- (1.) This matter appears before this Bench on the following point of reference: "Whether by reason of the dismissal of the Special Leave Petition by Hon'ble Supreme Court against an order passed by the High Court, it is permissible for the High Court to entertain an application for review in respect of the self same Order".
(2.) This question, in our view, is no more res integra in view of the authoritative pronouncement by the Hon'ble Supreme Court in the judgment and order dated 1st March, 2019, rendered in Civil Appeal No. 2432 of 2019 (arising out of SLP (C) No. 490 of 2012) since reported in (2019) 4 SCC 376 (Khoday Distilleries Ltd. (now known as Khoday India Ltd.) and Ors. vs. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd., Kollegal (under liquidation) represented by the Liquidator). After exhaustive consideration of various judgments, the Supreme Court summed up the legal position as under: "27 (a) The conclusions rendered by the three Judge Bench of this Court in Kunhayammed and summed up in paragraph 44 are affirmed and reiterated. (b) 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 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. (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." (c) 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. 28) Applying the aforesaid principles, the outcome of these appeals would be as under: Civil Appeal arising out of Special Leave Petition (Civil) No. 490 of 2012 : In the instant case, since special leave petition was dismissed in limine without giving any reasons, the review petition filed by the appellant in the High Court would be maintainable and should have been decided on merits. Order dated November 12, 2008 passed by the High Court is accordingly set aside and matter is remanded back to the High Court for deciding the review petition on merits. Civil Appeal disposed of accordingly. Civil Appeal arising out of Special Leave Petition (Civil) No. 13792 of 2013 : In this case, we find that the special leave petition was dismissed with the following order passed on January 05, 2012: "We find no ground to interfere with the impugned order. The special leave petition is dismissed." Here also, special leave petition was dismissed in limine and without any speaking order. After the dismissal of the special leave petition, the respondent in this appeal had approached the High Court with review petition. Said review petition is allowed by passing order dated December 12, 2012 on the ground of suppression of material facts by the appellant herein and commission of fraud on the Court. Such a review petition was maintainable. Therefore, the High Court was empowered to entertain the same on merits. Insofar as appeal of the appellant challenging the order dated December 12, 2012 on merits is concerned, the matter shall be placed before the regular Board to decide the same."
(3.) In view of the above, we answer the point of reference as indicated at the outset in the affirmative.;