*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ R.A.No.253/09 with IA No.8652/09 & IA No.8653/09 in
CS(OS)1225/2008
% Date of decision: 20.07.2009
MR. RAKESH BHHATIA & ORS. ....... Plaintiffs
Through: Mr. P.V. Kapoor, Sr. Advocate with Mr.
Sachin Chopra, Mr. Kamal Bansal &
Ms. Chetna, Advocates.
Versus
MR. PRAMOD SHARMA & ORS ....... Defendants
Through: Mr. Ajay K. Jain, Advocate for
Defendant No.3.
Ms. Nasreen Hasan, Advocate for
Defendants No.4,5&7.
Mr. A.K. Singh with Mr. S.K. Singh,
Advocates for Defendants No.1,2,6&8.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment? Yes
2. To be referred to the reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
RAJIV SAHAI ENDLAW, J.
1. The application for review entails inter-aila the question of very maintainability of review after unconditional withdrawal of an appeal preferred against the order sought to be reviewed.
2. Review is sought of certain portions of the Order dated 21st April, 2009 disposing of the application of the plaintiffs/applicants under Order 39 Rule 1&2 of the CPC. The plaintiffs/applicants instituted the suit for permanent injunction restraining the defendants from selling certain shares of the plaintiff No.6 company. It is the case of the plaintiffs/applicants that the said shares were pledged/placed as security with the defendants for the loan advanced R.A.No.253/09 with IA No.8652/09 & IA No.8653/09 in CS(OS)1225/2008 Page 1 of 11 by the defendants to the plaintiffs. The defendants claim to be the purchaser of the shares. Interim relief of restraining the defendants from dealing with the shares was claimed. Vide order dated 21st April, 2009 the said application of the plaintiffs for interim relief was allowed, subject to the condition of the plaintiffs within 45 days depositing in this court the loan amount with interest at the rate pleaded by the plaintiffs, till the date of deposit, and further subject to the plaintiffs filing an undertaking in this court, to, in the event of failing in their case making good to the defendants the loss, if any, suffered by the defendants owing to the interim order aforesaid, and calculated on the difference between the sale price of the shares as on 11th July, 2008 and on the date of final decision of the suit. In the review grievance is made to allowing interest till the date of deposit and to the other condition of filing an undertaking.
3. The plaintiffs preferred an appeal being FAO(OS) No.252/2009 against the said order. The said appeal came up before the Division Bench of this court on 3rd July, 2009 when the following order was made:-
"After some arguments, learned senior counsel for the Appellant seeks leave to withdraw the Appeal. He, however, submits that the time for compliance of the order passed by the Vacation Judge, pertaining to deposit of Rs.75 lakhs with interest be extended upto14.7.2009. The time is extended accordingly. Dismissed as withdrawn."
4. It may be stated that the plaintiffs had filed IA No.7844/2009 in the suit seeking extension of time to deposit in terms of the order dated 21st April, 2009, on the ground that they had instituted the appeal aforesaid but the said appeal was likely to be listed in the first week of July, 2009. The said application came up before the Vacation R.A.No.253/09 with IA No.8652/09 & IA No.8653/09 in CS(OS)1225/2008 Page 2 of 11 Judge of this court on 5th June, 2009 when the time for deposit was extended till 6th July, 2009.
5. The application for review being otherwise barred by time is accompanied with IA No.8652/2009 for condonation of delay and IA No.8653/2009 for exemption from filing the certified copy of the order dated 21st April, 2009.
6. Section 114 of the CPC inter-alia allows review of decree or order or judgment "from which no appeal has been preferred". The same is the language of order 47 Rule 1 (1) (a). In view of the said provisions and in view of M/s Kabari Pvt. Ltd. Vs. Shivnath Shroff AIR 1996 SC 742 and Hari Singh Vs. S. Seth AIR 1996 Delhi 21 (DB), at the very outset query as to the maintainability of the review was raised.
