TaxTMI 
TaxTMI 
2019 (3) TMI 232
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....ion. 4) Respondent No.1 herein had filed original suit against the appellant on the file of the XXXI Additional City Civil Judge, Bangalore City. It was a money suit for recovery of Rs. 1,00,76,630/- along with interest. The City Civil Judge, after trial, dismissed the suit as barred by limitation vide his judgment and decree dated November 11, 2005, even after finding on merits that money was payable by the appellant to respondent No.1. Against this, respondent No.1 preferred first appeal under Section 96 of the Code of Civil Procedure, 1908. This appeal was allowed by the High Court of Karnataka 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 Civil Appeal arising out of SLP (C) No. 490 of 2012 & Anr. Page 2 of 27 payment. Against this judgment of the High Court, the appellant preferred the special leave petition. This special leave petition was dismissed by this Court on December 04, 2009 with the follo....
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....d by the High Court vide orders dated September 09, 2011, inter alia, with the following observations: "The judgment and decree passed by this Court in the above appeal was questioned by the petitioners before the Hon'ble Supreme Court in Special Leave Petition to Appeal (Civil) CC No. 18374/2009 and the petition came to be dismissed on 4.12.2009. According to us, when the judgment and decree passed by this Court has been confirmed by the Hon'ble Supreme Court, question of entertaining any review by us does not arise for consideration. Accordingly, review petition is dismissed." 8) As can be seen from the above order, the reason for dismissal of the review petition is that the Apex Court has already dismissed the special leave petition against the High Court's judgment dated November 12, 2008. Therefore, review of the said judgment by the High Court is not permissible. It is this order in review petition which is challenged in these proceedings inasmuch as case of the appellant is that when the special leave petition was dismissed in limine and not by speaking order, there was no reason not to entertain the review petition by the High Court, as dismiss....
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....either in Abbai Maligai or Kunhayammed case, which is also, in our view, an issue to be considered by the larger Bench. 14. We notice that considerable arguments are being raised before this Court as well as before various High Courts in the country on the maintainability of review Civil Appeal arising out of SLP (C) No. 490 of 2012 & Anr. Page 6 of 27 petitions after the disposal of the special leave petition without granting leave but with or without assigning reasons on which also conflicting views are 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." 11) There are two judgments of this court, both of which are three Judge Bench decisions. First in line is Abbai Maligai Partnership Firm and Another v. K. Santhakumaran and Others (1998) 7 SCC 386. This judgment is relied upon by respondent No.1 with the plea that in that judgment this Court held that when the judgment and decree passed by the High Court is affirmed by the Supreme Court with the dismissal of the special ....
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.... Vij and Another (2010) 8 SCC 701. 14) After taking note of the aforesaid judgments, the reference order in the instant case makes a remark about the nature of conflict between them, which is noted in paragraph 11 of the judgment and is reproduced below: "11. We notice that in K. Rajamouli this Court has followed Kunhayammed and distinguished Abbai Maligai Partnership Firm and in Gangadhara Palo the later Bench did not accept the view expressed in K. Rajamouli. To this extent, there is some conflict between the judgments in Gangadhara Palo and K. Rajamouli which calls for resolution by a larger Bench." 15) It may be useful to add, in the line of the aforesaid cases, a recent judgment of this Court in Medical Council of India v. State of Kerala and Others 2018 (11) Scale 141, which is again a two Judge Bench. Though in this case situation was not where review petition was filed after the dismissal of the special leave petition, at the same time, dismissal of the special leave petition in limine was explained to mean that it was still a decision on merits by this Court. 16) Having stated the manner in which the issue is dealt with in various judgments noted above, i....
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....in the SLPs in this Court after the challenge had failed. By passing the impugned order on 7-4-1994, judicial propriety has been sacrificed. After the dismissal of the special leave petitions by this Court, on contest, no review petitions could be entertained by the High Court against the same order. The very entertainment of the review petitions, in the facts and circumstances of the case, was an affront to the order of this Court. We express our strong disapproval and hope there would be no occasion in the future when we may have to say so. The jurisdiction exercised by the High Court, under the circumstances, was palpably erroneous. The respondents who approached the High Court after the dismissal of their SLPs by this Court, abused the process of the court and indulged in vexatious litigation. We strongly deprecate the matter in which the review petitions were filed and heard in the High Court after the dismissal of the SLPs by this Court. The appeals deserve to succeed on that short ground. The appeals are, consequently, allowed and the impugned order dated 7-4-1994 passed in the review petitions is hereby set aside. The respondents shall pay Rs. 10,000 as costs." 18) In Ku....
