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TMI Blog2017 (7) TMI 1385X X X X Extracts X X X X X X X X Extracts X X X X ..... doctrine and sustaining the order, dt. 24.11.2010, we reckon, will amount to this Court's clarifying-rather than interpreting-the Supreme Court's judgment. And it is inadvisable, nay impermissible. This Court cannot ignore the Supreme Court's express direction or observation on the supposed ground that it is either ambiguous or incongruent and decide a different course of adjudication - propriety demands this Court to advise either party to approach the Supreme Court and seek clarification if this Court has perceived any ambiguity in the direction, or if it has felt the order to be inherently contradictory - this Bench ignore a judicial directive-procedural though-of a coordinate Bench and take a different view ignoring the law-of-the-case principle to prevent miscarriage of justice. - M.F.A. Nos. 648 of 1996 and 1220 of 1997 - - - Dated:- 5-7-2017 - P.N. Ravindran And Dama Seshadri Naidu, JJ. For the Appellant : M.S. Breeze, Sr. Government Pleader, Philip T. Varghese and K.V. Sohan, State Brief. For the Respondents : S. Karthika, Adv. and P.B. Krishnan, Amicus Curiae. JUDGMENT Dama Seshadri Naidu, J. Background: 1. The petitioner, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring and disposal as per roster. The common order thus passed reads: Having carefully gone through Annexure A order passed by the Honourable Supreme Court of India and having heard the submissions of Smt. S. Karthika, learned counsel appearing for the review petitioners and Sri. V.T.K. Mohanan, learned Senior Government Pleader, we are convinced that under Annexure A order, the judgment dated 11.12.2002 in M.F.A.120/1997 and the judgment dated 17.12.2002 in M.F.A No. 648/1996 passed by this Court have been set aside. According to us it can be construed that both these M.F. As have been relegated by the Apex Court for fresh consideration by this Court. In that view of the matter, we find that these review petitions are unnecessary and accordingly, we close these Review Petitions. Post both the M.F. As before appropriate bench as per roster for fresh hearing and disposal. (emphasis added) 7. From the above common order, we gather that the learned Division Bench has concluded-rightly, in our respectful opinion -that the Supreme Court set aside the judgment dated 11.12.2002 in M.F.A. No. 1220 of 1997 and the judgment dated 17.12.2002 in M.F.A. No. 648 of 1996. But th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments, the Government, aggrieved, filed appeals before this Court. This Court allowed the appeals in part. The contractor approached the Supreme Court impugning only the adverse parts of the judgments. The Supreme Court, first, set aside the impugned judgment and, then, gave liberty to the appellant to file Review Petitions before this Court. The appeals thus resurfacing, a Division Bench felt the reviews to be unnecessary and ordered fresh hearing of the appeals. 14. The questions to be addressed are these: (1) Can this Court ignore the Supreme Court's express direction or observation on the supposed ground that it is either ambiguous or incongruent and decide a different course of adjudication? (2) Does not propriety demand this Court to advise either party to approach the Supreme Court and seek clarification if this Court has perceived any ambiguity in the direction, or if it has felt the order to be inherently contradictory? (3) Can this Bench ignore a judicial directive-procedural though-of a coordinate Bench and take a different view ignoring the law-of-the-case principle? Discussion: What Was Impugned Before the Supreme Court? 15. The subject o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ]-Bryan A. Garner, et al., have elaborately treated this principle. 21. The law-of-the-case doctrine is said to come in at least two forms. One form, also called the mandate rule, forestalls relitigation in the trial court of matters that were explicitly or implicitly decided by an early appellate decision in the same case. Once an appellate court decides an issue, then it is settled in further proceedings in the trial court and controls the case. The other form generally binds a court to its own earlier ruling in the same case- in the absence of an intervening ruling by a higher court on the same issue [The Law of Judicial Precedent, Bryan A. Garner et al., Thomson Reuters (2016), p.442]. This doctrine wants the courts to display disciplined self-consistency throughout the case. It distinguishes itself from res judicata (for instance, Section 11 of CPC) and 'issue estopple' (as seen in Order 2, Rule 2 of CPC), both of which are much more rigid and offer no much leverage. 22. In fact, this doctrine, not an iron-clad one, has three exceptions: to address new evidence, to deal with a change in controlling legal authority, and to prevent a miscarriage of justice. [Id, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (c) orders concern those that bind the 'same' court at later stages, precluding it from reconsidering the decision. Arjun Singh observes that [e]ven if the rule of res judicata does not apply, it would not follow that on every subsequent day which the suit stands adjourned for further hearing, the petition could be repeated and fresh orders sought on the basis of identical facts. Arjun Singh says illustratively that if an application for the adjournment of a suit is rejected, a subsequent application for the same purpose, even if based on the same facts, is not barred on the application of any rule of res judicata, but would be rejected for the same grounds on which the original application was refused. 27. Here Arjun Singh felicitously distinguishes between estoppel and rejection for lacking new material: if the principle of res judicata is applicable to the decision on a particular issue of fact, even if fresh facts were placed before the Court, the bar would continue to operate and preclude a fresh investigation of the issue; whereas in the other case, on proof of fresh facts, the court would be competent, and may be bound, to take those into account and order con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. It behoves well for us to refer to them and appreciate their precedential application. 