave petitions are not
statutory appeals and exercise of jurisdiction under Article 136 of the
Constitution is discretionary with this Court, the fact remains that the
orders of dismissal of the appeals by the High Court were assailed before a
superior court by filing special leave petitions. From the judgment
disposing of the review applications, it does not appear that the attention
of the High Court was drawn that to the fact that prior to the filing of
review applications, special leave applications had been filed before this
Court and such applications had been pending disposal. Mr. Nariman has
submitted that if the petitioners had specifically stated in the review
petitions that this Court had already been moved by filing special leave
petitions and such applications were pending, in all probability, the High
Court would not have entertained the review applications for disposal on
merits. Pendency of two parallel proceedings for the same relief namely
setting aside the orders dismissing the said appeals – one before the Apex
Court by way of special leave petitions and the other before the High Court
by way of review applications cannot be encouraged because of the
possibility of inconsistent findings by the courts. Mr. Nariman has
submitted that review under Order 47 Rule 1 of the Code of Civil Procedure
must be construed in a wider sense keeping in mind the underlying principle
involved, that before making review applications, no superior court has
been moved for getting the self same relief. He has submitted that gross
injustice has been meted out to the defendants-petitioners by allowing
reviewing applications despite grossest negligence and laches on the part
of the plaintiffs in not carrying out the proceedings of the said suit
diligently but indulging in dilatory tactics. He, therefore, submits that
the special leave petitions should be allowed and impugned orders should be
set aside.
Mr. Sanghi the learned senior counsel appearing for M/s. Kabari Pvt. Ltd.
in the order two special leave petitions has supported Mr. Nariman in his
submission both on facts and law.
Mr. Sanghi has submitted that the plaintiffs-respondents cannot be
permitted to contend that they are not required to keep vigil about the
progress of the suit and carriage of the proceedings in connection with the
same. The plaintiffs are educated businessmen. They stay in Calcutta
itself. It is not the case of the plaintiffs that Sri Debashish Banerjee, a
partner of their solicitors T. Banerjee and Company who is stated to have
been dealing with their case in the High Court, had wrongly informed the
plaintiffs that all necessary steps for effecting amendment of plaint had
been taken and on such representation they had no occasion to cause any
enquiry in the matter. Mr. Sanghi has submitted that the letter dated
August 9, 1991 stated to have been written by the plaintiffs to their
solicitors T. Banerjee and Company on getting oral information from the
solicitors on August 8, 1991 that the suit had been placed in the scrutiny
list on account of failing to take steps in effecting amendment of the
plaint, should not be accepted to have been bona fide written on 9th
August. Such letter, according to Mr. Sanghi, was later on fabricated for
the purpose of showing that the plaintiffs solicitors had let them down by
keeping them in darkness about the progress of the suit. Mr. Sanghi has
very strongly contended that the role of the plainfiffs even when
admittedly they came to know that their solicitors miserably failed to take
proper steps in the carriage of proceedings in the suit and the solicitors
also failed to keep them informed about the developments of the suit, is
far from being satisfactory. The plaintiffs ought to have ensured either by
personally attending to the matter or by sending some of their officers,
that steps for enlarging the date for taking steps in effecting amendment
of plaint was taken immediately. It is an admitted position that the matter
appeared before Senior Master on a number of occasions and only on October
10, 1991 an application for extension of time was made by the plaintiffs,
which was rightly rejected by the Court.
Mr. Sanghi has also submitted that the plaintiffs did not change their
solicitors even when the application for extension of time was dismissed
and later on when the suit itself was dismissed. Admittedly the same
solicitors namely Messers T. Benerjee and Company were retained for
preferring both the said appeals. It was only when both the appeals were
dismissed by the High Court, the plaintiffs changed their solicitors and
Messers L.P. Agarwalla and Company was engaged at their solicitors. Mr.
Sanghi has submitted that such change was made designedly to put blames on
their previous solicitors and to make out a false case of alleged discovery
of some relevant facts relating to the steps taken by their previous
solicitors so that a case for filing review application may be made out.
Mr. Sanghi has submitted that M/s. Kabari Private Limited had purchased the
property long back. They are keen to get possession of the property. The
suit for eviction of the plaintiffs who are in possession of the disputed
property had been transferred to High Court because of the said title suit
instituted by the plaintiffs in the High Court claiming specific
performance of contract was pending in the High Court. Mr. Sanghi has
submitted that M/s. Kabari Private Limited has been suffering serious
prejudice on account of frivolous litigation and proceedings arising out of
it at the instance of the plaintiffs for prolonging their illegal
occupation of the suit property.
