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2004 DIGILAW 392 (GAU)

State of Arunachal Pradesh v. Nefa Udyog

2004-06-09

I.A.ANSARI

body2004
JUDGMENT I.A. Ansari, J. 1. Heard Mr. K.P, Pathak, learned senior counsel, appearing for the review applicants, assisted by Mr. S. Sarma, and Mr. N. Dutta, learned senior counsel, appearing for the writ petitioners-opposite parties, assisted by Mr. P.N. Goswami. 2. These review petitions, namely, Review Petition Nos. 116/2003, 117/2003, 118/2003, 119/2003, and 120/2003, which seek to get reviewed the orders, dated 27.1.2003, passed in Writ Petition (Civil) Nos. 458(AP)/2001, 397(AP)/2001, 398(AP)/2001, 483(AP)/2001, 498(AP)/2001 respectively, have been resisted at the threshold on the ground of maintainability of the review petitions by the writ petitioners-opposite parties herein. 3. The maintainability of the present set of review petitions has been challenged, in a nut-shell, on two grounds. It is, first, contended by Mr. N. Dutta, learned senior counsel, that Rule 6 of Chapter-X of the Gauhati High Court Rules requires that either the applicant, who presents the review application, or his Advocate shall give certificate as provided by Rule 4 of the said Rules and Rule 4 required that every application for review of the judgment shall be presented to the stamp reporter, who will certify thereon whether the petition is in due form, within time, and properly stamped, or that it is irregular, and shall return the petition with such certificate. 4. In the case at hand, five review petitions are, admittedly, not accompanied by any certificate of either review applicants or their Advocate. It is submitted, on behalf of the writ petitioners-opposite parties, that the review petitions, being in contravention of the provisions of Rule 4 read with Rule 6 of the Gauhati High Court Rules, are not maintainable. 5. Controverting the above submissions made on behalf of the writ petitioners-opposite parties, Mr. K.P. Pathak, learned senior counsel for the review applicants, has submitted that the omission to give a certificate, as required under the said Rules, is a curable irregularity and the same will not make a review petition not maintainable in law if the review applicant or his Advocate offers to give the requisite certificate. In the case at hand, it is pointed out by Mr. In the case at hand, it is pointed out by Mr. Pathak, petitions have, now, been made before this Court by the review applicants seeking to get the requisite certificates added to the review petitions and, hence, on the ground of omission to give the requisite certificate, which is a mere procedural requirement, it will be unjust to stop the review applicants from seeking justice. 6. While considering the above submissions made on behalf of the parties, it is important to note that when a review petition is made after a judgment and/or order is passed, the Court is dragged into yet another round of litigation. Lest such round of litigation be not frivolous or vexatious, the Court, where the review is sought for, wants to be prima facie satisfied that the review petition has some substance. An Advocate is an officer of the Court and when he certifies that there are good grounds for re view, this certificate carries its own weight. However, depending on the certificate, so given, no review petition is decided. Hence, the rendering of the certificate by the review applicant or his Advocate cannot be treated so fundamental that the omission to give the certificate will ipso facto make the Court to dismiss the review petition. A careful reading of Rule 4 shows that a certificate is required to be given for the purpose of, basically, satisfying the Stamp Reporter that the petition is in due form, the same has been made within- time, the petition is properly stamped and regular in all manner. At best, the omission to give the certificate in support of the review petition, in terms of Rule 4 read with Rule 6, is a curable irregularity and in a case, wherein, the Advocate or the review applicant offers to give the requisite certificate, it would be unjust not to allow such an irregularity to be cured. 7. For what have been pointed out above, I might have been tempted to allow the prayer of the review applicants to take the requisite certificates on record and decide the review petitions on merit, but for the reasons, which I shall, now, allude to. 8. To appreciate the second ground, on which the review petitions have been resisted as not maintainable, it is essential to briefly state the relevant facts and various stages, which have led to the filing of these review petitions. 8. To appreciate the second ground, on which the review petitions have been resisted as not maintainable, it is essential to briefly state the relevant facts and various stages, which have led to the filing of these review petitions. The writ petition aforementioned were filed on 9.6.1999 and the same were disposed of by judgments and orders, dated 27.1.2003. By these judgments and orders, the review applicants-writ respondents were directed to make payment of the dues to the writ petitioners opposite parties within a period of 3 months from the date of passing of the said judgments and orders in terms of the directions contained therein. No payment was made by the respondents in terms of the directions so given, whereupon applications for initiating contempt proceedings were filed on 8.8.2003 by the writ petitioner, opposite party. After filing of the said application for drawing contempt proceedings against the review applicants-writ respondents, review applicants-writ respondents filed writ appeals on 20.8.2003, i.e., after a delay of almost about 175 days. These writ appeals, namely, Writ Appeal Nos. 372/2003, 373/2003, 374/2003, 375/2003, and 376/2003 were dismissed by orders, dated 04.12.2003, on the same having been withdrawn by the appellants without obtaining any leave. Thereafter, the present review petitions have been filed on 11.12.2003. 