Case: T.K. DAVID  Vs. KURUPPAMPADY SERVICE CO-OPERATIVE BANK LTD. &amp; ORS

petition. Time taken by a party in diligently pursing the remedy by way of review may in appropriate cases be excluded from consideration while condoning the delay in the filing of the appeal, but such exclusion or condonation would not imply that there is a merger of the original decree and the order dismissing the review petition. 4. We are in complete agreement with the principle laid down by this Court in DSR Steel (Private) Limited (supra) and applying the 3 rd situation referred to therein in paragraph 25.3, we are inclined to dismiss this special leave petition. We find force in the contention made by the learned senior counsel appearing for the respondent that this SLP is not maintainable, since the main order was not challenged but only the order passed in the review petition alone was challenged in this SLP. Hence, the SLP is, therefore, not maintainable and the same is dismissed. 13. We may also notice another elaborate judgment of this Court in Bussa Overseas and Properties Private Limited and Anr. Vs. Union of India and Anr., (2016) 4 SCC 696. In the above case also special leave petition was filed against the Division Bench judgment of the High Court rejecting the review petition. Facts have been noticed in paragraph 1, which is to the following effect:- ...............The present appeal is directed against the judgment and order dated 14-9-2004 passed by the Division Bench of the High Court of Judicature at Bombay in Bussa Overseas & Properties (P) Ltd. v. Union of India [Notice of Motion No. 62 of 2004, decided on 14-9-2004 (Bom)] whereby the High Court while dealing with an application of review has declined to condone the delay of 129 days in preferring the application for review and also opined that the application for review was totally devoid of merit. The expression of the said view led to dismissal of the application for review. 14. In the above case, this Court noticed several earlier judgments and accepting the preliminary objection held that the special leave petition is not maintainable. Following was held in paragraphs 29 to 32:- 29. Needless to state that when the prayer for review is dismissed, there can be no merger. If the order passed in review recalls the main order and a different order is passed, definitely the main order does not exist. In that event, there is no need to challenge the main order, for it is the order in review that affects the aggrieved party. 30. The decisions pertaining to maintainability of special leave petition or for that matter appeal have to be seemly understood. Though in the decision in Shanker Motiram Nale [Shanker Motiram Nale v. Shiolalsing Gannusing Rajput, (1994) 2 SCC 753 ] the two-Judge Bench referred to Order 47 Rule 7 of the Code of Civil Procedure that bars an appeal against the order of the court rejecting the review, it is not to be understood that the Court has curtailed the plenary jurisdiction under Article 136 of the Constitution by taking recourse to the provisions in the Code of Civil Procedure. It has to be understood that the Court has evolved and formulated a principle that if the basic judgment is not assailed and the challenge is only to the order passed in review, this Court is obliged not to entertain such special leave petition. The said principle has gained the authoritative status and has been treated as a precedential principle for more than two decades and we are disposed to think that there is hardly any necessity not to be guided by the said precedent. 31. In this context, we may profitably reproduce a passage from State of A.P. v. A.P. Jaiswal [(2001) 1 SCC 748] wherein a three-Judge Bench has observed thus: (SCC p. 761, para 24) 24. Consistency is the cornerstone of the administration of justice. It is consistency which creates confidence in the system and this consistency can never be achieved without respect to the rule of finality. It is with a view to achieve consistency in judicial pronouncements, the courts have evolved the rule of precedents, principle of stare decisis, etc. These rules and principle are based on public policy…. 32. In view of the aforesaid analysis, the submission of Mr. Gulati that all the subsequent judgments are per incuriam as they have not taken into consideration the decision rendered in Thungabhadra Industries Ltd. [Thungabhadra Industries Ltd. v. State of A.P., AIR 1964 SC 1372 : (1964) 5 SCR 174 ] is not correct. Consequently, the appeal, being not maintainable, stands dismissed. There shall be no order as to costs. 15. The rationale for not entertaining a special leave petition challenging the order of High Court rejecting the review petition when main order in the writ petition is not challenged can be easily comprehended. Against the main judgment the SLP having been dismissed earlier the same having become final between the parties cannot be allowed to be affected at the instance of petitioner. When the main judgment of the High Court cannot be effected in any manner, no relief can be granted by this Court in the special leave petition filed against order rejecting review application to review the main judgment of the High Court. This Court does not entertain a special leave petition in which no relief can be granted. It is due to this reason that this Court in Bussa Overseas and Properties Private Limited and Anr. (supra) has held that principle of not entertaining special leave petition against an order rejecting the review petition when main judgment is not under challenge has become a precedential principle. We reiterate the above precedential principle in this case again. 