Doctrine of Merger, SLP Dismissal, and Scope of High Court Review Jurisdiction

A Commentary on Zahida Shah & Anr. and Dr. Sham-su-nisa & Ors. v. Bilal Ahmad Dar & Ors.
(Jammu & Kashmir and Ladakh High Court, 08 November 2025)

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I. Introduction

This judgment of the High Court of Jammu & Kashmir and Ladakh (at Srinagar), delivered by Hon’ble Mr. Justice Sanjay Dhar on 08.11.2025 in Review Petitions No. 74/2025 and 7/2025, arises from a long-standing property and eviction dispute revolving around a building known as “Harker Building” situated at Residency Road, Srinagar.

The order primarily does three things:

1. Condones delay in filing one of the review petitions (CM No.5665/2025) on account of the petitioners first having pursued a Special Leave Petition (“SLP”) in the Supreme Court.
2. Rejects a preliminary objection that the review petition before the High Court is barred because the petitioners had already approached the Supreme Court and withdrawn their SLP.
3. Dismisses both review petitions on merits, reaffirming the narrow scope of the High Court’s review jurisdiction and its earlier directions relating to an enquiry before the Additional District Judge.

The case is doctrinally important because it:

• Reiterates the effect of dismissal/withdrawal of an SLP without grant of leave on the maintainability of a review before the High Court, in light of the doctrine of merger; and
• Clarifies the limited scope of review under Order XLVII CPC, especially regarding:
  • What constitutes “error apparent on the face of the record”; and
  • How alleged co-owners or third parties to a compromise decree should vindicate their rights.

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II. Factual and Procedural Background

1. The underlying property dispute

The litigation centres around a commercial building, “Harker Building”, at Residency Road, Srinagar. According to the primary petitioners (Zahida Shah and her children), the building belonged to the late Shabir Ahmad Shah, and on his death devolved upon them as his legal representatives. They claim to be owners of the relevant portion of the building.

The premises had been leased to one Pt. Arjun Nath for running a hotel business under the name “M/s Metro Polis Hotel”. An ejectment decree was passed against the tenants on 26.10.1984. A first appeal against this decree was dismissed on 23.05.1998. The tenants then filed Civil Revision No. 43 of 1998 before the High Court.

2. The compromise of 15.12.2015 and subsequent challenges

• On 15.12.2015, a compromise agreement was entered into between the landlords and the tenant-side parties (respondents), which led to an order of the High Court on the same date.
• The compromise has been attacked on multiple grounds, particularly:
  • Alleged lack of authority of respondent no.14 (said to be acting as attorney for some of the landlords); and
  • Alleged prejudice to other claimed co-owners who were not parties to the compromise.

To challenge this compromise and its consequences, the following applications were filed:

1. MP No.1/2016 – by Zahida Shah and Athar Shabir Shah, seeking recall of the compromise agreement dated 15.12.2015 and the consequential order.
2. Application for review of order dated 24.08.2018 – also by the same applicants.
3. MP No.5/2018 – by Dr. Sham-su-nisa, Dr. Tasnim Yaqoob, Tanveer Ahmad Dhar and Naseer Ahmad Dhar, seeking their impleadment in the proceedings as co-owners whose interests are affected.

3. The High Court’s earlier order dated 03.01.2025

On 03.01.2025, the High Court disposed of the above applications by:

• Directing the learned Additional District Judge, Srinagar (before whom a suit for eviction between the parties is pending) to:
  • Conduct an enquiry into the disputed aspects (notably the authority of respondent no.14), after permitting the parties to lead oral and documentary evidence and cross-examine witnesses; and
  • Submit a report in a sealed cover to the High Court.
• Ordering that till the enquiry report is received and considered:
  • Parties shall maintain status quo regarding possession and ownership of the building; and
  • The compromise agreement dated 15.12.2015 shall not be given effect to.
• Disposing of the review petition of Zahida Shah and Athar Shabir Shah, holding that their grievance about opportunity to cross-examine advocates stood addressed in view of the enquiry direction.
• Dismissing MP No.5/2018 (impleadment application of Dr. Sham-su-nisa and others) but clarifying that:
  • The compromise agreement is not binding on them;
  • Nor will it affect their alleged rights in respect of the building; and
  • They are at liberty to file appropriate independent proceedings (e.g., a suit for declaration or eviction).

