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PETITIONER: KUNHAYAMMED & ORS.

       Vs.

RESPONDENT: STATE OF KERALA & ANR.

DATE OF JUDGMENT:       19/07/2000

BENCH: K.T. Thomas, D.P. Mohapatra., & R C Lahoti.

JUDGMENT:

R.C. Lahoti, J.

A  question  of  frequent  recurrence and  of  some  significance involving  the  legal  implications and the impact  of  an  order rejecting  a  petition seeking grant of special leave  to  appeal under  Article  136 of the Constitution of India has  arisen  for decision in this appeal.

Facts in brief :

The  Kerala  Private Forests (Vesting and Assignment)  Act,  1971 (Act 26 of 1971), hereinafter referred to as the Act for short, was  enacted by the State of Kerala to provide for the vesting in the  Government of private forests in the State of Kerala and for the  assignment  thereof  to   agriculturists  and   agricultural labourers  for  cultivation.   The  Act and  the  assent  of  the President  on  the Act were both published in  Kerala  Government Gazette  (Extraordinary)  dated 23.8.1971.  The Act was  given  a retrospective  operation by declaring that it shall be deemed  to have  come  into force on the 10th day of May, 1971.  We are  not concerned with the details of several provisions contained in the Act.   For  our  purpose  it would suffice  to  notice  that  the disputes  -  (i) whether any land is a private forest or not,  or (ii)  whether any private forest or portion thereof is vested  in the  Government  or  not - may be entrusted  for  decision  under Section  8  to a Tribunal constituted under Section 7 of the  Act popularly known as Forest Tribunal.  The Government or any person objecting  to any decision of the Tribunal may within a period of 60  days  from  the date of that decision,  appeal  against  such decision to the High Court under Section 8A of the Act.

There  is a large family consisting of 71 members which raised  a dispute   before  the  Forest   Tribunal,  Kozhikode  which   was registered  as OA 5 of 1981.  Land to the tune of 1020 acres  was the  subject-matter  of  dispute.  By order dated  11.8.1982  the Tribunal  held that the land did not vest in the Government.   An appeal was preferred by the State of Kerala before the High Court of  Kerala  which  was dismissed on 17.12.1982  by  an  elaborate order.   There  was  no statutory remedy of appeal,  revision  or review  provided against the order of the High Court.  The  State of  Kerala  filed  a petition for special leave to  appeal  under Article  136 of the Constitution registered as SLP(C) No.8098  of 1983.  The petition was dismissed by an order dated 18.7.83.  The order  reads as under :- Special leave petition is dismissed  on merits.  By  Amendment  Act No.36 of 1986  published  in  Kerala Government  Gazette  (Extraordinary) dated 1.12.1986  Section  8C

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amongst  others was enacted into the body of the Act giving it  a retrospective effect from 19.11.1983.  Sub-section (2) of Section 8C, with which we are concerned, reads as under:-

8C.  Power of Government to file appeal or application for review in certain cases.

       (1)  xxxx             xxxx            xxxxx              xxxx             xxxx            xxxx

(2)  Notwithstanding anything containing in this Act, or in  the Limitation  Act,  1963 (Central Act 36 of 1963), or in any  other law  for  the time being in force, or in any judgment, decree  or order  of  any court or other authority, the Government, if  they are satisfied that any order of the High Court in an appeal under Section  8A  (including an order against which an appeal  to  the Supreme  Court  has  not been admitted by that  Court)  has  been passed  on  the basis of concessions made before the  High  Court without  the authority in writing of the government or due to the failure  to produce relevant data or other particulars before the High  Court  or  that an appeal against such order could  not  be filed before the Supreme Court by reason of the delay in applying for and obtaining a certified copy of such order, may, during the period  beginning  with  the commencement of the  Kerala  Private Forests  (Vesting and Assignment) Amendment Act, 1986 and  ending on  the 31st day of March, 1987, make an application to the  High Court for review of such order.

xxx                xxx                xxx                xxx

                                  [emphasis supplied]

In  January  1984  the State of Kerala filed an  application  for review  registered  as RP No.14 of 1984 before the High Court  of Kerala seeking review of the order dated 17.12.1982 passed by the High Court.  On behalf of the respondents before the High Court a preliminary  objection  was raised to the maintainability of  the review petition which has been heard and disposed of by the order dated  14th December, 1995 which is put in issue in this  appeal. The  High Court has overruled the preliminary objection as to the maintainability  of the petition and directed the review petition to  be  posted  for  hearing on merits.   Feeling  aggrieved  the petitioners  have sought for leave to appeal to this Court  which has  been  granted on 16.9.1996.  On 14.3.2000 when  this  matter came  up  for hearing before a bench of two Judges they  directed the  matter  to  be referred to a bench of  three  Judges  having regard to the importance of the question involved.

Shri  T.L.V.  Iyer, the learned senior counsel for the  appellant has  raised two contentions:  Firstly, that the order of the High Court dated 17.12.1982 having merged into the order of this court dated  18.7.1983, the order of the High Court had ceased to exist in  the eye of law and therefore an application seeking review of the  order  dated 17.12.1982 passed by the High Court and  before the  High  Court is entirely misconceived;  Secondly,  the  order dated  18.7.1983  passed by this Court amounts to affirmation  of the order dated 17.12.1982 passed by the High Court and therefore the  High Court cannot entertain a prayer for review of its order much less disturb the order in exercise of review jurisdiction.

The doctrine of merger :

The  doctrine  of merger is neither a doctrine of  constitutional law  nor  a doctrine statutorily recognised.  It is a common  law

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doctrine  founded on principles of propriety in the hierarchy  of justice  delivery system.  On more occasions than one this  Court had  an  opportunity of dealing with the doctrine of merger.   It would  be advisable to trace and set out the judicial opinion  of this Court as it has progressed through the times.

