3. It is the case of the petitioners that the petitioners on 14 th January,
2013 filed an application for correction / rectification of an error in the
aforesaid order, averring that the liberty sought and granted had remained to
be noted therein, but the counsel for the petitioners was informed that the
application was considered and would not be listed for hearing.
4. We have heard the senior counsel for the review petitioners as well as
the counsel for the respondent Union of India (UOI) and have also perused
the written submissions filed on the said preliminary objection.
5. The senior counsel for the review petitioners has contended (i) that
once the Supreme Court permits withdrawal of a SLP without recording
reasons, it is as if no appeal was ever filed or entertained since in the
absence of grant of special leave, there is no appeal in existence; (ii) that
where a SLP is permitted to be withdrawn and equally when it is dismissed
in limine without recording reasons, the High Court‟s judgment neither
merges into any proceedings before the Supreme Court nor is it in any
manner affected by the filing and subsequent withdrawal or dismissal of the
SLP; (iii) that a three Judges Bench of the Supreme Court in Kunhayammed
Vs. State of Kerala (2000) 6 SCC 359 expressly concerned with the issue of
maintainability of a review petition after the dismissal in limine of the SLP
R.P. No.335/2013 in W.P.(C) No.494/1991 Page 2 of 12
and after noticing conflicting judgments held that a review petition can be
filed subsequent to the dismissal of an SLP inasmuch as at the stage of
dismissal of an SLP, there exists no appeal in the eyes of law as at that stage
the Supreme Court is exercising its discretionary jurisdiction and not the
appellate jurisdiction; only when the Supreme Court grants leave in SLP and
converts it into an appeal and the appeal thereafter is disposed of with or
without reasons, that the judgment of the Supreme Court merges with that of
the High Court and where-after review petition cannot be filed; (iv) that
Kunhayammed (supra) has been followed in National Housing Coop.
Society Vs. State of Rajasthan (2005) 12 SCC 149, Palani Roman Catholic
Mission Vs. S. Bagirathi Ammal (2009) 16 SCC 657, Gangadhara Palo Vs.
Revenue Divisional Officer (2011) 4 SCC 602, Bakshi Dev Raj Vs.
Sudheer Kumar (2011) 8 SCC 679, Bhakra Beas Management Board Vs.
Krishan Kumar Vij (2010) 8 SCC 701 and Sri Ram Builders Vs. State of
Madhya Pradesh (2014) 14 SCC 102; (v) that the earlier judgment also of a
three Judges Bench in Abbai Maligai Partnership Firm Vs. K.
Santhakumaran (1998) 7 SCC 386 turned on its own facts; in that case SLP
was dismissed on merits, after issuance of notice and a full contest between
the parties; it was in such a situation that the Supreme Court held that
subsequent to dismissal of SLP in that case, review petition could not have
been entertained by the High Court; (vi) that it is not as if Abbai Maligai
Partnership Firm (supra) was not noticed in Kunhayammed (supra); it was
held to be not laying down the law to the contrary; (vii) that the judgments in
K. Rajamouli Vs. A.V.K.N. Swamy (2001) 5 SCC 37 and Meghmala Vs. G.
Narasimha Reddy (2010) 8 SCC 383 though subsequent to Kunhayammed
R.P. No.335/2013 in W.P.(C) No.494/1991 Page 3 of 12
(supra) and “opined in passing” that a review petition subsequent to
dismissal of SLP is not maintainable but are of two Judges Benches and
again turn on their own facts; (viii) that K. Rajamouli (supra) in fact has
been considered in Gangadhara Palo (supra) where it has been held that K.
Rajamouli (supra) is not a precedent; (ix) that Meghmala (supra) has been
considered in Sri Ram Builders (supra) as contrary to Kunhayammed
(supra) and Gangadhara Palo (supra); (x) that the correctness of K.
Rajamouli and Meghmala (supra) has in any case been referred to a larger
Bench of the Supreme Court in Khoday Distilleries Vs. Mahadeswara
S.S.K. Ltd. (2012) 12 SCC 291; (xi) that though in the facts aforesaid, there
is no conflict of opinion but even if it were to be held so, as per the judgment
dated 10th February, 2009 of the Division Bench of this Court in W.P.(CRL)
No.2444/2006 titled Gopa Manish Vora Vs. Union of India and Indo Swiss
Time Limited, Dundahera Vs. Umrao AIR 1981 P&H 213, it is open to the
High Court to follow that judgment which in its opinion lays down the law
more correctly; (xii) that the judgment of the Division Bench of this Court in
Jia Lal Kapur Vs. Union of India 2016 (154) DRJ 698 though on the basis
of K. Rajamouli and Meghmala (supra) holding review to be not
maintainable after dismissal of SLP but is per incuriam Gangadhara and Sri
Ram Builders (supra) and other judgments.
Source: Indian Kanoon