Holding

A non‑speaking order dismissing a Special Leave Petition does not cause the challenged order to merge, and therefore the High Court's order remains subject to review under the statutory provision.

Summary

The Kerala Forest Tribunal held that a 1,020‑acre tract of private forest did not vest in the Government. The State of Kerala appealed to the High Court, which dismissed the appeal on 17‑Dec‑1982. No statutory remedy of appeal, revision or review was then available, so the State filed a Special Leave Petition (SLP) under Article 136 of the Constitution, which the Supreme Court dismissed on 18‑July‑1983 by a non‑speaking order. After the Kerala Private Forests (Vesting and Assignment) Act was amended in 1986 to permit the Government to seek review of High Court orders, the State filed a review petition in the Kerala High Court, which the High Court allowed to proceed. The petitioners challenged the maintainability of that review, arguing that the High Court order had merged into the Supreme Court order and could no longer be reviewed. The Supreme Court held that a non‑speaking dismissal of an SLP does not invoke the doctrine of merger or create a binding declaration under Article 141, so the High Court order remains reviewable. Consequently, the appeal was dismissed and the High Court’s jurisdiction to entertain the review was affirmed.

Issues considered

The effect of a non‑speaking order dismissing a Special Leave Petition on the existence of the impugned order.
Whether the doctrine of merger applies when an SLP is dismissed without reasons.
Whether a High Court can entertain a review of its own order after the Supreme Court dismisses the SLP.
The scope and two‑stage nature of jurisdiction under Article 136 of the Constitution.
The statutory right of review conferred by Section 8C(2) of the Kerala Private Forests (Vesting and Assignment) Act, 1971.

Legislation cited

Code of Civil Procedure, 1908s. Order 47 Rule 1
Kerala Private Forests (Vesting and Assignment) Act, 1971s. 8, s. 8C

Subjects

doctrine of mergerspecial leave petitionArticle 136review jurisdictionnon‑speaking orderKerala Private Forests Actappellate jurisdictionArticle 141CPC Order 47

Judgment

A KUNHA YAMMED AND ORS.
v.
ST ATE OF KERALA AND ANR.
'I

JULY 19, 2000

B [K.T. THOMAS, D.P. MOHAPATRA AND R.C. LAHOTI, JJ.]

Constitution of India, 1950: Articles 136 and 141.

Special Leave Petition-Dismissal-Thereafter Review Petition filed in t
c High Court-Permissibility of
Special Leave Petition-Power of Supreme Court-Nature and scope
ofjurisdiction of Supreme Court-Pendency of Special leave Petition-Grant
of Special Leave-Effect of

D Kera/a Forest Tribunal-Order passed by-Appeal Preferred against
order-Dismissal by High Court-No statutory remedy of appeal, Revision or
review available against said order-Special Leave Petition filed in Supreme
Court against said order-Dismissal of Special Leave petition on merits-
Thereafter Review Petition filed in the High Court-Held maintainable.
E Code of Civil Procedure, 1908:

Order 47-Rule I-Expression 'no appeal has been preferred' Scope
of

Kera/a Private Forests (Vesting and Assignment) Act. 1971: Section
F 8-C (as inserted by Amendment Act No. 36 of 1986)-Scope of

Doctrine of Merger-Nature and scope of-Applicability of the
Doctrine-Held it is not a Doctrine of Unlimited Application-Its applicability
depends on the nature <?(Jurisdiction exercised by the superior forum and the
G subject matter of challenge.

Practice and procedure-Appeal-Raising fresh plea-Permissibility
of

The Forest Tribunal constituted under the provisions of the Kerala
Private Forests (Vesting and Assignment) Act, 1971 passed an order dated .,__
H 538
KUN HAY AMMED v. STA TE 539
.
11.8.1982 holding that the land in question did not vest in the Government. A
Appeal preferred by the State of Keral:i before the High Court was dismissed
on 17.12.1982. As there was no statutory remedy of appeal, revision or review
provided against the order of the High Court the State filed a special leave
·1 petition before the Supreme Court. By its order dated 18.7.1983 Supreme
Court dismissed the petition on merits. By Amendment Act No. 36of1986
Section SC was inserted in the 1971 Act giving it a retrospective effect from B
19.11.1983. This Section empowered the Government to file appeal or
application for review in certain cases. In January, 1984 State of Kerala filed
an application before the Kerala High Court ~king review of the order dated
17.12.1982. On behalfofthe petitioners a preliminary objection was raised
as to the maintainability of the review petition. By its order dated 14.12.1995 C
the High Court rejected the preliminary objection and directed the review
petition to be posted for hearing on merits. Against the said order petitioners
sought for leave to appeal to this Court which was granted on 16.9.1996.

On behalf of the applicant it was contended that (i) the order of the High
Court dated 17.12.1982 having merged into the order of this Court dated D
18.7.1983, the order of the High Court had ceased to exist in the eye of law
and therefore an application seeking review of the order dated 17.12.1982
before the High Court is entirely misconceived; (ii) the order dated 18.7.1983
passed by this Court amounts to affirmation of the order dated 17.12.1982
passed by the High Court and therefore the High Court cannot entertain a E
prayer for review of its onler much less disturb the order in exercise of review
jurisdiction.

Dismissing the appeal, this Court

HELD : 1. No fault can be found with the approach of the High Court In F
the instant case the earlier order of the High Court was sought to be subjected
to exercise of appellate jurisdiction of Supreme Court by the State ofKerala
wherein it did not succeed. The prayer contained in the petition seeking leave
to appeal to this Court was found devoid of any merits and hence dismissed.
The order is a non-speaking and unreasoned order. All that can be spelled G
out is that the Court was not convinced of the need for exercising its appellate
jurisdiction. The order of the High Court dated 17.12.1982 did not merge in
the onlerdated 18.7.1983 passed by this Court. So it is available to be reviewed
by the High Court. Moreover such a right of review is now statutorily
conferred on the High Court by sub-Section (2) of Section SC of the Kerala
Act. [566-D-El H
540 SUPREME COURT REPORTS [2000) SUPP. I S.C.R.

A 2. Article 136 of the Constitution is a special jurisdiction conferred on
the Supreme Court which is sweeping in its nature. It is a residuary power
in the sense that it confers ad\llppellate jurisdiction on the Supreme Court
subject to the special leave being granted in such matters as may not be covered
by the preceding Articles. The exercise of jurisdiction conferred on this Court
B by Article 136 of the Constitution consists of two steps: (i) granting special
leave to appeal; and (ii) hearing the appeal. This distinction is clearly
demonstrated by the provisions of order XVI of the Supreme Court Rules
framed in exercise of the power conferred by Article 145 of the Constitution.
[549-F; 550-8(

C Thus, a petition seeking grant of special leave to appeal and the appeal
itself though both dealt with by Article 136 of Constitution, are two clearly
distinct stages. The legal position which emerges is as under :

(i) While hearing the petition for special leave to appeal, the Court is
called upon to see whether the petitioner should be granted such leave or not.
D While hearing such petition, the Court is not exercising its appellate
jurisdiction; it is merely exercising its discretionary jurisdiction to grant or
not to grant leave to appeal. The petitioner is still outside the gate of entry
though aspiring to enter the appellate arena of Supreme Court. Whether he
enters or not would depend on the fate of his petition for special leave;
(550-G-H)
E
(ii) If the petition seeking grant of leave to appeal is dismissed, it is an
expression of opinion by the Court that a case for invoking appellate
jurisdiction of the Court was not made out;

F (iii) If leave to appeal is granted the appellate jurisdiction of the Court
stands invoked; the gate for entry in appellate arena is opened The petitioner
is in and the respondent may also be called upon to face him, though in an
appropriate case, in spite of having granted leave to appeal, the court may
dismiss the appeal without noticing the respondent.

