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2008 (8) TMI 595 - SC - Indian LawsWhether the dismissal of a Revision Petition on the ground of delay would result in the merger of the order of the lower court with that of the High Court? Whether the High Court was right in holding that the order of the Board ceased to exist when the Revision was dismissed by the High Court and as such there was no scope to invoke Section 85(9) of the Act? Held that - Appeal allowed. The doctrine of merger would only apply in a case when a higher forum entertains an appeal or revision and passes an order on merit and not when the appeal or revision is dismissed on the ground that delay in filing the same is not condoned. Thus mere rejection of the revision petition on the ground of delay cannot be allowed to take away the jurisdiction of the Board, from whose order forms a subject matter of petition and Section 85(9) of the Act confers powers on the Board to reopen the case if such grounds for reopening the case are shown to exist. View expressed by the High Court to the effect that the order passed by the Board dated 13th of June, 1985 ceased to exist when the revision petition against the said order was rejected on the ground of delay only. Therefore, we are of the view that the order of the Board dated 13th of June, 1985 could not be merged with the order of the High Court passed in revision case
Issues Involved:
1. Whether the dismissal of a Revision Petition on the ground of delay results in the merger of the order of the lower court with that of the High Court. 2. Whether the High Court was right in holding that the order of the Board ceased to exist when the Revision was dismissed by the High Court and thus there was no scope to invoke Section 85(9) of the Kerala Land Reforms Act, 1963. Issue-wise Detailed Analysis: 1. Merger of Order on Dismissal of Revision Petition Due to Delay: The Supreme Court examined whether the dismissal of a Revision Petition on the ground of delay results in the merger of the lower court's order with that of the High Court. The appellants argued that the High Court's dismissal of the revision petition on the ground of delay did not amount to a confirmation of the Board's order dated 13th June 1985. The Court referred to the principle laid down in "Kunhayammed & Others Vs. State of Kerala & Anr. [(2000) 6 SCC 359]" which states that the principle of merger applies only if the revisional judgment is on merits. The Court also cited "Smt. S. Kalawati vs. Durga Prasad & Anr. [AIR 1975 SC 1272]" and "Shankar Ramchandra Abhyankar vs. Krishnaji Dattatraya Bapat [(1969) 2 SCC 74]" to emphasize that a dismissal on preliminary grounds does not constitute a decision on appeal. Therefore, the dismissal of the Revision Petition on the ground of delay did not result in the merger of the Board's order with that of the High Court. 2. High Court's Ruling on Ceasing of Board's Order and Scope of Section 85(9): The High Court had set aside the order of the Board, reasoning that the order dated 13th June 1985 ceased to exist as it merged with the High Court's order dismissing the revision. The Supreme Court disagreed with this view, stating that since the High Court dismissed the revision only on the ground of delay and not on merits, the Board's order did not merge with the High Court's order. The Court highlighted that Section 85(9) of the Kerala Land Reforms Act, 1963, empowers the Taluk Land Board to set aside its order and proceed afresh if specific grounds are satisfied. The Court found that the High Court failed to consider that the earlier revision was dismissed on the ground of delay and not on merits, thus the doctrine of merger did not apply. The Court emphasized that the Board retained jurisdiction under Section 85(9) to reopen the case. Conclusion: The Supreme Court concluded that the doctrine of merger applies only when a higher forum entertains an appeal or revision and passes an order on merits, not when the appeal or revision is dismissed due to delay. Therefore, the Board's order dated 13th June 1985 did not merge with the High Court's dismissal order, and the Board was entitled to reopen the case under Section 85(9) of the Act. The impugned judgment of the High Court was set aside, and the appeal was allowed with no order as to costs.
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