When a litigant loses his appeal/revision in the High Court, there are two
options available. He can either file a Special Leave Petition (SLP) before the
Supreme Court to assail the judgement of the High Court or if there is a mistake
apparent on the face of the record or the Court has inadvertently failed to
notice a statutory provision or a binding Precedent, the litigant can
alternatively file a Review Petition before the same bench of the High Court.
The scope of a Review Petition is limited as the judgement can be reviewed only
on Limited Grounds and the Courts are loathe to entertain/allow Review
Petitions. However, SLP has a much wider scope and the entire judgement of the
High Court can be assailed on multiple grounds. Inspite of the limited scope,
Review petitions are often resorted to as it is less expensive and involves
lesser efforts and paperwork.
It is a common belief that the order passed on a Review Petition gets merged
with the original order on the Doctrine of merger thereby giving a new cause of
action. SLPs against orders of review merged with the original order are thus
considered admissible. It is relevant to refer to Eastern Coalfields Limited
v. Dugal Kumar
(2008) 14 SCC 295 wherein it was categorically held that SLP
is perfectly maintainable against the dismissal order of Review even though the
petitioner had not challenged the original order passed by the High Court. The
Court asserted that on dismissal of the review petition, the earlier order stood
merged with the order passed in the review petition and consequently the SLP is
perfectly maintainable. The relevant paragraphs 21 and 22 of the above Judgment
read as under:
21. Having heard the learned counsel for the parties, in our opinion, the appeal
deserves to be partly allowed....
22. But we are also unable to uphold the contention of the writ petitioner that
the appeal is not maintainable since the Company had challenged the order passed
in review petition dated 28-1-2002 and not the main order dated 17-2-2000
dismissing intra-court appeal.
However this view did not find favour in a catena of cases decided by the Apex
Court. It would be relevant to refer to Municipal Corporation of Delhi MCD
vs. Yashwant Singh Negi
2013 (2) SCR 550 which categorically dissented with
the earlier view. The brief facts of the case are that SLP had been preferred
against the order passed by the High Court of Delhi in Review Petition whereas
the main judgment rendered earlier by the High Court was never challenged. The
Court dissenting with the earlier view held thus:
"3. We find ourselves unable to agree with the views expressed by this Court in
Eastern Coalfields Limited (supra). In our view, once the High Court has refused
to entertain the review petition and the same was dismissed confirming the main
order, there is no question of any merger and the aggrieved person has to
challenge the main order and not the order dismissing the review petition
because on the dismissal of the review petition the principle of merger does not
It would be apposite to refer to the Apex Court Judgement in Manohar S/o
Shankar Nale and others v. Jaipalsing S/o Shivlalsing Rajput and others
(2008) 1 SCC 520 wherein the Apex Court had also taken the same view that once
the review petition is dismissed the doctrine of merger will have no application
It is trite to refer to Apex Court's judgement in DSR Steel (Private) Limited
v. State of Rajasthan and others
(2012) 6 SCC 782 which elaborately examined
the various situations which might arise in relation to the orders passed in
review petitions. The para 25, 25.1, 25.2 and 25.3 observed thus:
25. Different situations may arise in relation to review petitions filed before
a court or tribunal.
25.1. One of the situations could be where the review application is allowed,
the decree or order passed by the court or tribunal is vacated and the
appeal/proceedings in which the same is made are reheard and a fresh decree or
order passed in the same. It is manifest that in such a situation the subsequent
decree alone is appealable not because it is an order in review but because it
is a decree that is passed in a proceeding after the earlier decree passed in
the very same proceedings has been vacated by the court hearing the review
25.2. The second situation that one can conceive of is where a court or tribunal
makes an order in a review petition by which the review petition is allowed and
the decree/order under review is reversed or modified. Such an order shall then
be a composite order whereby the court not only vacates the earlier decree or
order but simultaneous with such vacation of the earlier decree or order, passes
another decree or order or modifies the one made earlier. The decree so vacated
reversed or modified is then the decree that is effective for the purposes of a
further appeal, if any, maintainable under law.
25.3. The third situation with which we are concerned in the instant case is
where the revision petition is filed before the Tribunal but the Tribunal
refuses to interfere with the decree or order earlier made. It simply dismisses
the review petition. The decree in such a case suffers neither any reversal nor
an alteration or modification.
It is an order by which the review petition is dismissed thereby affirming the
decree or order. In such a contingency there is no question of any merger and
anyone aggrieved by the decree or order of the Tribunal or court shall have to
challenge within the time stipulated by law, the original decree and not the
order dismissing the review petition."
It is pertinent to refer to Kunhayammed and Ors. Vs. State of Kerala and Anr
(2000) 6 SCC 359 wherein the Apex Court held that where the special leave
petition is dismissed there being no merger, the aggrieved party is not deprived
of any statutory right of review, if it was available and he can pursue it. In
paragraph 34, this Court made following observations:-
34. ................But where the special leave petition is dismissed — there
being no merger, 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 the review..................
