# Dalmir Singh (deceased) and others v. Deputy Director of Consolidation, and others

- **Citation:** (2010) 3 ILRA 1392
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-12-23
- **Case number:** Civil Misc. Recall Application No. 295626 of 2007
- **Bench:** Krishna Murari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dalmir-singh-deceased-and-others-v-deputy-director-of-consolidation-and-others-41815
- **Pages:** 6

## Headnote

U.P. High Court, (Amalgamation) order
1948, Section 14-Second Proviso-Writ
Petition challenging the order passed by
D.D. Pratapgarh dismissed by Allahabad
High Court against that S.L.P. also
dismissed-considering
principle
of
merger whether recall application be
rejected ? held-'No' reasons discussedrecall
application
allowed-Petition
restored on its original number-office to
remit the original record before Lucknow
Bench

Held: Para 15 and 16

From the pronouncement of the Hon'ble
Apex Court, it is clear that dismissal at
the stage of special leave by nonspeaking order does not constitute resjudicata and does not culminate in
merger of the impugned decision and
hence it would not by itself preclude the
aggrieved party from invoking review
jurisdiction. The Hon'ble Apex Court has
clarified that rejection of special leave
petition without notice even if the order
is reasoned or speaking also does not
culminate in merger of the impugned
decision. In the light of the above ratio
laid down by the Hon'ble Apex Court, the
order passed in special leave petition
being an order of dismissal simplicitor in
as much as the Hon'ble Apex Court
simply refused to grant leave to convert
petition into appeal hence the doctrine
of
merger
is
not
attracted
for
application.

In
view
of
the
above
facts
and
discussions and the settled law on the
subject, the dispute in the present writ
petition clearly falls within the territorial
jurisdiction of Lucknow Bench of this
Court hence the writ petition was
wrongly entertained and disposed of by
this Court.
Case law discussed:
AIR 1972 (All) 200, AIR 1975 SCC (2) 671, JT
2009 (9) SC 110, 2004 (1) SCC 497

## Text

1392 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

30. In the result, the petition is,
accordingly, dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.12.2010

BEFORE
THE HON'BLE KRISHNA MURARI, J.

Civil Misc. Recall Application No. 295626 of 2007

Dalmir Singh (deceased) and others

 ...Petitioners
Versus
Deputy
Director
of
Consolidation,
Pratapgarh and others ...Respondents

Counsel for the Petitioners:
Sri Rajiv Mishra
Sri A.A. Siddiqui
Sri D.S. Chauhan
Sri Krishan Pal Singh
Sri M.P. Sinha
Sri Rajeev Singh
Sri VM. Zaidi

Counsel for the Respondents:
Sri N.A. Kazmi
Sri A.A. Kazmi
Sri M.N. Bokhari

U.P. High Court, (Amalgamation) order
1948, Section 14-Second Proviso-Writ
Petition challenging the order passed by
D.D. Pratapgarh dismissed by Allahabad
High Court against that S.L.P. also
dismissed-considering
principle
of
merger whether recall application be
rejected ? held-'No' reasons discussedrecall
application
allowed-Petition
restored on its original number-office to
remit the original record before Lucknow
Bench

Held: Para 15 and 16

From the pronouncement of the Hon'ble
Apex Court, it is clear that dismissal at
the stage of special leave by nonspeaking order does not constitute resjudicata and does not culminate in
merger of the impugned decision and
hence it would not by itself preclude the
aggrieved party from invoking review
jurisdiction. The Hon'ble Apex Court has
clarified that rejection of special leave
petition without notice even if the order
is reasoned or speaking also does not
culminate in merger of the impugned
decision. In the light of the above ratio
laid down by the Hon'ble Apex Court, the
order passed in special leave petition
being an order of dismissal simplicitor in
as much as the Hon'ble Apex Court
simply refused to grant leave to convert
petition into appeal hence the doctrine
of
merger
is
not
attracted
for
application.

