The main legal point established in the judgment is the interpretation of the maintainability of a review petition after the dismissal of a Special Leave Petition (SLP) and the application of Rule 9 of Order XV of the Supreme Court Rules, 2013.

RAJIV SAHAI ENDLAW, J.

Review Petition No.335/2013

1. This order disposes of the preliminary objection to the very maintainability of the review petition, on the ground that the Special Leave Petition (SLP) preferred against the order of which review is sought having been dismissed, this Court cannot review its judgment.

2. Review is sought of the judgment dated 13th July, 2012 of dismissal of the writ petition. The petitioners preferred SLP(C) No.31982/2012 against the said judgment and which came up before the Supreme Court on 7th December, 2012, when the following order was passed:

“UPON hearing counsel the Court made the following

ORDER

After some arguments, counsel for the petitioner seeks permission to withdraw the special leave petition with liberty to the petitioner to move the High Court in a review petition.

The special leave petition is dismissed as withdrawn.”

3. It is the case of the petitioners that the petitioners on 14th January, 2013 filed an application for correction/rectification of an error in the aforesaid order, averring that the liberty sought and granted had remained to be noted therein, but the counsel for the petitioners was informed that the application was considered and would not be listed for hearing.

4. We have heard the senior counsel for the review petitioners as well as the counsel for the respondent Union of India (UOI) and have also perused the written submissions filed on the said preliminary objection.

5. The senior counsel for the review petitioners has contended (i) that once the Supreme Court permits withdrawal of a SLP without recording reasons, it is as if no appeal was ever filed or entertained since in the absence of grant of special leave, there is no appeal in existence; (ii) that where a SLP is permitted to be withdrawn and equally when it is dismissed in limine without recording reasons, the High Court’s judgment neither merges into any proceedings before the Supreme Court nor is it in any manner affected by the filing and subsequent withdrawal or dismissal of the SLP; (iii) that a three Judges Bench of the Supreme Court in Kunhayammed Vs. State of Kerala (2000) 6 SCC 359 expressly concerned with the issue of maintainability of a review petition after the dismissal in limine of the SLP and after noticing conflicting judgments held that a review petition can be filed subsequent to the dismissal of an SLP inasmuch as at the stage of dismissal of an SLP, there exists no appeal in the eyes of law as at that stage the Supreme Court is exercising its discretionary jurisdiction and not the appellate jurisdiction; only when the Supreme Court grants leave in SLP and converts it into an appeal and the appeal thereafter is disposed of with or without reasons, that the judgment of the Supreme Court merges with that of the High Court and where-after review petition cannot be filed; (iv) that Kunhayammed (supra) has been followed in National Housing Coop. Society Vs. State of Rajasthan (2005) 12 SCC 149, Palani Roman Catholic Mission Vs. S. Bagirathi Ammal (2009) 16 SCC 657, Gangadhara Palo Vs. Revenue Divisional Officer (2011) 4 SCC 602, Bakshi Dev Raj Vs. Sudheer Kumar (2011) 8 SCC 679, Bhakra Beas Management Board Vs. Krishan Kumar Vij (2010) 8 SCC 701 and Sri Ram Builders Vs. State of Madhya Pradesh (2014) 14 SCC 102; (v) that the earlier judgment also of a three Judges Bench in Abbai Maligai Partnership Firm Vs. K. Santhakumaran (1998) 7 SCC 386 turned on its own facts; in that case SLP was dismissed on merits, after issuance of notice and a full contest between the parties; it was in such a situation that the Supreme Court held that subsequent to dismissal of SLP in that case, review petition could not have been entertained by the High Court; (vi) that it is not as if Abbai Maligai Partnership Firm (supra) was not noticed in Kunhayammed (supra); it was held to be not laying down the law to the contrary; (vii) that the judgments in K. Rajamouli Vs. A.V.K.N. Swamy (2001) 5 SCC 37 and Meg