TMI Blog2019 (3) TMI 232X X X X Extracts X X X X X X X X Extracts X X X X ..... me, 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 do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecial 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 the appellant to pay the decretal amount with interest and costs. This is the subject matter of the execution proceedings. 6) The appellant herein, even after dismissal of the special leave petition, went back to the High Court in the form of review petition seeking review of the judgment dated November 12, 2008 passed by the High Court. It was filed on the premise that the High Court had granted relief which was not even sought for by respondent No.1 in the suit. We may reproduce the precise ground taken in this behalf in the review petition: 11. The above Review Petition is directed only with regard to the decree portion dated 12.11.2008 passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 is the conflicting views by different Benches of this Court which have been taken note of in the referral order. Those judgments will be discussed at the appropriate stage. At the same time, we would like to reproduce the following passages from the reference order: 12. We may also point out in this connection that Article 136 of the Constitution does not confer any right of appeal on any party but it confers a discretionary power on the Supreme Court to interfere in suitable cases. Clause (1) of Article 136 of the Constitution confers very wide and extensive powers on the Supreme Court. The article commences wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 that various judgments which have been pronounced by this Court (which are the judgments rendered by two Judges Bench) have taken different paths, on the interpretation of the aforesaid two cases, resulting in conflicting outcomes. 12) In Meghmala and Others v. G. Narasimha Reddy and Others (2010) 8 SCC 383 and K. Rajamouli v. A.V.K.N. Swamy, the view taken by this Court was that review petition is not maintainable. In Meghmala the Court, however, made one exception by holding that in case a litigant files a review petition before filing the special leave petition in the Supreme Court and it remains pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 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 the appellants therein on the ground of wilful default in payment of rent as well as on the ground of bona fide requirement of the premises by respondent Nos. 1 and 2 for their own business. In appeal, the order of the Rent Controller was set aside as it was found that there was a bona fide dispute with regard to the title of the property which could be decided by the Civil Court. The respondents preferred review petitions thereagainst, which were dismissed. They approached this Court by way of special leave petitions which were also dismissed. After the dismissal of these special le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 review of its earlier order whereby appeal of the State had been dismissed upholding the order of the Forest Tribunal. It may be noted that during the pendency of this review petition, Section 8(c) was inserted in the Kerala Private Forests (Vesting and Assignment) Act, 1971 by amendment made in the year 1986 enabling the Government to file appeal or review in Civil Appeal arising out of SLP (C) No. 490 of 2012 Anr. Page 12 of 27 certain cases. This provision was introduced with retrospective effect, i.e. from November 19, 1983. Review petition was filed in January 1984. On these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellate 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 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. 20) Exercise of jurisdiction under Article 136 and the manner in which it is dealt with is clarified as under: 14. 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 disti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner 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 appropriate case, in spite of having granted leave to appeal, the Court may dismiss the appeal without noticing the respondent. (4) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 what was done by the learned Single Judge was subversive of judicial discipline . The facts and circumstances of the case persuaded this Court to form an opinion that the tenants were indulging in vexatious litigations, abusing the process of the Court by approaching the High Court and the very entertainment of review petitions (after condoning a long delay of 221 days) and then reversing the earlier orders was an affront to the order of this Court. However the learned Judges deciding the case have nowhere in the course of their judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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. Grounds entitling exercise of review jurisdiction conferred by Order 47 Rule 1 CPC or any oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay 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 of lesser importance by a greater, whereby the lesser ceases to exist, but the greater is not increased; an absorption or swallowing up so as to involve a loss of identity and individuality. (See Corpus Juris Secundum, Vol. LVII, pp. 1067-68.) 43. We may look at the issue from another angle. The Supreme Court cannot and does not reverse or modify the decree or order appealed against while deciding a petition for special leave to appeal. What is impugned before the Supreme Court can be reversed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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