Home Case Index All Cases Indian Laws Indian Laws + SC Indian Laws - 2019 (3) TMI SC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (3) TMI 232 - SC - Indian LawsMaintainability of review petition - doctrine of merger - Whether review petition is maintainable before the High Court seeking review of a judgment against which the special leave petition has already been dismissed by this Court? - Held that:- Explaining the doctrine of merger, the Court held that 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. When a decree or order passed by an inferior Court, Tribunal or Authority 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. 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. Having noted the two judgments of ABBAI MALIGAI PARTNERSHIP FIRM & ANR. VERSUS K. SANTHAKUMARAN & ORS. [1998 (9) TMI 663 - SUPREME COURT OF INDIA] and KUNHAYAMMED AND OTHERS VERSUS STATE OF KERALA AND ANOTHER [2000 (7) TMI 67 - SUPREME COURT], and particularly the fact that the earlier judgment in the case of Abbai Maligai Partnership Firm is duly taken cognisance of and explained in the latter judgment, we are of the view that there is no conflict insofar as ratio of the two cases is concerned. Moreover, Abbai Maligai Partnership Firm was decided on its peculiar facts, with no discussion on any principle of law, whereas Kunhayammed is an elaborate discourse based on well accepted propositions of law which are applicable for such an issue - thus, the detailed judgment in Kunhayammed lays down the correct law and there is no need to refer the cases to larger Bench, as was contended by the counsel for the appellant. 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. The 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.
|