4. Special Leave Petition before the Supreme Court

Dissatisfied with the order dated 03.01.2025, Zahida Shah and Athar Shabir Shah filed SLP (C) No. 14302 of 2025 before the Supreme Court. During the pendency of that SLP:

• They learnt that some other applicants (from MP No.5/2018) had already moved a review petition before the High Court.
• They then withdrew the SLP, which was dismissed as withdrawn on 14.08.2025, without any liberty reserved to file review.
• Thereafter, they filed Review Petition No. 74/2025 on 22.08.2025, accompanied by an application for condonation of a 200-day delay (CM No.5665/2025).

5. The two review petitions

1. RP No. 74/2025 – by Zahida Shah and Athar Shabir Shah, challenging the order dated 03.01.2025, primarily on grounds of:
   • Non-determination of whether respondent no.14 had valid authority/attorney to enter the compromise on their behalf; and
   • An alleged factual error in observing that respondent no.1, Bilal Ahmad Dar, was a party to the revision petition from the CJM’s order dated 17.08.2002.
2. RP No. 7/2025 – by Dr. Tasnim Yaqoob, Tanveer Ahmad Dhar and Naseer Ahmad Dhar (applicants in MP No.5/2018), assailing the refusal to implead them and the Court’s view that their alleged co-ownership was not admitted and must be established in separate proceedings.

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III. Summary of the Judgment

1. Condonation of delay

The Court condoned the delay of 200 days in filing RP No. 74/2025, accepting the explanation that the petitioners had been bona fide prosecuting an SLP before the Supreme Court against the same order and filed the review promptly after the SLP was dismissed as withdrawn.

2. Maintainability of review after withdrawal/dismissal of SLP

A preliminary objection was raised by respondent no.1 (tenant-side) that the review petition was not maintainable because:

• The petitioners had already approached the Supreme Court via an SLP; and
• The SLP had been dismissed as withdrawn without any liberty to pursue review.

The High Court rejected this objection, holding that:

• Mere dismissal of an SLP, whether speaking or non-speaking, without grant of leave to appeal, does not attract the doctrine of merger; and
• Therefore, such dismissal does not bar a review petition before the High Court against the same order.

In doing so, the Court relied on:

• Kunhayammed v. State of Kerala, (2000) 6 SCC 359; and
• V. Senthur & Anr. v. M. Vijay Kumar & Anr., (2022) 17 SCC 568.

3. Dismissal of RP No. 74/2025 (by Zahida Shah & Athar Shabir Shah)

On merits, the Court held:

1. Authority of respondent no.14 – The alleged failure to decide whether respondent no.14 had valid authority to enter the compromise is not an “error apparent” because:
   • The Court in its earlier order had deliberately left this question for determination by the Additional District Judge in enquiry proceedings.
   • No contrary finding had been recorded by the High Court which could be said to be erroneous on its face.
2. Status of respondent no.1 (alleged non-party) – The review petitioners argued that the earlier observation that respondent no.1 was a party to the revision from CJM’s order dated 17.08.2002 was factually wrong. The Court found:
   • Initially, respondent no.1 was not a party in the revision, but subsequent proceedings (including an application to recall order dated 29.12.2015) showed an updated memo of parties where respondent no.1 was indeed impleaded.
   • Respondent no.1 was also defendant no.1 in the eviction suit concerning the same building before the Additional District Judge.
   • Hence, the conclusion that respondent no.1 is not a stranger to the lis was correct and does not constitute an error apparent on the face of the record.

Accordingly, RP No. 74/2025 was dismissed.

4. Dismissal of RP No. 7/2025 (by alleged co-owners)

The review petition filed by Dr. Tasnim Yaqoob and others (alleged co-owners) was also dismissed, on these grounds:

• The Court had earlier held that:
  • The compromise dated 15.12.2015 is not binding on them;
  • It does not affect their alleged rights in the building; and
  • Their alleged ownership of a portion of the building is not admitted and therefore must be established in independent proceedings.
• The review petitioners argued that the ratio of Triloki Nath Singh v. Anirudh Singh, 2020 (4) Civil Court Cases 0069, should have been applied because:
  • In synopses filed by Zahida Shah and others, and by respondent no.14, there were purported admissions that the review petitioners are co-owners.
• The Court examined the pleadings and affidavits instead of synopses and noted:
  • In MP No.1/2016, Zahida Shah and others had unequivocally claimed that the building “belonged to the petitioners and respondent no.14 Owais Shabir Shah”.
  • In the eviction suit before the Additional District Judge, the plaintiffs also pleaded that they were owners of the building; no co-ownership of the review petitioners was pleaded.
  • These pleadings were duly supported by affidavits and verifications.
  • Any contrary indication in written synopses could not override the formal, verified pleadings.