In
view
of
the
above
facts
and
discussions and the settled law on the
subject, the dispute in the present writ
petition clearly falls within the territorial
jurisdiction of Lucknow Bench of this
Court hence the writ petition was
wrongly entertained and disposed of by
this Court.
Case law discussed:
AIR 1972 (All) 200, AIR 1975 SCC (2) 671, JT
2009 (9) SC 110, 2004 (1) SCC 497

(Delivered by Hon'ble Krishna Murari, J.)

1. This is an application with a prayer
to recall the judgment and order dated 1st
May, 2007 passed by this Court dismissing
the writ petition. The basic ground taken in
the recall application is that since the
dispute pertains to district Pratapgrah which
falls within the territorial jurisdiction of
Lucknow Bench of this Court as such the
order passed is without jurisdiction and
liable to be recalled.

2. Writ petition was filed for a writ of
certiorari against the order of Deputy
Director of Consolidation, Pratapgarh and
3 All] Dalmir Singh (deceased) and others V. Deputy Director of Consolidation, and others 1393
was entertained at Allahabad and was
finally decided.

3. It is contended that since there was
no order as contemplated by second proviso
to Article 14 of the U. P. High Courts
(Amalgamation) Order 1948 hence writ
petition
pertaining
to
jurisdiction
of
Lucknow Bench of this Court could neither
have been entertained muchless decided by
this Court. In support of the contention,
learned counsel for the petitioner has relied
upon Full Bench decision of this Court in
the case of Nirmal Dass Kathuria Vs. State
Transport (Appellate) Tribunal, U. P.,
Lucknow, AIR 1972 (All) 200, wherein
following questions were referred for the
opinion of the Full Bench:

1.Can a case falling within the
jurisdiction of the Lucknow Bench of this
Court be presented at Allahabad ?

2.Can the Judges sitting at Allahabad
summarily dismiss a case presented at
Allahabad pertaining to the jurisdiction of
the Lucknow Bench.

3.Can a case pertaining to the
jurisdiction
of
the
Lucknow
Bench,
presented and entertained at Allahabad, be
decided finally by the judges sitting at
Allahabad, without there being an order as
contemplated by the second proviso to
Article 14 of the U. P. High Courts
(Amalgamation) Order, 1948 ?

4.What is the meaning of the
expression "in respect of cases arising in
such areas in Oudh" used in the first
provision to Article 14of the High Courts
(Amalgamation) Order, 1948 ? Has this
expression reference to the place where the
case originated or to the place of sitting of
the last court or authority whose decree or
order is being challenged in the proceeding
before the High Court ?

5.Whether this writ petition can be
entertained and heard by the Judges sitting
at Lucknow ?

4. The Full Bench by majority
answered the aforesaid questions as follows:

"Question no. 1. A case falling within
the jurisdiction of the Judges at Lucknow
should be presented at Lucknow and not at
Allahabad".

"Question No. 2. However, if such a
case is presented at Allahabad the Judges at
Allahabad cannot summarily dismiss it only
for that reason. The case should be returned
for filing before the Judges at Lucknow, and
where the case has been mistakenly or
inadvertently entertained at Allahabad a
direction should be made to the High Court
office to transmit the papers of the case to
Lucknow."

"Question No. 3. A case pertaining the
jurisdiction of the Judges at Lucknow and
presented before the Judges at Allahabad
cannot be decided by the Judges at
Allahabad in the absence of an order
contemplated by the second proviso to
Article 14 of the of the U. P. High Courts
(Amalgamation) Order, 1948."

5. In so far as findings returned on
questions no. 4 and 5 are concerned, they
are not relevant for the purpose of the
present case.

