Phool Chand Sharma and Others v. Chandra Shanker Pathak and Others

Ayyangar, J. that it left the compromise decree passed by the

Board in full force. It might however, be mentioned that the Zamindar immediately obtained possess-ion in execution of the decree of the Sub-Divisional officer, admitted one Data Ram and certain others as tenants and put them in possession of the property and this has led to all the subsequent complications in this case.

On the strength of 'the compromise decree Ram Prasad applied for restitution of possession under s. 14i of the Civil Procedure Code. This application was resisted particularly by Data Ram and others who had been inducted as tenants on the land, while the eviction proceedings were pending before the Additional Commissioner on appeal. The trial court allowed the application on the ground that Data Ram and others were bound by the rule of li8 penden8 and were not, therefore, entitled to retain the possession which they obtained during the proceedings for cjcctmcnt. From this order an appeal was taken hy Data Ram and others to the a<lditior.al co11unissioucr who, for reasons which 1t IS not necessary now to canvass, held that the newly inducted tenants could not be dispossessed and that Ram Prasad was entitled only to symbolical possess-ion as against the Zamindar. This order was taken to the Board in revision where, however, it was dismissed. It is to challenge the correctness of this order that this appeal has been liled.

Learned Counsel for the respondent raised two preliminary objections to the hearing of this appeal. The first objection was that this appeal was barred by res judicate. To understand thIS objection it is necessary to state a few more facts. When the Board 1962 of Revenue upheld the order of the Additional Phool Chand SAarma Commissioner declining the prayer of the appellants Y. for restitution they filed an application for review Chandra .Shanktr Patllak and when this was dismissed they brought the matter before the High Court by an application made to it Ayya11gar, J. under Art. 226 of the Constitution. The actual judgment rendered by the High Court is not on record but it was admitted before us by learned Counsel for the appellant that the High Court dis· missed the petition after elaborately discussing the merits of the contentions raised and on that ground Data Ram and others who had been let into posse-ssion by the Zamindar obtained a statutory right to possession 1mdcr the U. l'. Zamindari & Land Reforms Act, l!l50 and could not therefore be evicted by the application of the rule of lis pendens. No attempt was made by the appellant to prefer any appeal against this judgment by either applying to that court and obtaining a certificate of fitness or by moving this Court for the grant of special leave. The result is that there is now a decision of the High Court which has become final and binding on the parties. Learned Counsel for the respondent there-fore contends that without the correctness of the decision of the High C0urt being challenged before m and the finality of that judgment impaired, the appellant is not entitled to bypass that decision and :;eek lo practically obtain a reversal of it by attack-ing the correctness of the decision of the Board of Revenue.

We consider this preliminary objection well-founded. Learned Coumel for the respondent relied in support of his submission on the decision of this Court in D11ryao v. The State of U. P. ('). The question before the Court was whether, when the High·Court dismis~ed a writ petition under Art. 226 after hearing a matter on the merits on the ground that no fundamental right was proved or contravened

(I) [19S2j I s.C.R. s1• •.

1962 a subsequent petition to the Supreme Court under Phool ChiJnd •• SM.rma Art. 32 of the Constitution on the same facts and for

the same reliefs filed by the same party was permissi-Chandra SM.Ilk ble .. This Court held that where such a petition was

Pathak

heard on the merits and dismissed by the High Court ~,,..,.,, J. the decision pronounced was binding on the parties

unless it was modified or reversed in appeal or by other appropriate proceedings. If thus the rule of res judicata were a bar even to a petition under Art. 32 which is a Constitutionally guaranteed right, it looks to us that it would be afortiori so as regards an appeal under Art. 136 where the right to relief is discretionary.