Mr. Sanghi has submitted that the plaintiffs knew well that there was no
case for review of the orders dismissing the said appeals. Hence, as a last
resort they preferred special leave petitions before this Court assailing
the orders dismissing the said appeals. He has submitted that in the facts
of the case, it is quite apparent that later on, applications for review
had been filed before the High Court on false and fabricated premises. In
the review petitions, the plaintiffs deliberately suppressed the fact that
they had already approached the Apex Court for assailing the orders of
dismissal of the appeals by preferring special leave petitions.
Mr. Sanghi has submitted that even though from the degree dismissing the
suit by the High Court, a litigant can not maintain an appeal as a matter
of right but an appeal certainly lies to this Court, subject to grant of
leave by the High Court or grant of special leave by this Court. He has
submitted that the expression “from which an appeal is allowed” appearing
in clause (a) of Order 47 Rule 1,C.P. Code must be construed liberally so
that appeal preferred before this Court by filing special leave petitions
to admit the appeal for assailing the judgment or order of a court inferior
to it operates as a bar to the maintainability of a review application
filed subsequently before the High Court for the same purpose namely for
assailing the impugned judgment. The salutary principle which bars two
parallel proceedings initiated before two different forums namely the court
which would review its own judgment and the superior court which would
consider the correctness of the said judgment would be defeated if the
expression appeal is allowed is given a narrow interpretation thereby
limiting it to an appeal which may be preferred as a matter of right
without requiring any leave to be granted for preferring such appeal. Mr.
Sanghi has submitted that the plaintiffs in this case have exercised option
to assail the impugned judgments by preferring appeals before this Court by
granting special leave instead of getting the said judgments reviewed by
the High Court. In such circumstances, the review applications must be held
as not maintainable and should be treated as dismissed. Mr. Sanghi has
submitted that the plaintiffs are guilty of a sharp practice in suppressing
the factum of presentation of the special leave petitions before this Court
prior to the filing of the review applications before the High Court by not
mentioning this important fact in the review applications. He has,
therefore, submitted that the impugned orders passed by the High Court in
allowing the review application should be dismissed with exemplary cost.
Mr. Salve, the learned Senior counsel appearing for the plaintiffs
respondents, however, refuted the contentions of both Mr. Nariman and Mr.
Sanghi. Mr. Salve has submitted that the suit was instituted in the
ordinary original jurisdiction of the Calcutta High Court. The High Court
has framed special rules of procedure for the carriage of the proceedings
in the suit instituted in the original side. Precisely for the said reason,
the service of a reputed solicitors firm namely Messers T. Banerjee and
Company was requisitioned by the plaintiffs. The Plaintiffs and their
predecessors had close association with Messers T. Banerjee and Company and
the plaintiffs had reposed trust and confidence in such firm in the matter
of carriage of the proceedings in the said suit. The court in its
experience can take notice of the fact that disposal of suit in the High
Court takes several years. Hence, it is neither necessary nor practicable
to cause enquiries every now and then about the progress of the suit.
Moreover when a reputed and experienced solicitors firm had been engaged by
the plaintiffs, there was enough justification on their part to depend on
such firm. The criticism that plaintiffs being educated businessman staying
in Calcutta itself should have ensured either by themselves or by their
officers that proper steps in the suit were being taken in the suit, is not
proper and justified. Mr. Salve has submitted that plaintiffs on coming to
learn that the suit was placed in scrutiny list for not taking proper steps
in effecting amendment expressed their shock and anguish for failure to
take appropriate steps in their letter dated August 9, 1991 addressed to
their solicitors. Because of the long association with the said firm the
plaintiffs did not change the solicitors and retained their services till
the hearing of the said appeals. But as it finally appeared to the
plaintiffs that solicitors were not only guilty of serious laches but were
no longer dependable, they change the solicitors firm and Messers L.P.