G (iv) In spite of a petition for special leave to appeal having been filed, the
judgment, decree or order against which leave to appeal has been sought for,
continues to be final. effective and binding as between the parties. Once leave
to appeal has been granted, the finality of the judgment, decree or order
appealed against is put in jeopardy though it continues to be binding and
effective between the parties unless it is a nullity or unless the Court may
H pass a specific order staying or suspending the operation or execution of the
KUNHA YAMMED v. STATE 541
judgment, decree or order under challenge. [551-A-DI A
Workmen of Cochin Port Trust v. Board of Trustees of the Cochin Port
Trust and Anr., [197813SCC119; Indian Oil Corporation Ltd v. State of
Bihar and Ors., AIR (1986) SC 1780; Mis. Rup Diamonds and Ors. v. Union
of India and Ors., AIR (1989) SC 674; Supreme Court Employees' Welfare
Association v. Union ofIndia and Anr., [198914 sec 187; Yogendra Narayan B
Chowdhury and Ors. v. Union of India and Ors., [19961 7 SCC I and The
Management of W. India Match Co. Ltd. v. Industrial Tribunal, AIR (1958)
Mad. 398, referred to.

Sree Narayana Dharmasanghom Trust v. Swami Prakasananda and
Others, (19971 6 SCC 78 and State of Maharashtra and Anr. v. Prabhakar C
Bhikaji Ingle, [1996) 3 SCC 463, explained and overruled.

Wilson v. Colchester Justices, [19851 2 All England Law Reports 97,
referred to.

3. An order dismissing a special leave petition, more so when it is by a D
non-speaking order, does not result in merger of the order impugned into
the order of the Supreme Court.

VM. Salgaocar& Bros. Pvt. Ltd v. Commissioner ofIncome Tax, (2000)
3 Scale 240, relied on. E
4. A petition for leave to appeal to this Court may be dismissed by non-
speaking order or by a speaking order. Whatever be the phraseology employed
in the order of dismissal, if it is a non-speaking order, i.e. it does not assign
reasons for dismissing the special leave petition, it would neither attract the
doctrine of merger so as to stand substituted in place of the order put in issue F
before it nor would it be a declaration of Jaw by the Supreme Court under
Article 141 of the Constitution for there is no law which has been declared.
If the order of dismissal be supported by reasons then also the doctrine of
merger would not be attracted because the jurisdiction exercised was not an
appellate jurisdiction but merely a discretionary jurisdiction refusing to grant G
leave to appeal Still the reasons stated by the Court would attract applicability
of Article 141 of the Constitution if there is a law declared by the Supreme
Court which obviously would be binding on all the courts and tribunals in
India and certainly the parties thereto. The Statement contained in the order
other than on points of law would be binding on the parties and the court or
tribunal, whose order was under challenge on the principle of judicial H
542 SUPREME COURT REPORTS [2000] SUPP. I S.C.R.

A discipline, this Court being the apex court of the country. No court or tribunal
or parties would have the liberty of taking or canvassing any view contrary to
the one expressed by this Court. 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. The declaration of law will be governed by Article 141 but
B still, the case not being one where leave was granted, the doctrine of merger
does not apply. The Court sometimes leaves the question of law open. Or it
sometimes briefly lays down the principle, may be, contrary to the one laid
down by the High Court and yet would dismiss the special leave petition. The
reasons given are intended for purposes of Article 141. This is so done because
in the event of merely dismissing the special leave petition, it is likely that
C an argument could be advanced in the High Court that the Supreme Court
has to be understood as not to have differed in law with the High Court.
[557-D-H; 558-A)

Penu Balakrishna Iyer and Ors. v. Ariya M. Ramaswami Iyer and Ors.,
AIR (1965) SC 165; Abba/ Mal/gal Partnership Firm and Anr. v. K
D Santhakumaran & Ors., [1998) 7 SCC 386 and Supreme Court Employees
Welfare Association v. Union ofIndia and Another, (1989) 4 SCC 187, referred
to.

Gopalbandhu Biswal v. Krishna Chandra Mohanty & Ors., (1998) 4
sec 447, explained and distinguished.
E
Junior Telecom Officers Forum and Ors. v. Union of India & Ors., [1993)
Supp. 4 SCC 693, distinguished.

5. Mere pendency of an application seeking leave to appeal does not put
in jeopardy the finality of the decree or order sought to be subjected to exercise
F of appellate jurisdiction by the Supreme Court. It is only if the application is
allowed and leave to appeal granted then the finality of the decree or order
under challenge is jeopardised as the pendency of appeal reopens the issues
decided and this Court is then scrutinising the correctness of the decision in
exercise of its appellate jurisdiction. (558-G)
G
Shankar Ramchandra Abhyankar v. Krishnaji Dattatraya Bapat, AIR
(1970) SC 1 and Sushi/ Kumar Sen v. State of Bihar, AIR (1975) SC 1185,
referred to.

6. It may be that in spite of having granted leave to appeal, the Court
H may dismiss the appeal on such grounds as may have provided foundation for
KUN HAY AMMED v. ST ATE 543
refusing the grant at the earlier stage. But that will be a dismissal of appeal. A
The decision of this Court would result in superseding the decision under
appeal attracting doctrine of merger. But if the same reasons had prevailed
with this Court for refusing leave to appeal, the order would not have been an
appellate order but only an order refusing to grant leave to appeal.
[559-H; 560-A) B
7. The doctrine of merger is neither a doctrine of constitutional law
nor a doctrine statutorily recognised. It is a common law doctrine founded on
principles of propriety in the hierarchy of justice delivery system. [547-C)

8. The logic underlying the doctrine of merger is that there cannot be C
more than one decree or operative orders governing the same subject-matter
at a given point of time. When a decree or order passed by inferior court,
tribunal or authority was subjected to a remedy available under the law before
a superior forum then, though the decree or order under challenge continues
to be effective and binding, nevertheless its finality is put in jeopardy. Once
the superior court has disposed of the list before it either way whether the D
decree or order under appeal is set aside or modified or simply confirmed, it
is the decree or order of the superior court, tribunal or authority which Is
the final, binding and operative decree or order wherein merges the decree
or order passed by the court, tribunal or the authority below. However, the
doctrine is not of universal or unlimited application. The nature of jurisdiction E
exercised by the superior forum and the content or subject-matter of challenge
laid or which could have been laid shall have to be kept in view. [549-B-DI

Commissioner ofIncome-Tax, Bombay v. Amritlal Bhogi/al and Co., AIR
(1958) SC 868; State of Madras v. Madurai Mills Co. Ltd., AIR (1967) SC
681; Mis. Gojer Brothers Pvt. Ltd. v. Shri Ratanla/, AIR (1974) SC 1380; S.S F
Rathor v. State of Madhya Pradsh, AIR (1990) SC 10; U.J.S. Chopra v. State
ofBombay, AIR (1955) SC 633 and Thungabhadra Industries Ltd v. The Govt.
ofA.P., AIR (1964) SC 1372, referred to.

9. The doctrine of merger and the right of review are concepts which
are closely inter-linked. If the judgment of the High Court has come up to G
this Court by way of special leave, and special leave is granted and the appeal
is disposed of with or without reasons, by affirmance or otherwise, the
judgment of the High Court merges with that of this court. In that event, it is
not permissible to move the High Court by review because the judgment of
the High Court has merged with the judgment of this Court. But where the
special leave petition is dismissed - there being no merger, the aggrieved party H
544 SUPREME COURT REPORTS (2000] SUPP. I S.C.R.

