REPORTABLE

IN THE SUPREME Court OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2023

SPECIAL LEAVE PETITION (CIVIL) NO. OF 2023

(DIARY NO. 23775 OF 2022)

S. NARAHARI & ORS. … APPELLANT(S)

VERSUS

S.R. KUMAR & ORS. … RESPONDENT(S)

JUDGMENT

KRISHNA MURARI, J.

Delay condoned.

2.Leave granted.

3.The present appeals are directed against the impugned order and judgment

dated 20.12.2019 in RFA No. 392 of 2012 (DEC) and impugned judgment and

order dated 15.07.2022 in Review Petition No. 365 of 2022 passed by the High

Court of Karnataka at Bengaluru, (hereinafter referred to as “High Court”),

whereby, both, the Appeal and the review preferred by the appellants herein were

dismissed.

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4.The relevant facts necessary for the adjudication of the present appeals,

for the sake of convenience, are being mentioned herein.

5.One Late Arosji Rao was the original owner of the suit property and

had two daughters. The said Late Arosji Rao, before his death, executed a

Will dated 17.07.1945, bequeathing the suit property to both of his daughters

in equal share. In the said Will, among other things, it was stated that both

the legatees were to enjoy the suit property during their entire lifetime, and

thereafter, the same was to be transferred to their respective male heirs. The

said late Arosji Rao subsequently died on 30.09.1945, and the

abovementioned Will was probated.

6.The two daughters of the original owner Lt. Arosji Rao, Smt. Kamala

Bai and Smt. Anusuya Bai, as joint owners of the bequeathed suit property,

executed a lease deed in favour of one M/s Rajatha Trust for a period of 45

years. During the tenure of the said lease, on 07.07.1988, Smt. Kamala Bai

passed away, and as per the Will of the original suit owner, part of the suit

property was to flow to the heirs of Smt. Kamala Bai.

7.After the death of Smt. Kamala bai, a dispute arose between her heirs

and Smt. Ansuya Bai, on account of which, Smt. Ansuya Bai, filed a suit for

partition and possession of her part of the bequeathed suit property. The

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matter was however settled by both the parties, and a compromise decree

was passed. It was agreed upon by both the parties to divide the suit property

in equal shares.

8.Subsequent to the compromise decree, the sons of Smt. Ansuya Bai,

who are the respondent No.1 and respondent No.2 herein, filed a suit against

their mother and the sons of Late Smt. Kamala Bai, seeking mandatory

injunction.

9.During the said suit, Smt. Ansuya Bai leased the suit property to the

appellants herein for a period of 51 years. The appellants then started

construction of a commercial complex on the suit property, however, the

respondents, as against the said construction, got a stay order in their favour.

10.In the aforesaid suit, the Trial Court, apart from framing other relevant

issues, also framed five additional issues which are as under :-

I.Whether the plaintiffs prove that the defendant no. 1 has only life

interest in the suit property?

II.Whether the plaintiffs prove that the defendant no. 1 has no right

to deal with the suit property beyond her life time?

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III.Whether the plaintiffs further proves that any leases, etc., of the

suit property by the defendant no. 1 for the period beyond her life

time are void and not binding upon them?

IV.Whether the defendant no. 7 proves that he has lawfully entered

into an agreement of sale with defendant no. 2 and 3 for their

respective portion of property?

V.Whether the defendant no. 7 proves that there will be miscarriage

of justice if this suit is decreed against the entire schedule

property?

11.Vide order and judgment dated 11.04.2002, the Learned Trial

Court dismissed the suit filed by the respondents herein, vacated the

stay order, and held that the compromise decree entered into between

the parties is binding on the respondents.

12.Aggrieved by the same, the respondents preferred an appeal in

the High Court. During the pendency of the said appeal, Smt. Ansuya

Bai passed away. Further, the respondents also filed an application

under Order VI Rule 17 of CPC for amendment of plaint and sought for

a relief of recovery of possession of property.

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13.Vide order and judgment dated 10.08.2007, the High Court did

not disturb the finding of the Trial Court regarding the compromise

decree being binding on the respondents, however, in respect of the

additional relief of possession of part of suit property, the matter was

remanded to the Trial Court, for proper adjudication.

14.Aggrieved by the same, the appellant No.1 herein filed Special

Leave Petition in this Court, and during the pendency of the said

Special Leave Petition, the Trial Court proceeded with the matter

remanded to its jurisdiction.

15.Vide order and judgment dated 29.10.2011, the Trial Court on the

limited ground of possession of part of the suit property, decreed the

suit in favour of the respondent no.1 and respondent no.2 herein.

16.Aggrieved by the aforesaid judgment and decree of the Trial

Court, the petitioner(s) therein filed another appeal in the High Court.

During the pendency of the said first appeal before the High Court, the

Special Leave Petition filed in this Court by the

petitioner(s)/appellant(s) was dismissed vide order dated 03.01.2013 on

the ground that the relief prayed for in the Special Leave Petition had

exhausted itself.

