TMI Blog2000 (7) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... The Legislature has taken care to confer the jurisdiction to review on the High Court as to such appellate orders also against which though an appeal was carried to the Supreme Court, the same was not admitted by it. An appeal would be said to have been admitted by the Supreme Court if leave to appeal was granted. The constitutional validity of sub-section (2) of section 8C has not been challenged. Though Shri T. L. V. Iyer, learned senior counsel for the appellant, made a feeble attempt at raising such a plea at the time of hearing but unsuccessfully, as such a plea has not so far been raised before the High Court also nor in the petition filed before this court. No fault can be found with the approach of the High Court. - Civil Appeal No. 12309 of 1996, - - - Dated:- 19-7-2000 - Judge(s) : K. T. THOMAS., D. P. MOHAPATRA., R. C. LAHOTI JJ. T.L.V. Iyer, Senior Advocate (M.R. Ramesh Babu and T.G.N. Nair, Advocates, with him), for the appellants. Ashok H. Desai, Attrorney-General of India and P.Krishnamoorty, Senior Advocate (Ms. Beena Prakash and G. Prakash,Advocates, with them), for the respondents. JUDGMENT The judgment of the court was delivered by R. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its." By Amendment Act No. 36 of 1986 published in the Kerala Government Gazette, Extraordinary, dated December 1, 1986, section 8C amongst others was enacted into the body of the Act giving it retrospective effect from November 19, 1983. Sub-section (2) of section 8C, with which we are concerned, reads as under : "8C. Power of Government to file appeal or application for review in certain cases.---... (2) Notwithstanding anything containing in this Act, or in the Limitation Act, 1963 (Central Act 36 of 1963), or in any other law for the time being in force, or in any judgment, decree or order of any court or other authority, the Government, if they are satisfied that any order of the High Court in an appeal under section 8A (including an order against which an appeal to the Supreme Court has not been admitted by that court) has been passed on the basis of concessions made before the High Court without the authority in writing of the Government or due to the failure to produce relevant data or other particulars before the High Court or that an appeal against such order could not be filed before the Supreme Court by reason of the delay in applying for and obtaining a certif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s it has progressed through the times. In CIT v. Amritlal Bhogilal and Co. [1958] 34 ITR 130, 136; AIR 1958 SC 868, this court held : "There can be no doubt that, if an appeal is provided against an order passed by a Tribunal, the decision of the appellate authority is the operative decision in law. If the appellate authority modifies or reverses the decision of the Tribunal, it is obvious that it is the appellate decision that is effective and can be enforced. In law the position would be just the same even if the appellate decision merely confirms the decision of the Tribunal. As a result of the confirmation or affirmance of the decision of the Tribunal by the appellate authority the original decision merges in the appellate decision and it is the appellate decision alone which subsists and is operative and capable of enforcement ; . . ." However, in the facts and circumstances of the case, this court refused to apply the doctrine of merger. There, an order of registration of a firm was made by the Income-tax Officer. The firm was then assessed as a registered firm. The order of assessment of the assessee was subjected to appeal before the Appellate Commissioner. Later on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ... replace the judgment of the lower court, thus constituting the judgment of the High Court the only final judgment to be executed in accordance with law by the court below." In S. S. Rathore v. State of Madhya Pradesh AIR 1990 SC 10, a larger Bench of this court (seven judges) having reviewed the available decisions of the Supreme Court on the doctrine of merger, held that the distinction made between the courts and the Tribunals as regards the applicability of the doctrine of merger is without any legal justification ; where a statutory remedy was provided against an adverse order in a service dispute and that remedy was availed of, the limitation for filing a suit challenging the adverse order would commence not from the date of the original adverse order but on the date when the order of the higher authority disposing of the statutory remedy was passed. Support was taken from doctrine of merger by referring to CIT v. Amritlal Bhogilal and Co. [1958] 34 ITR 130 AIR 1958 SC 868, and several other decisions of this court. The logic underlying the doctrine or merger is that there cannot be more than one decree or operative order governing the same subject-matter at a given p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court by article 136 of the Constitution consists of two steps : (i) granting special leave to appeal ; and (ii) hearing the appeal. This distinction is clearly demonstrated by the provisions of Order XVI of the Supreme Court Rules framed in exercise of the power conferred by article 145 of the Constitution. Under rule 4, the petition seeking special leave to appeal filed before the Supreme Court under article 136 of the Constitution shall be in Form No. 28. No separate application for interim relief need be filed, which can be incorporated in the petition itself. If notice is ordered on the special leave petition, the petitioner should take steps to serve the notice on the respondent. The petition shall be accompanied by a certified copy of the judgment or order appealed from and an affidavit in support of the statement of facts contained in the petition. Under rule 10, the petition for grant of special leave shall be put up for hearing ex parte unless there be a caveat. The court, if it thinks fit, may direct issue of notice to the respondent and adjourn the hearing of the petition. Under rule 13, the respondent to whom a notice in special leave petition is issued or who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 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 unless the court may pass a specific order staying or suspending the operation or execution of the judgment, decree or order under challenge. Dismissal at stage of special leave--without reasons--no res judicata, no merger.