In  Commissioner of Income-tax, Bombay Vs.  M/s Amritlal Bhogilal and Co.   AIR 1958 SC 868 this Court held :

There  can be no doubt that, if an appeal is provided against an order  passed  by  a  tribunal, the  decision  of  the  appellate authority  is  the operative decision in law.  If  the  appellate authority  modifies or reverses the decision of the tribunal,  it is  obvious  that it is the appellate decision that is  effective and  can be enforced.  In law the position would be just the same even  if  the appellate decision merely confirms the decision  of the  tribunal.  As a result of the confirmation or affirmance  of the  decision  of  the tribunal by the  appellate  authority  the original  decision merges in the appellate decision and it is the appellate  decision  alone  which subsists and is  operative  and capable of enforcement.

However,  in  the facts and circumstances of the case this  Court refused  to  apply  the doctrine of merger.  There, an  order  of registration  of a firm was made by the Income-tax Officer.   The firm  was  then  assessed  as a registered firm.   The  order  of assessment  of  the assessee was subjected to appeal  before  the Appellate  Commissioner.   Later  on  the  order  passed  by  the Income-tax  Officer  in respect of registration of the  firm  was sought to be revised by the Commissioner of Income-tax.  Question arose whether the Commissioner of Income-tax could have exercised the  power of revision.  This Court held that though the order of assessment  made  by  the  ITO was appealed  against  before  the Appellate  Commissioner,  the  order  of  registration  was   not appeallable  at all and therefore the order granting registration of  the firm cannot be said to have been merged in the  appellate order  of the Appellate Commissioner.  While doing so this  Court analysed  several  provisions  of  the Income-tax Act  so  as  to determine  the  nature  and  scope   of  relevant  appellate  and revisional  powers  and  held if the subject matter  of  the  two proceedings  is not identical, there can be no merger.  In  State of  Madras  Vs.   Madurai Mills Co.Ltd.   AIR 1967 SC  681  this Court held that the doctrine of merger is not a doctrine of rigid and  universal  application and it cannot be said  that  wherever there are two orders, one by the inferior authority and the other by a superior authority, passed in an appeal or revision there is a   fusion   or  merger  of   two  orders  irrespective  of   the subject-matter of the appellate or revisional order and the scope of the appeal or revision contemplated by the particular statute. The  application  of  the doctrine depends on the nature  of  the appellate  or revisional order in each case and the scope of  the statutory  provisions  conferring  the  appellate  or  revisional jurisdiction.

In  M/s  Gojer Brothers Pvt.Ltd.  Vs.  Shri Ratanlal AIR 1974  SC 1380  this Court made it clear that so far as merger is concerned on principle there is no distinction between an order of reversal or  modification  or  an  order of  confirmation  passed  by  the appellate  authority;  in all the three cases the order passed by the  lower  authority  shall  merge in the order  passed  by  the appellate  authority  whatsoever  be its decision    whether  of reversal  or modification or only confirmation.  Their  Lordships

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referred  to an earlier decision of this court in U.J.S.   Chopra Vs.  State of Bombay  AIR 1955 SC 633 wherein it was held.

A  judgment  pronounced  by  a High Court  in  exercise  of  its appellate  or revisional jurisdiction after issue of a notice and a  full hearing in the presence of both the parties would replace the  judgment of the lower court, thus constituting the  judgment of  the  High  Court the only final judgment to  be  executed  in accordance with law by the courts below.

In  S.S.  Rathor Vs.  State of Madhya Pradesh  AIR 1990- SC 10 a larger  Bench  of this Court (Seven-Judges) having  reviewed  the available  decisions  of  the Supreme Court on  the  doctrine  of merger,  held  that  the  distinction  made  between  courts  and tribunals  as regards the applicability of doctrine of merger  is without  any  legal justification;  where a statutory remedy  was provided  against an adverse order in a service dispute and  that remedy  was availed, the limitation for filing a suit challenging the  adverse  order  would  commence not from  the  date  of  the original  adverse  order  but on the date when the order  of  the higher  authority  disposing of the statutory remedy was  passed. Support  was taken from doctrine of merger by referring to C.I.T. Vs.  Amritlal Bhogilal & Co.  (supra) and several other decisions of this Court.

The  logic underlying the doctrine of merger is that there cannot be  more  than one decree or operative orders governing the  same subject-matter  at a given point of time.  When a decree or order passed  by inferior court, tribunal or authority was subjected to a  remedy  available under the law before a superior forum  then, though  the  decree  or  order under challenge  continues  to  be effective  and  binding,  nevertheless  its finality  is  put  in jeopardy.  Once the superior court has disposed of the lis before it  either way - whether the decree or order under appeal is  set aside  or modified or simply confirmed, it is the decree or order of  the superior court, tribunal or authority which is the final, binding  and operative decree or order wherein merges the  decree or  order  passed by the court, tribunal or the authority  below. However,   the  doctrine  is  not   of  universal  or   unlimited application.   The  nature  of   jurisdiction  exercised  by  the superior  forum  and the content or subject-matter  of  challenge laid or which could have been laid shall have to be kept in view.

Stage  of  SLP  and post-leave stage The  appellate  jurisdiction exercised  by  the Supreme Court is conferred by Articles 132  to 136  of the Constitution.  Articles 132, 133 and 134 provide when an  appeal thereunder would lie and when not.  Article 136 of the Constitution  is a special jurisdiction conferred on the  Supreme Court  which is sweeping in its nature.  It is a residuary  power in  the  sense that it confers an appellate jurisdiction  on  the Supreme  Court subject to the special leave being granted in such matters  as may not be covered by the preceding articles.  It  is an  overriding  provision  conferring   a  special   jurisdiction providing  for invoking of the appellate jurisdiction of  Supreme Court  not fettered by the sweep of preceding articles.   Article 136  opens with a non- obstante clause and conveys a message that even in the field covered by the preceding articles, jurisdiction conferred  by  Article  136 is available to be  exercised  in  an appropriate  case.   It  is  an untrammeled  reservoir  of  power incapable   of  being  confined  to  definitional  bounds;    the discretion conferred on the Supreme Court being subjected to only one  limitation,  that is, the wisdom and good sense or sense  of justice  of the Judges.  No right of appeal is conferred upon any

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party;  only a discretion is vested in Supreme Court to interfere by  granting  leave  to an applicant to enter  in  its  appellate jurisdiction not open otherwise and as of right.

