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TMI Blog2017 (7) TMI 1385X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.1994. (b) Appeals Before this Court: 3. Further aggrieved, the Government filed these appeals: M.F.A. Nos. 648 of 1996 and 1220 of 1997. Much water has flowed under the judicial bridges thereafter. 4. This Court, per a Division Bench, allowed M.F.A No. 648 of 1996 in part by judgment, dt. 17.12.2002; it set aside the award regarding Claim A. On 11.12.2002 the Court allowed M.F.A No. 1240 of 1997, too: it set aside the award as regards claims A & B. So, in both the cases, there was a partial modification. (c) The Supreme Court's Order: 5. Challenging these judgments, the claimant-not the Government-moved the Supreme Court in Civil Appeal Nos. 6429 of 2003 and 6431 of 2003. On 10.11.2009 both the appeals were allowed. The common order reads: "These appeals have been filed against the impugned judgment of the Kerala High Court dated 17.12.2002. Heard counsel for the parties. Learned counsel for the appellant submitted that the High Court has proceeded on a wrong basis. We agree with this submission. Hence while we set aside the impugned judgment we give liberty to the appellant to file Review Petitions in the High Court. All questions of law will remain open in the Review ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions: 9. Sri Sohan, the learned State Attorney, has submitted that the previous Division Bench has understood the Supreme Court's directions correctly and ordered a de novo hearing of the appeals. According to him, this Bench, a coordinate one, cannot deviate from that directive. 10. Smt. S. Karthika, the learned counsel for the respondent, has submitted that the respondent, first, filed the reviews to comply with the Supreme Court's directive in its judgment. She has further submitted that the respondent, now, is compelled to argue the matter afresh because of another Division Bench's direction to that effect, though the judgments, entirely in the contractor's favour, have never been challenged by the Government. 11. Sri P.B. Krishnan, the learned amicus curiae, has taken us through many decisions of this Court and the Supreme Court, which we will refer to by and by. He has contended that the arbitration awards, to begin with, were in the contractor's favour. The Civil Court affirmed them. This Court's adverse findings against the contractor now stand set aside by the Supreme Court. So, the contractor's seeking a review of a judgment already in his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the case." Law-of-the-Case Doctrine: 17. The doctrine of the Law of the Case, according to the Black's Law Dictionary [Black's Law Dictionary (9th Ed.)], holds that a decision rendered in a former appeal of a case is binding in a later appeal [of the same case.] It is different from law of the trial, res judicata, or stare decisis. On the other hand, "Law of the Trial" is a legal theory or court ruling that is not objected to and is used or relied on in a trial. Black's Law Dictionary provides this example: neither party objected to the court's jury instruction, so it became the law of the trial [Id.]. 18. Garner's Dictionary of Legal Usage [Bryan A. Garner, Garner's Dictionary of Legal Usage (New York : Oxford UP, 2011) 522] elaborates on the doctrine of the law of the case: If a case is appealed a second time [say, on remand] to a panel of Court of Appeals, and a panel with a different makeup from the first panel hears the case the second time, the second panel will generally hold itself bound by the writings of the first panel whether or not its members agree with those earlier writings. 19. In Messenger v. Anderson, 225 U.S. 436, 444 (1912) Justi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retative intricacies in understanding a precedent differ from those involved in understanding a law of the case. A precedent binds to the extent the holding accords with the facts on hand. The law of the case, on the other hand, fetters a later Bench in the same case from taking a contrary stand to that taken earlier by the previous Bench. Of course, this constraint flows down to the lower judicial echelons or applies to coordinate Benches, but not appellate or higher fora. Indian Scenario: 24. In Arjun Singh v Mohindra Kumar, AIR 1964 SC 993, Supreme Court elaborately discussed how interlocutory orders attain finality and, consequently, how the principle of res judicata applies to them. Arjun Singh classifies the interlocutory orders into three types: (a) orders like staying proceedings, injuncting parties, appointing receivers; (b) orders like restoring proceedings, as under Order 9, Rule 7 of CPC; (c) orders like those that cannot be reopened or reconsidered unless fresh facts emerge. 25. Type (a) orders preserve the status quo pending the litigation and ensure that the parties are not prejudiced by the procedural delays. They do not, in that sense, decide the merits of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order and not while deciding the main petition. 30. In appeal, the Supreme Court, impliedly applying the law-of-the-case doctrine, held that a decision given by a court at an earlier stage of a case binds at a later stage, as is well settled, though interlocutory judgments are open for adjudication by an appellate authority in an appeal against the final judgment. 31. The Supreme Court has quoted with approval its earlier judgment in Satyadhyan Ghosal v Deorajin Debi, AIR 1960 SC 941. The proposition is that the principle of res judicata also applies between two stages in the same proceedings if a party to the proceedings wants to reagitate the matter at a later stage, despite a court-a trial court or a higher court-deciding the matter in one way at an earlier stage. 