S. NARAHARI AND ORSversusS.R. KUMAR AND ORS.

1010               [2023] 10
                SUPREME      S.C.R.REPORTS
                           COURT    1010 : 2023 INSC [2023]
                                                     604 10 S.C.R.


 A                         S. NARAHARI AND ORS.
                                         v.
                            S.R. KUMAR AND ORS.
                       (Civil Appeal No. 4289-4290 of 2023)
 B                                JULY 05, 2023
             [KRISHNA MURARI AND SANJAY KAROL, JJ.]
             Code of Civil Procedure, 1908 – Or. XLVII r. 7 – Constitution
       Of India – Art. 141 – Whether liberty granted by Supreme Court to
 C     approach the High Court in review, automatically places the said
       matter in the escalation matrix, and makes the remedy of Special
       Leave Petition available again – Held: It is necessary for the same
       to be adjudicated and deliberated upon by a larger bench of the
       Supreme Court.
 D           Referring the matter to the larger Bench, the Court
             HELD: 1. If a dismissal of Special Leave Petition by way of
       a nonspeaking order is not considered law under Article 141 of
       the Constitution of India, the same also cannot be considered as
       res judicata, and therefore, in every such dismissal, even in cases
 E     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. [Para 39]
       [1019-F-G]
 F
             2. This Court is 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.
 G
       [Para 40][1020-A-B]
             3. Therefore, 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. [Para 41][1020-C]
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                                       1010
     S. NARAHARI AND ORS. v. S.R. KUMAR AND ORS.                            1011


      Sandhya Educational Society v. Union Of India (2014)                  A
      7 SCC 701; Vinod Kapoor v. State Of Goa (2012) 7
      SCC 701; Khoday Distilleries Ltd. v. Sri Mahadeshwara
      Sahakara Sakkare Karkhane Ltd (2019) 4 SCC 376 :
      [2019] 3 SCR 411; Kunhayammed v. State of Kerala
      (2000) 6 SCC 359 : [2000] 1 Suppl. SCR 538 – referred
                                                                            B
      to.
                        Case Law Reference
(2014) 7 SCC 701                  referred to             Para 27
(2012) 7 SCC 701                  referred to             Para 30
[2019] 3 SCR 411                  referred to             Para 34           C
[2000] 1 Suppl. SCR 538           referred to             Para 36
      CIVIL APPELLATE JURISDICTION: Civil Appeal (Diary) No.
23775 of 2022.
      From the Judgment and Order dated 15.07.2022 in RP No. 365 of
                                                                            D
2022 and dated 20.12.2019 in RFA No. 392 of 2012 of the High Court of
Karnataka at Bengaluru.
      Devdutt Kamat, Sr. Adv., Saket Gogia, Javedkar, Dhawesh Pahuja,
Ms. Gauri Pande, Man Singh, Ms. Awantika Manohar, Advs. for the
Appellants.
                                                                            E
      Nishant Ramakantrao Katneshwarkar, Ms. Suvarna Ganu, Sanket
S Deshpande, Advs. for the Respondents.
      The Judgment of the Court was delivered by
      KRISHNA MURARI, J.
      Delay condoned.                                                       F
      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,             G
(hereinafter referred to as “High Court”), whereby, both, the Appeal
and the review preferred by the appellants herein were dismissed.
      4. The relevant facts necessary for the adjudication of the present
appeals, for the sake of convenience, are being mentioned herein.
                                                                            H
1012               SUPREME COURT REPORTS                        [2023] 10 S.C.R.


 A            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
 B
       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
 C     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
 D     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 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.
 E            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
 F     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
 G     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?
 H
      S. NARAHARI AND ORS. v. S.R. KUMAR AND ORS.                                1013
                 [KRISHNA MURARI, J.]

      III.   Whether the plaintiffs further proves that any leases, etc.,        A
             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?                         B
      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            C
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        D
Order VI Rule 17 of CPC for amendment of plaint and sought for a
relief of recovery of possession of property.
       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              E
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            F
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            G
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.                   H
1014             SUPREME COURT REPORTS                           [2023] 10 S.C.R.


 A            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
 B
       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
 C
       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.
 D
              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
       granted to the petitioner(s)/appellant(s) to approach the High Court by
       way of a review.
 E
             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
 F     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.
 G
             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
 H
         S. NARAHARI AND ORS. v. S.R. KUMAR AND ORS.                          1015
                    [KRISHNA MURARI, J.]

the case. The issue of maintainability of Special Leave Petition is akin to   A
a rite of passage, and only after it is deemed that Special Leave 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        B
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     C
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 1
                                                                              D
       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
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:
                                                                              E
         “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         F
         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,
                                                                              G
         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
1
    (2014) 7 SCC 701                                                          H
1016                SUPREME COURT REPORTS                      [2023] 10 S.C.R.


 A              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
 B     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 in the
 C     escalation matrix, and makes the remedy of Special Leave Petition
       available again.
              30. In the case of Vinod Kapoor Vs. State Of Goa2, 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
 D     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.

 E            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
 F     case, wherein a consecutive Special Leave Petition was filed and the
       order in the original Special Leave Petition only gave an explicit 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
 G
                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
       2
 H         (2012) 7 SCC 701
         S. NARAHARI AND ORS. v. S.R. KUMAR AND ORS.                          1017
                    [KRISHNA MURARI, J.]

         Constitution against an order of the High Court after an             A
         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
                                                                              B
         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),         C
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          D
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 special leave petition once over again after exhausting the        E
         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 3., wherein it has                 F
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            G
         under:
         (Kunhayammed case |Kunhayammed v. State of Kerala,
         (2000) 6 SCC359]. SCC p. 384)
3
    (2019) 4 SCC 376                                                          H
1018             SUPREME COURT REPORTS                            [2023] 10 S.C.R.


 A            “(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
 B
              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
 C
              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
 D            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
 E            is the only order binding as res judicata in subsequent
              proceedings between the parties.
              (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;
 F            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
 G            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
 H     Special Leave Petition after the withdrawal of the first Special Leave
         S. NARAHARI AND ORS. v. S.R. KUMAR AND ORS.                           1019
                    [KRISHNA MURARI, J.]

Petition, however, a crack seems to appear in the foundation of the            A
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        B
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 Kunhayammed Vs. State of
                                                                               C
Kerela4, 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              D
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,             E
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-           F
speaking order is not considered law under Article 141 of the 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   G
file a review in the High Court is allowed, then the same reasoning
cannot arbitrarily exclude the filing of a subsequent Special Leave
Petition.

4
    (2000) 6 SCC 359                                                           H
1020              SUPREME COURT REPORTS                           [2023] 10 S.C.R.


 A           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.
 B            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
 C     by the larger bench.
            42. Accordingly, let the papers of the case be placed before the
       Hon’ble Chief Justice of India for constituting a larger bench.


 D     Ankit Gyan                                   Matter be placed before Hon’ble CJI
       (Assisted by : Mahendra Yadav, LCRA)              for constituting a larger Bench.




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