LexKHODAY DISTILLERIES LTD. (NOW KNOWN AS KHODAY INDIA LIMITED) AND OTHERS versus SRI MAHADESHWARA SAHAKARA SAKKARE KARKHANE LTD., KOLLEGAL (UNDER LIQUIDATION) REPRESENTED BY THE LIQUIDATOR
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A B C D E F G H 411 KHODAY DISTILLERIES LTD. (NOW KNOWN AS KHODAY INDIA LIMITED) AND OTHERS v. SRI MAHADESHWARA SAHAKARA SAKKARE KARKHANE LTD., KOLLEGAL (UNDER LIQUIDATION) REPRESENTED BY THE LIQUIDATOR (Civil Appeal No. 2432 of 2019) MARCH 01, 2019 [A. K. SIKRI, S. ABDUL NAZEER AND M. R. SHAH, JJ.] Review: Review of judgment against which Special Leave Petition was already dismissed by Supreme Court – Maintainability of – In view of conflicting views on the question in *Abbai Maligai Partnership Firm case and in **Kunhayammed case, Division Bench of Supreme Court referred the matter to larger Bench – Held: There is no conflict of opinion in the two cases – *Abbai Maligai Partnership Firm case was decided on its peculiar facts – **Kunhayammed case lays down the correct law – Since the SLPs were dismissed in limine without giving any reasons, the review petitions filed in the present cases were maintainable – Constitution of India – Art. 136. Disposing of the appeals, the Court HELD: 1. *Abbai Maligai Partnership Firm case is duly taken cognisance of and explained in the judgment in **Kunhayammed case. There is no conflict insofar as ratio of the two cases is concerned. Moreover, *Abbai Maligai Partnership Firm case was decided on its peculiar facts, with no discussion on any principle of law, whereas **Kunhayammed case is an elaborate discourse based on well accepted propositions of law which are applicable for such an issue. The detailed judgment in **Kunhayammed case lays down the correct law and there is no need to refer the cases to larger Bench. [Para 25] [432-D-E] 2. The conclusions rendered in **Kunhayammed case and summed up in paragraph 44 are affirmed and reiterated as under: [2019] 3 S.C.R. 411 411 A B C D E F G H 412 SUPREME COURT REPORTS [2019] 3 S.C.R. “(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.” [Para 27] [433-D-H; 434-A-C] 3. Once it is held that law laid down in **Kunhayammed case is to be followed, it will not make any difference whether the A B C D E F G H 413 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. [Para 27] [434-D-E] 4. Since Civil Appeal No. 2432 of 2019 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. [Para 28] [434-F] 5. Civil Appeal No. 2433 of 2019 was also, dismissed in limin
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