To what extent doctrine of merger is applicable if SLP is dismissed?

 It will be relevant to refer to the following observations of

this Court in the case of Kunhayammed and Others v. State

of Kerala and Another (2000) 6 SCC 359:“

27. A petition for leave to appeal to this Court may

be dismissed by a nonspeaking order or by a

speaking order. Whatever be the phraseology

employed in the order of dismissal, if it is a nonspeaking

order, i.e., it does not assign reasons for

dismissing the special leave petition, it would

neither attract the doctrine of merger so as to stand

substituted in place of the order put in issue before

it nor would it be a declaration of law by the

Supreme Court under Article 141 of the

Constitution for there is no law which has been

declared. If the order of dismissal be supported by

reasons then also the doctrine of merger would not

be attracted because the jurisdiction exercised was

not an appellate jurisdiction but merely a

discretionary jurisdiction refusing to grant leave to

appeal. We have already dealt with this aspect

earlier. Still the reasons stated by the Court would

attract applicability of Article 141 of the

Constitution if there is a law declared by the

Supreme Court which obviously would be binding

on all the courts and tribunals in India and

certainly the parties thereto. The statement

contained in the order other than on points of law

would be binding on the parties and the court or

tribunal, whose order was under challenge on the

principle of judicial discipline, this Court being the

Apex Court of the country. No court or tribunal or

parties would have the liberty of taking or

canvassing any view contrary to the one expressed

by this Court. The order of Supreme Court would

mean that it has declared the law and in that light

the case was considered not fit for grant of leave.

The declaration of law will be governed by Article

141 but still, the case not being one where leave

was granted, the doctrine of merger does not apply.

The Court sometimes leaves the question of law

open. Or it sometimes briefly lays down the

principle, may be, contrary to the one laid down by

the High Court and yet would dismiss the special

leave petition. The reasons given are intended for

purposes of Article 141. This is so done because in

the event of merely dismissing the special leave

petition, it is likely that an argument could be

advanced in the High Court that the Supreme Court

has to be understood as not to have differed in law

with the High Court.” {Para 21}

22. It is thus clear that this Court in unequivocal terms has

held that if the order of dismissal of SLPs is supported by

reasons, then also the doctrine of merger would not be

attracted. Still the reasons stated by the court would attract

applicability of Article 141 of the Constitution of India, if there

is a law declared by this Court which obviously would be

binding on all the courts and the tribunals in India and

certainly, the parties thereto. It has been held that no court,

tribunal or party would have the liberty of taking or canvassing

any view contrary to the one expressed by this Court. Such an

order would mean that it has declared the law and in that light,

the case was considered not fit for grant of leave.

REPORTABLE

IN THE SUPREME COURT OF INDIA

INHERENT/CIVIL APPELLATE JURISDICTION

CONTEMPT PETITION (CIVIL) NO. 638 OF 2017

IN

CIVIL APPEAL NO. 4954 OF 2016

V. SENTHUR Vs  M. VIJAYAKUMAR, 

Author: B.R. GAVAI, J.

Dated: OCTOBER 01, 2021.

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How is the doctrine of merger and precedent attracted in the case of Judgment passed by the Supreme court?

 (b) We reiterate the conclusions relevant for these cases as under:

"(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 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 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 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 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 Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; 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 High  Court to entertain a review petition is lost thereafter as provided by sub-rule (1) of Rule 1 of Order 47 CPC.”

Supreme Court of India

Khoday Distilleries Ltd. (Now ... vs Sri Mahadeshwara Sahakara ... on 1 March, 2019

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Whether brief Judgments Of Supreme Court Passed After Grant Of Special Leave Are Binding Precedents?

 The argument of the respondent proceeds that the decision
in M/s. Innovatives Systems (supra), neither refers to any
specific provision nor has it expressly over turned the decision of
the Division Bench of the High Court in Ankamma Trading
Company (supra). Thus, it cannot be considered as a binding
precedent. We are not impressed by this submission. Indeed, the
decision of this Court in M/s. Innovatives Systems (supra), is a

brief judgment. That, however, would make no difference. For, it
is well established that once a special leave petition has been
granted, the doors for the exercise of appellate jurisdiction of this
Court have been let open. Resultantly, the order impugned before
the Supreme Court became an order appealed against and any
order passed thereafter would be an appellate order and attract
the doctrine of merger despite the fact that the order is of reversal
or of modification or of affirming the order appealed against and
including is a speaking or nonspeaking
one. This legal position
has been restated in Kunhayammed (supra). Having said this,
we must reject the argument of the respondentState
that the
decision of this Court in M/s. Innovatives Systems (supra), and
other decisions following the same, cannot be considered as
binding precedent.