7. The senior counsel for the plaintiffs/applicants has drawn attention to Badrunnisha Mohammad Sikadar Vs. Keshiben Jethalal Parmar 2000 AIHC 3589: MANU/GJ/0233/2000 wherein a single judge of the Gujarat High Court relying upon Thakur Singh Vs. Dinanath Sah AIR 1937 Pat 528 held that withdrawal of the appeal must be treated as if it had never been preferred within the meaning of Order 47 Rule 1 of the CPC and in view thereof held that it cannot be contended that review application is not maintainable for the reason of appeal having been preferred against the order sought to be reviewed. Reference in the said judgment is also made to Balling Vithaling Sakharpekar Vs. Shri Devasthan Fund (1931) 33 BOMLR 378 containing the observation that if a litigant who has filed an appeal wishes to apply for a review he may do so if he first withdraws his appeal; when there is no appeal on record he is entitled to the benefit of a fiction that none has been preferred. R.A.No.253/09 with IA No.8652/09 & IA No.8653/09 in CS(OS)1225/2008 Page 3 of 11 The Bombay High Court however held that the fiction was not available to the applicant in that case since an appeal in that case was actually on record. The senior counsel for the plaintiffs/applicants thus contended the review to be maintainable in the present case and also made submissions on merits of the review application. He also relied upon the judgment of the Patna High Court in Thakur Singh (Supra).
8. Per contra, the counsels for defendants referred to:-
a. Thungabhadra Industries Ltd. Vs. The Govt. of Andhra Pradesh AIR 1964 SC 1372 holding that the crucial date for determining whether or not the terms of Order 47 Rule 1(1) are satisfied is the date when the application for review is filed; if on that date no appeal has been filed it is competent for the court hearing the petition for review to dispose of the application on merits notwithstanding the pendency of the appeal, subject only to this, that if before the application for review is finally decided the appeal itself has been disposed of, the jurisdiction of the court hearing in the review petition would come to an end;
b. M/s Kabari Pvt. Ltd. (Supra) holding that the underlying principle involved in Order 47 Rule 1 (1)(a) is that before making the review application no superior court has been moved for getting self same relief so that for the self same relief two parallel proceedings before two forums are not taken;
c. Hari Singh (Supra) in which the Division Bench of this court held that there is no distinction between the R.A.No.253/09 with IA No.8652/09 & IA No.8653/09 in CS(OS)1225/2008 Page 4 of 11 disposal of appeal in limine or after notice or between the disposal of appeal with reasons and one without reasons; the dismissal of an appeal in limine precludes the court from whose order the appeal is preferred, from entertaining an application for review of the decree because it cannot be said in such a case that no appeal has been preferred within the meaning of Section 114 and Order 47 Rule 1 CPC; that a review application filed before an appeal is preferred cannot be taken up for consideration in case appeal against the judgment or order sought to be reviewed has been disposed of in limine before the review is disposed of;
d. U.P. Avas Evam Vikas Parishad Vs. Ravi Kumar Anand AIR 1995 SC 2076 holding that the High Court could not have re-opened the matter by way of a review petition when it was not permitted by the Supreme Court in Special Leave Petitions preferred against the order reviewed and effect of which review if permitted would be to disturb the finality of the earlier decision; e. Sree Narayana Dharma Sanghom Trust Vs. Swami Prakasananda AIR 1996 Kerala 203 holding that where the Special Leave Petition is dismissed by the Supreme Court, the order of the High Court merges with that of the Supreme Court and review by the High Court is not permissible;
f. M. Ramanamma Vs. Commissioner of Survey
Settlement & Land Records, Hyderabad
MANU/AP/0159/2000: 2000 AIHC 1851 where a Division Bench of the Andhra Pradesh High Court held that where R.A.No.253/09 with IA No.8652/09 & IA No.8653/09 in CS(OS)1225/2008 Page 5 of 11 the revision filed against the order of Board of Revenue was dismissed and the very same contentions were considered by the Government, the earlier order of the Board of Revenue merges with the later order of the Government and it would not be open to again review the order by the Board of Revenue, more so when the higher authority confirmed the order; the principle of merger was held to apply.
