Supreme Court: Decree or order obtained by playing fraud on the Court, Tribunal or Authority is a nullity and non est in the eye of law.

 Constitution of India - Article 141--Doctrine of merger--Recall--All orders passed by Courts/authorities below--Merge in judgment of Supreme Court -- After such judgment, not open to any party to judgment to approach any Court/ authority to review, recall or reconsider order--However, it is subject to exception of fraud--Once established that order obtained by successful party by practising fraud--It is vitiated--It is non-existent and non est and cannot be allowed to stand.

 Finality of litigation - Principle--Cannot be pressed to extent of such absurdity--That it becomes engine of fraud in hands of dishonest litigants.

Ratio: "Fraud is an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam."

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 5097-5099 of 2004

Decided On: 07.03.2007

A.V. Papayya Sastry and Ors. Vs. Government of A.P. and Ors.

Hon'ble Judges/Coram:

C.K. Thakker and L.S. Panta, JJ.

Author: C.K. Thakker, J.

Citation: AIR 2007 SC 1546,( 2007 ) 4 SCC 221,MANU / SC / 1214 / 2007

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Supreme Court: Under which circumstances, doctrine of merger is applicable to order of criminal revisional court?

 This Court in Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat, (1969) 2 SCC 74 observed thus:

“6. Now when the aid of the High Court is invoked on the revisional side it is done because it is a superior court and it can interfere for the purpose of rectifying the error of the court below. Section 115 of the Code of Civil Procedure circumscribes the limits of that jurisdiction but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High Court as a superior court. It is only one of the modes of exercising power conferred by the statute; basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense. We do not, therefore, consider that the principle of merger of orders of inferior courts in those of superior Courts would be affected or would become inapplicable by making a distinction between a petition for revision and an appeal.

7. It may be useful to refer to certain other decisions which by analogy can be of some assistance in deciding the point before us. In U.J.S. Chopra v. State of Bombay [1955 SCC OnLine SC 57 : AIR 1955 SC 633], the principle of merger was considered with reference to Section 439 of the Criminal Procedure Code which confers revisional jurisdiction on the High Court. In the majority judgment it was held, inter alia, that a judgment pronounced by the High Court in the exercise of its appellate or revisional jurisdiction after issue of a notice and a full hearing, in the presence of both the parties would replace the judgment of the lower court thus constituting the judgment of the High Court—the only final judgment to be executed in accordance with law by the Court below.[…]”{Para 88}

In the Supreme Court of India

(Before J.B. Pardiwala and Manoj Misra, JJ.)

Jamin and Another  Vs  State of Uttar Pradesh and Another 

Criminal Appeal No. 1184 of 2025 (Arising Out of SLP (Crl.) No. 6320 of 2024)

Decided on March 6, 2025

Citation: 2025 SCC OnLine SC 506.

Read full judgment here: Click here.

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Supreme Court: What is the duty of executing court while executing decree for specific performance of contract?

The executing court was not clear, both as regards the facts and as to law. On facts, it did not take into account, the real purport of the decree. The relevant portion has already been extracted. The stipulation of two months was for the first Respondent to execute the decree. That stipulation, no doubt, is coupled with the right to receive the balance of consideration. There was nothing on record to indicate that he ever made any effort to collect or demand the balance of consideration from the Petitioner, within that time. The plea of the Petitioner that when he offered the amount, the Respondents refused to receive; remained unrebutted. The first Respondent did not file any rejoinder to the counter-affidavit. As observed in the preceding paragraphs, the executing court did not record any evidence of the parties. Therefore, the finding recorded by the trial court, in this behalf, cannot be sustained. When valuable rights accrued to a party, on account of the suit for specific performance being decreed, they cannot be taken away, on the basis of such an untenable finding.

{Para 17}

18. On the aspect of law, the executing court proceeded as though Section 28 of the Act gets attracted, though it did not mention in so many words. Firstly, the first Respondent himself did not invoke that provision. Secondly, the provision gets attracted only where, (a) the court, which passed the decree, directs the decree-holder to pay the purchaser money (balance of consideration) within a period, stipulated by it, and (b) the decree-holder failed to comply with the direction. It is then, and only then, that the court can consider the feasibility of directing rescission of contract. In the instant case, the time stipulated by the trial court in its decree was for the first Respondent to execute the decree, and not directly for the Petitioner to deposit the amount.

19. There is nothing on record to disclose that the first Respondent has ever made any effort to receive the amount, stipulated in the decree. On the other hand, the plea of the Petitioner that, when he offered to pay the amount, the first Respondent did not receive the same; remained unrebutted. The court must ensure strict compliance with the conditions stipulated in a provision, which has the effect of nullifying a decree. Even where two views are possible on the facts of the case, the one, which would sustain the decree, must be adopted.

 IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 563-566 of 2025.

