Rajiv Sahai Endlaw, J.
Review Petition No. 335/2013
1. This order disposes of the preliminary objection to the very maintainability of the review petition, on the ground that the Special Leave Petition (SLP) preferred against the order of which review is sought having been dismissed, this Court cannot review its judgment.
2. Review is sought of the judgment dated 13th July, 2012 of dismissal of the writ petition. The petitioners preferred SLP(C) No. 31982/2012 against the said judgment and which came up before the Supreme Court on 7 December, 2012, when the following order was passed:
“UPON hearing counsel the Court made the following
After some arguments, counsel for the petitioner seeks permission to withdraw the special leave petition with liberty to the petitioner to move the High Court in a review petition.
The special leave petition is dismissed as withdrawn.”
3. It is the case of the petitioners that the petitioners on 14 January, 2013 filed an application for correction/rectification of an error in the aforesaid order, averring that the liberty sought and granted had remained to be noted therein, but the counsel for the petitioners was informed that the application was considered and would not be listed for hearing.
4. We have heard the senior counsel for the review petitioners as well as the counsel for the respondent Union of India (UOI) and have also perused the written submissions filed on the said preliminary objection.
5. The senior counsel for the review petitioners has contended (i) that once the Supreme Court permits withdrawal of a SLP without recording reasons, it is as if no appeal was ever filed or entertained since in the absence of grant of special leave, there is no appeal in existence; (ii) that where a SLP is permitted to be withdrawn and equally when it is dismissed in limine without recording reasons, the High Court's judgment neither merges into any proceedings before the Supreme Court nor is it in any manner affected by the filing and subsequent withdrawal or dismissal of the SLP; (iii) that a three Judges Bench of the Supreme Court in Kunhayammed v. State of Kerala (2000) 6 SCC 359 expressly concerned with the issue of maintainability of a review petition after the dismissal in limine of the SLP and after noticing conflicting judgments held that a review petition can be filed subsequent to the dismissal of an SLP inasmuch as at the stage of dismissal of an SLP, there exists no appeal in the eyes of law as at that stage the Supreme Court is exercising its discretionary jurisdiction and not the appellate jurisdiction; only when the Supreme Court grants leave in SLP and converts it into an appeal and the appeal thereafter is disposed of with or without reasons, that the judgment of the Supreme Court merges with that of the High Court and where-after review petition cannot be filed; (iv) that Kunhayammed (supra) has been followed in National Housing Coop. Society v. State of Rajasthan (2005) 12 SCC 149, Palani Roman Catholic Mission v. S. Bagirathi Ammal. (2009) 16 SCC 657, Gangadhara Palo v. Revenue Divisional Officer (2011) 4 SCC 602, Bakshi Dev Raj v. Sudheer Kumar (2011) 8 SCC 679, Bhakra Beas Management Board v. Krishan Kumar Vij (2010) 8 SCC 701 and Sri Ram Builders v. State of Madhya Pradesh (2014) 14 SCC 102; (v) that the earlier judgment also of a three Judges Bench in Abbai Maligai Partnership Firm v. K. Santhakumaran (1998) 7 SCC 386 turned on its own facts; in that case SLP was dismissed on merits, after issuance of notice and a full contest between the parties; it was in such a situation that the Supreme Court held that subsequent to dismissal of SLP in that case, review petition could not have been entertained by the High Court; (vi) that it is not as if Abbai Maligai Partnership Firm (supra) was not noticed in Kunhayammed (supra); it was held to be not laying down the law to the contrary; (vii) that the judgments in K. Rajamouli v. A.V.K.N Swamy (2001) 5 SCC 37 and Meghmala v. G. Narasimha Reddy (2010) 8 SCC 383 though subsequent to Kunhayammed (supra) and “opined in passing” that a review petition subsequent to dismissal of SLP is not maintainable but are of two Judges Benches and again turn on their own facts; (viii) that K. Rajamouli (supra) in fact has been considered in Gangadhara Palo (supra) where it has been held that K. Rajamouli (supra) is not a precedent; (ix) that Meghmala (supra) has been considered in Sri Ram Builders (supra) as contrary to Kunhayammed (supra) and Gangadhara Palo (supra); (x) that the correctness of K. Rajamouli and Meghmala (supra) has in any case been referred to a larger Bench of the Supreme Court in Khoday Distilleries v. Mahadeswara S.S.K Ltd. (2012) 12 SCC 291; (xi) that though in the facts aforesaid, there is no conflict of opinion but even if it were to be held so, as per the judgment dated 10 February, 2009 of the Division Bench of this Court in W.P(CRL) No. 2444/2006 titled Gopa Manish Vora v. Union of India and Indo Swiss Time Limited, Dundahera v. Umrao AIR 1981 P&H 213, it is open to the High Court to follow that judgment which in its opinion lays down the law more correctly; (xii) that the judgment of the Division Bench of this Court in Jia Lal Kapur v. Uoi & Anr…. S 2016 (154) DRJ 698 though on the basis of K. Rajamouli and Meghmala (supra) holding review to be not maintainable after dismissal of SLP but is per incuriam Gangadhara and Sri Ram Builders (supra) judgments.