32. The Supreme Court has however entered a precedential caveat: just because at an earlier stage of the litigation a court decided an interlocutory matter in one way, and no appeal was either available or taken, it would not follow that a higher court cannot at a later stage of the same litigation reconsider the matter. The Court has further observed that this proposition-that the findings at the interlocutory st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;s right of revision. So a Division Bench of this Court has examined the doctrine of merger. Guided by Commissioner of Sales Tax U.P., Lucknow v Vijai International Udyog G.T. Road Sikandrarao Hathras, (1984) 4 SCC 543, this Court has held that the doctrine of merger, a common law concept, would not take away a party's appeal merely because the court dismissed another party's appeal against the same judgment. 38. In Mathura Prasad Sarjoo Jaiswal v Dossibai N.B. Jeejeebhoy, AIR 1971 SC 2355, the appellant constructed a building on a leased land. He applied to the Court of Civil Judge to have the 'standard rent' determined. The Court, instead, dismissed the petition holding that the Act relied on did not apply to open lands let for constructing buildings. The revisional court, too, affirmed it. Later, because of a favourable decision rendered by the Bombay High Court in another case, the appellant again applied for the same relief-this time before the Small Causes Court having jurisdiction. The respondent raised the plea: the case is barred by res judicata. 39. The matter eventually taken to the Apex Court, it held that the doctrine of res judicata belongs to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision, if the Court assumes jurisdiction, which it does not possess under the statute, the question cannot operate as res judicata between the same parties, whether the cause of action in the later litigation is the same or otherwise." 40. In Kunhayammed v. State of Kerala, (2000) 6 SCC 359 the merger principle was discussed threadbare in the context of special leave petitions. As seen, while discussing the principle, the Supreme Court quoted, with approval, this passage from the Corpus Juris Secundum: "To merge" means to sink or disappear in something else; to become absorbed or extinguished; to be combined or to be swallowed up. Merger in law is defined as the absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist, but the greater is not increased; an absorption or swallowing up so as to involve a loss of identity and individuality. 41. After observing thus, the Supreme Court has contextualized the merger theory: once a special leave petition has been granted, the doors of the Supreme Court to exercise its appellate jurisdiction have been let open. The order impugned before the Supreme Court becomes an order appealed against. Any order p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... li v. A.V.K.N. Swamy, (2001) 5 SCC 37 the Supreme Court followed Kunhayammad and held that the Court's dismissing the special leave petition against the High Court's main judgment would not constitute res judicata if the party files the special leave petition against the order passed in the review petition. This is subject to one condition: The party must have filed the review petition before his filing the SLP against the High Court's main judgment. 48. As the Supreme Court has observed in Khoday Distilleries, Gangadhara Palo v. Revenue Divisional Officer, (2011) 4 SCC 602 struck a different note: it will make no difference whether the party filed the review petition in the High Court before the Supreme Court dismissed the SLP or after. The cardinal question is whether the High Court's judgment has merged into the Supreme Court's judgment given the doctrine of merger. Gangadhara Palo has further observed that when the Supreme Court dismisses a special leave petition by giving some cryptic reasoning-it can be just one line-there will be a merger of the High Court's judgment into the Supreme Court's. According to the doctrine of merger, it further holds, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amicus curiae submitted that the Supreme Court's setting aside the impugned judgment binds this Court under Article 141 of the Constitution. According to him, its further direction that the appellant before it may file a review petition could at best be a direction under Article 142 of the Constitution. Drawing our attention to Laxmidas Morarji v Behrose Darab Madan, 2009 (10) SCC 425, he has further contended that there could be no directions under Article 142 contrary to the law of the land. He hammers home his proposition that once the lis stands disposed of (here, the judgment was set aside), the additional direction that the appellant could seek a review before the High Court becomes otiose. Alternative View: 53. The latter part of the Supreme Court's Order-enabling the contractor to seek review before the High Court-presupposes, according to the amicus curiae, that there is something on the High Court's record adverse to him. True, the Supreme Court has set aside the very judgment, instead of dismissing the SLP and permitting the appellant to seek review. To give effect to that latter part of the order, we need, however, to presume that the adverse portion of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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