Decided On: 17.01.2025

Balbir Singh and Ors. Vs. Baldev Singh (D) through His Lrs and Ors.

Hon'ble Judges/Coram:

J.B. Pardiwala and R. Mahadevan, JJ.

Author: J.B. Pardiwala, J.

Citation: MANU/SC/0079/2025.

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Judgment analysis of Balbir Singh & Anr. v. Baldev Singh (D) Through His LRs & Ors., in IRAC Format

 Case Title: Balbir Singh & Anr. v. Baldev Singh (D) Through His LRs & Ors., Civil Appeal Nos. 563-566 of 2025

Court: Supreme Court of India

Date of Judgment: January 17, 2025

Issue

1.       Whether the High Court erred in rejecting the defendants' application under Section 28 of the Specific Relief Act, 1963, for rescission of the contract due to the plaintiffs' failure to deposit the balance sale consideration within the stipulated time.

2.       Whether the doctrine of merger applies when an appellate court modifies or restores a trial court's decree and its implications on execution timelines.

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Supreme Court: The merger of a decree takes place irrespective of the fact as to whether the Appellate Court affirms, modifies or reverses the decree passed by the trial court

The doctrine of merger is based on the principles of propriety in the hierarchy of justice delivery system. The doctrine of merger does not make a distinction between an order of reversal, modification or an order of confirmation passed by the appellate authority. The said doctrine postulates that there cannot be more than one operative decree governing the same subject matter at a given point of time. It is trite that when an Appellate Court passes a decree, the decree of the trial court merges with the decree of the Appellate Court and even if and subject to any modification that may be made in the appellate decree, the decree of the Appellate Court supersedes the decree of the trial court. In other words, merger of a decree takes place irrespective of the fact as to whether the Appellate Court affirms, modifies or reverses the decree passed by the trial court.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3616/2024

Decided On: 19.03.2025

Raju Naidu Vs. Chenmouga Sundra and Ors.

Hon'ble Judges/Coram:

Sudhanshu Dhulia and P.B. Varale, JJ.

Author: P.B. Varale, J.

Citation: 2025 INSC 368,MANU/SC/0366/2025.

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Supreme Court: It is duty of trial court or Appellate court to see that decree shall agree with the judgement

To meet the above contentions, learned Attorney General has made an elaborate argument by drawing our attention to the decree prepared by the Registry. In fact, we also summoned the original decree drafted by the Registry. A judgment comprises three segments (i) the facts and the point at issue; (ii) the reasons for the decision and (iii) the final order containing the decision. Order XX CPC requires a judgment to contain all the issues and findings or decision thereon with the reasons therefor. The judgment has to state the relief allowed to a party. The preparation of decree follows the judgment. The decree shall agree with the judgment. The decree shall contain, inter alia, particulars of the claim and shall specify clearly the relief granted or other determination of the suit. The very obligation cast by the Code that the decree shall agree with the judgment spells out an obligation on the part of the author of the judgment to clearly indicate the relief or reliefs to which a party, in his opinion, has been found entitled to enable decree being framed in such a manner that it agrees with the judgment and specifies clearly the relief granted. The operative part of the judgment should be so clear and precise that in the event of an objection being laid, it should not be difficult to find out by a bare reading of the judgment and decree whether the latter agrees with the former and is in conformity therewith. The obligation is cast not only on the trial court but also on the appellate court. Order 41 Rule 31 CPC casts an obligation on the author of the appellate judgment to state the points for determination, the decision thereon, the reasons for the decision and when the decree appealed from is reversed or varied, the relief to which the appellant is entitled. {Para 27}

 IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 997, 998 and 1024 of 2007 and 6115 of 2008

Decided On: 08.10.2010

Omprakash Verma and Ors. Vs. State of Andhra Pradesh and Ors.

Hon'ble Judges/Coram:

P. Sathasivam and B.S. Chauhan, JJ.

Author: P. Sathasivam, J.

Citation:  MANU/SC/0823/2010.(2010) 13 SCC 158.

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Whether interim order ends if the proceeding in which stay is granted is dismissed?

  From the above discussion, it is clear that imposition of a stay on the operation of an order means that the order which has been stayed would not be operative from the date of passing of the stay order. However, it does not mean that the stayed order is wiped out from the existence, unless it is quashed. Once the proceedings, wherein a stay was granted, are dismissed, any interim order granted earlier merges with the final order. In other words, the interim order comes to an end with the dismissal of the proceedings. In such a situation, it is the duty of the Court to put the parties in the same position they would have been but for the interim order of the court, unless the order granting interim stay or final order dismissing the proceedings specifies otherwise. On the dismissal of the proceedings or vacation of the interim order, the beneficiary of the interim order shall have to pay interest on the amount withheld or not paid by virtue of the interim order. {Para 24}

IN THE SUPREME COURT OF INDIA

 CIVIL APPELLATE JURISDICTION 

CIVIL APPEAL NO. 2417 OF 2022 

 STATE OF U.P. THR. SECRETARY AND ORS. Vs PREM CHOPRA

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To what extent doctrine of merger is applicable if SLP is dismissed?

