Legal Implications Of Dismissal Of SLP In Limine: Doctrine Of Merger And Article 141 Not Attracted: Writ & Review In HC Maintainable
The Supreme Court is the highest court in our country and the orders passed by
them are Final. These orders are not liable to any further scrutiny by any other
Court and therefore there is no practice of the Supreme Court to give reasons
for dismissal of a Special Leave Petition.
It is common knowledge that majority of the Special Leave Petitions are dismissed in limine. Dismissal in limine implies dismissal at the very outset. Limine is a Latin world which means "at the very threshold". A question arises as to what are the legal implications of the dismissal of SLP by the Apex Court in limine particularly with reference to applicability of the Doctrine of Merger and Article 141 of the Constitution.
It would be trite to refer to the landmark judgment in the case of Kunhayammed v. State of Kerala (2000) 6 SCC 359 wherein a three member bench of the Apex Court summed up the reasons for rejection of SLP thus:
A petition seeking grant of special leave to appeal may be rejected for several reasons. For example, it may be rejected:
The Court regarding applicability of Article 141 & Doctrine of Merger in the event of Dismissal of SLP succinctly ruled thus :
"The expression often employed by this Court while disposing of such petitions are - heard and dismissed, dismissed, dismissed as barred by time and so on. May be that at the admission stage itself the opposite party appears on caveat or on notice and offers contest to the maintainability of the petition. The Court may apply its mind to the meritworthiness of the petitioners prayer seeking leave to file an appeal and having formed an opinion may say dismissed on merits. Such an order may be passed even ex-parte, that is, in the absence of the opposite party. In any case, the dismissal would remain a dismissal by a non-speaking order where no reasons have been assigned and no law has been declared by the Supreme Court. The dismissal is not of the appeal but of the special leave petition. Even if the merits have been gone into, they are the merits of the special leave petition only. In our opinion neither doctrine of merger nor Article 141 of the Constitution is attracted to such an order."
The Court, in the aforesaid case answered the question whether the dismissal of a special leave petition would preclude any other remedy that was available under law. The Apex Court considered the various possibilities that arose when a special leave petition was disposed off and ruled thus:
"Grounds entitling exercise of review jurisdiction conferred by Order 47 Rule 1 of the C.P.C. or any other statutory provision or allowing review of an order passed in exercise of writ or supervisory jurisdiction of the High Court (where also the principles underlying or emerging from Order 47 Rule 1 of the C.P.C. act as guidelines) are not necessarily the same on which this court exercises discretion to grant or not to grant special leave to appeal while disposing of a petition for the purpose.
Mere rejection of special leave petition does not take away the jurisdiction of the court, tribunal or forum whose order forms the subject matter of petition for special leave to review its own order if grounds for exercise of review jurisdiction are shown to exist.
Where the order rejecting an SLP is a speaking order, that is, where reasons have been assigned by this Court for rejecting the petition for special leave and are stated in the order still the order remains the one rejecting prayer for the grant of leave to appeal. The petitioner has been turned away at the threshold without having been allowed to enter in the appellate jurisdiction of this Court.
Here also the doctrine of merger would not apply. But the law stated or declared by this Court in its order shall attract applicability of Article 141 of the Constitution. The reasons assigned by this Court in its order expressing its adjudication (expressly or by necessary implication) on point of fact or law shall take away the jurisdiction of any other court, tribunal or authority to express any opinion in conflict with or in departure from the view taken by this Court because permitting to do so would be subversive of judicial discipline and an affront to the order of this Court. However this would be so not by reference to the doctrine of merger."
It would be relevant to refer to Indian Oil Corporation Lid. v. State of Bihar 1986 SCC (4) 146, 1986 AIR 1780, wherein the question that arose before the Apex Court was whether the dismissal in limine of a SLP filed before the Apex Court challenging the award of a Labour Court would preclude the said party from subsequently approaching the High Court under Article 226 of the Constitution seeking to set aside the said award. The Court held that a writ petition was maintainable and was not barred by res judicata or principles analogous thereto. The Court observed thus:
"We are clearly of opinion that the view taken by the High Court was not right and that the High Court should have gone into the merits of the writ petition without dismissing it on the preliminary ground. As observed by this Court in Workmen of Cochin Port Trust v. Board of Trustees of the Cochin Port Trust and Another, [1978] 3 S.C.C. 119 the effect of a non-speaking order of dismissal of a special leave petition without anything more indicating the grounds or reasons of its dismissal must, by necessary implication, be taken to be that this Court had decided only that it was not a fit case where special leave should be granted.
This conclusion may have been reached by this Court due to several reasons. When the order passed by this Court was not a speaking one, it is not correct to assume that this Court had necessarily decided implicitly all the questions in relation to the merits of the award, which was under challenge before this Court in the special leave petition. A writ proceeding is a wholly different and distinct proceeding.
Questions which can be said to have been decided by this Court expressly, implicitly or even constructively while dismissing the special leave petition cannot, of course, be re-opened in a subsequent writ proceeding before the High Court. But neither on the principle of res judicata nor on any principle of public policy analogous thereto, would the order of this Court dismissing the special leave petition operate to bar the trial of identical issues in a separate proceeding namely, the writ proceeding before the High Court merely on the basis of an uncertain assumption that the issue must have been decided by this Court at least by implication. It is not correct or safe to extend the principle of res judicata or constructive res judicata to such an extent so as to found it on mere guesswork.
This enunciation of the legal position has been reiterated by this Court in Ahmedabad Manufacturing & Calico Printing Company Ltd. v. Workmen and Anr, [1981] 3 S.C.R. 213. The principles laid down in the two decisions cited above fully govern the present case.
It is not the policy of this Court to entertain special leave petitions and grant leave under Article 136 of the Constitution save in those cases where some substantial question of law of general or public importance is involved or there is manifest injustice resulting from the impugned order or judgment. The dismissal of a special leave petition in limine by a non-speaking order does not therefore justify any inference that by necessary implication the contentions raised in the special leave petition on the merits of the case have been rejected by this Court.
It may also be observed that having regard to the very heavy backlog of work in this Court and the necessity to restrict the intake of fresh cases by strictly following the criteria aforementioned, it has very often been the practice of this Court not to grant special leave except where the party cannot claim effective relief by approaching the concerned High Court under Article 226 of the Constitution.
In such cases also the special leave petitions are quite often dismissed only by passing a non-speaking order especially in view of the rulings already given by this Court in the two decisions afore-cited, that such dismissal of the special leave petition will not preclude the party from moving the High Court for seeking relief under Article 226 of the Constitution. In such cases it would work extreme hardship and injustice if the High Court were to close its doors to the petitioner and refuse him relief under Article 226 of the Constitution on the sole ground of dismissal of the special leave petition."
The Apex Court in Kunhayammed v. State of Kerala (supra) dealt with the Doctrine of Merger elaborately and discussed various case laws and held thus:
"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. On more occasions than one this Court had an opportunity of dealing with the doctrine of merger. It would be advisable to trace and set out the judicial opinion of this Court as it has progressed through the times.