6. The findings given by the Full
Bench of this Court on three questions have
been affirmed by the Hon'ble Apex Court in
the case of Nasiruddin Vs. State Transport
Appellate Tribunal, AIR 1975 SCC (2)
1394 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
671. The Hon'ble Apex Court has observed
as under:

"37. To sum up, our conclusions are as
follows. First, there is no permanent seat of
the High Court at Allahabad. The seats at
Allahabad and at Lucknow may be changed
in accordance with the provisions of the
Order. Second, the Chief Justice of the High
Court has no power to increase or decrease
the areas in Oudh from time to time. The
areas in Oudh have been determined once
by the Chief Justice and, therefore, there is
no scope for changing the areas. Third, the
Chief Justice has power under the second
proviso to paragraph 14 of the Order to
direct in his discretion that any case or class
of cases arising in Oudh areas shall be heard
at Allahabad. Any case or class of cases are
those which are instituted at Lucknow. The
interpretation given by the High Court that
the word "heard" confers powers on the
Chief Justice to order that any case or class
of cases arising in Oudh area shall be
instituted or filed at Allahabad instead of
Lucknow is wrong. The word "heard"
means that cases which have already been
instituted or filed at Lucknow may in the
discretion of the Chief Justice under the
second proviso to paragraph 14 of the Order
be directed to be heard at Allahabad.
Fourth, the expression "cause of action"
with regard to a civil matter means that it
should be left to the litigant to institute cases
at Lucknow Bench or at Allahabad Bench
according to the cause of action arising
wholly or in part within either of the areas.
If the case of action arises wholly within
Oudh areas then the Lucknow Bench will
have jurisdiction. Similarly, if the cause of
action arises wholly outside the specified
areas in Oudh then Allahabad will have
jurisdiction. If the cause of action in part
arises in the specified Oudh areas and part
of the cause of action arises outside the
specified areas, it will be open to the litigant
to frame the case appropriately to attract the
jurisdiction either at Lucknow or at
Allahabad. Fifth, a criminal case arises
where the offence has been committed or
otherwise as provided in the Criminal
Procedure Code. That will attract the
jurisdiction of the Court at Allahabad or
Lucknow. In some cases depending on the
facts
and
the
provision
regarding
jurisdiction, it may arise in either place."

"38. Applications under Article 226
will similarly lie either at Lucknow or at
Allahabad as the applicant will allege that
the whole of cause of action or part of the
cause of action arose at Lucknow within the
specified areas of Oudh or part of the cause
of action arose at a place outside the
specified Oudh area."

"39. The answers given by the High
Court to the first three questions are correct
save as modified by our conclusions
aforesaid."

"40. The answer given by the High
Court to the fourth question is set aside. The
meaning of cases arising in Oudh areas will
be found by appropriate courts in the light
of this judgment."

"41. The answer to the fifth question is
discharged. The matters are sent back to the
High Court for disposal in accordance with
this judgment."

7. Admittedly, in the present case the
property in dispute is situate in district
Pratapgarh which falls within the territorial
jurisdiction of the Lucknow Bench of this
Court.

8. Challenge has been made to the
orders
passed
by
the
consolidation
3 All] Dalmir Singh (deceased) and others V. Deputy Director of Consolidation, and others 1395
authorities
i.e.
Consolidation
Officer,
Deewanganj, Pratapgarh, Settlement Officer
Consolidation, Rampur camp at Pratapgarh
and Deputy Director of Consolidation,
Pratapgarh. Thus, the entire dispute pertains
to district Pratapgarh which, admittedly,
falls within the territorial jurisdiction of
Lucknow Bench of this Court and it cannot
be even remotely said that any part of the
cause of action arose at Allahabad so as to
confer jurisdiction upon this Court to
entertain and decide the petition.

9. In reply, it has been submitted that
there was no lack of inherent jurisdiction
and mere lack of jurisdiction would not
vitiate final judgment passed by this Court
particularly when the petitioners themselves
chose the forum to challenge the order of
the consolidation authorities. It has further
been submitted that the judgment and order
of this Court, sought to be recalled by the
present application, was challenged by
filing special leave petition before the
Hon'ble Apex Court which was dismissed
on 31.8.2007 and as such judgment of this
Court merged with the order passed by the
Hon'ble Apex Court, hence the same cannot
be recalled.

