The doctrine of merger applies when a special leave petition is dismissed after hearing both sides, and the review petition, filed after the dismissal of the special leave petition, is not maintainable.

JUDGMENT :

B.V. Nagarathna, J.

There is delay of 1502 days in filing this review petition. I.A. No.1 of 2018 is filed seeking condonation of delay.

2. We have heard Sri K.N. Phanindra, learned senior counsel appearing for the petitioners and Sri K.A. Prakash, learned counsel for respondent No.1, not only on I.A. No.1 of 2018, but also on the question of maintainability of review petition.

3. This review petition is preferred against the judgment and decree passed by this Court in Regular First Appeal No. 1021 of 2004 on 03/09/2013 by which the appeal was dismissed on merits. The said appeal was filed by the petitioners herein, being aggrieved by the judgment and decree dated 26/06/2004 passed in Original Suit No.31 of 1992 by the Court of the Civil Judge (Senior Division) and Judicial Magistrate First Class, Bhadravathi, the said suit filed by respondent No.1 being decreed.

4. At this stage, it is pertinent to mention as against the judgment passed by this Court in Regular First Appeal No.1021 of 2004, a Petition for Special Leave to Appeal (C) No.33605 of 2013 was filed before the Hon'ble Supreme Court by the petitioners herein. On hearing learned counsel for the respective parties, the Special Leave Petition was dismissed by order dated 24/04/2017. Thereafter, on 14/11/2017, this review petition has been filed. That is how there is a delay of 1502 days in filing this review petition which is about four years two months.

5. Learned senior counsel appearing for the petitioners submitted that although the petitioners herein were unsuccessful before the Hon'ble Supreme Court, nevertheless, this review petition is maintainable in as much as there is no merger of the judgment of this Court with that of the Hon'ble Supreme Court which has dismissed the Special Leave Petition filed against the judgment in Regular First Appeal No.1021 of 2004. In support of his submission, he placed reliance on Khoday Distilleries Limited (now known as Khoday India Limited) & others vs. Sri Mahadeshwara Sahakara Sakkare Karkhane Limited, Kollegal (under liquidation) represented by the liquidator, 2019 4 SCC 376 (Khoday Distilleries Limited). He also relied upon another judgment of the Hon'ble Supreme Court in the case of Kunhayammed & others vs. State of Kerala & another, (2000) 6 SCC 359 (Kunhayammed). He submitted that the delay in filing the review petition is due to the bona fide reason that the petitioners herein had approached the Hon'ble Supreme Court against the judgment passed in RFA No.1021/2004 and were prosecuting the same and after the dismissal of the special leave petition on 24/04/2017, this review petition has been filed. Learned senior counsel contended that the delay in filing the review petition may be condoned and the review petition may be heard on merits.

6. Per contra, learned counsel for respondent No.1, at the outset submitted that the review petition is not maintainable before this Court. That the petitioners, being aggrieved by the judgment passed by this Court in RFA.No.1021/2004, preferred special leave petition before the Hon'ble Supreme Court. On 24/04/2017, the Hon'ble Supreme Court, after hearing the respective parties dismissed the special leave petition. Subsequently, the petitioners herein could not have approached this Court by way of this review petition without obtaining leave or liberty from the Hon'ble Supreme Court. In support of his submission, he placed reliance on another judgment of the Hon'ble Supreme Court in the case of Abbai Maligai Partnership Firm & another vs. K.Santhakumaran & others,1998 7 SCC 286 (Abbai Maligai Partnership Firm). He submitted that the review petition may be dismissed as not maintainable.

7. In the circumstances, we have considered the issue of maintainability of the review petition in the first instance. The facts narrated above would not call for any reiteration except highlightin