Bombay High Court
BAGADIYA BROTHERS PVT. LTD., THR. ITS AUT. VICE PRESIDENT PRASHANT SHANDILYAversusMORMUGAO PORT AUTHORITY (FORMERLY KNOWN AS MORMUGAO PORT TRUST) AND ANR
- Disposal
- Disposed of
Holding
The High Court lacks jurisdiction to entertain the review petition after the Supreme Court has granted leave to appeal, and therefore the review is dismissed.
Summary
The High Court of Bombay at Goa was approached by Bagadiya Brothers Pvt. Ltd. seeking a review of its earlier judgment in Commercial Appeal No. 1 of 2021. The respondents argued that both parties had filed Special Leave Petitions (SLPs) before the Supreme Court, and leave to appeal was granted on 3 February 2026. Relying on the Supreme Court’s decision in Khoday Distilleries Ltd. & Others v. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd (2019) 4 SCC 376, the Court examined whether it retained jurisdiction to entertain a review when the Supreme Court has already granted leave to appeal. The Court held that, under sub‑rule (1) of Order 47 Rule 1 CPC and the doctrine of merger, the High Court loses jurisdiction to entertain a review once the Supreme Court’s appellate jurisdiction is invoked. Consequently, the review petition was dismissed for lack of jurisdiction.
Issues considered
- Whether the High Court has jurisdiction to entertain a review petition when the Supreme Court has granted leave to appeal the same order.
- Effect of the doctrine of merger and Order 47 Rule 1 CPC on the High Court’s jurisdiction in such circumstances.
Legislation cited
- Code of Civil Procedure, 1908 — s. Order 47 Rule 1 (sub‑rule (1))
Subjects
- review petition
- jurisdiction
- Supreme Court leave to appeal
- doctrine of merger
- Order 47 CPC
- civil procedure
- commercial appeal
Judgment
2026:BHC-GOA:1725-DB Bagadiya Brothers Pvt. Ltd.
Vs.
Mormugao Port Authority & Anr.
__________________________________________________
16 CAREV 5 of 2023
Esha
IN THE HIGH COURT OF BOMBAY AT GOA
CIVIL APPLICATION (REVIEW) NO. 5 OF 2023
IN
COMMERCIAL APPEAL NO. 1 OF 2021
BAGADIYA BROTHERS PVT. LTD. … APPLICANT
~ VERSUS ~
MORMUGAO PORT AUTHORITY
(FORMERLY KNOWN AS MORMUGAO … RESPONDENTS
PORT TRUST) AND ANOTHER
A PPEARANCES :
for the Applicant Senior Advocate Mr. S.G. Desai with Ms.
Shalaka Shelke and Ms. Riddhi Ajgaonkar
for Respondent No. 1 Mr. Yogesh V. Nadkarni with Mr. Kunal
Nadkarni
CORAM : VALMIKI MENEZES &
AMIT S. JAMSANDEKAR, JJ.
DATED : 24th AUGUST 2026
ORAL ORDER: (per Valmiki Menezes, J.)
1. A preliminary objection as to the maintainability of the present Civil
Review Application has been raised by Respondent No. 1.
Page 1 of 5
August 24, 2026
Bagadiya Brothers Pvt. Ltd.
Vs.
Mormugao Port Authority & Anr.
__________________________________________________
16 CAREV 5 of 2023
2. Respondent No. 1 contends that the judgment of this Court dated
25.01.2023 passed in Commercial Appeal No. 1 of 2021 has been
challenged by both parties i.e. the Review Petitioner herein has filed
SLP No. 21457-21458/2023 and Respondent No. 2 herein has filed
SLP No. 3383-3384/2023 before the Hon’ble Supreme Court. In both
these SLPs, leave has been granted by the Supreme Court to appeal on
03.02.2026. The order recording so, has been placed before us.
3. In Khoday Distilleries Limited & Others Vs. Sri Mahadeshwara
Sahakara Sakkare Karkhane Limited, (2019) 4 SCC 376 and more
particularly in paragraph 26 thereof, the Hon’ble Supreme Court while
considering the question whether this Court would have jurisdiction to
entertain a Review Petition against an order in respect of which the
SLP before the Supreme Court has been granted leave to appeal. The
observations on this count are quoted below as follows:-
26.1. The conclusions rendered by the three-Judge Bench of this
Court in Kunhayammed and summed up in paragraph 44 are
affirmed and reiterated.