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....nnot be more than one decree or operative orders governing the same subject matter at a given point of time. When a decree or order passed by an inferior Court, Tribunal or Authority is subjected to a remedy available under law before a superior forum, then, though the decree or order under challenge continues to be effective and binding, nevertheless, this finality is to put in jeopardy. Once the superior court disposes of the dispute before it in any manner, i.e. either by affirming the decree or order or by settings aside or by modifying the same, it is the decree of the superior Court, Tribunal or Authority which is the final binding and operative decree and the decree or order of the lower Court, Tribunal or authority gets merged into the order passed by the superior forum. The Court also clarified that this doctrine is not of universal or unlimited application. The nature of jurisdiction exercised by the superior forum and the content or subject matter of challenge laid or which could have been laid will have to be kept in view. The Court thereafter discussed the provision pertaining to the appellate jurisdiction that is exercised by the Supreme Court conferred upon it by Art....
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....ons of law or grounds set out in the SLP. On hearing, the Court may refuse the leave and dismiss the petition for seeking special leave to appeal either ex parte or after issuing notice to the opposite party. Under Rule 11, on the grant of special leave, the petition for special leave shall, subject to the payment of additional court fee, if any, be treated as the petition of appeal and it shall be registered and numbered as such. The appeal shall then be set down for hearing in accordance with the procedure laid down thereafter. Thus, a petition seeking grant of special leave to appeal and the appeal itself, though both dealt with by Article 136 of the Constitution, are two clearly distinct stages. In our opinion, the legal position which emerges is as under: (1) While hearing the petition for special leave to appeal, the Court is called upon to see whether the petitioner should be granted such leave or not. While hearing such petition, the Court is not exercising its appellate jurisdiction; it is merely exercising its discretionary jurisdiction to grant or not to grant leave to appeal. The petitioner is still outside the gate of entry though aspiring to enter the appella....
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....nu Balakrishna Iyer v. Ariya M. Ramaswami Iyer, AIR 1965 SC 195; Abbai Maligai Partnership Firm v. K. Santhakumaran, (1998) 7 SCC 386; Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat, (1969) 2 SCC 74; Sushil Kumar Sen v. State of Bihar, (1975) 1 SCC 774; Gopabandhu Biswal v. Krishna Chandra Mohanty, (1998) 4 SCC 447; Junior Telecom Officers Forum v. Union of India, 1993 Supp (4) SCC 693 and Supreme Court Employees' Welfare Assn. Case, (1989) 4 SCC 187.. (iii) Leave granted - dismissal without reasons - merger results Thungabhadra Industries Ltd. v. Govt. of A.P., AIR 1964 SC 1372. 22) It may be pertinent to mention here that while laying down the second principle mentioned above, the Court took note of the judgment in Abbai Maligai Partnership Firm and discussed it in the following manner: "26. The underlying logic attaching efficacy to an order of the Supreme Court dismissing SLP after hearing counsel for the parties is discernible from a recent three-Judge Bench decision of this Court in Abbai Maligai Partnership Firm v. K. Santhakumaran [(1998) 7 SCC 386] . In the matter of eviction proceeding initiated before the Rent Controller, the order passe....
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....cts, the Court gave its conclusions and also summed up the legal position from paragraphs 39 to 44. We reproduce the same hereunder: "39. We have catalogued and dealt with all the available decisions of this Court brought to our notice on the point at issue. It is clear that as amongst the several two-Judge Bench decisions there is a conflict of opinion and needs to be set at rest. The source of power conferring binding efficacy on decisions of this Court is not uniform in all such decisions. Reference is found having been made to (i) Article 141 of the Constitution, (ii) doctrine of merger, (iii) res judicata, and (iv) rule of discipline flowing from this Court being the highest court of the land. 40. A petition seeking grant of special leave to appeal may be rejected for several reasons. For example, it may be rejected (i) as barred by time, or (ii) being a defective presentation, (iii) the petitioner having no locus standi to file the petition, (iv) the conduct of the petitioner disentitling him to any indulgence by the court, (iv) the question raised by the petitioner for consideration by this Court being not fit for consideration or deserving being dealt with....
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....ed by this Court in its order expressing its adjudication (expressly or by necessary implication) on point of fact or law shall take away the jurisdiction of any other court, tribunal or authority to express any opinion in conflict with or in departure from the view taken by this Court because permitting to do so would be subversive of judicial discipline and an affront to the order of this Court. However this would be so not by reference to the doctrine of merger. 41. Once a special leave petition has been granted, the doors for the exercise of appellate jurisdiction of this Court have been let open. The order impugned before the Supreme Court becomes an order appealed against. Any order passed thereafter would be an appellate order and would attract the applicability of doctrine of merger. It would not make a difference whether the order is one of reversal or of modification or of dismissal affirming the order appealed against. It would also not make any difference if the order is a speaking or non-speaking one. Whenever this Court has felt inclined to apply its mind to the merits of the order put in issue before it though it may be inclined to affirm the same, it is cus....
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....ect-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter. (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....
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.... 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 Firm [(1998) 7 SCC 386] 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 th....