Summary
The Court referred to a larger Bench whether a fresh special leave petition challenging the original judgment is maintainable after an earlier petition was withdrawn with liberty only to seek High Court review. It identified tension between decisions requiring express liberty to return and the reasoning that refusal of special leave does not attract merger. The underlying property dispute was not decided.
Issues
- Whether liberty to seek High Court review, without express liberty to file a fresh special leave petition, permits a subsequent challenge to the original judgment after review fails.
- Whether a special leave petition directed only against rejection of review is maintainable.
Provisions considered
- Order XLVII Rule 7, Code of Civil Procedure, 1908The Bench accepted the objection to a special leave challenge directed solely against rejection of review; the unresolved question concerned the renewed challenge to the original appellate judgment. (¶¶ 26, 28, 29)
- Articles 136 and 141, Constitution of IndiaThe Bench considered conflicting implications of precedents on withdrawn special leave petitions, merger and the effect of non-speaking refusals, and referred the maintainability question to a larger Bench. (¶¶ 27, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42)
Held
- The present challenge included both the original appellate judgment and the rejection of review. The Bench agreed that rejection of review could not independently be challenged through special leave under the principle it drew from Order XLVII Rule 7; that did not settle whether the original judgment could be challenged again. (¶¶ 19, 20, 21, 22, 26, 28, 29)
- Vinod Kapoor and Sandhya Educational Society required express permission to file another special leave petition after withdrawal. The Bench considered that the non-merger reasoning in Khoday Distilleries and Kunhayammed raised a question about that requirement where leave had not been granted and the earlier dismissal was non-speaking. These observations formed the basis for reference rather than a final ruling permitting repeated petitions. (¶¶ 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41)
- The maintainability objection was to be resolved by a larger Bench before the underlying merits could be examined by an appropriate Bench. The papers were directed to the Chief Justice of India for constitution of that larger Bench. (¶¶ 25, 41, 42)
Result
Maintainability question referred to a larger Bench; papers to be placed before the Chief Justice of India. Merits of the property dispute left for an appropriate Bench after resolution of that question.