Effect of 'in limine' dismissal of SLP by Supreme Court and Filing of Review Petition in Supreme Court - CBEC Clarifies
IN limine means on the threshold, at the very outset.
The Supreme Court in Kunhayammed v. State of Kerala - dwelt extensively upon the aspect as to when a decision of the Court in a SLP would be binding and when not. The Court observed that there are two distinct stages:
(a) Granting of special leave to appeal; and
(b) Hearing the appeal.
If the SLP is dismissed at the stage of special leave without a speaking or reasoned order, there is no res judicata, no merger of the lower order and the petitioner retains the statutory right, if available of seeking relief in review jurisdiction of the High Court.
If the SLP is dismissed at the first stage by a speaking reasoned order, there is still no merger but rule of judicial discipline and declaration of law under Article 141 of the Constitution will apply. The order of Supreme Court would mean that it has declared the law and in that light the case was considered not fit for grant of leave.
Once leave is granted but SLP converted into appeal is dismissed with or without reasons, merger results and law is declared. It is no longer permissible to move the High Court by review and no Court, Tribunal or Authority can express any opinion contrary to the view taken by Supreme Court. Order appealed against can be reversed, modified or affirmed by the Supreme Court in exercise of appellate jurisdiction at the second stage only and not at the discretionary first stage of special leave under Article 136 of the Constitution of India.
Supreme Court has in some other cases explained:
When the Review will be maintainable :
(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;
(ii) Mistake or error apparent on the face of the record;
(iii) Any other sufficient reason.
When the review will not be maintainable:
(i) A repetition of old and overruled argument is not enough to re-open concluded adjudications;
(ii) Minor mistakes of inconsequential import;
(iii) Review proceedings cannot be equated with the original hearing of the case;
(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice;
(v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error.
(vi) The mere possibility of two views on the subject cannot be a ground for review.
(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.
(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.
(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter has been negatived.
Board wants the field formations to keep in mind the above, while interpreting the Supreme Court's dismissal of SLP 'in limine'. If the SLP has been dismissed ' in limine' there cannot be any ground for filing a review petition.
CBEC Instruction in F.No.276/114/2015-CX.8A; Dated: February 09 2015
Has the Board changed its view? Board faced a similar issue a couple of years ago when its SLP was dismissed in limine and the Board wanted to file a review petition. The Additional Solicitor General opined,
Even otherwise, I am unable to understand what purpose will be served by filing a review petition in a case where the Hon'ble Supreme Court has dismissed a SLP in limine without assigning any reasons. An in limine dismissal merely means that the Hon'ble Supreme Court did not find it an appropriate case to consider the matter. Such an order does not amount to law declared under Article 141 of the Constitution of India (Kunhayammed Vs State of Kerala)
Board in F.No, 276/125/2012-CX.8A.CUS, dated 25.08.2014, in spite of the opinion of the ASG felt that since Department has prima facie a strong case on merit in its favour, field formations should take up all such cases for filing of Appeal before the Courts/Tribunal. ( 01 09 2014)