 It will be relevant to refer to the following observations of

this Court in the case of Kunhayammed and Others v. State

of Kerala and Another (2000) 6 SCC 359:“

27. A petition for leave to appeal to this Court may

be dismissed by a nonspeaking order or by a

speaking order. Whatever be the phraseology

employed in the order of dismissal, if it is a nonspeaking

order, i.e., it does not assign reasons for

dismissing the special leave petition, it would

neither attract the doctrine of merger so as to stand

substituted in place of the order put in issue before

it nor would it be a declaration of law by the

Supreme Court under Article 141 of the

Constitution for there is no law which has been

declared. If the order of dismissal be supported by

reasons then also the doctrine of merger would not

be attracted because the jurisdiction exercised was

not an appellate jurisdiction but merely a

discretionary jurisdiction refusing to grant leave to

appeal. We have already dealt with this aspect

earlier. Still the reasons stated by the Court would

attract applicability of Article 141 of the

Constitution if there is a law declared by the

Supreme Court which obviously would be binding

on all the courts and tribunals in India and

certainly the parties thereto. The statement

contained in the order other than on points of law

would be binding on the parties and the court or

tribunal, whose order was under challenge on the

principle of judicial discipline, this Court being the

Apex Court of the country. No court or tribunal or

parties would have the liberty of taking or

canvassing any view contrary to the one expressed

by this Court. The order of Supreme Court would

mean that it has declared the law and in that light

the case was considered not fit for grant of leave.

The declaration of law will be governed by Article

141 but still, the case not being one where leave

was granted, the doctrine of merger does not apply.

The Court sometimes leaves the question of law

open. Or it sometimes briefly lays down the

principle, may be, contrary to the one laid down by

the High Court and yet would dismiss the special

leave petition. The reasons given are intended for

purposes of Article 141. This is so done because in

the event of merely dismissing the special leave

petition, it is likely that an argument could be

advanced in the High Court that the Supreme Court

has to be understood as not to have differed in law

with the High Court.” {Para 21}

22. It is thus clear that this Court in unequivocal terms has

held that if the order of dismissal of SLPs is supported by

reasons, then also the doctrine of merger would not be

attracted. Still the reasons stated by the court would attract

applicability of Article 141 of the Constitution of India, if there

is a law declared by this Court which obviously would be

binding on all the courts and the tribunals in India and

certainly, the parties thereto. It has been held that no court,

tribunal or party would have the liberty of taking or canvassing

any view contrary to the one expressed by this Court. Such an

order would mean that it has declared the law and in that light,

the case was considered not fit for grant of leave.

REPORTABLE

IN THE SUPREME COURT OF INDIA

INHERENT/CIVIL APPELLATE JURISDICTION

CONTEMPT PETITION (CIVIL) NO. 638 OF 2017

IN

CIVIL APPEAL NO. 4954 OF 2016

V. SENTHUR Vs  M. VIJAYAKUMAR, 

Author: B.R. GAVAI, J.

Dated: OCTOBER 01, 2021.

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How is the doctrine of merger and precedent attracted in the case of Judgment passed by the Supreme court?

 (b) We reiterate the conclusions relevant for these cases as under:

"(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 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 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 the 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 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 the 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 CPC.”

Supreme Court of India

Khoday Distilleries Ltd. (Now ... vs Sri Mahadeshwara Sahakara ... on 1 March, 2019

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Supreme Court: Determination of lease U/S 111(d) of transfer of property Act-Doctrine of merger

 Learned Counsel for the writ Petitioner relying on provisions of Section 111 of the Transfer of Property Act, 1882 contends that leasehold rights have been merged in the lessor since when lessor's interest coalesces with lessee's interest, the principle of merger comes into play. He has placed reliance on judgment of this Court in T. Lakshmipathi and Ors. v. P. Nithyananda Reddy and Ors. MANU/SC/0263/2003 : (2003) 5 SCC 150 and Pramod Kumar Jaiswal and Ors. v. Bibi Husn Bano and Ors. MANU/SC/0346/2005 : (2005) 5 SCC 492. This Court in T. Lakshmipathi (supra) had examined the doctrine of merger as contained in Section 111(d). In Paragraph Nos. 14 to 17, following was laid down:

14. The common-law doctrine of merger is statutorily embodied in the Transfer of Property Act, 1882. Section 111(d) provides:

111. Determination of lease.--A lease of immovable property, determines--

* **

(d) in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right;

* * *"

A bare reading of the doctrine of merger, as statutorily recognized in India, contemplates (i) coalescence of the interest of the lessee and the interest of the lessor, (ii) in the whole of the property, (iii) at the same time, (iv) in one person, and (v) in the same right. There must be a complete union of the whole interests of the lessor and the lessee so as to enable the lesser interest of the lessee sinking into the larger interest of the lessor in the reversion.