9. In view of the fact that before filing of the present set of review petitions, the respondents has already preferred appeals against the judgments and orders, dated 27.1.2003, aforementioned (which are, now, being sought to get reviewed) and since the same were dismissed on being withdrawn without obtaining any leave therefor, it is submitted by Mr. N. Dutta, learned senior counsel for the opposite parties-writ petitioners, that having preferred appeals against the judgment and orders, which are, now, being sought to get reviewed and having chosen to withdraw the same without obtaining any leave from the appellate Court, namely, the Division Bench of this Court, the respondents cannot, now, approach this Court seeking to get its review jurisdiction invoked, for, according to Mr. Dutta., by preferring the appeals, the review applicants-writ respondents lost their rights, if any, to get the judgments and orders aforementioned reviewed and that once the appeals were preferred and the same were dismissed on 4.12.2003, the judgments and orders, dated 27.01.2003, passed in the writ petitions aforementioned, stood merged into the said appellate orders, dated 4.12.2003, and, thereafter, the judgment and orders, dated 27.1.2003, passed in WP(C) Nos. 458(AP)/2001, 397(AP)/2001, 398(AP)/2001, 483(AP)/2001, 498(AP)/2001, no longer survive independent of, and separate from, the appellate orders, dated 4.12.2003, aforementioned. 10. In support of his above submissions, Mr. Dutta has placed reliance on the decisions in State of Maharashtra v. Prabhakar Bhikaji Ingle, reported in (1996)3 SCC 46 Kabari Pvt. Ltd. v. Shivnath Shroof, reported in Thungabhadra Industries v. Govt. Of Andra Pradesh, reported in and Hari Singh v. Smti S. Seth, reported in. 11. Reacting to the submissions made on behalf of the opposite parties-writ petitioners that on the dismissal of the writ appeals aforementioned, the right to get the orders, dated 27.1.2003, aforementioned reviewed was lost by the review applicants-writ respondents, Mr. Pathak has pointed out that the power of review is exercised by the self-same Court for securing the ends of justice and, hence, mere dismissal of the writ appeals, on the same having been withdrawn, cannot debar the Court form reviewing its own order if the conditions required for exercising such powers, otherwise, exists, particularly, when, points out Mr. Pathak, the writ appeals were dismissed without any speaking order and/or without considering the appeals on merit. 12. While considering the rival submissions made, on behalf of the parties, as indicated hereinabove, it is imperative to note that undisputedly, the principles underlying Order 47 of the Code of Civil Procedure apply to writ petitions and the writ appeals arising there from. An order can be reviewed, broadly speaking, by the self-same Court subject to the condition that there is no appeal provided against the order, which is sought to get reviewed, or if, right to appeal has been provided, no appeal has been preferred. 13. The philosophy underlying the two conditions, indicated hereinabove, is really to maintain judicial discipline so that when a superior Court has deemed it fit to pass an order in the appeal, the same is not set at naught by the Court against whose order the appeal had been preferred. 13. The philosophy underlying the two conditions, indicated hereinabove, is really to maintain judicial discipline so that when a superior Court has deemed it fit to pass an order in the appeal, the same is not set at naught by the Court against whose order the appeal had been preferred. The withdrawal of suits and appeals are governed by Order 23 of the Code of Civil Procedure. A suit, once instituted, if withdrawn, debars the plaintiff from instituting yet another suit on the same cause of action unless the leave of the Court has been obtained therefor. The same principles applies even to withdrawal of appeals. When an appeal is withdrawn without obtaining leave, no appeal can be preferred, again, before the same appellate Court. 