Introduction – The case of Kunhayammed
and Others v. State of Kerala and Another[1]
was concerned with a very important question of law in the realm of civil
procedural laws. The subject matter of the case touched upon the doctrine of
merger and res judicata in civil cases and posed a substantial question on the
deeper nuances of its applicability. Before discussing the technicalities of
the judgement and the arguments presented by the respective sides, let us delve
briefly into the facts of the matter.
The Kerala Private Forests (Vesting and
Assignment) Act, 1971 provided for the vesting in the Government of private
forests in Kerala and for its assignment to agriculturists for cultivation. It
was also provided that any disputes on the question(s) whether any land was a
private forest or not, and, whether any private forest was vested in the
Government or not, would be decided by the Forest Tribunal constituted under
section 7. Appeals against any such decision could be made to the High Court
under section 8-A within a period of 60 days from the date of decision.
In a particular dispute before the Forest
Tribunal, Kozhikode involving 1020 acres of land, it was ruled on 11-8-1982 that
the land did not vest in the Government. The State Government filed an appeal
in the High Court that was subsequently dismissed on 17-12-1982. In the
statute, no further mechanism of appeal or review had been provided to the
parties. In such a scenario, the State chose to approach the Apex Court under
Article 136 of the Constitution of India by way of a Special Leave Petition. However,
this petition was dismissed on 18-7-1983 by an order that only stated the
following – “Special leave petition is dismissed on merits.”
A little while later, in January 1984,
the Government went before the Kerala High Court and filed a review application
of its earlier order. The original petitioners in this matter raised a
preliminary objection concerning the maintainability of the review petition. The
High Court overruled these objections petition and decided to proceed further
on the merits of the subject-matter. The petitioners then sought for leave to
appeal to the Supreme Court, which was granted.
The two contentions that were primarily
preferred by the appellants before the Supreme Court were that, first, the
order passed by the Kerala High Court had merged into the order of the Supreme Court
dismissing the SLP. Therefore, the consequence of such merger was that the order
of the High Court had ceased to exist in the eye of law and the review application
cannot be filed before the High Court. Secondly, the appellants put forth that
the effect of the Supreme Court’s dismissal of the SLP was that the High
Court’s decision had been affirmed. Thus, a further review petition could not
be entertained.
It was this fascinating matrix of facts
that had led to the appellants approaching the Supreme Court. The question that
was now troubling the Apex Court was whether a review application could be
filed against a previous order of the High Court when a Special Leave Petition
filed before the Supreme Court had already been dismissed. The arguments
presented before the Court dealt with the doctrine of merger as well as the
entire concept and meaning of SLPs under Article 136 of the Constitution.
Although there had previously been quite a few similar cases, the position of
law had not been settled so far. Thus, the decision in this case carries a lot
of weight in paving the way for settling the procedural jurisprudence regarding
the doctrine of merger.
Doctrine of Merger – It is important to
keep in mind that it is not the case that the doctrine of merger is found set
in stone in the Constitution or even any statutory law. This is a doctrine that
has been developed over the years as a part of common law and aides in
interpretation of statutes. In substance, what this doctrine implies is that
any given point of time, there should only be one order that is operative. The
use of the merger doctrine is essential in governing procedural matters as it
takes into account the principle of maintaining proper hierarchy of the journey
of a case in the justice delivery system. The Supreme Court has also ruled upon
the merits of this doctrine in several previous cases and the judicial opinion
has evolved through the years.
In the case of CIT v. Amritlal
Bhogilal and Co.[2]
it was held that when an appellate authority confirms the decision of a
tribunal, the result is that the original decision of the tribunal merges in
the subsequent decision of the appellant authority and therefore, there is only
one operative decision that is capable of enforcement. In State of
Madras v. Madurai Mills Co. Ltd.[3]
the Supreme Court held that the “doctrine of merger is not a doctrine of
rigid and universal application and it cannot be said that wherever there are
two orders, one by the inferior authority and the other by a superior
authority, passed in an appeal or revision there is a fusion or merger of two
orders irrespective of the subject-matter of the appellate order and the scope
of the appeal or revision contemplated by the particular statute.”