--Having so analysed and defined the two stages of the jurisdiction conferred by article 136, now we proceed to deal with a number of decisions cited at the Bar during the course of hearing and dealing with the legal tenor of in order of the Supreme Court dismissing a special leave petition. In Workmen of Cochin Port Trust v. Board of Trustees of the Cochin Port Trust [1978] 53 FJR 80 ; [1978] 3 SCC 119, a three-judge Bench of this court has held that dismissal of a special leave petition by the Supreme Court by a non-speaking order of dismissal where no reasons were given does not constitute res judicata. All that can be said to have been decided by the court is that it was not a fit case where special leave should be granted. That may be due to various reasons. During the course of the judgment, their Lordships h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 and 901 of ITR) "the effect of a non-speaking order of dismissal of a special leave petition without anything more indicating the grounds or reasons of its dismissal must, by necessary implication, be taken to be that this court had decided only that it was not a fit case where special leave should be granted. This conclusion may have been reached by this court due to several reasons. When the order passed by this court was not a speaking one, it is not correct to assume that this court had necessarily decided implicitly all the questions in relation to the merits of the award, which was under challenge before this court in the special leave petition. A writ proceeding is a wholly different and distinct proceeding. Questions which can be said to have been decided by this court expressly, implicitly or even constructively while dismissing the special leave petition cannot, of course, be reopened in a subsequent writ proceeding before the High Court. But neither on the principle of res judicata nor on any principle of public policy analogous thereto, would the order of this court dismissing the special leave petition operate to bar the trial of identical issues in a separate proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 bad already stood rejected by the Supreme Court by a non-speaking order. In Rup Diamonds v. Union of India, AIR 1989 SC 674, the law declared by this court is that it cannot be said that the mere rejection of a special leave petition could, by itself, be construed as the imprimatur of this court on the correctness of the decision sought to be appealed against. In Wilson v. Colchester Justices [1985] 2 All ER 97, the House of Lords stated : "There are a multitude of reasons why, in a particular case, leave to appeal may be refused by an Appeal Committee. I shall not attempt to embark on an exhaustive list for it would be impossible to do so. One reason may be that the particular case raises no question of general principle but turns on its own facts. Another may be that the facts of the particular case are not suitable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even the dismissal of special leave petition in limine operates as a final order between the parties". In our opinion, the order is final in the sense that once a special leave petition is dismissed, whether by a speaking or non-speaking order or whether in limine or on contest, a second special leave petition would not lie. However, this statement cannot be stretched and applied to hold that such an order attracts the applicability of the doctrine of merger and excludes the jurisdiction of the court or authority passing the order to review the same. In State a Maharashtra v. Prabhakar Bhikaji Ingle [1996] 3 SCC 463, the view taken by a two-judge Bench of this court is that the dismissal of a special leave petition without a speaking order does not constitute res judicata but the order dealt with in the S. L. P. disposed of by a non-speaking order cannot be subjected to review by the Tribunal. In our opinion, the law has been too broadly stated through the said observation. The learned judges have been guided by the consideration of judicial discipline which, as we would shortly deal with, is a principle of great relevance and may be attracted in an appropriate case. But we find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 86. 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 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... advanced in the High Court that the Supreme Court has to be understood as not to have differed in law with the High Court. Incidentally, we may notice two other decisions of this court which though not directly in point, the law laid down wherein would be of some assistance to us. In Shankar Ramchandra Abhyankar v. Krishnaji Dattatraya Bapat, AIR 1970 SC 1, this court, vide para. 7 has emphasised three pre-conditions attracting applicability of doctrine of merger. They are: (i) the jurisdiction exercised should be appellate or revisional jurisdiction ; (ii) the jurisdiction should have been exercised after issue of notice ; and (iii) after a full hearing in the presence of both the parties. Then the appellate or revisional order would replace the judgment of the lower court and constitute the only final judgment. In Sushil Kumar Sen v. State of Bihar, AIR 1975 SC 1185, the doctrine of merger usually applicable to orders passed in exercise of appellate or revisional jurisdiction was held to be applicable also to orders passed in exercise of review jurisdiction. This