Binding effect of Dismissal of SLP
Special Leave Petition
or SLP can be dismissed in two manners namely; Dismissed with a Speaking Order
and Dismissed without a Speaking Order.
If the SLP is dismissed
it simply means that in opinion of the Apex Court a case for invoking appellate
jurisdiction of Court is not required.
If SLP is dismissed
with a Speaking Order: that means
reasons for refusing the grant of leave are provided then the order has two
implications.
Firstly,
the statement of law contained in the order is a declaration of law by the
Supreme Court within the meaning of article 141 which will become binding on
all courts and tribunals in India and certainly the parties thereto.
Secondly,
whatever is stated by Court are to be considered as findings by SC which would
be binding on the parties and the courts.
Thirdly,
Doctrine of Merger will apply. This doctrine is not a constitutional law nor a
statutorily recognized doctrine but a common law doctrine which states that in
case the superior authority provides an order then the lower court order merges
with the order of higher authority.
If SLP is dismissed without
a Speaking Order:
If SLP is dismissed without speaking order
approving the decision of High Court or Tribunal, then Doctrine of Merger will
not apply.
Further the court has
held in the case of Abbai Maligai Partnership Firm ... vs K. Santhakumaran[1]
that the act of high court entertaining a
review petition against an order of dismissal by SC was erroneous and subversive. High Court, therefore, had no power or
jurisdiction to review the self same order, which was the subject matter of
challenge in the SLPs in this court after the challenge, had failed.
In
the case of V.M.
Salgaocar And Bros. Pvt. Ltd. ... vs Commissioner of Income Tax[2] court has held that in
case of a non speaking order Art 141 is not attracted.
However a review petition is always maintainable
before High Court, against the previous order of High Court, Against which SLP
is rejected by SC, if it is not barred by Limitation Act. this aspect was made
clear by a three judges bench in the case of Kunhayammed and Others vs. State
of Kerala and Another.[3]
In the verbatim of the Court
“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.”[4]
And in the light of
above statement it is clear that unless the SLP is allowed the Review petition
is maintainable and not after. Further the term used in Order 47 Rule 1(a)[5]
is that “when no appeal has been
preferred” the SLP has two stages, namely application to seek grant to
leave to appeal and when granted it becomes an appeal. Thus when SLP is
dismissed without a speaking order it does not attain the status of appeal and
neither the Doctrine of Merger will be attracted and under such circumstances
the parties can seek review by filing a review petition against the order of
High Court itself.
The debate arises when a party seeks to file
an SLP against the Review Petition then the question arises is whether in such
circumstances the SLP can be entertained or not.
However it is important to point out that the
SLP is not maintainable against review petition alone if the Original Petition
is not challenged.[6]
Thus in any case the second SLP will not be
maintainable on the following grounds:
Ø that the SLP has been dismissed against the
previous order or main order of High Court, and
Ø that the SLP is not
maintainable against the Review Petition if challenged without challenging the
main order (against which review has been sought).
Conclusion:
ü The
second SLP will not be maintainable.
ü After
the first SLP is dismissed without a Speaking Order, a review petition can be
filed against the previous order of High Court before the High Court.
ü SLP
against the Review petition alone is not maintainable. SLP must be challenged on the ground of first or original petition.
ü Thus
this leaves no scope for admissibility for Second SLP.
[6] Muncipal Corporation Delhi vs. Yashwant Singh Negi, Special Leave Petition (Civil) NO.4616 of 2010, http://indiankanoon.org/doc/166914974/