Learned Counsel for the appellant invited our attention to the decision of this Court in G Jiandi Prasad Glwkhani v. State of Bihar (') as lying down a rule not quite so inflexible as the decision in Daryao's case would suggest, that it depended upon the facts of each case and that in a proper case dependent upon the discretion of the Court, this Court was competent to waive this rule and here the appeal notwithstanding that it meant that the decision of the High Court was bypassed. No doubt, there are a few observations of S. K. Das, J., who spoke for the Court which are capable of being understood in the manner suggested by learned Counsel but as ultimately the learned Judges upheld the preliminary objection and dismissed the appeal, these observa-tions are only by way of obiter and cannot outweigh the express decision on the point in Daryao's case. We might, however, point out that in Indian Aluminium Co. Ltd. v. Gommiss·ioner of Income-tax, West Bengal(') in which also the judgment was delivered by S. K. Das, J., the reasoning of the learned Judge who upheld a similar preliminary objection is more in line with the decision in Dary1w' s(3) case though the latter judgment which was delivered on the same day as in the Indian Aluminium Oo.'a case (') is not naturally referred to. The learned Judge observed :

(I) [19'2] 2 s.c,R. 275 a.a.a, (2) (1911) t31,T.R,$U, C3l .c1162J 1 57,, ·

"The question which has arisen in this appeal 19f2 by way of a preliminary objection is whether in PJw.l C,,...i Sharma the circumstances set out above-(no appeal v. was preferred against the order of the High Clwrdr• Sh.nker Potliak Court refusing to make a reference under s. 66(2) of the Income Tax Act)-special leave to appeal from the decision of the Tribunal dated May 29, 1956, was properly given under article 136 of the Constitution and whether the appellant is entitled to ask this Court to exercise its discretion under the said article when it did not move against the subsequent orders of the Board and the High Court under section 66 of the Act ..................... We hold that special leave to appeal from the decision of the Tribu-nal dated May 29, 1956, was not properly granted in this case and the appellant is not entitled to ask us to exercise our power under article 136 of the Constitution, when it did not move against the subsequent orders of the Board and the High Court."

This preliminary objection therefore has to be upheld.

The other preliminary objection raised was this.

The application for special leave filed by the apps:ll· ant was out of time and the delay in filing it was condoned by this Court without notice to the respon-dent. Learned Counsel sought to urge that there were no grounds for condoning the delay and that for this reason the leave granted should be revoked.

In view, however, of our decision on the first objec-tion raised we do not consider it necessary to deal with this.

The result is that the apueal failes and is dis· missed with costs.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 310 of 1960.

Appeal by special leave from the judgment and decree dated July 24, 1954, of the Board of Revenue (Uttar Pradesh) Allahabad, in Revision No. 20A of 1952/53.

8. P; Sinha and J.P. Goyal, for the appellants, N. N. Keswani, for respondent No. 2.

1962. December 7. The Judgment of the Court was delivered by

AYYJ.NGAR, ].-This is an appeal by special Ay;·an1ar, J. leave against an order of the Board of Revenue, Uttar Pradesh which declined to order restitution under s. 144, Civil Procedure Code in the following circumstances. The father of the 1st respondent was the Zamindar who filed a suit in the court of Sub-Divisional Officer, Tehsil Iglas at Aligarh for the eviction of Ram Prasad-father of the appellants from certain plots of land situated in village Kanchiraoli in the district of Aligarh. The suit was decreed and in execution of that decree the Zamindar took possession. Thereafter Ram Prasad filed an appeal to the Additional Commissioner but this was dismissed in November, 1944. He then preferred a further appeal to the Board of Revenue but before it came on for hearing the dispute was settled and on March 28 1948 an application was filed for recording this compromise. The term of the compromise which is of relevance to the present appeal is that Ram Prasad wa! to be re,cognised as tenant of the land in dispute; in other words, the order for eviction 1962 was nullified. The compromise was recorded and a Ph1ol Cha11d SliarmJ ciecree in terms thereof was passed. Some attempt

v. was made by the Zamindar to have the compromise C!JOJ1drt1 Shanker set aside on grounds which it is not necwary to

Pathak

mention, but these attempts failed with the result