(REPORTABLE)
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.7574 OF 2014

M/S. S.E. Graphites Private Limited Vs State of Telangana 
A.M. Khanwilkar, J.
Dated:July 10, 2019.

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Whether party can make application for rehearing of appeal if party is permitted to go back to high court after withdrawal of SLP?

It appears that the Appellant filed an application before the High Court in the light of the order extracted above virtually for re-hearing of the appeal itself. It is fairly conceded by Mr. K.V. Viswanathan, learned senior Counsel that once a party is permitted to go back to the High Court, the High Court can be approached only by way of review petition and therefore, there is no basis for the unreasonable stand taken in the High Court for not filing a review petition.
IN THE SUPREME COURT OF INDIA

Civil Appeal No. 10807 of 2016 (Arising out of SLP (C) No. 29122 of 2016)

Decided On: 11.11.2016

 Mackintosh Burn Ltd. Vs.Sarkar & Chowdhury Enterprises Pvt. Ltd.

Hon'ble Judges/Coram:
Kurian Joseph and Rohinton Fali Nariman, JJ.
Citation: (2017) 11 SCC 579.

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Whether Plea not taken in Arbitration proceeding can be raised in S.34 or in SLP?

It is not in dispute that the appellant did not raise the plea based on clause 13(3) of the GCC against respondent No. 1 at any stage of the proceedings either in their reply filed before the Arbitral Tribunal or/and in submissions except raising it, for the first time, before this Court in this appeal.

21. On the other hand, we find that in Section 11(5) proceedings, the appellant did not raise this objection in their reply and instead gave their express consent to refer the issue of award of interest payable on various claims (1 to 17) to Arbitral Tribunal considering the said claim to be arbitrable under the contract.

22. In our opinion, the appellant could have registered their objection before the Single Judge at the time of making a reference to the Arbitral Tribunal by pointing out Clause 13(3) of GCC or could have reserved their right to raise such objection before the Arbitral Tribunal. It was, however, not done.

23. Not only that, we further find that the appellant, in their reply, filed before the Arbitral Tribunal also did not raise this plea and allowed the Arbitral Tribunal to adjudicate the said issue on merits.

24. If the appellant was so keen to place reliance on clause 13(3) of GCC to defeat the claim of respondent No. 1 relating to the award of interest on various claims, then it was necessary for the appellant to have raised such plea specifically, in their reply, before the Arbitral Tribunal. No such plea was raised even before the Arbitral Tribunal.

25. Though we find that the appellant raised this ground, for the first time, in Section 34 proceedings [see-ground (cc)] before the Single Judge but again this ground was not pressed at the time of arguments. It is clear from the perusal of the Single Judge's order. Not only that, the appellant again did not raise this plea before the Division Bench.

26. In the light of aforementioned factual scenario emerging from the record of the case, we cannot grant any indulgence to the appellant (Union of India) to raise such plea for the first time here. In our view, it is a clear case of waiver or/and abandonment of a plea at the initial stage itself.

27. Everyone has a right to waive and to agree to waive the advantage of a law made solely for the benefit and protection of the individual in his private capacity, which may be dispensed with without infringing any public right or public policy.Cuilibet licet renuntiare juri pro se introducto. (See Maxwell on The Interpretation of Statutes 12th Edition at page 328)

28. If a plea is available-whether on facts or law, it has to be raised by the party at appropriate stage in accordance with law. If not raised or/and given up with consent, the party would be precluded from raising such plea at a later stage of the proceedings on the principle of waiver. If permitted to raise, it causes prejudice to other party. In our opinion, this principle applies to this case.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

(Before Abhay Manohar Sapre and Navin Sinha, JJ.)

Union of India v. M/s. Susaka Pvt. Ltd. & Ors.

Civil Appeal No. 8530 of 2009

Decided on December 8, 2017

Citation: 2017 SCC OnLine SC 1436

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Whether single judge of high court can grant certificate of fitness to appeal to Supreme Court?

 Before we consider the merits of the case, it is apposite to deal with one question which though arises, was not argued by pointing out the relevant provisions governing the question.