A is not deprived of any statutory right of review, if it was available and he can
pursue it It may be that the review court may interfere, or it may not interfere
depending upon the law and principles applicable to interference in the review.
(560-C-DI

10. Where the review is filed first and the delay in the SLP is condoned
B and the special leave petition is ultimately granted and the appeal is pending
in this Court the petition then, under Order 47 Rule 1 CPC is that still the
review can be disposed of by the High Court If the review of a decree is granted
before the disposal of the appeal against the decree, the decree appealed against
will cease to exist and the appeal would be rendered incompetent. This is
C because the decree reviewed gets merged in the decree passed on review and
the appeal to the superior court preferred against the earlier decree - the
one before review - becomes infructuous. (562-B-q

11. Review can be filed even after SLP is dismissed is clear from the
language or Order 47 Rule l(a). Thus the words "no appeal has been preferred
D in Order 47 Rule l(a) would also mean a situation where special leave is not
granted. Till then there is no appeal in the eye of law before the superior
court Therefore, review can be preferred in the High Court before special
leave is granted, but not after it is granted. The reason is obvious. Once special
leave is granted the jurisdiction to consider the validity of the High Court's
order vests in the Supreme Court and the High Court cannot entertain a review
E thereafter, unless such a review application was preferred in the High Court
before special leave was granted. (562-D-EI

12. Where an appeal or revision is provided against an order passed by
a court, tribunal or any other authority before superior forum and such
F superior forum modifies, reverses or affirms the decision put in issue before
it, the decision by the subordinate forum merges in the decision by the
superior forum and it is the latter which subsists, remains operative and is
capable of enforcement in the eye of law. (564-Hl

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 12309of1996.
G From the Judgment and Order dated 14.12.95 of the Kerala High Court
in R.P. No. 14of1984.

T.L.V. Iyer, Ramesh Babu M.R. and T.G.N. Nair for the Appellants.

Ashok H. Desai, Attorney General, P. Krishnamoorthy, Ms. Beena Prakash
H and G. Prakash for the Respondents.
KUNHAY AMMED v. STATE [R.C. LAHOTI, J.) 545
The Judgment of the Court was delivered by A
R.C. LAHOTI, J. A question of frequent recurrence and of some
significance involving the legal implications and the impact of an order rejecting
a petition seeking grant of special leave to appeal under Article 136 of the
Constitution of India has arisen for decision in this appeal.
B
Facts in brief :

The Kerala Private Forests (Vesting and Assignment) Act, 1971 (Act 26
of 1971 ), hereinafter referred to as 'the Act' for short, was enacted by the
State of Kerala to provide for the vesting in the Government of private forests
in the State of Kerala and for the assignment thereof to agriculturists and C
agricultural labourers for cultivation. The Act and the assent of the President
on the Act were both published in Kerala Government Gazette (Extraordinary)
dated 23.8.1971. The Act was given a retrospective operation by declaring
that it shall be deemed to have come into force on the I 0th day of May, 1971.
We are not concerned with the details of several provisions contained in the
Act. For our purpose it would suffice to notice that the disputes - (i) whether D
any land is a private forest or not, or (ii) whether any private forest or portion
thereof is vested in the Government or not - may be entrusted for decision
under Section 8 to a Tribunal constituted under Section 7 of the Act popularly
known as Forest Tribunal. The Government or any person objecting to any
decision of the Tribunal may within a period of60 days from the date of that E
decision, appeal against such decision to the High Court under Section SA
of the Act.

There is a large family consisting of71 members which raised a dispute
before the Forest Tribunal, Kozhikode which was registered as OA 5 of 1981.
Land to the tune of I 020 acres was the subject-matter of dispute. By order p
dated 11.8.1982 the Tribunal held that the land did not vest in the Government.
An appeal ·Nas preferred by the State of Kerala before the High Court of
Kerala which was dismissed on 17.12.1982 by an elaborate order. There was
no statutory remedy of appeal, revision or review provided against the order
of the High Court. The State of Kerala filed a petition for special leave to
appeal under Article 136 of the Constitution registered as SLP(C) No.8098 of G
1983. The petition was dismissed by an order dated 18.7.83. The order reads
as under :

"Special leave petition is dismissed on merits."

By Amendment Act No.36 of 1986 published in Kerala Government H
1·
546 SUPREME COURT REPORTS [2000] SUPP. I S.C.R.

A Gazette (Extraordinary) dated 1.12.1986 Section 8C amongst others was enacted
into the body of the Act giving it a retrospective effect from 19 .11.1983. Sub-
section (2) of Section 8C, with which we are concerned, reads as under:

BC. Power of Government to file appeal or application for review
in certain cases.
B
(I) xxxx xx xx xxxx xx xx

xx xx xx xx xxxx xx xx

(2) Notwithstanding anything containing in this Act, or in the Limitation
Act, 1963 (Central Act 36 of 1963), or in any other law for the time
c being in force, or in any judgment, decree or order of any court or
other authority, the Government, if they are satisfied that any order
of the High Court in an appeal under Section 8A (including an order
against which an appeal to the Supreme Court has not been admitted
by that Court) has been passed on the basis of concessions made
D before the High Court without the authority in writing of the
government or due to the failure to produce relevant data or other
particulars before the High Court or that an appeal against such order
could not be filed before the Supreme Court by reason of the delay
in applying for and obtaining a certified copy of such order, may,
during the period beginning with the commencement of the Kerala
E Private Forests (Vesting and Assignment) Amendment Act, 1986 and
ending on the 31st day of March, 1987, make an application to the
High Court for review of such order.

xxx xxx xxx xxx
[emphasis supplied]
F
In January I984 the State of Kerala filed an application for review
registered as RP No.14of1984 before the High Court ofKerala seeking review
of the order dated 17.12.1982 passed by the High Court. On behalf of the
respondents before the High Court a preliminary objection was raised to the
G maintainability of the review petition which has been heard and disposed of
by the order dated 14th December, 1995 which is put in issue in this appeal.
The High Court has overruled the preliminary objection as to the maintainability
of the petition and directed the review petition to be posted for hearing on
merits. Feeling aggrieved the petitioners have sought for leave to appeal to
this Court which has been granted on 16.9.1996. On 14.3.2000 when this matter
H came up for hearing before a bench of two Judges they directed the matter
.,
KUNHA YAMMED v. STATE [R.C. LAHOTI, J.] 547
to be referred to a bench of three Judges having regard to the importance of A
the question involved.

Shri T.L.V. Iyer, the learned senior counsel for the appellant has raised
two contentions: Firstly, that the order of the High Court dated 17.12.1982
having merged into the order of this court dated 18.7.1983, the order of the
High Court had ceased to exist in the eye of law and therefore an application B
seeking review of the order dated 17 .12.1982 passed by the High Court and
before the High Court is entirely misconceived; Secondly, the order dated
18.7.1983 passed by this Court amounts to affirmation of the order dated
17.12.1982 passed by the High Court and therefore the High Court cannot
entertain a prayer for review of its order much less disturb the order in C
exercise of review jurisdiction.

The doctrine of merger :

The doctrine of merger is neither a doctrine of constitutional law nor a
doctrine statutorily recognised. It is a common law doctrine founded on D
principles of propriety in the hierarchy of justice delivery system. On more
occasions than one this Court had an opportunity of dealing with the doctrine
of merger. It would be advisable to trace and set out the judicial opinion of
this Court as it has progressed through the times.

In Commissioner of Income-tax, Bombay v. Mis Amrit/a/ Bhogi/al and E
Co. AIR (1958) SC 868 this Court held:
'·
"There can be no doubt that, if an appeal is provided against an order
passed by a tribunal, the decision of the appellate authority is the
operative decision in law. If the appellate authority modifies or reverses
the decision of the tribunal, it is obvious that it is the appellate F
decision that is effective and can be enforced. In law the position
would be just the same even if the appellate decision merely confirms
the decision of the tribunal. As a result ot the confirmation or affirmance
of the decision of the tribunal by the appellate authority the original
decision merges in the appellate decision and it is the appellate decision G
alone which subsists and is operative and capable of
enforcement................................................."

However, in the facts and circumstances of the case this Court refused
to apply the doctrine of merger. There, an order of registration of a firm was
made by the Income-tax Officer. The firm was then assessed as a registered H
548 SUPREME COURT REPORTS [2000] SUPP. I S.C.R.

