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Patna High Court

KARU CHOUDHARYversusThe State of Bihar

Decided
Disposal
DISMISSED

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

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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