The doctrine of merger is a common law doctrine that is rooted in the idea of maintenance of the decorum of hierarchy of courts and tribunals, the doctrine is based on the simple reasoning that there cannot be, at the same time, more than one operative order governing the same subject matter. The same was aptly summed up by the Supreme Court when it described the doctrine so:
“44. … (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 subordinate 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 the law.”
Thus, for the doctrine of merger to be applicable there must be a decision of a subordinate court/forum, in respect of which there exists a right of appeal/revision which is duly exercised, and the superior forum before whom such appeal/revision is preferred must modify, reverse, and/or affirm the decision of the subordinate court/forum. The consequence of such modification, reversal, and/or affirmation is that the decision of the subordinate forum would merge with the decision of the superior forum, which in turn would be operative and capable of being enforced.
Indian courts and the doctrine of merger
Perhaps the earliest Indian decision discussing the doctrine of merger is that of the High Court of Bombay in CIT v. Tejaji Farasram Kharawalla where it was held that:
… It is a well-established principle of law that when an appeal is provided from a decision of a tribunal and the appeal court after hearing the appeal passes an order, the order of the original court ceases to exist and is merged in the order of the appeal court, and although the appeal court may merely confirm the order of the trial court, the order that stands and is operative is not the order of the trial court but the order of the appeal court.
In CIT v. Amritlal Bhogilal & Co., another decision which touches upon the doctrine of merger, the Supreme Court observed:
“10. There can be no doubt that, if an appeal is provided against an order passed by a tribunal, the decision of the appellate authority is the operative decision in law. If the appellate authority modifies or reverses the decision of the Tribunal, it is obvious that it is the appellate decision that is effective and can be enforced. In law the position would be just the same even if the appellate decision merely confirms the decision of the Tribunal. As a result of the confirmation or affirmance of the decision of the tribunal by the appellate authority, the original decision merges in the appellate decision and it is the appellate decision alone which subsists and is operative and capable of enforcement….”
Another important decision in the realm of the doctrine of merger is that of Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat, where the Supreme Court while reiterating an earlier decision laid down three conditions that would serve to make the doctrine applicable. These conditions were that the jurisdiction exercised should have been appellate or revisional jurisdiction, that such jurisdiction must necessarily have been exercised after issuance of notice, and that it must have followed a full hearing in presence of both parties.
In Gojer Bros. (P) Ltd. v. Ratan Lal Singh the Supreme Court reiterated that insofar as the doctrine of merger was concerned there could be no distinction in terms of application of the doctrine of merger between an appellate judgment simpliciter dismissing an appeal, and an appellate judgment modifying or reversing the decree of the lower court.
More recently in A.V. Papayya Sastry v. Govt. of A.P. the Supreme Court had the occasion to hold that;
“38. … All orders passed by the courts/authorities below, therefore, merge in the judgment of this Court and after such judgment, it is not open to any party to the judgment to approach any court or authority to review, recall or reconsider the order.”
Inapplicability of the doctrine of merger
There are certain circumstances in which the doctrine of merger will not apply as a matter of course, these include situations where the scope of appeal/revision is narrower than that of the original proceeding, and situations where the power vested in the court designated to hear such appeal/revision is limited; additionally, the doctrine of merger would not apply where the order itself has been secured by means of fraud.
The decisions in which these broad principles were laid down include:
The decision rendered by the Supreme Court in State of Madras v. Madurai Mills Co. Ltd. wherein it was held that:
“5. … doctrine of merger is not a doctrine of rigid and universal application and it cannot be said that wherever there are two orders, one by the inferior tribunal and the other by a superior tribunal, passed in an appeal on revision, there is a fusion of merger of two orders irrespective of the subject-matter of the appellate or revisional order and the scope of the appeal or revision contemplated by the particular statute. In our opinion, the application of the doctrine depends on the nature of the appellate or revisional order in each case and the scope of the statutory provisions conferring the appellate or revisional jurisdiction.”
In A.V. Papayya Sastry v. Govt. of A.P. discussed above, the Court laid down an important exception to the doctrine of merger. It observed that where it was established that the order obtained by the successful party was a consequence of fraud such order stood vitiated and could not be held legal, valid or in consonance with law. Such order was necessarily “non-existent”, “non est” and could not be allowed to stand.
Doctrine of merger and special leave petitions
Given their extraordinary nature, a great deal of judicial time and attention has been spent on the effect of judicial orders in special leave petitions and the applicability of the doctrine of merger thereto.
To better understand this, it is necessary that we examine the very nature of Article 136. The power vested in the Supreme Court by virtue of Article 136 is a special power inasmuch as it broadens the scope for invocation of the appellate jurisdiction of the Supreme Court. However, exercise of such extraordinary power is subject to the discretion of the Supreme Court itself. In simpler terms, Article 136 allows bypassing of the fixed hierarchy of appeals subject to the satisfaction of the discretion of the Supreme Court.
It is thus a two staged process, the first being satisfaction of the discretionary jurisdiction of the Supreme Court, at this stage a duty is cast upon the petitioner to show that it is a fit case for the Supreme Court to exercise its extraordinary appellate jurisdiction. At this juncture there are two possibilities, the first to grant special leave to appeal and hear such appeal, and the second to dismiss such special leave to appeal; it is only in case of the former that the finality of the order/decree/judgment appealed against is brought into question.
Unfortunately, there existed a great deal of uncertainty regarding the applicability of the doctrine of merger in case of special leave petitions has primarily has arisen in cases where the special leave to appeal has been denied without touching upon the merits of the appeal itself.
The Supreme Court of India on multiple occasions has held that a non-speaking order of dismissal of special leave petition cannot reasonably lead one to the conclusion that it is a tacit approval of the order/decree/judgment appealed against. A similar view was put forth by the Supreme Court in V.M. Salgaocar & Bros. (P) Ltd. v. CIT where the Court held that in dismissing a special leave petition the Court does not express any opinion on the order from which such appeal is itself sought.
The Supreme Court’s decision in Kunhayammed v. State of Kerala is perhaps the most significant decision in this regard;
Some aspects of the decision warrant reproduction here viz.:
“44. … (i) Where an appeal or revision is provided against an order passed by 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 subordinate forum mergers 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 the law.”
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“(iii) 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 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 its 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 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. 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 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.”
The doctrine of merger stems from necessity; the absence of an established doctrine to ascertain which one of several successive orders must be deemed final and therefore prevail would be chaotic to say the least. The doctrine of merger more than adequately fills this void by stipulating that it would be the order of the appellate/revisional court that would be final.
† Practising Advocate at the High Court of Bombay at Goa.
Yogendra Narayan Chowdhury v. Union of India, (1996) 7 SCC 1.