The  exercise of jurisdiction conferred on this Court by  Article 136  of  the Constitution consists of two steps :   (i)  granting special  leave  to  appeal;  and (ii) hearing the  appeal.   This distinction  is  clearly demonstrated by the provisions of  Order XVI  of  the Supreme Court Rules framed in exercise of the  power conferred  by Article 145 of the Constitution.  Under Rule 4, the petition seeking special leave to appeal filed before the Supreme Court  under  Article  136 of the Constitution shall be  in  form No.28.  No separate application for interim relief need be filed, which  can be incorporated in the petition itself.  If notice  is ordered on the special leave petition, the petitioner should take steps  to serve the notice on the respondent.  The petition shall be  accompanied  by  a certified copy of the  judgment  or  order appealed  from  and an affidavit in support of the  statement  of facts  contained in the petition.  Under Rule 10 the petition for grant  of  special  leave shall be put up  for  hearing  ex-parte unless there be a caveat.  The court if it thinks fit, may direct issue  of notice to the respondent and adjourn the hearing of the petition.   Under  Rule  13, the respondent to whom a  notice  in special leave petition is issued or who had filed a caveat, shall be  entitled  to  oppose  the grant of leave  or  interim  orders without  filing  any  written objections.  He shall  also  be  at liberty to file his objections only by setting out the grounds in opposition  to  the  questions of law or grounds set out  in  the S.L.P..   On  hearing the Court may refuse the leave and  dismiss the  petition for seeking special leave to appeal either ex-parte or after issuing notice to the opposite party.  Under Rule 11, on the grant of special leave, the petition for special leave shall, subject  to  the  payment  of additional court fee,  if  any,  be treated  as the petition of appeal and it shall be registered and numbered  as such.  The appeal shall then be set down for hearing in  accordance with the procedure laid down thereafter.  Thus,  a petition  seeking grant of special leave to appeal and the appeal itself,   though   both  dealt  with  by  Article  136   of   the Constitution,  are two clearly distinct stages.  In our  opinion, the legal position which emerges is as under :-

1.   While hearing the petition for special leave to appeal,  the Court  is  called  upon to see whether the petitioner  should  be granted  such  leave  or not.  While hearing such  petition,  the Court is not exercising its appellate jurisdiction;  it is merely exercising  its  discretionary  jurisdiction to grant or  not  to grant  leave to appeal.  The petitioner is still outside the gate of  entry though aspiring to enter the appellate arena of Supreme Court.   Whether he enters or not would depend on the fate of his petition for special leave;

2.   If  the  petition  seeking  grant  of  leave  to  appeal  is dismissed,  it  is an expression of opinion by the Court  that  a case  for  invoking appellate jurisdiction of the Court  was  not made out;

3.   If leave to appeal is granted the appellate jurisdiction  of the  Court stands invoked;  the gate for entry in appellate arena is  opened.  The petitioner is in and the respondent may also  be JJ called  upon to face him, though in an appropriate case, in spite of  having  granted  leave to appeal, the court may  dismiss  the appeal without noticing the respondent.

4.   In  spite of a petition for special leave to  appeal  having

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been  filed, the judgment, decree or order against which leave to appeal  has been sought for, continues to be final, effective and binding  as  between the parties.  Once leave to appeal has  been granted,  the finality of the judgment, decree or order  appealed against  is put in jeopardy though it continues to be binding and effective  between  the parties unless it is a nullity or  unless the  Court  may pass a specific order staying or  suspending  the operation  or  execution of the judgment, decree or  order  under challenge.

Dismissal  at  stage of special leave - without reasons - no  res judicata, no merger

Having so analysed and defined the two stages of the jurisdiction conferred by Article 136, now we proceed to deal with a number of decisions  cited  at  the Bar during the course  of  hearing  and dealing  with  the  legal  tenor of an  order  of  Supreme  Court dismissing  a special leave petition.  In Workmen of Cochin  Port Trust Vs.  Board of Trustees of the Cochin Port Trust and Another 1978  (3)  SCC 119, a Three-Judges Bench of this Court  has  held that  dismissal of special leave petition by the Supreme Court by a  non-speaking  order of dismissal where no reasons  were  given does  not constitute res judicata.  All that can be said to  have been  decided  by the Court is that it was not a fit  case  where special  leave  should  be granted.  That may be due  to  various reasons.   During  the course of the judgement,  their  Lordships have  observed  that dismissal of a special leave petition  under Article  136 against the order of a Tribunal did not  necessarily bar  the  entertainment  of  a writ petition  under  Article  226 against  the order of the Tribunal.  The decision of Madras  High Court  in  The  Management  of W.  India  Match  Co.   Ltd.   Vs. Industrial Tribunal, AIR 1958 Mad 398, 403 was cited before their Lordships.   The High Court had taken the view that the right  to apply  for leave to appeal to Supreme Court under Article 136, if it could be called a right at all, cannot be equated to a right to  appeal and that a High Court could not refuse to entertain an application  under Article 226 of the Constitution on the  ground that  the aggrieved party could move Supreme Court under  Article 136  of  the Constitution.  Their Lordships observed that such  a broad   statement  of  law  is   not  quite  accurate,   although substantially it is correct.