Page 2 of 5
August 24, 2026
Bagadiya Brothers Pvt. Ltd.
Vs.
Mormugao Port Authority & Anr.
__________________________________________________
16 CAREV 5 of 2023
26.2. We reiterate the conclusions relevant for these cases as
under:
“(iv) An order refusing special leave to appeal may
be a non-speaking order or a speaking one. In
either case it does not attract the doctrine of merger.
An order refusing special leave to appeal does not
stand substituted in place of the order under
challenge. All that it means is that the Court was
not inclined to exercise its discretion so as to allow
the appeal being filed.
(v) If the order refusing leave to appeal is a
speaking order, i.e. gives reasons for refusing the
grant of leave, then the order has two implications.
Firstly, the statement of law contained in the order
is a declaration of law by the Supreme Court within
the meaning of Article 141 of the Constitution.
Secondly, other than the declaration of law,
whatever is stated in the order are the findings
recorded by the Supreme Court which would bind
the parties thereto and also the court, tribunal or
authority in any proceedings subsequent thereto by
way of judicial discipline, the Supreme Court being
the Apex Court of the country. But, this does not
amount to saying that the order of the court,
tribunal or authority below has stood merged in the
order of the Supreme Court rejecting the special
leave petition or that the order of the Supreme
Court is the only order binding as res judicata in
subsequent proceedings between the parties.
(vi) Once leave to appeal has been granted and
appellate jurisdiction of Supreme Court has been
invoked the order passed in appeal would attract
the doctrine of merger; the order may be of reversal,
modification or merely affirmation.
Page 3 of 5
August 24, 2026
Bagadiya Brothers Pvt. Ltd.
Vs.
Mormugao Port Authority & Anr.
__________________________________________________
16 CAREV 5 of 2023
(vii) On an appeal having been preferred or a
petition seeking leave to appeal having been
converted into an appeal before the Supreme Court
the jurisdiction of the High Court to entertain a
review petition is lost thereafter as provided by sub-
rule (1) of Order 47 Rule 1 CPC.”
26.3. Once we hold that law laid down in Kunhayammed is to be
followed, it will not make any difference whether the review petition
was filed before the filing of special leave petition or was filed after
the dismissal of special leave petition. Such a situation is covered in
para 37 of Kunhayammed case.
4. Considering what is held in Khoday Distilleries Limited (supra),
which in turn refers to Kunhayammed Vs. State of Kerala, (2000) 6
SCC 359 and having regard to the fact that, in the present case, leave
to appeal has been granted by the Hon’ble Supreme Court at the
instance of the Review Petitioner, this Court would have no
jurisdiction to entertain the present Review Petition in view of the
provisions of sub-rule (1) of Order 47 Rule 1 of CPC.
5. Consequently, the present Review Petition is rejected solely on the
ground that this Court lacks jurisdiction to entertain the same, in view
of the law laid down in the aforesaid judgments.
Page 4 of 5
August 24, 2026
Bagadiya Brothers Pvt. Ltd.
Vs.
Mormugao Port Authority & Anr.
__________________________________________________
16 CAREV 5 of 2023
6. The Review Petition stands disposed of.
[ AMIT S. JAMSANDEKAR, J. ] [ VALMIKI MENEZES, J. ]
Page 5 of 5
Signed by: VAIGANKAR ESHA August 24, 2026
SAINATH
Designation: Personal Assistant
Date: 27/08/2026 14:14:21
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