Decision cited:

In Kunhayammed and Others v. State of Kerala and Another (supra) the Apex Court laid down various ways in which special leave petitions can be disposed of and decided in which cases review would be permissible and where such a review is not entertain able, on the doctrine of merger and res judicata, etc;

     

“Para 37; Let us assume that the review is filed first and the delay in SLP is condoned and the special leave is ultimately granted and the appeal is pending in this Court. The position then, under Order 47 Rule 1 CPC is that still the review can be disposed of by the High Court. If the review of a decree is granted before the disposal of the appeal against the decree, the decree appealed against will cease to exist and the appeal would be rendered incompetent. An appeal cannot be preferred against a decree after a review against the decree has been granted. preferred against the earlier decree — the one before review — becomes infructuous.”

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.”

Facts of the case:

The Respondent No.1 had filed original money recovery suit against the appellant for recovery of Rs.1,00,76,630/- along with interest before the City Civil Judge and same was dismissed as barred by limitation vide his judgment and decree dated November 11, 2005 (the “Said City Court Decree”). Against the said City Court decree, respondent No.1 preferred first appeal under Section 96 of the Code of Civil Procedure, 1908 (the “CPC”) before High Court of Karnataka which was allowed on November 12, 2008 by holding that the suit was filed within the period of limitation. Accordingly, it passed decree of the amount claimed along with interest @ 12% per annum from the date of demand, i.e. July 19, 1994, up to August 03, 1994 and the interest was granted @ 10% per annum from August 04, 1994 till the date of payment (the said “HC Order”). Against HC order, the appellant preferred the special leave petition before Supreme Court (the “SC”) and same was dismissed by SC on December 04, 2009 with its order: (i)"Delay condoned (ii)Special Leave Petition is dismissed” (the said “Dismissal Order by SC”). After the said dismissal order of SC, respondent No.1 filed execution petition before the trial court.

The appellant herein, even after dismissal of the special leave petition, went back to the High Court in the form of Review Petition seeking review of the said HC Oder as the relief granted was not even sought for by respondent No.1 in the suit and said Review Petition was dismissed HC by its order dated September 9, 2011 as Apex Court has already dismissed petition against the HC Order through said Dismissal Order by SC.

Issue before Supreme Court :

Whether Review Petition is maintainable before the High Court seeking review of a judgment against which the Special Leave Petition has already been dismissed by Supreme Court ?

Supreme Court Verdict:

By reiterating and relaying upon para 37 and 44 of Kunhayammed and Others v. State of Kerala and Another (2000) 6 SCC 359 Supreme Court Held that, since Special Leave Petition 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.

Acelegal Analysis:

An order refusing special leave to appeal does not attract the doctrine of merge and such order do not stand substituted in place of the order under challenge.

But 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

The Doctrine of Merger is neither a doctrine of constitutional law nor a doctrine statutorily recognized. It is also not a doctrine of universal or unlimited application. It is a common law doctrine founded on the principles of propriety in the hierarchy of justice delivery system.

Doctrine of merger will depend on the nature of jurisdiction exercised by the superior forum and the subject-matter of challenge laid shall be determinative of the applicability of merger.