Agarwalla and Company were engaged as their solicitors. Mr. Salve has
submitted that all relevant facts could not be placed before the Court at
the time of disposal of the appeals. But with the change of the solicitors
and on obtaining further materials in possession of the old solicitors,
review applications had been made by drawing attention of the Court to the
facts and circumstances which amply demonstrated that the plaintiffs were
not guilty of laches and negligence but they fell victim to the laches and
negligence on the part of their previous solicitors and the Court, on
consideration of relevant facts, has felt that the unfortunate litigants
should not suffer for laches and negligence of their solicitors and keeping
the paramount consideration of ends of justice, allowed the review
applications. Mr. Salve has also submitted that although in the review
applications the factum of presenting the special leave petitions before
this Court was not specifically mentioned but he has mentioned that he is
instructed to submit that such fact was made known to the court before
disposal of the said review applications. He has submitted that the
allegations of sharp practice being resorted to by the plaintiffs and
deliberate suppression of material facts namely non disclosure of
presentation of special leave petitions before filing review applications
and pendency of such petitions are unfortunate and not correct out the same
have been made to cause prejudice against the plaintiffs respondents.
Mr. Salve has submitted that special leave petitions under Article 136 of
the Constitution stand entirely on a different footing. Exercise of
jurisdiction of this Court under Article 136 is absolutely discretionary
and not as a matter of course or must. In this connection, Mr. Salve has
referred to the decision of this Court in Collector of Central Excise v.
M/s Standard Motor Products, [1989] 2 SCC 303 wherein this Court has
indicated that jurisdiction exercised by this Court under Article 136 of
Constitution in the matter of granting leave to appeal before it being
discretionary, stands as a separate class. Mr. Salve has submitted that
application for special leave, therefore, cannot be equated with an appeal
as allowed since contemplated under Order 47 Rule l(a) C.P. Code as sought
to be contended. Mr. Salve has submitted that interpretation of procedural
law which debars availing court’s consideration for furtherance of the
cause of justice should be strictly construed. He has submitted that review
applications presented before the High Court after filing a special leave
petitions were maintainable and contentions to the contrary should not be
countenanced.
Referring to Order 6 to Rule 18 C.P. Code Mr. Salve has submitted that even
if it is assumed that the plaintiffs failed to bring about amendment of the
plaint within time, the suit should proceed with unamended plaint but
dismissal of the suit cannot be justified. Mrs. Salve has submitted
procedural law must be applied for furtherance of justice and not for its
hindrance. In the instant case the High Court felt that the suit should not
have been dismissed in the special facts of the case and therefore allowed
the review applications. Such order, in any event, does not call for
interference by this Court by granting special leave. He, therefore,
submits that special leave petitions should be dismissed.
Ms. Ganguli, learned senior counsel appearing for the plaintiff-respondents
in one of the appeals (arising out of S.L.P. No. 6914 of 1994) has also
refuted the contentions made by Sri Nariman and Sri Sanghi. He has strongly
contended that the suit of the plaintiffs did not deserve to be dismissed
on account of failure-by the solicitors to take appropriate steps in
effecting the amendment of the plaint. Mr. Ganguli has submitted that the
plaintiffs being not conversed with the special procedures in the carriage
of proceedings in the suit in the ordinary original civil jurisdiction of
the Calcutta High Court engaged a reputed firm of solicitors. It is evident
that the plaintiffs could not afford taking risk of getting the suit
dismissed by following dilatory tactics because the stake in the suit is
quite high for the plaintiffs. Mr. Ganguli has submitted that unfortunately
the appeals were dismissed by the High Court by not appreciating that the
laches and negligence were not directly attributable to the plaintiffs but
they fell victim to laches and negligence of their solicitors. He has also
submitted that after the change of the solicitors, the new solicitors found
other relevant facts and circumstances which not being made known to the
plaintiffs, could not placed for court a consideration earlier. Such facts
amply demonstrate the bonafide on the part of the plaintiffs in proceeding
with the suit. Mr. Ganguli has also submitted that the High Court even
though dismissed the appeals, considered such further materials in
disposing review applications and became satisfied that the dismissal of
the appeals was not warranted and the plaintiffs did not deserve to be
victimised. The review applications were accordingly allowed.
Mr. Ganguli has submitted that the Court has always an anxiety to ensure
that the justice does not get defeated in the vortex of technicality of
procedural law. Mr. Ganguli has also submitted that application for special
leave to appeal before this Court cannot be treated as preferring an appeal
for the purpose of Order 47 Rule 1 of the Code of Civil Procedure. He has
submitted that the remedy sought by making an application under Article 136
of the Constitution before this Court is an extra ordinary remedy and not a
remedy by way of preferring an appeal before this Court. In this
connection, Mr. Ganguli has referred to a decision of this Court in Laxman
Maratrao Navakhare v. Keshavrao, [1993] 2 SCC 270. In the said decision, it
has been held by this Court that Article 136(1) of the Constitution confers
on the Supreme Court overriding and extensive powers of granting special
leave to appeal. It does not confer a right to appeal. It confers a right
to apply for special leave to appeal which is in the discretion of the
Court. The discretionary power under Article 136 cannot be construed as to
confer a right of appeal where none exists. Although the power under
Article 136 (1) is unfettered, but is cannot be held that after having
entertained a special leave petition against any final or interlocutory
order, the Supreme Court converts itself into a court of appeal for the
hearing of the dispute involved.