In Commissioner of Income-tax, Bombay Vs. M/s Amritlal Bhogilal and Co. AIR 1958 SC 868 this Court held :
There can be no doubt that, if an appeal is provided against an order passed by a tribunal, the decision of the appellate authority is the operative decision in law. If the appellate authority modifies or reverses the decision of the tribunal, it is obvious that it is the appellate decision that is effective and can be enforced. In law the position would be just the same even if the appellate decision merely confirms the decision of the tribunal. As a result of the confirmation or affirmance of the decision of the tribunal by the appellate authority the original decision merges in the appellate decision and it is the appellate decision alone which subsists and is operative and capable of enforcement.......
In M/s Gojer Brothers Pvt.Ltd. Vs. Shri Ratanlal AIR 1974 SC 1380 this Court made it clear that so far as merger is concerned on principle there is no distinction between an order of reversal or modification or an order of confirmation passed by the appellate authority; in all the three cases the order passed by the lower authority shall merge in the order passed by the appellate authority whatsoever be its decision whether of reversal or modification or only confirmation. Their Lordships referred to an earlier decision of this court in U.J.S. Chopra Vs. State of Bombay AIR 1955 SC 633 wherein it was held.
'A judgment pronounced by a High Court in 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 courts below.'
In S.S. Rathor Vs. State of Madhya Pradesh AIR 1990- SC 10 a larger Bench of this Court (Seven-Judges) having reviewed the available decisions of the Supreme Court on the doctrine of merger, held that the distinction made between courts and tribunals as regards the applicability of doctrine of merger is without any legal justification; where a statutory remedy was provided against an adverse order in a service dispute and that remedy was availed, the limitation for filing a suit challenging the adverse order would commence not from the date of the original adverse order but on the date when the order of the higher authority disposing of the statutory remedy was passed. Support was taken from doctrine of merger by referring to C.I.T. Vs. Amritlal Bhogilal & Co. (supra) and several other decisions of this Court.
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. When a decree or order passed by inferior court, tribunal or authority was subjected to a remedy available under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy.
Once the superior court has disposed of the lis before it either way - whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the court, tribunal or the authority below. However, the doctrine is not of universal or unlimited application. The nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or which could have been laid shall have to be kept in view."
The aforesaid proposition of law was propounded by the Apex Court regarding judgments passed till the High Court stage. The Court, in the above case, further discussed in details the Article 136 & it's applicability of the Doctrine of Merger at the Stage of SLP and post-leave stage. The Court further held thus:
"Article 136 of the Constitution is a special jurisdiction conferred on the Supreme Court which is sweeping in its nature. It is a residuary power in the sense that it confers an appellate jurisdiction on the Supreme Court subject to the special leave being granted in such matters as may not be covered by the preceding articles. It is an overriding provision conferring a special jurisdiction providing for invoking of the appellate jurisdiction of Supreme Court not fettered by the sweep of preceding articles.
Article 136 opens with a non- obstante clause and conveys a message that even in the field covered by the preceding articles, jurisdiction conferred by Article 136 is available to be exercised in an appropriate case. It is an untrammeled reservoir of power incapable of being confined to definitional bounds; the discretion conferred on the Supreme Court being subjected to only one limitation, that is, the wisdom and good sense or sense of justice of the Judges. No right of appeal is conferred upon any party; only a discretion is vested in Supreme Court to interfere by granting leave to an applicant to enter in its appellate jurisdiction not open otherwise and as of right.
The exercise of jurisdiction conferred on this Court by Article 136 of the Constitution consists of two steps : (i) granting special leave to appeal; and (ii) hearing the appeal. This distinction is clearly demonstrated by the provisions of Order XVI of the Supreme Court Rules framed in exercise of the power conferred by Article 145 of the Constitution. Under Rule 4, the petition seeking special leave to appeal filed before the Supreme Court under Article 136 of the Constitution shall be in form No.28. No separate application for interim relief need be filed, which can be incorporated in the petition itself.
If notice is ordered on the special leave petition, the petitioner should take steps to serve the notice on the respondent. The petition shall be accompanied by a certified copy of the judgment or order appealed from and an affidavit in support of the statement of facts contained in the petition. Under Rule 10 the petition for grant of special leave shall be put up for hearing ex-parte unless there be a caveat.
The court if it thinks fit, may direct issue of notice to the respondent and adjourn the hearing of the petition. Under Rule 13, the respondent to whom a notice in special leave petition is issued or who had filed a caveat, shall be entitled to oppose the grant of leave or interim orders without filing any written objections. He shall also be at liberty to file his objections only by setting out the grounds in opposition to the questions of law or grounds set out in the S.L.P..
On hearing the Court may refuse the leave and dismiss the petition for seeking special leave to appeal either ex-parte or after issuing notice to the opposite party. Under Rule 11, on the grant of special leave, the petition for special leave shall, subject to the payment of additional court fee, if any, be treated as the petition of appeal and it shall be registered and numbered as such. The appeal shall then be set down for hearing in accordance with the procedure laid down thereafter. Thus, a petition seeking grant of special leave to appeal and the appeal itself, though both dealt with by Article 136 of the Constitution, are two clearly distinct stages.
In our opinion, the legal position which emerges is as under:
The Apex Court in the aforesaid case, further dealt with the Dismissal at stage of SLP without giving reasons and held that there is neither res judicata nor merger in such a case. The Court held thus:
"Having so analysed and defined the two stages of the jurisdiction conferred by Article 136, now we proceed to deal with a number of decisions cited at the Bar during the course of hearing and dealing with the legal tenor of an order of Supreme Court dismissing a special leave petition.
In Workmen of Cochin Port Trust Vs. Board of Trustees of the Cochin Port Trust and Another 1978 (3) SCC 119, a Three Judges Bench of this Court has held that dismissal of special leave petition by the Supreme Court by a non-speaking order of dismissal where no reasons were given does not constitute res judicata. All that can be said to have been decided by the Court is that it was not a fit case where special leave should be granted.
That may be due to various reasons. During the course of the judgement, their Lordships have observed that dismissal of a special leave petition under Article 136 against the order of a Tribunal did not necessarily bar the entertainment of a writ petition under Article 226 against the order of the Tribunal. The decision of Madras High Court in The Management of W. India Match Co. Ltd. Vs. Industrial Tribunal, AIR 1958 Mad 398, 403 was cited before their Lordships.
The High Court had taken the view that the right to apply for leave to appeal to Supreme Court under Article 136, if it could be called a right at all, cannot be equated to a right to appeal and that a High Court could not refuse to entertain an application under Article 226 of the Constitution on the ground that the aggrieved party could move Supreme Court under Article 136 of the Constitution. Their Lordships observed that such a broad statement of law is not quite accurate, although substantially it is correct."
It would be apropos to refer to M/s. Rup Diamonds and others Vs. Union of India and others AIR 1989 SC 674 wherein the Apex Court held that as per the law declared by Apex Court, it cannot be said that the mere rejection of special leave petition could, by itself, be construed as the imprimatur of this Court on the correctness of the decision sought to be appealed against.
