ADV. AMOL CHITALE.1

Withdrawal of a Special Leave Petition (Hereinafter referred to as "SLP") with a liberty to file a Review Petition before the High Court used to be often the last succour for the practioners in the Supreme Court to avoid the dismissal of their SLPs. However the law laid down in the case of Vinod Kapoor V. State of Goa. (2012) 12 SCC 378 has rendered this remedy of the last resort, illusory.

When a SLP challenging the judgment passed by the High Court (hereinafter referred to as "original judgment") is withdrawn with a liberty to file Review Petition in the High Court, whether, on dismissal of the Review Petition by the High Court, a subsequent SLP challenging the original judgment would be maintainable, is the issue which this article seeks to analyze.

The issue of maintainability of a SLP challenging only the order of dismissal of Review Petition by the High Court, without challenging the original order, is no more res integra and hence not been deliberated upon in this article. It has been conclusively held that in terms of the provisions of Order 47 Rule 7 of the Code of Civil Procedure, 1908, (Hereinafter referred to as "C.P.C.") such a Special Leave Petition is not maintainable.2

As far as the maintainability of SLP against the original judgment, after dismissal of Review Petition is concerned, the law laid down in the case of Vinod Kapoor has been followed wherein it has been held that in absence of a specific liberty granted by the Supreme Court at the time of withdrawal of the SLP, a subsequent SLP challenging the original judgment, after dismissal of Review Petition, is not maintainable. Thus if the Supreme Court, at the time of withdrawal of the SLP, specifically grants liberty to the SLP Petitioner to challenge the original judgment of the High Court in case of dismissal of his Review Petition by the High Court, only then a subsequent SLP challenging the original Judgment will be maintainable after the dismissal of Review Petition.

Abhishek Malvia Case

In order to analyze the correctness of the view taken in the case of Vinod Kapoor, it is paramount to first examine the case of Abhishek Malvia V. Additional Welfare Commissioner and Anr reported in (2008) 3 SCC108. The said case forms the basis of the legal proposition propounded in the case of Vinod Kapoor. In the case of Abhishek Malvia an application for payment of Compensation of Rs. 50,000/- under the Bhopal Gas Leak Disaster (Registration and processing of Claims) Scheme, 1985 was made by One Abhishek Malvia, alleging that his mother was affected by the leaked gas and consequently, he, who was in her womb at that time, was also affected.

After examination of the medical records, the Deputy Commissioner classified Abhishek Malvia under the category "temporary partial disability" and vide order dated 17/06/1996 awarded him compensation of Rs. 45,000/-. On appeal by Abhishek Malvia, the First Additional Welfare Commissioner (Hereinafter referred to as "Additional Commissioner".) vide order dated 13/03/1997 partially allowed the appeal and enhanced the compensation by Rs. 10,000 and awarded Rs. 55,000/- as compensation. However as a result of a typographical error, the said Abhishek Malvia was inadvertently referred to as "Deceased" in paragraph 2 and 3 of the said order.

Taking advantage of the said inadvertent error, Abhishek Malvia directly filed SLP before the Hon'ble Supreme Court challenging the order dated 13/03/1997 passed by the Additional Commissioner stating that the said error demonstrated non application of mind. By order dated 04/05/1999 the Supreme Court was pleased to dismiss the Special Leave Petition as withdrawn, recording the submission on behalf of Abhishek Malvia that he wanted to apply to the Additional Commissioner for correction of the order. The Court noticed the error in the order describing Abhishek Malvia as "Deceased" and dismissed the SLP as withdrawn with the following observations

"He wants to apply to the Additional Welfare Commissioner for correction. We express no opinion in that behalf". 

It is pertinent to note that Abhishek Malvia was not granted any liberty by the Supreme Court to file a fresh appeal or seek review of the order dated 13/03/1997 passed by the Additional Commissioner on merits.

Thereafter Abhishek Malvia approached the Additional Commissioner by way of an application for modification. While seeking correction of the order dated 13/03/1997 by deletion of the expression "Deceased", he also claimed increased compensation of Rs. 10 lakhs. By order dated 06/08/1999 the Additional Commissioner, though corrected the typographical mistake by deleting the word "Deceased" used in the order dated 13/03/1997, however refused to reconsider the claim of Abhishek Malvia for enhanced compensation. The High Court of Madhya Pradesh by order dated 05/02/2001 upheld the order passed by the Additional Commissioner and dismissed the Writ Petition filed by Abhishek Malvia.