15. In Badri Narain Jha v. Rameshwar Dayal Singh MANU/SC/0054/1951 : AIR 1951 SC 186, it was held by this Court that if the lessor purchases the lessee's interest, the lease no doubt is extinguished as the same man cannot at the same time be both a landlord and a tenant, but there is no extinction of the lease if one of the several lessees purchased only a part of the lessor's interest. In such a case the leasehold and the reversion cannot be said to coincide.

16. In Sk. Faqir Bakhsh v. Murli Dhar MANU/PR/0179/1931 : AIR 1931 PC 63, the Plaintiff was holding on lease a portion of the entire property. Subsequently, the Plaintiff and the Defendant became pro indiviso joint proprietors of the property by purchasing shares from the earlier owners. The lease was subsisting when the shares were bought by the parties. In a suit for accounts filed by the Plaintiff it was held that the Plaintiff's rights under lease of a part do not merge in his rights as joint proprietor of the whole of the property as between the parties the Plaintiff held a valid and subsisting lease.

17. A Division Bench of the Patna High Court in Parmeshwar Singh v. Sureba Kuer MANU/BH/0096/1925 : AIR 1925 Pat 530, held that Section 111(d) applies only to a case where the interests of the lessee and of the lessor in the whole of the property become vested at the same time in one person in the same right. Merger is largely a question of intention, dependent on circumstances, and the courts will presume against it when it operates to the disadvantage of a party, as was held by this Court in Nalakath Sainuddin v. Koorikadan Sulaiman, MANU/SC/0564/2002 : (2002) 6 SCC 1 (SCC para 20)."

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 1533 and 1534 of 2019

Decided On: 12.02.2019

Delhi Development Authority  Vs.  Karamdeep Finance & Investment (I) Pvt. Ltd. and Ors.

Hon'ble Judges/Coram:

Ashok Bhushan and K.M. Joseph, JJ.

Citation: MANU/SC/0183/2019,(2020) 4 SCC 136

Author: Ashok Bhushan, J.

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Supreme Court:Order of subordinate court will not merge if superior court has not decided that matter on merit

 In our view, the principle of merger is fairly well settled. For merger to operate, the superior court must go into the merits of the issues decided by the subordinate court and record finding/s one way or other on its merits. If this is not done by the superior court, a plea of merger has no application in such a case and the order of subordinate court would continue to hold the field (see Shanmugaval Nadar v. State of Tamil Nadu [989 (4) SCC 187].

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5574 of 2009

Decided On: 15.03.2019

Kaikhosrou (Chick) Kavasji Framji  Vs. Union of India (UOI) and Ors.

Hon'ble Judges/Coram:

Abhay Manohar Sapre and Dinesh Maheshwari, JJ.

Citation: AIR 2019 SC 1692

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When decree will become executable if there are appeals against that decree?

The aforementioned question raised by the learned advocate for the appellant is no more res-integra, inasmuch as the very question is decided by a Three Judge Bench of this Court, in the

case of Chandi Prasad v. Jagdish Prasad, (2004) 8 SCC 724, wherein it was observed that in terms of Article 136, Limitation Act 1963, a decree can be executed when it becomes enforceable. A decree is defined in Section 2(2) CPC, 1908 to mean the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. A decree within the meaning of Section 2(2) of the CPC would be enforceable irrespective of whether it is passed by the Trial Court, the First Appellate Court or the Second Appellate Court. When an appeal is prescribed under a statute and the appellate forum is invoked and entertained, for all intents and purposes, the suit continues. When a higher forum entertains an appeal and passes an order on merit, the doctrine of merger would apply. The doctrine of merger is based on the principles of the propriety in the hierarchy of the justice delivery system. The doctrine of merger does not make a distinction between an order of reversal, modification or an order of confirmation passed by the appellate authority. The said doctrine postulates that there cannot be more than one

operative decree governing the same subject matter at a given point of time.

6. Since the judgment of the Trial Court was affirmed by the First Appellate Court and was further affirmed by the Second Appellate Court, the decree passed by the High Court becomes enforceable in view of the doctrine of merger. Hence, in our considered view, the execution petition filed by the plantiffs/respondents is within time, consequently the appeal fails and stands dismissed.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 10442 OF 2011

SHANTHI  Vs T.D. VISHWANATHAN 
Citation: (2019) 11 SCC419

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Whether tenancy will extinguish by merger if tenant has acquired rights of some of co-owners?

