HC Can Consider Review petition Though SC Dismissed SLP In Limine: SC [Read Judgment]

The bench comprising Justice AK Sikri, Justice S. Abdul Nazeer and Justice MR Shah observed that it will not make any difference whether the review petition was filed before the filing of special leave petition or was filed after the dismissal of special leave petition.

In Khoday Distilleries Ltd vs. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd. the following issue was referred to a three judge bench: Whether review petition is maintainable before the High Court seeking review of a judgment against which the special leave petition has already been dismissed by the Supreme Court?

The bench refused to refer the three judge bench judgment in Kunhayammed and Others v. State of Kerala to a larger bench and observed that it lays down the correct law. The court also noted that there is no conflict between Kunhayammed judgment and that in Abbai Maligai Partnership Firm and Another v. K. Santhakumaran.

The court also took note of following principles enunciated in Kunhayammed judgment.

• Dismissal at the stage of special leave petition - without reasons - no res judicata, no merger

• Dismissal of the special leave petition by speaking or reasoned order - no merger, but rule of discipline and Article 141 attracted.

• Leave granted - dismissal without reasons - merger results

It then reiterated the following conclusions made in the Kunhayammed case:

• 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.

• 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.

• 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

• 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.

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