NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (Civil) No. 490 of 2012
Khoday Distilleries Ltd. & Ors. .. Petitioners
Versus
Mahadeshwara S.S.K. LTD. .. Respondent
O R D E R
1. This special leave petition has been filed against the order of the
High Court of Karnataka at Bangalore dated 9.9.2011 in RP No.96/2011 in RFA
No.427 of 2006. On 20.1.2012 notice was issued on the special leave
petition as well as on the prayer of interim relief. The respondent entered
appearance and filed a detailed counter affidavit and raised a preliminary
objection about the maintainability of the special leave petition.
2. Shri Rajesh Mahale, learned counsel appearing for the respondent
submitted that the petitioner had earlier challenged the judgment and order
dated 12.11.2008 in RFA No.427 of 2006 before this Court. The same came up
for hearing before this Court on 4.12.2009 and the respondent entered
appearance and opposed the petition. This Court, while condoning the delay
in filing SLP, dismissed the SLP on the same day. Later the petitioners
filed Review Petition NO.96 of 2011 for reviewing the Judgment dated
12.11.2008 in RFA No.427 of 2006 before the High Court of Karnataka at
Bangalore. Review petition was dismissed by the High Court by the impugned
order dated 9.9.2011. Learned counsel placed considerable reliance on the
three Judge Bench Judgment of this Court in Abbai Maligai Partnership Firm
and another v. K. Santhakumaran and others (1998) 7 SCC 386 and contended
that decision would squarely apply to the facts of this case and the High
Court has rightly dismissed the review petition by holding that when the
Judgment and decree passed by the High Court was confirmed by the Supreme
Court by dismissing the SLP, there was no question of entertaining the
review petition.
3. Mr. Gopal Jain, learned counsel appearing for the petitioners
submitted that the High Court has committed an error in dismissing the
review petition since the earlier SLP was dismissed by this Court on
4.12.2009 without stating any reason. Reliance was placed on a three
Judge Bench Judgment of this Court in Kunhay Ammed and others v. State of
Kerala and another (2000) 6 SCC 359. Learned counsel pointed out that
since the SLP was dismissed at the admission stage by a non-speaking order
it would not constitute res-judicata and does not culminate in merger of
the impugned judgment and the High Court has committed a grave error in
dismissing the review petition.
4. We notice that large number of review petitions are being filed by
the parties even after dismissal of the SLPs by this Court, either by non-
speaking orders or on merits, and depending upon the out-come of the review
petitions again SLPs are being filed before this Court and both sides
place reliance on the reasoning of the three Judge Bench Judgment in Abbai
Maligai Partnership Firm and another (supra) or Kunhay Ammed and others
(supra), in respect of their rival contentions on maintainability.
5. We notice applying the ratio of the Judgments in Abbai Maligai
Partnership Firm and another (supra) or Kunhay Ammed and others (supra)
conflicting views are being expressed in few of the subsequent judgments of
this Court. In Meghamala and others v. G. Narasimha Reddy and others
(2010) 8 SCC 383, this Court after referring to Abbai Maligai Partnership
Firm and another (supra) and Kunhay Ammed and others (supra) expressed the
following view:
“25. Thus, the law on the issue stands crystallised to the effect
that in case a litigant files a review petition before filing the
special leave petition before this Court and it remains pending till
the special leave petition stands dismissed, the review petition
deserves to be considered. In case it is filed subsequent to dismissal
of the special leave petition, the process of filing review
application amounts to abuse of process of the court.
26. In view of the above, we are of the considered opinion that filing
of such a review application by the respondents at a belated stage
amounts to abuse of process of the court and such an application is
not maintainable. Thus, the High Court ought not to have entertained
the writ petition against the order of dismissal of the review
application by the Special Court and the order of the High Court to
that extent is liable to be set aside.”
6. In Palani Raman Catholic Mission v. S. Bagirathi Ammal (2009) 16 SCC
657 this Court has taken the view that review petition can be filed if no
leave has been granted to file an appeal and until there is no appeal in
the eye of law in the superior court, review can be preferred in the High
Court under Order 47 Rule 1. This Court, in that case, set aside the
judgment of the High Court and directed the High Court to consider the
review petition in accordance with law.
7. Again in Bhakra Beas Management Board v. Krishan Kumar Vij and
another (2010) 8 SCC 701 this Court held that the mere dismissal of a
special leave petition at a preliminary stage does not constitute a binding
precedent, and any order passed by the High Court placing reliance on
earlier order, can still be challenged subsequently.
8. In K. Rajamouli v. A.V.K.N. Swamyi (2001) 5 SCC 37 following the
Judgment in Abbai Maligai Partnership Firm and another (supra) and Kunhay
Ammed and others (supra) this Court further explained the principle of res-
judicata and held as follows:
“Following the decision in the case of Kunhayammed we are of the view
that the dismissal of the special leave petition against the main
judgment of the High Court would not constitute res judicata when a
special leave petition is filed against the order passed in the review
petition provided the review petition was filed prior to filing of
special leave petition against the main judgment of the High Court.