This proposition was reiterated in Supreme Court Employees Welfare Association Vs. Union of India and Another 1989 (4) SCC 187. The Apex Court held thus:
"22. It has been already noticed that the special leave petitions filed on behalf of the Union of India against the said judgments of the Delhi High Court were summarily dismissed by this Court. It is now a well settled principle of law that when a special leave petition is summarily dismissed under Article 136 of the Constitution, by such dismissal this Court does not lay down any law, as envisaged by Article 141 of the Constitution, as contended by the learned Attorney-General.
In Indian Oil Corporation Ltd. v. State of Bihar, [1986] 4 SCC 146, it has been held by this Court that the dismissal of a special leave petition in limine by a non-speaking order does not justify any inference that, by necessary implication, the contentions raised in the special leave petition on the merits of the case have been rejected by the Supreme Court.
It has been further held that the effect of a non-speaking order of dismissal of a special leave petition without anything more indicating the grounds or reasons of its dismissal must, by necessary implication, be taken to be that the Supreme Court had decided only that it was not a fit case where special leave petition should be granted, in Union of India v. All India Services Pensioners' Association, [1988] 2 SCC 580 this Court has given reasons for dismissing the special leave petition.
When such reasons are given, the decision becomes one which attracts Article 141 of the Constitution which provides that the law declared by the Supreme Court shall be binding on all the courts within the territory of India. It, therefore, follows that when no reason is given, but a special leave petition is dismissed simpliciter, it cannot be said that there has been a declaration of law by this Court under Article 141 of the Constitution."
It is appropriate to refer to Yogendra Narayan Chowdhury and Others vs. Union of India and Others 1996 (7) SCC 1 wherein the Apex Court held thus:
"It is settled law that even the dismissal of Special Leave Petition in limine without assigning reasons does not operate as res judicata."
In V.M. Salgaocar & Bros. Pvt. Ltd. Vs. Commissioner of Income Tax 2000 (2) SCR 1169 the Apex Court held that a non-speaking order of dismissal of a SLP cannot lead to assumption that it had necessarily decided by implication the correctness of the decision under challenge. The Court held thus:
"Different considerations apply when a special leave petition under Article 136 of the Constitution is simply dismissed by saying 'dismissed' and an appeal provided under Article 133 is dismissed also with the words 'the appeal is dismissed'. In the former case it has been laid by this Court that when special leave petition is dismissed this Court does not comment on the correctness or otherwise of the order from which leave to appeal is sought...................This doctrine of merger does not apply in the case of dismissal of special leave petition under Article 136. When appeal is dismissed order of the High Court is merged with that of the Supreme Court."
The Apex Court in the case of Kunhayammed v. State of Kerala (supra) dealt with the legal implications of the Dismissal of SLP by speaking or reasoned order & held that in such a case there would be no merger but Rule of discipline and Article 141 would undoubtedly be attracted. The Court held thus:
"A petition for leave to appeal to this Court may be dismissed by a non-speaking order or by a speaking order. Whatever be the phraseology employed in the order of dismissal, if it is a non-speaking 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."
The Court finally summed up thus:
(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."
It would be germane to refer to the case in the case of Narcotics Control Bureau vs Dilip Pralhad Namade decided by the Apex Court on 18 March, 2004, wherein the Court dealt with the legal implications of disposal of SLP by the Apex Court & held thus:
"Furthermore, disposal of SLP against a judgment of the High Court does not mean that the said judgment is affirmed by such dismissal. The order passed in any SLP at threshold without detailed reasons does not constitute any declaration of law or constitute a binding precedent. (see Union of India and others vs. Jaipal Singh 2003(7) Supreme 676). This court cannot and does not reverse or modify the decree or order appealed against while deciding the petition for special leave to appeal and that too when the SLP was being dismissed.
What is impugned before this Court can be reversed or modified only after granting leave and then assuming appellate jurisdiction over it. If the order impugned before this Court cannot be reversed or modified at the SLP stage obviously that order cannot also be affirmed at the SLP stage (see Kunhayammed and others vs. State of Kerala and another (2000)6 SCC 359) and Sri Ramnik Vallabhdas Madvane and Ors. vs. Taraben Pravinlal Madhvani 2003 (8) Supreme 208)."
In the aforementioned case of Union of India and others vs. Jaipal Singh 2003(7) Supreme 676), the Apex Court dealing with a similar matter held thus:
"we are of the view that it is well accepted that an order rejecting a special leave petition at the threshold without detailed reasons therefore does not constitute any declaration of law by this Court or constitute a binding precedent."
It would befitting to refer to the above mentioned case of Sri Ramnik Vallabhdas Madvane and Ors. vs. Taraben Pravinlal Madhvani 2003 (8) Supreme 208 wherein the Apex Court dealing with the controversy in hand observed thus:
It follows that disposal of SLP against a judgment of the High Court does not mean that the said judgment is affirmed by such dismissal. The order on Special Leave petition is also never res judicata."
Following the earlier case- laws the Apex Court in the case of K.S. Krishnaswamy Etc vs Union of India & Anr (2007) 2 SCC (L&S) 491 the Court observed thus:
"Therefore, when the special leave petition is dismissed by the Supreme Court under Article 136 of the Constitution, the doctrine of merger is not attracted."
It should be worth mentioning that the Apex Court in State of Punjab vs Davinder Pal Singh Bhullar & others (2011) 14. SCC 770 dealt with the issue in hand and held thus:
A large number of judicial pronouncements made by this Court leave no manner of doubt that the dismissal of the Special Leave Petition in limine does not mean that the reasoning of the judgment of the High Court against which the Special Leave Petition had been filed before this Court stands affirmed or the judgment and order impugned merges with such order of this Court on dismissal of the petition. It simply means that this Court did not consider the case worth examining for a reason, which may be other than merit of the case. An order rejecting the Special Leave Petition at the threshold without detailed reasons, therefore, does not constitute any declaration of law or a binding precedent.
The doctrine of res judicata does not apply, if the case is entertained afresh at the behest of other parties. No inference can be drawn that by necessary implication, the contentions raised in the special leave petition on the merits of the case have been rejected. So it has no precedential value.
(See: The Workmen of Cochin Port Trust v. The Board of Trustees of the Cochin Port Trust & Anr., AIR 1978 SC 1283; Ahmedabad Manufacturing & Calico Printing Co. Ltd. v. The Workmen & Anr., AIR 1981 SC 960; Indian Oil Corporation Ltd. v. State of Bihar & Ors., AIR 1986 SC 1780; Yogendra Narayan Chowdhury & Ors. v. Union of India & Ors., AIR 1996 SC 751; Union of India & Anr. v. Sher Singh & Ors., AIR 1997 SC 1796; M/s Sun Export Corporation, Bombay v. Collector of Customs, Bombay & Anr., AIR 1997 SC 2658; Kunhayammed & Ors. v. State of Kerala & Anr., AIR 2000 SC 2587; Saurashtra Oil Mills Association, Gujarat v. State of Gujarat & Anr., AIR 2002 SC 1130; Union of India & Ors. v. Jaipal Singh, AIR 2004 SC 1005; and Delhi Development Authority v. Bhola Nath Sharma (dead) by L.Rs. & Ors., AIR 2011 SC 428)."
