Supreme Court’s Dismissal Of Special Leave Petition Does Not Trigger Doctrine Of Merger: J&K And Ladakh High Court

The Court was hearing two connected review petitions filed against an earlier order concerning directions for an enquiry before the Additional District Judge, Srinagar, relating to disputes over an eviction compromise and applications filed by various parties seeking different reliefs.

A Bench comprising Justice Sanjay Dhar examined the preliminary objection regarding maintainability of a review petition and held: “an order dismissing an SLP would not attract the doctrine of merger though the reasons stated by the Supreme Court would certainly attract applicability of Article 141 of the Constitution as it would amount to declaration of law by the Supreme Court. However, mere dismissal of an SLP, with or without reasons, would not attract the doctrine of merger.”

Advocate Aswad Attar, along with Advocate Sheikh Anan Hussain, appeared for the petitioners. Senior Advocate Jahangir Iqbal Ganai appeared for the contesting respondent.

Background

The review petitioners sought review of a previous order of the High Court that had directed the Additional District Judge, Srinagar, to conduct an enquiry regarding competing claims over a building forming the subject matter of various proceedings.

The petitioners had earlier filed an SLP before the Supreme Court challenging the same order, but withdrew it after learning that another set of applicants had filed a review petition before the High Court.

The respondents raised a preliminary objection, arguing that the petitioners, having invoked the Supreme Court’s jurisdiction, could not maintain a review petition after withdrawing the SLP without liberty. The review petitioners submitted that the SLP was dismissed as withdrawn without any adjudication on merits, and therefore, the remedy of review remained open.

Court’s Observation

The J&K and Ladakh High Court referred to the Supreme Court’s decisions in Kunhayammed v. State of Kerala and V. Senthur v. M. Vijay Kumar, which distinguish between the dismissal of an SLP and the dismissal of an appeal after grant of leave.

The Bench emphasised that dismissal of an SLP, even with reasons, does not amount to affirmation of the impugned order through merger because the Supreme Court, in such cases, does not exercise appellate jurisdiction but only discretionary jurisdiction of granting or refusing leave.

The Court noted that only when leave to appeal is granted does the doctrine of merger operate, resulting in substitution of the lower court’s order by the Supreme Court’s appellate order.

In contrast, dismissal of an SLP without granting leave allows the impugned order to stand independently, and the parties retain the right to seek review before the High Court.

On this basis, the High Court held that the respondent’s objection was misconceived. It further examined the substantive grounds raised in the review petitions and observed that no error apparent on the face of the record had been demonstrated. The issues raised by the petitioners had either been addressed in the earlier order or left open for the enquiry directed to be conducted by the Additional District Judge.

The Bench also found that the alternative review petition filed by parties seeking impleadment in the earlier proceedings was similarly untenable, as the order under review had already left their remedies open to be pursued independently before an appropriate forum.

Conclusion

Accordingly, finding no error apparent on the face of the record in the order sought to be reviewed, the Court dismissed both review petitions as devoid of merit.

Cause Title: Zahida Shah & Another v. Bilal Ahmad Dar & Others

Appearances

Petitioners: Aswad Attar and Sheikh Anan Hussain, Advocates

Respondents: Senior Advocate Jahangir Iqbal Ganai; Suhail Mehraj, Advocate

Click here to read/download Judgment