14. Thus, when an appeal is dismissed before the review petition is filed and/or decided, the Court, whose order is sought to get review, ceases to have jurisdiction to review such an order, for, the order to be reviewed, in such a situation, stands merged into the appellate order and does not survive independent of, and distinct from, the appellate order. This proposition of law is not in dispute before me. It is also pertinent to note that in such cases, it is not material as to whether the appeals are dismissed by making a speaking order and by taking into account the merit of the appeals or not. This proposition of law does not remain in doubt if one carefully reads the principles governing the jurisdiction of a Court to review its own order vis-a-vis the appellate orders, in such matters, as laid down by the Apex Court, way back in 1964, in its decision in Thungabhadra Industries (supra). The relevant observations made in Thungabhadra Industries (supra) are quoted herein below :- "Order XLVII Rule 1(1) of the Civil Procedure Code permits an application for review being filed "from a decree or order from which an appeal is allowed but from which no appeal has been preferred." In the present case, it would be seen, on the date when the application for review was filed the appellant had not filed an appeal to this Court and therefore the terms of Order XLVII Rule1(1) did not stand in the way of the petition for review being entertained. Learned counsel for the respondent did not contest this position. Learned counsel for the respondent did not contest this position. Nor could we read the judgment of the High Court as rejecting the petition for review on that ground. The terms of Order XLVII Rule 1(1) are satisfied is the date when the application for review is filed. If on that date no appeal has been filed it is competent for the Court hearing the petition for review to dispose of the application on the merits notwithstanding the pendency of the appeal, subject only to this, that if before the application for review is finally decided the appeal itself has been disposed of, the jurisdiction of the court hearing the review petition would come to an end." 15. What follows from the observations made in Thungabhadra Industries (supra) is that if before the making of an application for review, an appeal from the judgment, sought to be reviewed has already been preferred and is pending, then, the Court has no jurisdiction to entertain the review application; but in a case, where the application for review is first made and, thereafter, an appeal is preferred, the review application can be entertained and disposed of, provided that the appellate Court has not disposed of the appeal before the review application is taken up for disposal. In other words, if the appellate Court has disposed of the appeal, no review application can be entertained by the Court, whose order was appealed against, and it is immaterial whether the disposal of the appeals was in limine or after notice or whether the dismissal of the appeal was with reasons assigned therefore or without reasons so assigned. 16. I am fortified in coming to the above conclusions from the case of Hari Singh (supra), wherein the Delhi High Court, analysing the decision in Thungabhadra Industries (supra), observed and held as follows :- 6. Under Order 47, Rule l(a), C.P.C., an application for review of a judgment lies by any person aggrieved by a decree or order "from which an appeal is allowed but from which no appeal has been preferred". Under Order 47, Rule l(a), C.P.C., an application for review of a judgment lies by any person aggrieved by a decree or order "from which an appeal is allowed but from which no appeal has been preferred". The propositions have been laid down by the Supreme Court in Thungabhadra Industries case firstly that if before the making of an application for review, an appeal from the judgment sought to be reviewed has already been filed and is pending, then the Court has no jurisdiction to entertain the review application, secondly, where the application for review is first made and thereafter an appeal is preferred (as done in this case), the review application can be disposed of provided the appellate Court has not disposed of the appeal before the review application is taken up for disposal. The present case falls within the second principle and the learned trial Judge rightly refused to hear the review application. 7. So far as the contention that the first appeal was dismissed in limine under Order 41, Rule 11(1), C.P.C. and that too without giving reasons, and therefore, it is no disposal in the eyes of law, is concerned, we are of the view that the Supreme Court, in Thungabhadra Industries case has made no distinction between the disposal in limine or after notice or between a dismissal of the appeal with reasons and one without reasons. Nor is there any such specific provision in Order 47, Rule 1, CPC, stating that a disposal in limine under Order 41, Rule 1, C.P.C. or without reason is to be ignored or that such a disposal will not come in the way of the disposal of the review application even it be after the disposal of the appeal. 8. Two other principles are also equally well-settled. 8. Two other principles are also equally well-settled. The dismissal of an appeal under Order 41, Rule 11(1), C.P.C. in limine precludes the Court from which the appeal is preferred, from entertaining an application for review of the decree because it cannot be said in such a case that no appeal has been preferred within the meaning of Section 114 and Order 47, Rule (1) C.P.C. (See Ramappa Bin Dareppa v. Bharma Bin Rama, (1906) 1LR 30 Bom 625; Shivappa Parsa Savade v. Ramachandra Narasinha Despande (AIR 1922 Bom 130.) There is no difference between an appeal disposed of on merits or under Order 41, Rule 11(1) C.P.C. The second principle is that a review application filed before an appeal is preferred, cannot be taken up for consideration in case the appeal against the judgment or order sought to be reviewed, has been disposed of in limine under Order 41, Rule 11(1), C.P.C. before the review is disposed of." 17. Though, at the first blush, the submissions