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2019 (3) TMI 232

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 parti .....

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the appellant to respondent No.1. Against this, respondent No.1 preferred first appeal under Section 96 of the Code of Civil Procedure, 1908. This appeal was allowed by the High Court of Karnataka on November 12, 2008 by holding that the suit was filed within the period of limitation. Accordingly, it passed decree of the amount claimed along with interest @ 12% per annum from the date of demand, i.e. July 19, 1994, up to August 03, 1994 and the interest was granted @ 10% per annum from August 04, 1994 till the date of Civil Appeal arising out of SLP (C) No. 490 of 2012 & Anr. Page 2 of 27 payment. Against this judgment of the High Court, the appellant preferred the special leave petition. This special leave petition was dismissed by this Court on December 04, 2009 with the following order: "Delay condoned. Special Leave Petition is dismissed. After the dismissal of the special leave petition, respondent No.1 filed execution petition before the trial court. 5) It may be mentioned at this stage that after the High Court had decreed the suit of respondent No.1, the respondent filed application for rectification of the judgment, which was allowed on October 20, 2010 directing .....

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Hon ble Supreme Court, question of entertaining any review by us does not arise for consideration. Accordingly, review petition is dismissed. 8) As can be seen from the above order, the reason for dismissal of the review petition is that the Apex Court has already dismissed the special leave petition against the High Court s judgment dated November 12, 2008. Therefore, review of the said judgment by the High Court is not permissible. It is this order in review petition which is challenged in these proceedings inasmuch as case of the appellant is that when the special leave petition was dismissed in limine and not by speaking order, there was no reason not to entertain the review petition by the High Court, as dismissal of the special leave petition in limine by non-speaking order does not amount to merger of the High Court judgment with that of the Supreme Court. 9) The question of law which needs to be determined in the aforesaid circumstances is as to 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. 10) The reason for referring the matter to a larger Bench .....

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conflicting views are being expressed by the two-Judge Benches of this Court. In order to resolve those conflicts and for proper guidance to the High Courts, we feel it would be appropriate that this matter be referred to a larger Bench for an authoritative pronouncement. 11) There are two judgments of this court, both of which are three Judge Bench decisions. First in line is Abbai Maligai Partnership Firm and Another v. K. Santhakumaran and Others (1998) 7 SCC 386. This judgment is relied upon by respondent No.1 with the plea that in that judgment this Court held that when the judgment and decree passed by the High Court is affirmed by the Supreme Court with the dismissal of the special leave petition, there is no question of entertaining the review petition by the High Court, thereafter. Other judgment is in the case of Kunhayammed and Others v. State of Kerala and Another (2000) 6 SCC 359. In this judgment the Court laid down various ways in which special leave petitions can be disposed of and decided in which cases review would be permissible and where such a review is not entertainable, on the doctrine of merger and res judicata, etc. We may point out at this stage itself tha .....

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between the judgments in Gangadhara Palo and K. Rajamouli which calls for resolution by a larger Bench. 15) It may be useful to add, in the line of the aforesaid cases, a recent judgment of this Court in Medical Council of India v. State of Kerala and Others 2018 (11) Scale 141, which is again a two Judge Bench. Though in this case situation was not where review petition was filed after the dismissal of the special leave petition, at the same time, dismissal of the special leave petition in limine was explained to mean that it was still a decision on merits by this Court. 16) Having stated the manner in which the issue is dealt with in various judgments noted above, it would be apposite to first discuss the law laid down in Abbai Maligai Partnership Firm as well as Kunhayammed s cases since both the judgments are rendered by three Judges Bench. Therefore, it is to be seen, in the first instance, as to whether they project conflicting views. 17) Abbai Maligai Partnership Firm was a case under the Rent Control Act and the appeal came from the High Court of Madras. In an eviction petition filed by respondent Nos. 1 and 2 in the said case, the Rent Controller had ordered eviction of t .....