17. As mentioned above, this appeal is filed on a certificate granted by the High Court (Single Judge) on the oral application made by the Appellant immediately after the pronouncement of the impugned judgment as provided Under Article 134-A of the Constitution. The order granting certificate is a part of the impugned judgment in its concluding Para which reads thus:

Learned Counsel for the Respondent seeks leave of this Court to prefer an appeal against this judgment.

Accordingly, leave is granted."

18. What is the true interpretation of Articles 133 and 134-A of the Constitution and who can grant the certificate of fitness to appeal to the Supreme Court remains no more res integra. It is settled by the decision of this Court in State Bank of India and Anr. v. S.B.I. Employees' Union and Anr. MANU/SC/0146/1987 : 1987 (4) SCC 370.

19. The facts of this case and the one involved in the SBI case (supra) are somewhat similar wherein Their Lordships examined the issue as to whether the certificate granted by the High Court (Single Judge) satisfied the requirements contained in Articles 133 and 134-A. Justice Venkataramiah (as His Lordship then was and later became CJI) speaking for the Bench held thus:

2. The certificate contemplated Under Article 134-A of the Constitution can only be a certificate which is referred to in Clause (1) of Article 132 or in Clause (1) of Article 133 or in Sub-clause (c) of Clause (1) of Article 134 of the Constitution. This is quite obvious from the language of Article 134-A of the Constitution. This case does not fall either Under Article 132(1) or under Sub-clause (c) of Article 134(1) as it neither involves a substantial question of law as to the interpretation of the Constitution nor it is a criminal proceeding. It can only fall, if at all, Under Article 133(1) of the Constitution. Article 133 of the Constitution reads thus:

133. (1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies Under Article 134-A--

(a) that the case involves a substantial question of law of general importance; and

(b) that in the opinion of the High Court the said question needs to be decided by the Supreme Court.

(2) Notwithstanding anything in Article 132, any party appealing to the Supreme Court under Clause (1) may urge as one of the grounds in such appeal that a substantial question of law as to the interpretation of this Constitution has been wrongly decided.

(3) Notwithstanding anything in this article, no appeal shall, unless Parliament by law otherwise provides, lie to the Supreme Court from the judgment, decree or final order of one judge of a High Court.

3. Clause (3) of Article 133 says that notwithstanding anything in that Article no appeal shall, unless Parliament by law otherwise provides, lie to the Supreme Court from the judgment, decree or final order of one judge of the High Court. Before the introduction of Article 134-A of the Constitution by the Forty-fourth Amendment of the Constitution there was no express provision in Articles 132, 133 and 134 of the Constitution regarding the time and manner in which an application for a certificate under any of those articles could be made before the High Court. There was also a doubt as to the power of the High Court to issue a certificate suo motu under any of those articles. Article 134-A was enacted to make good the said deficiencies. Article 134-A does not constitute an independent provision under which a certificate can be issued. It is ancillary to Article 132(1), Article 133(1) and Article 134(1)(c) of the Constitution. That is the reason for the use of words "if the High Court certifies Under Article 134-A" in Article 132(1) and Article 133(1) and for the use of the words certifies Under Article 134-A in Article 134(1)(c). The High Court can issue a certificate only when it is satisfied that the conditions in Article 132 or Article 133 or Article 134 of the Constitution as the case may be are satisfied. In the instant case such a certificate could not have been issued by reason of Clause (3) of Article 133 of the Constitution by the learned Single Judge.

4. The fact that in a similar case a certificate had been issued by a Division Bench of the High Court consisting of two judges in a case decided by the Division Bench did not empower the Single Judge to issue the certificate Under Article 133(1) of the Constitution in a case decided by him. The restriction placed by Clause (3) of Article 133 of the Constitution could not be got over by relying upon the order of the Division Bench.

5. We, therefore, revoke the certificate. This petition of appeal may, however, be treated as a special leave petition Under Article 136 of the Constitution and posted for preliminary hearing.
20. In our considered opinion, the law laid down in S.B.I. case (supra) would squarely apply to the case at hand because in the instant case also, the impugned judgment and the certificate of fitness to file an appeal was passed by the Single Judge of the High Court.

21. As held in S.B.I. case, such certificate/leave could not have been issued/granted by the Single Judge by reason of Clause (3) of Article 133 of the Constitution. In other words, the Single Judge of the High Court had no jurisdiction to grant certificate in the light of restrictions contained in Clause (3) of Article 133 of the Constitution.

