Dismissal of slp in limine by a non-speaking order.

Advocate & Consultant (Law) Supreme Court of India New Delhi

Whether the dismissal of the Special Leave Petition in limine means that the reasoning of the order/judgment impugned stands affirmed whereupon the judgment and order impugned merges with such order of the Apex Court on dismissal of the Petition?

So far as my understanding goes, It simply means that the Apex Court did not consider the case worth examining for the reason, which may be other than merit of the case, nor such an order of the Apex Court operates as res judicata. An order rejecting the Special Leave Petition in limine devoid of detailed reasons therefore does not constitute any declaration of law or a binding precedent.

If anyone has access to any case law/ citation to this regard, or a view contrary,please revert with a reasoned answre along with relevant citation.

 
Reply   
 
ADVISOR

 

Mr Amit
I am quoting a para from SC judgment and understand that it is in the
context you desired for:
 
"A petition seeking grant of special leave to appeal may be 
 
rejected for several reasons. For example, it may be rejected 
 
(i) as barred by time, or (ii) being a defective presentation, (iii) 
 
the petitioner having no locus standi to file the petition, (iv) 
 
the   conduct   of   the   petitioner   disentitling   him   to   any 
 
indulgence   by   the   court,   (iv)   the   question   raised   by   the 
 
petitioner   for   consideration   by   this   Court   being   not   fit   for 
 
consideration   or   deserving   being   dealt   with   by   the   Apex 
 
Court   of   the   country   and   so   on.   The   expression   often 
 
employed by this Court while disposing of such petitions are 
 
-- "heard and dismissed", "dismissed", "dismissed as barred 
 
by time" and so on. May be that at the admission stage itself 
 
the opposite party appears on caveat or on notice and offers 
 
contest to the maintainability of the petition. The Court may 
 
apply   its   mind   to   the   meritworthiness   of   the   petitioner's 
 
prayer seeking leave to file an appeal and having formed an 
 
opinion  may say "dismissed on merits". Such an order may 
 
be   passed   even   ex   parte,   that   is,   in   the   absence   of   the 
 
opposite   party.   In   any   case,   the   dismissal   would   remain   a 
 
dismissal   by   a   non-speaking   order   where   no   reasons   have 
 
been assigned and no law has been declared by the Supreme 
 
Court.  The  dismissal is not of the appeal  but  of the  special 
 
leave   petition.   Even   if   the   merits   have   been   gone   into,   they 
 
are   the   merits   of   the   special   leave   petition   only.   In   our 
 
opinion   neither   doctrine   of   merger   nor   Article   141   of   the 
 
Constitution is attracted to such an order. Grounds entitling 
 
exercise of review jurisdiction  conferred by Order 47 Rule 1 
 
CPC or any other statutory provision or allowing review of an 
 
order passed in exercise of writ or supervisory jurisdiction of 
 
the   High   Court   (where   also   the   principles   underlying   or 
 
emerging   from   Order   47   Rule   1   CPC   act   as   guidelines)   are 
 
not   necessarily   the   same   on   which   this   Court   exercises                                                                                    
 
discretion   to   grant   or   not   to   grant   special   leave   to   appeal 
 
while disposing of a petition for the purpose. Mere rejection 
 
of a special leave petition does not take away the jurisdiction 
 
of   the   court,   tribunal   or   forum   whose   order   forms   the 
 
subject-matter of petition for special leave to review its own 
 
order if grounds for exercise of review jurisdiction are shown 
 
to   exist.   Where   the   order   rejecting   an   SLP   is   a   speaking 
 
order,   that   is,   where   reasons   have   been   assigned   by   this 
 
Court   for   rejecting   the   petition   for   special   leave   and   are 
 
stated  in the  order  still  the  order  remains  the  one  rejecting 
 
prayer   for   the   grant   of   leave   to   appeal.   The   petitioner   has 
 
been   turned   away   at   the   threshold   without   having   been 
 
allowed   to   enter   in   the   appellate   jurisdiction   of   this   Court. 
 
Here   also   the   doctrine   of   merger   would   not   apply.   But   the 
 
law stated or declared by this Court in its order shall attract 
 
applicability of Article 141 of the Constitution.  "
 
Reply   
 


ADVISOR

 

  
 
 
Mere dismissal of SLP does not amount to acceptance of correctness 
 
 
of the High Court decision.  
 
Reply   
 
Advocate & Consultant (Law) Supreme Court of India New Delhi

Dear Mr. Gupta,

Thanks for taking out time, please provide citation of the case referred hereinabove by you.

Anyways, the question ‘Whether the dismissal of the SLP in limine means that the reasoning of the order/judgment impugned stands affirmed whereupon the judgment and order impugned merges with such order of the Apex Court on dismissal of the Petition?’ has elaborately dealt by the Hon’ble Supreme Court in Kunhayammed & Ors. v. State of Kerala & Anr. (AIR 2000 SC 2587) wherein the Court reconsidered the issue and came to the conclusion that dismissal of special leave petition in limine by a non-speaking order may not be a bar for further reconsideration of the case for the reason that this Court might not have been 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 as in that case doctrine of merger would come into play.

Hon’ble Mr. Justice R.C. Lahoti has laid down the certain principles to this regards, while dealing with Kunhayammed’s cae (Supra), I'm hereby citing the gist it:-

"(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."

 Regards,

Amit K. Pateria

 

 
Reply   
 
ADVISOR

Mr Amit

Attached herewith is the judgment .

The bench was consisting of Justice P.SATHASIVAM and Justice H.L.GOKHALE



Attached File : 871366735 dismissal of slp 4.8.11.txt downloaded 288 times
 
Reply   
 
ADVISOR

 

Mr Amit
This judgment is peculiar more particularly that a SLP filed previously was dismissed and 
at a later stage this SLP was filed.
 
 
"(e)    Against   the   said   order,   a   special   leave   petition   bearing 
 
 
 
S.L.P. (C) No. 10939 of 2008 was filed by the appellants herein 
 
 
 
before   this   Court   and   the   same   was   dismissed   as   withdrawn 
 
 
 
on 14.05.2008.     On 21.05.2008, the appellants filed a review 
 
 
 
petition   being   Review   Petition   (C)   No.   D-5/2008   before   the 
 
 
 
High Court for review of the order dated 18.03.2008 passed in 
 
 
 
Second Appeal. The learned single Judge of the High Court, by 
 
 
 
 
 
                                                                               3
 
order dated 08.09.2008, dismissed the review petition filed by 
 
 
 
the appellants.  
 
 
 
(f)    Aggrieved by the final orders dated 18.03.2008 passed by 
 
 
 
the   High   Court   in   Second   Appeal   and   the   order   dated 
 
 
 
08.09.2008   in   the   review   petition,   the   appellants   filed   the 
 
 
 
present   appeals   before   this   Court   by   way     of   special   leave 
 
 
 
petitions."
 
Reply   
 

dear members

i have posted earlier on the same matter. kindly see the attachment also.

in this regard, in a recent order the supreme court has referred this very matter to a larger bench.

i personally feel that dismissal of SLP does not constitute any binding precedent ; however it isa final order in the matter covered by SLP. it is both illegal and incorrect to agitate the same matter once more in high court in the guise of a review petition.

especially when the SLP is dismissed  without any reservations, without the same being withdrawn or not pressed or not represented.

i know of many appeals being decided by just one sentence: " the appeal is without merits", without going into the so called merits or demerits. is it fair to say that such one line orders in appeals are final and binding, preventing the losing party to move high court in a review? certainly not, in my opinion. 

 
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