A plain and grammatical interpretation of Section 111(d) of the Transfer of Property Act leaves no room for doubt that unless the interests of the lessee and that of the lessor in the whole of the property leased, become vested at the same time in one person in the same right, a determination of the lease cannot take place. On taking an assignment from some of the co-owner landlords, the interests of the lessee and the lessor in the whole of the property do not become vested at the same time in one person in the same right. Therefore, a lessee who has taken assignment of the rights of a co-owner lessor, cannot successfully raise the plea of determination of tenancy on the ground of merger of his lessee's estate in that of the estate of the landlord. It is, thus, clear that there is no substance in the contention of the learned counsel for the appellants that in the case on hand, it should have been held that the tenancy stood determined and the application of the landlord for a direction to the tenant to deposit the rent in arrears should have been dismissed. The position of the appellants as tenants continue and they are bound to comply with the requirements of the Rent Control Act under which the order for deposit has been passed against them. The High Court has rightly dismissed the revision.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 336 of 2004

Decided On: 03.05.2005

Pramod Kumar Jaiswal and Ors. Vs. Bibi Husn Bano and Ors.

Hon'ble Judges/Coram:

R.C. Lahoti, C.J., G.P. Mathur and P.K. Balasubramanyan, JJ.

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Whether there is difference between cause of action and starting point of limitation?

But as held in Humayun Dhanrajgir's case (supra), the claim for mesne profits as a consequence of a decree passed in a rent suit is a claim for damages or compensation for the continued possession of the premises after the decree of possession is passed. The claim therefore stands on a slightly different footing than may be a suit for simplicitor possession of immovable property. The claim for mesne profits in a rent suit cannot be connected to the fact that when the Defendant has wrongfully received the profits but has a causal connection as to when the possession of the Defendant has become wrongful and hence when the cause of action has arisen to claim mesne profits assumes importance.
The Division Bench of this Court having regard to the decisions which were cited before it held that an aggrieved party can found his action for consequential relief on the date of decision of a Court which declares his rights and enables him to bring in such action rather than rush to the Court periodically treating it as a fortuitous gamble. The Division Bench further held in the said case that the suit in question can never be called a suit simplicitor for mesne profits as is envisaged by Article 51 of the Limitation Act. The Division Bench further held that in allied fields, the Supreme Court has expanded the concept of accrual of cause of action so as to make it co-ordinate with and concomitant upon the final determination of the lis by a Competent Court. 
"The cause of action is what gives occasion for and forms the foundation of the suit; the cause of action is something different from the starting point of limitation; and the cause of action in a suit for mesne profits is not the actual receipt of the profits by the person in wrongful possession as held by Badkas, J. but the cause of action is the wrongful possession of the defendant."
IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 765 of 2015

Decided On: 07.03.2016

Central Bank of India Vs. Anil Puranmal Bansal and Ors.

Hon'ble Judges/Coram:

R.M. Savant, J.

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Whether order of court dismissing tenant's revision affects landlord's right of revision?

Doctrine of Merger - Explained--Doctrine of Merger is neither a doctrine of constitutional law nor a statutorily recognized doctrine--It is a common law doctrine founded on the principles of propriety, in the hierarchy of justice delivery system--The doctrine of merger would not take away the right of appeal conferred on a party to a proceedings from challenging an order, merely for the reason that the appeal preferred by another party was dismissed.

Coming to the contention based on the doctrine of merger, it must be remembered that the doctrine of merger is neither a doctrine of constitutional law nor a doctrine statutorily recognised. It is a common law doctrine founded on principles of propriety in the hierarchy of justice delivery system. The logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject-matter at a given point of time. In State of Madras v. Madurai Mills Co. Ltd. (A.I.R. 1967 S.C. 681) the Apex Court held that the doctrine of merger is not a doctrine of rigid and universal application and it cannot be said that wherever there are two orders, one by the inferior authority and the other by a superior authority, passed in an appeal or revision there is a fusion or merger of two orders, irrespective of the subject-matter of the appellate or revisional order and the scope of the appeal or revision contemplated by the particular statute. It has also been held by the Apex Court that the application of the doctrine depends on the nature of the appellate or revisional order in each case and the scope of the statutory provisions conferring the appellate or revisional jurisdiction. We have perused the records in R.C.R. No. 418 of 2012 and R.C.R. No. 80 of 2013. The records of R.C.R. No. 418 of 2012 indicate that urgent notice before admission was ordered and the Revision Petition was dismissed later at the admission stage itself. Likewise, R.C.R. No. 80 of 2013 was also dismissed at the admission stage itself, after hearing one of the landlords appeared through caveat also. Under Section 20 of the Act, a right of revision is provided for both the landlord and the tenant. In a case of instant nature, if the doctrine of merger is applied, this Court may not be able to exercise its revisional jurisdiction at the admission stage itself, in a case where the order impugned is partly against the respondent in the revision, without issuing notice to him and ascertaining from him as to whether he intends to challenge the decision, as otherwise act of court would prejudice him. In Commissioner of Sales Tax, U.P., Lucknow v. Vijai Int. Udyog, G.T. Road, Sikandrarao, Hathras [(1984) 4 S.C.C. 543], the Apex Court has held that the doctrine of merger would not take away the right of appeal conferred on a party to a proceeding to challenge an order merely for the reason that the appeal preferred by the other was dismissed.

