Referred to Larger Bench V: Maintainability of Review Petitions

A person aggrieved by an order of the High Court, very often, files a Special Leave Petition, against the impugned order, before the SC and thereafter, if the SLP is dismissed at the very outset, files a Review Petition, against the same impugned order, before the relevant High Court. There have been two distinct opinions concerning this debatable approach. In Abbai Maligai Partnership Firm v. K. Santhakumaran, (1998) 7 SCC 386 (“Abbai”) it was held by a Three-Judge Bench that it is “palpably erroneous” for a High Court to entertain a Review Petition against an order – if a Special Leave Petition, against the impugned order, has already been dismissed. In Kunhayammed v. State of Kerala, (2000) 6 SCC 359 {“Kunhayammed”) another Three-Judge Bench held that the exercise of jurisdiction conferred on the SC, by virtue of Article 136 of the Indian Constitution, consists of two steps- a) disposal of the prayer for Special Leave to Appeal (whereby the SC’s “discretionary jurisdiction” is invoked) and if Special Leave to Appeal is granted, b) the hearing of the Appeal (whereby the SC’s “appellate jurisdiction” is invoked). At the first step, evidently, the prayer for Special Leave to Appeal may also be dismissed thereby rendering the second step unnecessary. In such an event no Appeal can be said to have been “preferred” within the meaning of Order 47, Rule 1(a) of the Code of Civil Procedure, 1908 – since a Petition seeking Special Leave to Appeal is not an Appeal itself unless the Special Leave to Appeal is granted. The impugned order then very much subsists and is capable of being sought a Review against.

Many Two-Judge Bench decisions of the SC, have, after either applying the ratio in Abbai or Kunhayammed, expressed conflicting opinions. In Khoday Distilleries Ltd. v. Mahadeshwara, (2012) 12 SCC 291 the question has thus been Referred to a Larger Bench.

Advertisements