B.N. MAITRA, J,J.
(1) SECOND Appeal No. 287 of 1977 was dismissed by this Court on 17-11-1978. Against that judgment, the tenant-petitioner filed a special leave petition according to the provision of article 136 of the Constitution of India before the supreme Court. That prayer was turned down. Thereafter the present application for review of the judgment of this Court was filed.
(2) IT has been contended on behalf of the petitioner that the provisions of Order 47 Rule 1 (1) (a) of the Civil procedure Code are no bar in preferring the present application for review because the Supreme Court did not entertain the special leave petition. The cases in A. I. R. 1955 S. C. 464 and a. I. R. 1964 S. C. 1372 (T. Industries v. Government of A. P.) have been referred to. Unless leave was granted by the Supreme Court, there was no appeal in the eye of law and so, that fact did not bar the jurisdiction of the high Court to hear the application for review on the merits. Nothing stands in between the judgment of the Supreme Court and of this Court and hence, this review petition is maintainable.
(3) REGARDING the merits, it has been contended that mistake is apparent on the face of the record within the meaning of the provisions of Order 47 Rule 1 (1) (c) of the Code of Civil procedure. Here, the landlord-opposite party sent two notices. But she did not file the suit for ejectment on the footing of the first notice. But she instituted the present suit for eviction on the basis of the second notice. But when the previous Postal Acknowledgement , Receipt, Ext. 3 (a), came back from the Post Office, the present petitioner sent a reply, Ext. 2, because the landlord had sent the first notice of ejectment. That reply incorporated in Ext. 2 was not considered by this Court and hence, that Is an error apparent on the face of the record. The cases in A. I. R. 1961 S. C. 1067 Ganga Dutt v. Kartik and A. I. R. 1968 S. C. 471 (Calcutta Credit Corpn. v. Happy Homes) have been cited. Reference has been made to the provisions of section 28 of the General Clauses Act, to the cases of Harihar Banerjee v. Ramsashi in 23 C. W. N. 77 P. C. , 77 C. W. N. 515 (Dilip v. Abodh) A. I. R. 1972 S. C. 819 (Bhawanji v. Himatlal) and 1978 (2) C. L. J. 163. Since the first notice was sent by the landlord by registered post, it: can be presumed that it was duly served on the tenant-petitioner. Hence, the present suit on the basis of the alleged second notice of ejectment is not maintainable. This matter was lost sight of by this Court, when the second appeal was dismissed. It has thus, been submitted that the application for review must be allowed.
(4) IT has been argued on behalf of the landlord-opposite party that in view of the provisions of Order 47 Rule 1 (1) (a) of the Code of Civil Procedure, the present application for review is not tenable in law because the tenant preferred an appeal in the Supreme Court. But the same was not entertained by that Court and hence, that puts an end to the matter. Further, the question of maintainability and other things were considered by this Court, when the second appeal was dismissed. Hence, this application for review must fail.
(5) IT has been further contended on behalf of the opposite party that after the second appeal was dismissed, the further proceedings were not stayed by this Court. The tenant made an application to vacate the premises and an undertaking was also given to vacate it within a certain time. But in breach of their undertaking, the tenant did not vacate that building. Hence, contempt proceedings have been started by Ray, J, by issuing a Rule against the petitioner. The cases of Raj Rajeswari Jew v. Gati Krishna in 39 C. L. J. 217 has been cited to show that the breach of an undertaking given to the Court by a litigant, pending proceedings on the faith of which the Court sanctions a particular course of action or inaction, is misconduct amounting to contempt. It is well settled that when a party is guilty of such contempt, he places himself in a perilous Situation so as not to be heard by the Court till he has purged his contempt. Hence, it has been stated that since G. N. Ray, J, has issued a Rule for contempt against the petitioner, this matter should not be heard by this Court unless the petitioner has purged himself of the contempt.
(6) IN reply to this submission, it has been contended on behalf of the petitioner that the case of Debabrata Mukherjee v. Gouripur Co. in 1976 (2) C. L. J. 76 shows that these makers depend on the discretion of the Court. The case of S. S. Roy v. Damodar Valley Corporation in 78 C. W. N. 144 has been cited to show that the rule that the contemnor should not be permitted to proceed further in a case until he is purged of his contempt, is a principle which is too wide and not an absolute proposition of law. But it is only a qualified one being subject to various exceptions. The facts cannot be overlooked. It has, thus, been contended that this application should be heard by this Court.