made on behalf of the review applications, that in order to secure the ends of justice, a Court, if satisfied, that the ground for review exists, should interfere with the order, appears quite persuasive but on a cool and dispassionate consideration of the same, one can have no hesitation in holding that such a course, if allowed to prevail, may, instead of securing the ends of justice, destroy the very existence of the Courts and defeat thereby the ends of justice. The anxiety of a Court to ensure that justice is not defeated in the cobweb of technicality of procedural law cannot run contrary to the principles of judicial discipline, otherwise, there will be chaos and there will never be an end to any litigation. The submission that for securing the ends of justice, the Court should review its order if the same appears to be erroneous on the face of the record does not hold water in a case of present nature. Before the examining the question as to whether the order needs to be review or not, a Court has to be satisfied that it has jurisdiction to review the order, in question. If the Court finds that the jurisdiction to review the order, in question, does not exist with it, it becomes immaterial how erroneous the order is. Before the examining the question as to whether the order needs to be review or not, a Court has to be satisfied that it has jurisdiction to review the order, in question. If the Court finds that the jurisdiction to review the order, in question, does not exist with it, it becomes immaterial how erroneous the order is. In such a case, the question of reviewing the order does not arise at all, for, any injustice, arising out of such an order, can be looked into and remedied by the superior Court and not by the self-same Court. The argument advanced on behalf of the review applicants that in a review matter, justice shall not be allowed to be defeated in the vortex of technicality of procedure was considered and rejected by the Apex Court in Kabari Pvt. Ltd. (supra) and the law on this subject has been laid down, in no uncertain words, by the Supreme Court as follows: "In our view, there is force in the contention of the learned counsel for the appellants that the expression "from which an appeal is allowed" appearing in Clause (a) of Order 47 Rule 1 of the Code of Civil Procedure, should be construed liberally keeping in mind the underlying principle involved in Order 47 Rule 1(a) that before making the review applications,, no superior court has been moved for getting the self same relief so that for the self same relief two parallel proceedings before two forum are not taken." 18. Bearing in mind what has been pointed out with regard to the law relating to review jurisdiction, when I turn to the facts of the case at hand, I find that there is no dispute that the orders, in question, were appealable orders and the review applicants-writ respondents had the option of either preferring the appeal or of applying for review, the review applicants expressed their option by preferring the appeals. With the dismissal of the appeals, the review applicants-writ respondents are, now, debarred from preferring another appeal against the same orders. Thus, the orders, which were, otherwise, appealable, have been made non-appealable by the act or omission of the review applicant-writ respondents themselves. With the dismissal of the appeals, the review applicants-writ respondents are, now, debarred from preferring another appeal against the same orders. Thus, the orders, which were, otherwise, appealable, have been made non-appealable by the act or omission of the review applicant-writ respondents themselves. Having chosen to prefer the appeals and having opted to withdraw the appeals without obtaining any leave, when the appeals were dismissed, the orders, dated 27.1.2003, aforementioned, passed in the Writ petitions aforementioned, merged into the orders, dated 4.12.2003, passed in the said set of writ appeals and the orders, which are, now, sought to get reviewed, do not, in fact, exist, if I may reiterate, independent of, and/or separate and different from, the said appellate orders, dated 4.12.2003. 19. Realising the situation, Mr. Pathak has sought to seek support from the decision of the Apex Court in Kunhayammed (supra), reported in AIR 2000 SC 2587 , to contend that on the dismissal of the said appeals, the orders, dated 27.01.2003, aforementioned (which are sought to get reviewed) have not merged into the appellant orders, but still survive and can be reviewed. 20. While considering the above submissions made by Mr. Pathak and the reliance placed by him on Kunhayammed (supra), reported in one has to bear in mind that there does exist a distinction between an appeal and a leave to apply for appeal. When an appeal is provided and the appeal is preferred, the appeal stands instituted; but when a leave for appeal is applied, then, until the leave is, in such a situation, granted, there is really no appeal. Hence, the disposal of the Special Leave Petition or of any petition for leave to appeal does not subsume the order from which the appeal arose, for, with the rejection of the petition for leave, no appeal survived. Article 136 of the Constitution of India deals with 'special leave to appeal', which may be granted by the Supreme Court. When special leave to appeal is dismissed by the Supreme Court with or without a speaking order, the