Thus, the High Court reaffirmed its earlier view that:

• The alleged co-owners’ title is disputed, not admitted;
• Their proper remedy is to file an independent suit for declaration and/or eviction to establish their rights; and
• No reviewable error exists in the earlier order’s refusal to implead them or in the non-application of the ratio in Triloki Nath Singh.

RP No. 7/2025 was therefore dismissed. The earlier directions, including the enquiry by the Additional District Judge and maintenance of status quo, remain intact.

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IV. Analysis

A. Precedents Cited and Their Influence

1. Kunhayammed v. State of Kerala, (2000) 6 SCC 359

This is the leading authority on the doctrine of merger in the context of SLP dismissals. The High Court extensively relies on paragraph 27 of this judgment.

“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 […] nor would it be a declaration of law by the Supreme Court under Article 141 […]. 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. […]

The Court sometimes leaves the question of law open. Or it sometimes briefly lays down the principle, may be, contrary to the one laid down by the High Court and yet would dismiss the special leave petition. The reasons given are intended for purposes of Article 141…”

From this passage, the High Court derives two key propositions:

1. If leave to appeal is not granted, dismissal of the SLP – even with reasons – does not attract the doctrine of merger.
2. However, if the Supreme Court in a speaking order lays down a principle of law while dismissing an SLP, that legal principle will still be binding under Article 141 of the Constitution.

In the present case, the SLP of Zahida Shah and Athar Shabir Shah was dismissed as withdrawn without any speaking order or grant of leave. Therefore:

• No merger of the High Court’s order dated 03.01.2025 into a Supreme Court order took place; and
• The statutory bar under the proviso to Order XLVII Rule 1 CPC (no review after disposal of an appeal) was not attracted, as there was never an “appeal” in the strict sense.

2. V. Senthur & Anr. v. M. Vijay Kumar & Anr., (2022) 17 SCC 568

The High Court notes that V. Senthur reaffirms the ratio of Kunhayammed, holding that even a speaking order declining leave does not cause merger, although any law declared therein would bind under Article 141. The Court invokes this to reinforce that:

• Mere refusal of leave in SLP jurisdiction does not convert the Supreme Court into an appellate court for that case; and
• The High Court remains competent to entertain a review of its own order (subject, of course, to the strict limits of review).

3. Triloki Nath Singh v. Anirudh Singh, 2020 (4) Civil Court Cases 0069

Though the full facts of Triloki Nath Singh are not reproduced, the case is cited by the alleged co-owners to argue:

• That compromise/settlement orders can bind or affect certain categories of persons; and
• That where someone’s rights are implicated, they must be appropriately protected or impleaded.

The High Court effectively distinguishes this precedent by emphasizing that:

• In the present matter, the alleged co-owners are explicitly held to be unaffected by the compromise; and
• Their alleged co-ownership is not admitted and requires separate adjudication.

Therefore, this is not a case of compromising acknowledged rights of a non-party; it is a case where non-parties assert an independent, disputed title, which they are free to enforce through their own litigation.

B. Legal Reasoning

1. Doctrine of merger and maintainability of review after SLP dismissal/withdrawal

The core legal objection faced by RP No. 74/2025 was that the petitioners, having once approached the Supreme Court, could not now seek a “second bite at the cherry” by filing a review in the High Court.

The High Court’s reasoning proceeds as follows:

1. Nature of SLP jurisdiction:
   • SLP under Article 136 is a discretionary jurisdiction, not an appellate one per se.
   • The Supreme Court becomes an appellate court only after leave is granted.
2. No grant of leave in this case:
   • The SLP of the review petitioners was dismissed as withdrawn, with no grant of leave to appeal and no decision on merits.
3. Consequences in light of Kunhayammed and V. Senthur:
   • As leave was not granted, the High Court’s order never merged into any Supreme Court order.
   • There was no “appeal” decided by the Supreme Court which could trigger the bar under Order XLVII Rule 1 CPC.
4. Result:
   • The review petition is maintainable notwithstanding the prior SLP, as long as it otherwise satisfies the requirements for review (limitation and review grounds).