(7) REGARDING the contempt matter. we may refer to the decision of dharampal v. Mohant Krishna Dayal to 10 C. L. J. 631 at page 635 to show that the rule that a party in contempt cannot be heard unless he is purged of his contempt is neither inflexible nor of universal application and the Court has a discretion in the matter.
(8) HERE, this application for review was heard in part on 22-11-1979 and thereafter it was adjourned for hearing till this day. In the circumstances, we. shall use discretion and hear out this application for review.
(9) THEN about the question that the review application is not maintainable. Order 47 Rule 1 (1) (a) shows that an application for review of judgment can be filed against a decree or order from which an appeal is allowed, but from which no appeal has been preferred. The decision in A. I. R. 1955 S C. 464 (Shiva Jute etc. v. Hindley and Co.)has no bearing on the facts of this case. Of course, in the case of T. Industries ltd. v. Government of A. P. in a. I. R. 1964 S. C. 1372, it has been stated that notwithstanding the refusal by the Supreme Court to entertain the application for special leave, the jurisdiction of the High Court to decide the review petition was not barred. There the review petition was filed 7. first and then the Supreme Court was moved. An important observation has been made by Mr. Justice Ayyangar at page 1376 of the Report. It has beer stated that the crucial date for determining, if or not, the terms of Rule 1 (1) of Order 47 are satisfied is the date when the petition for review is filed. If on that date no petition has been filed, it is competent for the Court to dispose of the petition for review on the merits notwithstanding the pendency of the appeal, subject only to this that if before the petition for review is finally decided the appeal has been disposed of, the jurisdiction of the Court hearing the petition for review comes to an end. Let us apply these principles to the facts of this case.
(10) IT appears from Annexure 'a', which is the order of the Supreme court, that the special leave petition was dismissed. It was observed that it was not a case of special leave under article 136 of the Constitution of india but for review, if at all. Now, the powers of review are to be disposed of only by invoking the provisions of action 114 and Order 47 of the Code of Civil Procedure. It has already been jointed out that initially the petitioner preferred an appeal in the Supreme court in the shape of a special leave petition. So, before the present petition nor review was filed, the petitioner already filed an appeal against the order of this Court. At once, the terms of Rule 1 (1) (a) of Order 47 of the code of Civil Procedure come into play and hence, I am of opinion that the review petition is not maintainable in law.
(11) THEN about the merits. The case of Ganga Dutt v. Kartick Chandra in A. I. R. 1961 S. C. 1067 and Calcutta Credit Corporation v. Happy homes in A. I. R. 1968 S. C. 471 were cited, when the second appeal was heard. Those cases were considered.
(12) IT appears that the Postal acknowledgement Receipt, Ext. 3 (a), was not signed by the defendant. The first notice sent by the landlord was undated and hence, that was not a valid notice to quit. In that view of the matter, it was held by this Court that that notice was not served on the defendant. That puts a stop to the matter.
(13) THEN about the contents of the alleged reply, Ext. 2. It appears there from that the tenant disputed the validity of the notice. The cases in 77 CWN 615 (Dilip v. Abodh) and 1978 (2) C. L. J. 163 are all single Bench decisions of this Court. In the Bench decision of Sudhir Kumar v. Indu Prova in A. I. R. 1976 Cal. 274, it has been stated that where the landlord gives a notice to quit and the tenant disputes its validity, as in the present case, and thereafter the landlord issues a second notice treating the lease as subsisting, there was an implied waiver of the first notice to quit. Illustration (b) of section 113 of the Transfer of Property Act shows that where the tenant continues in possession after such notice to quit, he impliedly consents to waive the first notice to quit and intends to treat the lease as subsisting. There is no defect or error apparent on the face of the record. Hence, the submissions made on behalf of the petitioner cannot foe accepted. The Rule is, therefore, discharged. There will be no order as to costs. Rule discharged No costs.