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2017 (3) TMI 49 - HC - Indian LawsGrant of liberty - whether the dismissal as withdrawn of the SLP, even in the absence of the words with liberty sought is to be read as grant of liberty? - Held that - The review petitioners obviously were of the opinion that without the aforesaid words, they did not have liberty to approach this Court by way of review and claim to have made an application to the Supreme Court in this regard but which application is stated to have been refused to be listed. In our opinion, it is not for us to venture into, whether the order, notwithstanding having not provided that the review petitioners had been granted liberty, grants liberty or not. It cannot be lost sight of that it is not as if the counsel for the review petitioners, when the SLP came up before the Court, stated that the filing of SLP was misconceived and withdrew the same. The order records that it was after some arguments that the counsel for the review petitioners sought permission to withdraw the SLP. It is also not as if the Supreme Court is not known to, while dismissing the SLP as withdrawn, grant such liberty. The order thus has to be read as it is i.e., of dismissal of SLP as withdrawn. Rule 9 of Order XV titled Petitions Generally of the Supreme Court Rules, 2013 provides for withdrawal of the petition. Once a proceeding / petition is permitted to be withdrawn, the effect of such withdrawal is as if, it had not been preferred. It is a different matter that the Rules may prohibit the petitioner who so withdraws his petition from re-filing the same or even in the absence of such Rules, such re-filing may be treated as an abuse of the process or by way of re-litigation. But in law a dismissal of the petition as withdrawn cannot be at par with the dismissal of the petition. Neither counsel has however addressed us on this aspect and has proceeded on the premise as if dismissal as withdrawn is the same as dismissal of the petition. We are therefore unable to find any merit in the objection of the counsel for the respondent UOI to the maintainability of the review petition.
Issues Involved:
1. Maintainability of the review petition after the dismissal of the Special Leave Petition (SLP) by the Supreme Court. 2. Effect of the Supreme Court's order dismissing the SLP as withdrawn without granting explicit liberty to file a review petition. 3. Interpretation and application of precedents regarding the maintainability of review petitions post-SLP dismissal. Detailed Analysis: 1. Maintainability of the Review Petition: The primary issue was whether the review petition is maintainable after the dismissal of the SLP by the Supreme Court. The petitioners argued that once the Supreme Court permits the withdrawal of an SLP without recording reasons, it is as if no appeal was ever filed or entertained. They cited the precedent set by Kunhayammed Vs. State of Kerala (2000) 6 SCC 359, which held that a review petition can be filed subsequent to the dismissal of an SLP, as the dismissal does not amount to an appeal in the eyes of the law. This principle was supported by several other judgments, including National Housing Coop. Society Vs. State of Rajasthan (2005) 12 SCC 149 and Gangadhara Palo Vs. Revenue Divisional Officer (2011) 4 SCC 602. The respondents, however, relied on Abbai Maligai Partnership Firm Vs. K. Santhakumaran (1998) 7 SCC 386, which held that a review petition could not be entertained after the dismissal of an SLP on merits. 2. Effect of Supreme Court's Order Dismissing SLP as Withdrawn: The petitioners contended that the Supreme Court's order dismissing the SLP as withdrawn, without explicitly granting liberty to file a review petition, should still be interpreted as granting such liberty. The petitioners had sought permission to withdraw the SLP with liberty to move the High Court in a review petition, but the order only recorded the dismissal as withdrawn. The court observed that the dismissal as withdrawn should be read as it is, without assuming any implicit grant of liberty. Rule 9 of Order XV of the Supreme Court Rules, 2013, was cited, which provides that once a petition is withdrawn, it is as if it had not been preferred. 3. Interpretation and Application of Precedents: The court analyzed the precedents, particularly Kunhayammed and Abbai Maligai Partnership Firm, to determine if there was any conflict. It was found that Kunhayammed did not consider Abbai Maligai Partnership Firm as laying down a contrary law. Kunhayammed held that the dismissal of an SLP does not deprive the aggrieved party of the statutory right of review. The court also examined Sunil Kumar Vs. State of Haryana JT 2012 (4) SC 32, which distinguished Kunhayammed on the grounds that it dealt with civil cases, whereas Sunil Kumar involved a criminal matter under Section 7 of the Essential Commodities Act, 1955. The court noted that the observations about abuse of process in Abbai Maligai Partnership Firm and Sunil Kumar were based on the specific facts of those cases, where the petitioners were found to be abusing the court process. The court concluded that the review petitioners in the present case were not abusing the process of the court by filing the review petition after the withdrawal of the SLP. It was held that the review petition is maintainable, and the preliminary objection raised by the respondents was dismissed. Conclusion: The court decided in favor of the review petitioners, holding that the review petition is not barred by the dismissal of the SLP as withdrawn. The court emphasized that the dismissal of an SLP does not preclude the filing of a review petition, provided there is no abuse of the court process.
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