Computation of limitation
Raja
(Querist) 02 November 2011
This query is : Resolved
how to compute the limitation period after dismissal of slp to file review in hc?
ajay sethi
(Expert) 02 November 2011
slp is special leave petition . if slp is dismissed in supreme court how you file review in high court?
R.Ramachandran
(Expert) 02 November 2011
Dear Mr. Sethi,
Even if an SLP is dismissed, there is no bar to prefer 'review' before the HC itself which passed the order that was impugned before the SC in the SLP. That is why Mr. Raja wants to know how to compute the limitation, meaning thereby whether having pursued the remedy at SC through SLP, that period can get excluded or not.
ajay sethi
(Expert) 02 November 2011
thanks for clarification mr ramchandran
ajay sethi
(Expert) 02 November 2011
alpha.newsx.com/story/hc-can-review-dismissed-petitions-sc
The Supreme Court said that mere observations made by it cannot be treated as a law or a precedent and a review petition in exceptional circumstances can be filed in High Courts even after the apex court had dismissed a special leave petition.
A bench of justices Markandeya Katju and Gyan Sudha Mishra said in a judgment that the apex court cannot take affront if the high court entertains a review petition even after the Supreme Court had dismissed a special leave petition.
"In our opinion, the above observations cannot be treated as a precedent at all. We are not afraid of affronts. What has to be seen is whether a legal principle is laid down or not. It is totally irrelevant whether we have been affronted or not.
"A mere stray observation of this court, in our opinion, would not amount to a precedent. The above observation of this court is, in our opinion, a mere stray observation and hence not a precedent, " the bench said.
The apex court passed the ruling while upholding an appeal by Gangadhara Rao challenging the decision of the Andhra Pradesh High Court to dismiss his petition in a property dispute on the ground that his SLP was already dismissed by the Supreme Court.
Rao had contended his SLP was dismissed without assigning any reason by the apex court and hence a review petition before the high court was maintainable.
Agreeing with the view, the apex court said "by a judicial order, the power of review cannot be taken away as that has been conferred by the statute or the Constitution. This court by judicial orders cannot amend the statute or the Constitution."
The apex court said a special leave under Article 136 of the Constitution of India is a discretionary remedy and, hence, it can be dismissed for a variety of reasons and not necessarily on merits.
"We cannot say what was in the mind of the court while dismissing the sspecial leave petition without giving any reason. Hence, when a special leave petition is dismissed without giving any reason, there is no merger of the judgment of the High Court with the order of this Court. Hence, the judgment of the High Court can be reviewed since it continues to exist, though the scope of the review petition is limited to errors apparent on the face of the record," the bench said.
If, on the other hand, a special leave petition is dismissed with reasons, however meager (it can be even of just one sentence), there is a merger of the judgment of the High Court in the order of the Supreme Court, the bench said.
The apex court rejected the state government's argument that in an earlier judgment in K Rajamouli case it was held that if an SLP was dismissed, subordinate courts cannot entertain it as it would be an affront to the highest judiciary in the country.
Raja
(Querist) 02 November 2011
Mr Ajay, there are several judgemtns on this topic. But, my question is about the procedure to compute the limitation. Please focus.
ajay sethi
(Expert) 02 November 2011
Review is dealt with under Section 114 and Order 47 of the CPC. Any party aggrieved by an order or judgement may apply for reviewing the said order or judgement to the same court. It can be filed where no appeal is preferred or in case there is no provision for appeal.
the application for review should be filed within 30 days from the date of the decree or order, review of which is sought.
since in your case review application has been filed after dismissal of SLP the time during which the applicant was prosecuting the matter in good faith and with due diligence before the supreme court would have to be excluded.
Shonee Kapoor
(Expert) 02 November 2011
good educational stuff.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
Raja
(Querist) 11 November 2011
under which provision "the applicant was prosecuting the matter in good faith and with due diligence before the supreme court would have to be excluded" ?