The Court is careful to note that even if the SLP was withdrawn after the petitioners sensed an unfavourable inclination of the Supreme Court, that fact by itself does not legally bar review, given the doctrinal position on merger.

2. Scope of review and “error apparent on the face of the record”

The judgment underscores the classic limits of the review jurisdiction:

• Review is not a re-hearing of the appeal or a substitute for an appeal.
• The Court may interfere only where:
  • There is an error apparent on the face of the record; or
  • There is discovery of new and important matter/evidence which could not be produced earlier despite due diligence; or
  • There is some other reason analogous to the above (as per Order XLVII Rule 1 CPC).

In this case:

1. The petitioners in RP No. 74/2025 attempted to argue that:
   • The Court had not decided the core issue of authority of respondent no.14; and
   • There was a factual mistake regarding respondent no.1’s status as a party.
   The Court responds:
   • Leaving an issue to be decided in a separate enquiry is not an “omission” or an error; it is a conscious judicial choice.
   • On the second point, when full records are examined (including updated memo of parties and the eviction suit), the earlier finding that respondent no.1 is not a stranger is factually correct. Hence, no error apparent exists.
2. In RP No. 7/2025, the alleged co-owners sought to rely on synopses and written arguments to show that their co-ownership had been admitted, so the Court’s contrary observation was allegedly erroneous. The Court clarifies:
   • Pleadings and affidavits, not synopses, are the authoritative record of a party’s stand.
   • The pleadings before both the High Court (MP No.1/2016) and the Additional District Judge unequivocally assert exclusive ownership in favour of Zahida Shah and her co-plaintiffs, not co-ownership with the review petitioners.
   • At best, the review petitioners raise a matter that is arguable, which is insufficient for review. A debatable point of fact/law is not an “error apparent on the face of record”.

Thus, both review petitions were deemed to be attempts to reopen and re-argue issues already considered in the order under review, which is “impermissible in law”.

3. Treatment of alleged co-owners: impleadment vs independent proceedings

RP No. 7/2025 raises an important practical question: How should third parties who claim co-ownership in property subject to a compromise decree be treated?

The Court’s answer is nuanced:

• It acknowledges that if such persons are genuinely co-owners, they are entitled to protect their interests.
• However, in this case:
  • Their alleged title is not admitted by any party in the formal pleadings;
  • There is no decree or unambiguous acknowledgment of their co-ownership; and
  • They are not in the position of parties whose established rights are being taken away behind their back.

Consequently, the Court adopts a two-pronged approach:

1. Non-binding nature of the compromise: It explicitly clarifies that the compromise dated 15.12.2015 is not binding on these alleged co-owners and does not affect their rights.
2. Remedy through separate litigation: It holds that such persons must establish their title through independent proceedings (e.g., suit for declaration and eviction), rather than by trying to:
   • Force impleadment into the existing revision/review; or
   • Use review jurisdiction as a vehicle for substantive title adjudication.

This approach protects them from prejudice by the compromise while also respecting procedural discipline and the limited scope of review.

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V. Complex Concepts Simplified

1. Doctrine of Merger

The doctrine of merger means that when a higher court passes a judgment in its appellate or revisional jurisdiction, the judgment of the lower court “merges” into that of the higher court and ceases to independently exist.

Applied here:

• If the Supreme Court had granted leave in the SLP and delivered a judgment in appeal, the High Court’s order would have merged into the Supreme Court’s judgment.
• In such a scenario, the High Court would no longer have the power to review its own order, because the operative order would be that of the Supreme Court.
• However, because the SLP was dismissed as withdrawn without grant of leave, the High Court’s order retained its independent existence and could be reviewed.

2. SLP vs Appeal

• An SLP (Special Leave Petition) under Article 136 is just a request for permission to appeal; it does not automatically mean that an appeal has been filed.
• Only when the Supreme Court grants “leave to appeal” does the SLP transform into a regular appeal.
• This distinction is crucial because certain procedural consequences (like bar on review) arise only once an appeal is actually decided.