A firm. The order of assessment of the assessee was subjected to appeal before
the Appellate Commissioner. Later on the order passed by the Income-tax
Officer in respect of registration of the firm was sought to be revised by the
Commissioner of Income-tax. Question arose whether the Commissioner of .
Income-tax could have exercised the power of revision. This Court held that
though the order of assessment made by the ITO was appealed against before
B the Appellate Commissioner, the order of registration was not appeallable at
all and therefore the order granting registration of the firm cannot be said to
have been merged in the appellate order of the Appellate Commissioner.
While doing so this Court analysed several provisions of the lncome-taic Act
so as to determine the nature and scope of relevant appellate and revisional
C powers and held if the subject matter of the two proceedings is not identical,
there can be no merger. In State of Madras v. Madurai Mills Co.Ltd - AIR
(1967) SC 681 this Court held that the doctrine of merger is not a doctrine of
rigid and universal application and it cannot be said that wherever there are
two orders, one by the inferior authority and the other by a superior authority,
passed in an appeal or revision there is a fusion or merger of two orders
D irrespective of the subject-matter of the appellate or revisional order and the
scope of the appeal or revision contemplated by the particular statute. The
application of the doctrine depends on the nature of the appellate or revisional
order in each case and the scope of the statutory provisions conferring the
appellate or revisional jurisdiction.
E In Mis Gojer Brothers Pvt. Ltd. v. Shri Ratan/a/, AIR (1974) SC 1380
this Court made it clear that so far as merger is concerned on principle there
is no distinction between an order of reversal or modification or an order of ..
confirmation passed by the appellate authority; in all the three cases the order
passed by the lower authority shall merge in the order passed by the appellate
F authority whatsoever be its decision - whether of reversal or modification or
only confirmation. Their Lordships referred to an earlier decision of this court
in U.J.S. Chopra Vs. State of Bombay - AIR 1955 SC 633 wherein it was held.

"A judgment pronounced by a High Court in exercise of its appellate
or revisional jurisdiction after issue of a notice and a full hearing in
G the presence of both the parties would replace the judgment of the
lower court, thus constituting the judgment of the High Court the only
final judgment to be executed in accordance with law by the courts
below."

In S.S. Rathor v. State of Madhya Pradesh - AIR ( 1990) - SC I 0 a larger
H Bench of this Court (Seven-Judges) having reviewed the available decisions
KUNHAYAMMED v. STATE [R.C. LAHOTI, J.) 549
of the Supreme Court on the doctrine of merger, held that the distinction made A
between courts and tribunals as regards the applicability of doctrine of merger
is without any legal justification; where a statutory remedy was provided
against an adverse order in a service dispute and that remedy was availed,
the limitation for filing a suit challenging the adverse order would commence
not from the date of the original adverse order but on the date when the order B
of the higher authority disposing of the statutory remedy was passed. Support
was taken from doctrine of merger by referring to C.l.T. v. Amritlal Bhogilal
& Co. (supra) and several other decisions of this Court.

The logic underlying the doctrine of merger is that there cannot be more
than one decree or operative orders governing the same subject-matter at a C
given point of time. When a decree or order passed by inferior court, tribunal
or authority was subjected to a remedy available under the law before a
superior forum then, though the decree or order under challenge continues
to be effective and binding, nevertheless its finality is put in jeopardy. Once
the superior court has disposed of the !is before it either way - whether the
decree or order under appeal is set aside or modified or simply confirmed, it D
is the decree or order of the superior court, tribunal or authority which is the
final, binding and operative decree or order wherein merges the decree or
order passed by the court, tribunal or the authority below. However, the
doctrine is not of universal or unlimited application. The nature of jurisdiction
exercised by the superior forum and the content or subject-matter of challenge E
laid or which could have been laid shall have to be kept in view.

Stage of SLP and post-leave stage

The appellate jurisdiction exercised by the Supreme Court is conferred
by Articles 132 to 136 of the Constitution. Articles 132, 133 and 134 provide F
when an appeal thereunder would lie and when not. Article 136 of the
Constitution is a special jurisdiction conferred on the Supreme Court which
is sweeping in its nature. It is a residuary power in the sense that it confers
an appellate jurisdiction on the Supreme Court subject to the special leave
being granted in such matters as may not be covered by the preceding G
articles. It is an overriding provision conferring a special jurisdiction providing
for invoking of the appellate jurisdiction of Supreme Court not fettered by the
sweep of preceding articles. Article 136 opens with a non-obstante clause and
conveys a message that even in the field covered by the preceding articles,
jurisdiction conferred by Article 136 is available to be exercised in an appropriate
case. It is an untrammeled reservoir of power incapable of being confined to H
r
550 SUPREME COURT REPORTS (2000) SUPP. I S.C.R.

A definitional bounds; the discretion conferred on the Supreme Court being
subjected to only one limitation, that is, the wisdom and good sense or sense
of justice of the Judges. No right of appeal is conferred upon any party; only
a discretion is vested in Supreme Court to interfere by granting leave to an
applicant to enter in its appt!llate jurisdiction not open otherwise and as of
B right.

The exercise of jurisdiction conferred on this Court by Article 136 of the
Constitution consists of two steps : (i) granting special leave to appeal; and
(ii) hearing the appeal. This distinction is clearly demonstrated by the provisions
of Order XVI of the Supreme Court Rules framed in exercise of the power
C conferred by Article 145 of the Constitution. Under Rule 4, the petition
seeking special leave to appeal filed before the Supreme Court under Article
136 of the Constitution shall be in form No.28. No separate application for
interim relief need be filed, which can be incorporated in the petition itself.
If notice is ordered on the special leave petition, the petitioner should take
steps to serve the notice on the respondent. The petition shall be accompanied
D by a certified copy of the judgment or order app·ealed from and an affidavit
in support of the statement of facts contained in the petition. Under Rule I 0
the petition for grant of spec:ial leave shall be put up for hearing ex-parte
unless there be a caveat. The court if it thinks fit, may direct issue of notice
to the respondent and adjourn the hearing of the petition. Under Rule 13, the
E respondent to whom a notice in special leave petition is issued or who had
filed a caveat, shall be entitled to oppose the grant of leave or interim orders
without filing any written objections. He shall also be at liberty to file his
objections only by setting out the grounds in opposition to the questions of
law or grounds set out in the S.L.P.. On hearing the Court may refuse the leave
and dismiss the petition for s!'eking special leave to appeal either ex-parte or
F after issuing notice to the opposite party. Under Rule 11, on the grant of
special leave, the petition for special leave shall, subject to the payment of
additional court fee, if any, be treated as the petition of appeal and it shall
be registered and numbered as such. The appeal shall then be set down for
hearing in accordance with the procedure laid down thereafter. Thus, a petition
G seeking grant of special leave to appeal and the appeal itself, though both
dealt with by Article 136 of the Constitution, are two clearly distinct stages.
In our opinion, the legal position which emerges is as under :-

I. While hearing th1: petition for special leave to appeal, the Court
is called upon to see whether the petitioner should be granted
H such leave or not. While hearing such petition, the Court is not
KUNHAYAMMED v. STATE [R.C. LAHOTI, J.] 551
exercising its appellate jurisdiction; it is merely exercising its A
discretionary jurisdiction to grant or not to grant leave to appeal.
The petitioner is still outside the gate of entry though aspiring
to enter the appellate arena of Supreme Court. Whether he enters
or not would depend on the fate of his petition for special leave;
2. If the petition seeking grant of leave to appeal is dismissed, it is B
an expression of opinion by the Court that a case for invoking
appellate jurisdiction of the Court was not made out;

3. If leave to appeal is granted the appellate jurisdiction of the Court
stands invoked; the gate for entry in appellate arena is opened.
The petitioner is in and the respondent may also be called upon C
to face him, though in an appropriate case, in spite of having
granted leave to appeal, the court may dismiss the dppeal without
noticing the respondent.
4. In spite of a petition for special leave to appeal having been filed,
the judgment, decree or order against which leave to appeal has D
been sought for, continues to be final, effective and binding as
between the parties. Once leave to appeal has been granted, the
finality of the judgment, decree or order appealed against is put
in jeopardy though it continues to be binding and effective
between the parties unless it is a nullity or unless the Court may
pass a specific order staying or suspending the operation or E
execution of the judgment, decree or order under challenge.

