Himachal Pradesh High Court
Sudama Ram vs . Surekha&Ors. on 8 September, 2023
Bench: Rakesh Kainthla
Sudama Ram Vs. Surekha&Ors.
.
Review Petition No. 37 of
2020 a/w Review
Petition No.101 of 2021
Reserved on 29.08.2023.
Review Petition No. 37 of 2020
08.09.2023 Present:
r to
Mr. Sanjeev
Advocate, with Mr. Mohan
Bhushan,
Advocate for the petitioner.
Senior
Singh,
Mr. G.D. Verma, Senior Advocate, with Mr.
Hitesh Thakur, Advocate, for respondents
no.1 and 2.
Mr. R.P.Singh and Mr. Prashant Sen, and
Ms. Avni Kochhar, Deputy Advocates
General, for respondents no. 3 and 5-
State.
Mr. Naresh K. Gupta, Advocate, for the
respondent-MC.
Review Petition No.101 of 2021
Mr. G.D. Verma, Senior Advocate, with Mr.
Hitesh Thakur, Advocate, for the
petitioners.
Mr. Sanjeev Bhushan, Senior Advocate,
with Mr. Mohan Singh, Advocate for
respondent no.1.
Mr. R.P.Singh and Mr. Prashant Sen, and
Ms. Avni Kochhar, Deputy Advocates
General, for respondents no. 2 and 4-
State.
Mr. Naresh K. Gupta, Advocate, for the
respondent-MC.
An objection was raised that SLP No.
.
10844 -10845 of 2020, was filed before the Hon'ble
Supreme Court of India against the order sought to be
reviewed, which was dismissed. Hence, the present
Review Petition is not maintainable.
2. Learned counsel for both parties have
cited various judgments taking different views on the
question 'whether a Review Petition lies after the
dismissal of the SLP or not'.
3. It is not necessary to discuss each of the
judgments cited at the bar because the matter is
concluded by the judgment of the Hon'ble Supreme
Court in Khoday Distilleries Ltd. v. Sri Mahadeshwara
Sahakara Sakkare Karkhane Ltd., (2019) 4 SCC 376:
2019 SCC OnLine SC 308 at page 396, wherein, it was
observed:
26. From a cumulative reading of the various
judgments, we sum up the legal position as under:
26.1. The conclusions rendered by the three-judge
Bench of this Court in Kunhayammed v. State of
Kerala, (2000) 6 SCC 359 and summed up in para 44
are affirmed and reiterated.
26.2. We reiterate the conclusions relevant for these
cases as under: Kunhayammed v. State of Kerala,
(2000) 6 SCC 359], SCC p. 384)
"(iv) An order refusing special leave to appeal
may be a non-speaking order or a speaking
one. In either case, it does not attract the
doctrine of merger. An order refusing special
leave to appeal does not stand substituted in
.
place of the order under challenge. All that it
means is that the Court was not inclined to
exercise its discretion so as to allow the
appeal being filed.
(v) If the order refusing leave to appeal is a
speaking order i.e. gives reasons for refusing
the grant of leave, 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 of the Constitution. Secondly,
r other than the declaration of law, whatever is
stated in the order are the findings recorded
by the Supreme Court which would bind the
parties thereto and also the court, tribunal or
authority in any proceedings subsequent
thereto by way of judicial discipline, the
Supreme Court being the Apex Court of the
country. But, this does not amount to saying
that the order of the court, tribunal or
authority below has stood merged in the
order of the Supreme Court rejecting the
special leave petition or that the order of the
Supreme Court is the only order binding as
res judicata in subsequent proceedings
between the parties.
(vi) Once leave to appeal has been granted and
appellate jurisdiction of the Supreme Court
has been invoked the order passed in appeal
would attract the doctrine of merger; the
order may be of reversal, modification or
merely affirmation.
(vii) On an appeal having been preferred or a
petition seeking leave to appeal having been
converted into an appeal before the Supreme
Court the jurisdiction of the High Court to
entertain a review petition is lost thereafter
as provided by sub-rule (1) of Order 47 Rule 1
CPC."
26.3. Once we hold that the law laid down in
Kunhayammed v. State of Kerala, (2000) 6 SCC 359 is
to be followed, it will not make any difference
.
whether the review petition was filed before the
filing of special leave petition or was filed after the
dismissal of special leave petition. Such a situation
is covered in para 37 of Kunhayammed v. State of
Kerala, (2000) 6 SCC 359.
27. Applying the aforesaid principles, the
outcome of these appeals would be as under.
Civil appeal arising out of Special Leave Petition (Civil)
No. 490 of 2012
28. In the instant case, since the special leave
petition was dismissed in limine without giving any
reasons, the review petition filed by the appellant in
the High Court would be maintainable and should
have been decided on merits. Order dated 12-11-
2008 [Sri MahadeswaraSahakaraSakkareKarkhane
Ltd. v. Khoday Distilleries Ltd., 2008 SCC OnLineKar
824 passed by the High Court is accordingly set aside
and the matter is remanded back to the High Court
for deciding the review petition on merits. The civil
appeal is disposed of accordingly.
29. In this case, we find that the special leave
petition was dismissed with the following order
passed on 5-1-2012 Ram Krushna Dasmohapatra v.
Indian Tea Provisions, 2012 SCC OnLine SC 1183] :
"We find no ground to interfere with the
impugned order [Indian Tea Provisions v. Ram
Krushna Dasmohapatra, Writ Appeal No. 367 of
2011, decided on 27-10-2011 (Ori)]. The special
leave petition is dismissed."
Here also, the special leave petition was
dismissed[Ram Krushna Dasmohapatra v. Indian Tea
Provisions, 2012 SCC OnLine SC 1183] in limine and
without any speaking order. After the dismissal of
the special leave petition, the respondent in this
appeal had approached the High Court with a review
petition. The said review petition is allowed by
passing the order dated 12-12-2012 [Ram Krushna
Dasmohapatra v. Indian Tea Provisions, Review
Petition No. 74 of 2012, order dated 12-12-2012 (Ori)]
on the ground of suppression of material facts by
the appellant herein and commission of fraud on the
Court. Such a review petition was maintainable.
.
Therefore, the High Court was empowered to
entertain the same on merits. Insofar as the appeal
of the appellant challenging the order dated 12-12-
2012 [Ram Krushna Dasmohapatravs Indian Tea
Provisions, Review Petition No. 74 of 2012, order dated
12-12-2012 (Ori)] on merits is concerned, the matter
shall be placed before the regular Board to decide
the same.
4. Therefore, in view of the authoritative
pronouncement of the Hon'ble Supreme Court of India,
the Review petition is maintainable after the dismissal of
the abovementioned SLP.
5. Let the main petition be listed for hearing on merits
in due course.
(Rakesh Kainthla)
Judge
September 8, 2023
(ravinder)
.
