Filing of fresh SLP when earlier one is dismissed sans reasons or withdrawn: Supreme Court benches in conflict

A bench of the Supreme Court recently prima facie expressed its disagreement with another bench's view that a fresh special leave petition (SLP) can be preferred when the earlier SLP was dismissed without assigning any reasons or as withdrawn [NF Railway Vending and Catering Contractors Association Lumding Division v. Union of India and Others]..A Bench of Justices Dipankar Datta and Prashant Kumar Mishra questioned the reference of the issue to a larger bench."Prima facie, we find little reason to agree with the view expressed by the coordinate Bench in S. Narahari v. S.R. Kumar. With respect, the coordinate Bench does not appear to have considered the principles flowing from Order XXIII Rule 1 of the Code of Civil Procedure, 1908. A party having withdrawn the proceedings before a competent Court and not having obtained leave of such Court to file a fresh proceeding ought not to be permitted to have a second bite at the cherry," the Court observed.Taking note that the coordinate bench has already referred the issue to a larger bench, the Court proceeded to adjourn the case till the issue is finally resolved by the larger bench..Senior Advocates Rana Mukherjee and S Wasim A Qadri, along with Advocates Tamim Qadri, Saeed Qadri, Bhavna Kanpur, Saahil Gupta, Deepak Bhati, Shivendra Singh and Udita Singh appeared for the appellant..On July 5 last year, a Bench of Justices Krishna Murari (now retired) and Sanjay Karol had referred to a larger bench the issue of whether liberty granted by the Supreme Court to approach the High Court in review automatically places a matter in the escalation matrix, and makes the remedy of Special Leave Petition (SLP) available again..Is remedy of SLP available again after Supreme Court grants liberty to approach High Court in review? Larger bench to decide.In its analysis, the Bench had noted that Order XLVII Rule 7 of the Code of Civil Procedure (CPC) makes it amply clear that no SLP can be filed against an order passed in review. However, it held,"If a dismissal of Special Leave Petition by way of a nonspeaking order is not considered law under Article 141 of Constitution of India, the same also cannot be considered as res judicata, and therefore, in every such dismissal, even in cases where the dismissal is by way of a withdrawal, the remedy of filing a fresh Special Leave Petition would still persist. Further, if on the said reasoning, a remedy to file a review in the High Court is allowed, then the same reasoning cannot arbitrarily exclude the filing of a subsequent Special Leave Petition."Even while noting that such an interpretation would open the floodgates of litigation, and would essentially mean that every dismissal of an SLP must be accompanied with reasons, the Bench of Justices Murari and Karol had deemed it fit to refer the issue to a larger bench.The Bench had referred to precedents on the issue including Vinod Kapoor v. State of Goa (2012) and Sandhya Education Society v. Union of India (2014). These cases had a similar set of circumstances, where consecutive SLPs were filed and the order in the original SLP only gave an explicit liberty to approach the High Court. In these cases, the top court held that the subsequent SLP was not maintainable.However, contrary to the above decisions, the Court in Khoday Distilleries Limted v. Sri Mahadeshwara Sahakara Sakkare Karkhane Limited (2019) held that that the doctrine of merger is not applicable in cases where the dismissal of SLP is by way of a non-speaking order..[Read Order]