10. I have considered the arguments
advanced by the learned counsel for the
parties and perused the record.

11. Undoubtedly, special leave
petition filed against the judgment of this
Court, sought to be recall, was dismissed
vide order dated 31.8.2007. The order of
the Hon'ble Supreme Court is quoted
hereunder:

"Heard.

No merit. The special leave petition is
dismissed."

The
issue
which
arises
for
consideration is that whether the order of
the Hon'ble Apex Court dated 31.8.2007
amounts to affirmation of the judgment and
order dated 1.5.2007 passed by this Court
taking away the jurisdiction to entertain a
prayer for recall of the order.

12. In Kunhayammed & Ors. Vs.
State of Kerala & Anr., JT 2009 (9) SC
110, the Supreme Court examined the
doctrine of merger when a Special Leave
Petition is dismissed either by a nonspeaking order or a speaking order and
when a Civil Appeal is dismissed with a
speaking order or a non-speaking order.
Considering the doctrine or merger and the
right of review, it was observed by the
Supreme Court as under :

"The doctrine of merger and the right
of review are concepts which are closely
inter-linked. If the judgment of the High
Court has come up to this Court by way of a
special leave, and special leave is granted
and the appeal is disposed of with or
without
reasons,
by
affirmance
or
otherwise, the judgment of the High Court
merges with that of this Court. In that event,
it is not permissible to move the High Court
by review because the judgment of the High
Court has merged with the judgment of this
Court. But where the special leave petition
is dismissed - there being no merger, the
aggrieved party is not deprived of any
statutory right of review, if it was available
and he can pursue it. It may be that the
review court may interfere, or it may not
interfere depending upon the law and
principles applicable to interference in the
review. But the High Court, if it exercises a
power of review or deals with a review
application on merits - in a case where the
High Court's order had not merged with an
order passed by this Court after grant of
1396 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
special leave - the High Court could not, in
law, be said to be wrong in exercising
statutory jurisdiction or power vested in it."

13. In Paragraph 34 of the judgment,
the Hon'ble Supreme Court sum up the
conclusions as follows :

"(i)Where an appeal or revision is
provided against an order passed by a court,
tribunal or any other authority before
superior forum and such superior forum
modifies, reverses or affirms the decision
put in issue before it, the decision by the
subordinate forum merges in the decision
by the superior forum and it is the latter
which subsists, remains operative and is
capable of enforcement in the eye of law.

(ii)The
jurisdiction
conferred
by
Article 136 of the Constitution is divisible
into two stages. First stage is upto the
disposal of prayer for special leave to file an
appeal. The second stage commences if and
when the leave to appeal is granted and
special leave petition is converted into an
appeal.

(iii)Doctrine of merger is not a
doctrine
of
universal
or
unlimited
application. It will depend on the nature
of jurisdiction exercised by the superior
forum and the content or subject-matter of
challenge laid or capable of being laid
shall be determinative of the applicability
of merger. The superior jurisdiction
should be capable of reversing, modifying
or affirming the order put in issue before
it. Under Article 136 of the Constitution
the Supreme Court may reverse, modify
or affirm the judgment-decree or order
appealed against while exercising its
appellate jurisdiction and not while
exercising the discretionary jurisdiction
disposing of petition for special leave to
appeal. The doctrine of merger can
therefore be applied to the former and not
to the latter.

(iv) An order refusing special leave
to appeal may be a non-speaking order or
speaking one. In either case it does not
attract the doctrine of merger. An order
refusing special leave to appeal does not
stand substituted in place of the order
under challenge. All that it means is that
the Court was not inclined to exercise its
discretion so as to allow the appeal being
filed.

