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SC Held That Review Is Permissible Even After Dismissal Of Special Leave Petition: Khoday Distilleries Case.
Is a review petition seeking review of a judgment against which the special leave petition has already been dismissed by the Supreme Court maintainable before the High Court?
For about two decades this question of law remained unsettled. The genesis of this issue relates back to the different views taken by the three-judge benches in Abbai Maligai Partnership Firm and Anr v. K Santhakumaran and Ors and later in Kunhayammed and Ors v State of Kerala and Anr.
Abbai Maligai had condemned the practice of filing a review petition after the dismissal of the special leave petition (albeit on its peculiar facts) and Kunhayammed had approved such practice on the basis of several well-established legal principles including the doctrine of merger.
By a recent judgment dated March 1, 2019, the Supreme Court in Khoday Distilleries Ltd v Sri Mahadeshwara Sahakara, finally put this long-standing conflict to rest holding that the “detailed judgment in Kunhayammed lays down the correct law and there is no need to refer the cases to larger Bench…”
The Khoday Distilleries case in the context of the judgments of the Supreme Court in Abbai Maligai and Kunhayammed was analysed by this article.
Genesis of the conflict: Abbai Maligai and Kunhayammed
Abbai Maligai
The question of whether after the dismissal of a special leave petition by the Supreme Court a review petition could be entertained by the High Court against its own order first came up before a three-judge bench of the Supreme Court in Abbai Maligai.
In this case, the Supreme Court held that the very entertainment of review petitions (after condoning a long delay of 221 days) and then reversing the earlier orders was “subversive of judicial discipline”, “palpably erroneous” and an “affront” to the order of the Supreme Court dismissing the special leave petitions.
Kunhayammed
Kunhayammed had approved such practice on the basis of several well-established legal principles including the doctrine of merger.
Interestingly, the Supreme Court in Kunhayammed approved Abbai Maligai as being the “correct statement of law” and one which fortified the view taken in Kunhayammed.
Supreme Court settles the law in Khoday Distilleries
After undertaking an in-depth analysis of the genesis as well as the dichotomy of the Supreme Court’s views on the issue, and more particularly delving into the ratios of Abbai Maligai and Kunhayammed, in Khoday Distilleries it was (perhaps once and for all) settled that the “detailed judgment in Kunhayammed lays down the correct law and there is no need to refer the cases to larger Bench.”
Concluding remarks
It cannot be denied that the judgment in Khoday Distilleries is based on sound logic and principles of law. Perhaps a curb against special leave petitions of frivolous nature or against sundry kinds of orders needs to be reconsidered as suggested in Mathai @ Joby v. George.
In this case, the Supreme Court opined that converting the Supreme Court practically into an ordinary appellate court was never the intention of Article 136 of the Constitution.
While the review has been held to be available even after dismissal of special leave petition, it is incumbent upon our society and litigants to evolve and not misuse the discretionary powers of the Supreme Court under Article 136 of the Constitution.