In  Indian Oil Corporation Ltd.  Vs.  State of Bihar and Ors.   - AIR  1986 SC 1780 there was a labour dispute adjudicated upon  by an  award  made  by  the Labour Court.  The  employer  moved  the Supreme  Court by filing special leave petition against the award which  was  dismissed  by a non-speaking order in  the  following terms :-

The  special  leave  petition  is  dismissed.  Thereafter   the employer approached the High Court by preferring a petition under Article  226 of the Constitution seeking quashing of the award of the  Labour  Court.   On  behalf of the  employee  the  principal contention  raised  was that in view of the order of the  Supreme Court dismissing the special leave petition preferred against the award of the Labour Court it was not legally open to the employer to  approach the High Court under Article 226 of the Constitution challenging  the  very same award.  The plea prevailed  with  the High  Court forming an opinion that the doctrine of election  was applicable  and  the  employer  having   chosen  the  remedy   of approaching  a superior court and having failed therein he  could not  thereafter  resort to the alternative remedy of  approaching the High Court.  This decision of the High Court was put in issue

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before the Supreme Court.  This Court held that the view taken by the  High Court was not right and that the High Court should have gone  into  the  merits of the writ petition.  Referring  to  two earlier decisions of this Court, it was further held :-

the  effect  of  a non-speaking order of dismissal of  a  special leave  petition, without anything more indicating the grounds  or reasons of its dismissal must, by necessary implication, be taken to be that this Court had decided only that it was not a fit case where  special leave should be granted.  This conclusion may have been  reached  by  this Court due to several reasons.   When  the order  passed  by  this Court was not a speaking one, it  is  not correct  to  assume  that  this  Court  had  necessarily  decided implicitly  all  the questions in relation to the merits  of  the award, which was under challenge before this Court in the special leave  petition.   A  writ proceeding is a wholly  different  and distinct  proceeding.   Questions which can be said to have  been decided by this Court expressly, implicity or even constructively while dismissing the special leave petition cannot, of course, be re- opened in a subsequent writ proceeding before the High Court. But neither on the principle of res judicata nor on any principle of public policy analogous thereto, would the order of this Court dismissing the special leave petition operate to bar the trial of identical  issues  in  a  separate proceeding  namely,  the  writ proceeding  before  the  High  Court merely on the  basis  of  an uncertain  assumption  that the issues must have been decided  by this Court at least by implication.  It is not correct or safe to extend the principle of res judicata or constructive res judicata to such an extent so as to found it on mere guesswork.

It  is  not the policy of this Court to entertain special  leave petitions  and grant leave under Article 136 of the  Constitution save  in  those cases where some substantial question of  law  of general  or  public importance is involved or there  is  manifest injustice  resulting  from the impugned order or  judgment.   The dismissal of a special leave petition in limine by a non-speaking order  does not therefore justify any inference that by necessary implication  the contentions raised in the special leave petition on  the merits of the case have been rejected by this Court.   It may also be observed that having regard to the very heavy backlog of work in this Court and the necessity to restrict the intake of fresh cases by strictly following the criteria aforementioned, it has  very often been the practice of this Court to grant  special leave  in cases where the party cannot claim effective relief  by approaching  the  concerned High Court under Article 226  of  the Constitution.  In such cases also the special leave petitions are quite  often  dismissed  only  by passing  a  non-speaking  order especially  in view of the rulings already given by this Court in the two decisions afore-cited, that such dismissal of the special leave  petition will not preclude the party from moving the  High Court  for seeking relief under Article 226 of the  Constitution. In such cases it would work extreme hardship and injustice if the High  Court were to close its doors to the petitioner and  refuse him  relief  under  Article 226 of the Constitution on  the  sole ground of dismissal of the special leave petition.

                           [emphasis supplied]

In our opinion what has been stated by this Court applies also to a  case where a special leave petition having been dismissed by a non-  speaking  order the applicant approaches the High Court  by moving  a petition for review.  May be that the Supreme Court was not  inclined  to exercise its discretionary  jurisdiction  under Article  136  probably  because it felt that it was open  to  the applicant  to  move the High Court itself.  As nothing  has  been

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said  specifically  in  the order dismissing  the  special  leave petition  one is left merely guessing.  We do not think it  would be just to deprive the aggrieved person of the statutory right of seeking relief in review jurisdiction of the High Court if a case for  relief in that jurisdiction could be made out merely because a  special  leave petition under Article 136 of the  Constitution had already stood rejected by the Supreme Court by a non-speaking order.

In  M/s.  Rup Diamonds and others Vs.  Union of India and  others AIR 1989 SC 674, the law declared by this Court is that it cannot be  said that the mere rejection of special leave petition could, by  itself,  be construed as the imprimatur of this Court on  the correctness of the decision sought to be appealed against.

In  Wilson  Vs.   Colchester Justices 1985 (2)  All  England  Law Reports 97, the House of Lords stated;

There  are  a  multitude of reasons why, in a  particular  case, leave  to appeal may be refused by an Appeal Committee.  I  shall not  attempt  to  embark on an exhaustive list for  it  would  be impossible  to do so.  One reason may be that the particular case raises  no  question  of general principle but turns on  its  own facts.   Another may be that the facts of the particular case are not  suitable  as a foundation for determining some  question  of general  principle.   .  Conversely the  fact  that leave  to appeal is given is not of itself an indication that the judgments  below  are thought to be wrong.  It may well  be  that leave   is  given  in  order  that   the  relevant  law  may   be authoritatively restated in clearer terms.

In  Supreme  Court Employees Welfare Association Vs.   Union  of India  and  Another  1989  (4)  SCC  187,  and  Yogendra  Narayan Chowdhury  and Others Vs.  Union of India and Others 1996 (7) SCC 1, both decisions by Two-Judges Benches, this Court has held that a  non-speaking  order of dismissal of a special  leave  petition cannot  lead  to  assumption that it had necessarily  decided  by implication the correctness of the decision under challenge.

We  may refer to a recent decision, by Two-Judges Bench, of  this Court  in V.M.  Salgaocar & Bros.  Pvt.  Ltd.  Vs.   Commissioner of  Income  Tax 2000 (3) Scale 240, holding that when  a  special leave  petition is dismissed, this Court does not comment on  the correctness  or otherwise of the order from which leave to appeal is  sought.  What the Court means is that it does not consider it to  be  a fit case for exercising its jurisdiction under  Article 136  of  the Constitution.  That certainly could not be  so  when appeal  is  dismissed though by a non- speaking order.  Here  the doctrine  of  merger  applies.  In that case  the  Supreme  Court upholds  the decision of the High Court or of the Tribunal.  This doctrine  of  merger does not apply in the case of  dismissal  of special  leave  petition  under  Article  136.   When  appeal  is dismissed,  order  of the High Court is merged with that  of  the Supreme  Court.   We find ourselves in entire agreement with  the law  so stated.  We are clear in our mind that anorder dismissing a  special  leave petition, more so when it is by a  non-speaking order,  does not result in merger of the order impugned into  the order of the Supreme Court.