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17.However, while dismissing the said Special Leave Petition, this

Court held that since the first appeal filed against the judgment dated

29.10.2011 was still pending before the High Court and that there were

issues raised in the Special Leave Petition qua the remand order, this

Court gave liberty to the petitioner(s) therein to raise all such questions

before the High Court in the pending appeal without being influenced

by the remand order. Subsequently, the said first appeal also came to

be dismissed vide judgment dated 20.12.2019.

18.Aggrieved by the dismissal of the first appeal, the

petitioner(s)/appellant(s) filed another Special Leave Petition before

this Court, however, the same was dismissed as withdrawn with liberty

to approach the High Court by means of filing a review petition.

19.For the sake of clarity, in such a case where a multiplicity of

proceedings exists, we find it crucial to clarify that as far as the present

appeals are concerned, challenge is confined to two orders dated

20.12.2019 and 15.07.2022 passed by the High Court.

20. At the first instance, by way of an earlier Special Leave Petition,

the original impugned order of the High Court dated 20.12.2019 was

challenged. This Court had dismissed the same, however liberty was

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granted to the petitioner(s)/appellant(s) to approach the High Court by

way of a review.

21.The said liberty was utilized by the appellant(s), and a review

was filed in the High Court. The same however, was dismissed by the

High Court vide impugned order and judgment dated 15.07.2022.

22.In the present appeals, both, the original impugned order by the

High Court in appeal, as well as the order in review by the High Court,

are being challenged.

ANALYSIS

23.The Ld. counsel appearing on behalf of both the parties were

heard in great detail.

24. At the first instance, the Ld. Counsel appearing on behalf of the

respondents has raised a preliminary objection as far as the

maintainability of the present appeals are concerned.

25. We are of the considered opinion that only after the issue of

maintainability is decided upon, can this Court enter into the merits of

the case. The issue of maintainability of Special Leave Petition is akin

to a rite of passage, and only after it is deemed that Special Leave

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Petition is maintainable, can an entry be taken into the merits of a

dispute.

26.It is the contention of the respondents that as far as an appeal by

way of Special leave against an order passed in review is concerned,

the provisions of Order XLVII rule 7 make it amply clear that the

same is not permissible, that is to say, no appeal by way of Special

Leave Petition against an order passed in review is maintainable.

27.Further, it has also been contended by the respondents, that this

Court, while dismissing the original Special Leave Petition filed by

the petitioner(s) therein, while it granted liberty to the petitioners to

approach the High Court in review, did not give the petitioners

specific permission to file a subsequent Special Leave Petition before

this Court. Such lack of explicit permission, as per the respondent,

places a bar on the petitioners to approach this Court again. For this,

the respondent has relied on the case of Sandhya Educational

Society Vs. Union Of India

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28.As far as first contention of the respondent is concerned, we

concur with the same. Order XLVII rule 7 of the CPC makes it amply

1 (2014) 7 SCC 701

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clear that no Special Leave Petition can be filed against an order

passed in review, and as such, does not require our further

consideration. For a ready reference, the same is being reproduced

herein:

“Order of rejection not appealable. Objections to order

granting application.

(1) An order of the Court rejecting the application shall not be

appealable; but an order granting an application may be objected

to at once by an appeal from the order granting the application or

in an appeal from the decree or order finally passed or made in the

suit.

(2) Where the application has been rejected in consequence of the

failure of the applicant to appear, he may apply for an order to

have the rejected application restored to the file, and, where it is

proved to the satisfaction of the Court that he was prevented by

any sufficient cause from appearing when such application was

called on for hearing, the Court shall order it to be restored to the

file upon such terms as to costs or otherwise as it thinks fit, and

shall appoint a day for hearing the same.

(3) No order shall be made under sub-rule (2) unless notice of the

application has been served on the opposite party.

29.The appellants however, to overcome such bar, in the present

appeals, have not only impugned the order passed by the High Court

in review, but has also impugned the original order passed by the High

Court in appeal. The limited question, therefore, posed before us for

our consideration, is whether liberty granted by this Court to approach

the High Court in review, automatically places the said matter matter

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in the escalation matrix, and makes the remedy of Special Leave

Petition available again.

30.In the case of Vinod Kapoor Vs. State Of Goa

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, the petitioner

therein had filed a Writ in the High Court and the same was dismissed.

As against this, the petitioner therein, filed a review in the High Court

and also filed Special Leave Petition in the Supreme Court. When the

Special Leave Petition came to be heard, the petitioner therein stated

that he had already filed a review, and hence, sought liberty to

withdraw the case, and on the same grounds, the Special Leave

Petition was dismissed as withdrawn.

31.After the withdrawal of the Special Leave Petition, the review

petition was heard by the High Court, however, the same was

dismissed. Aggrieved by the said dismissal of the review, the

petitioner therein, filed another Special Leave Petition in the Supreme

Court.