It would be apposite to refer to the case of Mohammad Latief Magrey vs The Union Territory of Jammu And Kashmir 2022 LiveLaw (SC) 756 decided on 12 September, 2022 wherein the Apex Court summed up thus:
"(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."
It should be of paramount importance to refer to S. Gangadhara Palo vs. Revenue Divisional Officer and Anr., (2011) 4 SCC 602, wherein the Court held thus:
"When this Court dismisses a special leave petition by giving some reasons, however meagre ( it can be even of just one sentence), there will be a merger of the judgment of the High Court into the order of the Supreme Court dismissing the special leave petition. According to the doctrine of merger, the judgment of the lower court merges into the judgment of the higher court.
Hence, if some reasons, however meagre, are given by this Court while dismissing the special leave petition, then by the doctrine of merger, the judgment of the High Court merges into the judgment of this Court and after merger there is no judgment of the High Court. Hence, obviously, there can be no review of a judgment which does not even exist.
The situation is totally different where a special leave petition is dismissed without giving any reasons whatsoever. It is well settled that special leave under Article 136 of the Constitution of India is a discretionary remedy, and hence a special leave petition can be dismissed for a variety of reasons and not necessarily on merits. We cannot say what was in the mind of the Court while dismissing the special leave petition without giving any reasons.
Hence, when a special leave petition is dismissed without giving any reasons, there is no merger of the judgment of the High Court with the order of this Court. Hence, the judgment of the High Court can be reviewed since it continues to exist, though the scope of the review petition is limited to errors apparent on the face of the record.
If, on the other hand, a special leave petition is dismissed with reasons, however meagre (it can be even of just one sentence), there is a merger of the judgment of the High Court in the order of the Supreme Court. (See the decisions of this Court in the cases of Kunhay Ammed & CIVIL APPEAL NO.5280 OF 2006 Others vs. State of Kerala & Another (2000) 6 SCC 359; S.Shanmugavel Nadar vs. State of Tamil Nadu & Another JT 2002 (7) SCC 568; State of Manipur vs. Thingujam Brojen Meetei AIR 1996 SC 2124; and U.P.State Road Transport Corporation vs. Omaditya Verma and others AIR 2005 SC 2250)."
The case of P. Singaravelan And Ors.Etc. Etc. vs District Collector, Tiruppur And others decided on 18 December, 2019 also deals with the issue. The Apex Court observed thus:
"7. It is evident that all the above orders were non-speaking orders, inasmuch as they were confined to a mere refusal to grant special leave to appeal to the petitioners therein. At this juncture, it is useful to recall that it is well-settled that the dismissal of an SLP against an order or judgment of a lower forum is not an affirmation of the same. If such an order of this Court is non-speaking, it does not constitute a declaration of law under Article 141 of the Constitution, or attract the doctrine of merger."
The Sree Narayana Dharma-Sangam vs Swami Prakasananda & Ors (1997) 6 SCC 78 also deals with the same issue. The Court held thus:
"Thus it is settled law that even the dismissal of special leave petition in limine operates as a final order between the parties and any order passed by the High Court Tribunal subsequently operates as a res judicata as far as the parties thereto. are concerned. It is true that in Indian Oil Corpn. Ltd. v. State of Bihar [(1386) 3 SCR at 558] this Court had pointed out that when the writ petition was dismissed by this Court in limine, the jurisdiction of the High Court under Article 226 is not precluded. The dismissal of the writ Petition under Article 32 does not operate as res judicata."
The Apex Court in the case of S. Shanmugavel Nadar vs State Of Tamil Nadu And Anr (2002) Supp 8 SCC 361 held thus:
M/s. Rup Diamonds and Ors. v. Union of India and Ors., AIR (1989) SC 674 is an authority for the proposition that apart altogether from the merits of the grounds for rejection, the mere rejection by a superior forum, resulting in refusal of exercise of its jurisdiction which was invoked, could not by itself be construed as the imprimatur of the superior forum on the correctness of the decisions sought to be appealed against.
In Supreme Court Employees Welfare Association v. Union of India and Ors.. AIR (1990) SC 334 this Court observed that a summary dismissal, without laying down any law, is not a declaration of law envisaged by Article 141 of the Constitution. When reasons are given, the decision of the Supreme Court becomes one which attracts Article 141 of the Constitution which provides that the law declared by the Supreme Court shall be binding on all the courts within the territory of India. When no reason are given, a dismissal simpliciter is not a declaration of law by the Supreme Court under Article 141 of the Constitution.
In Indian Oil Corporation Ltd. v. State of Bihar and Ors., AIR (1986) SC 1780 this Court observed that the questions which can be said to have been decided by this Court expressly, implicitly or even constructively, cannot be re-opened in subsequent proceedings; but neither on the principle of res judicata nor on any principle of public policy analogous thereto, would the order of this Court bar the trial of identical issue in separate proceedings merely on the basis of an uncertain assumption that the issues must nave been decided by this Court at least by implication.
It follows from a review of several decisions of this Court that it is the speech, express or necessarily implied, which only is the declaration of law by this Court within the meaning of Article 141 of the Constitution"
The Apex Court in Y. Satyanarayan Reddy vs Mandal Revenue Officer, A.P (2009) 9 SCC 447 held thus:
"25. It is well-settled that the dismissal of a Special Leave Petition in limine does not amount to a clear affirmation of the High Court decision and it does not constitute any binding precedent. (See : Workmen vs. Board of Trustees of the Cochin Port Trust, (1978) 3 SCC 119; Indian Oil Corporation Ltd. vs. State of Bihar, (1986) 4 SCC 146; Supreme Court Employees' Welfare Association vs. Union of India, (1989) 4 SCC 187; CIT vs. Shree Manjunatheaware Packing Products & Camphor Works, (1998) 1 SCC 598; P. Nallammal & Anr. vs. State, (1999) 6 SCC 559; UP State Road Transport Corporation vs. Omaditya Verma & Ors., (2005) 4 SCC 424)"
Thus, it is no longer res integra that dismissal of SLP by the Apex Court does not amount to merger and review of the order of the High Court is maintainable even after dismissal of SLP by the Apex Court by a non speaking order. Similarly, a writ petition under Article 226 of the Constitution is also maintainable after dismissal of SLP in limine. The dismissal of SLP in limine also does not attract Article 141 and is not a binding precedent.
Written By: Inder Chand Jain
Email: [email protected], Mob: 8279945021
It is common knowledge that majority of the Special Leave Petitions are dismissed in limine. Dismissal in limine implies dismissal at the very outset. Limine is a Latin world which means "at the very threshold". A question arises as to what are the legal implications of the dismissal of SLP by the Apex Court in limine particularly with reference to applicability of the Doctrine of Merger and Article 141 of the Constitution.