Challenging the said order passed by the High Court, it was argued on behalf of Abhishek Malvia that while disposing of the SLP by order dated 04/05/1999, the Supreme Court had not examined the order dated 13/03/1997 passed by the Additional Commissioner on merits and the SLP was dismissed as withdrawn to enable him to approach the Additional Commissioner for rehearing and modification and therefore the Additional Commissioner was bound to reconsider the matter.

The said contention was rejected by the Supreme Court by observing that in the order dated 04/05/1999 no liberty was reserved to file a fresh appeal or seek review of the order dated 13/03/1997 passed by the Additional Commissioner on merits. The Court observed that efforts to re-agitate the issue again and again was an exercise in futility and thus dismissed the appeal. The Court also went into the merits of the matter and came to a conclusion that the claim of Rs. 10 lakhs compensation was without any merit.

An in-depth analysis of the Abhishek Malviya case demonstrates that the Supreme Court has nowhere laid down a legal proposition that a subsequent SLP, after the withdrawal of the earlier SLP, shall not be maintainable in absence of any specific liberty granted by the Court to file such SLP while permitting the withdrawal of the earlier SLP.  The Court merely observed that on 04/05/1999 while dismissing the SLP filed by Abhishek Malvia, as withdrawn, it had not granted any liberty to Abhishek Malvia to seek review of the order dated 13/03/1997 passed by the Additional Commissioner on merits and hence he had no right to re agitate the issue of compensation before the Additional Commissioner under the garb of order dated 04/05/1999.

Vinod Kapoor's Case

In Vinod Kapoor the Supreme Court was dealing with a case where Writ Petition filed by Shri. Vinod Kapoor was dismissed by the High Court vide judgment dated 29/01/2000. Review Petition seeking review of the said order was thereafter filed. Shri. Vinod Kapoor filed SLP challenging the judgment dated 29/01/2000 before the Supreme Court. When the SLP came up for admission hearing on 21/11/2000, a submission was made on behalf of Shri. Vinod Kapoor that he had filed Review Petition before the High Court and thus sought liberty to withdraw the SLP. The SLP was dismissed as withdrawn in the following manner;

"2. It is submitted that the petitioner has filed a review petition in the High Court and, therefore, the learned counsel has instructions to withdraw the petition. The special leave petition is, accordingly, dismissed as withdrawn."

Thereafter Review Petition was dismissed by the High Court on 06/12/2000. Two Special Leave Petitions came to be filed by Shri. Vinod Kapoor challenging the judgment dated 29/01/2000 passed by the High Court dismissing the Writ Petition and order dated 06/12/2000 whereby the High Court had dismissed the Review Petition.

The maintainability of SLP against the judgment dated 29/01/2000 passed by the High Court dismissing the Writ Petition was sought to be challenged by placing reliance on the case of Abhishek Malviya. It was contended that since the SLP challenging the said judgment was withdrawn earlier, the said judgment had become final and could not be challenged again by way of a subsequent SLP. The said submission came to be accepted by the Supreme Court on the ground that Vinod Kapoor had withdrawn the SLP against the order dated 29-1-2000 with permission to pursue his remedy by way of review instead and since he had not taken the liberty from the Supreme Court to challenge the order dated 29-1-2000 afresh by way of SLP in case he did not get relief in the review application, he was precluded from challenging the order dated 29-1-2000 by way of a fresh SLP.

The Supreme Court placed reliance on the observations made in paragraph 83 of the case of Abhishek Malviya to support it's aforesaid conclusion.

Misplaced Reliance

The misplaced reliance on the case of Abhishek Malviya to come to a conclusion as aforesaid, was an outcome of a grave factual error committed by the Supreme Court in appreciating the facts of Abhishek Malviya case. The Supreme Court in para 104 of the judgment in Vinod Kapoor's case erroneously observed that the order dated 13/03/1997 (Passed in Abhishek Malviya's case) was passed by the Madhya Pradesh High Court, while the said order was infact passed by the Additional Commissioner. This factual error completely changes the complexion and interpretation of the observations made in paragraph 8 of the judgment passed in Abhishek Malviya's case.  As a result of the said factual error, the Supreme Court erroneously presumed that the judgment in Abhishek Malviya's case had laid down the proposition that since the Supreme Court had not granted any liberty to file fresh appeal or seek review of the order dated 13/07/1997 (erroneously presumed to be passed by the Madhya Pradesh High Court) the said order having attained finality, subsequent SLP challenging the original judgment, after dismissal of Review Petition, was not maintainable. Thus the jurisprudence of requirement of grant of specific liberty to file fresh SLP against the original judgment at the time of withdrawal of SLP, as propounded in Vinod Kapoor's case is based on a factual error.

