Whenever a person is aggrieved by the order of the High Court, there is always an option to file a SLP under Article 136 of the Constitution in the Apex Court for due redressal. The success rate of admission of SLP is low and only a small percentage of the SLPs filed are successful. Most of the SlPs filed in the Apex Court are dismissed in Limine-by a Non Speaking Order. An important question arises whether a Review or a Writ under Article 226 of the Constitution filed in the High Court is maintainable against the main order of the High Court despite the dismissal of SLP by the Apex Court by a non-speaking order.

It is necessary to understand what the connotation Dismissal in limine legally implies. It would be trite to refer to the case of The State Of Odisha vs Dhirendra Sundar Das (2019) 6 SCC 270 wherein it was held thus:

It is a well settled principle of law emerging from a catena of decisions of this Court, including Supreme Court Employees' Welfare Association v. Union of India & Anr. (1989) 1 SCC 187 (paras 22 and 23) and State of Punjab v. Davinder Pal Singh Bhullar (2011) 14 SCC 770 (paras 112 and 113) that the dismissal of a S.L.P. in limine simply implies that the case before this Court was not considered worthy of examination for a reason, which may be other than the merits of the case. Such in limine dismissal at the threshold without giving any detailed reasons, does not constitute any declaration of law or a binding precedent under Article 141 of the Constitution.

The aforesaid judgments of the Apex Court categorically holds that the Dismissal of SLP in liminie, i.e. by a non-speaking order, has no precedential value and does not preclude other remedies, if any, available to the aggrieved parties.

It is trite to refer to Workmen of Cochin Port Trust v. Board of Trustees of the Cochin Port Trust and Another, [1978] 3 S.C.C. 119 wherein the Apex Court has held that the effect of a non-speaking order of dismissal of a SLP without indicating the grounds or reasons of its dismissal be understood that the Court has only decided that it was not a fit case where SLP should have been granted.

The Court clarified that the conclusion to dismiss SLP, by a non- speaking order without assigning any reasons, may have been reached by the Court due to several reasons and therefore it is not correct to assume that the Court had necessarily decided implicitly all the questions/ merits of the order, which was under challenge before the Apex Court in the SLP.

The Court further held that a writ proceeding is a wholly different and distinct proceeding and the principle of res judicata would not be applicable when the Court dismisses the SLP by a non-speaking order and such an order would not operate as a bar for the trial of identical issues in a writ proceeding before the High Court instituted after the dismissal of SLP. This enunciation of the legal position has been further reiterated by the Apex Court in Ahmedabad Manufacturing & Calico Printing Company Ltd. v. Workmen and Anr, [1981] 3 S.C.R. 213.

It is apposite to refer to the case of Indian Oil Corpn. Ltd. v. State of Bihar (1986) 4 SCC 146 wherein the Apex Court, as regards to maintainability of Writ under Article 226 of the Constitution after dismissal of SLP in limine, held as under:

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 further reiterated this view in Kunhayammed v. State of Kerala, (2000) 6 SCC 359 wherein as regards the statutory right to relief by way of moving a Review Petition, the Court categorically held as under:

In our opinion what has been stated by this Court applies also to a case where a special leave petition having been dismissed by a non-speaking order, the applicant approaches the High Court by moving a petition for review. May be that the Supreme Court was not inclined to exercise its discretionary jurisdiction under Article 136 probably because it felt that it was open to the applicant to move the High Court itself. As nothing has been said specifically in the order dismissing the special leave petition one is left merely guessing.

We do not think it would be just to deprive the aggrieved person of the statutory right of seeking relief in review jurisdiction of the High Court if a case for relief in that jurisdiction could be made out merely because a special leave petition under Article 136 of the Constitution had already stood rejected by the Supreme Court by a non-speaking order.

The Court in the aforesaid case explained the doctrine of merger holding that the logic behind this doctrine is that there cannot be more than one decree or operative orders governing the same subject matter at a given point of time. Thus, when a decree or order passed by an inferior Court, Tribunal or Authority which is subjected to a remedy available under law before a superior forum, then, though the decree or order under challenge continues to be effective and binding, nevertheless, this finality is to put in jeopardy.

The Court also observed that once the superior court disposes of the dispute before it in any manner, i.e. either by affirming the decree or order or by settings aside or by modifying the same, it is the decree of the superior Court, Tribunal or Authority which is the final binding and operative decree and the decree or order of the lower Court, Tribunal or authority gets merged into the order passed by the superior forum.

The Court also clarified that this doctrine is not of universal or unlimited application. The Court thereafter discussed the provision pertaining to the appellate jurisdiction that is exercised by the Supreme Court conferred upon it by Articles 132 to 136 of the Constitution of India. As regards to jurisdiction under Article 136 is concerned, it explained that 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 untrammelled 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 the Supreme Court to interfere by granting leave to an applicant to enter in its appellate jurisdiction not open otherwise and as of right.

