Supreme Court Prima Facie Disagrees That Second SLP Can Be Filed If First SLP Was Dismissed Without Any Reasons Or Was Withdrawn

However, in its instant order, the Court, while relying on Order XXIII Rule 1 of the Code of Civil Procedure (Withdrawal of suit), said a party is not permitted to have a “second bit at the cherry” after withdrawing the plea and not taking Court's leave to file a fresh one.

“A party having withdrawn the proceedings before a competent Court and not having obtained leave of such Court to file a fresh proceeding ought not to be permitted to have a second bite at the cherry.,” the Bench of Justices Dipankar Datta and Prashant Kumar Mishra said. 

Given that the matter was referred to a larger bench in Narahari's case and the Court in this case was also sitting in a two-judge bench decision, it adjourned the matter sine die.

“However, the decision in S. Narahari (supra) having referred the matter to a larger Bench, we say no more at this stage…. Liberty is given to mention the Special Leave Petition for relisting after the larger Bench decides the question referred to it.”

To elaborate, in Narahari's case, the Court took into consideration a judgment passed by a three-judge Bench in Khoday Distilleries Ltd. v. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd. Therein, the issue before a three-judge Bench of the Apex Court was whether a review petition in the High Court is maintainable, once SLP raising the same issue has been dismissed.

It was held that even after the dismissal of the SLP, a review before the High Court is still maintainable. The three Judge Bench observed that dismissal of SLP by a non-speaking order does not attract the doctrine of merger; once leave to appeal has been granted and appellate jurisdiction of the Supreme Court is invoked the order passed in appeal would attract the doctrine of merger.

Based on this, the Court in Narahari had observed:

“If a dismissal of Special Leave Petition by way of a nonspeaking order is not considered law under Article 141 of the Constitution of India, the same also cannot be considered as res judicata, and therefore, in every such dismissal, even in cases where the dismissal is by way of a withdrawal, the remedy of filing a fresh Special Leave Petition would still persist. Further, if on the said reasoning, a remedy to file a review in the High Court is allowed, then the same reasoning cannot arbitrarily exclude the filing of a subsequent Special Leave Petition.”

However, the Division Bench said that it is “painfully” aware that this interpretation is allowed, it would open the floodgates of litigation. This would essentially mean that every dismissal of a Special Leave Petition must be accompanied by reasons declaring the same., the Court said.

Thus, in order to put a quietus to such an issue, the court directed the Registry to place the papers before the Chief Justice of India, DY Chandrachud for constituting a larger bench.

Case Details: N. F RAILWAY VENDING AND CATERING CONTRACTORS ASSOCIATION LUMDING DIVISION v. THE UNION OF INDIA & ORS., Diary No. - 28661/2024

Citation : 2024 LiveLaw (SC) 542

Click here to read/ download the order