Sujith Nair K.M. and others v. High Court of Kerala and others (RP 650 of 2021 in WA 855 of 2020)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** ## **&** **THE HONOURABLE MR. JUSTICE GOPINATH P. FRIDAY, THE 21[ST] DAY OF OCTOBER 2022 / 29TH ASWINA, 1944** **RP NO. 650 OF 2021** **WA 855/2020 OF HIGH COURT OF KERALA** ## **REVIEW PETITIONERS/RESPONDENTS 1 TO 3 IN WA** 1 SUJITH NAIR K.M., AGED 45 YEARS SECTION OFFICER, HIGH COURT OF KERALA, S/O.K.C.NAIR, "SARANG", MANIMALA ROAD, EDAPALLY P.O., KOCHI, ERNAKULAM-682 024. 2 SUJA.A., AGED 53 YEARS JUNIOR SUPERINTENDENT, JUDICIAL FIRST CLASS MAGISTRATE COURT, SASTHAMCOTTA CHILLA, ONAMPALAM, MULAVANA P.O., KOLLAM DISTRICT-691 503. 3 SATHEESAN.T., AGED 46 YEARS BENCH CLERK GRADE II, SUB COURT, VATAKARA, PUTHANPURAYIL, THRIVENI HOUSE, PERAMBRA P.O., KOZHIKODE-673 525. BY ADVS. K.P.PRADEEP T.T.BIJU T.THASMI ## **RESPONDENTS/APPELLANTS/RESPONDENTS 4 TO 15** 1 HIGH COURT OF KERALA, REPRESENTED BY ITS REGISTRAR GENERAL, HIGH COURT OF RP 650 of 2021 2 - KERALA, ERNAKULAM-682 031. - 2 REGISTRAR (SUBORDINATE JUDICIARY), NOW REGISTRAR (DISTRICT JUDICIARY), HIGH COURT OF KERALA, HIGH COURT, KOCHI-682 031. - 3 STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, HOME (C) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. - 4 ADDITIONAL CHIEF SECRETARY, HOME (C) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. - 5 MS.ANEESA.A., NYAYADHIKARI, GRAM NYAYALAYA, CHITTUMALA AT PERINAD, KOLLAM DISTRICT, KERALA-691601, RESIDING AT SHIJI NIVAS (H), AYANTHI, VARKALA P.O., TRIVANDRUM, KERALA, PIN-695 141. - 6 MR.NIJESH KUMAR.P., - NYAYADHIKARI, GRAM NYAYALAYA, IRIKKUR, KANNUR DISTRICT-670 593, RESIDING AT POONAKATTIL HOUSE, MORAYUR POST, MALAPPURAM, KERALA, PIN-673 642. - 7 MR.ARUN KUMAR.P., NYAYADHIKARI, GRAM NYAYALAYA, MALAMPUZHA AT PUDUPPARIYARAM, PALAKKAD DISTRICT-678 731, RESIDING AT PUTHIYACHIRAYIL, KOOTTAMKAITHA, HARIPAD, KUMARAPURAM P.O., ALAPPUZHA, KERALA, PIN-690 548. 8 MS.SHINY.M.S., NYAYADHIKARI, GRAM NYAYALAYA, PONNANI AT EDAPPAL AND ADDITIONAL MUNSIFF PARAPPANANGADI, MALAPPURAM DISTRICT-679 583, RESIDING AT KALLADATH VALAPPIL, KODANAD, MEZHATHOOR P.O., PALAKKAD, KERALA-679 534. - 9 MS.SOORYA S.SUKUMARAN, NYAYADHIKARI, GRAM NYAYALAYA, RANNI, RP 650 of 2021 3 PATHANAMTHITTA DISTRICT-689 672, RESIDING AT AJAI BHAVAN (H), EZHUKONE, EDAKKIDOM P.O., KOLLAM, KERALA, PIN-691 505. - 10 MR.KRISHNAPRABHAN.R., NYAYADHIKARI, GRAM NYAYALAYA, KUZHALMANNON AT THENKURUSSI, PALAKKAD DISTRICT-678 671, RESIDING AT KOUSHTUBHAM HOUSE, NEDUNGADAPPALLY, SANTHIPURAM, P.O.KOTTAYAM, KERALA, PIN-686 545. - 11 MS.SALINI.B., NYAYADHIKARI , GRAM NYAYALAYA, CHAVARA, KOLLAM DISTRICT-691 583, RESIDING AT AIKKARA VEEDU, VENJARAMOODU, VENJARAMOODU P.O., TRIVANDRUM-695 607. - 12 MS.JAIBY KURIAKOSE, JUDICIAL FIRST CLASS MAGISTRATE, KODUNGALLOOR, THRISSUR DISTRICT-680 664, RESIDING AT PALAKKADAN HOUSE, ADIMALY, IDUKKI-685 561. - 13 MS.SUMEY CHANDRAN, NYAYADHIKARI, GRAM NYAYALAYA, CHENDAMANGALAM AT PARAVUR AND MUNSIFF- MAGISTRATE, NORTH PARVUR, ERNAKULAM DISTRICT-683 512, RESIDING AT SUMI NIVAS (H), THALAYOLAPARAMBU P.O., KOTTAYAM-686 605. - 14 HARIKRISHNAN.M., AGED 34 YEARS - NOW WORKING AS MUNSIFF, MUNSIFF COURT, VARKALA, S/O.R.MURALEEDHARAN, KIZHAKKE VYLOPPADICLA HOUSE, THEKKE NADA, VAIKKOM, KOTTAYAM-686 141. GP - SRI BIJOY CHANDRAN, ADV ELVIN PETER P J THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 21.