Civil Procedure Code

LIMINE DISMISSAL IN SLP: REVIEW

It is policy of the Hon’ble Supreme Court to entertain Special Leave Petitions (SLP) and grant leave to appeal under Article 136 of the Constitution in those cases where some substantial question of law in general or public importance is involved or there is manifest injustice resulting from the impugned order or judgment. The Article 136 of the Constitution reads as follows:

         “136. Special leave to appeal by the Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India

(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.”

In case of SLP dismissal, the Supreme Court does not comment on the correctness or otherwise of the order from which leave to appeal is sought. What the Court means is that it does not consider it to be a fit case for exercising its jurisdiction under Article 136 of the Constitution. That certainly could not be so when appeal is dismissed though by a non- speaking order. An order dismissing a special leave petition, more so when it is by a non-speaking order, does not result in merger of the impugned order into the order of the Supreme Court. Even otherwise, in case of dismissal of SLP by speaking or reasoned order the Rule of discipline and Article 141 of the constitution is attracted.

In case of Kunhayammed & Ors vs State of Kerala & Anr., the Hon’ble Supreme Court held following:

“Whatever be the phraseology employed in the order of dismissal, if it is a non-speaking order, i.e. it does not assign reasons for dismissing the special leave petition, it would neither attract the doctrine of merger so as to stand substituted in place of the order put in issue before it nor would it be a declaration of law by the Supreme Court under Article 141 of the Constitution for there is no law which has been declared. If the order of dismissal be supported by reasons then also the doctrine of merger would not be attracted because the jurisdiction exercised was not an appellate jurisdiction but merely a discretionary jurisdiction refusing to grant leave to appeal.”

In case of FuljiT Kaur vs State of Punjab & Ors in Civil Appeal No. 5292 of 2004, the Hon’ble Supreme Court held following:

“8. There is no dispute to the settled proposition of law that dismissal of the Special Leave Petition in limine by this Court does not mean that the reasoning of the judgment of the High Court against which the Special Leave Petition has been filed before this Court stands affirmed or the judgment and order impugned merges with such order of this Court on dismissal of the petition. It simply means that this Court did not consider the case worth examining for the reason, which may be other than merit of the case. Nor such an order of this Court operates as res judicata. An order rejecting the Special Leave Petition at the threshold without detailed reasons therefore does not constitute any declaration of law or a binding precedent. [Vide The Workmen of Cochin Port Trust Vs. The Board of Trustees of the Cochin Port Trust & Anr. AIR 1978 SC 1283; Ahmedabad Manufacturing & Calico Printing Co. Ltd. Vs. The Workmen & Anr. AIR 1981 SC 960; Indian Oil Corporation Ltd. Vs. State of Bihar & Ors. AIR 1986 SC 1780; Supreme Court Employees’ Welfare Association Vs. Union of India & Ors. AIR 1990 SC 334; Yogendra Narayan Chowdhury & Ors. Vs. Union of India & Ors. AIR 1996 SC 751; Union of India & Anr. Vs. Sher Singh & Ors. AIR 1997 SC 1796; V.M. Salgaocar & Bros. (P) Ltd. Vs. Commissioner of Income Tax AIR 2000 SC 1623; Saurashtra Oil Mills Assn., Gujrat Vs. State of Gujrat & Anr. AIR 2002 SC 1130; Union of India & Ors. Vs. Jaipal Singh (2004) 1 SCC 121; and Y. Satyanarayan Reddy Vs. Mandal Revenue Officer, Andhra Pradesh (2009) 9 SCC 447].”

In case of State of Punjab vs Davinder Pal Singh Bhullar & Ors. etc, in Criminal Appeal No. 753-755 of 2009, the Supreme Court reiterated following:

“77. The submission advanced on behalf of the respondents that as the Special Leave Petition filed against the impugned judgment by some other party, stood dismissed by this Court, these matters also have to be dismissed at the threshold without entering into merit, is not worth acceptance. 

The issue as to whether the dismissal of the special leave petition by this Court in limine, i.e., by a non-speaking order would amount to affirmation or confirmation or approval of the order impugned before this Court, has been considered time and again. Thus, the issue is no more res integra………”

In Meghmala & Ors vs G.Narasimha Reddy & Ors, Civil Appeal Nos. 6656-6657 of 2010, the Supreme Court stated following:

“13. In Kunhayammed & Ors. Vs. State of Kerala & Anr. AIR 2000 SC 2587, a three Judge Bench of this Court reconsidered the issue and all above referred judgments and came to the conclusion that dismissal of special leave petition in limine by a non-speaking order may not be a bar for entertaining a review petition by the court below for the reason that this Court may not be inclined to exercise its discretion under Article 136 of the Constitution. The declaration of law will be governed by Article 141 where the matter has been decided on merit by a speaking judgment. In that case doctrine of merger would come into place and lay down the following principles:-………”

Further, in case of Kunhayammed & Ors vs State of Kerala & Anr., the Hon’ble Supreme Court held following: 

“The review can be filed even after SLP is dismissed is clear from the language of Order 47 Rule 1(a). Thus, the words “no appeal” has been preferred in Order 47 Rule 1(a) would also mean a situation where special leave is not granted. Till then there is no appeal in the eye of law before the superior court. Therefore, the review can be preferred in the High Court before special leave is granted, but not after it is granted. The reason is obvious. Once special leave is granted the jurisdiction to consider the validity of the High Court’s order vests in the Supreme Court and the High Court cannot entertain a review thereafter, unless such a review application was preferred in the High Court before special leave was granted.”

In Parsion Devi And Ors. vs Sumitri Devi And Ors., Civil Appeal No. 5245 of 1997, the Supreme Court held following with regard to review in general by supreme court:

“It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 CPC. In Thungabhadra Industries Ltd. Vs. The Government of Andhra Pradesh (1965 (5) SCR 174 at 186) this Court opined:

“What, however, we are not concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an “error        apparent on the face of the record”. The fact that on the earlier occasion that Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself         might be erroneous. Similarly, even if the statement was wrong, it would not follow that it         was an “error apparent on the     face   of the record”, for there is a distinct which is real, though it might not always be capable of exposition between a mere erroneous decision and a decision which could be characterised as vitiated by “error apparent.” A review is by no means an appeal in disguise whereby an erroneous decision is    reheard corrected. but lies only for patent error.”

(Emphasis ours)

Again, in    Smt. Meera Bhanja Vs.   Smt. Nirmala Kumari Choudhury (1995 (1) SCC 170) while quoting with approval a passage from Aribam Taleshwar Sharma Vs. Aribam Pishak Sharma & Ors. (1979 (4) SCC 389), this Court once again held that review proceedings are not by way of an appeal and have to strictly confined to the scope and ambit of Order 47 Rule 1 CPC.”

The SLP withdrawn or dismissed in limine do not take away the right of alternate remedy from the petitioner.

Rajni Sinha

Advocate Bombay High Court

7738080174

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