It would be trite to refer to the landmark judgment in the case of Kunhayammed v. State of Kerala (2000) 6 SCC 359 wherein a three member bench of the Apex Court summed up the reasons for rejection of SLP thus:
A petition seeking grant of special leave to appeal may be rejected for several reasons. For example, it may be rejected:
- as barred by time, or
- being a defective presentation,
- the petitioner having no locus standi to file the petition,
- the conduct of the petitioner disentitling him to any indulgence by the Court,
- the question raised by the petitioner for consideration by this Court being not fit for consideration or deserving being dealt with by the apex court of the country and so on.
The Court regarding applicability of Article 141 & Doctrine of Merger in the event of Dismissal of SLP succinctly ruled thus :
"The expression often employed by this Court while disposing of such petitions are - heard and dismissed, dismissed, dismissed as barred by time and so on. May be that at the admission stage itself the opposite party appears on caveat or on notice and offers contest to the maintainability of the petition. The Court may apply its mind to the meritworthiness of the petitioners prayer seeking leave to file an appeal and having formed an opinion may say dismissed on merits. Such an order may be passed even ex-parte, that is, in the absence of the opposite party. In any case, the dismissal would remain a dismissal by a non-speaking order where no reasons have been assigned and no law has been declared by the Supreme Court. The dismissal is not of the appeal but of the special leave petition. Even if the merits have been gone into, they are the merits of the special leave petition only. In our opinion neither doctrine of merger nor Article 141 of the Constitution is attracted to such an order."
The Court, in the aforesaid case answered the question whether the dismissal of a special leave petition would preclude any other remedy that was available under law. The Apex Court considered the various possibilities that arose when a special leave petition was disposed off and ruled thus:
"Grounds entitling exercise of review jurisdiction conferred by Order 47 Rule 1 of the C.P.C. or any other statutory provision or allowing review of an order passed in exercise of writ or supervisory jurisdiction of the High Court (where also the principles underlying or emerging from Order 47 Rule 1 of the C.P.C. act as guidelines) are not necessarily the same on which this court exercises discretion to grant or not to grant special leave to appeal while disposing of a petition for the purpose.
Mere rejection of special leave petition does not take away the jurisdiction of the court, tribunal or forum whose order forms the subject matter of petition for special leave to review its own order if grounds for exercise of review jurisdiction are shown to exist.
Where the order rejecting an SLP is a speaking order, that is, where reasons have been assigned by this Court for rejecting the petition for special leave and are stated in the order still the order remains the one rejecting prayer for the grant of leave to appeal. The petitioner has been turned away at the threshold without having been allowed to enter in the appellate jurisdiction of this Court.
Here also the doctrine of merger would not apply. But the law stated or declared by this Court in its order shall attract applicability of Article 141 of the Constitution. The reasons assigned by this Court in its order expressing its adjudication (expressly or by necessary implication) on point of fact or law shall take away the jurisdiction of any other court, tribunal or authority to express any opinion in conflict with or in departure from the view taken by this Court because permitting to do so would be subversive of judicial discipline and an affront to the order of this Court. However this would be so not by reference to the doctrine of merger."
It would be relevant to refer to Indian Oil Corporation Lid. v. State of Bihar 1986 SCC (4) 146, 1986 AIR 1780, wherein the question that arose before the Apex Court was whether the dismissal in limine of a SLP filed before the Apex Court challenging the award of a Labour Court would preclude the said party from subsequently approaching the High Court under Article 226 of the Constitution seeking to set aside the said award. The Court held that a writ petition was maintainable and was not barred by res judicata or principles analogous thereto. The Court observed thus:
"We are clearly of opinion that the view taken by the High Court was not right and that the High Court should have gone into the merits of the writ petition without dismissing it on the preliminary ground. As observed by this Court in Workmen of Cochin Port Trust v. Board of Trustees of the Cochin Port Trust and Another, [1978] 3 S.C.C. 119 the effect of a non-speaking order of dismissal of a special leave petition without anything more indicating the grounds or reasons of its dismissal must, by necessary implication, be taken to be that this Court had decided only that it was not a fit case where special leave should be granted.
This conclusion may have been reached by this Court due to several reasons. When the order passed by this Court was not a speaking one, it is not correct to assume that this Court had necessarily decided implicitly all the questions in relation to the merits of the award, which was under challenge before this Court in the special leave petition. A writ proceeding is a wholly different and distinct proceeding.
Questions which can be said to have been decided by this Court expressly, implicitly or even constructively while dismissing the special leave petition cannot, of course, be re-opened in a subsequent writ proceeding before the High Court. But neither on the principle of res judicata nor on any principle of public policy analogous thereto, would the order of this Court dismissing the special leave petition operate to bar the trial of identical issues in a separate proceeding namely, the writ proceeding before the High Court merely on the basis of an uncertain assumption that the issue must have been decided by this Court at least by implication. It is not correct or safe to extend the principle of res judicata or constructive res judicata to such an extent so as to found it on mere guesswork.
This enunciation of the legal position has been reiterated by this Court in Ahmedabad Manufacturing & Calico Printing Company Ltd. v. Workmen and Anr, [1981] 3 S.C.R. 213. The principles laid down in the two decisions cited above fully govern the present case.
It is not the policy of this Court to entertain special leave petitions and grant leave under Article 136 of the Constitution save in those cases where some substantial question of law of general or public importance is involved or there is manifest injustice resulting from the impugned order or judgment. The dismissal of a special leave petition in limine by a non-speaking order does not therefore justify any inference that by necessary implication the contentions raised in the special leave petition on the merits of the case have been rejected by this Court.
It may also be observed that having regard to the very heavy backlog of work in this Court and the necessity to restrict the intake of fresh cases by strictly following the criteria aforementioned, it has very often been the practice of this Court not to grant special leave except where the party cannot claim effective relief by approaching the concerned High Court under Article 226 of the Constitution.
In such cases also the special leave petitions are quite often dismissed only by passing a non-speaking order especially in view of the rulings already given by this Court in the two decisions afore-cited, that such dismissal of the special leave petition will not preclude the party from moving the High Court for seeking relief under Article 226 of the Constitution. In such cases it would work extreme hardship and injustice if the High Court were to close its doors to the petitioner and refuse him relief under Article 226 of the Constitution on the sole ground of dismissal of the special leave petition."
The Apex Court in Kunhayammed v. State of Kerala (supra) dealt with the Doctrine of Merger elaborately and discussed various case laws and held thus:
"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. On more occasions than one this Court had an opportunity of dealing with the doctrine of merger. It would be advisable to trace and set out the judicial opinion of this Court as it has progressed through the times.
In Commissioner of Income-tax, Bombay Vs. M/s Amritlal Bhogilal and Co. AIR 1958 SC 868 this Court held :
There can be no doubt that, if an appeal is provided against an order passed by a tribunal, the decision of the appellate authority is the operative decision in law. If the appellate authority modifies or reverses the decision of the tribunal, it is obvious that it is the appellate decision that is effective and can be enforced. In law the position would be just the same even if the appellate decision merely confirms the decision of the tribunal. As a result of the confirmation or affirmance of the decision of the tribunal by the appellate authority the original decision merges in the appellate decision and it is the appellate decision alone which subsists and is operative and capable of enforcement.......
