Patna High Court
KARU CHOUDHARYversusThe State of Bihar
- Decided
- Disposal
- DISMISSED
- Bench
- RAJIV ROY
Holding
The civil review petition is dismissed as not maintainable, with a token cost imposed on the petitioner.
Summary
Karu Chaudhary filed a civil review seeking to set aside the Patna High Court’s 27 September 2013 judgment that dismissed his title suit and held that the land in question was not acquired by the State. He argued that the Supreme Court’s dismissal of his Special Leave Petition (SLP) was not a reasoned order and therefore did not merge the High Court’s decree, making a review permissible. The Court examined the doctrine of merger, noting that an order refusing leave to appeal—whether speaking or non‑speaking—does not merge the lower court’s order and is not a binding declaration of law. However, the Court found no perversity or error of record in the 2013 judgment and held that the petitioner had not raised any substantive ground for review. Consequently, the civil review was dismissed as an abuse of process, with a token cost imposed.
Issues considered
- The applicability of the doctrine of merger to an order refusing special leave to appeal.
- Whether a civil review is maintainable against a High Court judgment when the Supreme Court has dismissed the SLP without reasons.
- Whether the 2013 High Court judgment exhibits perversity or error of record warranting a review.
- Whether cost should be imposed on the petitioner in a civil review.
Legislation cited
- Code of Civil Procedure, 1908 — s. Order 47 Rule 1
- Land Acquisition Act, 1894
Subjects
- civil review
- doctrine of merger
- special leave petition
- perverse order
- error of record
- land acquisition
- adverse possession
- scheduled caste
- cost
- abuse of process
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL REVIEW No.158 of 2024
In
SECOND APPEAL No.279 of 1999
======================================================
KARU CHOUDHARY SON OF Late Balo Pasi Resident of Jawaripur, P.S.-
Barari, District Bhagalpur.
... ... Petitioner/s
Versus
1. The State of Bihar through the collector, Bhagalpur.
2. The Principal, Chikitsha Mahavidyalaya, Bhagalpur.
3. Sri Kailash Yadav, son of Late Guru Charan Yadav, Resident of Jawaripur,
Opp. Bhagwati Gali Mill, P.S.- Barari, District- Bhagalpur.
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Najmul Hoda, Advocate
For the State : Mr. Braj Bhushan Mishra, AC to AAG-9
For the Resp No. 3 : Dr. Manoj Kumar, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJIV ROY
ORAL ORDER
6 05-02-2026 Heard Mr. Waliur Rahman, learned counsel for the
petitioner, the State as also Dr. Manoj Kumar representing
respondent no. 3.
2. The present petition has been preferred for the
following relief(s):
“for review of the Judgment dated
27.09.2013 passed in Second Appeal No. 279 of
1999, by Hon'ble Mr. Justice Mungeshwar Sahoo, as
the State of Bihar has obtained the judgment on
wrong facts that the land in question was acquired
by the State under Land Acquisition Act for
construction of Medical College in Bhagalpur,
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however, the petitioner/plaintiff subsequently came
to know that the land in question was never
acquired by the State. Therefore, the survey entry in
Khatiyan in the name of “Chikitsa Mahavidyalaya”
is entirely wrong.”
3. The details of the land is/are as follows:
“Khata No. 100, Khesara No. 276 and
241, Mauja – Hajipur Gorain (Jawaripur) in the
district of Bhagalpur.”
4. The petitioner preferred Title Suit No. 174 of 1993
which came to be disposed of on 26.07.1997 passed by the
learned 1st Additional Munsiff, Bhagalpur.
5. Against the said order, the opposite party moved in
Title Appeal No. 96 of 1997 which came to be dismissed on
23.02.1999 by the learned 6th Additional District Judge,
Bhagalpur.
6. Still aggrieved, the Second Appeal No. 279 of 1999
was preferred. The parties appeared and vide an order dated
27.09.2013, a Bench of this Court [HMJ Mugeshwar Sahoo (as
his lordship then was)] in paragraph nos. 16 and 17 held as
follows:
16. From perusal of the judgment of both
the courts below, it appears that the courts below
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have not considered the well settled principles of
law laid down by the Hon'ble Supreme Court since
long. The courts below have decreed the plaintiff's
suit merely on the ground that the defendants failed
to prove that the property has been acquired by the
State of Bihar for the purpose of medical college
without noticing the fact that the college is also the
defendant. The courts below have also not noticed
that this was not the issue between the parties
particularly when as stated above in paragraph 6,
the plaintiff himself admitted that the property is a
cut piece of the lands acquired and moreover, the
plaintiff himself is praying for declaration of title on
the basis of adverse possession which pre-supposes
that the title is with somebody else. The plaintiff
never brought the suit making a case that the State
of Bihar is not the owner rather any other particular
person is owner of the property and he ever denied
the title of the said owner as such he acquired title
by adverse possession. In my opinion, both the
courts below have approached the case in wrong
angle and decided the question in favour of the
plaintiff without considering the above settled
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principles of law. Accordingly, the substantial
questions of law formulated are answered in favour
of the appellants and against the plaintiffs-
respondents.
17. In the result, this Second Appeal is
allowed. The impugned judgment and decree of both
the courts below are hereby set aside and plaintiff's
suit is dismissed. However, considering the facts
that the plaintiff is admittedly a member of the
schedule caste and he has been exempted from
payment of court fee in suit, therefore, no cost is
awarded.”
7. Aggrieved, the petitioner moved before the Hon’ble
Apex Court in Special Leave to Appeal (Civil) No(s). 2265 of
2014 (Karu Chaudhary vs. The State of Bihar). It was
dismissed on 07.02.2014 and the order read as follows:
“the Special Leave Petition is dismissed”
(Annexure-2 to the petition).