34. In Commissioner of Sales Tax, U.P. V Vijai International Udyog, (1984) 4 SCC 543 an appellate authority's decision under the Income Tax Act was challenged before the Tribunal, both by the assessee and the Department. The Tribunal first took up the assessee's appeal and dismissed it. It became final. Later, the Tribunal took up the Department's appeal and allowed it partly. 35. The High Court of Allahabad, in this context, has observed that once the Tribunal decided the appeal filed by the assessee, the doctrine of merger applied. And the impugned judgment stood merged in the Tribunal's judgment. Later, when the appeal filed by the Department was allowed, the Tribunal was interfering in effect with its own previous order. The Tribunal is incompetent to do that, held the High Court. 36. The matter taken in appeal, the Supreme Court agreed with High Court's view that the Tribunal should have taken up both the appeals together. But on the facts, the Court has held that the doctrine of merger did not apply. Both the assessee and the Department had a statutory right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of fact or an issue of mixed law and fact decided by a competent Court and finally determined between the parties cannot be reopened between them in another proceeding. (c) The previous decision on a matter in issue alone is res judicata: the reasons for the decision are not res judicata. (d) Matter in issue between the parties is the right claimed by one party and denied by the other, and the claim of right from its very nature depends upon proof of facts and application of the relevant law to it. (e) A pure question of law unrelated to facts which give rise to a right cannot be treated as a matter in issue. (f) If a previous decision is res judicata, it is meant that the right claimed has been adjudicated upon and cannot again be placed in contest between the same parties. (g) A previous decision of a competent Court on facts which give rise to the right and on the relevant law applicable to the transaction is res judicata. (h) If a previous decision on a matter in issue is a composite decision: the decision on law cannot be dissociated from the decision on facts on which the right is founded. (i) A decision on an issue of law applies as res judicata in a la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... serve, to affirm the findings, it is customary for the Court to grant leave to appeal and thereafter dismiss the appeal itself (and not merely the petition for special leave). But, at times, the orders granting leave to appeal and dismissing the appeal are contained in the same order and, at times, the orders are quite brief. Still the order reflects the Court's applying its appellate jurisdiction and subjecting to judicial scrutiny the merits of the order impugned. 43. In Khoday Distilleries Ltd. V. Mahadeswara S.S.K. Ltd., (2012) 12 SCC 291, the Supreme Court has surveyed much of the case law generated by itself on the principle of merger. After noticing decisional contradictions, it has referred the matter to a larger Bench. We may, now, briefly touch on those decisions discussed in Khoday Distilleries. 44. If a litigant files a review petition before his filing the special leave petition, and if the review petition remains pending till the Supreme Court dismisses the special leave petition, the High Court needs to consider the review petition. So holds the Supreme Court in Meghmala v. G. Narasimha Reddy, (2010) 8 SCC 383. On the other hand, if the party files the revi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... illeries noticed the decisional cleavage: in K. Rajamouli (2001) the Court followed Kunhayammed (2000) and distinguished Abbai Maligai (1998). But in Gangadhara Palo (2011), the later Bench did not accept the view expressed in K. Rajamouli. To this extent, there is, noted Khoday Distilleries, some conflict between the judgments in Gangadhara Palo and K. Rajamouli. This cleavage called for definitive resolution by a larger Bench. Accordingly, Khoday Distilleries has referred the matter to a larger Bench. As of today, the referred matter, Khoday Distilleries, is pending. The Interpretative Intricacy: 50. Without conceptually conflating the doctrine of merger and that of the law of the case, we will explore the options available to us. From the Supreme Court's Order, dt. 10.11.2009, two things emerge: (1) The judgment impugned was set aside; (2) the appellant before the Supreme Court was allowed to file a review. If we observe on facts, first, the contractor had the awards in his favour. Second, before the Civil Court, the Government failed-the awards stood confirmed. The Government appealed further to this Court. It was partly successful: the Civil Court's judgments wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... closed by another coordinate Bench, or hear the appeals afresh as directed by the coordinate Bench. This, again, amounts to our ignoring the Supreme Court's Order. In our respectful view, neither is permissible, for it breaches Article 141 of the Constitution. 55. Second, we should disregard the coordinate Bench's direction issued on 24.11.2010, reopen the review petition, and proceed further. But this course contradicts the common-law doctrine: law of the case. Indeed, as we have already observed the law-of-the-case doctrine is not iron clad. Applying the doctrine and sustaining the order, dt. 24.11.2010, we reckon, will amount to this Court's clarifying-rather than interpreting-the Supreme Court's judgment. And it is inadvisable, nay impermissible. 56. After much cogitation, we felt it inadvisable to indulge in any judicial adventurism. Then, the course left open for us is this: directing either party to approach the Supreme Court and obtain the necessary clarification, for it is that court which passed the order has the means and eminence to clarify what it meant. So we do. The parties to these appeals may approach the Apex Court to have the Order, dt. 10.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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