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 apply....."

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 whatsoever. 

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 petition.

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 Anr. (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 maintainable.

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 thus:

"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 and others, (2014) 7 SCC 701 following the case of Vinod Kapoor (supra) opined thus:

"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 maintainable."

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