8. With the passing of the aforesaid order by the
Hon’ble Apex Court, the case should have attained finality.
However, suppressing the aforesaid facts, the petitioner sent a
letter to the office of the Hon’ble Prime Minister, Government of
India which was forwarded to the State Government for
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appropriate action. The petitioner thereafter picked up the threads
and got a report from the Circle Officer. However, pursuant to the
passing of the orders of the Court, the encroachment was
removed and now the land is part of the Jawaharlal Nehru
Medical College and Hospital, Bhagalpur (henceforth for short
‘the Hospital’).
9. The petitioner, thereafter, preferred CWJC No.
19987 of 2021 (Karu Chaudhary vs. the State & Ors.) against
the act of the respondents and construction of the boundary wall
of ‘the Hospital’. The writ petition was disposed of on 06.03.2024
allowing him to prefer Civil review.
10. This followed the present petition.
11. Learned counsel for the petitioner submits that the
order passed by the Hon’ble Apex Court is not a reasoned one
and as such, it will not apply as doctrine of merger.
12. In support of the said claim, he has taken this Court
to the Judgement of Hon’ble Apex Court in the case of
Kunhayammed & Ors. v State of Kerala & Anr. reported in
AIR 2000 (SC) 2587 with reference to paragraph – 43 which read
as follows:
43. We may look at the issue from another
angle. The Supreme Court cannot of and does not
reverse or modify the decree or order appealed
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against while deciding a petition for special leave to
appeal. What is impugned before the Supreme Court
can be reversed or modified only after granting
leave to appeal and then assuming appellate
jurisdiction over it. If the order impugned a) before
the Supreme Court cannot be re-versed or modified
at the SLP stage obviously that order cannot also be
affirmed at the SLP stage.
To sum up our conclusions are :-
(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 sub-ordinate 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 up to the disposal of prayer for special
leave to file an appeal. The second stage
commences if and when the leave to appeal is
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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 or 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 a 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
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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 re-
corded 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 does not
amount to saying that the order of the Court,
tribunal or authority below has stood merged in the
order of the 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 be-tween the parties.
(vi) Once leave to appeal has been
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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
reversal, modification or merely affirmation.
(vii) On an appeal having been preferred
or a petition seeking leave to appeal having been
converted into an appeal before Supreme Court the
jurisdiction of High Court to entertain a review
petition is lost thereafter as provided by sub-rule (1)
of Rule (1) of Order 47 of the C.P.C.”
13. Learned counsel for the petitioner submits that the
aforesaid observation of the Hon’ble Supreme Court is applicable
in the present case and in that background, the Civil Review is
maintainable.
14. Learned State counsel appears in this case and the
point raised by him is that the scope of Civil Review is limited.
Either the order is perverse or there is error of record and the
petitioner has not shown any perversity of the order and/or error
of record. Further, the well reasoned order was stamped by the
Hon’ble Supreme Court by dismissing Special Leave to Appeal,
as recorded above. The submission is that no liberty was granted
either to the petitioner to approach afresh by filing a Civil
Review.
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15. In that background, when it has been stamped by
the Hon’ble Supreme Court, it would not be proper by the High
Court to sit over the matter and review the order particularly
when, no perversity and/or error of record has been pointed out in
the order.
16. The further submission is that so far as the order of
the Hon’ble Apex Court is concerned, it only states that when an
order refusing Leave to Appeal is passed, it shows that this is not
the law of the Supreme Court rather it has chosen not to annul or
modify the said order.
17. In that background, there is no bar for the parties to
agitate the matters pending between them. However, this in no
way allows the parties to once again re-open the same issue
which has been consigned by a well reasoned order.
18. This Court has gone through the facts of the case as
also the materials on record and have heard the parties.
Admittedly, a reasoned order was passed by a Bench of this Court
on 27.09.2013 as recorded above. The petitioner has not
challenged the same on the ground of any perversity or error of
record. He challenged the said order before the Hon’ble Apex
Court which too was dismissed. No liberty was given to file any
review. Learned counsel for the petitioner has not pointed out any
perversity in the order and/or error of record warranting filing of
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the present Civil Review petition.
19. It has to be recorded that in the communication to
the Hon’ble Prime Minister of India, the petitioner knowingly
suppressed the legal battles that he fought but ultimately lost.
20. So far as the order passed by the Hon’ble Apex
Court in the case of Kunhayammed (supra) is concerned, learned
State counsel has rightly pointed out that the observation of the
Hon’ble Apex Court is that when the petition is dismissed without
any reasoned order, it shows that the said order is not the law of
the Supreme Court and parties are not prevented from litigating
any further case between them. However, this certainly do not
allow the parties to re-open the same issue again and again once
the order passed by the High Court was not interfered with by the
Supreme Court.
21. This Civil Review is ill advised and nothing but an
abuse of process of law and needs to be dismissed with cost.
Though the earlier Bench of Patna High Court chose not to
impose any cost taking into account that the petitioner belongs to
a Scheduled Caste Community, this Court do not deem it fit and
proper to let him escape, once again, for the such misuse.
22. However, learned counsel for the petitioner submits
that he genuinely belongs to the lowest strata of the society and as
such, lenient view may be taken in imposing the cost.
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23. Considering the aforesaid submission, the Civil
Review petition stands dismissed with a token cost of Rs. 100/- to
be deposited with the Patna High Court Legal Services
Committee within a week. Failure to make payment, steps be
taken for the realisation of the amount in accordance with law.
24. All the Interlocutory Applications also stand
disposed of.
(Rajiv Roy, J)
Adnan/-
U
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