32.While dealing with a similar fact circumstance as in the present

case, wherein a consecutive Special Leave Petition was filed and the

order in the original Special Leave Petition only gave an explicit

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(2012) 7 SCC 701

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liberty to approach the High Court, this Court held that the subsequent

Special Leave Petition was not maintainable. The relevant paragraphs

of the said judgment are being produced herein:

“There is nothing in the decisions cited by the appellant to show

that this Court has taken a view different from the view taken

in Abhishek Malviya v. Additional Welfare Commissioner and

Another (supra) with regard to maintainability of an appeal by

way of Special Leave under Article 136 of the Constitution

against an order of the High Court after an earlier Special Leave

Petition against the same order had been withdrawn without any

liberty to file a fresh Special Leave Petition. Similarly, there is

nothing in the decisions cited by the appellant to show that this

Court has taken a view that against the order of the High Court

rejecting an application for review, an appeal by way of Special

Leave under Article 136 of the Constitution is maintainable.

In the result, we hold that the Civil Appeals are not maintainable

and we accordingly dismiss the same….”

33.Further, in the case of Sandhya Education Society (Supra), a

two-Judge Bench of this Court, while accepting the principle laid

down in the Vinod Kapoor Judgment (Supra), categorically held that

once Special Leave Petition is dismissed as withdrawn, if no explicit

liberty has been granted to approach the Supreme Court by way of a

subsequent Special Leave Petition, the same cannot be allowed. For a

ready reference, the relevant extract of the said judgment is being

placed hereunder:

“This Court in Vinod Kapoor v. State of Goa, has categorically

observed that once the special leave petition is dismissed as

withdrawn without obtainingg appropriate permission to file a

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special leave petition once over again after exhausting the remedy

of review petition before the High Court, the same is not

maintainable.”

34.Per contra, the Ld. Counsel appearing on behalf of the appellants

has relied upon the case of Khoday Distilleries Ltd. Vs. Sri

Mahadeshwara Sahakara Sakkare Karkhane Ltd

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., wherein it has

been observed that the doctrine of merger is not applicable in cases

where the dismissal of Special Leave Petition is by way of a non-

speaking order. The relevant paragraphs of the said judgment, for the

sake of convenience, are being reproduced herein:

“We reiterate the conclusions relevant for these cases as under:

(Kunhayammed case |Kunhayammed v. State of Kerala, (2000) 6

SCC359]. SCC p. 384)

"(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.

3 (2019) 4 SCC 376

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(vi) Once leave to appeal has been granted and appellate

jurisdiction of the 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 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”

35.While the law laid down by the two judgments relied upon by

the appellants, and other judgments in line with the said two

judgments explicitly state that specific liberty is a requirement for

filing a subsequent Special Leave Petition after the withdrawal of the

first Special Leave Petition, however, a crack seems to appear in the

foundation of the said judgments when the judgment of Khoday

Distilleries (Supra) is read into in detail.

36.In the case of Khoday Distelleries (Supra), the question that was

raised before this Court was different from the present case, however,

the underlying logic of the said judgment, in our opinion, has bearing

on the issue raised before us in the present case. In the said case, a

three judge bench of this Court was tasked with answering the

question of whether a review petition in the High Court is

maintainable, once Special Leave Petition raising the same issue has

been dismissed. This Court, while relying upon the case of

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Kunhayammed Vs. State of Kerela

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, held that even after the dismissal

of the Special Leave Petition, a review before the High Court is still

maintainable.

37.While the conclusion of the said judgment is not relevant to the

present case at hand, however, the reasoning behind coming to the said

conclusion, in our opinion, has bearing on the present case. This

Court, in the abovementioned case, while holding that a review is

maintainable even after the dismissal of Special Leave Petition,

observed that the dismissal of Special Leave Petition by way of a non-

speaking order does not attract the doctrine of merger.

38.In simpler terms, this would essentially mean that even in cases

where the Special Leave Petition was dismissed as withdrawn, where

no reason was assigned by the Court while dismissing the matter and

where leave was not granted in the said Special Leave Petition, the

said dismissal would not be considered as laying down law within the

ambit of Article 141 of the Constitution of India.

39.If a dismissal of Special Leave Petition by way of a non-

speaking order is not considered law under Article 141 of the

4 (2000) 6 SCC 359

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Constitution of India, the same also cannot be considered as res

judicata, and therefore, in every such dismissal, even in cases where

the dismissal is by way of a withdrawal, the remedy of filing a fresh

Special Leave Petition would still persist. Further, if on the said

reasoning, a remedy to file a review in the High Court is allowed, then

the same reasoning cannot arbitrarily exclude the filing of a

subsequent Special Leave Petition.

40.We are painfully aware of the fact that such an interpretation, if

expanded beyond the specific scope of filing a review in the High

Court is allowed, it would open the floodgates of litigation, and would

essentially mean that every dismissal of Special Leave Petition must

be accompanied with reasons declaring the same.

41.Therefore, in light of the abovementioned observations, we are

of the opinion that to put a quietus to such an issue, it is necessary for

the same to be adjudicated and deliberated upon by a larger bench of

this Court. Further, since only after such a preliminary objection is

decided, can the merits of the present case be entered into, the same is

to be placed before an appropriate bench after the question of law is

decided by the larger bench.

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42.Accordingly, let the papers of the case be placed before the

Hon’ble Chief Justice of India for constituting a larger bench.

……...…....………………,J

(KRISHNA MURARI)

……...…....………………,J

(SANJAY KAROL)

NEW DELHI;

05

TH

JULY, 2023

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