Legal Foundation of the doctrine.

Though the law laid down in Vinod Kapoor's case is based on an incorrect interpretation of the law laid down in the Abhishek Malviya's case,  nevertheless the said legal proposition finds its basis in the provisions of Order 23 Rule 1 of the Code of Civil Procedure, 1908 which provides that if a Plaintiff withdraws his suit without seeking liberty from the court to institute a fresh suit on the very same subject matter, he will be precluded from filing a fresh suit in respect of such subject matter. In the case of Sarguja Transport Service V. State Transport Appellate Tribunal, M.P.,Gwalior and Others reported in 1987 SCR (1) 200 the Supreme Court has taken a view that the principle underlying Order 23 Rule 1 of the Code of Civil Procedure, that when a plaintiff once institutes a suit in a Court and thereby avails of a remedy given to him under law, he cannot be permitted to institute a fresh suit in respect of the same subject matter again after abandoning the earlier suit or by withdrawing it without the permission of the Court to file fresh suit, should be extended in the interest of justice on the ground of public policy, to cases of withdrawal of Writ Petition also. Applying the same analogy, the principles of Order 23 Rule 1 should also apply to withdrawal of a SLP.

Conclusion

Thus the answer to the issue raised in the article lies in the provisions of order 23 Rule 1 of the Code of Civil Procedure and the law propounded in the Sarguja Transport Service and not in Abhishek Malviya's case as has been erroneously held in Vinod Kapoor's case.

The author would like to make a special reference to the case of Sudhakar Baburao Nangnure v. Noreshwar Raghunathrao Shende, reported in (2020) 11 SCC 399. In the said case the SLP was permitted to be withdrawn by the Supreme Court vide order dated 12/12/2017 and while granting such liberty the Supreme Court had observed that "it had not considered the matter on merits." Thereafter Review Petition was preferred in the High Court seeking review of the Original Judgment, which came to be dismissed by the High Court. SLPs challenging the original judgment and the judgment rejecting the Review Petition were filed in the Supreme Court. While rejecting the challenge to the maintainability of the SLP against the original judgment on the ground of lack of specific liberty to file the same in the order of withdrawal of earlier SLP on 12/12/2017, the Supreme Court liberally interpreted the above quoted observation made in the said order and construed the same to be a grant of specific liberty to approach the Supreme Court in case the Review Petitions were not entertained by the High Court. The Court observed that the purpose of the said observation was to ensure that the issues which were raised were entirely open, to be urged before the High Court in the first instance and thereafter, if the appellant were to be aggrieved, in further proceedings before the Supreme Court. Though the provisions of Order 23 Rule 1 are clear, in the humble opinion of the author, the case of Sudhakar Baburao Nangnure shows the correct approach to be adopted in deserving cases to strike a balance between procedural requirements and the interest of justice. The said judgment also recognizes the modus oprandi of filing an application for modification of order of withdrawal of SLP passed by the Supreme Court, and thereby seek modification of the withdrawal order to incorporate specific liberty to approach the Supreme Court in case of dismissal of Review Petition by the High Court.  Thus in deserving cases the rigidity of the provisions of Order 23 Rule 1 of C.P.C. can be overcome by the principles enunciated in the case of Sudhakar Baburao Nangnure in order to do substantial justice.

Footnotes

1. Author is a practicing advocate at Supreme Court of India. He can be contacted at amol.chitale1@gmail.com

2. Bussa Overseas & Properties (P) Ltd. v. Union of India, (2016) 4 SCC 696 

3. 8. "We find no merit in appellant's contention. The order dated 4-5-1999 of this Court specifically refers to the error in the order describing the appellant as "deceased" and dismissed the SLP as withdrawn with the following observation: "He wants to apply to the Additional Welfare Commissioner for correction. We express no opinion in that behalf". No liberty was reserved to file a fresh appeal or seek review of the order dated 13-3-1997 on merits. The order dated 13-3-1997 having attained finality, his efforts to reagitate the issue again and again is an exercise in futility. We are therefore of the view that appeal is liable to be dismissed."

4. "10. In Abhishek Malviya v. Welfare Commr. [(2008) 3 SCC 108] , cited by the counsel for Respondent 8, the order dated 13-3-1997 of the Madhya Pradesh High Court sustaining the order of compensation passed by the Additional Welfare Commissioner was challenged before this Court in a special leave petition and by order dated 4-5-1999 this Court dismissed the special leave petition as withdrawn and when the fresh appeal by way of special leave under Article 136 of the Constitution was filed, this Court held that the fresh appeal is liable to be dismissed as not maintainable."(Emphasis Supplied).

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