A  few decisions which apparently take a view to the contrary may now  be noticed.  In Sree Narayana Dharmasanghom Trust Vs.  Swami Prakasananda  and  Others  1997 (6) SCC 78, it was  held  that  a

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revisional  order of the High Court against which a petition  for special  leave  to appeal was dismissed in limine could not  have been reviewed by the High Court subsequent to dismissal of S.L.P. by  Supreme  Court.  This decision proceeds on the  premises,  as stated  in para 6 of the order, that It is settled law that even the  dismissal of special leave petition in limine operates as  a final  order between the parties.  In our opinion, the order  is final  in  the  sense  that  once a  special  leave  petition  is dismissed,  whether  by  a  speaking or non-  speaking  order  or whether  in  limine or on contest, second special leave  petition would  not lie.  However, this statement cannot be stretched  and applied  to  hold  that such an order attracts  applicability  of doctrine  of merger and excludes the jurisdiction of the Court or authority passing the order to review the same.

In  State  of Maharashtra and Anr.  Vs.  Prabhakar Bhikaji  Ingle 1996  (3)  SCC 463, the view taken by a Two-Judges Bench of  this Court  is that the dismissal of special leave petition without  a speaking  order  does not constitute res judicata but  the  order dealt  with in S.L.P., disposed of by a non-speaking order cannot be  subjected to review by the Tribunal.  In our opinion the  law has  been  too  broadly  stated  through  the  said  observation. Learned  Judges have been guided by the consideration of judicial discipline  which, as we would shortly deal with, is a  principle of  great relevance and may be attracted in an appropriate  case. But  we find it difficult to subscribe to the view, as  expressed in  this decision, that dismissal of SLP without a speaking order amounts  to  confirmation by Supreme Court of the  order  against which  leave was sought for and the order had stood merged in the order of Supreme Court.

Dismissal  of  SLP by speaking or reasoned order - no merger  but Rule of discipline and Article 141 attracted.  The efficacy of an order  disposing of a special leave petition under Article 136 of the  Constitution  came up for the consideration of  Constitution Bench in Penu Balakrishna Iyer and Ors.  Vs.  Ariya M.  Ramaswami Iyer  and Ors.  - AIR 1965 SC 165 in the context of revocation of a  special  leave once granted.  This Court held that in a  given case  if the respondent brings to the notice of the Supreme Court facts which would justify the Court in revoking the leave earlier granted by it, the Supreme Court would in the interest of justice not hesitate to adopt that course.  It was therefore held that no general  rules could be laid down governing the exercise of  wide powers  conferred  on this Court under Article 136;  whether  the jurisdiction  of this Court under Article 136 should be exercised or  not  and if used, on what terms and conditions, is  a  matter depending  on  the  facts  of each case.  If at  the  stage  when special  leave  is granted the respondent- caveator  appears  and resists  the  grant  of  special leave and the  ground  urged  in support  of  resisting the grant of special leave is rejected  on merits  resulting in grant of special leave then it would not  be open  to the respondent to raise the same point over again at the time  of  the  final  hearing of the  appeal.   However,  if  the respondent/caveator does not appear, or having appeared, does not raise  a  point, or even if he raised a point and the Court  does not  decide it before grant of special leave, the same point  can be  raised  at  the  time of final hearing.  There  would  be  no technical bar of res judicata.  The Constitution Bench thus makes it clear that the order disposing of a special leave petition has finality  of  a  limited  nature extending  only  to  the  points expressly decided by it.

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The  underlying  logic  attaching  efficacy to an  order  of  the Supreme  Court  dismissing S.L.P.  after hearing counsel for  the parties  is discernible from a recent Three-Judges Bench decision of  this Court in Abbai Maligai Partnership Firm & Anr.  Vs.   K. Santhakumaran  &  Ors.   1998  (7) SCC 386.   In  the  matter  of eviction  proceeding  initiated before the Rent  Controller,  the order  passed  therein was subjected to appeal and then  revision before  the  High Court.  Special leave petitions were  preferred before  the  Supreme Court where the respondents were present  on caveat.   Both the sides were heard through the senior  advocates representing  them.  The special leave petitions were  dismissed. The High Court thereafter entertained review petitions which were highly  belated and having condoned the delay reversed the orders made  earlier in civil revision petitions.  The orders in  review were  challenged by filing appeals under leave granted on special leave  petitions.  This Court observed that what was done by  the learned  single  Judge was subversive of  judicial  discipline. The  facts and circumstances of the case persuaded this Court  to form  an  opinion  that the tenants were indulging  in  vexatious litigations,  abusing the process of the Court by approaching the High  Court and the very entertainment of review petitions (after condoning  a  long  delay  of 221 days) and  then  reversing  the earlier  orders  was  an  affront to the  order  of  this  Court. However  the learned judges deciding the case have nowhere in the course  of their judgment relied on doctrine of merger for taking the  view  they  have done.  A careful reading of  this  decision brings  out  the  correct statement of law and  fortifies  us  in taking the view as under.

A  petition for leave to appeal to this Court may be dismissed by a  non-speaking  order or by a speaking order.  Whatever  be  the phraseology  employed  in  the  order of dismissal, if  it  is  a non-speaking  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

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law with the High Court.

