Condonation of Delay in filing Review Petition. Applicability of Doctrine of Merger

PJ/Case Laws/2012-13/1108

Case: GANGADHARA PALO V/S REVENUE DIVISIONAL OFFICER

Citation: 2012 (25) S.T.R 273 (S.C.)

Issue:- Delay of 71 days in filing review petition – whether can be condoned?

Doctrine of Merger – when can be applied?

Brief Facts:- There was a delay of 71 days in filing Review petition and condonation of delay application was also filed. The High Court dismissed the review petition as well as the application for condonation of delay.

Hence, appellant have appeal against the impugned order before the Supreme Court.

Respondent’s Contention:- With regard to maintainability of review petition, Revenue contended that it was not maintainable because against the main judgment of the High Court dated 19-06-2001, dismissing the writ petition of the appellants herein, the appellant herein filed a special leave petition in this court which was dismissed on 17-09-2001. They relied upon the decisions taken in the case of K. Rajamouli v/s A.V.K.N. Swamy [(2001) 5 SCC 37 and has submitted that there is a distinction between a case where the review petition was filed in the High Court before dismissal of the special leave petition by this Court, and a case where the review petition was filed after the dismissal of the special leave petition by this Court.

Reasoning of Judgment:- With regard to condonation of delay, the Supreme Court held that the delay was only of 71 days and a liberal view should have been taken by the High Court and delay of 71 days in filing the review petition should have been condoned and the review petition should have been decided on merits. Hence, the delay was condoned.

With regard to maintainability of review petition, the Supreme Court did not agree with the contentions of the Revenue.

The Supreme Court held that when the Court dismisses a special leave petition by giving some reasons, there will be a merger of judgment of the High Court into the order of the Supreme Court dismissing the special leave petition. According to the doctrine of merger, the judgment of the lower court merges into the judgment of the higher court. Thus if the special leave petition is dismissed on the basis of some reasons the doctrine of merger operates and the judgment of the High Court merges into the decision of the Supreme Court and after such merger there is no judgment of the High Court. Hence there can be no review of judgment which does not even exist.

On the contrary if the special review petition is dismissed on the basis of no reason then there is no merger of the decisions and thus there is a scope of the review petition as the SLP can be dismissed for a variety of reasons and not necessarily on merits. The judgment of the High Court continues to exist and can be reviewed.

It was held that a judgment which continues to exist can obviously be reviewed, though the scope of the review is limited to errors apparent on the face of record but, it cannot be said that the review petition is not maintainable at all.

Further, the Supreme Court perused the judgment given in K. Rajamouli v/s A.V.K.N. Swamy and observed that it cannot be treated as precedent as it is a stray observation.

A precedent is a decision which lays down some principle of law. A mere stray observation would not amount to a precedent.

By a judicial order, the power of review cannot be taken away as that has been conferred by the statute or the Constitution. The Supreme Court by judicial orders cannot amend the statute or the Constitution.

Impugned order set aside and the Court condoned the delay in filing the review petition before the High Court and remanded the matter back to the High Court to decide the review petition on merits.

Decision:- Appeal allowed.

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PJ/Case Laws/2012-13/1108

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