2023 (7) TMI 1598 - SC - Indian Laws

Maintainability of SLP under Article 136 against review order under Order XLVII r.7 to be decided by larger bench

The SC held that the question whether an SLP under Article 136 is maintainable against an order on a High Court review under Order XLVII r.7 requires ... Maintainability of Special Leave Petition (SLP) under Article 136 against an order passed on a review petition under Order XLVII rule 7 of the Code of Civil Procedure - stay order on construction of a commercial complex on the suit property - Whether liberty granted by this Court to approach the High Court in review, automatically places the said matter matter in the escalation matrix, and makes the remedy of Special Leave Petition available again? HELD THAT:- In the case of Vinod Kapoor Vs. State Of Goa [2012 (10) TMI 1041 - SUPREME COURT], the petitioner therein had filed a Writ in the High Court and the same was dismissed. As against this, the petitioner therein, filed a review in the High Court and also filed Special Leave Petition in the Supreme Court. When the Special Leave Petition came to be heard, the petitioner therein stated that he had already filed a review, and hence, sought liberty to withdraw the case, and on the same grounds, the Special Leave Petition was dismissed as withdrawn - While dealing with a similar fact circumstance as in the present case, wherein a consecutive Special Leave Petition was filed and the order in the original Special Leave Petition only gave an explicit liberty to approach the High Court, this Court held that the subsequent Special Leave Petition was not maintainable. Even in cases where the Special Leave Petition was dismissed as withdrawn, where no reason was assigned by the Court while dismissing the matter and where leave was not granted in the said Special Leave Petition, the said dismissal would not be considered as laying down law within the ambit of Article 141 of the Constitution of India - If a dismissal of Special Leave Petition by way of a nonspeaking 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. Further, if on the said reasoning, a remedy to file a review in the High Court is allowed, then the same reasoning cannot arbitrarily exclude the filing of a subsequent Special Leave Petition. Thus, it is opined that to put a quietus to such an issue, it is necessary for the same to be adjudicated and deliberated upon by a larger bench of this Court. Further, since only after such a preliminary objection is decided, can the merits of the present case be entered into, the same is to be placed before an appropriate bench after the question of law is decided by the larger bench. Accordingly, let the papers of the case be placed before the Hon’ble Chief Justice of India for constituting a larger bench. ISSUES PRESENTED AND CONSIDERED 1. Whether a Special Leave Petition (SLP) under Article 136 is maintainable against an order passed on a review petition under Order XLVII of the Code of Civil Procedure. 2. Whether a general liberty granted by the Supreme Court to approach the High Court for a review (after an earlier SLP was dismissed as withdrawn) operates as permission to file a fresh SLP against subsequent orders arising from that review. 3. Whether earlier judicial pronouncements that (a) bar SLPs against review orders and (b) require explicit leave for filing a subsequent SLP after withdrawal are binding in the face of a line of authority holding that nonspeaking dismissals do not attract merger and may leave open remedies. ISSUE-WISE DETAILED ANALYSIS Issue 1: Maintainability of SLP against an order passed in review Legal framework: Order XLVII (Order 47) of the Code of Civil Procedure regulates review applications in civil proceedings; sub-rules provide that an order rejecting a review application is not appealable and that objections to an order granting an application may be taken by appeal from the order granting the application or in an appeal from the final decree or order. The constitutional special leave jurisdiction is discretionary and subject to procedural bars. Precedent treatment: Earlier benches have consistently held that an appeal by special leave is not maintainable against an order dismissing a review petition under the relevant provisions governing review; these precedents have been followed by the Court in the present judgment. Interpretation and reasoning: The Court characterizes Order XLVII as making clear that no SLP lies against review orders. The text and scheme of Order XLVII were read to mean that permitting collateral appeals from review orders would be contrary to the procedural design to contain multiplicity of proceedings and to respect the finality conferred by the review mechanism. Ratio vs. Obiter: The conclusion that SLPs against review orders are not maintainable is treated as ratio in the present adjudication insofar as it is applied to