Incidentally  we  may  notice two other decisions of  this  Court which  though  not directly in point, the law laid  down  wherein would  be  of  some  assistance to  us.   In  Shankar  Ramchandra Abhyankar  Vs.   Krishnaji Dattatraya Bapat AIR 1970 SC  1,  this Court  vide para 7 has emphasized three pre conditions attracting applicability  of  doctrine  of  merger.   They  are  :   i)  the jurisdiction   exercised  should  be   appellate  or   revisional jurisdiction;   ii)  the jurisdiction should have been  exercised after  issue  of  notice;   and, iii) after  a  full  hearing  in presence  of both the parties.  Then the appellate or  revisional order  would  replace  the  judgment  of  the  lower  court   and constitute  the  only  final judgment.  In Sushil Kumar  Sen  Vs. State  of  Bihar AIR 1975 SC 1185 the doctrine of merger  usually applicable  to  orders  passed  in   exercise  of  appellate   or revisional  jurisdiction was held to be applicable also to orders passed  in exercise of review jurisdiction.  This Court held that the  effect of allowing an application for review of a decree  is to  vacate  a  decree passed.  The decree  that  is  subsequently passed  on  review whether it modifies, reverses or confirms  the decree  originally  passed,  is  a  new  decree  superseding  the original  one.   The  distinction  is  clear.   Entertaining   an application  for  review does not vacate the decree sought to  be reviewed.   It  is only when the application for review has  been allowed  that the decree under review is vacated.  Thereafter the matter is heard afresh and the decree passed therein, whatever be the  nature of the new decree, would be a decree superseding  the earlier  one.  The principle or logic flowing from the above-said decisions  can  usefully be utilised for resolving the  issue  at hand.   Mere  pendency of an application seeking leave to  appeal does  not  put  in jeopardy the finality of the decree  or  order sought  to be subjected to exercise of appellate jurisdiction  by the  Supreme Court.  It is only if the application is allowed and leave  to appeal granted then the finality of the decree or order under  challenge is jeopardised as the pendency of appeal reopens the  issues  decided  and  this court is  then  scrutinising  the correctness  of  the  decision  in   exercise  of  its  appellate jurisdiction.

In  Gopalbandhu Biswal Vs.  Krishna Chandra Mohanty & Ors.   1998 (4) SCC 447 there are observations vide para 8 and at a few other places  that  rejection of a special leave petition  against  the order  of administrative tribunal makes the order of the Tribunal final  and binding and the party cannot thereafter go back to the Tribunal  to  apply  for review.  However, paras 12 & 13  of  the judgment  go to show that (i) the applications for review  before the  Tribunal were not within the principle laid down under Order 47  Rule  1 of the C.P.C., (ii) did not comply with the  relevant rules  contained  in Central Administrative Tribunal  (Procedure) Rules, 1987, (iii) the review applicants were not in the category of  persons  aggrieved, and (iv) the review petitions were  filed beyond  the period of limitation prescribed and the delay was not explained.   Thus the case proceeds on the peculiar facts of  its own.

In  Junior  Telecom Officers Forum & Ors.  Vs.  Union of India  & Ors.   1993 Supp.(4) SCC 693 also the view taken by a Two- Judges Bench  of this Court is that the dismissal of the SLP, though  in limine,  was on merits and the Court had declined to  interfere with  the impugned judgment of the High Court except to a limited extent  as noticed therein whereafter the Tribunal could not have reopened  the  matter.  The order passed earlier by  the  Supreme Court  is quoted in para 5 of the report.  It clearly states that on  SLP itself the Court heard counsel of both the sides.   While

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dismissing  the special leave petition on merits, this Court  had to  some extent interfere with the order of the High Court  which was  put in issue before the Supreme Court.  It is clear that the Supreme  Court had exercised appellate jurisdiction vested in  it under  Article  136 of the Constitution and heard both the  sides though  the leave was not formally granted and the special  leave petition  was not formally converted into an appeal.  Hence  this decision rests on the special facts of that case.

In  Supreme  Court Employees Welfare Associations case  (supra), this Court held :-

When  Supreme  Court  gives reasons while dismissing  a  special leave  petition under Article 136 the decision becomes one  which attracts  Article  141.   But  when no reason is  given  and  the special leave petition is summarily dismissed, the Court does not lay down any law under Article 141.  The effect of a non-speaking order  of dismissal of a special leave petition without  anything more  indicating the grounds or reasons of its dismissal must, by necessary  implication, be taken to be that the Supreme Court had decided  only  that  it was not a fit case  where  special  leave petition should be granted.

Leave granted - dismissal without reasons - merger results It may be that in spite of having granted leave to appeal, the Court may dismiss  the  appeal  on  such   grounds  as  may  have  provided foundation for refusing the grant at the earlier stage.  But that will  be a dismissal of appeal.  The decision of this Court would result  in  superseding  the  decision  under  appeal  attracting doctrine  of merger.  But if the same reasons had prevailed  with this Court for refusing leave to appeal, the order would not have been an appellate order but only an order refusing to grant leave to appeal.

Doctrine of merger and review :-

               This question directly arises in the case before us.

The doctrine of merger and the right of review are concepts which are  closely inter-linked.  If the judgment of the High Court has come  up  to  this Court by way of a special leave,  and  special leave  is  granted and the appeal is disposed of with or  without reasons,  by  affirmance or otherwise, the judgment of  the  High Court  merges with that of this Court.  In that event, it is  not permissible to move the High Court by review because the judgment of  the  High Court has merged with the judgment of  this  Court. But  where the special leave petition is dismissed - there  being no  merger, the aggrieved party is not deprived of any  statutory right  of  review, if it was available and he can pursue it.   It may  be  that  the  review court may interfere,  or  it  may  not interfere  depending  upon the law and principles  applicable  to interference  in the review.  But the High Court, if it exercises a  power of review or deals with a review application on merits - in  a  case where the High Courts order had not merged  with  an order  passed  by this Court after grant of special leave  -  the High  Court could not, in law, be said to be wrong in  exercising statutory jurisdiction or power vested in it.

It  will  be  useful to refer to Order 47 Rule 1 of the  Code  of Civil Procedure 1908.  It reads as follows :

R.1.  Application for review of judgment.