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RP 650 of 2021 4 A.K.JAYASANKARAN NAMBIAR & GOPINATH P., JJ. -------------------------------------------------- R.P.No.650 of 2021 in W.A.855 of 2020 ----------------------Dated : 21[st] October, 2022 ## ORDER ## Gopinath P., J This Review Petition has been filed seeking a review of the judgment of this Court in W.A.No.855 of 2020, after the Supreme Court dismissed a Special Leave Petition refusing leave to challenge that judgment. This Court, considering a question as to whether a Review Petition is maintainable, in such circumstances, in R.P.No.503 of 2021, held as follows :- “2. When the review petition came up for admission, we heard Sri.Gopalakrishna Kurup the learned Advocate General, duly instructed by Sri.Surin George Ipe, on behalf of the Review Petitioners, Sri.S.Sreekumar, the learned senior Advocate duly instructed by Sri.Saji Varghese appearing for the 2[nd] respondent, Sri.P.Raveendran, the learned senior counsel duly assisted by Smt.Aparna Rajan for the 1[st] respondent, Sri.Krishnamoorthy, the learned Standing counsel for the University Grants Commission and Sri. RP 650 of 2021 5 Jaiby Paul, the learned counsel for the 4th respondent. We also took note of the recent judgment of the Supreme Court in Khoday Distilleries Limited (now known as **Khoday India Limited) and others** **v. Sri Mahadeshwara Sahakara Sakkare Karkhane Limited, Kollega** l [2019 (4) SCC 376], where the Court, after referring to the precedents in the matter, found as follows on the issue of entertainment of Review Petition by the High Court, after dismissal of Special Leave Petition by the Supreme Court:- “26.2. We reiterate the conclusions relevant for these cases as under:(Kunhayammed case [(2000) 6 SCC 359],SC p.384) “(iv) An order refusing special leave to appeal may be a nonspeaking order or a speaking one. 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. (v) If the order refusing leave to appeal is a speaking order i.e. gives reasons for refusing the grant of leave, then the order has 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. But, 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 re judicata in subsequent proceedings between the R.P.No.503/2021 in W.A.No.133/2021 4 RP 650 of 2021 6 parties. (vi) Once leave to appeal has been granted and appellate jurisdiction of the Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation. (vii) 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 HighCourt to entertain a review petition is lost thereafter as provided by sub-rule 91 of Order 47 Rule 1 CPC” When we peruse the averments in the Review Petition before us, we find that the grounds for interference raised therein are substantially the same as the grounds in the Special Leave Petition that was filed by the University before the Supreme Court, a copy of which was made available to us for our perusal. In particular, grounds E,F,G,H,I, J & K in the said Special Leave Petition substantially covers the grounds raised in the Review Petition. Thus even if we were to find that the review petition could be entertained despite the order in the Special Leave Petition, we would be committing an injustice if, we were to examine the very same grounds in an application for review under O.47 Rule 1 CPC which, apply to proceedings in an intra-Court appeal under Section 5 of the Kerala High Court Act. 4. As already noticed, against the judgment, both the University as well as the College had preferred Special Leave Petitions before the Supreme Court on substantially the same grounds as are