court held that the effect of allowing an application for review of a decree is to vacate a decree passed. The decre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cept to a limited extent as noticed therein whereafter the Tribunal could not have reopened the matter. The order passed earlier by the Supreme Court is quoted in para. 5 of the report. It clearly states that on the S. L. P. itself the court heard counsel of both the sides. While dismissing the special leave petition on the merits, this court had to some extent interfere with the order of the High Court which was put in issue before the Supreme Court. It is clear that the Supreme Court had exercised appellate jurisdiction vested in it under article 136 of the Constitution and heard both the sides though the leave was not formally granted and the special leave petition was not formally converted into an appeal. Hence, this decision rests on the special facts of that case. In the Supreme Court Employees' Welfare Association's case [1989] 4 SCC 187, this court held : "When the Supreme Court gives reasons while dismissing a special leave petition under article 136 the decision becomes one which attracts article 141. But when no reason is given and the special leave petition is summarily dismissed, the court does not lay down any law under article 141. The effect of a non-speaking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowed, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake, or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment of the court which passed the decree or made the order. (2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review. Explanation.-- -The fact that the decision on a question of law on which the judgment of the court is based has been reversed or modified by the subsequent decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. That the review can be filed even after the S. L. P. is dismissed is clear from the language of Order XLVII, rule 1(a). Thus, the words "no appeal has been preferred" in Order XLVII, rule 1(a) would also mean a situation where special leave is not granted. Till then there is no appeal in the eye of law before the superior court. Therefore, the review can be preferred in the High Court before special leave is granted, but not after it is granted. The reason is obvious. Once special leave is granted the jurisdiction to consider the validity of the High Court's order vests in the Supreme Court and the High Court cannot entertain a review thereafter, unless such a review application was preferred in the High Court before special leave was granted. Conclusions .--We have catalogued and dealt with all the available decisions of this court brought to our notice on the point at issue. It is clear that as amongst the several two-judge Bench decisions there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al leave to appeal while disposing of a petition for the purpose. Mere rejection of a special leave petition does not take away the jurisdiction of the court, the Tribunal or forum whose order forms the subject-matter of petition for special leave to review its own order if grounds for exercise of review jurisdiction are shown to exist. Where the order rejecting an S. L. P. is a speaking order, that is, where reasons have been assigned by this court for rejecting the petition for special leave and are stated in the order still the order remains one rejecting the prayer for the grant of leave to appeal. The petitioner has been turned away at the threshold without having been allowed to enter in the appellate jurisdiction of this court. Here also the doctrine of merger would not apply. But the law stated or declared by this court in its order shall attract applicability of article 141 of the Constitution. The reasons assigned by this court in its order expressing its adjudication (expressly or by necessary implication) on point of fact or law shall take away the jurisdiction of any other court, Tribunal or authority to express any opinion in conflict with or in departure from the vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or revision is provided against an order passed by a court, tribunal or any other authority before a superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law. (ii) The jurisdiction conferred by article 136 of the Constitution is divisible into two stages. The first stage is up to the disposal of the prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and the special leave petition is converted into an appeal. (iii) The doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under article 136 of the Constitution, the Supreme Court may reverse, modif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Kerala wherein it did not succeed. The prayer contained in the petition seeking leave to appeal to this court was found devoid of any merit and hence dismissed. The order is a non-speaking and unreasoned order. All that can be spelt out is that the court was not convinced of the need for, exercising its appellate jurisdiction. The order of the High Court dated December 17, 1982, did not merge in the order dated July 13, 1983, passed by this court. So it is available to be reviewed by the High Court. Moreover, such a right of review is now statutorily conferred on the High Court by sub-section (2) of section 8C of the Kerala Act. The Legislature has taken care to confer the jurisdiction to review on the High Court as to such appellate orders also against which though an appeal was carried to the Supreme Court, the same was not admitted by it. An appeal would be said to have been admitted by the Supreme Court if leave to appeal was granted. The constitutional validity of sub-section (2) of section 8C has not been challenged. Though Shri T. L. V. Iyer, learned senior counsel for the appellant, made a feeble attempt at raising such a plea at the time of hearing but unsuccessfully, as ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
