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TMI Blog2011 (3) TMI 1794X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. By that order, the review petition as well as the application for condonation of delay in filing the review petition have been dismissed. 4. The delay was only of 71 days and, in our opinion, a liberal view should have been taken by the High Court and delay of 71 days in filing the review petition should have been condoned and the review petition should have been decided on merits. Hence, we condone the delay of 71 days in filing the review petition before the High Court. 5. As regards the maintainability of the review petition, Mr. Sanjay Kapur, learned Counsel for the Respondent submitted that it was not maintainable because against the main judgment of the High Court dated 19th June, 2001 dismissing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rger, the judgment of the lower court merges in to the judgment of the higher court. Hence, if some reasons, however meager, 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. 9. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n it was observed: Following the decision in the case of Kunhayammed (2000) 6 SCC 359, we are of the view that the dismissal of the special leave petition against the main judgment of the High Court would not constitute res judicata when a special leave petition is filed against the order passed in the review petition provided the review petition was filed prior to filing of special leave petition against the main judgment of the High Court. The position would be different where after dismissal of the special leave petition against the main judgment a party files a review petition after a long delay on the ground that the party was prosecuting remedy by way of special leave petition. In such a situation the filing of review wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, 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. 15. 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. 16. For the reasons given above, we allow this appeal, set aside the impugned order of the High Court, condone the delay in filing the r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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