ISSUE 3: WHETHER THE REVIEW OF SPECIAL LEAVE PETITION, DISMISSED

“IN LIMMINE” IS MAINTAINABLE IN THE SUPREME COURT UNDER ARTICLE

137 OF THE CONSTITUTION OF INDIA OR NOT?

1. Where res judicata will apply as the review petition is filed on the on the decision of the
court of same jurisdiction?

 The effect of a non- speaking order of dismissal of special leave petition was considered
in Workmen v. Board of Trustees of the Cochin Port Trust.1 The Court had come to the
conclusion that it was not a fit case where special leave should be granted. The order
passed was not a speaking one. It was held that it was not correct to assume that it had
necessarily decided implicitly all questions involved on any principle of public policy
analogous thereto. It was held that it would not operate to bar the trial of identical issues
in separate proceedings. The Court in Ahmedabad Manufacturing & Calico Printing Co.
Ltd v. Workmen2 had reiterated the legal position

An in limine dismissal of a special leave petition through a non-speaking order does not
constitute res judicata. The principle was reiterated in Kunhayammed v. Kerala.3 The
earlier view taken in Gopabandhu Biswal v. Krishna Chandra Mohanty4 was that
rejection of a special leave petition against the order of a tribunal made the order final
and binding and the party could not approach the tribunal for review.

The petition seeking special leave to appeal may be rejected for several reasons. For
example, (i) as barred by time; or
(ii) being defective presentation; or

1
(1981) 2 SCC 663.
2
(2000) 6 SCC 359.
3
(1998) 4 SCC 447. Supra n. 89, by J J K T Thomas, D P Mhapatra and R C Lahoti.
4
Supra n. 89, by J J K T Thomas, D P Mhapatra and R C Lahoti.
 (iii)the petitioner having no locus standi; or
(iv)the question was not fit for consideration or deserves to be dealt with by the apex
court.

The Court applies its mind to the merit worthiness of the petitioner’s prayer seeking leave to file
appeal and having formed an opinion may say ‘dismissed on merits’. Such an order may be
passed even ex- parte. In any case, dismissal by a non-speaking order has no effect of a declared
law. The dismissal is not of the appeal but of the special leave petition. Even if merits have been
gone into, they can be merits of the special leave petition only. Mere rejection of a special leave
petition cannot take away the jurisdiction of the court, tribunal or forum 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, still it remains one rejecting grant of leave to appeal. It can only mean
that petitioner has been turned away at the threshold without having been allowed to enter in the
appellate jurisdiction of the Court. How it can have effect of res judicata is difficult to
understand, hence the review petition should be allowed since there is no bar of res juidicta.

 The Apex Court in Kunhayammed a. State of Kerala5 2001. has dwelt extensively upon
the aspect as to when a decision of the Court in a SLP would be binding and when not.
The Supreme Court observed that there are two distinct stages
(a) Granting of special leave to appeal and
(b) Hearing the appeal. If the SLP is dismissed at the stage of special leave without a
speaking or reasoned order, there is no res judicata, no merger of the lower order and the
petitioner retains the statutory right if available of seeking relief in review jurisdiction of
the High Court. If the SLP is dismissed at the first stage by speaking a reasoned order,
there is still no-merger but rule of judicial discipline and declaration of law under Article
141 of the Constitution will apply. The order of Supreme Court would mean that it has
declared the law and in that light the case was considered not fit for grant of leave. Once
leave is granted but SLP converted into appeal is dismissed with or without reasons,
merger results and law is declared. It is no longer permissible to move the High Court by

5
2001 (12911 (S.C.) ) E.L.T.
 review and no Court, Tribunal or Authority can express any opinion contrary to the view
taken by Supreme Court. Order appealed against can be reversed, modified or affirmed
by the Supreme Court in exercise of appellate jurisdiction at the second stage only and
not at the discretionary first stage of special leave under Article 136 of the Constitution of
India.

 Article 137 of the Constitution of India, which reads as under, provides for review of
judgments or orders by the Supreme Court:

"subject to the provisions of any law made by Parliament or any rules made under Article
145, the Supreme Court shall have power to review any judgment pronounced or order
made by it.'

 Part VIII, Order XL of the Supreme Court Rules, 1966 states that the Supreme Court may
review its judgment in a civil proceeding on the ground mentioned in Order XLVII, Rule
I of the Civil procedure Code i.e. the discovery of new and important matter or evidence
which, after the exercise of due diligence was not within the knowledge or could not be
produced at the time when the decree was passed or order made, or on account of some
mistake or error apparent on the face of the record or for any other sufficient reason. In a
criminal proceeding review petition can only be filed when there is an error apparent on
the face of the record. The application for review shall be filed witin thirty days from the
date of the judgment or order sought to be reviewed. The Application shall set out clearly
the grounds of review.