It is relevant to refer to the Apex Court judgement in T.K. David vs
Kuruppampady Service Cooperative Bank Ltd.
2020 SCC online SC 500 decided
on 05-10-2020. The Apex Court following the binding Precedents, referred to
above, finally held as under:
"15. The rationale for not entertaining a special leave petition challenging the
order of High Court rejecting the review petition when main order in the writ
petition is not challenged can be easily comprehended. Against the main judgment
the SLP having been dismissed earlier the same having become final between the
parties cannot be allowed to be affected at the instance of petitioner. When the
main judgment of the High Court cannot be effected in any manner, no relief can
be granted by this Court in the special leave petition filed against order
rejecting review application to review the main judgment of the High Court.
This Court does not entertain a special leave petition in which no relief can be
granted. It is due to this reason that this Court in Bussa Overseas and
Properties Private Limited and Anr.
(2016) 4 SCC 696 has held that principle
of not entertaining special leave petition against an order rejecting the review
petition when main judgment is not under challenge has become a precedential
principle. We reiterate the above precedential principle in this case again."
It is important to refer to Bussa Overseas and Properties Private Limited and
. (2016) 4 SCC 696 wherein the Apex Court held that the order passed in
the writ petition having not been assailed, the challenge only to the order
passed in review was not tenable and accordingly dismissed the appeal as not
This has been a consistent view of the Apex Court for more than two decades.
Reference may be made to Shanker Motiram Nale v. Shiolalsing Gannusing Rajput
(1994) 2 SCC 753 wherein the Court held that an appeal against the order
rejecting the application for review of a judgment and decree passed by the
learned Single Judge is not appealable as appeal is not against the basic
judgment. To arrive at the said conclusion, the Court has referred to Order 47,
Rule 7 of the Code of Civil Procedure, 1908 that bars an appeal against the
order of the court rejecting the review.
The Apex Court in Suseel Finance & Leasing Co. v. M. Lata and others
(2004) 13 SCC 675 & Shiv Charan Singh v. State of Punjab and others, (2007) 15
SCC 370 while dealing with the special leave petition preferred against the
rejection of review petition without assailing the main judgment, the Court
concurred with the view in Shanker Motiram Nale.
It would be apropos to refer to Vinod Kapoor v. State of Goa and others
(2012) 12 SCC 378 involving the same question of law wherein the Apex Court held
"11. Moreover, on the High Court rejecting the application for review of the
appellant, the order rejecting the application for review is not appealable by
virtue of the principle in Order 47, Rule 7 CPC.
In Shanker Motiram Nale v. Shiolalsing Gannusing Rajput, Suseel Finance &
Leasing Co. v. M. Lata and M.N. Haider v. Kendriya Vidyalaya Sangathan cited by
the learned counsel for Respondent 8, this Court has consistently held that an
appeal by way of special leave petition under Article 136 of the Constitution is
not maintainable against the order rejecting an application for review in view
of the provisions of Order 47, Rule 7 CPC.
It is germane to refer to State of Assam v. Ripa Sarma (2013) 3 SCC 63 wherein
the main judgment and order was not challenged before this Court but the order
passed in the review petition was challenged. The Court dissented with the view
taken in the Eastern Coalfields Ltd. case
and held thus:
"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. 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. ..."
The Apex Court in Sandhya Educational Society and another v. Union of India
, (2014) 7 SCC 701 following the case of Vinod Kapoor (supra)
"This Court in Vinod Kapoor v. State of Goa
has categorically observed
that once the special leave petition is dismissed as withdrawn without obtaining
appropriate permission to file a special leave petition once over again after
exhausting the remedy of review petition before the High Court, the same is not
Thus the unanimous and consistent view of the Apex Court is that when the prayer
for review is dismissed, there can be no merger. However, if the order passed in
review recalls the main order and a different order is passed, the main order
does not exist and in such a circumstance there is no need to challenge the main
order, for it is the order in review that affects the aggrieved party. Thus it
is no longer Res Integra that SLP is not maintainable where the main order was
not challenged but the order passed on dismissal of the review petition alone
was challenged in a SLP.
An important question that springs up is that if an aggrieved party has a good
case in Review moved by him and therefore he does not file a SLP against the
main order but his Review is somehow dismissed, would he be remediless in view
of the catena of cases cited above? The answer is a big NO.
Even after dismissal of Review, the aggrieved person can file an SLP against the
main order along with an application for Condonation of Delay under Section 5 of
the Limitation Act ,1963 and the time taken by him in diligently pursing the
remedy by way of review may in appropriate cases be excluded from consideration
while condoning the delay in the filing of the appeal. Since the Petitioner had
filed the Review Petition in 'Good Faith' and in a 'Bonafide' manner and had
pursued the same 'Diligently', the Court in deserving cases ought to Condone the
Delay u/s 5 read with Section 14 of the Limitation Act, 1963.
Written By: Inder Chand Jain
Email: [email protected]
Ph no: 8279945021