Doctrine of Merger

22 Feb 2018

Meaning:  The doctrine of merger is neither a doctrine of constitutional law nor a doctrine statutorily recognized. It is a common law doctrine founded on principles of propriety in the justice delivery system[1]. Whenever a higher authority(higher Court) passes an order either confirming or setting aside the order passed by the authority, then the order passed by the subordinate authority(lower Court) would merge in the order passed by the higher authority[2].


Brief: The principle of doctrine of merger was applied by the Supreme Court, in that it was clarified that so far as principle of merger is concerned, there is no distinction between order of reversal or modification and order of confirmation passed by the appellate Court. As in all the three cases the order passed by the lower authority, shall merge in the order passed by the appellate authority whatsoever be its decision - whether of reversal or modification or only confirmation[3]. In the case of concurrence and confirmation, it would always be said that the higher authority has as found the order of the lower authority to be correct. However, in case of reversal, it would always be said that the higher authority has corrected the wrong which was committed by the lower authority on the date of passing the wrong order.[4]

 If a wrong is committed, instead of passing a correct and justified order the lower Court commits erred while passing the order and the moment the erred order is set as order quashed, then the order setting aside would replace the first wrong order.In a case like this, the principles of merger would apply. 


Conclusion: 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 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[5].

[1]  ShivappaMallappa Jigalur and Others v. Shivappa Mallappa Jigalur and Others ILR 2004KAR 2784 

[2] Sheel Chand Jain v. State ofM.P. (2010) 2 MP Lj  689 (FB) :  AIR 2010 MP 130 (FB)

[3] Kunhayammed v. Stateof Kerala, AIR 2000 SC 2587

[4] Sheel Chand Jain v. State ofM.P. (2010) 2 MP Lj  689 (FB) : AIR 2010 MP 130 (FB)

[5] ShivappaMallappa Jigalur v. Shivappa Mallappa Jigalur ILR 2004 KAR 2784 

Recent Blogs