Dismissal at stage of special leave - without reasons - no res judicata,
no merger

Having so analysed and defined the two stages of the jurisdiction F
conferred by Article 136, now we proceed to deal with a number of decisions
cited at the Bar during the course of hearing and dealing with the legal tenor
of an order of Supreme Court dismissing a special leave petition. In Workmen
of Cochin Port Trust v. Board of Trustees of the Cochin Port Trust and
Another, [1978] 3 sec 119, a Three-Judges Bench of this Court has held that G
dismissal of special leave petition by the Supreme Court by a non-speaking
order of dismissal where no reasons were given does not constitute res
judicata. All that can be said to have been decided by the Court is that it
was not a fit case where special leave should be granted. That may be due
to various reasons. During the course of the judgement, their Lordships have
observed that dismissal of a special leave petition under Article 136 against H
552 SUPREME COURT REPORTS (2000] SUPP. I S.C.R.

A the order of a Tribunal did not necessarily bar the entertainment of a writ
petition under Article 226 against the order of the Tribunal. The decision of
Madras High Court in The Management of W. India Match Co. Ltd v.
Industrial Tribunal, AIR ( 1958) Mad 398, 403 was cited before their Lordships.
The High Court had taken the view that the right to apply for leave to appeal
B to Supreme Court under Article I36, if it could be called a "right" at all, cannot
be equated to a right to appeal and that a High Court could not refuse to
entertain an application under Article 226 of the Constitution on the ground
that the aggrieved party could move Supreme Court under Article 136 of the
Constitution. Their Lordships observed that such a broad statement of law
is not quite accurate, although substantially it is correct.
c In Indian Oil Corporation Ltd v. State of Bihar and Ors., - AIR (1986)
SC 1780 there was a labour dispute adjudicated upon by an award made by
the Labour Court. The employer moved the Supreme Court by filing special
leave petition against the award which was dismissed by a non-speaking
order in the following terms :-
D
"The special leave petition is dismissed."

Thereafter the employer approached the High Court by preferring a
petition under Article 226 of the Constitution seeking quashing of the award
of the Labour Court. Cm behalf of the employee the principal contention
E raised was that in view of the order of the Supreme Court dismissing the
special leave petition preferred against the award of the Labour Court it was
not legally open to the employer to approach the High Court under Article
226 of the Constitution challenging the very same award. The plea prevailed
with the High Court forming an opinion that the doctrine of election was
F applicable and the employer having chosen the remedy of approaching a
superior court and having failed therein he could not thereafter resort to the
alternative remedy of approaching the High Court. This decision of the High
Court was put in issue before the Supreme Court. This Court held that the
view taken by the High Court was not right and that the High Court should
have gone into the merits of the writ petition. Referring to two earlier decisions
G of this Court, it was further held :
'"the effect of a non-speaking order of dismissal of a special leave
petition, without anything more indicating the grounds or reasons
of its dismissal must, by necessary implication, be taken to be that
this Court had decided only that it was not a fit case where special
H leave should be granted. This conclusion may have been reached by
KUNHAYAMMED v. STATE [R.C. LAHOTI, J.] 553
this Court due to several reasons. When the. order passed by this A
Court was not a speaking one, it is not correct to assume that this
Court had necessarily decided implicitly all the questions in relation
to the merits of the award, which was under challenge before this
Court in the special leave petition. A writ proceeding is a wholly
different and distinct proceeding. Questions which can be said to B
have been decided by this Court expressly, implicity or even
constructively while dismissing the special leave petition cannot, of
course, be re-opened in a subsequent writ proceeding before the High
Court. But neither on the principle of res judicata nor on any principle
of public poiicy analogous thereto, would the order of this Court
dismissing the special leave petition operate to bar the trial of identical C
issues in a separate proceeding namely, the writ proceeding before the
High Court merely on the basis of an uncertain assumption that the
issues must have been decided by this Court at least by implication.
It is not correct or safe to extend the principle of res judicata or
constructive res judicata to such an extent so as to found it on mere
guesswork." D
"It is not the policy of this Court to entertain special leave petitions
and grant leave under Article 136 of the Constitution save in those
cases where some substantial question of law of general or public
importance is involved or there is manifest injustice resulting from the
impugned order or judgment. The dismissal of a special leave petition E
in limine by a non-speaking order does not therefore justify any
inference that by necessary implication the contentions raised in the
special leave petition on the merits of the case have been rejected by
this Court. It may also be observed that having regard to the very
heavy backlog of work in this Court and the necessity to restrict the F
intake of fresh cases by strictly following the criteria aforementioned,
it has very often been the practice of this Court to grant special leave
in cases where the party cannot claim effective relief by approaching
the concerned High Court under Article 226 of the Constitution. In
such cases also the special leave petitions are quite often dismissed
only by passing a non-speaking order especially in view of the rulings G
already given by this Court in the two decisions afore-cited, that such
dismissal of the special leave petition will not preclude the party from
moving the High Court for seeking relief under Article 226 of the
Constitution. In such cases it would work extreme hardship and
injustice if the High Court were to close its doors to the petitioner and H
554 SUPREME COURT REPORTS [2000] SUPP. I S.C.R.

A refuse him relief under Article 226 of the Constitution on the sole
ground of dismissal of the special leave petition."
[emphasis supplied]
In our opinion what has been stated by this Court applies also to a case
where a special leave petition having been dismissed by a non-speaking order
B the applicant approaches the High Court by moving a petition for review. May
be that the Supreme Court was not inclined to exercise its discretionary
jurisdiction under Article 136 probably because it felt that it was open to the
applicant to move the High Court itself. As nothing has been said specifically
in the order dismissing the special leave petition one is left merely guessing.
We do not think it would be just to deprive the aggrieved person of the
C statutory right of seeking relief in review jurisdiction of the High Court if a
case for relief in that jurisdiction could be made out merely because a special
leave petition under Artic:le 136 of the Constitution had already stood rejected
by the Supreme Court by a non-speaking order.

D In Mis. Rup Diamonds and others v. Union of India and others, AIR
(I 989) SC 674, the law declared by this Court is that it cannot be said that
the mere rejection of sp1:cial leave petition could, by itself, be construed as
the imprimatur of this Court on the correctness of the decision sought to be
appealed against.

In Wilson v. Colchester Justices (1985) 2 All England Law Reports 97,
-
E
the House of Lords stated;

"There are a multitude of reasons why, in a particular case, leave to
appeal may be refused by an Appeal Committee. I shall not attempt
to embark on an exhaustive list for it would be impossible to do so.
F One reason may be that the particular case raises no question of
general principle but turns on its own facts. Another may be that the
facts of the particular case are not suitable as a foundation for
determining some question of general principle........................................... .
Conversely the fact that leave to appeal is given is not of itself an
indication that the judgments below are thought to be wrong. It may
G well be that leave is given in order that the relevant law may be
authoritatively restated in clearer terms."

In Supreme Court Employees' Welfare Association v. Union of India
and Another, (1989] 4 SCC 187 and Yogendra Narayan Chowdhury and
H Others v. Union of India and Others, [1996) 7 SCC I, both decisions by Two-
KUNHA YAMMED v. STATE (R.C. LAHOTI, J.] 555
Judges Benches, this Court has held that a non-speaking order of dismissal A
of a special leave petition cannot lead to assumption that it had necessarily
decided by implication the correctness of the decision under challenge.

We may refer to a recent decision, by Two-Judges Bench, of this Court
in V.M. Salgaocar & Bros. Pvt. Ltd. v. Commissioner of Income Tax, (2000)
3 Scale 240, holding that when a special leave petition is dismissed, this Court B
does not comment on the correctness or otherwise of the order from which
leave to appeal is sought. What the Court means is that it does not consider
it to be a fit case for exercising its jurisdiction under Article 136 of the
Constitution. That certainly could not be so when appeal is dismissed though
by a non-speaking order. Here the doctrine of merger applies. In that case the C
Supreme Court upholds the decision of the High Court or of the Tribunal.
This doctrine of merger does not apply in the case of dismissal of special
leave petition under Article 136. When appeal is dismissed, order of the High
Court is merged with that of the Supreme Court. We find ourselves in entire
agreement with the law so stated. We are clear in our mind that anorder
dismissing a special leave petition, more so when it is by a non-speaking D
order, does not result in merger of the order impugned into the order of the
Supreme Court.

