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TMI Blog2016 (1) TMI 914X X X X Extracts X X X X X X X X Extracts X X X X ..... rtain such special leave petition. The said principle has gained the authoritative status and has been treated as a precedential principle for more than two decades and we are disposed to think that there is hardly any necessity not to be guided by the said precedent. - the appeal, being not maintainable, stands dismissed. - Decided against the appellant. - Civil Appeal No. 2687 of 2006 - - - Dated:- 22-1-2016 - Dipak Misra And Shiva Kirti Singh, JJ. JUDGMENT Dipak Misra, J. The present appeal is directed against the judgment and order dated 14.09.2004 passed by the Division Bench of the High Court of Judicature at Bombay in Notice of Motion No. 62 of 2004 in Review Petition (Lod) No. 6 of 2004 in Writ Petition No. 71 of 1993 whereby the High Court while dealing with an application of review has declined to condone the delay of 129 days in preferring the application for review and also opined that the application for review was totally devoid of merit. The expression of the said view led to dismissal of the application for review. 2. The facts lie in a narrow compass. The appellants filed an application for refund of excess provisional customs duty amounting to & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court to decline to exercise its Writ jurisdiction, even though the Petitioner has a right to obtain refund. This reasoning of ours is supported by the Full Bench decision of this Court in the case of New India Industries vs. Union of India reported in 1990 (1) B.C.R. 315, as well as the decision of the Apex Court in the case of Mafatlal Industries Ltd. (supra at para 95). In the present case, admittedly, the Petitioners have passed on the incidence of duty to the customers and have recovered the amount due to them. In this view of the matter, we decline to issue Writ in favour of the Petitioners. Being of the aforesaid view, the High Court dismissed the writ petition. An application for review was filed which met with its Waterloo being barred by limitation and also being devoid of substance. 6. Mr. Yashank Adhyaru, learned senior counsel for the respondents has raised a preliminary objection that the main order, that is, the order passed in the writ petition having not been assailed, the challenge only to the order passed in review is not tenable; and, therefore, the appeal deserves to be dismissed as not maintainable. 7. It is also contented by him that Section 27 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough the stipulations therein cannot control the exercise of the jurisdiction under Article 136 of the Constitution. 9. First we shall deal with the preliminary objection, for if we accept the same, the appeal would fail on the ground of maintainability and there will be no necessity to advert to the controversy on merits. 10. In Durga Shankar Mehta (supra), the Constitution Bench was dealing with a legal acceptability of the order passed by the Election Tribunal under Section 100(1)(c) of the Representation of the People Act, 1951. A preliminary objection was raised challenging the competency of the appeal. It was contended by the learned counsel for the respondent therein that Article 329(b) of the Constitution ousts the jurisdiction of all the ordinary courts in election disputes and provides expressly that no election to either House of Parliament or to either House of the Legislature of a State shall be called in question, except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate legislature, and therefore, there can be no challenge to the validity of an election except by way of an el ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ople Act, 1951. The preliminary objection raised therein has to be carefully appreciated. The submission was that the Supreme Court did not have jurisdiction to hear an appeal against the order of an Election Tribunal. In our considered opinion, the said authority does not lend any assistance to the principle which is sought to be canvassed by the learned counsel for the appellants, for there is discussion with regard to the plenary jurisdiction of this Court and ouster of jurisdiction by ordinary law. That apart, it has to be kept in mind that the subsequent decisions have opined that the special leave petition under Section 136 is not maintainable and they have not ignored the fundamental facet plenary jurisdiction of this Court. We will be dwelling upon the said aspect at a later stage while we will be adverting to the principle stated in the subsequent authorities. 12. In Thungabhadra Industries Ltd. (supra), the question arose whether the common order passed by the High Court of Andhra Pradesh rejecting the applications to review an earlier order by that court was correct on the facts of the case. The three-Judge Bench stated the facts, adverted to the concept of review jur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t an appeal against the order rejecting the application for review of a judgment and decree passed by the learned Single Judge is not appealable as appeal is not against the basic judgment. To arrive at the said conclusion, the Court has referred to Order XLVII Rule 7 of the Code of Civil Procedure, 1908 that bars an appeal against the order of the court rejecting the review. 