Can a Review Petition be filed in High Court after the withdrawal of an SLP? Delhi HC answers

Nalini Sharma

The Delhi High Court has held that a review petition can be filed in High Court against its judgment, even if a Special Leave Petition (SLP) preferred against the same judgment in Supreme Court was dismissed as withdrawn.

The order was passed by Justices Badar Durrez Ahmed and Rajiv Sahai Endlaw JJ. on February 27 this week in a review petition filed against a 2012 judgment of the Court.

By way of background, the High Court had vide its judgment dated July 13, 2012 dismissed a writ petition filed by the petitioner. The petitioner had preferred an SLP to the Supreme Court against that judgment. The SLP was then withdrawn by the petitioner and the same was recorded by the Supreme Court in its order as “dismissed as withdrawn”.

A year later, the review petition was filed in the High Court against its 2012 judgment.

This is where the question of the maintainability of the review petition cropped up.

Senior Advocate CU Singh, arguing for the petitioners, contended that once the Supreme Court permits the withdrawal of an SLP without recording reasons, it is as if no appeal was ever filed.

For this, he placed reliance on the apex court’s decision in Kunhayammed v. State of Kerala, in which it was held that a review petition can be filed subsequent to the dismissal of an SLP in limine inasmuch as at the stage of dismissal, there exists no appeal in the eyes of law. In that case, the Supreme Court had held that only when it grants leave in an SLP and converts it into an appeal, does the decision of the Supreme Court merges with the High Court, after which a review petition cannot be filed.

Central government standing counsel Vikram Jetly, on the other hand, argued that according to Sunil Kumar v. State of Haryanain case a review petition has been filed before the High Court prior to the dismissal of the SLP, it may be entertained. However, a party cannot file a review petition after approaching the Supreme Court, as it would amount to the abuse of process of the Court.

The Bench considered the arguments of both the parties and stated,

“We are in the factual situation of the present case concerned not with a case of dismissal in limine by a non-speaking order of an SLP preferred against the judgment of which review is sought but with dismissal as withdrawn of the SLP.

Though the review petitioners, while seeking to withdraw the SLP also sought liberty to move this Court in review petition but the Supreme Court merely dismissed the SLP as withdrawn and has not stated that the liberty sought had been granted.”

The Court relied on Rule 9 of Order XV of the Supreme Court Rules, 2013 stating,

“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.”

It further observed that none of the counsel had addressed the bench on the issue of whether “dismissed as withdrawn” was the same as the dismissal of the petition. Hence, the judges proceeded to study the two judgments relied upon by the counsel in detail.

In Kunhayammed, the review petition was filed after the SLP had been dismissed. Referring to this judgment, the Court stated,

“It was expressly held that review can be filed even after SLP is dismissed and as also before special leave is granted but not after it is granted. It was held that once special leave is granted, the jurisdiction to consider the validity of the High Court’s order vested in the Supreme Court and the High Court cannot entertain a review thereafter unless such a review application was preferred in the High Court before the SLP was granted.”

It was observed that in the Sunil Kumar case, the review petition was dismissed after the dismissal of the SLP on the ground that the petitioners were found to be abusing the process of the court, and not on the maintainability of the petition.

“Certainly, if we are to find the review petitioners herein also to be abusing the process of the Court by preferring this review petition after withdrawal of the SLP preferred against the judgment of which review is sought, the review petition of the review petitioners would also suffer the same fate…”

The Court, therefore, held that the review petition is maintainable holding that,

“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.”

Siding with the review petitioners, the Bench stated that the petition was not to be barred since the SLP preferred against the judgment was ‘dismissed as withdrawn’.

Read the full judgment here.

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