A few decisions which apparently take a view to the contrary may now
be noticed. In Sree Narayana Dharmasanghom Trust v. Swami Prakasananda E
and Others, [I 997] 6 SCC 78, it was held that a revisional order of the High
Court against which a petition for special leave to appeal was dismissed in
limine could not have been reviewed by the High Court subsequent to
dismissal of S.L.P. by Supreme Court. This decision proceeds on the premises,
as stated in para 6 of the order, that "It is settled law that even the dismissal
of special leave petition in limine operates as a final order between the F
parties". In our opinion, the order is final in the sense that once a special
leave petition is dismissed, whether by a speaking or non-speaking order or
whether in limine or on contest, second special leave petition would not lie.
However, this statement cannot be stretched and applied to hold that such
an order attracts applicability of doctrine of merger and excludes the jurisdiction G
of the Court or authority passing the order to review the same.

In State of Maharashtra and Anr. v. Prabhakar Bhikaji Ingle, [1996]
3 SCC 463, the view taken by a Two-Judges Bench of this Court is that the
dismissal of special leave petition without a speaking order does not constitute
res judicata but the order dealt with in S.L.P., disposed of by a non-speaking H
556 SUPREME COURT REPORTS [2000) SUPP. I S.C.R.

A order cannot be subjected to review by the Tribunal. In our opinion the law
has been too broadly stated through the said observation. Learned Judges
have been guided by the: cor.~ideration of judicial discipline which, as we
would shortly deal with, is a principle of great relevance and may be attracted
in an appropriate case. But we find it difficult to subscribe to the view, as
B expressed in this decision, that dismissal of SLP without a speaking order
amounts to confirmation by Supreme Court of the order against which leave
was sought for and the order had stood merged in the order of Supreme
Court.

Dismissal of SLP by speaking or reasoned order - no merger but Rule of
C discipline and Article 141 attracted
The efficacy of an order disposing of a special leave petition under
Article 136 of the Constitution came up for the consideration of Constitution
Bench in Penu Balakrishna Iyer and Ors. v. Ariya M Ramaswami Iyer and
Ors. - AIR ( 1965) SC 165 in the context of revocation of a special leave once
D granted. This Court held that in a given case if the respondent brings to the
notice of the Supreme Court facts which would justify the Court in revoking
the leave earlier granted by it, the Supreme Court would in the interest of
justice not hesitate to adopt that course. It was therefore held that no general
rules could be laid down governing the exercise of wide powers conferred on
this Court under Article 136; whether the jurisdiction of this Court under
E Article 136 should ~e exercised or not and if used, on what terms and
conditions, is a matter depending on the facts of each case. If at the stage
when special leave is granted the respondent-caveator appears and resists
the grant of special leave: and the ground urged in support of resisting the
grant of special leave is rejected on merits resulting in grant of special leave
F then it would not be open to the respondent to raise the same point over
again at the time of the final hearing of the appeal. However, ifthe respondent/
· caveator does not appear, or having appeared, does not raise a point, or even
if he raised a point and the Court does not decide it before grant of special
leave, the same point can be raised at the time of final hearing. There would
be no technical bar of res judicata. The Constitution Bench thus makes it
G clear that the order disposing of a special leave petition has finality of a
limited nature extending only to the points expressly decided by it.

The underlying log,ic attaching efficacy to an order of the Supreme
Court dismissing S.L.P. after hearing counsel for the parties is discernible from
a recent Three-Judges Bench decision of this Court i11 Abbai Maligai
H Partnership Firm & Anr. v. K. Santhakumaran & Ors., [1998] 7 SCC 386. In
KUNHAYAMMED v. STATE [R.C. LAHOTI, J.] 557

the matter of eviction proceeding initiated before the Rent Controller, the A
order passed therein was subjected to appeal and then revision before the
High Court. Special leave petitions were preferred before the Supreme Court
where the respondents were present on caveat. Both the sides were heard
through the senior advocates representing them. The special leave petitions
were dismissed. The High Court thereafter entertai~d review petitions which B
were highly belated and having condoned the delay reversed the orders made
earlier in civil revision petitions. The orders in review were challenged by
filing appeals under leave granted on special leave petitions. This Court
observed that what was done by the learned single Judge was "subversive
of judicial discipline". The facts and circumstances of the case persuaded this
Court to form an opinion that the tenants were indulging in vexatious C
litigations, abusing the process of the Court by approaching the High Court
and the very entertainment of review petitions (after condoning a long delay
of 221 days) and then reversing the earlier orders was an affront to the order
of this Court. However the learned judges deciding the case have nowhere
in the course of their judgment relied on doctrine of merger for taking the view
they have done. A careful reading of this decision brings out the correct D
statement of law and fortifies us in taking the view as under.

A petition for leave to appeal to this Court may be dismissed by a non-
speaking order or by a speaking order. Whatever be the phraseology employed
in the order of dismissal, if it is a non-speaking order, i.e. it does not assign E
reasons for dismissing the special leave petition, it would neither attract the
doctrine of merger so as to stand substituted in place of the order put in issue
before it nor would it be a declaration of law by the Supreme Court under
Article 141 of the Constitution for there is no law which has been declared.
If the order of dismissal be supported by reasons then also the doctrine of
merger would not be attracted because the jurisdiction exercised was not an F
appellate jurisdiction. but merely a discretionary jurisdiction refusing to grant
leave to appeal. We have already dealt with this aspect earlier. Still the
reasons stated by the Court would attract applicability of Article 141 of the
Constitution if there is a law declared by the Supreme Court which obviously
would be binding on all the courts and tribunals in India and certainly the G
parties thereto. The statement contained in the order other than on points of
law would be binding on the parties and the court or tribunal, whose order
was under challenge on the principle of judicial discipline, this Court being
the apex court of the country. No court or tribunal or parties would have the
liberty of taking or canvassing any view contrary to the one expressed by this
Court. The order of Supreme Court would mean that it has declared the law H
558 SUPREME COURT REPORTS (2000] SUPP. I S.C.R.

A and in that light the case was considered not fit for grant of leave. The
declaration of law will be governed by Article 141 but still, the case not being
one where leave was granted, the doctrine of merger does not apply. The
Court sometimes leaves the question of law open. Or it sometimes briefly lays
down the principle, may be, contrary to the one laid down by the High Court
B and yet would dismiss t'lle special leave petition. The reasons given are
intended for purposes of Article 141. This is so done because in the event
of merely dismissing the special leave petition, it is likely that an argument
could be advanced in the High Court that the Supreme Court has to be
understood as not to have differed in law with the High Court.

c Incidentally we may notice two other decisions of this Court which
though not directly in point, the law laid down wherein would be of some
assistance to us. In Shankar Ramchandra Abhyankar v. Krishnaji Dattatraya
Bapat, AIR ( 1970) SC I, this Court vide para 7 has emphasized three pre
conditions attracting applicability of doctrine of merger. They are : i) the
jurisdiction exercised should be appellate or revisional jurisdiction; ii) the
D jurisdiction should have been exercised after issue of notice; and, iii) after a
full hearing in presence of both the parties. Then the appellate or revisional
order would replace the judgment of the lower court and constitute the only
final judgment. In Sushi/ Kumar Sen v. State ofBihar, AIR (I 97 5) SC 1185 the
doctrine of merger usually applicable to orders passed in exercise of appellate
E or revisional jurisdiction was held to be applicable also to orders passed in
exercise of review jurisdiction. This Court held that the effect of allowing an
application for review of a decree is to vacate a decree passed. The decree
that is subsequently passed on review whether it modifies, reverses or confirms
the decree originally passi:d, is a new decree superseding the original one.
The distinction is clear. Entertaining an application for review does not vacate
F the decree sought to be reviewed. It is only when the application for review
has been allowed that the decree under review is vacated. Thereafter the
matter is heard afresh and the decree passed therein, whatever be the nature
of the new decree, would be a decree superseding the earlier one. The
principle or logic flowing from the above-said decisions can usefully be
G utilised for resolving the issue at hand. Mere pendency of an application
seeking leave to appeal does not put in jeopardy the finality of the decree
or order sought to be subjected to exercise of appellate jurisdiction by the
Supreme Court. It is only if the application is allowed and leave to appeal
granted then the finality of the decree or order under challenge is jeopardised
as the pendency of appeal reopens the issues decided and this court is then
H scrutinising the correctness of the decision in exercise of its appellate
KUNHAY AMMED v. STATE [R.C. LAHOTI, J.) 559
jurisdiction. A

In Gopalbandhu Biswal v. Krishna Chandra Mohanty & Ors. [1998] 4
sec 447 there are observations vi de para 8 and at a few other places that
rejection of a special leave petition against the order of administrative tribunal
makes the order of the Tribunal final and binding and the party cannot
thereafter go back to the Tribunal to apply for review. However, paras 12 & B
13 of the judgment go to show that (i) the applications for review before the
Tribunal were not within the principle laid down under Order 47 Rule I of the
C.P.C., (ii) did not comply with the relevant rules contained in Central
Administrative Tribunal (Procedure) Rules, 1987, (iii) the review applicants
were not in the category of persons aggrieved, and (iv) the review petitions C
were filed beyond the period of limitation prescribed and the delay was not
explained. Thus the case proceeds on the peculiar facts of its own.