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(1)        Any person considering himself aggrieved, -

(a)  by  a decree or order from which an appeal is  allowed,  but from which no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed, or

(c)  by a decision on reference from a Court of Small Causes, and who,  from the discovery of new and important matter or  evidence which,  after  the exercise of due diligence, was not within  his knowledge  or  could not be produced by him at the time when  the decree was passed or order made, or on account of some mistake or error  apparent  on  the  face of the record, or  for  any  other sufficient  reason,  desires  to obtain a review  of  the  decree passed  or  order  made against him, may apply for  a  review  of judgment to the Court which passed the decree or made the order.

(2) A party who is not appealing from a decree or order may apply for  a  review  of judgment notwithstanding the  pendency  of  an appeal by some other party except where the ground of such appeal is  common  to  the applicant and the appellant, or  when,  being respondent,  he  can present to the Appellate Court the  case  on which he applies for the review.

[Explanation.   - The fact that the decision on a question of law on  which the judgment of the Court is based has been reversed or modified  by  the subsequent decision of a superior Court in  any other  case,  shall  not  be  a ground for  the  review  of  such judgment.]

For  our purpose it is clause (a) sub-rule(1) which is  relevant. It  contemplates a situation where an appeal is allowed but no appeal  has been preferred.  The Rule came up for  consideration of this Court in Thungabhadra Industries Ltd.  Vs.  The Govt.  of A.P.   (AIR  1964 SC 1372) in the context of Article 136  of  the Constitution  of  India.  The applicant had filed an  application for  review  of the order of the High Court refusing to  grant  a certificate under Article 133 of the Constitution.  The applicant also  filed an application for special leave to appeal in respect of  the  same matter under Article 136 along with an  application for  condonation of delay.  The Supreme Court refused to  condone the  delay and rejected the application under Article 136.   When the  application for review came up for consideration before  the High Court, it was dismissed on the ground that the special leave petition  had  been dismissed by the Supreme Court.   This  Court held  that  the crucial date for determining whether or  not  the terms  of  Order 47 Rule 1(1) CPC are satisfied is the date  when the  application for review is filed.  If on that date no  appeal has been filed it is competent for the Court hearing the petition for   review  to  dispose  of   the  application  on  the  merits notwithstanding the pendency of the appeal, subject only to this, that  if before the application for review is finally decided the appeal itself has been disposed of, the jurisdiction of the Court hearing  the  review petition would come to an end.  On the  date when  the application for review was filed the applicant had  not filed  an appeal to this Court and therefore there was no bar  to the petition for review being entertained.

Let us assume that the review is filed first and the delay in the SLP  is  condoned  and the special leave petition  is  ultimately granted  and  the appeal is pending in this Court.  The  position then,  under Order 47 Rule 1 CPC is that still the review can  be disposed  of  by  the High Court.  If the review of a  decree  is granted before the disposal of the appeal against the decree, the decree  appealed against will cease to exist and the appeal would

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be rendered incompetent.  An appeal cannot be preferred against a decree  after a review against the decree has been granted.  This is  because the decree reviewed gets merged in the decree  passed on  review and the appeal to the superior court preferred against the earlier decree - the one before review - becomes infructuous.

The Review can be filed even after SLP is dismissed is clear from the  language of Order 47 Rule 1 (a).  Thus the words no  appeal has  been  preferred  in  Order 47 Rule 1(a) would  also  mean  a situation where special leave is not granted.  Till then there is no  appeal  in  the  eye  of   law  before  the  superior  court. Therefore,  the review can be preferred in the High Court  before special  leave  is  granted, but not after it  is  granted.   The reason   is  obvious.   Once  special   leave  is   granted   the jurisdiction  to consider the validity of the High Courts  order vests  in the Supreme Court and the High Court cannot entertain a review thereafter, unless such a review application was preferred in the High Court before special leave was granted. Conclusions :-

We  have catalogued and dealt with all the available decisions of this  Court  brought to our notice on the point at issue.  It  is clear  that  as  amongst the several two-Judges  Bench  decisions there  is a conflict of opinion and needs to be set at rest.  The source  of power conferring binding efficacy on decisions of this Court  is not uniform in all such decisions.  Reference is  found having  been  made to (i) Article 141 of the  Constitution,  (ii) doctrine  of  merger,  (iii)  res-judicata,   and  (iv)  Rule  of discipline flowing from this Court being the highest court of the land.

A  petition  seeking  grant  of special leave to  appeal  may  be rejected  for  several reasons.  For example, it may be  rejected (i)  as  barred by time, or (ii) being a defective  presentation, (iii) the petitioner having no locus standi to file the petition, (iv)  the  conduct  of  the petitioner disentitling  him  to  any indulgence  by  the  Court,  (iv)  the  question  raised  by  the petitioner  for  consideration  by this Court being not  fit  for consideration  or deserving being dealt with by the apex court of the  country  and so on.  The expression often employed  by  this Court  while  disposing  of  such  petitions  are  -  heard  and dismissed, dismissed, dismissed as barred by time and so on. May  be  that  at the admission stage itself the  opposite  party appears  on  caveat  or  on  notice and  offers  contest  to  the maintainability of the petition.  The Court may apply its mind to the  meritworthiness of the petitioners prayer seeking leave  to file an appeal and having formed an opinion may say dismissed on merits.   Such an order may be passed even ex-parte, that is, in the  absence  of the opposite party.  In any case, the  dismissal would remain a dismissal by a non-speaking order where no reasons have  been  assigned and no law has been declared by the  Supreme Court.   The  dismissal is not of the appeal but of  the  special leave petition.  Even if the merits have been gone into, they are the  merits  of the special leave petition only.  In our  opinion neither doctrine of merger nor Article 141 of the Constitution is attracted to such an order.  Grounds entitling exercise of review jurisdiction  conferred by Order 47 Rule 1 of the C.P.C.  or  any other  statutory provision or allowing review of an order  passed in exercise of writ or supervisory jurisdiction of the High Court (where  also the principles underlying or emerging from Order  47 Rule  1 of the C.P.C.  act as guidelines) are not necessarily the same  on which this court exercises discretion to grant or not to grant  special leave to appeal while disposing of a petition  for the  purpose.  Mere rejection of special leave petition does  not take  away the jurisdiction of the court, tribunal or forum whose

