INCOME TAX ACT, 1961

Section 261 Article 136

Appeal (Supreme Court) - Dismissal of review petition by High Court - SLP dismissed earlier by Supreme Court - Maintainability of review petition before High Court

Respondent No. 1 filed original suit against the appellant on the file of the Additional City Civil Judge. It was a money suit for recovery of Rs. 1,00,76,630 along with interest. The City Civil Judge, after trial, dismissed the suit as barred by limitation vide his judgment and decree, even after finding on merits that money was payable by the appellant to respondent No. 1. Against this, respondent No. 1 preferred first appeal under section 96 of the Code of Civil Procedure, 1908. This appeal was allowed by the High Court by holding that the suit was filed within the period of limitation. Accordingly, it passed decree of the amount claimed along with interest. The appellant, even after dismissal of the special leave petition, went back to the High Court in the form of review petition seeking review of the order passed by the High Court. This review petition had been dismissed by the High Court. The reason for dismissal of the review petition was that the Apex Court had already dismissed the special leave petition against the High Court's judgment. Therefore, review of the said judgment by the High Court was not permissible. The question of law which needs to be determined in the aforesaid circumstances was as to whether review petition was maintainable before the High Court seeking review of a judgment against which the special leave petition had already been dismissed by this Court. Held: 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. Once this court held that law laid down in Kunhayammed is to be followed, it will not make any difference whether the review petition was filed before the filing of special leave petition or was filed after the dismissal of special leave petition. Such a situation is covered in para 37 of Kunhayammed case. Since special leave petition was dismissed in limine without giving any reasons, the review petition filed by the appellant in the High Court would be maintainable and should have been decided on merits. Order, passed by the High Court was accordingly set aside and matter was remanded back to the High Court for deciding the review petition on merits.

Affirmed & Followed:Kunhayammed v. State of Kerala (2000) 113 Taxman 470 (SC) : 2000 TaxPub(DT) 1461 (SC).

REFERRED : Abbai Maligai Partnership Firm v. K. Santhakumaran (1998) 7 SCC 386, Meghmala v. G. Narasimha Reddy (2010) 8 SCC 383, K. Rajamouli v. A.V.K.N. Swamy(2002) 36 SCL 774, Gangadhara Palo v. Revenue Divisional Officer (2012) 35 STT 463,Palani Roman Catholic Mission v. S. Bagirathi Ammal (2009) 16 SCL 657, Bhakra Beas Management Board v. Krishna Kumar Vij (2010) 8 SCL 701, Medical Council of India v. State of Kerala 2018 (11) Scale 141,Workmen of Cochin Port Trust v. Board of Trustees of the Cochin Port Trust (1978) 3 SCC 119, Western India Match Co. Ltd. v. Industrial Tribunal AIR 1958 Mad. 398, Indian Oil Corpn. Ltd. v. State of Bihar (1986) 4 SCC 146, Rup Diamonds v. UOI 1989 Taxmann.com 633 (SC), Wilson v. Colchester Justices (1985) 2 All ER 97 (HL), Supreme Court Employees Welfare Assn. v. UOI (1989) 4 SCC 187, Yogendra Narayan Chowdhury v. UOI (1996) 7 SCC 1, V.M. Salgaocar & Bros. (P.) Ltd. v. CIT (2000) 110 Taxman 67 (SC) : 2000 TaxPub(DT) 1336 (SC), Sree Narayana Dharamasanghom Trust v. Swami Prakasananda (1997) 6 SCC 78, State of Maharashtra v. Prabhakar Bhikaji Ingle (1996) 3 SCC 463.

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