9. The counsels for the defendants have also referred to other judgments on the scope of review and on condonation of delay in applying for review but it is not felt necessary to burden this order with the same. The counsels for the defendants have also distinguished the judgment of the Gujarat High Court aforesaid. It is pointed out that in that case the Appellate Court had held that if the facts pointed out and urged in appeal were presented to the trial court in a review application, the applicant may be able to persuade the court to review the order impugned in the appeal and for this purpose withdrawal of the appeal was allowed.
10. The senior counsel for the plaintiffs/applicants has rejoined with the contention that none of the judgments aforesaid deal with the case of withdrawal of the appeal and argued that there can be no merger of the order sought to be reviewed with the order of the Appellate Court because there was no decision on merits. There is also considerable controversy as to whether the appeal was withdrawn for the reason of preferring the review application. While the senior counsel for the plaintiffs/applicants contends it to be so, the counsels for the defendants urged that the plaintiffs/applicants having failed to satisfy the Appellate Court on the admissibility of appeal, withdraw the same. It is also contended that the appellants R.A.No.253/09 with IA No.8652/09 & IA No.8653/09 in CS(OS)1225/2008 Page 6 of 11 had sought extension of time from the Appellate Court for "compliance" of the order sought to be reviewed and are now not entitled to apply for review thereof.
11. I find the language of Section 114 and Order 47 Rule 1 (a) of the CPC to be unambiguous. The same contains a bar to the maintainability of the review if an appeal has been "preferred" against the order sought to be reviewed. It is note worthy that the bar is not to the disposal of the appeal but to preference of an appeal. "Prefer" has been defined in Black's Law Dictionary, 6th Edition as "to bring before, to prosecute, to try, to proceed with, to give advantage, priority, to select for first payment, as to prefer one creditor over others." The Shorter Oxford Dictionary, 6th Edition defines "Prefer" as first in status, rank etc.; it is also defined as put in front or before. Thus, literally speaking, an appeal would be preferred, the moment it is instituted and mere institution of appeal would bar the review.
12. The Supreme Court in Manik Lal Majumdar Vs. Gouranga Chandra Dey (2005) 2 SCC 400 while relying on the aforesaid dictionary meaning of "Prefer", interpreted the same occurring in Section 20 of Tripura Buildings Lease and Rent Control Act as not barring the institution of the appeal but barring the prosecution thereof. The Rent Act in that case prohibited a tenant from preferring an appeal without making the requisite deposit of rent. The Supreme Court gave a purposive meaning to the word "Prefer" for the reason that if the said word was held to be barring the very institution of the appeal, the appeal may become time barred by the time the requisite deposit could be made.
13. The purposive interpretation however in relation to Section 114 and Order 47 Rule 1 (1) (a) is to vest the choice in the person R.A.No.253/09 with IA No.8652/09 & IA No.8653/09 in CS(OS)1225/2008 Page 7 of 11 aggrieved by the order, to either prefer an appeal or if the grievance is within the ambit of review, a review application. The legislative intent appears to have been against the aggrieved person pursuing two remedies.
14. Even if the definition of "Prefer" as adopted by the Supreme Court is to be applied i.e. it means prosecuting the appeal and not merely instituting the same in the facts of the present case it cannot be said that the plaintiffs/applicants did not prosecute the appeal.
15. In this regard, reference may also be made to Commissioner of Income Tax (Central) Vs. B.N. Bhattacharjee AIR 1979 SC 1725 where it was held that preferring an appeal means more than formally filing it, but effectively pursuing it; if a party retreats before the contest begins it is as good as not having entered the fray. In that case, there was a bar to the settlement commission's jurisdiction if an appeal had been preferred; though appeals had been filed but withdrawn before the application for settlement was made. The Supreme Court held that the word "Preferred" is a word of dual import, it's semantics depend on the scheme and the context. It's import must help, not hamper the object of the enactment even if liberty with language may be necessary.