Despite the authoritative declaration of law by the Apex Court, confusions crept in by the three-Judge Bench judgment in Abbai Maligai Partnership Firm and Anr v. K Santhakumaran and Ors. (1998) 7 SCC 386. The Apex Court in the aforesaid case observed that in such cases High Court before exercising its review jurisdiction ought to examine whether the same would amount to an abuse of process or breach of judicial discipline.

Thus, the Court condemned the practice of filing a review petition after the dismissal of the SLP. The Court held that in the facts and circumstances of the case, the review petitioners had indulged in vexatious litigation and abuse of the process of the court by re-approaching the High Court and the reversal of the earlier order by the High Court was subversive of judicial discipline, palpably erroneous and an affront to the order of the Supreme Court dismissing the SLP. Since then, the said question of law remained unsettled for almost two decades. There were conflicting views of the different benches of the Apex Court and the different High Courts resulting in a flux.

The Benches of Apex Court followed Abbai Maligai Partnership Firm in Meghmala and Others v. G. Narasimha Reddy and Others (2010) 8 SCC 383 and K. Rajamouli v. A.V.K.N. Swamy 2001 5 SCC 37 and categorically held that review petition after dismissal of SLP by a non-speaking order is not maintainable. However, in Meghmala the Court made one exception by holding that in case a litigant files a review petition in the High Court before filing the SLP in the Supreme Court and it remains pending till the SLP is dismissed, the review petition still deserves to be considered.

However, the Court held that review petition filed after the dismissal of the SLP would amount to abuse of the process of the Court. Further, in Gangadhara Palo v. Revenue Divisional Officer and Another (2011) 4 SCC 602, the Apex Court held that it makes no difference whether the review petition was filed in the High Court before the dismissal of the special leave petition or after the dismissal thereof and in either case, the doctrine of merger would apply, even when the SLP is dismissed in limine and the same will bar the filing of the review petition before the High Court when the SLP is dismissed. Recently also in Medical Council of India v. State of Kerala and Others 2018 (11) Scale 141 wherein it was held that Dismissal of the SLP in limine meant that it was still a decision on merits by the Court.

On the other hand in Palani Roman Catholic Mission v. S. Bagirathi Ammal (2009) 16 SCC 657 and Bhakra Beas Management Board v. Krishna Kumar Vij and Another (2010) 8 SCC 701 held that review petition is maintainable if no leave has been granted to file an appeal and there is dismissal of the SLP at the preliminary stage itself. These cases have taken a view that dismissal of SLP without a speaking order does not constitute a binding precedent and the doctrine of merger would not apply in such cases. .

The 3 member Bench of the Apex Court in Khoday Distilleries Ltd. v. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd., (2019) 4 SCC 376 took note of the conflicting views in these two cases in Abbai Maligai Partnership Firm (supra) and Kunhayammed (supra), heard the matter at length and finally put to rest the long controversy and approved the dictum in Kunhayammed (supra). The Court held thus:

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 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.
    
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.

Para 37 of the said judgment read thus:
37. Let us assume that the review is filed first and the delay in SLP is condoned and the special leave is ultimately granted and the appeal is pending in this Court.

The position then, under Order 47 Rule 1 CPC is that still the review can be disposed of by the High Court. If the review of a decree is granted before the disposal of the appeal against the decree, the decree appealed against will cease to exist and the appeal would be rendered incompetent. An appeal cannot be preferred against a decree after a review against the decree has been granted. This is because the decree reviewed gets merged in the decree passed on review and the appeal to the superior court preferred against the earlier decree the one before review--becomes infructuous.

Thus it is no longer Res Integra that where SLP has been dismissed by the Apex Court in limine, by passing a non-speaking order, it does not preclude filing of a Review Petition or a Writ Petition by the aggrieved party before the High Court against its earlier order, provided such Review Petition or Writ Petition is otherwise admissible.

An important question that arises is the degeneration of Judicial Discipline by propounding conflicting views by different benches even after the declaration of law by a 3 member Bench in Kunhayammed as long as in year 2000 and other Binding judgments in 1989 and thereafter. It need not be stressed that Judicial Discipline requires that unanimity and consistency should have been maintained.

The other pinching aspect is that the Apex Court took 7 long years to decide the reference to the larger bench to set at rest the present controversy. When both the Apex Court and different High Courts are taking divergent views, in order to bring finality and curb unnecessary litigation and multiplicity, it should be incumbent on the Apex Court to formulate a Special Larger Bench to decide expeditiously all such pending references to larger bench where there are divergent/conflicting views or where statutory reference has been made.

Written By: Inder Chand Jain
Ph no: 8279945021, Email: [email protected]