In M/s Gojer Brothers Pvt.Ltd. Vs. Shri Ratanlal AIR 1974 SC 1380 this Court made it clear that so far as merger is concerned on principle there is no distinction between an order of reversal or modification or an order of confirmation passed by the appellate authority; in all the three cases the order passed by the lower authority shall merge in the order passed by the appellate authority whatsoever be its decision whether of reversal or modification or only confirmation. Their Lordships referred to an earlier decision of this court in U.J.S. Chopra Vs. State of Bombay AIR 1955 SC 633 wherein it was held.
'A judgment pronounced by a High Court in 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 courts below.'
In S.S. Rathor Vs. State of Madhya Pradesh AIR 1990- SC 10 a larger Bench of this Court (Seven-Judges) having reviewed the available decisions of the Supreme Court on the doctrine of merger, held that the distinction made between courts and tribunals as regards the applicability of doctrine of merger is without any legal justification; where a statutory remedy was provided against an adverse order in a service dispute and that remedy was availed, the limitation for filing a suit challenging the adverse order would commence not from the date of the original adverse order but on the date when the order of the higher authority disposing of the statutory remedy was passed. Support was taken from doctrine of merger by referring to C.I.T. Vs. Amritlal Bhogilal & Co. (supra) and several other decisions of this Court.
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. When a decree or order passed by inferior court, tribunal or authority was subjected to a remedy available under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy.
Once the superior court has disposed of the lis before it either way - whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the court, tribunal or the authority below. However, the doctrine is not of universal or unlimited application. The nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or which could have been laid shall have to be kept in view."
The aforesaid proposition of law was propounded by the Apex Court regarding judgments passed till the High Court stage. The Court, in the above case, further discussed in details the Article 136 & it's applicability of the Doctrine of Merger at the Stage of SLP and post-leave stage. The Court further held thus:
"Article 136 of the Constitution is a special jurisdiction conferred on the Supreme Court which is sweeping in its nature. It is a residuary power in the sense that it confers an appellate jurisdiction on the Supreme Court subject to the special leave being granted in such matters as may not be covered by the preceding articles. It is an overriding provision conferring a special jurisdiction providing for invoking of the appellate jurisdiction of Supreme Court not fettered by the sweep of preceding articles.
Article 136 opens with a non- obstante clause and conveys a message that even in the field covered by the preceding articles, jurisdiction conferred by Article 136 is available to be exercised in an appropriate case. It is an untrammeled reservoir of power incapable of being confined to definitional bounds; the discretion conferred on the Supreme Court being subjected to only one limitation, that is, the wisdom and good sense or sense of justice of the Judges. No right of appeal is conferred upon any party; only a discretion is vested in Supreme Court to interfere by granting leave to an applicant to enter in its appellate jurisdiction not open otherwise and as of right.
The exercise of jurisdiction conferred on this Court by Article 136 of the Constitution consists of two steps : (i) granting special leave to appeal; and (ii) hearing the appeal. This distinction is clearly demonstrated by the provisions of Order XVI of the Supreme Court Rules framed in exercise of the power conferred by Article 145 of the Constitution. Under Rule 4, the petition seeking special leave to appeal filed before the Supreme Court under Article 136 of the Constitution shall be in form No.28. No separate application for interim relief need be filed, which can be incorporated in the petition itself.
If notice is ordered on the special leave petition, the petitioner should take steps to serve the notice on the respondent. The petition shall be accompanied by a certified copy of the judgment or order appealed from and an affidavit in support of the statement of facts contained in the petition. Under Rule 10 the petition for grant of special leave shall be put up for hearing ex-parte unless there be a caveat.
The court if it thinks fit, may direct issue of notice to the respondent and adjourn the hearing of the petition. Under Rule 13, the respondent to whom a notice in special leave petition is issued or who had filed a caveat, shall be entitled to oppose the grant of leave or interim orders without filing any written objections. He shall also be at liberty to file his objections only by setting out the grounds in opposition to the questions of law or grounds set out in the S.L.P..
On hearing the Court may refuse the leave and dismiss the petition for seeking special leave to appeal either ex-parte or after issuing notice to the opposite party. Under Rule 11, on the grant of special leave, the petition for special leave shall, subject to the payment of additional court fee, if any, be treated as the petition of appeal and it shall be registered and numbered as such. The appeal shall then be set down for hearing in accordance with the procedure laid down thereafter. Thus, a petition seeking grant of special leave to appeal and the appeal itself, though both dealt with by Article 136 of the Constitution, are two clearly distinct stages.
In our opinion, the legal position which emerges is as under:
- While hearing the petition for special leave to appeal, the Court is
called upon to see whether the petitioner should be granted such leave or
not. While hearing such petition, the Court is not exercising its appellate
jurisdiction; it is merely exercising its discretionary jurisdiction to
grant or not to grant leave to appeal. The petitioner is still outside the
gate of entry though aspiring to enter the appellate arena of Supreme Court.
Whether he enters or not would depend on the fate of his petition for
special leave;
- If the petition seeking grant of leave to appeal is dismissed, it is an
expression of opinion by the Court that a case for invoking appellate
jurisdiction of the Court was not made out;
- If leave to appeal is granted the appellate jurisdiction of the Court stands invoked; the gate for entry in appellate arena is opened. The petitioner is in and the respondent may also be called upon to face him, though in an appropriate case, in spite of having granted leave to appeal, the court may dismiss the appeal without noticing the respondent.
- In spite of a petition for special leave to appeal having been filed,
the judgment, decree or order against which leave to appeal has been sought
for, continues to be final,
effective and binding as between the parties. Once leave to appeal has been granted, the finality of the judgment, decree or order appealed against is put in jeopardy though it continues to be binding and effective between the parties unless it is a nullity or unless the Court may pass a specific order staying or suspending the operation or execution of the judgment, decree or order under challenge
The Apex Court in the aforesaid case, further dealt with the Dismissal at stage of SLP without giving reasons and held that there is neither res judicata nor merger in such a case. The Court held thus:
"Having so analysed and defined the two stages of the jurisdiction conferred by Article 136, now we proceed to deal with a number of decisions cited at the Bar during the course of hearing and dealing with the legal tenor of an order of Supreme Court dismissing a special leave petition.
In Workmen of Cochin Port Trust Vs. Board of Trustees of the Cochin Port Trust and Another 1978 (3) SCC 119, a Three Judges Bench of this Court has held that dismissal of special leave petition by the Supreme Court by a non-speaking order of dismissal where no reasons were given does not constitute res judicata. All that can be said to have been decided by the Court is that it was not a fit case where special leave should be granted.
That may be due to various reasons. During the course of the judgement, their Lordships have observed that dismissal of a special leave petition under Article 136 against the order of a Tribunal did not necessarily bar the entertainment of a writ petition under Article 226 against the order of the Tribunal. The decision of Madras High Court in The Management of W. India Match Co. Ltd. Vs. Industrial Tribunal, AIR 1958 Mad 398, 403 was cited before their Lordships.
