2017 (3) TMI 49 - HC - Indian Laws

Court allows review petition after SLP withdrawal, emphasizes no abuse of court process

The court ruled in favor of the review petitioners, holding that the review petition is maintainable even after the dismissal of the Special Leave ... Maintainability of review petition - dismissal as withdrawn - doctrine of merger - abuse of process - discretionary jurisdiction of the Supreme Court versus appellate jurisdiction - Rule 9 of Order XV of the Supreme Court Rules, 2013Maintainability of review petition - dismissal as withdrawn - doctrine of merger - abuse of process - Rule 9 of Order XV of the Supreme Court Rules, 2013 - Whether a review petition before the High Court is barred where the Special Leave Petition filed against the High Court judgment was dismissed as withdrawn by the Supreme Court. - HELD THAT: - The Court found that the present case involves an SLP dismissed as withdrawn and not a dismissal in limine or a dismissal on merits. A dismissal as withdrawn, under Rule 9 of Order XV of the Supreme Court Rules, 2013, has the legal effect of treating the petition as if it had not been preferred; it is not equivalent in law to a dismissal on merits. The Court analysed the competing Supreme Court precedents and concluded that Kunhayammed v. State of Kerala permits filing of review after dismissal of an SLP (including where dismissal has already occurred), holding that an SLP dismissed does not merge the High Court judgment into a Supreme Court order and does not deprive the party of statutory review rights; only when special leave is granted (converting the matter into an appeal) does the jurisprudential merger arise and bar subsequent review in the High Court. The Court observed that decisions which treated post-SLP review as an abuse of process (including Abbai Maligai Partnership Firm and Sunil Kumar) were founded on factual findings of abuse in those cases and did not establish a general rule equating dismissal as withdrawn with a bar to review. The Court also noted that some contrary two-Judge Bench dicta were distinguishable on facts or have been considered in later benches. Applying these principles, and finding no persuasive precedent that dismissal as withdrawn renders a subsequent High Court review petition legally barred, the Court held the review petition is not precluded; however, if a review is found to be a demonstrable abuse of process on the facts, it may be dismissed on that ground. [Paras 16, 20, 21, 22, 24]The review petition is not barred by the fact that the SLP preferred against the High Court judgment was dismissed as withdrawn; the review petition is maintainable before this Court, subject to any separate finding of abuse of process on the facts.Final Conclusion: Preliminary objection overruled; the review petition is not barred merely because the Special Leave Petition against the High Court judgment was dismissed as withdrawn, and the review petition is therefore maintainable before the High Court. Issues Involved:1. Maintainability of the review petition after the dismissal of the Special Leave Petition (SLP) by the Supreme Court.2. Effect of the Supreme Court's order dismissing the SLP as withdrawn without granting explicit liberty to file a review petition.3. Interpretation and application of precedents regarding the maintainability of review petitions post-SLP dismissal.Detailed Analysis:1. Maintainability of the Review Petition:The primary issue was whether the review petition is maintainable after the dismissal of the SLP by the Supreme Court. The petitioners argued that once the Supreme Court permits the withdrawal of an SLP without recording reasons, it is as if no appeal was ever filed or entertained. They cited the precedent set by Kunhayammed Vs. State of Kerala (2000) 6 SCC 359, which held that a review petition can be filed subsequent to the dismissal of an SLP, as the dismissal does not amount to an appeal in the eyes of the law. This principle was supported by several other judgments, including National Housing Coop. Society Vs. State of Rajasthan (2005) 12 SCC 149 and Gangadhara Palo Vs. Revenue Divisional Officer (2011) 4 SCC 602. The respondents, however, relied on Abbai Maligai Partnership Firm Vs. K. Santhakumaran (1998) 7 SCC 386, which held that a review petition could not be entertained after the dismissal of an SLP on merits.2. Effect of Supreme Court's Order Dismissing SLP as Withdrawn:The petitioners contended that the Supreme Court's order dismissing the SLP as withdrawn, without explicitly granting liberty to file a review petition, should still be interpreted as granting such liberty. The petitioners had sought permission to withdraw the SLP with liberty to move the High Court in a review petition, but the order only recorded the dismissal as withdrawn. The court observed that the dismissal as withdrawn should be read as it is, without assuming any implicit grant of liberty. Rule 9 of Order XV of the Supreme Court Rules, 2013, was cited, which provides that once a petition is withdrawn, it is as if it had not been preferred.3. Interpretation and Application of Precedents:The court analyzed the precedents, particularly Kunhayammed and Abbai Maligai Partnership Firm, to determine if there was any conflict. It was found that Kunhayammed did not consider Abbai Maligai Partnership Firm as laying down a contrary law. Kunhayammed held that the dismissal of an SLP does not deprive the aggrieved party of the statutory right of review. The court also examined Sunil Kumar Vs. State of Haryana JT 2012 (4) SC 32, which distinguished Kunhayammed on the grounds that it dealt with civil cases, whereas Sunil Kumar involved a criminal matter under Section 7 of the Essential Commodities Act, 1955. The court noted that the observations about abuse of process in Abbai Maligai Partnership Firm and Sunil Kumar were based on the specific facts of those cases, where the petitioners were found to be abusing the court process.The court concluded that the review petitioners in the present case were not abusing the process of the court by filing the review petition after the withdrawal of the SLP. It was held that the review petition is maintainable, and the preliminary objection raised by the respondents was dismissed.Conclusion:The court decided in favor of the review petitioners, holding that the review petition is not barred by the dismissal of the SLP as withdrawn. The court emphasized that the dismissal of an SLP does not preclude the filing of a review petition, provided there is no abuse of the court process.