Mr. Ganguli has submitted that as the special leave petition stands
entirely on a different footing and it cannot be deemed to be an appeal
before a superior court, the plaintiffs had justification in not mentioning
the factum of presenting special leave petitions before this Court in
review applications. Such non-disclosure of the factum of presenting
special leave petitions before filing the review applications, therefore,
cannot be held to be a sharp practice designed to keep back from the High
Court a relevant fact which was required to be considered in the context of
maintainability of the review application. Mr. Ganguli has submitted that
when the High Court became satisfied that gross injustice was meted out the
plaintiffs for laches and negligence not attributable to them and on such
considerations restored the appeal by allowing the review applications,
this Court, in its discretionary jurisdiction, should not interfere with
the impugned order more so when such order has advanced the cause of
justice instead of hindering the same. Mr. Ganguli has, therefore,
submitted that the appeals should be dismissed.
Having considered the facts and circumstances of the case and the orders
dismissing the appeals and also the impugned Judgment allowing the review
applications by the High Court and having given our anxious consideration
to the respective contentions of the learned Senior Counsel forcefully
placed before us, it appears to us that the plaintiffs failed and neglected
to take proper steps in the carriage of proceedings of the suit. The
plaintiffs failed Suit No. 531 of 1981 in the ordinary original civil
jurisdiction of the Calcutta High Court. An application for interim
injunction was made by the plaintiffs for restraining the defendants,
namely, the vendors of the suit property from dealing with or disposal of
the suit premises and on such application, an ad interim order was passed
in favour of the plaintiffs. On July 20, 1981, the interlocutory
application appeared as New Motion when the defendants appeared and
submitted before the High Court that the suit premises had already been
transferred to a third party, namely M/s Kabari Pvt. Ltd.. The defendants
(vendors) also disclosed to the Court that by four separate deeds of
conveyance all dated July 6, 1981, the suit premises had been conveyed to
Ms. Kabari Pvt. Ltd. As the property in question had been conveyed prior to
the institution of the suit, the plaintiffs felt the need to implead M/s
Kabari Pvt. Ltd. also as a defendant in the said suit and they made an
application for amendment of the plaint for incorporating facts not pleaded
and also for moulding the prayer. As far back as in July 1982, the Court,
after hearing the parties, allowed an application for amendment of the
plaint and restrained M/s. Kabari Pvt. Ltd. from alienating or encumbering
the disputed premises. Pursuant to the leave granted for amendment of the
plaint, a writ of summons was directed to be issued on July 14, 1982 to M/s
Kabari Pvt. Ltd. It may be noted here that M/s. Kabari Pvt. Ltd. instituted
a suit for eviction of the plaintiffs in the Court of learned Subordinate
Judge at Alipore because the plaintiffs were in possession of the disputed
property as tenants. In view of the pendency of the said Suit No. 531 in
the ordinary original civil jurisdiction of the Calcutta High Court wherein
the purchaser M/s Kabari Private Limited was restrained from alienating and
encumbering the disputed property, the suit for eviction was also
transferred to the High Court. Such suit is also pending in the High Court.
It is quite apparent, in the facts of the case, that the amendment which
was sought for by the plaintiffs was required to be incorporated otherwise
no effective relief could be given to the plaintiffs in the said suit No.
531 of 1981. For effective relief in the said suit, the transfer of the
disputed property in favour of M/s. Kabari Pvt. Ltd. is required to be set
aside. Otherwise, no decree for specific performance of contract for
selling the said property in favour of the plaintiffs can be passed. In the
aforesaid facts, the amendment of the plaint is essential for the
maintainability of the suit. The contention that the suit was not required
to be dismissed but the same may proceed without the amendment is
misconceived and without any substance.
