By Ashish Bhan and Mohit Rohatgi
Setting the context
Is a review petition seeking review of a judgment against which the special leave petition has already been dismissed by the Supreme Court maintainable before the High Court?
This question of law remained unsettled for about two decades. In this time, benches of different strengths of the Supreme Court as well as different High Courts had taken conflicting views. This ambiguity in the position of law had resulted in various High Courts adjourning several such review petitions sine die until the issue was resolved by the Supreme Court, and quite rightly so.
The genesis of this issue relates back to the different views taken by the three-judge benches in Abbai Maligai Partnership Firm and Anr v. K Santhakumaran and Ors and later in Kunhayammed and Ors v State of Kerala and Anr. Broadly speaking, while Abbai Maligai had condemned the practice of filing a review petition after the dismissal of the special leave petition (albeit on its peculiar facts), Kunhayammed had approved such practice on the basis of several well-established legal principles including the doctrine of merger.
In Khoday Distilleries Ltd v. Sri Mahadeshwara Sahakara, the two-judge bench of the Supreme Court took cognisance of the conflicting views in these two cases (as well the conflicting views that ensued) and referred the question to a larger bench for an authoritative pronouncement “in order to resolve those conflicts and for proper guidance to the High Courts”.
By a recent judgment dated March 1, 2019, a three-judge bench of the Supreme Court in Khoday Distilleries Ltd v Sri Mahadeshwara Sahakara, finally put this long-standing conflict to rest holding that the “detailed judgment in Kunhayammed lays down the correct law and there is no need to refer the cases to larger Bench…”
This article analyses the Khoday Distilleries case in the context of the judgments of the Supreme Court in Abbai Maligai and Kunhayammed.
Genesis of the conflict: Abbai Maligai and Kunhayammed
The question of whether after the dismissal of a special leave petition by the Supreme Court a review petition could be entertained by the High Court against its own order first came up before a three-judge bench of the Supreme Court in Abbai Maligai.
In this case, an order passed by the Rent Controller in an eviction proceeding 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. After hearing counsel of both sides, the special leave petitions were dismissed.
Review petitions were then filed against the orders passed by the High Court in the revision petitions. There was also a long delay of 221 days in filing the review petitions after the dismissal of the special leave petitions. The High Court not only entertained the review petitions, but also reversed its earlier orders after condoning the delay. The orders in review were challenged by filing appeals under leave granted on special leave petitions.
In a seemingly short and succinct judgment, the Supreme Court held that in the facts and circumstances of the case, the review petitioners were indulging in vexatious litigation and abusing the process of the court by re-approaching the High Court. It was also held that the very entertainment of review petitions (after condoning a long delay of 221 days) and then reversing the earlier orders was “subversive of judicial discipline”, “palpably erroneous” and an “affront” to the order of the Supreme Court dismissing the special leave petitions.
Two important aspects are discernible from the decision of the Supreme Court in Abbai Maligai. First, this judgment was passed “in the facts and circumstances of the case” without delving into or even discussing any propositions on the point of law.
Second, and perhaps more importantly, a careful reading of the judgment in its specific context shows that the Supreme Court did not hold as a general principle of law that a review petition is not maintainable after the dismissal of the special leave petition. Rather, it merely sanctified the underlying logic attaching efficacy to an order of the Supreme Court dismissing a special leave petition after hearing counsel for the parties.
Kunhayammed related to a case where the Kerala High Court dismissed an appeal against the order of the Forest Tribunal. Against this dismissal, a special leave petition was filed. This special leave petition was dismissed in limine by simply stating that “Special Leave Petition is dismissed on merits”.
A review petition was filed in the High Court against its earlier order dismissing the appeal. By order dated December 14, 1995, the High Court upheld the maintainability of the review and posted the case for hearing on merits. This order was challenged before the Supreme Court.
While holding that the review was maintainable, the Supreme Court undertook a detailed analysis of several judgments and legal principles on the point. Primarily, the Supreme Court’s findings were based on the interplay between the doctrine of merger, res judicata, the scope of powers under Article 136, declaration of law under Article 141, and judicial discipline of lower courts. Relevant to the issue of maintainability of review petition after dismissal of special leave petition, the Supreme Court concluded as follows (at para. 44):
“(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…
(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.”
