Dismissal of slp in limine by a non-speaking order.

Dear Mr. Gupta,

Thanks for taking out time, please provide citation of the case referred hereinabove by you.

Anyways, the question ‘Whether the dismissal of the SLP in limine means that the reasoning of the order/judgment impugned stands affirmed whereupon the judgment and order impugned merges with such order of the Apex Court on dismissal of the Petition?’ has elaborately dealt by the Hon’ble Supreme Court in Kunhayammed & Ors. v. State of Kerala & Anr. (AIR 2000 SC 2587) wherein the Court reconsidered the issue and came to the conclusion that dismissal of special leave petition in limine by a non-speaking order may not be a bar for further reconsideration of the case for the reason that this Court might not have been inclined to exercise its discretion under Article 136 of the Constitution. The declaration of law will be governed by Article 141 where the matter has been decided on merit by a speaking judgment as in that case doctrine of merger would come into play.

Hon’ble Mr. Justice R.C. Lahoti has laid down the certain principles to this regards, while dealing with Kunhayammed’s cae (Supra), I'm hereby citing the gist it:-

"(i) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law.

(ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. The first stage is upto the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and the special leave petition is converted into an appeal.

(iii) Doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter.

(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, 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."

 Regards,

Amit K. Pateria

Mr Amit

Attached herewith is the judgment .

The bench was consisting of Justice P.SATHASIVAM and Justice H.L.GOKHALE

dear members

i have posted earlier on the same matter. kindly see the attachment also.

in this regard, in a recent order the supreme court has referred this very matter to a larger bench.

i personally feel that dismissal of SLP does not constitute any binding precedent ; however it isa final order in the matter covered by SLP. it is both illegal and incorrect to agitate the same matter once more in high court in the guise of a review petition.

especially when the SLP is dismissed  without any reservations, without the same being withdrawn or not pressed or not represented.

i know of many appeals being decided by just one sentence: " the appeal is without merits", without going into the so called merits or demerits. is it fair to say that such one line orders in appeals are final and binding, preventing the losing party to move high court in a review? certainly not, in my opinion.