The answer to the question of whether the Supreme Court ought to, or ought not to entertain an SLP on the ground of maintainability is not a straightforward one. The Supreme Court in a series of decisions has laid down principles which are to be applied to answer this vexed question. In my view, even today, there are decisions which are conflicting each other and which need resolution. An examination of these principles is attempted in this Article which hopefully brings some clarity to this ‘code’ of law.

Discussion
In Khoday Distilleries vs. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd. (2019) 4 SCC 376, the Supreme Court reiterated the principles in Kunhyammed and laid down principles as follows:

27. From a cumulative reading of the various judgments, we sum up the legal position as under:

1. The conclusions rendered by the three Judge Bench of this Court in Kunhayammed and summed up in paragraph 44 are affirmed and reiterated.
    
2. We reiterate the conclusions relevant for these cases as under:
   "(iv) An order refusing special leave to appeal may be a nonspeaking 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 Code of Civil Procedure.
    
3. Once we hold that law laid down in Kunhayammed is to be followed, 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. Such a situation is covered in para 37 of Kunhayammed case.

The Court applying the above principles stated as follows:

Applying the aforesaid principles, the outcome of these appeals would be as under:

Civil Appeal arising out of Special Leave Petition (Civil) No. 490 of 2012:

In the instant case, since special leave petition was dismissed in limine without giving any reasons, the review petition filed by the Appellant in the High Court would be maintainable and should have been decided on merits. Order dated November 12, 2008 passed by the High Court is accordingly set aside and matter is remanded back to the High Court for deciding the review petition on merits. Civil Appeal disposed of accordingly.

Civil Appeal arising out of Special Leave Petition (Civil) No. 13792 of 2013:

In this case, we find that the special leave petition was dismissed with the following order passed on January 05, 2012. We find no ground to interfere with the impugned order. The special leave petition is dismissed.

Civil Appeal arising out of Special Leave Petition (Civil) No. 13792 of 2013:

In this case, we find that the special leave petition was dismissed with the following order passed on January 05, 2012. We find no ground to interfere with the impugned order. The special leave petition is dismissed. Here also, special leave petition was dismissed in limine and without any speaking order. After the dismissal of the special leave petition, the Respondent in this appeal had approached the High Court with review petition.

Said review petition is allowed by passing order dated December 12, 2012 on the ground of suppression of material facts by the Appellant herein and commission of fraud on the Court. Such a review petition was maintainable. Therefore, the High Court was empowered to entertain the same on merits. Insofar as appeal of the Appellant challenging the order dated December 12, 2012 on merits is concerned, the matter shall be placed before the regular Board to decide the same.

Thus, the Court has held that even though the SLP against the main judgment is dismissed summarily, the doctrine of merger not being applicable, after the dismissal of the SLP the review against the main judgment by the high court is maintainable. The judgment passed in the review petition is appealable to the Supreme Court. That is why the Court in Khoday Distilleries has directed the matter to be placed before the regular board.

However, in stark contrast to the above judgment, recently the Supreme Court in T.K. David Vs. Kuruppampady Service Co-Operative Bank Ltd. & Ors. [Special Leave Petition (C)No.10482 Of 2020 dated October 05, 2020], has held that if the SLP against the main judgment is dismissed, and subsequently a review petition is filed in the High Court and the review is dismissed after examination on merits, the main judgment having become final by dismissal of SLP, the challenge to the decision in the review petition must fail. The ratio decidendi is diametrically opposite to the ratio in Khoday Distilleries and Kunhyammed. In TK David it is stated as follows:

‘The rationale for not entertaining a special leave petition challenging the order of High Court rejecting the review petition when main order in the writ petition is not challenged can be easily comprehended. Against the main judgment the SLP having been dismissed earlier the same having become final between the parties cannot be allowed to be affected at the instance of petitioner. When the main judgment of the High Court cannot be effected in any manner, no relief can be granted by this Court in the special leave petition filed against order rejecting review application to review the main judgment of the High Court.

