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TMI Blog2017 (3) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... iberty. The order thus has to be read as it is i.e., of dismissal of SLP as withdrawn.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 Once a proceeding / petition is permitted to be withdrawn, the effect of such withdrawal is as if, it had not been preferred.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 But in law a dismissal of the petition as withdrawn cannot be at par with the dismissal of the petition. Neither counsel has however addressed us on this aspect and has proceeded on the premise as if dismissal as withdrawn is the same as dismissal of the petition.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. - W.P.(C) 494/1991 - - - Dated:- 27-2-2017 - MR. BADAR DURREZ AHMED MR. RAJIV SAHAI ENDLAW JJ. Petitioners Through: Mr. C.U. Singh, Sr. Adv. with Mr. Anuj Sharma, Adv. Respondents Throu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licting judgments held that a review petition can be filed subsequent to the dismissal of an SLP inasmuch as at the stage of dismissal of an SLP, there exists no appeal in the eyes of law as at that stage the Supreme Court is exercising its discretionary jurisdiction and not the appellate jurisdiction; only when the Supreme Court grants leave in SLP and converts it into an appeal and the appeal thereafter is disposed of with or without reasons, that the judgment of the Supreme Court merges with that of the High Court and where-after review petition cannot be filed; (iv) that Kunhayammed (supra) has been followed in National Housing Coop. Society Vs. State of Rajasthan (2005) 12 SCC 149, Palani Roman Catholic Mission Vs. S. Bagirathi Ammal (2009) 16 SCC 657, Gangadhara Palo Vs. Revenue Divisional Officer (2011) 4 SCC 602, Bakshi Dev Raj Vs. Sudheer Kumar (2011) 8 SCC 679, Bhakra Beas Management Board Vs. Krishan Kumar Vij (2010) 8 SCC 701 and Sri Ram Builders Vs. State of Madhya Pradesh (2014) 14 SCC 102; (v) that the earlier judgment also of a three Judges Bench in Abbai Maligai Partnership Firm Vs. K. Santhakumaran (1998) 7 SCC 386 turned on its own facts; in that case SLP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld in Sunil Kumar (supra) that in case review petition has been filed before the High Court prior to the date the SLP is dismissed by the Supreme Court, the same may be entertained; however a party cannot file a review petition before the High Court after approaching the Supreme Court as it would amount to abuse of process of the Court; (d) that Sunil Kumar (supra) was reiterated in K. Rajamouli (supra); (e) that the same view has been taken in Jia Lal Kapur (supra); (f) that Gangadhara Palo and Bakshi Dev Raj (supra) had dissented from the reasoning in Abbai Maligai Partnership Firm, Meghmala and Sunil Kumar (supra) which held that filing a review petition after dismissal of SLP is an abuse of the process of the Court; (g) that the ratio of Abbai Maligai Partnership Firm is not that dismissal of SLP in limine by a non-speaking order attracts the principle of merger but that review petition filed after the dismissal of SLP amounts to abusing the process of the Court; (h) that mere non-application of doctrine of merger would not entail that the Court lower in hierarchy could ignore any opinion expressed by the Supreme Court, either on point of fact or law in the order rejecting the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts 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. 12. 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. 13. 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. 14. As far as the effects, if any, of dismissal in limine of a SLP on a subsequent review petition before the High Court is concerned, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hip Firm (supra) also fortified the view taken in Kunhayammed (supra). 16. It would thus be seen that Kunhayammed (supra), though of a Bench of the same strength as Abbai Maligai Partnership Firm (supra), did not read Abbai Maligai Partnership Firm (supra) as laying down anything to the contrary than what was held in Kunhayammed (supra). The Supreme Court having expressly held so, it is not open today to the respondent UOI to contend or for us to hold that there is a conflict in the two. 17. We now proceed to analyse whether Sunil Kumar (supra) carves out any different factual scenario in which Abbai Maligai Partnership Firm and Kunhayammed (supra) operate. 18. Supreme Court in Sunil Kumar (supra) was concerned with a petitioner who was held to be a black-marketer exploiting helplessness of the poor people of the society and capable of engaging lawyers and found to be abusing the process of the Court and wanting to use the Courts as a safe haven. The subject matter of Sunil Kumar (supra) was a transaction under Section 7 of the Essential Commodities Act, 1955. The petitioner therein was found to have approached the High Court for modifying the order of his conviction a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme Court to the maintainability of the review petition. 23. That still leaves Jia Lal Kapur (supra) rendered by a Coordinate Bench. The Division Bench in Jia Lal Kapur (supra) was concerned with a review petition (not in a criminal matter) after the SLP, review petition and curative petition had been dismissed by the Supreme Court. The Division Bench, after holding that the petitioner therein by way of review was indeed seeking a re-hearing and which was not permissible in review and that a contrary view in a subsequent judgment is not an error apparent on the face of the record to invite review, also on the basis of K. Rajamouli and Meghmala (supra) and without noticing Kunhayammed (supra) held the review petition to be an abuse of the process of the Court. We highlight that neither was Kunhayammed (supra) noticed nor was it held that the review petition is not maintainable. It is thus not as if the Division Bench in Jia Lal Kapur (supra) has held to be contrary. 24. We thus decide the preliminary objection in favour of the review petitioners and hold this review petition to be not barred owing to the SLP preferred against the judgment of which review is sought having ..... X X X X Extracts X X X X X X X X Extracts X X X X
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