Whenever a person is aggrieved by the order of the High Court, there is
always an option to file a SLP under Article 136 of the Constitution in the Apex
Court for due redressal. The success rate of admission of SLP is low and only a
small percentage of the SLPs filed are successful. Most of the SlPs filed in the
Apex Court are dismissed in Limine-by a Non Speaking Order. An important
question arises whether a Review or a Writ under Article 226 of the Constitution
filed in the High Court is maintainable against the main order of the High Court
despite the dismissal of SLP by the Apex Court by a non-speaking order.
It is necessary to understand what the connotation Dismissal in limine
legally implies. It would be trite to refer to the case of The State Of
Odisha vs Dhirendra Sundar Das
(2019) 6 SCC 270 wherein it was held thus:
It is a well settled principle of law emerging from a catena of decisions of
this Court, including Supreme Court Employees' Welfare Association v. Union of
India & Anr. (1989) 1 SCC 187 (paras 22 and 23) and State of Punjab v. Davinder
Pal Singh Bhullar (2011) 14 SCC 770 (paras 112 and 113) that the dismissal of a
S.L.P. in limine simply implies that the case before this Court was not
considered worthy of examination for a reason, which may be other than the
merits of the case. Such in limine dismissal at the threshold without giving any
detailed reasons, does not constitute any declaration of law or a binding
precedent under Article 141 of the Constitution.
The aforesaid judgments of the Apex Court categorically holds that the Dismissal
of SLP in liminie, i.e. by a non-speaking order, has no precedential value and
does not preclude other remedies, if any, available to the aggrieved parties.
It is trite to refer to Workmen of Cochin Port Trust v. Board of Trustees of
the Cochin Port Trust and Another
,  3 S.C.C. 119 wherein the Apex
Court has held that the effect of a non-speaking order of dismissal of a SLP
without indicating the grounds or reasons of its dismissal be understood that
the Court has only decided that it was not a fit case where SLP should have been
The Court clarified that the conclusion to dismiss SLP, by a non- speaking order
without assigning any reasons, may have been reached by the Court due to several
reasons and therefore it is not correct to assume that the Court had necessarily
decided implicitly all the questions/ merits of the order, which was under
challenge before the Apex Court in the SLP.
The Court further held that a writ proceeding is a wholly different and distinct
proceeding and the principle of res judicata would not be applicable when the
Court dismisses the SLP by a non-speaking order and such an order would not
operate as a bar for the trial of identical issues in a writ proceeding before
the High Court instituted after the dismissal of SLP. This enunciation of the
legal position has been further reiterated by the Apex Court in Ahmedabad
Manufacturing & Calico Printing Company Ltd. v. Workmen and Anr
,  3
It is apposite to refer to the case of Indian Oil Corpn. Ltd. v. State of
(1986) 4 SCC 146 wherein the Apex Court, as regards to
maintainability of Writ under Article 226 of the Constitution after dismissal of
SLP in limine, held as under:
It is not the policy of this Court to entertain special leave petitions and
grant leave under Article 136 of the Constitution save in those cases where some
substantial question of law of general or public importance is involved or there
is manifest injustice resulting from the impugned order or judgment. The
dismissal of a special leave petition in limine by a non-speaking order does not
therefore justify any inference that by necessary implication the contentions
raised in the special leave petition on the merits of the case have been
rejected by this Court.
It may also be observed that having regard to the very heavy backlog of work in
this Court and the necessity to restrict the intake of fresh cases by strictly
following the criteria aforementioned, it has very often been the practice of
this Court not to grant special leave except where the party cannot claim
effective relief by approaching the concerned High Court under Article 226 of
In such cases also the special leave petitions are quite often dismissed only by
passing a non-speaking order especially in view of the rulings already given by
this Court in the two decisions afore-cited, that such dismissal of the special
leave petition will not preclude the party from moving the High Court for
seeking relief under Article 226 of the Constitution. In such cases it would
work extreme hardship and injustice if the High Court were to close its doors to
the petitioner and refuse him relief under Article 226 of the Constitution on
the sole ground of dismissal of the special leave petition.