In Gojer Bros. (P) Ltd. v. Ratan
Lal Singh[4],
it was clarified that there is no distinction between an order of reversal or
confirmation passed by the appellate authority as far as the doctrine of merger
is concerned. The order passed by the lower authority will merge into the order
of the appellate authority regardless of the nature of the decision. The
decision in U.J.S. Chopra v. State of Bombay[5] held
that, “A judgment pronounced by the High Court in the exercise of its
appellate or revisional jurisdiction after issue of a
notice and a full hearing in the presence of both the parties …
would replace the judgment of the lower court, thus constituting the judgment
of the High Court the only final judgment to be executed in accordance with law
by the court below.”
In Sushil Kumar Sen v. State
of Bihar[6],
it was held that the doctrine of merger would apply to those orders that are a
result of the exercise of a Court’s appellate, revisional or review
jurisdictions. In Shankar Ramchandra Abhyankar v. Krishnaji
Dattatreya Bapat[7],
the Court delineated three conditions where the doctrine of merger would apply
–
(i)
the
jurisdiction exercised should be appellate or revisional jurisdiction;
(ii)
the
jurisdiction should have been exercised after issue of notice;
(iii)
there
must be a full hearing in presence of both the parties.
As
mentioned in the preceding sections, it was not the first time that the question
at the heart of the Kunhayammed case had been brought up before the
Supreme Court. In fact, it was first formulated and attempted to be resolved a
few years earlier in the case of Abbai Maligai Partnership Firm v. K.
Santhakumaran[8].
In this case, an order of the Rent Controller had been appealed before the High
Court. A Special Leave Petition filed in the Supreme Court was dismissed and
subsequently, a review petition was preferred in the High Court against its own
earlier orders in the appeal. In this proceeding, the High Court allowed the
review and ended up reversing the earlier order. This reversal was then
challenged before the Supreme Court.
With
respect to the peculiar facts of this case, the Supreme Court had held that by
filing a review petition, the petitioners were indulging in vexatious
litigation and abusing the process of the court. More succinctly, the Court did
not hold back in expressing that the sequence of events in which the High Court
admitted the review petitions and proceeded to reverse the earlier orders was “subversive
of judicial discipline”, “palpably erroneous” and an “affront”
to the order of the Supreme Court dismissing the special leave petitions.
However,
it is very pertinent to note that this decision was delivered with respect to
the facts and circumstances of this case, as is made clear in the judgement,
without the Court having gone into the merits of the proposition of law that we
are concerned with, i.e., whether a High Court can entertain review petitions
of its own orders after SLPs on the same have been dismissed by the Supreme
Court. Thus, no clarity on the position of law can be ascertained from this
case as the doctrine of merger was not the basis of the decision.
Reasoning & Decision – Before coming to a decision, the Supreme Court also went into great depth about the special nature of the jurisdiction of the Supreme Court available under Article 136 of the Constitution, thus forming a very elaborate and comprehensive judgement on the subject. This facet of the judgement is particularly helpful in providing a foundation for understanding the reasoning of the decision given thereafter. The Court also went through a plethora of decisions that dealt with the legal effects of an order of dismissal of a Special Leave Petition by the Apex Court. A few of such cases are discussed in this section.
In Workmen v. Board
of Trustees of the Cochin Port Trust[9],
the Court held that dismissal of an SLP by the Supreme Court by a non-speaking
order of dismissal where no reasons were given does not constitute res
judicata. In Indian Oil Corporation. Ltd. v. State
of Bihar[10], an
employer had filed a special leave petition in the Supreme Court, against an order
of the Labour Court, which was dismissed with the comment, “The special
leave petition is dismissed.”