dismiss the maintainability objection; this follows earlier authoritative decisions. Conclusions: An SLP challenging an order passed in review under Order XLVII is, in principle, not maintainable; the preliminary objection as to maintainability on this ground is accepted. Issue 2: Effect of a prior SLP dismissed as withdrawn with liberty to approach the High Court in review - does that liberty imply permission to file a subsequent SLP? Legal framework: The rules governing review and the exercise of appellate and discretionary jurisdictions require clarity where a litigant withdraws an SLP and pursues review; procedural discipline seeks to prevent multiplicity of proceedings and forum-shopping. Precedent treatment: A consistent line of earlier decisions held that where an earlier SLP was dismissed as withdrawn without explicit permission to file a fresh SLP thereafter, a subsequent SLP is not maintainable. Another line of authority, however, particularly where dismissals are nonspeaking, has held that dismissal does not attract the doctrine of merger and may leave open remedies under certain circumstances. Interpretation and reasoning: The Court acknowledges the earlier rule that withdrawal of an SLP without explicit leave bars a fresh SLP. It notes, however, a tension with authority that reasons from the principle that nonspeaking dismissals do not constitute a declaration of law or merge the inferior order, thereby not operating as res judicata. The Court analyzes the logical consequences of adopting the nonspeaking-order line broadly and recognizes a real possibility that allowing fresh SLPs after nonspeaking withdrawals could open the floodgates to repetitive litigation. Ratio vs. Obiter: The acceptance that a general liberty to approach the High Court for review does not ipso facto entitle filing a fresh SLP without explicit permission is treated as applied ratio to the present facts; the recognition of conflicting authority and its potential implications is treated as obiter-directed commentary that exposes a substantive question of law. Conclusions: In the present circumstances the Court concurs with the principle that, absent explicit leave granted by the Supreme Court when an earlier SLP is dismissed as withdrawn, a subsequent SLP is ordinarily not maintainable. However, acknowledging conflicting lines of authority on nonspeaking dismissals, the Court refrains from finally resolving the broader conflict. Issue 3: Reconciliation of conflicting precedents concerning nonspeaking dismissals, merger, and availability of remedies - need for reference to a larger bench Legal framework: Principles of precedent, doctrine of merger, Article 141 effects of Supreme Court pronouncements, and the supervisory role of a larger bench where two-judge or three-judge bench precedents conflict. Precedent treatment: One line of decisions holds that dismissal of SLPs (speaking or nonspeaking) does not automatically merge or substitute the order under challenge; a three-judge bench has held that nonspeaking dismissals do not lay down binding law under Article 141 and therefore do not foreclose remedies such as review or further SLPs in some situations. Other decisions restrain the right to a subsequent SLP unless express leave was granted at the time of dismissal. Interpretation and reasoning: The Court carefully compares the practical and doctrinal consequences of both strands. It accepts the correctness of the rule that Order XLVII bars SLPs against review orders and that withdrawal of SLP without explicit permission generally bars a later SLP. Simultaneously, it recognizes that the reasoning in the strand that treats nonspeaking dismissals as not attracting merger raises substantial questions about finality and res judicata. Because these lines are materially inconsistent and implicate the scope of Article 141 and the doctrine of merger, a conclusive ruling requires consideration by a larger bench. Ratio vs. Obiter: The immediate application - that the High Court's review-order and the subsequent review dismissal raise maintainability issues and that the question of reopening the right to file SLPs after nonspeaking withdrawals cannot be resolved by a two-judge Bench - is ratio for the present procedural disposition. The call for a larger bench to resolve the doctrinal conflict is an operative conclusion necessitated by conflicting precedents and is not merely obiter. Conclusions: The conflict in precedent on whether nonspeaking dismissals and withdrawals bar subsequent SLPs and the correct application of the doctrine of merger presents a substantial question of law. The issue is referred to a larger bench for authoritative resolution; until such determination, the maintainability objection as framed in the present appeals must be determined in light of established principles, and the papers are to be placed for constitution of a larger bench.