order from which the appeal arose does not merge into such an order, for, as already indicated hereinabove, with the dismissal of the special leave petition, no appeal survives and no appeal can be said to have been considered. In fact, when the special leave to appeal is declined, there is no appeal. In fact, when the special leave to appeal is declined, there is no appeal. Hence, question of the merger of the order into the order declining to grant special leave to appeal does not arise at all. One may, in this regard, refer to Punjab State Electricity Board, Patiala v. Ashok Kumar Sehgal, reported in AIR 1990 P & H 117 (FB), wherein it has been observed thus, " Article 136(1) of the Constitution provides that notwithstanding anything in Chapter IV, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any Court or tribunal in the territory of India. If the Supreme Court, in its discretion, refused to grant Special Leave to Appeal, then there is no appeal. The doctrine of merger or fusing the judgment of the lower Court in that of the appellate Court does not apply to such a situation. Thus, in our view, we can proceed with these matters despite the Special Leave Petition in Kuldip Singh's case having been dismissed." 21. The above aspect of the law has been succinctly and authoritatively laid down by the Apex Court, in Kunhayammed (supra), in the following words:- "The logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject-matter at a given point of time. When tribunal or authority was subjected to remedy available under the law before superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its finality to put in jeopardy. Once the superior Court has disposed of the lis before it either way whether the decree or order under appeal is set aside or modified or simply confirmed. It is the decree or order of the superior Court, tribunal or authority which is the final binding and operative decree or order wherein merges the decree or order passed by the court, tribunal or the authority below. However, the doctrine is not of universal or submitted application. The nature of jurisdiction exercised by the superior forum and content or subject latter of challenge which could have been laid shall have to be kept in view. 43. We may look at the issue from another angle. However, the doctrine is not of universal or submitted application. The nature of jurisdiction exercised by the superior forum and content or subject latter of challenge which could have been laid shall have to be kept in view. 43. We may look at the issue from another angle. The Supreme Court cannot and does not reverse or modify the decree or order appealed against while deciding a petition for special leave to appeal. What is impugned before the Supreme Court can be reversed or modified only after granting leave to appeal and then assuming appellate jurisdiction over it. If the order impugned before the Supreme Court cannot be reversed or modified at the SLP stage obviously that order cannot also be affirmed at the SLP stage. To sum up our conclusions are :- (i) Where an appeal or revision is provided against an order passed by a Court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it; the decision by the sub-ordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law. (ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. First stage is up to the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and special leave petition is converted into an appeal. (iii) Doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability or merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising it appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter. (iv) An order refusing special leave to appeal may be non-speaking order or a speaking one. The doctrine of merger can therefore be applied to the former and not to the latter. (iv) An order refusing special leave to appeal may be non-speaking 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 it 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 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. (vi) Once leave to appeal has been granted and appellate jurisdiction of 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 Supreme Court the jurisdiction of High Court to entertain a review petition is lost thereafter as provided by Sub-rule (1) of Rule (1) of Order 47 of the C.P.C." 22. What emerges from the law laid down in Kunhayammed (supra) is that where an appeal is provided against an order passed by a Court and the appeal is preferred, then, the decision of the lower Court forum merges into the decision of the appellate Court and it is the latter's decision, which subsists, remains operative and is capable of enforcement in the eyes of law. The position of the special leave applications made under Article 136 is somewhat different. The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. The first stage is up to the disposal of the prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and the special leave petition is converted into an appeal. The doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of the doctrine of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article136 of the Constitution, the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against only when it exercises appellate jurisdiction (i.e., after the leave to appeal is granted) and not while it exercises the discretionary jurisdiction