This Court does not entertain a special leave petition in which no relief can be granted. It is due to this reason that this Court in Bussa Overseas and Properties Private Limited and Anr. (supra) has held that principle of not entertaining special leave petition against an order rejecting the review petition when main judgment is not under challenge has become a precedential principle. We reiterate the above precedential principle in this case again.

16. The special leave petition against the Division Bench judgment dated 11.03.2015 having been dismissed by this Court earlier on 21.08.2015 and the review petition filed by the petitioner to review the judgment having been dismissed by the impugned judgment, we see no reason to entertain this special leave petition. The special leave petition is accordingly dismissed.’

This judgment is in conflict with Khoday Distilleries. The SLP against the main judgment was dismissed summarily in TK David and leave was not granted so the doctrine of merger is not applicable- there was no merger with the main judgment of the High Court with the decision in the SLP. (Even though review and curative petition against the decision in SLP was filed, that is not relevant.) As per Khoday Distilleries, it was open for the appellant to file a review petition against the main judgment before the High Court since the SLP against the main judgment was dismissed summarily. That review petition being decided on merits, it was open for the appellant to challenge the decision by SLP. Sadly, the decision in Khoday was not pointed out by counsel which could have changed the outcome of the decision in TK David.

Recently, on March 8th, 2021, the Supreme Court in Sudarshan Budek vs. State of Odisha [SLP(Civil) No. 4141/2021] followed the decision in Yashwant Negi (2020) 9 SCC 815. One of the principles iterated in Yashwant Negi is that if the decision in review does not interfere with the main judgment and the review is simply dismissed, then the appellant is required to challenge the main judgment and not the decision in review. On that ground the SLP was dismissed in Yashwant Negi since the appellant did not challenge the main decision, but challenged only the decision passed in review.

Conclusion
There is an apparent conflict with the decisions in TK David and Yashwant Negi on the one hand and Khoday Distilleries and Kunhyammed on the other. While in TK David, the Court held that an order on SLP against the main judgment is final and therefore the SLP against the decision in the review petition is not maintainable, in Khoday, just the opposite has been laid down.

I would like to sum up the principles as discerned from the judgments referred to above:

1. If an SLP is rejected summarily, without granting leave, it is open for the appellant to prefer a review petition before the concerned HC. That review petition is necessarily to be decided on the merits. An SLP against the review petition would be maintainable.[Khoday Distilleries-Para 28][T.K David- Opposite is laid down]
   
   Considering that both the decisions are of a bench of three judges, the matter ought to be referred to a Constitution Bench. Nevertheless, in my view, the decision in Khoday Distilleries has laid down the correct principles. Also, the bench in TK David ought to have referred the matter to a constitution bench.
    
2. If leave is granted in the SLP, then the right to review the judgment is lost even if the review is pending adjudication.
3. If the SLP is rejected summarily, and the review petition is filed before the HC, and the HC does not interfere in the review and simply dismisses the review petition, the matter ought to be remanded to the HC to be decided on merits [Khoday Distilleries- para 28]
    
4. If a review is filed against the main judgment and the review is dismissed without any interference, then the main judgment is required to be challenged in SLP and not the reviewed order/decision. The SLP against the review order is therefore to be dismissed [Yashwant Negi-Para 3].
    
5. The review petition can be filed either before or after the SLP is dismissed. If it is filed after, there must not be inordinate delay in filing the review petition.

Even the decision in Yashwant Negi is contrary to Khoday Distilleries. In Khoday on a rather similar but not completely similar factual situation, the matter was remanded to the HC to be decided on merits. The only difference between Khoday and Yashwant Negi is that in the former case the SLP had been dismissed and the HC did not decide the review on merits.

Therefore, it was remanded to the HC to be decided on merits. In the latter case, if the review order was not on merits, then the original/main judgment was required to be challenged. In my view, in such a situation, the matter can be remanded to the HC to be decided on merits in the latter case and the SLP challenging the review decision need not be dismissed.

Written By: Arjun Gupta