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State Of Assam v. Ripa Sarma .
Factual and Procedural Background
The State of Assam filed a Special Leave Petition (SLP) before the Supreme Court challenging an order dated 26-02-2010 of the Division Bench of the Gauhati High Court. That High Court order had dismissed Review Petition No. 8 of 2010, in which the State sought review of an earlier judgment dated 20-11-2007 rendered in Ripa Sarma v. State of Assam (Writ Appeal No. 279 of 2007). The Division Bench rejected the review petition on the ground that the applicant was effectively seeking a rehearing of the appeal on facts not previously brought to the Court’s notice. The State did not challenge the 20-11-2007 judgment itself in any prior SLP, nor was that main judgment questioned in the present SLP; the petition was confined solely to the High Court’s dismissal of the review petition.
Legal Issues Presented
- Whether a Special Leave Petition is maintainable when it assails only the High Court’s order rejecting a review petition without simultaneously challenging the original judgment that was sought to be reviewed.
- Whether the decision in Eastern Coalfields Ltd. v. Dugal Kumar (2008) 14 SCC 295 overrides or alters the earlier line of authority on the above question.
Arguments of the Parties
Respondent’s Arguments (Ripa Sarma)
- Raised a preliminary objection that the SLP is barred under Order 47 Rule 7 of the Civil Procedure Code, 1908, because the main judgment was never challenged.
- Relied on three Supreme Court decisions—Shanker Motiram Nale v. Shiolalsing Gannusing Rajput (1994) 2 SCC 753, Suseel Finance and Leasing Co. v. M. Lata (2004) 13 SCC 675, and M.N. Haider v. Kendriya Vidyalaya Sangathan (2004) 13 SCC 677—each holding that an SLP solely against rejection of a review petition is not maintainable.
Petitioner’s Arguments (State of Assam)
- Contended that the principle of merger or the grant of leave could permit an SLP limited to the review order.
- Placed reliance on Eastern Coalfields Ltd. v. Dugal Kumar (2008) 14 SCC 295, particularly paragraphs 22-23, where a similar preliminary objection was rejected after leave had been granted in that case.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Shanker Motiram Nale v. Shiolalsing Gannusing Rajput (1994) 2 SCC 753 | An SLP limited to an order rejecting a review petition is barred under Order 47 Rule 7 CPC when the main judgment is unchallenged. | Formed the primary basis for sustaining the preliminary objection to maintainability. |
| Suseel Finance and Leasing Co. v. M. Lata (2004) 13 SCC 675 | Followed and affirmed the principle in Shanker Motiram Nale. | Cited to reaffirm that the Supreme Court is bound by its earlier decision and concurs with it. |
| M.N. Haider v. Kendriya Vidyalaya Sangathan (2004) 13 SCC 677 | Reiterated the same rule of non-maintainability of such SLPs. | Used to demonstrate consistency of the legal position. |
| Eastern Coalfields Ltd. v. Dugal Kumar (2008) 14 SCC 295 | Observed that once leave is granted, it may be improper to dismiss an appeal challenging only the review order. | The Court found this decision to be rendered per incuriam as earlier binding precedents were not considered, and therefore declined to treat it as governing authority. |
Court's Reasoning and Analysis
After hearing extensive submissions, the Supreme Court noted that:
- The petitioner had not challenged, and still does not challenge, the substantive High Court judgment dated 20-11-2007.
- Three earlier co-equal Bench decisions (Shanker Motiram Nale, Suseel Finance, and M.N. Haider) definitively hold that an SLP challenging only the order rejecting a review petition is not maintainable under Order 47 Rule 7 CPC.
- The sole authority advanced by the petitioner—Eastern Coalfields—did not consider those earlier judgments. Consequently, it was declared per incuriam and incapable of overruling the settled law.
- Because the preliminary objection was raised at the outset and the binding precedents directly applied, the Court found the SLP plainly barred.
Holding and Implications
SLP DISMISSED on the ground of non-maintainability.
Implications: The immediate effect is that the High Court’s dismissal of the review petition stands final, and the application for impleadment becomes infructuous. The judgment does not create new precedent but reinforces the settled principle that an SLP cannot lie solely against an order rejecting a review petition when the underlying judgment is left unchallenged.