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order  forms the subject matter of petition for special leave  to review   its  own  order  if   grounds  for  exercise  of  review jurisdiction  are  shown to exist.  Where the order rejecting  an SLP  is  a  speaking  order, that is,  where  reasons  have  been assigned  by  this Court for rejecting the petition  for  special leave and are stated in the order still the order remains the one rejecting  prayer  for  the  grant  of  leave  to  appeal.    The petitioner  has been turned away at the threshold without  having been  allowed  to  enter in the appellate  jurisdiction  of  this Court.   Here  also the doctrine of merger would not apply.   But the  law  stated  or declared by this Court in  its  order  shall attract  applicability  of Article 141 of the Constitution.   The reasons  assigned  by  this  Court in its  order  expressing  its adjudication  (expressly or by necessary implication) on point of fact  or law shall take away the jurisdiction of any other court, tribunal  or authority to express any opinion in conflict with or in departure from the view taken by this Court because permitting to  do  so  would  be subversive of judicial  discipline  and  an affront to the order of this Court.  However this would be so not by reference to the doctrine of merger.

Once a special leave petition has been granted, the doors for the exercise  of  appellate jurisdiction of this Court have been  let open.   The  order impugned before the Supreme Court  becomes  an order  appealed against.  Any order passed thereafter would be an appellate  order and would attract the applicability of  doctrine of  merger.  It would not make a difference whether the order  is one  of reversal or of modification or of dismissal affirming the order appealed against.  It would also not make any difference if the  order  is  a speaking or non- speaking one.   Whenever  this Court  has  felt inclined to apply its mind to the merits of  the order  put in issue before it though it may be inclined to affirm the  same,  it  is customary with this Court to  grant  leave  to appeal  and thereafter dismiss the appeal itself (and not  merely the  petition  for  special  leave) though at  times  the  orders granting  leave to appeal and dismissing the appeal are contained in  the  same  order  and at times the orders  are  quite  brief. Nevertheless,   the  order  shows   the  exercise  of   appellate jurisdiction  and therein the merits of the order impugned having been subjected to judicial scrutiny of this Court.

To  merge  means  to sink or disappear in something  else;   to become  absorbed or extinguished;  to be combined or be swallowed up.   Merger  in law is defined as the absorption of a  thing  of lesser  importance  by  a greater, whereby the lesser  ceases  to exist,  but  the  greater  is not increased;   an  absorption  or swallowing  up  so  as  to  involve   a  loss  of  identity   and individuality.   (See  Corpus  Juris Secundum,  Vol.   LVII,  pp. 1067-1068)

We  may look at the issue from another angle.  The Supreme  Court cannot  and  does  not  reverse or modify  the  decree  or  order appealed  against while deciding a petition for special leave  to appeal.   What  is  impugned  before the  Supreme  Court  can  be reversed or modified only after granting leave to appeal and then assuming  appellate jurisdiction over it.  If the order  impugned before the Supeme Court cannot be reversed or modified at the SLP stage  obviously  that order cannot also be affirmed at  the  SLP stage.

To sum up our conclusions are :-

(i) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue

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before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law.

ii) The jurisdiction conferred by Article 136 of the Constitution is  divisible into two stages.  First stage is upto the  disposal of  prayer for special leave to file an appeal.  The second stage commences  if and when the leave to appeal is granted and special leave petition is converted into an appeal.

(iii)  Doctrine  of  merger  is not a doctrine  of  universal  or unlimite   application.   It  will  depend   on  the  nature   of jurisdiction  exercised by the superior forum and the content  or subject-matter  of challenge laid or capable of being laid  shall be  determinative  of the applicability of merger.  The  superior jurisdiction  should  be  capable  of  reversing,  modifying   or affirming the order put in issue before it.  Under Article 136 of the  Constitution the Supreme Court may reverse, modify or affirm the  judgment-decree  or order appealed against while  exercising its   appellate  jurisdiction  and   not  while  exercising   the discretionary  jurisdiction  disposing  of petition  for  special leave to appeal.  The doctrine of merger can therefore be applied to the former and not to the latter.

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 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 Supreme Court the jurisdiction of High Court to entertain a revew petition  is lost thereafter as provided by sub-rule (1) of  Rule (1) of Order 47 of the C.P.C.

Having thus made the law clear, the case at hand poses no problem for  solution.  The earlier order of the High Court was sought to be  subjected  to exercise of appellate jurisdiction  of  Supreme Court  by  the State of Kerala wherein it did not  succeed.   The prayer  contained in the petition seeking leave to appeal to this Court  was  found devoid of any merits and hence dismissed.   The order  is a non- speaking and unreasoned order.  All that can  be

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spelled  out is that the Court was not convinced of the need  for exercising  its  appellate jurisdiction.  The order of  the  High Court dated 17.12.1982 did not merge in the order dated 18.7.1983 passed  by this Court.  So it is available to be reviewed by  the High  Court.  Moreover such a right of review is now  statutorily conferred  on the High Court by sub-section (2) of Section 8C  of the  Kerala  Act.   Legislature  has taken  care  to  confer  the jurisdiction  to  review on the High Court as to  such  appellate orders  also  against which though an appeal was carried  to  the Supreme  Court, the same was not admitted by it.  An appeal would be  said  to have been admitted by the Supreme Court if leave  to appeal  was granted.  The constitutional validity of  sub-section (2)  of Section 8C has not been challenged.  Though, Shri  T.L.V. Iyer,  the learned senior counsel for the appellant made a feeble attempt  at  raising  such  a plea at the  time  of  hearing  but unsuccessfully,  as such a plea has not so far been raised before the High Court also not in the petition filed before this Court.

No fault can be found with the approach of the High Court.  The appeal is dismissed.  No order as to the costs.