IN THE HIGH COURT OF KERALA

R.C.R. Nos. 296, 306 and 330 of 2013

Decided On: 06.06.2014

 Mohammed Abdullah Vs. M.P. Ashique

Hon'ble Judges/Coram:

T.B. Radhakrishnan and P.B. Suresh Kumar, JJ.

Citation:2014 (2) KLT 1069

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When doctrine of merger is not applicable to landlord tenant relationship?

The argument that since the revision petitioner is also a co-owner, the petition for eviction is unsustainable, cannot be accepted. The learned counsel for the revision petitioner would submit that when a lesser estate (here the tenancy) and a greater estate (the ownership) coincide and meet in one and the same person without any intermediate estate, the lesser is immediately annihilated and merged. In other words, the lesser estate is sunk or drowned in the greater so that the greater estate is accelerated so as to become at once an estate in possession. Where a lesser and a greater estate in the same property come together and vest, without any intermediary estate in the same person and in the same right, the lesser is immediately annihilated by operation of law. To apply the principle of merger, the estates shall unite in the same person without any intervening estate and the person in whom they unite shall hold them both in the same right. The merger is the consequence of the tenant retaining the lease and acquiring the reversion. As stated earlier, for merger to be effective, the lease and the reversion must be vested in the same person in the same right with no intermediary estate. If a landlord transfers his rights in the leased property to his tenant, there would be a merger of the rights of the tenant in his higher rights as owner, in which case the tenancy would come to an end under Section 111(d) of the Transfer of Property Act. But, Section 111(d) itself makes it clear that the lease is determined only in a case where, by such assignment the interest of the lessee and the lessor in the whole of the property becomes vested. In other words, the emphasis in the Section is on the coalescing of the entire rights of the lessor and the lessee in the whole of the property in the hands of the lessee. But the learned counsel for the respondent rightly points out that the principle of merger has no application to the facts of this case, since the whole of the property did not vest in the hands of the revision petitioner.

7. In this connection, the Supreme Court decision in Pramod Kumar Jaiswal v. Bibi Husn Bano MANU/SC/0346/2005 : 2005 (5) SCC 492 has been relied upon by the learned counsel for the landlord where it was held that a lessee who took assignment of the rights of a co-owner lessor cannot successfully raise the plea of determination of tenancy on the ground of merger of his lessee estate in that of the estate of the landlord. It was held in the same decision:

On taking an assignment from some of the co-owner landlords, the interest of the lessee and the lessor in the whole property do not become vested at the same time in one person in the same right. Therefore, a lessee who has taken assignment of the rights of a co-owner lessor cannot successfully raise the plea of determination of tenancy on the ground of merger of his lessee's estate in that of the estate of the landlord. It is, thus, clear that there is no substance in the contention of the learned counsel for the appellants that in the case on hand, it should have been held that the tenancy stood determined and the application of the landlord for a direction to the tenant to deposit the rent in arrears should have been dismissed. The position of the appellants as tenants continues and they are bound to comply with the requirements of the Rent Control Act under which the order for deposit has been passed against them.

Since the revision petitioner has not obtained assignment of the entire rights of the lessor, there could be no merger or determination of the lease under Section 111(d) of the Transfer of Property Act. In the light of what has been stated above, we have no hesitation to hold that there was no determination of the lease since the whole of the estate did not vest in the revision petitioner herein.

IN THE HIGH COURT OF KERALA

R.C.R. No. 287 of 2010

Decided On: 12.07.2011

 Poolakandy Malayil Vijayan Vs. Sakeena

Hon'ble Judges/Coram:

Mr. Justice Pius C. Kuriakose and Mr. Justice N.K. Balakrishnan

Citation:2011 (3) KLT 657 : 2011 (3) KLJ 600 : 2011 (3) KHC 587 : 

ILR 2011 (3) Ker. 737

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Whether order passed without jurisdiction will merge with orders passed by higher authority?