16. The order of the Appellate Court in the present case records that leave to withdraw the appeal was sought by the plaintiffs/applicants "after some arguments". Thus it cannot be said that the plaintiffs/applicants did not prosecute the appeal. The plaintiffs/applicants not only filed the appeal but also engaged a senior counsel to address the Appellate Court and did address the Appellate Court in the appeal. It is common for counsels, when find themselves unable to convince the court, to withdraw the appeals/matters, to avoid the consequences of dismissal and/or of R.A.No.253/09 with IA No.8652/09 & IA No.8653/09 in CS(OS)1225/2008 Page 8 of 11 adverse findings. Such cases have to be distinguished from cases where only the mere administrative act of filing of the memorandum of appeal, may be to save limitation has occurred and where on further consideration it is deemed appropriate to opt for review; or where, even though the appeal gets listed before the court but without arguing/pressing the same, immediately a statement is made withdrawing the same. In such cases, it cannot be said that an appeal has been "preferred". Such cases have to be distinguished from cases where the party takes a chance before the Appellate Court and being unsuccessful withdraws the appeal. In those cases, it cannot be said that the appeal has not been prosecuted.
17. Though, I have not found any judgment of this court on the subject but I find that in a large number of cases viz. Subhash Behari Lal Vs. Union of India MANU/DE/7203/2007, Dalip Singh Vs. MCD 140 (2007) DLT 20, Yashwant Singh Negi Vs. Union of India MANU/DE/2310/2006 & R.K. Singhal Vs. The Engineering Projects (India) Ltd. MANU/DE/0100/2004, review applications were preferred after withdrawal of the appeals, but pursuant to liberty taken from the Appellate Court to prefer review. However, in the absence of such liberty having been taken from the Appellate Court, withdrawal of appeal after addressing some arguments would be a bar to a review. The courts, always pressed for time, allow withdrawal even after complete arguments, to utilize the time which would be taken in writing orders of dismissal, for some other case. If the Appellate Court feels that the appellant has at an initial stage only of the appeal opted or agreed to apply for review the Appellate Court would grant such liberty. However, if the time of the Appellate Court has been taken in attempting to persuade the court to admit the appeal or to issue notice thereof and only after failing to R.A.No.253/09 with IA No.8652/09 & IA No.8653/09 in CS(OS)1225/2008 Page 9 of 11 do so, withdrawal is sought, the Appellate Court may decline to grant such liberty to apply for review.
18. In the present case not only does the order of the Appellate Court not contain any prayer of the plaintiffs/applicants for liberty to apply for review to this court but seeking extension of time by the plaintiffs/applicants for compliance with the order of this court shows that there was no suggestion before the Appellate Court of applying for review before this court.
19. I thus find the applications for review to be not maintainable. Even, otherwise according to me, the application for review is barred by time and no ground in the circumstances aforesaid for condonation of delay is made out. Even on merits, no case for review is made out. The objection by the plaintiffs/applicants to the direction for deposit with interest till the date of deposit is misconceived. Though, the plaintiffs/applicants had on 20th October, 2008 offered to deposit the money with interest till that date and which offer was declined by the counsel for the defendants, the plaintiffs/applicants did not deposit the money in this court. The principles of Order 21 Rule 1 would apply in such a case. For a party to cease the running of interest, the party has to deposit the money in this court. Mere offer would not cease the running of interest in as much as the money remained in the pocket of the plaintiffs/applicants. Interest has been awarded at the rate pleaded by the plaintiffs/applicants themselves and when the plaintiffs/applicants continued to enjoy the benefit of the monies, no mistake or error or other reason is found in the order directing deposit with interest till the date of deposit in this court.
20. Similarly, the other condition was imposed to avoid any injury to the defendants by the interim order sought by the R.A.No.253/09 with IA No.8652/09 & IA No.8653/09 in CS(OS)1225/2008 Page 10 of 11 plaintiffs/applicants, in the event of the plaintiffs/applicants ultimately failing in their case. The plaintiffs/applicants claim to be the majority shareholder of the company whose shares are subject matter of dispute. The contention of the plaintiffs/applicants of the defendants rigging the price of the shares with a view to cause wrongful loss to the plaintiffs/applicants is found to be far fetched and no ground for review. Resultantly, all the applications are dismissed. The parties are left to bear their own costs.
RAJIV SAHAI ENDLAW (JUDGE) July 20th, 2009 PP R.A.No.253/09 with IA No.8652/09 & IA No.8653/09 in CS(OS)1225/2008 Page 11 of 11