REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5280 OF 2006

Gangadhara Palo ..Appellant

versus

The Revenue Divisional Officer & Another ..Respondents

O R D E R

Heard learned counsel for the parties.

This  Appeal  has  been  filed  against  the  impugned  

judgment/order dated 28th January, 2005 passed by the High  

Court of Andhra Pradesh at Hyderabad.  

By that order, the review petition as well as the  

application for condonation of delay in filing the review  

petition have been dismissed.

The delay was only of 71 days and, in our opinion, a  

liberal view should have been taken by the High Court and  

delay of 71 days in filing the review petition should have  

been  condoned  and  the  review  petition  should  have  been  

decided on merits.  Hence, we condone the delay of 71 days  

in filing the review petition before the High Court.

As  regards  the  maintainability  of  the  review  

petition,  Mr.  Sanjay  Kapur,  learned  counsel  for  the  

respondent submitted that it was not maintainable because

against the main judgment of the High Court dated 19th June,  

2001 dismissing the writ petition of the appellant herein,

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the appellant herein filed a special leave petition in this  

Court which was dismissed on 17th September, 2001.   

The  aforesaid  order  of  this  Court  dismissing  the  

special  leave  petition  simply  states  “The  Special  Leave  

Petition is dismissed”. Thus, this order gives no reasons.  

In  support  of  his  submission,  learned  counsel  for  the  

respondent has relied upon a decision of this Court in the  

case of K. Ajamouli vs. A.V.K.N. Swamy (2001) 5 SCC 37 and  

has submitted that there is a distinction between a case  

where  the  review  petition  was  filed  in  the  High  Court  

before the dismissal of the special leave petition by this  

Court, and a case where the review petition was filed after  

the dismissal of the special leave petition by this Court.

We regret, we cannot agree.  In our opinion, it will  

make no difference whether the review petition was filed in  

the High Court before the dismissal of the special leave  

petition  or  after  the  dismissal  of  the  special  leave  

petition.   The  important  question  really  is  whether  the  

judgment of the High Court has merged into the judgment of  

this Court by the doctrine of merger or not.

When this Court dismisses a special leave petition  

by giving some reasons, however meagre ( it can be even of

just one sentence), there will be a merger of the judgment  

of  the  High  Court  into  the  order  of  the  Supreme  Court  

dismissing the special leave petition.  According to the  

doctrine of merger, the judgment of the lower court merges  

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into the judgment of the higher court.  Hence, if some  

reasons,  however  meagre,  are  given  by  this  Court  while  

dismissing the special leave petition, then by the doctrine  

of merger, the judgment of the High Court merges into the  

judgment  of  this  Court  and  after  merger  there  is  no  

judgment of the High Court. Hence, obviously, there can be  

no review of a judgment which does not even exist.

The situation is totally different where a special  

leave  petition  is  dismissed  without  giving  any  reasons  

whatsoever.  It  is  well  settled  that  special  leave  under  

Article 136 of the Constitution of India is a discretionary  

remedy, and hence a special leave petition can be dismissed  

for a variety of reasons and not necessarily on merits.  We  

cannot  say  what  was  in  the  mind  of  the  Court  while  

dismissing the special leave petition without giving any  

reasons.  Hence, when a special leave petition is dismissed  

without  giving  any  reasons,  there  is  no  merger  of  the  

judgment of the High Court with the order of this Court.  

Hence, the judgment of the High Court can be reviewed since  

it  continues  to  exist,  though  the  scope  of  the  review  

petition is limited to errors apparent on the face of the

record. If, on the other hand, a special leave petition is  

dismissed with reasons, however meagre (it can be even of  

just one sentence), there is a merger of the judgment of  

the High Court in the order of the Supreme Court.  (See the  

decisions of this Court in the cases of Kunhay Ammed &  

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Others vs. State of Kerala & Another (2000) 6 SCC 359;  

S.Shanmugavel Nadar vs. State of Tamil Nadu & Another JT  

2002 (7) SCC 568; State of Manipur vs. Thingujam Brojen  

Meetei  AIR  1996  SC  2124;  and  U.P.State  Road  Transport  

Corporation  vs.  Omaditya  Verma  and  others  AIR  2005  SC  

2250).

A judgment which continues to exist can obviously be  

reviewed,  though  of  course  the  scope  of  the  review  is  

limited to errors apparent on the face of the record but it  

cannot be said that the review petition is not maintainable  

at all.

Learned counsel for the respondent Mr. Sanjay Kapur  

has, however, invited our attention to paragraph 4 of the  

judgment of this Court in the case of K.Rajamouli (supra),  

wherein it was observed:

“Following  the  decision  in  the  case  of  Kunhayammed (2000) 6 SCC 359, we are of the view  that the dismissal of the special leave petition  against the main judgment of the High Court would  not constitute res judicata when a special leave

petition is filed against the order passed in the  review petition provided the review petition was  filed prior to filing of special leave petition  against the main judgment of the High Court.  The  position would be different where after dismissal  of the special leave petition against the main  judgment a party files a review petition after a  long  delay  on  the  ground  that  the  party  was  prosecuting  remedy  by  way  of  special  leave  petition.  In  such  a  situation  the  filing  of  review would be an abuse of the process of the  law.  We are in agreement with the view taken in  Abbai Maligai Partnership Firm (1998) 7 SCC 386  that if the High Court allows the review petition  filed after the special leave petition was  

CIVIL APPEAL NO.5280 OF 2006

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dismissed  after  condoning  the  delay,  it  would  betreated  as  an  affront  to  the  order  of  the  Supreme Court.  But this is not the case here.  In the present case, the review petition was filed  well within time and since the review petition  was  not  being  decided  by  the  High  Court,  the  appellant  filed  the  special  leave  petition  against the main judgment of the High Court.  We,  therefore, overrule the preliminary objection of  the counsel for the respondent and hold that this  appeal arising out of special leave petition is  maintainable.”

We  have  carefully  perused  paragraph  4  of  the  

aforesaid judgment.  What has been observed therein is that  

if the review petition is filed in the High Court after the  

dismissal  of  the  special  leave  petition,  'it  would  be  

treated as an affront to the order of the Supreme Court'.

In  our  opinion,  the  above  observations  cannot  be  

treated  as  a  precedent  at  all.   We  are  not  afraid  of  

affronts.  What has to be seen is whether a legal principle  

is laid down or not.  It is totally irrelevant whether we

have been affronted or not.   

A  precedent  is  a  decision  which  lays  down  some  

principle of law.  In our view, the observations made in  

para 4 of the aforesaid judgment, quoted above, that “if a  

review petition is filed after the dismissal of the special  

leave petition, it would be treated as an affront to the  

order of the Supreme Court”  is not a precedent at all.  A  

mere stray observation of this Court, in our opinion, would  

not amount to a precedent.  The above observation of this  

Court  is,  in  our  opinion,  a  mere  stray  observation  and  

hence not a precedent.    

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By a judicial order, the power of review cannot be  

taken away as that has been conferred by the statute or the  

Constitution.  This Court by judicial orders cannot amend  

the statute or the Constitution.

For the reasons given above, we allow this appeal,  

set aside the impugned order of the High Court, condone the  

delay in filing the review petition before the High Court  

and  remand  the  matter  to  the  High  Court  to  decide  the  

review  petition  on  merits  in  accordance  with  law  

expeditiously after hearing the parties concerned.

............................J. [MARKANDEY KATJU]

NEW DELHI; ............................J. MARCH 08, 2011 [GYAN SUDHA MISRA]