3. Review jurisdiction and “error apparent on the face of record”

A court can review its own order only in limited situations, such as:

• Where a clear, self-evident mistake exists on the face of the record, such as:
  • Misquoting an admitted fact;
  • Overlooking a binding statutory provision or precedent.
• Where new important evidence is discovered that could not be produced earlier despite reasonable diligence.

An “error apparent” is something so obvious that it does not require elaborate argument to establish. If reasonable debate or detailed arguments are needed, it is not an “apparent” error; such issues belong in an appeal, not in review.

4. Admissions in pleadings vs statements in synopses

• An admission is a statement which is clear, unequivocal, and made formally in the pleadings or evidence (affidavits, depositions). Such admissions can have conclusive or highly persuasive effect.
• Synopses, written arguments, or oral submissions are:
  • Advocacy tools, not part of the formal record of fact; and
  • Cannot override or amend what is stated in pleadings and affidavits.
• In this judgment, the Court refuses to treat statements in synopses as binding admissions of co-ownership when the verified pleadings say the opposite.

5. Rights of non-parties in compromise decrees

When parties to a suit compromise and have that compromise recorded by the court:

• The compromise decree generally binds only the parties to the compromise and persons claiming under them.
• If a person is not a party to the suit/compromise, and his/her independent rights are not admitted or adjudicated:
  • The compromise does not automatically extinguish those rights; and
  • Such a person can still sue to establish his/her rights separately.

The High Court in this case applies this logic: it ensures that the compromise does not harm the alleged co-owners, but also insists that their rights be decided in proper, independent proceedings.

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VI. Impact and Future Implications

1. On review petitions after SLP dismissal

This judgment is a reaffirmation, in the context of the J&K and Ladakh High Court, that:

• Filing an SLP and having it dismissed (even as withdrawn and even without liberty) does not, by itself, bar a subsequent review petition before the High Court, if:
  • Leave to appeal was never granted; and
  • The review grounds fall within Order XLVII Rule 1 CPC.

Litigants who first go to the Supreme Court and later consider review in the High Court must, however, be mindful of:

• Limitation – they must seek condonation of delay, explaining bona fide prosecution of remedy before the Supreme Court.
• Substance – they must demonstrate a genuine review ground, not merely dissatisfaction with the reasoning.

2. On the scope and use of review jurisdiction

The decision sends a clear signal that:

• Review petitions are not a mechanism to re-argue the matter or to take a “second shot” at the same issues.
• Courts will scrutinize review petitions to ensure:
  • There is a genuine “error apparent” or other statutorily recognised ground; and
  • The petition is not a disguised appeal.

3. On third-party / co-owner participation in compromise-related proceedings

For alleged co-owners and third parties, the judgment clarifies:

• If your alleged title is not admitted in the main proceedings:
  • The court may decline impleadment in that narrow proceeding (such as a revision or review);
  • But can still protect you by stating that a compromise is not binding against you.
• Your principal remedy remains an independent suit to establish your title and seek appropriate relief.

This helps maintain procedural clarity: existing proceedings are not turned into omnibus title suits; yet non-parties’ legitimate concerns are not entirely disregarded.

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VII. Conclusion

The judgment in Zahida Shah & Anr. and Dr. Sham-su-nisa & Ors. v. Bilal Ahmad Dar & Ors. is a careful application of established Supreme Court doctrine on:

• The doctrine of merger in relation to SLP dismissals (Kunhayammed, V. Senthur); and
• The limited and exceptional nature of review jurisdiction under Order XLVII CPC.

By holding that dismissal or withdrawal of an SLP without grant of leave does not bar review by the High Court, the decision aligns with constitutional and procedural principles while clarifying the position for litigants within the territorial jurisdiction of the J&K and Ladakh High Court.

Simultaneously, by dismissing both review petitions for lack of any error apparent on the face of the record, the Court:

• Reiterates that review is not an appeal in disguise; and
• Preserves its earlier balanced order which:
  • Directs a fact-finding enquiry before the Additional District Judge; and
  • Protects alleged co-owners by declaring the compromise non-binding against them while steering them towards proper independent proceedings to establish their titles.

In the broader legal context, the judgment serves as a strong reaffirmation of judicial discipline in the use of review powers and provides useful guidance on the interface between SLP practice, doctrine of merger, and post-SLP remedies in High Courts.