In Junior Telecom Officers Forum & Ors. v. Union of India & Ors.,
[1993] Supp. 4 SCC 693 also the view taken by a Two-Judges Bench of this
Court is that the dismissal of the SLP, though in limine, was "on merits" and D
the Court had declined to interfere with the impugned judgment of the High
Court except to a limited extent as noticed therein whereafter the Tribunal
could not have reopened the matter. The order passed earlier by the Supreme
Court is quoted in para 5 of the report. It clearly states that on SLP itself the
Court heard counsel of both the sides. While dismissing the special leave E
petition on merits, this Court had to some extent interfere with the order of
the High Court which was put in issue before the Supreme Court. It is clear
that the Supreme Court had exercised appellate jurisdiction vested in it under
Article I 36 of the Constitution and heard both the sides though the leave was
not formally granted and the special leave petition was not formally converted
into an appeal. Hence this decision rests on the special facts of that case. F
In Supreme Court Employees' Welfare Associations case (supra), this
Court held :-

"When Supreme Court gives reasons while dismissing a special leave
petition under Article 136 the decision becomes one which attracts
Article 141. But when no reason is given and the special leave petition G
is summarily dismissed, the Court does not lay down any law under
Article 141. The effect of a non-speaking order of dismissal of a
special leave petition without anything more indicating the grounds
or reasons of its dismissal must, by necessary implication, be taken
to be that the Supreme Court had decided only that it was not a fit H
560 SUPREME COURT REPORTS (2000) SUPP. I S.C.R.

A case where special leave petition should be granted."
[Emphasis supplied]

Leave granted - dismissal without reasons - merger results
It may be that in spite of having granted leave to appeal, the Court may
B dismiss the appeal on such grounds as may have provided foundation for
refusing the grant at the earlier stage. But that will be a dismissal of appeal.
The decision of this Cou1t would result in superseding the decision under
appeal attracting doctrine of merger. But if the same reasons had prevailed
with this Court for refusing leave to appeal, the order would not have been
an appellate order but only an order refusing to grant leave to appeal.
c
Doctrine of merger and review :

This question directly arises in the case before us.

The doctrine of merger and the right of review are concepts which are
D closely inter-linked. If th1: judgment of the High Court has come up to this
Court by way of a special leave, and special leave is granted and the appeal
is disposed of with or without reasons, by affirmance or otherwise, the
judgment of the High Court merges with that of this Court. In that event, it
is not permissible to move the High Court by review because the judgment
of the High Court has merged with the judgment of this Court. But where the
E special leave petition is dismissed - there being no merger, the aggrieved party
is not deprived of any sta1Utory right of review, if it was available and he can
pursue it. It may be that the review court may interfere, or it may not interfere
depending upon the law and principles applicable to interference in the
review. But the High Court, if it exercises a power of review or deals with a
F review application on merits -in a case where the High Court's order had not
merged with an order passed by this Court after grant of special leave - the
High Court could not, in law, be said to be wrong in exercising statutory
jurisdiction or power vested in it.

It will be useful to refer to Order47 Rule I of the Code of Civil Procedure
G 1908. It reads as follows :
R. I. Application for review of judgment.

(I) Any person considering himself aggrieved, -

(a) by a decree or order from which an appeal is allowed, but
H fro!11 which no appeal has been preferred,
KUNHA YAMMED v. STATE [R.C. LAHOTI, J.] 561

(b) by a decree or order from which no appeal is allowed, or A
(c) by a decision on reference from a Court of Small Causes, and
who, from the discovery of new and important matter or
evidence which, after the exercise of due diligence, was not
within his knowledge or could not be produced by him at the
time when the decree was passed or order made, or on B
account of some mistake or error apparent on the face of the
record, or for any other sufficient reason, desires to obtain
a review of the decree passed or order made against him,
may apply for a review of judgment to the Cou.rt which
passed the decree or made the order.
c
(2) A party who is not appealing from a decree or order may apply
for a review of judgment notwithstanding the pendency of an appeal
by some other party except where the ground of such appeal is
common to the applicant and the appellant, or when, being respondent,
he can present to the Appellate Court the case on which he applies D
for the review.

[Explanation. - The fact that the decision on a question of law on
which the judgment of the Court is based has been reversed or
modified by the subsequent decision of a superior Court in any other
case, shall not be a ground for the review of such judgment.] E
For our purpose it is clause (a) sub-rule(I) which is relevant. It
contemplates a situation where "an appeal is allowed" but "no appeal has
been preferred". The Rule came up for consideration of this Court in
Thungabhadra Industries Ltd v. The Govt. ofA.P., AIR (1964) SC 1372) in the
context of Article 136 of the Constitution of India. The applicant had filed an p
application for review of the order of the High Court refusing to grant a
certificate under Article 133 of the Constitution. The applicant also filed an
application for special leave to appeal in respect of the same matter under
Article 136 along with an application for condonation of delay. The Supreme
Court refused to condone the delay and rejected the application under Article
136. When the application for review came up for consideration before the G
High Court, it was dismissed on the ground that the special leave petition had
been dismissed by the Supreme Court. This Court held that the crucial date
for determining whether or not the terms of Order 4 7 Rule 1(I) CPC are
satisfied is the date when the application for review is filed. If on that date
no appeal has been filed it is competent for the Court hearing the petition for H
562 SUPREME COURT REPORTS [2000) SUPP. I S.C.R.

A review to dispose of the application on the merits notwithstanding the
pendency of the appeal, subject only to this, that if before the application for
review is finally decided the appeal itself has been disposed of, the jurisdiction
of the Court hearing the review petition would come to an end. On the date
when the application for review was filed the applicant had not filed an appeal
B to this Court and therefore there was no bar to the petition for review being
entertained.

Let us assume that the review is filed first and the delay in the SLP is
condoned and the special leave petition is ultimately granted and the appeal
is pending in this Court. The position then, under Order 4 7 Rule 1 CPC is that
C still the review can be disposed of by the High Court. If the review ofa decree
is granted before the disposal of the appeal against the decree, the decree
appealed against will cease to exist and the appeal would be rendered
incompetent. An appeal cannot be preferred against a decree after a review
against the decree has been granted. This is because the decree reviewed
gets merged in the decree passed on review and the appeal to the superior
D court preferred against the earlier decree - the one before review - becomes
infructuous.

The Review can be filed even after SLP is dismissed is clear from the
language of Order 47 Rule I (a). Thus the words "no appeal has been
preferred in Order 47 Rule l(a) would also mean a situation where special
E leave is not granted. Till then there is no appeal in the eye of law before the
superior court. Therefore, the review can be preferred in the High Court before
special leave is granted, but not after it is granted. The reason is obvious.
Once special leave is granted the jurisdiction to consider the validity of the
High Court's order vests in the Supreme Court and the High Court cannot
p entertain a review thereafter, unless such a review application was preferred
in the High Court before special leave was granted.