The Apex Court further reiterated this view in Kunhayammed v. State of
, (2000) 6 SCC 359 wherein as regards the statutory right to relief by
way of moving a Review Petition, the Court categorically held as under:
In our opinion what has been stated by this Court applies also to a case where
a special leave petition having been dismissed by a non-speaking order, the
applicant approaches the High Court by moving a petition for review. May be that
the Supreme Court was not inclined to exercise its discretionary jurisdiction
under Article 136 probably because it felt that it was open to the applicant to
move the High Court itself. As nothing has been said specifically in the order
dismissing the special leave petition one is left merely guessing.
We do not think it would be just to deprive the aggrieved person of the
statutory right of seeking relief in review jurisdiction of the High Court if a
case for relief in that jurisdiction could be made out merely because a special
leave petition under Article 136 of the Constitution had already stood rejected
by the Supreme Court by a non-speaking order.
The Court in the aforesaid case explained the doctrine of merger holding that
the logic behind this doctrine is that there cannot be more than one decree or
operative orders governing the same subject matter at a given point of time.
Thus, when a decree or order passed by an inferior Court, Tribunal or Authority
which is subjected to a remedy available under law before a superior forum,
then, though the decree or order under challenge continues to be effective and
binding, nevertheless, this finality is to put in jeopardy.
The Court also observed that once the superior court disposes of the dispute
before it in any manner, i.e. either by affirming the decree or order or by
settings aside or by modifying the same, it is the decree of the superior Court,
Tribunal or Authority which is the final binding and operative decree and the
decree or order of the lower Court, Tribunal or authority gets merged into the
order passed by the superior forum.
The Court also clarified that this doctrine is not of universal or unlimited
application. The Court thereafter discussed the provision pertaining to the
appellate jurisdiction that is exercised by the Supreme Court conferred upon it
by Articles 132 to 136 of the Constitution of India. As regards to jurisdiction
under Article 136 is concerned, it explained that Article 136 opens with a non-
obstante clause and conveys a message that even in the field covered by the
preceding articles, jurisdiction conferred by Article 136 is available to be
exercised in an appropriate case.
It is an untrammelled reservoir of power incapable of being confined to
definitional bounds; the discretion conferred on the Supreme Court being
subjected to only one limitation, that is, the wisdom and good sense or sense of
justice of the Judges. No right of appeal is conferred upon any party; only a
discretion is vested in the Supreme Court to interfere by granting leave to an
applicant to enter in its appellate jurisdiction not open otherwise and as of
Despite the authoritative declaration of law by the Apex Court, confusions crept
in by the three-Judge Bench judgment in Abbai Maligai Partnership Firm and
Anr v. K Santhakumaran and Ors
. (1998) 7 SCC 386. The Apex Court in the
aforesaid case observed that in such cases High Court before exercising its
review jurisdiction ought to examine whether the same would amount to an abuse
of process or breach of judicial discipline.
Thus, the Court condemned the practice of filing a review petition after the
dismissal of the SLP. The Court held that in the facts and circumstances of the
case, the review petitioners had indulged in vexatious litigation and abuse of
the process of the court by re-approaching the High Court and the reversal of
the earlier order by the High Court was subversive of judicial discipline
, palpably erroneous
and an affront
to the order of the Supreme
Court dismissing the SLP. Since then, the said question of law remained
unsettled for almost two decades. There were conflicting views of the different
benches of the Apex Court and the different High Courts resulting in a flux.
The Benches of Apex Court followed Abbai Maligai Partnership Firm in Meghmala
and Others v. G. Narasimha Reddy and Others
(2010) 8 SCC 383 and K.
Rajamouli v. A.V.K.N. Swamy
2001 5 SCC 37 and categorically held that
review petition after dismissal of SLP by a non-speaking order is not
maintainable. However, in Meghmala the Court made one exception by holding that
in case a litigant files a review petition in the High Court before filing the
SLP in the Supreme Court and it remains pending till the SLP is dismissed, the
review petition still deserves to be considered.
