The Delhi High Court has reiterated that if the Supreme Court dismisses a Special Leave Petition against an Order without giving reasons, then that Order can still be reviewed and modified by the High Court.

The Court was hearing an application filed by a private construction company for modification of an ad-interim Order passed by itself under the Arbitration and Conciliation Act, 1996 seeking enforcement of previous Orders passed by the Arbitral Tribunal.

In the case, a Special Leave Petition preferred against an interim Order of the High Court was dismissed by the Supreme Court without giving reasons. The Order of dismissal only said, “We are not inclined to interfere with the impugned Judgment and Order. The Special Leave Petition is, accordingly, dismissed.”

One of the question before the High Court was whether an application for modification of an interim Order can be sustained after the Supreme Court dismisses an SLP against it.

A Single Judge Bench of Justice Jasmeet Singh, noting the law laid down by the Supreme Court on the subject, held that "if an Order of dismissal of the SLP is a non-speaking order and no reasoning has been given by the Hon‟ble Supreme Court for the same, then review of the order challenged is permissible."

Advocate Ankur Mittal appeared for National Highway Authority of India and Senior Advocate Sandeep Sethi appeared for Guruvayoor Infrastructure Pvt. Ltd.

The Court said that in the present case, since the SLP was dismissed in limine, or at the threshold, the Order of the High Court was not merged with the Order of the Supreme Court. "Therefore, the dismissal of SLP by the... Supreme Court would not limit this court to modify or clarify the interim order."

The Court noted that the Supreme Court had affirmed and reiterated the law on the subject in Khoday Distilleries v. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd. (2019). In that Judgment, the Court said that an Order refusing special leave to appeal may be a non-speaking order or a speaking one but 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."

It was further held that if the Order refusing leave to appeal is a speaking Order then there are 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."

The Court clarified that 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 the 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. The doctrine of merger would, however, apply to an Order passed in appeal once leave to appeal has been granted and appellate jurisdiction of the Supreme Court has been invoked, the Court said.

"On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before the Supreme Court, the jurisdiction of the High Court to entertain a review petition is lost thereafter as provided by sub-rule (1) of Order 47 Rule 1 CPC," the Court further clarified. The said rule of the Civil Procedure Code, 1908 deals with application for review of decrees, Orders and Judgments.

Cause Title: National Highways Authority of India v. Guruvayoor Infrastructure Pvt. Ltd [Neutral Citation 2024:DHC:8011]

Appearance:

Petitioner Advocates Ankur Mittal, Abhay Gupta and Ashish Gajwani

Respondents: Senior Advocate Sandeep Sethi; Advocates Ajay Sondhi, Aditya Sagar, Vidit Agarwal, Renu Chauhan, Ritika Harplani, Bhavika Deora, Saru Sharma, Arjun Syal, Shreyan Das, Anurag Ahluwalia and Hridyanshi Sharma

Click here to read/download the Judgment


Justice Jasmeet SinghDelhi High Court

Tushar Kohli