The position would be different where after dismissal of the special
leave petition against the main judgment a party files a review
petition after a long delay on the ground that the party was
prosecuting remedy by way of special leave petition. In such a
situation the filing of review would be an abuse of the process of the
law. We are in agreement with the view taken in Abbai Maligai
Partnership Firm1 that if the High Court allows the review petition
filed after the special leave petition was dismissed after condoning
the delay, it would be treated as an affront to the order of the
Supreme Court. But this is not the case here. In the present case, the
review petition was filed well within time and since the review
petition was not being decided by the High Court, the appellant filed
the special leave petition against the main judgment of the High
Court. We, therefore, overrule the preliminary objection of the
counsel for the respondent and hold that this appeal arising out of
special leave petition is maintainable.”
9. A different note was struck by this Court in Gangadhara Palo v.
Revenue Divisional Officer and another (2011) 4 SCC 602 and after referring
to the Judgment in K. Rajamouli (supra) held as follows:
“We regret, we cannot agree. In our opinion, it will make no
difference whether the review petition was filed in the High Court
before the dismissal of the special leave petition or after the
dismissal of the special leave petition. The important question really
is whether the judgment of the High Court has merged into the judgment
of this Court by the doctrine of merger or not.
When this Court dismisses a special leave petition by giving some
reasons, however meagre (it can be even of just one sentence), there
will be a merger of the judgment of the High Court into the order of
the Supreme Court dismissing the special leave petition. According to
the doctrine of merger, the judgment of the lower court merges into
the judgment of the higher court. Hence, if some reasons, however
meagre, are given by this Court while dismissing the special leave
petition, then by the doctrine of merger, the judgment of the High
Court merges into the judgment of this Court and after merger there is
no judgment of the High Court. Hence, obviously, there can be no
review of a judgment which does not even exist.”
10. We notice that in K. Rajamouli (supra) this Court has followed Kunhay
Ammed and others (supra) and distinguished Abbai Maligai Partnership Firm
and another (supra) and in Gangadhara Palo (supra) later Bench did not
accept the view expressed in K. Rajamouli (supra). To this extent, there
is some conflict between the Judgments in Gangadhara Palo (supra) and K.
Rajamouli (supra) which calls for resolution by a larger Bench.
11. We may also point out, in this connection, that Article 136 of the
Constitution does not confer any right of appeal on any party but it
confers a discretionary power on the Supreme Court to interfere in suitable
cases. Clause 1 of Article 136 of the Constitution confers very wide and
extensive powers on the Supreme Court. Article commences with a non-
obstante clause, the words are of over-riding effect and clearly indicate
the intention of the framers of the Constitution that it is a special
jurisdiction and residuary power unfettered by any statute or other
provisions of Chapter IV of Part V of the Constitution. The jurisdiction
under Article 136 of the Constitution, of course, cannot be barred by
statute since it is extraordinary power under Article 136. Article 136 is
an extra-ordinary power which cannot be taken away by legislation.
12. We also notice that several statutes confer on aggrieved parties
right of appeal to the Supreme Court in contra distinction with the powers
conferred on the Supreme Court under Article 136 of the Constitution, for
instance, Section 15Z of the Securities and Exchange Board of India Act
(SEBI), 1992 confers a right of appeal to any person aggrieved by any
decision or order of the Securities Appellate Tribunal. So also various
regulatory legislations provide for statutory right of appeal. To what
extent, the principle of res-judicata and merger would apply in respect of
a decision rendered by this Court while exercising its statutory power of
appeal as well as the one rendered while entertaining an appeal invoking
Article 136 is not seen considered by the larger bench either in Abbai
Maligai or Kunhay Ammed’ case, which is also, in our view, an issue to be
considered by the larger Bench.
13. We notice considerable arguments are being raised before this Court
as well as before various High Courts in the country on the maintainability
of review petitions after the disposal of the special leave petition
without granting leave but with or without assigning reasons on which also
conflicting views are also being expressed by the two-Judge Benches of this
Court. In order to resolve those conflicts and for proper guidance to the
High Courts, we feel it would be appropriate that this matter be referred
to a larger bench for an authoritative pronouncement.
……………………………J.
(K.S. Radhakrishnan)
….…………………………J.
(Dipak Misra)
New Delhi,
October 19, 2012.
ORDER IN THE PROCEEDING PORTION
Counsel for the petitioner pressed for an interim stay of the judgment
of the High Court. Learned counsel for the petitioner submits that he has
paid the entire amount and the dispute is only with regard to the interest
portion which roughly would come to Rs.1.62 crores. Considering the facts
and circumstances of the case we are inclined to give a direction to the
petitioner to pay Rs.1 crore to the respondent within a period of six weeks
from today. There will be stay of realization of balance amount till the
issue is decided finally.