6. Per contra, the counsel for UOI has relied on Abbai Maligai Partnership Firm (supra) and contended (a) that Kunhayammed (supra) was noticed in Meghmala (supra); (b) that Abbai Maligai Partnership Firm (supra) was followed in Sunil Kumar v. State of Haryana JT 2012 (4) SC 32 wherein the Supreme Court expressly distinguished Kunhayammed (supra); (c) that it was held in Sunil Kumar (supra) that in case review petition has been filed before the High Court prior to the date the SLP is dismissed by the Supreme Court, the same may be entertained; however a party cannot file a review petition before the High Court after approaching the Supreme Court as it would amount to abuse of process of the Court; (d) that Sunil Kumar (supra) was reiterated in K. Rajamouli (supra); (e) that the same view has been taken in Jia Lal Kapur (supra); (f) that Gangadhara Palo and Bakshi Dev Raj (supra) had dissented from the reasoning in Abbai Maligai Partnership Firm, Meghmala and Sunil Kumar (supra) which held that filing a review petition after dismissal of SLP is an abuse of the process of the Court; (g) that the ratio of Abbai Maligai Partnership Firm is not that dismissal of SLP in limine by a non-speaking order attracts the principle of merger but that review petition filed after the dismissal of SLP amounts to abusing the process of the Court; (h) that mere non-application of doctrine of merger would not entail that the Court lower in hierarchy could ignore any opinion expressed by the Supreme Court, either on point of fact or law in the order rejecting the SLP and to entertain review petition in relation to the order which was the subject matter of special leave petition; (i) that in Sudha Hari Pophle v. Oriental Insurance Company Ltd. 2015 SCC OnLine Bom 1608 it has been held that to express any opinion in conflict or in departure from the view taken by the Supreme Court would be subversive of judicial discipline and an affront to the order of the Supreme Court; (j) that the earliest three Judges Bench of the Supreme Court in Abbai Maligai Partnership Firm (supra) will be the proper precedent to follow, as held in Sundeep Kumar Bafna v. State of Maharashtra AIR 2014 SC 1745; (k) that Sunil Kumar (supra) being the latest dicta of the Supreme Court, has to be followed; (l) that this Court in Rakesh Bhatia v. Pramod Sharma 2009 (112) DRJ 143 has held that the bar to the maintainability of the review is not connected to the disposal of the appeal but to the preference of an appeal.
7. We have considered the rival contentions.
8. We are in the factual situation of the present case concerned not with a case of dismissal in limine by a non-speaking order of an SLP preferred against the judgment of which review is sought but with dismissal as withdrawn of the SLP. Though the review petitioners, while seeking to withdraw the SLP also sought liberty to move this Court in review petition but the Supreme Court merely dismissed the SLP as withdrawn and has not stated that the liberty sought had been granted.
9. The question which arises is, whether the dismissal as withdrawn of the SLP, even in the absence of the words “with liberty sought” is to be read as grant of liberty.
10. The review petitioners obviously were of the opinion that without the aforesaid words, they did not have liberty to approach this Court by way of review and claim to have made an application to the Supreme Court in this regard but which application is stated to have been refused to be listed.
11. In our opinion, it is not for us to venture into, whether the order, notwithstanding having not provided that the review petitioners had been granted liberty, grants liberty or not. It cannot be lost sight of that it is not as if the counsel for the review petitioners, when the SLP came up before the Court, stated that the filing of SLP was misconceived and withdrew the same. The order records that it was “after some arguments” that the counsel for the review petitioners sought permission to withdraw the SLP. It is also not as if the Supreme Court is not known to, while dismissing the SLP as withdrawn, grant such liberty. The order thus has to be read as it is i.e, of dismissal of SLP as withdrawn.
12. Rule 9 of Order XV titled “Petitions Generally” of the Supreme Court Rules, 2013 provides for withdrawal of the petition. Once a proceeding/petition is permitted to be withdrawn, the effect of such withdrawal is as if, it had not been preferred. It is a different matter that the Rules may prohibit the petitioner who so withdraws his petition from re-filing the same or even in the absence of such Rules, such re-filing may be treated as an abuse of the process or by way of re-litigation. But in law a dismissal of the petition as withdrawn cannot be at par with the dismissal of the petition.
13. Neither counsel has however addressed us on this aspect and has proceeded on the premise as if dismissal as withdrawn is the same as dismissal of the petition.
14. As far as the effects, if any, of dismissal in limine of a SLP on a subsequent review petition before the High Court is concerned, which arise for consideration are firstly whether, Abbai Maligai Partnership Firm and Kunhayammed (supra), both of three Judges Bench hold differently and secondly whether the two deal with different factual situations i.e of a review having been preferred before the dismissal of SLP or after the dismissal of SLP. We have studied the two judgments in this light.
