Review:
Review of judgment against which Special Leave Petition was already dismissed by Supreme Court – Maintainability of – In view of conflicting views on the question in *Abbai Maligai Partnership Firm case and in **Kunhayammed case, Division Bench of Supreme Court referred the matter to larger Bench – Held: There is no conflict of opinion in the two cases – *Abbai Maligai Partnership Firm case was decided on its peculiar facts – **Kunhayammed case lays down the correct law – Since the SLPs were dismissed in limine without giving any reasons, the review petitions filed in the present cases were maintainable – Constitution of India – Art. 136.
Disposing of the appeals, the Court
HELD: 1. *Abbai Maligai Partnership Firm case is duly taken cognisance of and explained in the judgment in **Kunhayammed case. There is no conflict insofar as ratio of the two cases is concerned. Moreover, *Abbai Maligai Partnership Firm case was decided on its peculiar facts, with no discussion on any principle of law, whereas **Kunhayammed case is an elaborate discourse based on well accepted propositions of law which are applicable for such an issue. The detailed judgment in **Kunhayammed case lays down the correct law and there is no need to refer the cases to larger Bench. [Para 25] [432-D-E]
2. The conclusions rendered in **Kunhayammed case and summed up in paragraph 44 are affirmed and reiterated 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 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 petition is lost thereafter as provided by sub-rule (1) of Rule 1 of Order 47 CPC.” [Para 27] [433-D-H; 434-A-C]
3. Once it is held that law laid down in **Kunhayammed case is to be followed, it will not make any difference whether the review petition was filed before the filing of special leave petition or was filed after the dismissal of special leave petition. Such a situation is covered in para 37 of **Kunhayammed case. [Para 27] [434-D-E]
4. Since Civil Appeal No. 2432 of 2019 was dismissed in limine without giving any reasons, the review petition filed by the appellant in the High Court would be maintainable and should have been decided on merits. Order dated November 12, 2008 passed by the High Court is accordingly set aside and matter is remanded back to the High Court for deciding the review petition on merits. [Para 28] [434-F]
5. Civil Appeal No. 2433 of 2019 was also, dismissed in limine and without any speaking order. After the dismissal of the special leave petition, the respondent in this appeal had approached the High Court with review petition. Said review petition is allowed by passing order dated December 12, 2012 on the ground of suppression of material facts by the appellant herein and commission of fraud on the Court. Such a review petition was maintainable. Therefore, the High Court was empowered to entertain the same on merits. Insofar as appeal of the appellant challenging the order dated December 12, 2012 on merits is concerned, the matter shall be placed before the regular Board to decide the same. [Para 28] [435-A-C]
**Kunhayammed and Others v. State of Kerala and Another (2000) 6 SCC 359 : [2000] 1 Suppl. SCR 538; Palani Roman Catholic Mission v. S. Bagirathi Ammal (2009) 16 SCC 657; Bhakra Beas Management Board v. Krishna Kumar Vij and Another (2010) 8 SCC 701 : [2010] 10 SCR 462 ; Medical Council of India v. State of Kerala and Others 2018 (11) SCALE 141 – relied on.
*Abbai Maligai Partnership Firm and Another v. K. Santhakumaran and Others (1998) 7 SCC 386 : [1998] 1 Suppl. SCR 535 – distinguished. Thungabhadra Industries Ltd. v. Govt. of A.P. AIR 1964 SC 1372 : [1964] SCR 174 ; Meghmala and Others v. G. Narasimha Reddy and Others (2010) 8 SCC 383 : [2010] 10 SCR 47; Gangadhara Palo v. Revenue Divisional Officer and Another (2011) 4 SCC 602 : [2011] 3 SCR 74 ; Workmen v. Board of Trustees of the Cochin Port Trust (1978) 3 SCC 119 : [1978] 3 SCR
971 ; Western India Match Co. Ltd. v. Industrial Tribunal AIR 1958 Mad 398 ; Indian Oil Corpn. Ltd. v. State of Bihar (1986) 4 SCC 146 : [1986] 3 SCR 553; Rup Diamonds v. Union of India (1989) 2 SCC 356: [1989]
1 SCR 13 ; Supreme Court Employees’ Welfare Assn. v. Union of India (1989) 4 SCC 187 : [1989] 3 SCR 488; Yogendra Narayan Chowdhury v. Union of India (1996)
7 SCC 1 : [1995] 6 Suppl. SCR 17 ; V.M. Salgaocar & Bros. (P) Ltd. v. CIT (2000) 5 SCC 373 : [2000] 2 SCR 1169 ; Sree Narayana Dharmasanghom Trust v. SwamiPrakasananda (1997) 6 SCC 78 : [1997] 3 SCR
799 ; State of Maharashtra v. Prabhakar Bhikaji Ingle (1996) 3 SCC 463 : [1996] 3 SCR 211 ; Penu Balakrishna Iyer v. Ariya M. Ramaswami Iyer AIR 1965 SC 195: [1964] 7 SCR 49 ; Abbai Maligai Partnership Firm v. K. Santhakumaran (1998) 7 SCC 386 : [1998] 1 Suppl. SCR 535 ; Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat (1969) 2 SCC
74 : [1970] 1 SCR 322 ; Sushil Kumar Sen v. State of Bihar (1975) 1 SCC 774 : [1975] 3 SCR 942 ; Gopabandhu Biswal v. Krishna Chandra Mohanty (1998) 4 SCC 447: [1998] 2 SCR 1108 ; Junior Telecom Officers Forum v. Union of India (1993) 4 Suppl. SCC 693: [1992] 1 Suppl. SCR 764 – referred to. Wilson v. Colchester Justices (1985) 2 All ER 97 (HL) – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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