22. We, therefore, revoke the certificate granted by the Single Judge of the High Court. However, this appeal is treated as a special leave petition Under Article 136 of the Constitution as was done by this Court in S.B.I. case (supra). Leave is accordingly granted.
IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5817 of 2012

Decided On: 13.04.2017

 Agnigundala Venkata Ranga Rao Vs.  Indukuru Ramachandra Reddy (dead) by L.Rs. and Ors.

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Whether it is permissible to file special leave petition without certified or plain copy of judgment?

We are extremely unhappy that the Bombay High Court
is repeatedly passing orders without making a copy
thereof available to the parties. We request the Hon'ble
the Chief Justice of the Bombay High Court to look into
the matter and consider whether something can be done.
In this case, the order was passed by the High Court
on 8th August, 2016 and even 2 and ½ months later a copy
of the order is not available. This raises a serious
issue of access to justice.
Permission to file SLP without certified as well as
plain copy of the impugned judgment granted.
 S U P R E M E C O U R T O F I N D I A
 RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C)......CC 15432/2016
(Arising out of impugned final judgment and order dated 08/08/2016
in WP No. 8075/2016 passed by the High Court of Bombay)
M/S GADA PROPERTIES PVT LTD 
 V
THE MUNICIPAL CORPORATION OF GREATER BOMBAY AND ORS Respondent(s)
I.A. 1/2016(with permission to file SLP without c/copy as well as
plain copy of impugned order and office report)
Date : 24/10/2016 
This petition was called on for hearing today.
CORAM :
 HON'BLE MR. JUSTICE MADAN B. LOKUR
 HON'BLE MR. JUSTICE ADARSH KUMAR GOEL

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Whether special leave petition is maintainable if basic judgment is not challenged?

 The aforequoted passage has to be appositely understood. The three-Judge Bench has held that any legislation subordinate to the Constitution cannot whittle down or take away the jurisdiction and powers conferred on the constitutional courts of the country. The decisions which we have referred to earlier deal about the maintainability of the challenge to the order of review when the main order is not assailed. The real test is even if the order passed in review is set aside, the order that is not challenged cannot be set aside. The decision in Eastern Coalfields Limited (supra) has been rightly opined in Ripa Sarma's case, has been rendered in ignorance of the earlier judgments of co-equal strength. That apart, we are inclined to agree with the view in Ripa Sarma(supra) wherein it has been observed that the submission with regard to the merger of the main order with the order in review has been merely noticed in Eastern Coalfields Limited (supra) and not accepted. Needless to state that when the prayer for review is dismissed, there can be no merger. If the order passed in review recalls the main order and a different order is passed, definitely the main order does not exist. In that event, there is no need to challenge the main order, for it is the order in review that affects the aggrieved party. The decisions pertaining to maintainability of special leave petition or for that matter appeal have to be seemly understood. Though the decisions in Shanker Motiram Nale (supra) the two-Judge Bench referred to Order 47 Rule 7 of the Code of Civil Procedure that bars an appeal against the order of the court rejecting the review, it is not to be understood that the court has curtailed the plenary jurisdiction Under Article 136 of the Constitution by taking recourse to the provisions in the Code of Civil Procedure. It has to be understood that the Court has evolved and formulated a principle that if the basic judgment is not assailed and the challenge is only to the order passed in review, this Court is obliged not to entertain such special leave petition.The said principle has gained the authoritative status and has been treated as a precedential principle for more than two decades and we are disposed to think that there is hard ly any necessity not to be guided by the said precedent.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2687 of 2006

Decided On: 22.01.2016

 Bussa Overseas and Properties (P) Ltd. and Ors.
Vs.
 Union of India (UOI) and Ors.

Coram:Dipak Misra and Shiva Kirti Singh, JJ.

Citation:(2016) 4 SCC 696,2016(6) MHLJ694
Read full judgment here : Click here

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When order passed in review merges with main order?

 Needless to state that when the prayer for review is dismissed, there can be no merger. If the order passed in review recalls the main order and a different order is passed, definitely the main order does not exist. In that event, there is no need to challenge the main order, for it is the order in review that affects the aggrieved party.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2687 of 2006

Decided On: 22.01.2016

 Bussa Overseas and Properties (P) Ltd. and Ors.
Vs.
 Union of India (UOI) and Ors.

Coram:Dipak Misra and Shiva Kirti Singh, JJ.

Citation:(2016) 4 SCC 696,2016(6) MHLJ694

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When special leave petition is not maintainable?