15. In Suseel Finance Leasing Co. (supra), while dealing with the special leave petition preferred against the rejection of review petition without assailing the main judgment, the Court referred to the decision in Shanker Motiram Nale (supra) and concurred with the said view. In that context, the two-Judge Bench referred to the decisions in Green View Tea Industries v. Collector (2004) 4 SCC 122 and K. Rajamouli v. A.V.K.N. Swamy (2001) 5 SCC 37 and opined that:- We find that in these two cases the question whether a special leave petition was maintainable against an order rejecting a review petition, was not considered at all. In these cases, the question was whether special leave petition was barred by principles of res judicata. It was held that special leave petition was not barred by principl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent and order was not challenged before this Court. The challenge was to the order passed in the review petition. On behalf of the respondent, a preliminary objection was raised with regard to maintainability of the special leave petition. On behalf of the petitioner, reliance was placed on Eastern Coalfields Limited v. Dugal Kumar (2008) 14 SCC 295 wherein it has been observed:- It was submitted by the learned counsel for the appellant that when the review petition was dismissed, the order passed by the Division Bench in intracourt appeal got merged in the order of review petition. But even otherwise, when the order passed in the review petition is challenged, it would not be proper to dismiss this appeal particularly when leave was granted in SLP after hearing the parties. We, therefore, reject the objection raised by the writ petitioner. 20. The two-Judge Bench in Ripa Sarma (supra), while dealing with the said observations, opined that the decisions of this Court in Shanker Motiram Nale (supra), Suseel Finance Leasing Co. (supra) and M.N. Haider (supra) were not brought to the notice of the Court and, on that foundation proceeded to state as follows:- This ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s: (1) This is not referred to in the order now under appeal, and (2) the decision of this Court was not reported in any of the law reports - official or unofficial - till long after January 1961 when the petition for review was heard. It is manifest that neither of the two circumstances would by itself prove the untruth of the averment in the special leave petition. The learned Judges might well have thought that the decision had no material bearing on the only point that arose for consideration before them viz. whether their order of September 1959 was or was not vitiated by error of the sort which brought it within Order 47. Rule 1 of Civil Procedure Code. It is obvious that so viewed, it would not have any relevance. As regards the other point, the appellant did not have need to wait for a report of the case in the Law Reports but might very well have produced a copy of the judgment of this Court - and being a party to the proceeding here it is improbable that it had not a copy, so that its statement that it drew the attention of the Court to the decision is not proved to be false by the decision not being reported till long after January 1961. The oral application for revoking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inor premise consisting of the material facts of the case under immediate consideration. If it is not clear, it is not the duty of the court to spell it out with difficulty in order to be bound by it. In the words of Halsbury (4th edn., Vol. 26, para 573) The concrete decision alone is binding between the parties to it but it is the abstract ratio decidendi, as ascertained on a consideration of the judgment in relation to the subject matter of the decision, which alone has the force of law and which when it is clear it is not part of a tribunal s duty to spell out with difficulty a ratio decidendi in order to bound by it, and it is always dangerous to take one or two observations out of a long judgment and treat them as if they gave the ratio decidendi of the case. If more reasons than one are given by a tribunal for its judgment, all are taken as forming the ratio decidendi. Viewed in the backdrop of the factual score in entirety, we are of the considered opinion that decision in Thungabhadra Industries Ltd. (supra) has to be confined to the facts of the said case. 25. Earlier we have stated that we will refer to the principles stated in Durga Shankar Mehta s case (supra) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... down or take away the jurisdiction and powers conferred on the constitutional courts of the country. The decisions which we have referred to earlier deal about the maintainability of the challenge to the order of review when the main order is not assailed. The real test is even if the order passed in review is set aside, the order that is not challenged cannot be set aside. The decision in Eastern Coalfields Limited (supra) has been rightly opined in Ripa Sarma s case, has been rendered in ignorance of the earlier judgments of co-equal strength. That apart, we are inclined to agree with the view in Ripa Sarma (supra) wherein it has been observed that the submission with regard to the merger of the main order with the order in review has been merely noticed in Eastern Coalfields Limited (supra) and not accepted. Needless to state that when the prayer for review is dismissed, there can be no merger. If the order passed in review recalls the main order and a different order is passed, definitely the main order does not exist. In that event, there is no need to challenge the main order, for it is the order in review that affects the aggrieved party. The decisions pertaining to maintain ..... X X X X Extracts X X X X X X X X Extracts X X X X
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