The High Court had taken the view that the right to apply for leave to appeal to Supreme Court under Article 136, if it could be called a right at all, cannot be equated to a right to appeal and that a High Court could not refuse to entertain an application under Article 226 of the Constitution on the ground that the aggrieved party could move Supreme Court under Article 136 of the Constitution. Their Lordships observed that such a broad statement of law is not quite accurate, although substantially it is correct."
It would be apropos to refer to M/s. Rup Diamonds and others Vs. Union of India and others AIR 1989 SC 674 wherein the Apex Court held that as per the law declared by Apex Court, it cannot be said that the mere rejection of special leave petition could, by itself, be construed as the imprimatur of this Court on the correctness of the decision sought to be appealed against.
This proposition was reiterated in Supreme Court Employees Welfare Association Vs. Union of India and Another 1989 (4) SCC 187. The Apex Court held thus:
"22. It has been already noticed that the special leave petitions filed on behalf of the Union of India against the said judgments of the Delhi High Court were summarily dismissed by this Court. It is now a well settled principle of law that when a special leave petition is summarily dismissed under Article 136 of the Constitution, by such dismissal this Court does not lay down any law, as envisaged by Article 141 of the Constitution, as contended by the learned Attorney-General.
In Indian Oil Corporation Ltd. v. State of Bihar, [1986] 4 SCC 146, it has been held by this Court that the dismissal of a special leave petition in limine by a non-speaking order does not justify any inference that, by necessary implication, the contentions raised in the special leave petition on the merits of the case have been rejected by the Supreme Court.
It has been further held that the effect of a non-speaking order of dismissal of a special leave petition without anything more indicating the grounds or reasons of its dismissal must, by necessary implication, be taken to be that the Supreme Court had decided only that it was not a fit case where special leave petition should be granted, in Union of India v. All India Services Pensioners' Association, [1988] 2 SCC 580 this Court has given reasons for dismissing the special leave petition.
When such reasons are given, the decision becomes one which attracts Article 141 of the Constitution which provides that the law declared by the Supreme Court shall be binding on all the courts within the territory of India. It, therefore, follows that when no reason is given, but a special leave petition is dismissed simpliciter, it cannot be said that there has been a declaration of law by this Court under Article 141 of the Constitution."
It is appropriate to refer to Yogendra Narayan Chowdhury and Others vs. Union of India and Others 1996 (7) SCC 1 wherein the Apex Court held thus:
"It is settled law that even the dismissal of Special Leave Petition in limine without assigning reasons does not operate as res judicata."
In V.M. Salgaocar & Bros. Pvt. Ltd. Vs. Commissioner of Income Tax 2000 (2) SCR 1169 the Apex Court held that a non-speaking order of dismissal of a SLP cannot lead to assumption that it had necessarily decided by implication the correctness of the decision under challenge. The Court held thus:
"Different considerations apply when a special leave petition under Article 136 of the Constitution is simply dismissed by saying 'dismissed' and an appeal provided under Article 133 is dismissed also with the words 'the appeal is dismissed'. In the former case it has been laid by this Court that when special leave petition is dismissed this Court does not comment on the correctness or otherwise of the order from which leave to appeal is sought...................This doctrine of merger does not apply in the case of dismissal of special leave petition under Article 136. When appeal is dismissed order of the High Court is merged with that of the Supreme Court."
The Apex Court in the case of Kunhayammed v. State of Kerala (supra) dealt with the legal implications of the Dismissal of SLP by speaking or reasoned order & held that in such a case there would be no merger but Rule of discipline and Article 141 would undoubtedly be attracted. The Court held thus:
"A petition for leave to appeal to this Court may be dismissed by a non-speaking order or by a speaking order. Whatever be the phraseology employed in the order of dismissal, if it is a non-speaking 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."
The Court finally summed up thus:
(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."
It would be germane to refer to the case in the case of Narcotics Control Bureau vs Dilip Pralhad Namade decided by the Apex Court on 18 March, 2004, wherein the Court dealt with the legal implications of disposal of SLP by the Apex Court & held thus:
"Furthermore, disposal of SLP against a judgment of the High Court does not mean that the said judgment is affirmed by such dismissal. The order passed in any SLP at threshold without detailed reasons does not constitute any declaration of law or constitute a binding precedent. (see Union of India and others vs. Jaipal Singh 2003(7) Supreme 676). This court cannot and does not reverse or modify the decree or order appealed against while deciding the petition for special leave to appeal and that too when the SLP was being dismissed.
What is impugned before this Court can be reversed or modified only after granting leave and then assuming appellate jurisdiction over it. If the order impugned before this Court cannot be reversed or modified at the SLP stage obviously that order cannot also be affirmed at the SLP stage (see Kunhayammed and others vs. State of Kerala and another (2000)6 SCC 359) and Sri Ramnik Vallabhdas Madvane and Ors. vs. Taraben Pravinlal Madhvani 2003 (8) Supreme 208)."
In the aforementioned case of Union of India and others vs. Jaipal Singh 2003(7) Supreme 676), the Apex Court dealing with a similar matter held thus:
"we are of the view that it is well accepted that an order rejecting a special leave petition at the threshold without detailed reasons therefore does not constitute any declaration of law by this Court or constitute a binding precedent."
It would befitting to refer to the above mentioned case of Sri Ramnik Vallabhdas Madvane and Ors. vs. Taraben Pravinlal Madhvani 2003 (8) Supreme 208 wherein the Apex Court dealing with the controversy in hand observed thus:
It follows that disposal of SLP against a judgment of the High Court does not mean that the said judgment is affirmed by such dismissal. The order on Special Leave petition is also never res judicata."
Following the earlier case- laws the Apex Court in the case of K.S. Krishnaswamy Etc vs Union of India & Anr (2007) 2 SCC (L&S) 491 the Court observed thus:
"Therefore, when the special leave petition is dismissed by the Supreme Court under Article 136 of the Constitution, the doctrine of merger is not attracted."
It should be worth mentioning that the Apex Court in State of Punjab vs Davinder Pal Singh Bhullar & others (2011) 14. SCC 770 dealt with the issue in hand and held thus:
A large number of judicial pronouncements made by this Court leave no manner of doubt that the dismissal of the Special Leave Petition in limine does not mean that the reasoning of the judgment of the High Court against which the Special Leave Petition had been filed before this Court stands affirmed or the judgment and order impugned merges with such order of this Court on dismissal of the petition. It simply means that this Court did not consider the case worth examining for a reason, which may be other than merit of the case. An order rejecting the Special Leave Petition at the threshold without detailed reasons, therefore, does not constitute any declaration of law or a binding precedent.
The doctrine of res judicata does not apply, if the case is entertained afresh at the behest of other parties. No inference can be drawn that by necessary implication, the contentions raised in the special leave petition on the merits of the case have been rejected. So it has no precedential value.
