The Delhi High Court on Monday held that a review petition is maintainable before the high court after the special leave petition (SPL) is dismissed as withdrawn by the Supreme Court.
A division bench of Justice Badar Durrez Ahmed and Justice Rajiv Sahai Endlaw was disposing of the preliminary objection to the very maintainability of a review petition on the ground that the SLP preferred against the order of which review is sought was dismissed.
A review was sought of the judgment dated 13th July, 2012, of dismissal of the writ petition.
The petitioners preferred SLP(C) No.31982/2012 against the said judgment, which came up before the Supreme Court on 7th December, 2012, and the following order was passed:
“Upon hearing counsel, the Court made the following order.
After some arguments, counsel for the petitioner seeks permission to withdraw the special leave petition with liberty to the petitioner to move the High Court in a review petition. The special leave petition is dismissed as withdrawn. ”
CU Singh, senior counsel for the review petitioners, contended
(i) that once the Supreme Court permits withdrawal of an SLP without recording reasons, it is as if no appeal was ever filed or entertained since in the absence of grant of special leave, there is no appeal in existence;
(ii) that where an SLP is permitted to be withdrawn and equally when it is dismissed in limine without recording reasons, the high court’s judgment neither merges into any proceedings before the Supreme Court nor is it in any manner affected by the filing and subsequent withdrawal or dismissal of the SLP;
(iii) that a three-judge bench of the Supreme Court in Kunhayammed Vs. State of Kerala (2000) 6 SCC 359 expressly concerned with the issue of maintainability of a review petition after the dismissal in limine of the SLP and after noticing conflicting judgments held that a review petition can be filed subsequent to the dismissal of an SLP inasmuch as at the stage of dismissal of an SLP, there exists no appeal in the eyes of law as at that stage the Supreme Court is exercising its discretionary jurisdiction and not the appellate jurisdiction; only when the Supreme Court grants leave in SLP and converts it into an appeal and the appeal thereafter is disposed of with or without reasons, that the judgment of the Supreme Court merges with that of the high court and where-after review petition cannot be filed.
First, the bench considered the question, whether the dismissal as withdrawn of the SLP, even in the absence of the words “with liberty sought” is to be read as grant of liberty.
The bench observed that Rule 9 of Order XV titled “Petitions Generally” of the Supreme Court Rules, 2013, provides for withdrawal of the petition.
“Once a proceeding / petition is permitted to be withdrawn, the effect of such withdrawal is as if, it had not been preferred. It is a different matter that the Rules may prohibit the petitioner who so withdraws his petition from re-filing the same or even in the absence of such Rules, such re-filing may be treated as an abuse of the process or by way of re-litigation. But in law a dismissal of the petition as withdrawn cannot be at par with the dismissal of the petition.”
After referring various judgments, the bench held:
“We are therefore unable to find any merit in the objection of the counsel for the respondent UOI on the basis of the judgments cited of the Supreme Court to the maintainability of the review petition.”
Read the Judgment here.