The court cannot entertain an application for review if before making the review application, the superior court had been moved for getting the self-same relief

In Kabari Pvt. Ltd. v. Shivnath Shroff and Ors., AIR 1996 SC 742, this Court had taken a view that the court cannot entertain an application for review if before making the review application, the superior court had been moved for getting the self-same relief, for the reason that for the self-same relief two parallel proceedings before the two forums cannot be taken.

In State of Maharashtra and Anr. v. Prabhakar Bhikaji Ingle, AIR 1996 SC 3069 , this Court held that when a special leave petition from the order of the Tribunal was dismissed by a non-speaking order, the main order was confirmed by the Court. Thereafter, the power of review cannot be exercised by the Tribunal as it would be “deleterious to the judicial discipline”.

Same view has been reiterated by this Court in Raj Kumar Sharma v. Union of India (1995) 2 Scale 23; Sree Narayana Dharmasanghom Trust v. Swami Prakasananda and Ors., AIR 1997 SC 3277; K. Ajit Babu and Ors. v. Union of India and Ors., (1997) 6 SCC 473; and Gopabandhu Biswal v. Krishna Chandra Mohanty and Ors., AIR 1998 SC 1872.

12. In Abbai Maligai Partnership Firm and Anr. v. K. Santhakumaran and Ors., AIR 1999 SC 1486, a three Judge Bench of this Court considered the issue afresh and held that filing of the review petition after dismissal of the special leave petition by it against the self-same order amounted to an abuse of process of the court and the entertainment of such a review application was in affront to its order and it was subversive of judicial discipline.

In Kunhayammed and Ors. v. State of Kerala and Anr., AIR 2000 SC 2587, a three Judge Bench of this Court reconsidered the issue and all above referred judgments and came to the conclusion that dismissal of special leave petition in limine by a non-speaking order may not be a bar for entertaining a review petition by the court below for the reason that this Court may not be 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. In that case doctrine of merger would come into place and lay down the following principles:

(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.

The Court came to the conclusion that where the matter has been decided by a non-speaking order in limine the party may approach the High Court by filing a review petition.

Similar view has been reiterated in National Housing Coop. Society Ltd. v. State of Rajasthan and Ors. (2005) 12 SCC 149.

 In K. Rajamouli v. A.V.K.N. Swamy, AIR 2001 SC 2316, this Court considered the ratio of the judgment in Kunhayammed (supra); and Abbai Maligai Partnership Firm (supra) and held that if a review application has been filed before the High Court prior to filing the special leave petition before this Court and review petition is decided/rejected, special leave petition against that order of review would be maintainable. In case the review application has been filed subsequent to dismissal of the special leave petition it would amount to abuse of process of the court and shall be governed by the ratio of the judgment in Abbai Maligai Partnership Firm (supra). The said judgment has been approved and followed by this Court in Green View Tea & Industries v. Collector, Golaghat, Assam and Anr., AIR 2004 SC 1738.

 In Kumaran Silk Trade (P) Ltd. v. Devendra, AIR 2007 SC 1185, this Court held as under:

As a matter of fact at the earlier stage this Court did not consider the question whether one of the appeals against the order dismissing the Review Petition on merits was maintainable. At best the order of remand and the decision in Kunhayammed and Ors. v. State of Kerala and Anr., (2000) 6 SCC 359 would enable the petitioner to get over the ratio of the three Judge Bench decision in Abbai Maligai Partnership Firm and Anr. v. K. Santhakumaran and Ors., (1998) 7 SCC 386 that the seeking of a review after the petition for special leave to appeal was dismissed without reserving any liberty in the petitioner was an abuse of process.

 Thus, the law on the issue stands crystallized to the effect that in case a litigant files a review petition before filing the Special Leave Petition before this Court and it remains pending till the Special Leave Petition stands dismissed, the review petition deserves to be considered. In case it is filed subsequent to dismissal of the Special Leave Petition, the process of filing review application amounts to abuse of process of the court.