Disclaimer: This has been reported after the availability of the order of the Court and not on media reports so as to give an accurate report to our readers.
Jammu & Kashmir and Ladakh High Court: In the present review petition, Union of India sought review of a judgment dated 09-05-2022 that remitted a few claims of the respondent (‘Contractor’) back to the Arbitrator for fresh adjudication. A Single Judge Bench of Sanjeev Kumar, J., allowed the review petition and held that the dismissal of a Special Leave Petition (‘SLP’) by the Supreme Court , with or without reasons, would not attract the doctrine of merger so as to stand substituted in place of the order impugned before it; nor would it amount to a declaration of law by the Supreme Court under Article 141 of the Constitution unless there was a specific declaration of law made while dismissing the SLP by a reasoned order.
Background:
Union of India sought review of a judgment dated 09-05-2022 on the ground that the Court had committed an error apparent on face of record, in that, while setting aside the award of the Arbitrator in respect of Claims 1, 2, 4, 8, 15 and 16 made by the Contractor, being beyond the terms and conditions of the contract, the Court had remitted the said claims for fresh adjudication yet again by the Arbitrator.
However, the Contractor’s counsel argued that the said judgment could not be subjected to review by the Court in view of the Supreme Court’s order dated 14-07-2022 passed in SLP(C) No. 10816 of 2022 dismissing the SLP filed by the Contractor and leaving Claims 2, 3, 8, 16, 18, 19 and 20 to be re-adjudicated upon by the Arbitrator. Hesubmitted that the judgment sought to be reviewed by the Union of India had merged with the order dated 14-07-2022, and therefore, could not be reviewed. He submitted that once the Supreme Court had dismissed the SLP filed against the judgment sought to be reviewed, it was not open to the Court to review the judgment even if good grounds were made out for such review.
Analysis and Decision:
The Court clarified that there are three permissible grounds on which a review petition might be entertained:
(i) Discovery of new and important evidence– The evidence must be relevant and material and should not have been available at the time of judgment despite due diligence.
(ii) Mistake or error apparent on the face of record– The error must be obvious, self- evident, and not requiring elaborate reasoning. A wrong decision on merits was not the same as an error apparent on the face of the record; and
(iii) Any other sufficient reason– The expression ‘any other sufficient reason’ must be read ejusdem generis with the above two grounds and could not be interpreted as granting a blanket license for litigation or re-adjudication of matters.
The Court opined that while exercising the review jurisdiction, it must be borne in mind that review proceedings are not by way of an appeal and must strictly be confined to the scope and ambit of Order XLVII Rule 1 of the Civil Procedure Code, 1908 (‘CPC’). The Court emphasised that a review petition has a limited purpose and cannot not be allowed to be an appeal in disguise.
The Court noted that in the concluding Paragraph 52 of the impugned judgment, the matters regarding Claims 1, 2, 4, 8, 15 & 16 were remitted to the Arbitrator for fresh adjudication. The Court observed that these matters were beyond the jurisdiction and competence of the Arbitrator as they were contrary to the specific terms and conditions of the contract, and therefore, could not have been remitted back to him. This aspect had inadvertently escaped the attention of the Court while passing the said judgment, resulting in an error apparent on the face of record.
The Court rejected the Contractor’s counsel plea, that the judgment sought to be reviewed had merged with the judgment of the Supreme Court passed in SLP, as being without any merit. The Court clarified that the Supreme Court had simply dismissed the SLP without even notice to the Union of India and allowed the Contractor to pursue the matter before the Arbitrator, and therefore, the judgment passed by the Court could not be said to have merged with the judgment of the Supreme Court.
The Court discussed Senthur v. T.N. Public Service Commission, (2022) 17 SCC 568, and observed that even if the order of dismissal of an SLP was supported by reasons, the doctrine of merger would not be attracted. However, the reasons stated by the Court would attract the applicability of Article 141 of the Constitution, if it was tantamount to a law declared by the Supreme Court. The mere dismissal of an SLP, with or without reasons, would not attract the doctrine of merger. The Court noted that the Supreme Court had simply dismissed the SLP without even indicating reasons for such dismissal, which meant that the judgment passed by the Courtwas affirmed. The Court observed that in such a situation, the doctrine of merger would not apply, and the judgment passed by the Court would still be open to review on permissible grounds. The Court found no substance in the objection raised by the Contractor’s counsel to the maintainability of this review petition.
The Court held that the awardso far as it pertained to Claims 1, 2, 4, 8, 15, and 16was beyond the Arbitrator’s jurisdiction as it was against the terms and conditions of the contract, and therefore, any adjudication upon it would be declared a nullity. Consequently, the Court allowed the review petition, finding merit in it. The Court was informed thatthe Arbitrator had already entered upon a fresh reference and adjudicated all the claims in terms of the judgment dated 19-05-2022;thus, the Court clarified that the award to the extent it pertained to Claims 1, 2, 4, 8, 15, and 16 would be beyond the jurisdiction and competence of the Arbitrator, and any adjudication thereon would be a nullity.
[Union of India v. D. Khosla & Co., RP No. 115 of 2022, decided on 17-10-2025]
Advocates who appeared in this case:
For the Review Petitioner: Vishal Sharma DSGI with Eishan Dadeechi, CGSC.
For the Respondent: Sourabh Malhotra, Advocate.
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