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y have to say so. The jurisdiction exercised by the High Court, under the circumstances, was palpably erroneous. The respondents who approached the High Court after the dismissal of their SLPs by this Court, abused the process of the court and indulged in vexatious litigation. We strongly deprecate the matter in which the review petitions were filed and heard in the High Court after the dismissal of the SLPs by this Court. The appeals deserve to succeed on that short ground. The appeals are, consequently, allowed and the impugned order dated 7-4-1994 passed in the review petitions is hereby set aside. The respondents shall pay ₹ 10,000 as costs. 18) In Kunhayammed s case, on the other hand, the Forest Tribunal had held that land in dispute did not vest in the Government under the provisions of the Kerala Private Forests (Vesting and Assignment) Act, 1971. Against this order the appeal of the State of Kerala was dismissed by the High Court on December 17, 1982. Thereagainst special leave petition was filed by the State, which was dismissed in limine stating - Special Leave Petition is dismissed on merits . Thereafter, the Estate filed an application in the High Court for revie .....

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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 nature of jurisdiction exercised by the superior forum and the content or subject matter of challenge laid or which could have been laid will have to be kept in view. 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. Insofar as jurisdiction under Article 136 is concerned, it explained that Article 136 opens with a nonobstante 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 wis .....

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us, 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: (1) 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 the Supreme Court. Whether he enters or not would depend on the fate of his petition for special leave; (2) 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; (3) If leave to appeal is granted the appellate jurisdiction of the Court stands invoked; the gate for entry in the appellate arena is opened. The petitioner is in and the respondent may also be called upon to face him, though in an appropri .....

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4 SC 1372. 22) It may be pertinent to mention here that while laying down the second principle mentioned above, the Court took note of the judgment in Abbai Maligai Partnership Firm and discussed it in the following manner: "26. The underlying logic attaching efficacy to an order of the Supreme Court dismissing SLP after hearing counsel for the parties is discernible from a recent three-Judge Bench decision of this Court in Abbai Maligai Partnership Firm v. K. Santhakumaran [(1998) 7 SCC 386] . In the matter of eviction proceeding initiated before the Rent Controller, the order passed therein was subjected to appeal and then revision before the High Court. Special leave petitions were preferred before the Supreme Court where the respondents were present on caveat. Both the sides were heard through the Senior Advocates representing them. The special leave petitions were dismissed. The High Court thereafter entertained review petitions which were highly belated and having condoned the delay reversed the orders made earlier in civil revision petitions. The orders in review were challenged by filing appeals under leave granted on special leave petitions. This Court observed that w .....

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cata, and (iv) rule of discipline flowing from this Court being the highest court of the land. 40. A petition seeking grant of special leave to appeal may be rejected for several reasons. For example, it may be rejected (i) as barred by time, or (ii) being a defective presentation, (iii) the petitioner having no locus standi to file the petition, (iv) the conduct of the petitioner disentitling him to any indulgence by the court, (iv) 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 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 petitioner's 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, t .....

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he Supreme Court becomes an order appealed against. Any order passed thereafter would be an appellate order and would attract the applicability of doctrine of merger. It would not make a difference whether the order is one of reversal or of modification or of dismissal affirming the order appealed against. It would also not make any difference if the order is a speaking or non-speaking one. Whenever this Court has felt inclined to apply its mind to the merits of the order put in issue before it though it may be inclined to affirm the same, it is customary with this Court to grant leave to appeal and thereafter dismiss the appeal itself (and not merely the petition for special leave) though at times the orders granting leave to appeal and dismissing the appeal are contained in the same order and at times the orders are quite brief. Nevertheless, the order shows the exercise of appellate jurisdiction and therein the merits of the order impugned having been subjected to judicial scrutiny of this Court. 42. To merge means to sink or disappear in something else; to become absorbed or extinguished; to be combined or be swallowed up. Merger in law is defined as the absorption of a thing o .....

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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 .....

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petition was dismissed after condoning the delay, it would be treated as an affront to the order of the Supreme Court. But this is not the case here. In the present case, the review petition was filed well within time and since the review petition was not being decided by the High Court, the appellant filed the special leave petition against the main judgment of the High Court. We, therefore, overrule the preliminary objection of the counsel for the respondent and hold that this appeal arising out of special leave petition is maintainable. 27) From a cumulative reading of the various judgments, we sum up the legal position as under: (a) The conclusions rendered by the three Judge Bench of this Court in Kunhayammed and summed up in paragraph 44 are affirmed and reiterated. (b) 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 .....

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