It is well-established jurisprudence that when a special leave petition (SLP) under Article 136 of the Constitution of India, 1950 is dismissed in limine i.e., vide a non-speaking order or even by a speaking order, the doctrine of merger does not apply, meaning that the order / judgment of the High Court or any Tribunal does not get merged with the dismissal order of the SLP and that the order refusing special leave does not stand ‘substituted’ in place of the order / judgment under challenge. It would simply mean that the Supreme Court has refused to interfere with the order / judgment impugned before it.
The question often arose, that in view of the afore stated well-settled legal position, can a party approach the High Court / Tribunal by means of a review or a recall petition after an in limine dismissal of a SLP?
This question was answered by a 3-Judge bench of the Supreme Court in the case of Khoday Distilleries Ltd. Vs. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd. reported as (2019) 4 SCC 376. The Supreme Court in this case, relying upon its earlier decision in Kunhayammed Vs. State of Kerala reported as (2000) 6 SCC 359 (at page 384) held that even after dismissal of the SLP, a review before the High Court would still be maintainable.
The above position would mean that once a SLP is dismissed in limine, the party concerned can approach the High Court / Tribunal again under a review / recall application and that the same would be maintainable and consequently would be decided on its own merit.
A question then further arises, as to what happens once that review / recall is also dismissed and can a party file a SLP again whereby it challenges the review / recall dismissal? The law, as per judgment of the Supreme Court in the case of MCD Vs. Yashwant Singh Negi reported as (2020) 9 SCC 815 holds that a SLP cannot be filed merely impugning the review / recall dismissal and that the ‘substantive order / judgment’ also has to be assailed.
If so be the case, then a party following Khoday Distilleries goes back to the High Court, files a review / recall and if the same gets dismissed can come back to the Supreme Court vide a fresh SLP but while doing that has to impugn the ‘substantive order / judgment’ as well, as per MCD Vs. Yashwant Singh Negi, and the challenge to which has already been ‘refused’ by the Supreme Court and which may attract or not attract the principles of Res Judicata. Herein lies the conundrum.
The answer would lie by considering the question as to ‘Whether an in limine dismissal order in a SLP attracts principles of Res Judicata or not?’
It is further pointed out that there is no conclusive or definite opinion by the Supreme Court on another aspect that is when a SLP was not dismissed in limine but withdrawn but without any liberty to go back to the High Court again.
Recently, the Supreme Court in the case of S. Narahari and Ors. Vs. S.R. Kumar and Ors., Civil Appeal No. _____ of 2023 vide its judgment dated 5.7.2023 has referred the matter to the larger bench considering the case before it and the judgments in Khoday Distilleries and Kunhayammed whereby the Supreme Court held as follows:
“While the conclusion of the said judgment is not relevant to the present case at hand, however, the reasoning behind coming to the said conclusion, in our opinion, has bearing on the present case. This Court, in the abovementioned case, while holding that a review is maintainable even after the dismissal of Special Leave Petition, observed that the dismissal of Special Leave Petition by way of a non-speaking order does not attract the doctrine of merger.”
“If a dismissal of Special Leave Petition by way of a non-speaking order is not considered law under Article 141 of the 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.”
The Supreme Court was painfully aware that such an interpretation, if expanded beyond the specific scope of filing a review in the High Court, would open the floodgates of litigation, and would essentially mean that every dismissal of Special Leave Petition must be accompanied with reasons declaring the same.
Therefore, the Supreme Court referred the matter to a larger bench to put a quietus to such an issue. The papers of the case were directed to be placed before the Hon’ble Chief Justice of India for constituting a larger bench.
The Supreme Court in the above said decision has not discussed or considered the judgment in MCD Vs. Yashwant Singh Negi though. It is hoped that the larger bench will be constituted soon and this conundrum is finally laid to rest.
BY: MAREESH PRAVIR SAHAY, ADVOCATE
Credits: Judgments pronounced by the Hon’ble Supreme Court of India.
The Author is an Advocate-on-Record with the Supreme Court of India. The views expressed are personal.