 It is required to be noted that the transfer and conversion of land from agricultural to non-agricultural is regulated by the GR dated 08/09/1983. The said GR can be said to be supplemental to the Maharashtra Land Revenue Code and provides the mechanism as to how an application for transfer and conversion of agricultural land is to be dealt with. The said GR postulates that the transfer and conversion can be permitted on the terms and conditions which are mentioned in the GR. One of the conditions mentioned is that the transferee would continue to hold the land as Occupant Class II. The said GR does not envisage the conversion of the Occupancy Class II to Occupancy Class I. Once that be so, any order passed by the authority exercising powers under the Maharashtra Land Revenue Code directing conversion of Occupancy Class II to Occupancy Class I would be in breach and violation of the said GR. This has precisely happened in the instant case as the Secy. & OSD has exceeded his jurisdiction in directing the conversion of land from Occupancy Class II to Occupancy Class I albeit on payment of 25% nazarana. Once the order can be said to have been passed without jurisdiction, even if the said order was to merge in the orders passed by the higher Courts then such an order would be of no avail to the party who seeks to reap its benefit as it is well settled by the judgments of the High Courts that there is no question of merger of the order passed by the original authority which is void on account of infirmity for want of jurisdiction. It has been held that the doctrine of merger has no application in so far as an illegal order is concerned.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 6747 of 2016

Decided On: 10.01.2017

 Niketan Land and Estate Pvt. Ltd.

Vs.

State of Maharashtra and Ors.

Hon'ble Judges/Coram:

R.M. Savant, J.

Citation: 2017(2) ALLMR 222

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Whether employee will be entitled to get all service benefits if he is reinstated?

 In Narsa Goud MANU/SC/0027/2003 : (2003) 2 SCC 212 (supra), the issue for consideration was whether a workman can claim to draw increments for the period of out of employment when Labour Court only directed reinstatement with continuity of service but without back wages. Supreme Court observed as under:

"9. We find merit in the submission so made. There is a difference between an order of reinstatement accompanied by a simple direction for continuity of service and a direction where reinstatement is accompanied by a specific direction that the employee shall be entitled to all the consequential benefits, which necessarily flow from reinstatement or accompanied by a specific direction that the employee shall be entitled to the benefit of the increments earned during the period of absence. In our opinion, the employee after having been held guilty of unauthorised absence from duty cannot claim the benefit of increments notionally earned during the period of unauthorised absence in the absence of a specific direction in that regard and merely because he has been directed to be reinstated with the benefit of continuity in service."

When the termination order is superseded by a less severe punishment, the said punishment should come into effect from the date of original order of termination. As held by Supreme Court in Deepali Gundu Surwase MANU/SC/0942/2013 : (2013) 10 SCC 324 (supra) 'reinstatement' would mean putting the workman back to the stage when he was terminated. As a consequence to setting aside the order of removal, the petitioner gets back to his position as prevailing on the date of his removal. On such reinstatement, the punishment of removal gets substituted by the punishment of withholding of three annual increments for three years with cumulative effect The annual increments due to the petitioner in the year 2000, 2001 and 2002 stands deferred in view of the Award passed by the Labour Court and after 2002, petitioner is entitled to annual increment after rendering one year satisfactory service. The action of Respondent Corporation in applying the punishment of deferment of annual increments only from the year 2003 is erroneous. It would amount to imposing punishment of withholding six annual increments of the petitioner with cumulative effect. When Labour court prescribed particular punishment to be imposed, no higher punishment can be imposed. The writ petition is disposed of directing the respondents to apply the punishment of withholding of three annual increments for three years with cumulative effect from the date when he was removed from service. Petitioner is entitled to annual increment only after rendering one year satisfactory service after he was reinstated.

IN THE HIGH COURT OF JUDICATURE AT HYDERABAD 

Writ Petition No. 9017 of 2011

Decided On: 27.09.2016

B.S. Raju Vs.  APSRTC and Ors.

Hon'ble Judges/Coram:

P. Naveen Rao, J.

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Whether a party can challenge a finding given against him without filing revision?

It was also held in Smt. Gangabai v. Vijay Kumar and Ors. MANU/SC/0020/1974 : (1974) 2 SCC 393, 'no appeal can lie against a mere finding', and, if filed, shall be liable to be dismissed as not maintainable. In Seetaram and Ors. v. Smt. Remabai and Anr. MANU/MP/0079/1958 : AIR 1958 MP 221, the Division Bench consisting of M. Hidayatullah, CJ and P.K. Tare, J., (as their Lordships were then), considered Clause 21 of the C.P. and Berar Letting of Houses and Rent Control Order. 1949 which provides for an appeal being preferred by 'any person aggrieved by an order' of the Controller to the Deputy Commissioner who shall decide the appeal. Eviction was sought for on three grounds but was allowed by the Controller only on one ground. In an appeal preferred by the tenant the landlord was not permitted by the Deputy Commissioner to establish that the other two grounds on which permission was asked for were wrongly decided. The Deputy Commissioner formed an opinion that the order of Controller could nor be allowed to be supported by the landlord-respondent before him on any ground which had been decided against him by the Controller unless an appeal was filed by the landlord-respondent. The Division Bench held that 'a person aggrieved' must be a man against whom a decision has been pronounced which has wrongfully refused him something which he had a right to demand. In spite of a ground for an order having been decided against the landlord, if the operative part of the order is in his favour, the landlord though a person aggrieved' is not a 'person aggrieved by an order of the Controller'. The landlord could have felt satisfied therewith and there is no reason why he should have appealed. Even if a person has a grievance against the finding he cannot come by way of appeal unless he challenges the order itself and wants to get it interfered with. Such ah interpretation of the provision is warranted otherwise even if the order is in favour of a party he would be required to file an appeal against a finding. The Division Bench held that, in an appeal, the party who has an order in its favour is entitled to show that the order is justified on some ground which was decided against it in the Court below and this position of law is supportable on general principles without having recourse to Order 41. Rule 22 of the Code of Civil Procedure.