Once again, the employer chose to go
before the High Court against the Labour Court order. It was contended before
the court that since the Supreme Court had already dismissed the SLP, there was
no legal ground for the employer to approach the High Court. This argument was
accepted by the High Court on the basis of the doctrine of election, by which
the employer had elected to approach the Supreme Court by way of SLP as an
appropriate remedy. Moreover, since the challenge in the Supreme Court had
failed, the alternative of approaching the High Court would also extinguish as
the superior court had already ruled on the same dispute. When this decision
was appealed in the Apex Court, the decision was reversed and the Court held
that, “The effect of a non-speaking order of dismissal of a special leave
petition without anything more indicating the grounds or reasons of its
dismissal must, by necessary implication, be taken to be that this Court had
decided only that it was not a fit case where special leave should be granted.”
Thus, through these cases, the Supreme
Court established that the dismissal of a Special Leave Petition did not
translate into a judgement upon the merits of the matter, rather it was only a
decision on the suitability of admitting the matter under the SLP jurisdiction
of the Court under Article 136. It was clarified that special leave petitions
are only entertained when there is a substantial question of law involved or if
there is any manifest injustice. Therefore, it cannot be inferred that the
dismissal of a special leave petition in limine means a rejection of the
merits of the matter.
To support this position, the Supreme
Court placed reliance on the following cases. In the case of Rup
Diamonds v. Union of India[11],
it was declared that dismissal of special leave petition could not be construed
as a verdict on the correctness of the decision appealed against. In Supreme
Court Employees’ Welfare Assn. v. Union of India[12]
and Yogendra Narayan Chowdhury v. Union of India[13],
it was stated that a non-speaking order of dismissal of a SLP cannot lead to any
assumption on the correctness of the decision under appeal. In the case of V.M.
Salgaocar & Bros. (P) Ltd. v. CIT[14]
as well, the Court had held that when a special leave petition is dismissed, it
is not a comment on the correctness of the order, rather it only implies that
the Court does not find the case to be adequate for admission under the special
jurisdiction under Article 136 of the Constitution.
In Kunhayammed, the Court also
took into consideration a case law where a contrary view was adopted. In
Sree Narayana Dharmasanghom Trust v. Swami Prakasananda[15],
it was stated that, “it is settled law that even the dismissal of special
leave petition in limine operates as a final order between the parties.”
Interpreting this statement, the Court said that the finality of the order is
in the sense that a second special leave petition cannot be filed on the same
matter. The Court opined that the finality must not be stretched to such an
extent that dismissal of SLPs would also attract the doctrine of merger and
exclude the scope of other courts from hearing the matter on merits.
The Court made it clear in the Kunhayammed
case that when a special leave petition is dismissed, if it is a non-speaking
order (does not assign reasons for dismissal), the doctrine of merger would not
apply to substitute the earlier order, nor would the dismissal be treated as a
judgement on any legal position. Therefore, there would be no res judicata
under Article 141 as there is no decision on a matter of law that can be
followed by lower courts in the first place. Further, even if the petition is
dismissed with reasons through a speaking order, the doctrine of merger would still
not apply as the decision was not on any law but on the question whether such
an appeal was fit for admission.
The Court went on to explain further
that if a judgment of the High Court has come up to the Apex Court by a SLP and
such a petition is entertained but subsequently disposed of, then the High
Court ruling will merge with the Apex Court’s disposal order. In such a
scenario, it will not be possible to approach the High Court for a review for
the simple reason that the previous judgement has ceased to exist when it
merged with the Apex Court judgement. However, if the SLP is dismissed at the admission
stage itself, then there is no merger which takes place, thus leaving the scope
of a review petition in the High Court.
It must be taken into cognisance that there are several grounds of dismissal of an SLP, such as (i) being barred by time; (ii) defective presentation; (iii) no locus standi; (iv) the question raised by the petitioner for consideration by this Court being not fit for consideration. The dismissal in such cases is not a dismissal of the appeal on its merits, but of the permission to proceed with the appeal. In such a dismissal, the doctrine of merger and res judicata under Article 141 would not apply. If permission to proceed with the appeal is granted, then the appellate jurisdiction of the Court begins. Any order of the Court at this stage, whether of dismissal or affirmation, would attract the applicability of doctrine of merger and Article 141. In the facts of the Kunhayammed case, the Court observed that the order of the High Court did not merge in the order of the Supreme Court. Hence, the scope to apply for review before the High Court was validly available to the petitioners. Therefore, the present appeal was dismissed.