 It has to be understood that the Court has evolved and formulated a principle that if the basic judgment is not assailed and the challenge is only to the order passed in review, this Court is obliged not to entertain such special leave petition. The said principle has gained the authoritative status and has been treated as a precedential principle for more than two decades and we are disposed to think that there is hardly any necessity not to be guided by the said precedent. 

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2687 of 2006

Decided On: 22.01.2016

Appellants: Bussa Overseas and Properties (P) Ltd. and Ors.
Vs.
Respondent: Union of India (UOI) and Ors.

Hon'ble Judges/Coram:Dipak Misra and Shiva Kirti Singh, JJ.

Citation:(2016) 4 SCC 696

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When supreme court would grant special leave to appeal?

Article"136. (1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion,grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India, (2)....................

The points to be noted in regard to this article are firstly, that it is very general and is not confined merely to criminal cases, as is evident from the words "appeal from any judgment, decree, sentence or order" which occur therein and which obviously cover a wide range of matters; secondly, that the words used in this article are "in any cause or matter," while those used in articles 132 to 134 are "civil, criminal or other proceeding," and thirdly, that while in articles 132 to 134 reference is made to appeals from the High Courts, under this article, an appeal will lie from any court or tribunal in the territory of India. On a careful examination of article 136 along with the preceding article, it seems clear that the wide discretion- ary power with which this Court is invested under it is to be exercised sparingly and in exceptional cases on13,, and as far as possible a more or less uniform standard should be adopted in granting special leave in the wide range of matters which can come up before it under this article. By virtue of this article, we can grant special leave in civil cases, in criminal cases, in income-tax cases, in cases which come up before different kinds of tribunals and in a variety of other cases. The only uniform standard which in our opinion can be laid down in the circumstances is that Court should grant special leave to appeal only in those cases where special circumstances are shown to exist. The Privy Council have tried to lay down from time to time certain principles for granting special leave in criminal cases, which were reviewed by the Federal Court in Kapildeo v. The King. It is sufficient for our purpose to say that though we are not bound to follow them too rigidly since the reasons, constitutional and administrative, which sometimes weighed with the Privy Council, need not weigh with us, yet some of those principles are useful as furnishing in many cases a sound basis for invoking the discretion of this Court in granting special leave. Generally speaking, this Court will not grant special leave, unless it is shown that exceptional and special circumstances exist, that substantial and grave injustice has been done.

Supreme Court of India

Pritam Singh vs The State on 5 May, 1950

Equivalent citations: 1950 AIR 169, 1950 SCR 453

Bench: Fazal Ali, Saiyid, Sastri, M. Patanjali, Mahajan, Mehr Chand, Mukherjea, B.K., Das, Sudhi Ranjan

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Special leave petition would be granted where approach of court whose judgment is under appeal is wrong in law

Petition for leave would be granted where approach of the court whose judgment is under appeal is wrong in law;
 To be fair to Mr. Choudhary, learned Counsel for the respondent, we must notice that his claim that all these are findings of fact not normally open in our jurisdiction under Article 136 of the Constitution must meet with disapproval from us because the whole approach of the High Court and the Subordinate Judge in fixing liability of the appellant was erroneous in law and facts had to be viewed in the right perspective. Even if the facts be taken to have been settled, they at best lead to an inference that the conduct of the appellant was not of a submissive tenant. We reject this contention.

Supreme Court of India

Munisami Naidu vs C. Ranganathan on 30 October, 1990

Equivalent citations: AIR 1991 SC 492, (1991) 1 MLJ 42 SC, (1991) 2 SCC 139

Bench: M Punchhi, S Agrawal

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Whether there is merger when special leave petition is dismissed with reasons?

 It is
well settled that when a special leave petition is dismissed
with reasons, there is a merger of the judgment of the High
Court in the order of the Supreme Court.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 2545-2546/2012
MAJ. GEN. KAPIL MEHRA & ORS.
..Appellants
Versus
UNION OF INDIA & ANR.
Citation;(2015) 2 SCC262

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Power of Supreme court in special leave petition to examine when there is no evidence?

  There cannot be any second opinion that this Court in exercise of  its
jurisdiction under Article 136 does not re-appreciate evidence.    But  when
the submission is that it is a case of no evidence at all, we are  bound  to
examine the matter.
 Reportable
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO. 639 OF 2011

Sangili @ Sanganathan                        …Appellant

            Versus

State of Tamil Nadu                                …Respondent


Citation;2014 ALLSCR3546
Chelameswar, J.

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