1. Introduction
Recently, hon’ble Supreme Court in Gangadhara Palo Vs The Revenue Divisional Officer & Another {(2011) 4 SCC 602; Decided on 08.03.2011} has held that there can be no review of a judgment, if appeal has already been decided. The Court observed the principles as follows.
2. It will make no difference whether the review petition was filed in the High Court before or after the dismissal of the SLP by SC
The Court observed as follows (SCC p. 603 para 5)
“5. We regret, we cannot agree. In our opinion, it will make no difference whether the review petition was filed in the High Court before the dismissal of the special leave petition or after the dismissal of the special leave petition. The important question really is whether the judgment of the High Court has merged into the judgment of this Court by the doctrine of merger or not.”
3. Doctrine of Merger: After merger there is no judgment of the High Court
The Court further observed as follows (SCC p. 604 para 6 & 7)
“6. When this Court dismisses a special leave petition by giving some reasons, however meagre (it can be even of just one sentence), there will be a merger of the judgment of the High Court into the order of the Supreme Court dismissing the special leave petition. According to the doctrine of merger, the judgment of the lower court merges into the judgment of the higher court. Hence, if some reasons, however meagre, are given by this Court while dismissing the special leave petition, then by the doctrine of merger, the judgment of the High Court merges into the judgment of this Court and after merger there is no judgment of the High Court. Hence, obviously, there can be no review of a judgment which does not even exist.”
“7. The situation is totally different where a special leave petition is dismissed without giving any reasons whatsoever. It is well settled that special leave under Article 136 of the Constitution of India is a discretionary remedy, and hence a special leave petition can be dismissed for a variety of reasons and not necessarily on merits. We cannot say what was in the mind of the Court while dismissing the special leave petition without giving any reasons. Hence, when a special leave petition is dismissed without giving any reasons, there is no merger of the judgment of the High Court with the order of this Court. Hence, the judgment of the High Court can be reviewed since it continues to exist, though the scope of the review petition is limited to errors apparent on the face of the record. If, on the other hand, a special leave petition is dismissed with reasons, however meagre (it can be even of just one sentence), there is a merger of the judgment of the High Court in the order of the Supreme Court. (See the decisions of this Court in the cases of Kunhay Ammed & Others vs. State of
4. A mere stray observation of Supreme Court would not amount to a precedent
The Court further observed as follows (SCC p. 605 para 11)
“11. A precedent is a decision which lays down some principle of law. In our view, the observations made in para 4 of the aforesaid judgment, quoted above, that "if a review petition is filed after the dismissal of the special leave petition, it would be treated as an affront to the order of the Supreme Court" is not a precedent at all. A mere stray observation of this Court, in our opinion, would not amount to a precedent. The above observation of this Court is, in our opinion, a mere stray observation and hence not a precedent.”
5. By a judicial order, the power of review cannot be taken away
“12. By a judicial order, the power of review cannot be taken away as that has been conferred by the statute or the Constitution. This Court by judicial orders cannot amend the statute or the Constitution.”(END)
Narendra Sharma,
Consultant (Legal)
E-mail: nkdewas@yahoo.co.in
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Tags :Civil Law