Analysis
– The primary question that was raised through all of these cases was whether a
review petition seeking review of a judgment against which the special leave
petition has already been dismissed by the Supreme Court is maintainable before
the High Court? In spite of the judgements in Abbai Maligai and Kunhayammed,
no concrete position on the subject had been adopted by the Supreme Court.
Just
a few months after the Kunhayammed decision, in K
Rajamouli v. AVKN Swamyi, the Supreme Court followed Kunhayammed and
expressed the view that the dismissal of the special leave petition would not
constitute res judicata provided the review petition was filed
prior to the filing of special leave petition against the main judgment of the
High Court. This position was, however, held to be different where the review
petition is filed after a long delay from the date of dismissal of the special
leave petition. That was considered to be an abuse of the process of the
law. Palani Raman Catholic Mission v. S Bagirathi
Ammal and Bhakra Beas Management Board v. Krishan
Kumar Vij and Anr, also took the pro-Kunhayammed view.
In Meghamala
and Ors v. G Narasimha Reddy and Ors, the Supreme Court,
after referring to Abbai Maligai and Kunhayammed, held
that if a review petition is filed before filing the special leave petition and
it remains pending till the special leave petition stands dismissed, the review
petition deserves to be considered. However, in case it is filed subsequent to
the dismissal of the special leave petition, the process of filing review
application would amount to an abuse of process of the court.
Then,
in Gangadhara Palo v. Revenue Divisional Officer and
Anr, the Supreme Court expressed its disagreement with K
Rajamouli and held that it will make no difference whether the review
petition was filed before or after the dismissal of the special leave petition.
Irrespective, the review will stand barred and the doctrine of merger would
apply, even when the special leave petition is dismissed in limine.
The
ambiguity around the matter was finally settled by the Court in the case of Khoday
Distilleries Ltd v. Sri Mahadeshwara Sahakara, when it was
held that the position established and outlined in the Kunhayammed case was the
correct law. In this case, a first appeal was challenged in the Supreme
Court. The special leave petition was dismissed with the order “Special
Leave Petition is dismissed.” A review petition was filed in the Karnataka
High Court for reviewing its earlier judgment. That review petition was also
dismissed by the High Court holding that, “when the judgment and decree
passed by this Court has been confirmed by the Hon’ble Supreme Court, question
of entertaining any review by us does not arise for consideration.”
However, the Supreme Court settled the debate once and for all when it ruled
that the “detailed judgment in Kunhayammed lays down the correct law and
there is no need to refer the cases to larger Bench.”
Thus, the judgement in this case set the foundation for settling of the jurisprudence surrounding the doctrine of merger and res judicata. While the case did not make a definitive impact upon future cases, the Supreme Court chose to rely on the judgement propounded in this case to finally re-iterate in the Khoday Distilleries case that this is the correct reasoning to answer the question whether a High Court could entertain a review petition against its own decision after an SLP on the same matter had been dismissed by the Supreme Court. This case had raised a very pertinent question regarding the procedure to be followed in civil cases and thus, was an important verdict concerning ancillary matters such as the hierarchy of courts as well.
[1] (2000) 6 SCC 359.
[2] AIR
1958 SC 868.
[3] AIR
1967 SC 681.
[4] (1974)
2 SCC 453.
[5] AIR
1955 SC 633.
[6] (1975)
1 SCC 774.
[7] (1969)
2 SCC 74.
[8] (1998)
7 SCC 386.
[9] (1978)
3 SCC 119.
[10] (1986)
4 SCC 146.
[11] (1989)
2 SCC 356.
[12] (1989)
4 SCC 187
[13] (1996)
7 SCC 1.
[14] (2000)
5 SCC 373.
[15] (1997)
6 SCC 78.
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