13. Krishnaswami Ayyangar, J. in his opinion, in Gaddem Chinna Venkata Rao and Ors. v. Koralla Satyanarayanamurthy and Anr. MANU/TN/0137/1943 : AIR 1943 Mad 698, which is a Full Bench decision, held, interpreting Order 41, Rule 22 of the Code of Civil Procedure, that a party who has succeeded in the result of a decision in spite of one or more of several grounds urged by him having been negated, he cannot and need not appeal as regards the latter grounds however erroneous the decision because there is no right of appeal to a party who has succeeded. The distinction lies in supporting or sustaining the decree in one's favour and in obtaining an alteration which would give him a further advantage. The latter can be secured only by an appeal or cross objection.

14. A single Bench decision of Madras High Court in K. Venkataramani v. S. Aravamuthan and Ors. MANU/TN/0292/1982 : AIR 1982 Mad 36, is directly in point dealing with pari materia provision contained in Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. It was held that where an order for eviction is based on one of the several grounds, in an appeal preferred by the tenant, the ultimate decision in favour of the landlord can be supported by the landlord without filing an appeal by disputing the correctness of findings on a ground decided against him and submitting that the order of eviction should have been rested on that ground as well. What is true of the appellate jurisdiction is also true of the revisional jurisdiction under Section 25. The Division Bench decision of Madhya Pradesh High Court in Seetaram and Ors. case (supra) was followed.

15. We agree with the view taken by the High Courts of Madhya Pradesh and Madras. We are of the opinion that-

(i) There is no reason to read and interpret Section 20 of the Kerala Buildings. (Lease and Rent Control) Act. 1965 narrowly and limit the scope of revisional jurisdiction conferred on the High Court thereby:

(ii) Once a revision petition is entertained by the High Court, whichever be the party invoking the revisional jurisdiction, the High Court acquires jurisdiction to call for and examine the records of the authority subordinate to it. The records relating to 'any order' and/or any proceedings, are available to be examined by the High Court for the purpose of satisfying itself as to the (a) legality, (b) regularity, or (c) propriety of the impugned order, including any part of the order, or proceedings. The only limitations on the scope of High Court's jurisdiction is that the order or proceedings sought to be scrutinized must be of the subordinate authority. Any illegality, irregularity or impropriety coming to its notice is capable of being corrected by the High Court by passing such appropriate order or direction as he law requires and justice demands.

(iii) 'Any aggrieved party', the expression employed in Section 20(1), means a person feeling aggrieved by the ultimate decision, that is, the operative part of the order. A party to the proceedings, who has succeeded in securing the relief prayed for is not a party aggrieved though the order contains a finding or two adverse to him. The Respondent can support the order and pray for the ultimate decision being sustained, without filing a revision of his own, and for achieving such end he may seek reversal of any findings recorded against him. However, if the non-petitioning party feels entitled to a more beneficial or larger order in his favour but was allowed a lesser or smaller relief then to the extent of claiming the more beneficial or larger relief he should have filed a revision petition of his own as he was 'an aggrieved party' to that extent.

IN THE SUPREME COURT OF INDIA

SLP No. 1599 and 8694 of 2001

Decided On: 08.07.2002

Nalakath Sainuddin Vs. Koorikadan Sulaiman

Coram: R.C. Lahoti and B.N. Agrawal, JJ.

Citation:(2002) 6 SCC 1

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What is basic concept of doctrine of merger?

The doctrine of merger :

The doctrine of merger is neither a doctrine of constitutional law nor a doctrine statutorily recognised. It is a common law doctrine founded on principles of propriety in the hierarchy of justice delivery system.

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 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 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 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 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 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 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 revew petition is lost thereafter as provided by sub-rule (1) of Rule (1) of Order 47 of the C.P.C.

Supreme Court of India

Kunhayammed & Ors vs State Of Kerala & Anr on 19 July, 2000

Bench: K.T. Thomas, D.P. Mohapatra., R C Lahoti.

Citation:(2000)6 SCC 359

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