(v) If the order refusing leave to
appeal is a speaking order, i.e. gives
reasons for refusing the grant of leave,
then the order has two implications.
Firstly, the statement of law contained in
the order is a declaration of law by the
Supreme Court within the meaning of
Article 141 of the Constitution. Secondly,
other than the declaration of law,
whatever is stated in the order are the
findings recorded by the Supreme Court
which would bind the parties thereto and
also the court, tribunal or authority in any
proceedings subsequent thereto by way of
judicial discipline, the Supreme Court
being the apex court of the country. But,
this order does not amount to saying that
the order of the court, tribunal or authority
below has stood merged in the order of
Supreme Court rejecting special leave
petition or that the order of the Supreme
Court is the only order binding as res
judicata
in
subsequent
proceedings
between the parties.

(vi)Once leave to appeal has been
granted and appellate jurisdiction of
Supreme Court has been invoked the
order passed in appeal would attract the
doctrine of merger; the order may be of
3 All] Father Thomas V. State of U.P. and another
1397
reversal,
modification
or
merely
affirmation.

14. The same view has again been
reiterated by the Hon'ble Supreme Court
in the case of Ramnik Vallabhdas
Madhvani
and
others
Vs.
Tarben
Pravinlal Madhvani - 2004 (1) SCC 497,
wherein it has been held that disposal of
special leave petition against judgment of
the High Court does not mean that the
said judgment is affirmed by such
dismissal. The order on a special leave
petition at the admission stage also does
not operate as res-judicata.

15. From the pronouncement of the
Hon'ble Apex Court, it is clear that
dismissal at the stage of special leave by
non-speaking order does not constitute
res-judicata and does not culminate in
merger of the impugned decision and
hence it would not by itself preclude the
aggrieved party from invoking review
jurisdiction. The Hon'ble Apex Court has
clarified that rejection of special leave
petition without notice even if the order is
reasoned or speaking also does not
culminate in merger of the impugned
decision. In the light of the above ratio
laid down by the Hon'ble Apex Court, the
order passed in special leave petition
being an order of dismissal simplicitor in
as much as the Hon'ble Apex Court
simply refused to grant leave to convert
petition into appeal hence the doctrine of
merger is not attracted for application.

16. In view of the above facts and
discussions and the settled law on the
subject, the dispute in the present writ
petition clearly falls within the territorial
jurisdiction of Lucknow Bench of this
Court hence the writ petition was wrongly
entertained and disposed of by this Court.

17. In view of the above, the
judgment and order dated 1.5.2007 is
liable to be recalled and is hereby
recalled. The writ petition stands restored
to its original number. The office is
directed to remit the record of this case to
the Lucknow Bench of this Court for
disposal.
---------
REVISIONAL JURISDICTIONAL
CRIMINAL SIDE
DATED: ALLAHABAD 22.12.2010

BEFORE
THE HON'BLE AMAR SARAN, J.
THE HON'BLE A.K. ROOPANWAL, J.
THE HON'BLE SURENDRA SINGH, J.

Criminal Revision No. - 1640 of 2001

Father Thomas

 ...Revisionist
Versus
State Of U.P. and another ...Opposite Party

Counsel for the Revisionist:
Sri Samit Gopal
Sri K.D. Tewari
Sri M.K. Shukla
Sri P.R. Maurya
Sri Rajiv Sisodiya
Sri S.S. Chaturvedi
Sri Patanjali Mishra
Sri Dileep Gupta
Sri D.S. Mishra
Sri Gopal S.Chaturvedi

Counsel for the Opposite Party:
A.G.A.

Code of Criminal Procedure-Section 397
(2) Revision against order under Section156(3)-order passed by Magistrate to
Register and investigate the case-an
interlocutory
order-Revision
against
that-held-not maintainable-view taken
otherwise in Ajay Malviya case reported
in 2004(41) ACC 435-not correct.