Even if it is accepted that the plaintiffs having engaged a reputed firm of
solicitors had justification in proceeding with the view that the carriage
of proceedings required to be taken in the suit must have been taken
properly by their solicitors, there was no occasion for the plaintiffs to
depend on the solicitors when on August 8, 1991 the plaintiffs had
admittedly been informed by the solicitors that the suit had been placed in
the scrutiny list for not taking appropriate steps in effecting the
amendment during the long span of ten years. It is an admitted position
that the plaintiffs were not only fully aware of such gross laches and
negligence but according to the plaintiffs, they being aware of such laches
and negligence expressed shock and anguish for the inaction on the part of
their solicitors. After August 8, 1981 the said suit appeared before the
Senior Master of the High Court on a number of occasion but even then
application for extension of time for effecting amendment was not made by
the plaintiffs immediately. It is only on October 10,1991, such an
application was moved in Court but such application was rightly dismissed
by the Court on March 13, 1992. In our view, Mr. Nariman and Mr. Sanghi are
fully justified in contending that when the plaintiffs admittedly came to
know that their solicitors miserably failed to take appropriate steps in
the suit for which the suit was liable to be dismissed, even then they did
not take diligent steps.
The plaintiffs also did not change their solicitors even when the suit was
dismissed. On the contrary, they retained the solicitors for the purpose of
preferring the appeals, both against the order dismissing the application
for extension of time and also against the order of dismissal of the suit
itself. The contention of the learned counsel for the appellants that the
bogey of laches and negligence on the part of the solicitors of the
plaintiffs by keeping the innocent plaintiffs in darkness and alleged
discovery of further materials only after the change of solicitors has been
raised designedly, does not appear to be ill founded. It did not appeal to
the High Court that the plaintiffs became victim of the alleged laches and
negligence on the part of the solicitors and they had been kept in darkness
about such laches and negligence despite their best intention to be
diligent and sincere in the carriage of proceedings of the said suit. On a
clear finding that the plaintiffs were guilty of gross negligence in the
carriage of proceedings in the said suit, both the appeals preferred by the
plaintiffs appellants were dismissed by the Division Bench of the High
Court. It is quite apparent and evident that in view of clear findings of
the High Court about gross negligence and laches of the plaintiffs in
dismissing the said appeals. The plaintiffs, as a last resort, filed
special leave petitions before this Court and did not think of filing the
review applications.
Considering the facts of the case, we have no hesitation to hold that only
at a later stage, the plaintiffs filed the review applications before the
High Court on false and fabricated premises that after change of the
solicitors, they could come to .know about some relevant facts which could
not be placed before the High Court on earlier occasion and accordingly
review applications had been filed. It appears to us that at no point of
time, the plaintiffs intended to change the solicitors and the said
solicitors were retained not only for the purpose of preferring the appeals
but they continued to act as solicitors of the plaintiffs till appeals were
dismissed on contest. The contention of the appellants before us that the
plaintiffs designedly changed the solicitors to put forth false and
fabricated plea of discovery of some relevant materials only after change
of solicitors. In an attempt to make some ground for review applications,
is wholly justified. In our view, in any event, all relevant facts could be
known to the plaintiffs if they had intended to know such facts seriously.
There was also no impediment to change the solicitors earlier. In the facts
of the case, it appears to us that there was no genuine occasion for filing
the review applications. Such review application based on false and
fabricated premises deserved to be dismissed in limine. The impugned order
allowing the review applications has occasioned a grave failure of justice.
We, therefore, feel no hesitation in setting aside the impugned order on
merits by allowing the appeals.
In our view there is force in the contention of the learned counsel for the
appellants that the expression “from which an appeal is allowed” appearing
in Clause (a) of Order 47 Rule 1 of the Code of Civil Procedure, should be
construed liberally keeping in mind the underlying principle involved in
Order 47 Rule 1 (a) that before making the review applications no superior
court has been moved for getting the self same relief, so that for the self
same relief two parallel proceedings before two forum are not taken.
As we have held that applications for review are liable to be dismissed
even on merits, the question of maintainability of the said applications
for review before the High Court on account of filing the special petitions
assailing the review applications, need not be gone into by further
scrutiny as to whether application for leave to appeal under Article 136 of
the Constitution stand on such a separate footing that it should not be
treated to be an appeal as contemplated under Clause (a) of order 47 Rule
1 of the Code of Civil Procedure even for the purpose of giving liberal
construction to the expression “appeal allowed”. Such question, therefore,
is kept open to be considered in an appropriate Case. In the result, we set
aside the impugned order of the High Court allowing the review applications
by allowing these appeals with cost, assessed at Rs. 10,000 for each of
these appeals.