15. We find that in Kunhayammed (supra) the review petition was filed after the dismissal of SLP. The Supreme Court was approached aggrieved from the order of the High Court overruling the preliminary objection as to the maintainability of the review petition on the ground of the SLP having been dismissed. Supreme Court held that where the judgment of the High Court has come up to the Supreme Court by SLP and the SLP is dismissed, the judgment of the High Court does not merge in the order of dismissal of SLP and the aggrieved party is not deprived of any statutory right of review, if it was available and he can pursue it; it may be that the review Court may interfere or it may not interfere depending upon the law and principles applicable to interference in review; but the High Court, if it exercises a power of review or deals with the review application on merits, cannot be said to be wrong in exercising statutory jurisdiction or power vested in it. It was expressly held that review can be filed even after SLP is dismissed and as also before special leave is granted but not after it is granted. It was held that once special leave is granted, the jurisdiction to consider the validity of the High Court's order vested 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 the SLP was granted. With respect to Abbai Maligai Partnership Firm (supra) it was observed that the facts and circumstances of the case persuaded the Supreme Court to form an opinion that the tenants were abusing the process of the Court by approaching the High Court and the very entertainment of review petition and then reversing the earlier order was an affront of the order of the Supreme Court. It was explained that the three Judges Bench in Abbai Maligai Partnership Firm (supra) nowhere in the course of judgment relied on the doctrine of merger for taking the view they had taken and rather a careful reading of Abbai Maligai Partnership Firm (supra) also fortified the view taken in Kunhayammed (supra).
16. It would thus be seen that Kunhayammed (supra), though of a Bench of the same strength as Abbai Maligai Partnership Firm (supra), did not read Abbai Maligai Partnership Firm (supra) as laying down anything to the contrary than what was held in Kunhayammed (supra). The Supreme Court having expressly held so, it is not open today to the respondent UOI to contend or for us to hold that there is a conflict in the two.
17. We now proceed to analyse whether Sunil Kumar (supra) carves out any different factual scenario in which Abbai Maligai Partnership Firm and Kunhayammed (supra) operate.
18. Supreme Court in Sunil Kumar (supra) was concerned with a petitioner who was held to be a black-marketer exploiting helplessness of the poor people of the society and capable of engaging lawyers and found to be abusing the process of the Court and wanting to use the Courts as a safe haven. The subject matter of Sunil Kumar (supra) was a transaction under Section 7 of the Essential Commodities Act, 1955. The petitioner therein was found to have approached the High Court for modifying the order of his conviction after the SLP against the order of conviction had been dismissed and had again preferred the SLP to the Supreme Court against the order of the High Court refusing to modify the order of conviction. It was held that Section 362 of the Code of Criminal Procedure, 1973 puts a complete embargo on the Criminal Court to reconsider after the delivery of judgment as the Court becomes functus officio. In this background when the petitioner relied on Kunhayammed (supra), it was observed that Kunhayammed (supra) has been explained in various subsequent judgments as holding that review petition filed before the High Court after approaching the Supreme Court amounts to abuse of the process of the Court. Reference in this regard was made to Meghmala (supra). However, after holding so, it was further held that the ratio of Kunhayammed (supra) has no application to Sunil Kumar (supra) as Kunhayammed (supra) was dealing with civil cases.
19. We have already noticed above that in Kunhayammed (supra) the review petition was filed after the order of dismissal of the SLP.
20. What we find is that the observations, of preferring review petition after the dismissal of SLP amounting to abuse of the process of the Court, in Abbai Maligai Partnership Firm (supra) as well as in Sunil Kumar (supra) are on a factual finding of the petitioners therein abusing the process of the Court and not on the maintainability of the review petition. Certainly, if we are to find the review petitioners herein also to be abusing the process of the Court by preferring this review petition after withdrawal of the SLP preferred against the judgment of which review is sought, the review petition of the review petitioners would also suffer the same fate. However it would not make the review not maintainable.
21. We next take up Bakshi Dev Raj (supra). Incidentally in that case also, the SLP was dismissed as withdrawn. We do not find it to be laying anything to the contrary and rather find it to be relying extensively on Kunhayammed (supra) and holding that even after dismissal of an SLP, the aggrieved party is entitled to file a review. However, the petitioners therein were found not entitled to review on the ground inter alia of their conduct.
22. We are therefore unable to find any merit in the objection of the counsel for the respondent UOI on the basis of the judgments cited of the Supreme Court to the maintainability of the review petition.
23. That still leaves Jia Lal Kapur (supra) rendered by a Coordinate Bench. The Division Bench in Jia Lal Kapur (supra) was concerned with a review petition (not in a criminal matter) after the SLP, review petition and curative petition had been dismissed by the Supreme Court. The Division Bench, after holding that the petitioner therein by way of review was indeed seeking a re-hearing and which was not permissible in review and that a contrary view in a subsequent judgment is not an error apparent on the face of the record to invite review, also on the basis of K. Rajamouli and Meghmala (supra) and without noticing Kunhayammed (supra) held the review petition to be an abuse of the process of the Court. We highlight that neither was Kunhayammed (supra) noticed nor was it held that the review petition is not maintainable. It is thus not as if the Division Bench in Jia Lal Kapur (supra) has held to be contrary.
24. We thus decide the preliminary objection in favour of the review petitioners and hold this review petition to be not barred owing to the SLP preferred against the judgment of which review is sought having been dismissed as withdrawn.