 The Supreme Court in Kamlesh Verma vs. Mayawati & Ors.6 (Review Petition No.
453/2012 in Writ petition (CRL) 135/2008) vide order dated 08.08.2013 has laid down
the following principles: "(A) when the Review will be maintainable

(i) Discovery of new and important matter or evidence which, after the exercise of due diligence,
was not within knowledge of the petitioner or could not be produced by him;

6
(Review Petition No. 453/2012 in Writ petition (CRL) 135/2008)
(ii) Mistake or error apparent on the face of the record;

(iii) Any other sufficient reason

The words "any other sufficient reason" has been interpreted in Chajju Ram vs. Neki 7 and,
approved by the Supreme Court in Moran Mar Basselios Catholicos vs. Most Rev. Mar poulose
Athanasius & Ors.8, to mean "a reason sufficient on grounds at least analogous to those specified
in the rule"

The same principles have been reiterated in UOI vs. Sandur Manganese & Iron Ores Ltd. &
Ors.,9

"(B) When the review will not be maintainable

(i) A repetition of old and overruled argument is not enough to re-open concluded adjudications

(ii) Minor mistakes of inconsequential import;

(iii) Review proceedings cannot be equated with the original hearing of the case;

(iv) Review is not maintainable unless the material error, manifest on the face of the order,
undermines its soundness or results in miscarriage of justice;

(v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and
corrected but lies only for patent error.

(vi) The mere possibility of two views on the subject cannot be a ground for review.

7
AIR 1922 PC 112
8
. (1955) 1 SCR 520
9
JT 2013 (8) SC 275.
(vii) The error apparent on the face of the record should not be an error which has to be fished
out and searched

(viii) The appreciation of evidence on record is fully within the domain of the appellate court it
cannot be permitted to be advanced in the review petition.

(ix) Review is not maintainable when the same relief sought at the time of arguing the main
matter has been negatived.

The field formations are, therefore, requested to keep in mind the above, while interpreting the
Supreme Court's dismissal of SLP 'in limine'. If the SLP has been dismissed 'in limine’ there
cannot be any ground for filing a review petition. It is requested that above instructions may be
brought to the knowledge of all formations within your jurisdiction.

2. Whether exhaustation of alternate remedies or efficiaous remedy in lower courts is

necessary before approaching to the supreme court?

Court insists that appellant has to pursue and exhaust the alternative remedies byway of appeal or
revision provided by the relevant law due to the heavy burden it experienced. But this is no bar
to grant leave. There was a practice of moving the Court straightaway from orders of Income
Tax Appellate Tribunal without resorting to the statutorily provided reference to the concerned
High Court.10

The Court in Ballahdas v. Bihar11 held that the Rule of exhaustion remedies was not rigid as it
was self-imposed restriction. The Court might relax it if there were special circumstances such as

10
C.I.T. v. K.W. Trust, AIR 1967 SC 844, Ballabhadas v. Bihar, AIR 1966 SC 814;
Indian Aluminium Co. v. C.I. T., AIR 1962 SC 1619; Bombay v. Ratilal Vadilal, AIR 1961 SC 1106
11
AIR1 966 SC 814
breach of the principle of natural justice or jurisdictional errors. In this case, the appellant having
reached the High Court by way of reference from the Income Tax Appellate Tribunal and getting
an adverse verdict sought to appeal to the Supreme Court from the tribunal’s order and not from
the High Court decision. This was because he wished to raise new questions not referred to the
High Court. The Court refused leave because it would result in a conflict of decision between
Supreme Court and High Court.

In Mahadayal Premachandra v. C.T.O.12 the Supreme Court heard an appeal from C.T.O.’s
order because the assessment had been made behind the back of the assessee and there was
breach of natural justice. The appellant in the instant case without exhausting the alternative
remedies approached the Court. The facts show that the assessing officer had not exercised his
own judgment in the matter of assessment and had not given any opportunity to counter the
point. In another case, the Court heard an appeal directly from the appellate tribunal as the
assessee had lost his remedy of reference to the High Court owing to a delay not attributable to
him.13

In Lakshmi Rattan Engg. Works v. Asst. Commissioner14 the Court granted special leave from the
order of the Assistant Sales Tax Commissioner without the exhaustion of alternate remedy. The
facts show that the High Court had already given a ruling which was adverse to the assessee in
an earlier case. 95 AIR1 966 SC 814 .
96 AIR 1958 SC 667.
97 Baldeosingh v. C.I.T., AIR 1961 SC 736; C.I.T. v. National Finance, AIR 1963 SC 835.
98 AIR 1968 SC 488.
99 AIR 1986 SC 2146.

All these cases reveal that it is not mandatory for an appellant under article 136 to exhaust even
the remedy under article 226. Since the High Court’s jurisdiction is discretionary and its scope is
rather limited, an appeal under article 136 cannot be thrown out on the ground that the appellant

12
AIR 1958 SC 667.
13
Baldeosingh v. C.I.T., AIR 1961 SC 736; C.I.T. v. National Finance, AIR 1963 SC 835.
14
AIR 1968 SC 488.
had not exhausted the constitutional remedy, hence the review petition should be accepted by
this honourable court though the case is pending before the “Income Tax Appeallate Tribunal”
Moreover, in an appeal under article 136 the Court may go into questions of fact as well
as law.