Conclusions

We have catalogued and dealt with all the available decisions of this
G Court brought to our notice on the point at issue. It is clear that as amongst
the several two-Judges Bench decisions there is a conflict of opinion and
needs to be set at rest. The source of power conferring binding efficacy on
decisions of this Court is not uniform in all such decisions. Reference is found
having been made to (i) A11icle 141 of the Constitution, (ii) doctrine of merger,
(iii) res-judicata, and (iv) Rule of discipline flowing from this Court being the
H highest court of the land.
KUNHA YAMMED v. STATE [R.C. LAHOT!, J.) 563

A petition seeking grant of special leave to appeal may be rejected for A
several reasons. For example, it may be rejected (i) as barred by time, or (ii)
being a defective presentation, (iii) the petitioner having no locus standi to
file the petition, (iv) the conduct of the petitioner disentitling him to any
indulgence by the Court, (iv) the question raised by the petitioner for
consideration by this Court being not fit for consideration or deserving being B
dealt with by the apex court of the country and so on. The expression often
employed by this Court while disposing of such petitions are - "heard and
dismissed", "dismissed'', "dismissed as barred by time" and so on. May be
that at the admission stage itself the opposite party appears on caveat or on
notice and offers contest to the maintainability of the petition. The Court may
apply its mind to the meritworthiness of the petitioner's prayer seeking leave C
to file an appeal and having fonned an opinion may say "dismissed on
merits". Such an order may be passed even ex-parte, that is, in the absence
of the opposite party. In any case, the dismissal would remain a dismissal by
a non-speaking order where no reasons have been assigned and no law has
been declared by the Supreme Court. The dismissal is not of the appeal but
of the special leave petition. Even if the merits have been gone into, they are D
the merits of the special leave petition only. In our opinion neither doctrine
of merger nor Article 141 of the Constitution is attracted to such an order.
Grounds entitling exercise of review jurisdiction conferred by Order 47 Rule
I of the C.P.C. or any other statutory provision or allowing review of an order
passed in exercise of writ or supervisory jurisdiction of the High Court (where E
also the principles underlying or emerging from Order 47 Rule 1 of the C.P.C.
act as guidelines) are not necessarily the same on which this court exercises
discretion to grant or not to grant special leave to appeal while disposing of
f a petition for the purpose. Mere rejection of special leave petition does not
take away the jurisdiction of the court, tribunal or forum whose order fonns
the subject matter of petition for special leave to review its own order if F
grounds for exercise of review jurisdiction are shown to exist. Where the order
rejecting an SLP is a speaking order, that is, where reasons have been assigned
by this Court for rejecting the petition for special leave and are stated in the
order still the order remains the one rejecting prayer for the grant of leave to
appeal. The petitioner has been turned away at the threshold without having G
been allowed to enter in the appellate jurisdiction of this Court. Here also the
doctrine of merger would not apply. But the law stated or declared by this
Court in its order shall attract applicability of Article 141 of the Constitution.
The reasons assigned by this Court in °its order expressing its adjudication
(expressly or by necessary implication) on point of fact or law shall take away

-· the jurisdiction of any other court, tribunal or authority to express any H
564 SUPREME COURT REPORTS [2000] SUPP. I S.C.R.

A opinion in conflict with or in departure from the view taken by this Court
because permitting to do so would be subversive of judicial discipline and
an affront to the order of this Court. However this would be so not by
reference to the doctrine of merger.

Once a special leave petition has been granted, the doors for the
B exercise of appellate jurisdiction of this Court have been let open. The order
impugned before the Supreme Court becomes an order appealed against. Any
order passed thereafter would be an appellate order and would attract the
applicability of doctrine of merger. It would not make a difference whether the
order is one of reversal or of modification or of dismissal affirming the order
C appealed against. It would also not make any difference if the order is a
speaking or non-speaking one. Whenever this Court has felt inclined to apply
its mind to the merits of the order put in issue before it though it may be
inclined to affirm the same, it is customary with this Court to grant leave to
appeal and thereafter dismiss the appeal itself (and not merely the petition for
special leave) though at times the orders granting leave to appeal and dismissing
D the appeal are contained in the same order and at times the orders are quite
brief. Nevertheless, the order shows the exercise of appellate jurisdiction and
therein the merits of the order impugned having been subjected to judicial
scrutiny of this Court.

E "To merge" means to sink or disappear in something else; to become
absorbed or extinguished; to be combined or 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.
(See Corpus Juris Secundum, Vol. LVII, pp. 1067-1068)
F
We may look at the issue from another angle. The Supreme Court
cannot and does not reverse or modify the decree or order appealed against
while deciding a petition for special leave to appeal. What is impugned before
the Supreme Court can be, reversed or modified only after granting leave to
appeal and then assuming appellate jurisdiction over it. If the order impugned
G before the Supeme Court cannot be reversed or modified at the SLP stage
obviously that order cannot also be affirmed at the SLP stage.

To sum up our conclusions are :-

(i) Where an appeal or revision is provided against an order passed
H by a court, tribunal or any other authority before superior forum and
.-
KUNHA YAMMED v. STATE [R.C. LAHOTI, J.] 565
such superior forum modifies, reverses or affirms the decision put in A
issue before it, the decision by the subordinate forum merges in the
decision by the superior forum and it is the latter which subsists,
remains operative and is capable of enforcement in the eye of law.

ii) The jurisdiction conferred by Article 136 of the Constitution is
divisible into two stages. First stage is upto the disposal of prayer for B
special leave to file an appeal. The second stage commences if and
when the leave to appeal is granted and special leave petition is
converted into an appeal.

(iii) Doctrine of merger is not a doctrine of universal or unlimited
application. It will depend on the nature of jurisdiction exercised by C
the superior forum and the content or subject-matter 01 challenge laid
or capable of being laid shall be determinative of the applicability of
merger. The superior jurisdiction should be capable of reversing,
modifying or affirming the order put in issue before it. Under Article
136 of the Constitution the Supreme Court may reverse, modify or D
affirm the judgment-decree or order appealed against while exercising
its appellate jurisdiction and not while exercising the discretionary
jurisdiction disposing of petition for special leave to appeal. The
doctrine of merger can therefore be applied to the former and not to
the latter.
E
(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 F
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 G
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
H
7 the country. But, this does not amount to saying that the order of the
566 SUPREME COURT REPORTS [2000] SUPP. I S.C.R.

A court, tribunal or authority below has stood merged in the order of the
Supreme Court reje:cting 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
B 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.

(vii) On an appeal having been preferred or a petition seeking leave
to appeal having been converted into an appeal before Supreme Court
C the jurisdiction of High Court to entertain a review petition is lost
thereafter as provided by sub-rule ( 1) of Rule ( 1) of Order 47 of the
C.P.C.

Having thus made the law clear, the case at hand poses no problem for
solution. The earlier order of the High Court was sought to be subjected to
D exercise of appellate jurisdiction of Supreme Court by the State of K<iala
wherein it did not succeed. The prayer contained in the petition seeking leave
to appeal to this Court was found devoid of any merits and hence dismissed.
The order is a non-speaking and unreasoned order. All that can be spelled
out is that the Court was not convinced of the need for exercising its appellate
E jurisdiction. The order of the High Court dated 17.12.1982 did not merge in
the order dated 18.7.1983 passed by this Court. So it is available to be
reviewed by the High Court. Moreover such a right of review is now statutorily
conferred on the High Court by sub-section (2) of Section SC of the Kerala
Act. Legislature has taken care to confer the jurisdiction to review on the
High Court as to such appellate orders also against which though an appeal
F was carried to the Supreme Court, the same was not admitted by it. An appeal
would be said to have be1:n admitted by the Supreme Court if leave to appeal
was granted. The constitutional validity of sub-section (2) of Section 8C has
not been challenged. Though, Shri T.L.V. Iyer, the learned senior counsel for
the appellant made a fe1:ble attempt at raising such a plea at the time of
G hearing but unsuccessfully, as such a plea has not so far been raised before
the High Court also not in the petition filed before this Court.

No fault can be found with the approach of the High Court. The appeal
is dismissed. No order as to the costs.
-
T.N.A. Appeal dismissed.