However, the Court held that review petition filed after the dismissal of the
SLP would amount to abuse of the process of the Court. Further, in Gangadhara
Palo v. Revenue Divisional Officer and Another
(2011) 4 SCC 602, the Apex
Court held that it makes no difference whether the review petition was filed in
the High Court before the dismissal of the special leave petition or after the
dismissal thereof and in either case, the doctrine of merger would apply, even
when the SLP is dismissed in limine and the same will bar the filing of the
review petition before the High Court when the SLP is dismissed. Recently also
in Medical Council of India v. State of Kerala and Others
2018 (11) Scale
141 wherein it was held that Dismissal of the SLP in limine meant that it was
still a decision on merits by the Court.
On the other hand in Palani Roman Catholic Mission v. S. Bagirathi Ammal
(2009) 16 SCC 657 and Bhakra Beas Management Board v. Krishna Kumar Vij and
(2010) 8 SCC 701 held that review petition is maintainable if no leave
has been granted to file an appeal and there is dismissal of the SLP at the
preliminary stage itself. These cases have taken a view that dismissal of SLP
without a speaking order does not constitute a binding precedent and the
doctrine of merger would not apply in such cases. .
The 3 member Bench of the Apex Court in Khoday Distilleries Ltd. v. Sri
Mahadeshwara Sahakara Sakkare Karkhane Ltd
., (2019) 4 SCC 376 took note of the
conflicting views in these two cases in Abbai Maligai Partnership Firm (supra)
and Kunhayammed (supra), heard the matter at length and finally put to rest the
long controversy and approved the dictum in Kunhayammed (supra). The Court held
27) From a cumulative reading of the various judgments, we sum up the legal
position as under:
Para 37 of the said judgment read thus:
- The conclusions rendered by the three Judge Bench of this Court in Kunhayammed and summed up in paragraph 44 are affirmed and reiterated.
- We reiterate the conclusions relevant for these cases as under:
(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
(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, 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
(vi) Once leave to appeal has been granted and appellate jurisdiction of 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 High Court to entertain a review petition is lost thereafter
as provided by sub-rule (1) of Rule 1 of Order 47 CPC.
- Once we hold that law laid down in Kunhayammed 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 case.
37. Let us assume that the review is filed first and the delay in SLP is
condoned and the special leave is ultimately granted and the appeal is pending
in this Court.
The position then, under Order 47 Rule 1 CPC is that still the review can be
disposed of by the High Court. If the review of a decree is granted before the
disposal of the appeal against the decree, the decree appealed against will
cease to exist and the appeal would be rendered incompetent. An appeal cannot be
preferred against a decree after a review against the decree has been granted.
This is because the decree reviewed gets merged in the decree passed on review
and the appeal to the superior court preferred against the earlier decree — the
one before review--becomes infructuous.
Thus it is no longer Res Integra that where SLP has been dismissed by the Apex
Court in limine, by passing a non-speaking order, it does not preclude filing of
a Review Petition or a Writ Petition by the aggrieved party before the High
Court against its earlier order, provided such Review Petition or Writ Petition
is otherwise admissible.
An important question that arises is the degeneration of Judicial Discipline by
propounding conflicting views by different benches even after the declaration of
law by a 3 member Bench in Kunhayammed as long as in year 2000 and other Binding
judgments in 1989 and thereafter. It need not be stressed that Judicial
Discipline requires that unanimity and consistency should have been maintained.
The other pinching aspect is that the Apex Court took 7 long years to decide the
reference to the larger bench to set at rest the present controversy. When both
the Apex Court and different High Courts are taking divergent views, in order to
bring finality and curb unnecessary litigation and multiplicity, it should be
incumbent on the Apex Court to formulate a Special Larger Bench to decide
expeditiously all such pending references to larger bench where there are
divergent/conflicting views or where statutory reference has been made.
Written By: Inder Chand Jain
Ph no: 8279945021, Email: [email protected]