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SUPREME COURT OF INDIA
KRISHNA MURARI, SANJAY KAROL, JJ.
S. Narahari & Ors. – Appellants
Versus
S.R. Kumar & Ors. – Respondents
Civil Appeal No. of 2023, Special Leave Petition (Civil) No. Of 2023 (Diary No. 23775 of 2022)
Decided on : 05-07-2023
(A) Constitution of India – Article 136 – Civil Procedure Code, 1908 – Order XLVII Rule 7 – Special Leave Petition – Maintainability of – Only after issue of maintainability is decided upon, can Supreme Court enter into merits of case – Issue of maintainability of Special Leave Petition is akin to a right of passage – Only after it is deemed that Special Leave Petition is maintainable, can an entry be taken into merits of a dispute – No appeal by way of Special Leave Petition against order passed in review is maintainable. (Paras 25, 26 and 28)
(B) Civil Procedure Code, 1908 – Section 11 – Constitution of India – Article 136 – Res Judicata – If a dismissal of Special Leave Petition by way of a non-speaking order is not considered law under Article 141 of Constitution of India, same also cannot be considered as res judicata and in every such dismissal, even in cases where dismissal is by way of a withdrawal, remedy of filing a fresh Special Leave Petition would still persist – If on said reasoning, remedy to file review in High Court is allowed, then same reasoning cannot arbitrarily exclude filing of a subsequent Special Leave Petition – Such an interpretation, if expanded beyond specific scope of filing a review in High Court is allowed, it would open floodgates of litigation and would essentially mean that every dismissal of Special Leave Petition must be accompanied with reasons declaring the same – Matter referred to Larger Bench for authoritative pronouncement. (Paras 39, 40 and 41)
Facts of the case:
Vide order and judgment dated 10.08.2007, High Court did not disturb finding of Trial Court regarding compromise decree being binding on respondents, however, in respect of additional relief of possession of part of suit property, matter was remanded to Trial Court, for proper adjudication.
Findings of Court:
To put a quietus to such an issue, it is necessary for same to be adjudicated and deliberated upon by a larger bench of this Court. Further, since only after such a preliminary objection is decided, can merits of present case be entered into, same is to be placed before an appropriate bench after the question of law is decided by the larger bench.
Result : Matter referred to Larger Bench.
JUDGMENT :
KRISHNA MURARI, J.
Delay condoned.
2. Leave granted.
3. The present appeals are directed against the impugned order and judgment dated 20.12.2019 in RFA No. 392 of 2012 (DEC) and impugned judgment and order dated 15.07.2022 in Review Petition No. 365 of 2022 passed by the High Court of Karnataka at Bengaluru, (hereinafter referred to as “High Court”), whereby, both, the Appeal and the review preferred by the appellants herein were dismissed.
4. The relevant facts necessary for the adjudication of the present appeals, for the sake of convenience, are being mentioned herein.
5. One Late Arosji Rao was the original owner of the suit property and had two daughters. The said Late Arosji Rao, before his death, executed a Will dated 17.07.1945, bequeathing the suit property to both of his daughters in equal share. In the said Will, among other things, it was stated that both the legatees were to enjoy the suit property during their entire lifetime, and thereafter, the same was to be transferred to their respective male heirs. The said late Arosji Rao subsequently died on 30.09.1945, and the abovementioned Will was probated.
6. The two daughters of the original owner Lt. Arosji Rao, Smt. Kamala Bai and Smt. Anusuya Bai, as joint owners of the bequeathed suit property, executed a lease deed in favour of one M/s Rajatha Trust for a period of 45 years. During the tenure of the said lease, on 07.07.1988, Smt. Kamala Bai passed away, and as per the Will of the original suit owner, part of the suit property was to flow to the heirs of Smt. Kamala Bai.
7. After the death of Smt. Kamala bai, a dispute arose between her heirs and Smt. Ansuya Bai, on account of which, Smt. Ansuya Bai, filed a suit for partition and possession of her part of the bequeathed suit property. The matter was however settled by both the parties, and a compromise decree was passed. It was agreed upon by both the parties to divide the suit property in equal shares.
8. Subsequent to the compromise decree, the sons of Smt. Ansuya Bai, who are the respondent No.1 and respondent No.2 herein, filed a suit against their mother and the sons of Late Smt. Kamala Bai, seeking mandatory injunction.
9. During the said suit, Smt. Ansuya Bai leased the suit property to the appellants herein for a period of 51 years. The appellants then started construction of a commercial complex on the suit property, however, the respondents, as against the said construction, got a stay order in their favour.
10. In the aforesaid suit, the Trial Court, apart from framing other relevant issues, also framed five additional issues which are as under :
I. Whether the plaintiffs prove that the defendant no. 1 has only life interest in the suit property?
II. Whether the plaintiffs prove that the defendant no. 1 has no right to deal with the suit property beyond her life time?
III. Whether the plaintiffs further proves that any leases, etc., of the suit property by the defendant no. 1 for the period beyond her life time are void and not binding upon them?
IV. Whether the defendant no. 7 proves that he has lawfully entered into an agreement of sale with defendant no. 2 and 3 for their respective portion of property?
V. Whether the defendant no. 7 proves that there will be miscarriage of justice if this suit is decreed against the entire schedule property?
11. Vide order and judgment dated 11.04.2002, the Learned Trial Court dismissed the suit filed by the respondents herein, vacated the stay order, and held that the compromise decree entered into between the parties is binding on the respondents.
12. Aggrieved by the same, the respondents preferred an appeal in the High Court. During the pendency of the said appeal, Smt. Ansuya Bai passed away. Further, the respondents also filed an application under Order VI Rule 17 of CPC for amendment of plaint and sought for a relief of recovery of possession of property.
13. Vide order and judgment dated 10.08.2007, the High Court did not disturb the finding of the Trial Court
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