Is remedy of SLP available again after Supreme Court grants liberty to approach High Court in review? Larger bench to decide

The Supreme Court recently referred to larger bench the issue of whether liberty granted by the Supreme Court to approach the High Court in review automatically places a matter in the escalation matrix, and makes the remedy of Special Leave Petition (SLP) available again [S Narhari and Others v. SR Kumar and Others]..A Division Bench of Justices Krishna Murari and Sanjay Karol referred the question to a larger bench. The issue framed was: 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?.The Court was hearing a property dispute where both parties agreed to a compromise. Subsequently, the heirs of one of the parties (respondents in this case) sued the other party seeking an injunction. The trial court in 2002 dismissed the suit and ruled that the compromise decree was binding on the respondents.The respondents moved the Karnataka High Court in appeal. During the course of the proceedings, an application for revision of the plaint and recovery of custody of property was moved by the respondents under Order VI Rule 17 of the Civil Procedure Code 1908 (CPC). The High Court remanded the matter to the trial court for a decision on the limited issue of additional relief of possession of part of the suit property.Aggrieved by this order, the appellant moved an SLP before the Supreme Court. However, during the pendency of the same, the trial court proceeded with the matter. On October 29, 2011, the trial court ruled in favor of the respondents on the limited issue of additional relief..The appellants then moved the High Court. Meanwhile, on January 3, 2013, the top court dismissed the earlier SLP on the ground that the relief prayed for was exhausted.While dismissing the SLP, the top court stated that because the first appeal against the order dated October 29, 2011 was still pending before the High Court, the appellant was free to raise all questions pertaining to the remand.However, the first appeal was dismissed by the High Court on December 20, 2019. Aggrieved, the appellant moved another SLP before the top court. The same was dismissed by the top court as withdrawn. The Court, however, gave liberty to the appellant to file a review petition before the High Court.The review plea was also dismissed on July 15, 2022. Challenging the said order, the appellant preferred the present SLP before the top court..The respondents questioned the maintainability of the SLP. It was argued that as per Order XLVII Rule 7 CPC, an SLP against an order passed in review is not maintainable.Moreover, while dismissing the original SLP filed by the appellants, while the top court granted liberty to the appellants to approach the High Court in review, it did not give the appellants specific permission to file a subsequent SLP before the top court again assailing that order..In its analysis, the top court noted that Order XLVII Rule 7 CPC makes it amply clear that no SLP can be filed against an order passed in review, and as such, the contention of the respondents is accepted.However, considering the case, the Court framed the limited question of law for consideration of a larger bench..The Court referred to precedents on the issue including Vinod Kapoor v. State of Goa (2012) and Sandhya Education Society v. Union of India (2014). These cases had a similar set of circumstances, where consecutive SLPs were filed and the order in the original SLP only gave an explicit liberty to approach the High Court. In these cases, the top court held that the subsequent SLP was not maintainable.However, contrary to the above decisions, the Court in Khoday Distilleries Limted v. Sri Mahadeshwara Sahakara Sakkare Karkhane Limited (2019) held that that the doctrine of merger is not applicable in cases where the dismissal of SLP is by way of a non-speaking order. The Bench found that if this decision is applied in present case, the SLP would be maintainable."In simpler terms, this would essentially mean that even in cases where the Special Leave Petition was dismissed as withdrawn, where no reason was assigned by the Court while dismissing the matter and where leave was not granted in the said Special Leave Petition, the said dismissal would not be considered as laying down law within the ambit of Article 141 of the Constitution of India," the Court observed..It went on to note,"If a dismissal of Special Leave Petition by way of a nonspeaking order is not considered law under Article 141 of Constitution of India, the same also cannot be considered as res judicata, and therefore, in every such dismissal, even in cases where the dismissal is by way of a withdrawal, the remedy of filing a fresh Special Leave Petition would still persist. 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."Even while noting that such an interpretation would open the floodgates of litigation, and would essentially mean that every dismissal of an SLP must be accompanied with reasons, the Court deemed it fit to refer the issue to a larger bench..[Read Judgment].Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.