Dismissal Of SLP Does Not Attract Doctrine Of Merger Though Reasons Stated May Operate As Declaration Of Law Under Article 141: J&K&L High Court

The Jammu & Kashmir and Ladakh High Court has observed that dismissal of a Special Leave Petition (SLP), whether by a speaking or non-speaking order, does not lead to merger of the impugned order with the Supreme Court's order. The Court observed that only when leave is granted and appellate jurisdiction is exercised does the doctrine of merger apply.

The Court was hearing two review petitions challenging an earlier order in which multiple applications connected to a compromise agreement and related proceedings had been disposed of with certain directions.

A Single Bench comprising Justice Sanjay Dhar examined whether the withdrawal or dismissal of an SLP filed against the same order under review foreclosed the maintainability of a review petition before the High Court.

Upon hearing the matter and examining the relevant record, the Court held that “an order dismissing an SLP would not attract the doctrine of merger though the reasons stated by the Supreme Court would certainly attract applicability of Article 141 of the Constitution as it would amount to declaration of law by the Supreme Court”.

However, the Court clarified, “mere dismissal of an SLP, with or without reasons, would not attract the doctrine of merger.”

The question arose after the review petitioners had earlier challenged the order before the Supreme Court by filing a Special Leave Petition, which they later withdrew. They thereafter approached the High Court with a review petition, prompting the contesting respondent to object to maintainability, arguing that withdrawal of the SLP without liberty barred the review.

The petitioners submitted that the SLP was withdrawn only after discovering that other applicants had already filed a review before the High Court concerning the same order. They contended that mere withdrawal of the SLP, without leave granted, does not prevent them from seeking review under Section 114 read with Order XLVII Rule 1 of the Code of Civil Procedure.

The J&K and Ladakh High Court examined the judgment of the Supreme Court in Kunhayammed v. State of Kerala (2000) and reiterated that dismissal of an SLP by a non-speaking order does not attract the doctrine of merger and does not amount to a declaration of law.

The Court further highlighted that even dismissal by a speaking order does not result in merger because the Supreme Court, in such instances, exercises only discretionary, not appellate, jurisdiction.

The Court clarified that the doctrine of merger applies only when the Supreme Court grants leave and decides the matter on the merits. In contrast, a refusal to grant leave, whether accompanied by reasons or not, does not substitute or extinguish the order under challenge, the Court remarked.

Furthermore, the Court underscored the principle that, though the doctrine of merger does not apply, “reasons” recorded in an order dismissing an SLP may still operate as a declaration of law under Article 141, binding on all courts and tribunals.

Applying this position to the present case, the Court held that since the Supreme Court had not granted leave and had assigned no reasons for declining it, the review petition before the High Court was not barred on grounds of merger. The objection raised by the contesting respondent was therefore rejected.

The Court thereafter proceeded to examine the substantive grounds raised in both review petitions and found that the petitioners had failed to establish any error apparent on the face of the record or any sufficient ground warranting review. It noted that several issues raised had already been addressed in the earlier order or were matters appropriately left to the Additional District Judge in the enquiry directed therein.

As the review petitioners failed to demonstrate any error apparent or any ground justifying interference, the Court held that no case for review was made out and dismissed both review petitions accordingly.

Case Title: Zahida Shah & Anr. v. Bilal Ahmad Dar & Ors. And Dr Sham-Su-Nisa & Others v. Bilal Ahmad Dar & Ors

Citation: 2025 LiveLaw (JKL)

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