on the question as to whether the petition for special leave to appeal shall be granted or not. The doctrine of merger, therefore, in such cases, comes into play if the special leave to appeal is granted and not when the question as to whether the leave would be granted or not is considered and decided. An order refusing special leave to appeal may be a non-speaking 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. What such an order implies is that the Supreme Court was not inclined to exercise its discretion so as to allow the appeal being filed. If the order refusing leave to appeal is a speaking order, i.e. when reasons are assigned for refusing the grant of leave, then, the order has two implications. Firstly, the statement of law contained in such an order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. If the order refusing leave to appeal is a speaking order, i.e. when reasons are assigned for refusing the grant of leave, then, the order has two implications. Firstly, the statement of law contained in such an 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 it does not mean that the order of the Court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting 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. Once leave to appeal has been granted and the appellate jurisdiction of Supreme Court has been invoked, the order passed in appeal would attract the doctrine of merge. 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 High Court' to entertain a review petition is lost thereafter as provided by Sub-rule (1) of Rule (1) of Order 47 of the C.P.C. 23.I may, however, hasten to add and clarify that though on the refusal to grant special leave to appeal under Article 136, the order of the High Court does not merge into the order of the Supreme Court, the order of the Supreme Court remains binding on the subordinate Courts, for, the Supreme Court in the final arbiter of the matter and that is why, when a special leave petition is dismissed under Article 136, the order, which is sought to get opened in appeal, cannot be reviewed by the self-same Court. This position of law is clear from the following observations of the Supreme Court in State of Maharashtra v. Prabhakar (supra) too, which read as follows :- "3. It is contended for the respondent that the dismissal of the SLP does not preclude the Tribunal from reviewing the order since the dismissal was a non-speaking order. We fail to appreciate the contention of the respondent. It is contended for the respondent that the dismissal of the SLP does not preclude the Tribunal from reviewing the order since the dismissal was a non-speaking order. We fail to appreciate the contention of the respondent. It is true that this Court has held that the dismissal of SLP without a speaking order does not constitute res judicata. The principle of res judicata is founded on public policy that the parties cannot be permitted to have the controversy directly or substantially in issue between the same parties or those claiming under the parties in the subsequent suit in the same proceedings in the subsequent stages cannot be raised once over. It is a sound principle of public policy to prevent vexation. 4. But in this case, when the self-same main order was confirmed by this Court, the question arises whether the Tribunal has had power under Order 47, Rule 1 CPC or any other appropriate provision under the Tribunal Act to review the orders passed by it and confirmed by this Court by refusing to grant leave. We find that the exercise of the review power is deleterious to the judicial discipline. Once this Court has confirmed the order passed by the Tribunal, that becomes final. Therefore, the Tribunal cannot have any power to review the previous order which stands merged with the order passed by this Court." 24. Thus, the reference made by Mr. K.P. Pathak to the case of Kunhayammed (supra) is, somewhat, misplaced inasmuch as this decision, nowhere, lays down that the order passed by the single Bench, if appealed against and dismissed, will not merge into the order of the Division Bench. 25. What crystallises from the above discussion is that when an order is passed in a writ petition and the same is challenged in appeal, the dismissal of the appeal will debar the Court, which passed the order in the writ petition, to review its own order, for, the order passed in the writ petition, on preferring of the appeal and the dismissal thereof, particularly, when the appeal itself is withdrawn without obtaining leave, will merge into the appellate order and cannot survive for consideration, independent of, and/or distinct from the appellate order. 26. 26. In view of the above, as the review applicants-writ respondents, in the present case, had already preferred, as indicated hereinabove, appeals and the same have been dismissed on being withdrawn without obtaining leave, the orders, dated 27.01.2003, aforementioned passed by this Court stand merged into the said appellate orders, dated 04.12.2003, and this Court is, now, debarred by law to review its own orders, dated 27.1.2003, aforementioned. 27. For what have been discussed and pointed out above, the review petitions are misconceived and not maintainable in law. The writ petitions shall accordingly stand dismissed. 28. Considering, however, the entire facts and circumstances of the case, the parties are directed to bear their respective costs.