The Supreme Court of India has referred the issue of the maintainability of a subsequent Special Leave Petition (SLP) against a High Court order to a larger bench for further examination. The Division Bench consisting of Justice Krishna Murari and Justice Sanjay Karol directed the Registry to place the case papers before Chief Justice of India, DY Chandrachud, to constitute a larger bench to delve into the matter in greater detail.

The referral was prompted by a recent judgment in the case of Khoday Distilleries Ltd. v. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd., in which the Supreme Court reaffirmed the principle established in the case of Kunhayammed v. State of Kerala. The court held that the dismissal of an SLP does not invoke the doctrine of merger. In other words, the order refusing special leave to appeal does not replace the order under challenge and does not act as res judicata. Consequently, the option of filing a fresh SLP should remain available. The Division Bench recognized that if this reasoning is applied, the filing of a subsequent SLP cannot be precluded. However, it also acknowledged that such an interpretation could potentially result in a surge in litigation, necessitating reasons for every dismissal of an SLP.

The case in question revolves around a property dispute in which both parties had entered into a compromise decree. The Trial Court dismissed a suit and deemed the compromise decree binding. An appeal was subsequently filed before the Karnataka High Court, and during the proceedings, an application was submitted to amend the plaint and recover possession of the property. The High Court remanded the matter to the Trial Court for adjudication on the limited aspect of additional relief. While the SLP challenging the High Court's order was pending, the Trial Court proceeded with the remanded matter and delivered a verdict. The SLP was subsequently dismissed by the Supreme Court, granting the petitioner the liberty to raise all pertinent questions regarding the remand in the ongoing appeal before the High Court.

Later, the High Court dismissed the first appeal, prompting the filing of an SLP challenging the dismissal. However, the petitioner withdrew the SLP with the liberty to approach the High Court for review. A review petition was subsequently filed before the High Court, which, in turn, dismissed it. The petitioner then challenged both the original order of the High Court and the review petition's order before the Supreme Court through the present SLP.

The respondent objected to the maintainability of the SLP, citing Order XLVII Rule 7 of the Civil Procedure Code (CPC), which prohibits an SLP against an order passed in review. However, the Supreme Court noted that the petitioner had filed the SLP to challenge both the order in review and the original order of the High Court.

The Supreme Court focused on the question of whether the liberty granted by the court to approach the High Court for a review automatically reinstates the remedy of filing a subsequent SLP. It referred to several precedents, including the case of Khoday Distilleries, where the court held that a review petition in the High Court is maintainable even after the dismissal of an SLP on the same issue. The court further observed that a non-speaking dismissal of an SLP does not trigger the doctrine of merger and does not amount to establishing law under Article 141 of the Constitution of India. As a result, the option of filing a fresh SLP remains intact. The court further emphasized that if the rationale allows for a review petition in the High Court, then it cannot arbitrarily exclude the filing of a subsequent SLP.

Considering the significance of the issue, the Supreme Court referred it to a larger bench for further consideration. The decision of the larger bench will bring clarity to the matter and determine the maintainability of subsequent SLPs against High Court orders after the liberty to approach the High Court for a review has been granted.

Case details:
Case Name: S. Narahari And Ors. v. S.R. Kumar And Ors.
Diary Number: 23775 of 2022 Date: 5th July 2023

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