Order
1. We have heard Mr Avijit Roy, learned counsel for the petitioner, State of Assam as well as Mr Jayant Bhushan, learned Senior Counsel appearing for the respondent at length. Mr Jayant Bhushan has raised a preliminary objection to the maintainability of the special leave petition.
2. The petitioner herein has challenged the order passed by the Division Bench of the Gauhati High Court dated 26-2-2010 Review Petition No. 8 of 2010 dismissing the review petition filed by the petitioner seeking review of the judgment and order dated 20-11-2007 rendered in Ripa Sarma v. State of Assam Writ Appeal No. 279 of 2007. The Division Bench has dismissed the review petition on the ground that in substance, the applicant seeks rehearing of Writ Appeal No. 279 of 2007 on the basis of certain facts, which were not brought to the notice of the Court at the time of hearing of the appeal.
3. It is not disputed before us that the judgment and order dated 20-11-2007 passed in Ripa Sarma v. State of Assam Writ Appeal No. 279 of 2007 was not challenged by way of a special leave petition before this Court. In fact, the aforesaid judgment and order is not even challenged in the present special leave petition. Therefore, the special leave petition is restricted in its challenge, to the order passed by the Division Bench dismissing the review petition on 26-2-2010 Review Petition No. 8 of 2010.
4. In support of the submission that the present special leave petition is not maintainable, Mr Bhushan has relied on three judgments of this Court. In Shanker Motiram Nale v. Shiolalsing Gannusing Rajput (1994) 2 SCC 753 it has been held that the special leave petition which has been filed against the order rejecting the review petition would be barred under Order 47 Rule 7 of the Civil Procedure Code, 1908. The aforesaid judgment has been followed by this Court in Suseel Finance and Leasing Co. v. M. Lata (2004) 13 SCC 675. This Court held that not only was it bound by the aforesaid judgment in Shanker Motiram Nale case (1994) 2 SCC 753 but was also in agreement with it. The law laid down in both the aforesaid judgments was further reiterated in M.N Haider v. Kendriya Vidyalaya Sangathan (2004) 13 SCC 677.
5. In view of the above, the law seems to be well settled that in the absence of a challenge to the main judgment, the special leave petition filed challenging only the subsequent order rejecting the review petition, would not be maintainable.
6. Faced with this situation, Mr Avijit Roy, learned counsel appearing for the State of Assam, seeks to rely on a subsequent judgment of this Court in Eastern Coalfields Ltd. v. Dugal Kumar (2008) 14 SCC 295. He has made a specific reference to paras 22 and 23 of the judgment. In para 23 of the judgment, it is observed as follows:
“23. It was submitted by the learned counsel for the appellant that when the review petition was dismissed, the order passed by the Division Bench in intra-court appeal got merged in the order of review petition. But even otherwise, when the order passed in the review petition is challenged, it would not be proper to dismiss this appeal particularly when leave was granted in SLP after hearing the parties. We, therefore, reject the objection raised by the writ petitioner.”
A perusal of the aforesaid paragraph would clearly show that the judgments noticed by us in the earlier part of the order were not brought to the notice of the Court in Eastern Coalfields Ltd. case (2008) 14 SCC 295. This apart, the submission with regard to the merger of the main order with the order in review has been merely noticed, and not accepted. The preliminary objection seems to have been rejected on the ground that since leave has been granted in the special leave petition, it would not be proper to dismiss the same without hearing the parties.
7. In the present case, the preliminary objection has been raised at the threshold. In addition, it is an inescapable fact that the judgment rendered in Eastern Coalfields Ltd. (2008) 14 SCC 295 has been rendered in ignorance of the earlier judgments of the Benches of co-equal strength, rendering the same per incuriam. Therefore, it cannot be elevated to the status of precedent. In view of the above, we accept the preliminary objection raised by Mr Jayant Bhushan, learned Senior Counsel. The special leave petition is, accordingly, dismissed.
8. Since the special leave petition has been dismissed, no orders are required to be passed on the application for impleadment as party-respondent.
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