now urged RP 650 of 2021 7 before us in the Review Petition. The Supreme Court, by its order extracted above, dismissed the Special Leave Petitions, without reserving any liberty to the petitioners herein to approach this Court through a review petition impugning this Court's Judgment dated 8.4.2021 in W.A.No.133/2021. In our view, the aforesaid aspects assume significance in the light of the findings of the Supreme Court in Khoday Distilleries Limited case (supra), particularly the one that holds that in cases where the order of the Supreme Court dismissing the Special Leave Petition contains a finding other than a declaration of law, the said finding would bind the parties thereto and also the Court, Tribunal or Authority in proceedings subsequent thereto, by way of judicial discipline, since the Supreme Court is the Apex Court of the Country. Accordingly, while the dismissal of the Special Leave Petition may not by itself attract the principle of 'merger' to hold that the judgment of the High Court has since merged with that of the Supreme Court, we cannot ignore the observations of the Supreme Court while dismissing the Special Leave Petition and the same have to be given due weightage as a matter of judicial discipline while deciding the fate of the present review petition. We find the expression “We are not inclined to entertain the Special Leave Petitions under Article 136 of the Constitution” in the order of the Supreme Court as an expression of the subjective RP 650 of 2021 8 satisfaction of the Court, pursuant to an application of mind by the Court to the facts and grounds stated in the Special Leave Petitions, R.P.No.503/2021 in W.A.No.133/2021 7 that there were no grounds made out to entertain the Special Leave Petitions. The second paragraph of the Court's order only records the consequences of that satisfaction, when it states that the Special Leave Petitions are accordingly dismissed. The observations of the Court in its order dated 30.6.2021 dismissing the SLP's together with the fact that no liberty was reserved in the said order to approach this Court through a review petition, lead us to hold that it would be in the best interests of all concerned that we now put an end to this long drawn litigation. We are, at this juncture, reminded of the following passage in the opinion of P.T.Raman Nair C.J speaking for the Full Bench of this Court in M.P. Raghavan Nair v. State Insurance Officer, AIR 1971 Ker 175: “The principles are principles of repose and peace. “Long dormant claims have often more of cruelty than of justice in them,” said Best, C.J. in A Court v. Cross, (1825) 130 ER 540. And so, we might add, has the fighting of the same legal battle over again with the same adversary, or, once a wrong has been suffered, the fighting of the battle for redress piecemeal.” (Emphasis is ours) 2. In the light of the view taken by this Court in R.P.No.503 of 2021, we are of the opinion that the present Review Petition is also not maintainable, as no liberty was RP 650 of 2021 9 granted to the petitioner by the Supreme Court of India while dismissing the Special Leave to Appeal (C) No.20841/2021. Accordingly this Review Petition is dismissed. Sd/- A.K.JAYASANKARAN NAMBIAR, Judge Sd/- GOPINATH P, Judge Mrcs/21.10. RP 650 of 2021 10 ## **APPENDIX OF RP 650/2021** ANNEXURES Annexure A TRUE COPY OF THE JUDGMENT DATED 25.09.2020 IN WA NO.855 OF 2020. Annexure B TRUE COPY OF THE ORDER DATED 02.12.2020 IN SLP(C) NO.13509 OF 2020.