Dismissal and withdrawal of SLP can’t be treated at par for the purpose of filing review petition in HC

Delhi High Court: An order passed by the Delhi High Court disposed off the preliminary objection to the maintainability of the review petition, on the ground that the Special Leave Petition (SLP) preferred against the order of which review is sought had been dismissed. A review was sought of the judgment delivered in 2012 and an SLP against the judgment was preferred by the petitioners before Supreme Court.

The petitioners had applied for the correction/rectification of an error in the impugned order averring 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. It was further contended that where a SLP is permitted to be withdrawn and equally when it is dismissed in limine without recording reasons, the High Court’s judgment then is not affected in any manner by the filing and subsequent withdrawal or dismissal of the SLP. For this, the counsel for the petitioner referred to Kunhayammed v. State of Kerala,  (2000) 6 SCC 359 in which the Supreme Court was specifically concerned with the issue of maintainability of review petition wherein, it held that a review petition can be filed subsequent to the dismissal of an SLP and that 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.

The Court noticed the fact in the case before it that the petitioners while seeking to withdraw the SLP also sought liberty to move the High Court in review petition but the Supreme Court merely dismissed the SLP as withdrawn and has not stated that the liberty sought had been granted and observed that Rule 9 of Order XV titled “Petitions Generally” of the Supreme Court Rules, 2013 provides for withdrawal of the petition which further states that once a proceeding /petition is permitted to be withdrawn, the effect of such withdrawal is as if, it had not been preferred. On this, the Bench held that the withdrawal of the petition can not be treated at par with dismissal of the petition and decided the objection in favour of review petitioners. [Kanoria Industries Ltd. v. UOI, 2017 SCC OnLine Del 7215, decided on 27.02.2017]

 

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