Whether SLP challenging an order rejecting review petition is maintainable when the main judgment of High Court is not under challenge?

T.K. David vs. Kuruppampady Service Co-Operative Bank Ltd. & Ors.

[Supreme Court of India]

[Special Leave Petition (C) No.10482 of 2020]

Apex Court had earlier considered the question as to whether the special leave petition challenging the order rejecting review petition is maintainable when the main judgment of the High Court is not under challenge.

We may refer to judgment of Apex Court in Municipal Corporation of Delhi vs. Yashwant Singh Negi, (2013) 2 SCR 550. In the above case, a special leave petition was preferred against an order rejecting the review petition. A preliminary objection was raised that special leave petition is not maintainable since the main judgment is not challenged. In paragraph 1 of the judgment, facts have been noticed, which are to the following effect:-

“1. This special leave petition has been preferred against the order dated 11.09.2009 passed by the High Court of 9 Delhi in Review Petition No. 79 of 2009 in LPA No. 1233 of 2006. Mr. Nidhesh Gupta, learned senior counsel appearing for the Respondent raised a preliminary objection that the special leave petition is not maintainable since the main judgment rendered by the High Court on 5.11.2008 in LPA No. 1233 of 2006 was not challenged.”

Apex Court after considering the earlier judgment of this Court held that special leave petition is not maintainable. In paragraphs 3 and 4 following was laid down:-

“3. We find ourselves unable to agree with the views expressed by this Court in Eastern Coalfields Limited (supra). In our view, once the High Court has refused to entertain the review petition and the same was dismissed confirming the main order, there is no question of any merger and the aggrieved person has to challenge the main order and not the order dismissing the review petition because on the dismissal of the review petition the principle of merger does not apply. In this connection reference may be made to the Judgment of Apex Court in Manohar S/o Shankar Nale v. Jaipalsing S/o Shivlalsing Rajput (2008) 1 SCC 520 wherein this Court has taken the view that once the review petition is dismissed the doctrine of merger will have no application whatsoever. This Court in DSR Steel (Private) Limited v. State of Rajasthan (2012) 6 SCC 782 also examined the various situations which might arise in relation to the orders passed in review petitions. Reference to paragraphs 25, 25.1, 25.2 and 25.3 is made, which are extracted below for ready reference:

“25. Different situations may arise in relation to review petitions filed before a court or tribunal.

25.1. One of the situations could be where the review application is allowed, the decree or order passed by the court or tribunal is vacated and the [pic] appeal/proceedings in which the same is made are reheard and a fresh decree or order passed in the same. It is manifest that in such a situation the subsequent decree alone is appealable not because it is an order in review but because it is a decree that is passed in a proceeding after the earlier decree passed in the very same proceedings has been vacated by the court hearing the review petition.

25.2. The second situation that one can conceive of is where a court or tribunal makes an order in a review petition by which the review petition is allowed and the decree/order under review is reversed or modified. Such an order shall then be a composite order whereby the court not only vacates the earlier decree or order but simultaneous with such vacation of the earlier decree or order, passes another decree or order or modifies the one made earlier. The decree so vacated reversed or modified is then the decree that is effective for the purposes of a further appeal, if any, maintainable under law.

25.3. The third situation with which we are concerned in the instant case is where the revision petition is filed before the Tribunal but the Tribunal refuses to interfere with the decree or order earlier made. It simply dismisses the review petition. The decree in such a case suffers neither any reversal nor an alteration or modification. It is an order by which the review petition is dismissed thereby affirming the decree or order. In such a contingency there is no question of any merger and anyone aggrieved by the decree or order of the Tribunal or court shall have to challenge within the time stipulated by law, the original decree and not the order dismissing the review petition. Time taken by a party in diligently pursing the remedy by way of review may in appropriate cases be excluded from consideration while condoning the delay in the filing of the appeal, but such exclusion or condonation would not imply that there is a merger of the original decree and the order dismissing the review petition.”

4. We are in complete agreement with the principle laid down by this Court in DSR Steel (Private) Limited (supra) and applying the 3rd situation referred to therein in paragraph 25.3, we are inclined to dismiss this special leave petition. We find force in the contention made by the learned senior counsel appearing for the respondent that this SLP is not maintainable, since the main order was not challenged but only the order passed in the review petition alone was challenged in this SLP. Hence, the SLP is, therefore, not maintainable and the same is dismissed.

The Court also noticed another elaborate judgment of Apex Court in Bussa Overseas and Properties Private Limited and Anr. Vs. Union of India and Anr., (2016) 4 SCC 696. In the above case also special leave petition was filed against the Division Bench judgment of the High Court rejecting the review petition. Facts have been noticed in paragraph 1, which is to the following effect:-

“……………The present appeal is directed against the judgment and order dated 14-9-2004 passed by the Division Bench of the High Court of Judicature at Bombay in Bussa Overseas & Properties (P) Ltd. v. Union of India [Notice of Motion No. 62 of 2004, decided on 14-9-2004 (Bom)] whereby the High Court while dealing with an application of review has declined to condone the delay of 129 days in preferring the application for review and also opined that the application for review was totally devoid of merit. The expression of the said view led to dismissal of the application for review.”