(See: The Workmen of Cochin Port Trust v. The Board of Trustees of the Cochin Port Trust & Anr., AIR 1978 SC 1283; Ahmedabad Manufacturing & Calico Printing Co. Ltd. v. The Workmen & Anr., AIR 1981 SC 960; Indian Oil Corporation Ltd. v. State of Bihar & Ors., AIR 1986 SC 1780; Yogendra Narayan Chowdhury & Ors. v. Union of India & Ors., AIR 1996 SC 751; Union of India & Anr. v. Sher Singh & Ors., AIR 1997 SC 1796; M/s Sun Export Corporation, Bombay v. Collector of Customs, Bombay & Anr., AIR 1997 SC 2658; Kunhayammed & Ors. v. State of Kerala & Anr., AIR 2000 SC 2587; Saurashtra Oil Mills Association, Gujarat v. State of Gujarat & Anr., AIR 2002 SC 1130; Union of India & Ors. v. Jaipal Singh, AIR 2004 SC 1005; and Delhi Development Authority v. Bhola Nath Sharma (dead) by L.Rs. & Ors., AIR 2011 SC 428)."
It would be apposite to refer to the case of Mohammad Latief Magrey vs The Union Territory of Jammu And Kashmir 2022 LiveLaw (SC) 756 decided on 12 September, 2022 wherein the Apex Court summed up thus:
"(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."
It should be of paramount importance to refer to S. Gangadhara Palo vs. Revenue Divisional Officer and Anr., (2011) 4 SCC 602, wherein the Court held thus:
"When this Court dismisses a special leave petition by giving some reasons, however meagre ( it can be even of just one sentence), there will be a merger of the judgment of the High Court into the order of the Supreme Court dismissing the special leave petition. According to the doctrine of merger, the judgment of the lower court merges into the judgment of the higher court.
Hence, if some reasons, however meagre, are given by this Court while dismissing the special leave petition, then by the doctrine of merger, the judgment of the High Court merges into the judgment of this Court and after merger there is no judgment of the High Court. Hence, obviously, there can be no review of a judgment which does not even exist.
The situation is totally different where a special leave petition is dismissed without giving any reasons whatsoever. It is well settled that special leave under Article 136 of the Constitution of India is a discretionary remedy, and hence a special leave petition can be dismissed for a variety of reasons and not necessarily on merits. We cannot say what was in the mind of the Court while dismissing the special leave petition without giving any reasons.
Hence, when a special leave petition is dismissed without giving any reasons, there is no merger of the judgment of the High Court with the order of this Court. Hence, the judgment of the High Court can be reviewed since it continues to exist, though the scope of the review petition is limited to errors apparent on the face of the record.
If, on the other hand, a special leave petition is dismissed with reasons, however meagre (it can be even of just one sentence), there is a merger of the judgment of the High Court in the order of the Supreme Court. (See the decisions of this Court in the cases of Kunhay Ammed & CIVIL APPEAL NO.5280 OF 2006 Others vs. State of Kerala & Another (2000) 6 SCC 359; S.Shanmugavel Nadar vs. State of Tamil Nadu & Another JT 2002 (7) SCC 568; State of Manipur vs. Thingujam Brojen Meetei AIR 1996 SC 2124; and U.P.State Road Transport Corporation vs. Omaditya Verma and others AIR 2005 SC 2250)."
The case of P. Singaravelan And Ors.Etc. Etc. vs District Collector, Tiruppur And others decided on 18 December, 2019 also deals with the issue. The Apex Court observed thus:
"7. It is evident that all the above orders were non-speaking orders, inasmuch as they were confined to a mere refusal to grant special leave to appeal to the petitioners therein. At this juncture, it is useful to recall that it is well-settled that the dismissal of an SLP against an order or judgment of a lower forum is not an affirmation of the same. If such an order of this Court is non-speaking, it does not constitute a declaration of law under Article 141 of the Constitution, or attract the doctrine of merger."
The Sree Narayana Dharma-Sangam vs Swami Prakasananda & Ors (1997) 6 SCC 78 also deals with the same issue. The Court held thus:
"Thus it is settled law that even the dismissal of special leave petition in limine operates as a final order between the parties and any order passed by the High Court Tribunal subsequently operates as a res judicata as far as the parties thereto. are concerned. It is true that in Indian Oil Corpn. Ltd. v. State of Bihar [(1386) 3 SCR at 558] this Court had pointed out that when the writ petition was dismissed by this Court in limine, the jurisdiction of the High Court under Article 226 is not precluded. The dismissal of the writ Petition under Article 32 does not operate as res judicata."
The Apex Court in the case of S. Shanmugavel Nadar vs State Of Tamil Nadu And Anr (2002) Supp 8 SCC 361 held thus:
M/s. Rup Diamonds and Ors. v. Union of India and Ors., AIR (1989) SC 674 is an authority for the proposition that apart altogether from the merits of the grounds for rejection, the mere rejection by a superior forum, resulting in refusal of exercise of its jurisdiction which was invoked, could not by itself be construed as the imprimatur of the superior forum on the correctness of the decisions sought to be appealed against.
In Supreme Court Employees Welfare Association v. Union of India and Ors.. AIR (1990) SC 334 this Court observed that a summary dismissal, without laying down any law, is not a declaration of law envisaged by Article 141 of the Constitution. When reasons are given, the decision of the Supreme Court becomes one which attracts Article 141 of the Constitution which provides that the law declared by the Supreme Court shall be binding on all the courts within the territory of India. When no reason are given, a dismissal simpliciter is not a declaration of law by the Supreme Court under Article 141 of the Constitution.
In Indian Oil Corporation Ltd. v. State of Bihar and Ors., AIR (1986) SC 1780 this Court observed that the questions which can be said to have been decided by this Court expressly, implicitly or even constructively, cannot be re-opened in subsequent proceedings; but neither on the principle of res judicata nor on any principle of public policy analogous thereto, would the order of this Court bar the trial of identical issue in separate proceedings merely on the basis of an uncertain assumption that the issues must nave been decided by this Court at least by implication.
It follows from a review of several decisions of this Court that it is the speech, express or necessarily implied, which only is the declaration of law by this Court within the meaning of Article 141 of the Constitution"
The Apex Court in Y. Satyanarayan Reddy vs Mandal Revenue Officer, A.P (2009) 9 SCC 447 held thus:
"25. It is well-settled that the dismissal of a Special Leave Petition in limine does not amount to a clear affirmation of the High Court decision and it does not constitute any binding precedent. (See : Workmen vs. Board of Trustees of the Cochin Port Trust, (1978) 3 SCC 119; Indian Oil Corporation Ltd. vs. State of Bihar, (1986) 4 SCC 146; Supreme Court Employees' Welfare Association vs. Union of India, (1989) 4 SCC 187; CIT vs. Shree Manjunatheaware Packing Products & Camphor Works, (1998) 1 SCC 598; P. Nallammal & Anr. vs. State, (1999) 6 SCC 559; UP State Road Transport Corporation vs. Omaditya Verma & Ors., (2005) 4 SCC 424)"
Thus, it is no longer res integra that dismissal of SLP by the Apex Court does not amount to merger and review of the order of the High Court is maintainable even after dismissal of SLP by the Apex Court by a non speaking order. Similarly, a writ petition under Article 226 of the Constitution is also maintainable after dismissal of SLP in limine. The dismissal of SLP in limine also does not attract Article 141 and is not a binding precedent.
Written By: Inder Chand Jain
Email: [email protected], Mob: 8279945021
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