After Withdrawing SLP With Liberty To File Review In HC, Is Subsequent SLP Against HC Order Maintainable? Supreme Court Refers To Larger Bench

The Supreme Court, on Wednesday, referred the issue - whether liberty granted by the Supreme Court to approach the High Court in review, automatically places the said matter in the escalation matrix, and makes the remedy of Special Leave Petition available again - to a larger Bench.

A Division Bench comprising Justice Krishna Murari and Justice Sanjay Karol referred the matter to a larger Bench. In this regard, it directed the Registry to place the papers before the Chief Justice of India, DY Chandrachud for constituting a larger bench.

The reference was made in light of the judgment of the three-Judge Bench in Khoday Distilleries Ltd. v. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd. In Khoday Distilleries the Apex Court had reiterated the relevant conclusions in Kunhayammed v. State of Kerala - an order refusing SLP does not attract the doctrine of merger, i.e.,the order refusing special leave to appeal does not stand substituted in place of the order under challenge. The dismissal in itself is not law under Article 141 of the Constitution of India and does not act as res-judicata, and therefore the remedy of filling fresh SLP should persist. The Division Bench noted that in Khoday Distilleries, on the basis of the said line of reasoning, a remedy to file a review in High Court was allowed even after the dismissal of the SLP. It was of the view that if the same reasoning was to be applied in the present scenario, then the filing of a subsequent SLP cannot be excluded. However, the Division Bench was aware that - “...such an interpretation, if expanded beyond the specific scope of filing a review in the High Court is allowed, it would open the floodgates of litigation, and would essentially mean that every dismissal of Special Leave Petition must be accompanied with reasons declaring the same.

Factual Background

With respect to a property dispute a compromise decree was entered into by both the parties. Subsequently, the heirs of one of the parties filed a suit against the other party seeking mandatory injunction. The Trial Court had dismissed the suit and held the compromise decree as binding.

Challenging the order of the Trial Court an appeal was filed before the Karnataka High Court. During the course of the proceedings an application was filed under Order VI Rule 17 CPC for amendment of plaint and for recovery of possession of property. The High Court remanded the matter to the Trial Court for adjudication on the limited aspect of additional relief of possession of part of the suit property.

The High Court’s order was assailed in a Special Leave Petition before the Supreme Court. While the SLP was pending, the Trial Court proceeded with the matter remanded to it and decided the same on 29.10.2011.

The order of the Trial Court was challenged before the Karnataka High Court. On 03.01.2013, the SLP before the Supreme Court was dismissed as the relief prayed for had exhausted itself. While dismissing the SLP, the Apex Court held that since the first appeal against the order dated 29.10.2011 was still pending before the High Court, the petitioner was at liberty to raise all questions pertaining to the remand be raised in the pending appeal without being influenced by the remand order.

The first appeal was dismissed by the High Court on 20.12.2019. An SLP was filed challenging the dismissal which was withdrawn with liberty to approach the High Court in review. Thus, a petition was filed before the High Court seeking review of its order dated 20.12.2019. The review petition was dismissed by an order dated 15.07.2022. Both the original order dated 20.12.2019 and the order passed in the review petition dated 15.07.2022 was challenged before the Supreme Court by way of the present SLP.

Objection To Maintainability of SLP

At the threshold, the maintainability of the present SLP was assailed. It was argued by the Counsel for the respondent that as per Order XLVII Rule 7 CPC, an appeal by way of SLP against an order passed in review is not permissible. It was also urged that though while dismissing the SLP on 03.01.2013, the Apex Court granted liberty to approach the High Court, no liberty was given to file subsequent SLP before it.

Supreme Court’s View

The Apex Court opined that ‘Order XLVII Rule 7 of the CPC makes it amply clear that no Special Leave Petition can be filed against an order passed in review, and as such, does not require our further consideration’. It noted that the petitioner has filed the SLP impugning the order in review as well as the original order passed by the High Court.

The Court culled out the following issue for its consideration - “whether liberty granted by this Court to approach the High Court in review, automatically places the said matter in the escalation matrix, and makes the remedy of Special Leave Petition available again”. In this regard, it referred to a catena of judgments relied upon by the parties, particularly the one in Khoday Distilleries Ltd. v. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd. In Khoday Distilleries the issue before a three Judge Bench of the Apex Court was - whether a review petition in the High Court is maintainable, once SLP raising the same issue has been dismissed. The Apex Court had held that even after the dismissal of the SLP, a review before the High Court is still maintainable. More than the conclusion, Apex Court, in the present matter, was interested in the reasoning in Khoday Distilleries. The three Judge Bench therein had observed that dismissal of SLP by a non-speaking order does not attract the doctrine of merger; once leave to appeal has been granted and appellate jurisdiction of the Supreme Court is invoked the order passed in appeal would attract the doctrine of merger. So, in cases where SLP is dismissed as withdrawn; in cases where no reason is assigned by the Apex Court for the dismissal; in cases where leave is not granted in the SLP, dismissal would not amount to laying down law under Article 141 of the Constitution of India. Since such a dismissal is not considered as law, the same cannot be considered as res judicata and the remedy of filing a fresh SLP would persist. The Apex Court observed, “Further, if on the said reasoning, a remedy to file a review in the High Court is allowed, then the same reasoning cannot arbitrarily exclude the filing of a subsequent Special Leave Petition.”

Case details

S. Narahari And Ors. v. S.R. Kumar And Ors.| 2023 LiveLaw SC |Diary No. 23775 of 2022| 5th July, 2023| Justice Krishna Murari And Justice Sanjay Karol

Citation : 2023 LiveLaw (SC) 504

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