Interestingly, the Supreme Court in Kunhayammed did not read Abbai Maligai as laying down anything contrary, rather it approved Abbai Maligai as being the “correct statement of law” and one which fortified the view taken in Kunhayammed.
Supreme Court settles the law in Khoday Distilleries
Applying the ratios of either Abbai Maligai or Kunhayammed, several subsequent judgments saw two-judge benches of the Supreme Court take divergent views. These views were not only conflicting with either Abbai Maligai or Kunhayammed, but were also propounding further legal nuances on the issue. The most relevant ones are discussed below.
Just a few months after the Kunhayammed decision, in K Rajamouli v. AVKN Swamyi, the Supreme Court followed Kunhayammed and expressed the view that the dismissal of the special leave petition would not constitute res judicata provided the review petition was filed prior to the filing of special leave petition against the main judgment of the High Court.
This position was, however, held to be different where the review petition is filed after a long delay from the date of dismissal of the special leave petition. That was considered to be an abuse of the process of the law. Palani Raman Catholic Mission v. S Bagirathi Ammal and Bhakra Beas Management Board v. Krishan Kumar Vij and Anr, also took the pro-Kunhayammed view.
In Meghamala and Ors v. G Narasimha Reddy and Ors, the Supreme Court, after referring to Abbai Maligai and Kunhayammed, held that if a review petition is filed before filing the special leave petition and it remains pending till the special leave petition stands dismissed, the review petition deserves to be considered. However, in case it is filed subsequent to the dismissal of the special leave petition, the process of filing review application would amount to an abuse of process of the court.
Then, in Gangadhara Palo v. Revenue Divisional Officer and Anr, the Supreme Court expressed its disagreement with K Rajamouli and held that it will make no difference whether the review petition was filed before or after the dismissal of the special leave petition. Irrespective, the review will stand barred and the doctrine of merger would apply, even when the special leave petition is dismissed in limine.
Finally, in Khoday Distilleries, a regular first appeal came to be challenged before the Supreme Court. The special leave petition was opposed by the other side and was dismissed in limine with the order that “Special Leave Petition is dismissed”.
Later, a review petition was filed in the Karnataka High Court for reviewing its earlier judgment. That review petition was also dismissed by the High Court holding that,
“when the judgment and decree passed by this Court has been confirmed by the Hon’ble Supreme Court, question of entertaining any review by us does not arise for consideration”.
After undertaking an in-depth analysis of the genesis as well as the dichotomy of the Supreme Court’s views on the issue, and more particularly delving into the ratios of Abbai Maligai and Kunhayammed, in Khoday Distilleries it was (perhaps once and for all) settled that the “detailed judgment in Kunhayammed lays down the correct law and there is no need to refer the cases to larger Bench.”
There can be no denying that the judgment in Khoday Distilleries is based on, and reiterates, sound logic and principles of law. On the other hand, perhaps a curb against special leave petitions of frivolous nature or against sundry kinds of orders needs to be reconsidered as suggested in Mathai @ Joby v. George.
“Statistics show that more than ¾th of the total number of cases filed are dismissed in limine. Even so, the dismissal is only after the Court has applied its mind and heard arguments which consume considerable time of the Judges. Dismissal of an overwhelming number of cases has not and does not discourage the litigants or the member of the Bar from filing cases. That is why the number of cases filed is on the rise every year.”
It is no secret that the Supreme Court, much like other courts in the country, has been facing the issue of docket-explosion for several years now. The idea of establishing Courts of Appeals has also been flirted with both by the judiciary and the legislature. In such a situation, while review has been held to be available even after dismissal of special leave petition, it is incumbent upon our society and litigants to evolve and not misuse the discretionary powers of the Supreme Court under Article 136 of the Constitution.
About the authors: Ashish Bhan and Mohit Rohatgi are lawyers working at Trilegal. Ashish Bhan is a partner, whereas Mohit Rohatgi is a senior associate at the firm.