16. The special leave petition against the Division Bench judgment dated 11.03.2015 having been dismissed by this Court earlier on 21.08.2015 and the review petition filed by the petitioner to review the judgment having been dismissed by the impugned judgment, we see no reason to entertain this special leave petition.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]15. The rationale for not entertaining a special leave petition challenging the order of High Court rejecting the review petition when main order in the writ petition is not challenged can be easily comprehended. Against the main judgment the SLP having been dismissed earlier the same having become final between the parties cannot be allowed to be affected at the instance of petitioner. When the main judgment of the High Court cannot be effected in any manner, no relief can be granted by this Court in the special leave petition filed against order rejecting review application to review the main judgment of the High Court. This Court does not entertain a special leave petition in which no relief can be granted. It is due to this reason that this Court in Bussa Overseas and Properties Private Limited and Anr. (supra) has held that principle of not entertaining special leave petition against an order rejecting the review petition when main judgment is not under challenge has become a precedential principle. We reiterate the above precedential principle in this case again.16. The special leave petition against the Division Bench judgment dated 11.03.2015 having been dismissed by this Court earlier on 21.08.2015 and the review petition filed by the petitioner to review the judgment having been dismissed by the impugned judgment, we see no reason to entertain this special leave petition.14. In the above case, this Court noticed several earlier judgments and accepting the preliminary objection held that the special leave petition is not maintainable. Following was held in paragraphs 29 to 32:-29. Needless to state that when the prayer for review is dismissed, there can be no merger. If the order passed in review recalls the main order and a different order is passed, definitely the main order does not exist. In that event, there is no need to challenge the main order, for it is the order in review that affects the aggrieved party30. The decisions pertaining to maintainability of special leave petition or for that matter appeal have to be seemly understood. Though in the decision in Shanker Motiram Nale [Shanker Motiram Nale v. Shiolalsing Gannusing Rajput, (1994) 2 SCC 753  ] the two-Judge Bench referred to Order 47 Rule 7 of the Code of Civil Procedure that bars an appeal against the order of the court rejecting the review, it is not to be understood that the Court has curtailed the plenary jurisdiction under Article 136 of the Constitution by taking recourse to the provisions in the Code of Civil Procedure. It has to be understood that the Court has evolved and formulated a principle that if the basic judgment is not assailed and the challenge is only to the order passed in review, this Court is obliged not to entertain such special leave petition. The said principle has gained the authoritative status and has been treated as a precedential principle for more than two decades and we are disposed to think that there is hardly any necessity not to be guided by the said precedent31. In this context, we may profitably reproduce a passage from State of A.P. v. A.P. Jaiswal [(2001) 1 SCC 748]   wherein a three-Judge Bench has observed thus: (SCC p. 761, para 24)24. Consistency is the cornerstone of the administration of justice. It is consistency which creates confidence in the system and this consistency can never be achieved without respect to the rule of finality. It is with a view to achieve consistency in judicial pronouncements, the courts have evolved the rule of precedents, principle of stare decisis, etc. These rules and principle are based on public policy….32. In view of the aforesaid analysis, the submission of Mr. Gulati that all the subsequent judgments are per incuriam as they have not taken into consideration the decision rendered in Thungabhadra Industries Ltd. [Thungabhadra Industries Ltd. v. State of A.P., AIR 1964 SC 1372   : (1964) 5 SCR 174  ] is not correct. Consequently, the appeal, being not maintainable, stands dismissed. There shall be no order as to costs.The consequence of the rejection of the review petition is that the High Court has refused to review the judgment of the Division Bench dated 11.03.2015 passed in Writ Appeal No. 399 of 2014. As noted above, the Division Bench judgement dated 11.03.2015 was questioned by petitioner by special leave petition in this Court, which was dismissed on 21.08.2015. When the Special Leave Petition No. 24231 of 2015 challenging the earlier judgment has already been dismissed, such dismissal has become final between the parties. In this special leave petition, the petitioner cannot challenge the earlier order dated 11.03.2015 against which he unsuccessfully has earlier filed the special leave petition. When the order dated 11.03.2015 is unassailable by the petitioner in this special leave petition, no relief can be granted to petitioner, which may have effect in any manner diluting, modifying or reversing the earlier judgment dated 11.03.2015.13. We may also notice another elaborate judgment of this Court in Bussa Overseas and Properties Private Limited and Anr. Vs. Union of India and Anr., (2016) 4 SCC 696.   In the above case also special leave petition was filed against the Division Bench judgment of the High Court rejecting the review petition.