Summary
| Category | Data |
|---|---|
| Court | Supreme Court of India |
| Case Number | C.A. No. 11752–11753 / 2025 |
| Diary Number | 58296 / 2024 |
| Judge Name | HON’BLE MR. JUSTICE DIPANKAR DATTA |
| Bench | HON’BLE MR. JUSTICE DIPANKAR DATTA; HON’BLE MR. JUSTICE AUGUSTINE GEORGE MASIH |
| Precedent Value | Binding on all courts |
| Overrules / Affirms | Affirms Upadhyay & Co. v. State of U.P. |
| Type of Law | Constitutional law (Article 136) and Civil Procedure (Order XXIII R. 1; Order XLVII R. 7 CPC) |
| Questions of Law | Whether a second Special Leave Petition under Article 136 is maintainable if the first petition was withdrawn unconditionally without leave to re-file. |
| Ratio Decidendi | The Court held that when a party withdraws an SLP without obtaining leave to file a fresh petition, public-policy considerations and the doctrine underlying Order XXIII Rule 1 CPC bar refiling against the same order. The principle of merger applies by analogy: an unchallenged parent order cannot be revisited by a belated second petition. Furthermore, no appeal lies against the rejection of a review petition under Order XLVII Rule 7 CPC. |
| Judgments Relied Upon | Upadhyay & Co. v. State of U.P. (1999 1 SCC 81); Sarguja Transport Service v. State of M.P. (1987 1 SCC 5); Kunhayammed v. State of Kerala (2000 6 SCC 359); Khoday Distilleries Ltd. v. Mahadeshwara Sahakara Sakkare Karkhane Ltd. (2019 4 SCC 376) |
| Logic / Jurisprudence / Authorities Relied Upon by the Court |
|
| Facts as Summarised by the Court | The borrower withdrew a first SLP challenging a High Court order without leave to re-file, then filed fresh civil appeals against the same order and against the dismissal of his review petition. The Supreme Court held those second filings non-maintainable and dismissed the appeals. |
Practical Impact
| Category | Impact |
|---|---|
| Binding On | All courts in India (Supreme Court, High Courts, subordinate courts) |
| Follows | Upadhyay & Co. v. State of U.P. (1999 1 SCC 81); Sarguja Transport Service v. State of M.P. (1987 1 SCC 5) |
| Distinguishes | Kunhayammed v. State of Kerala (2000 6 SCC 359); Khoday Distilleries Ltd. v. Mahadeshwara Sahakara Sakkare Karkhane Ltd. (2019 4 SCC 376) |
What’s New / What Lawyers Should Note
- The principle of Order XXIII Rule 1 CPC applies by analogy to Article 136 petitions: unconditional withdrawal without leave bars a fresh SLP.
- “Doctrine of merger” prevents parent orders from being re-challenged after an SLP is withdrawn.
- No appeal against rejection of a review petition under Order XLVII Rule 7 CPC; the underlying order remains intact.
- Public-policy maxim interest reipublicae ut sit finis litium enforced to discourage repeated challenges.
Summary of Legal Reasoning
- Maintainability Objection: Respondent argued that withdrawal of the first SLP without leave and Order XLVII Rule 7 CPC bar the appeals.
-
Precedent Analysis:
- Upadhyay & Co. – public-policy bar on second filings without leave.
- Sarguja Transport – extension of CPC withdrawal rule to writs.
- Kunhayammed & Khoday Distilleries – doctrine of merger, but on different facts and not displacing Upadhyay.
- Statutory Interpretation: Order XXIII Rule 1 CPC’s prohibition on fresh suits by a withdrawing plaintiff applies to Article 136. Order XLVII Rule 7 CPC confirms no appeal from review-rejection.
- Policy Considerations: Finality of litigation and public interest in ending disputes.
- Conclusion: Second SLP non-maintainable; appeals dismissed.
Arguments by the Parties
Petitioner (Appellant)
- Relied on S. Narahari & Others v. S.R. Kumar for maintainability of a second SLP.
- Cited Article 136’s extraordinary jurisdiction and Dhakeswari Cotton Mills on justice overriding technical hurdles.
- Invoked Kunhayammed and Khoday Distilleries for non-applicability of merger to non-speaking orders.
- Argued merits on MSME notification (Section 9, MSMED Act) if maintainability was upheld.
Respondent
- Contended that withdrawal of the first SLP without leave bars any fresh petition (Upadhyay & Co.).
- Pointed to Order XLVII Rule 7 CPC: no appeal against denial of review.
- Noted absence of any liberty from the Supreme Court to re-approach after withdrawal.
Factual Background
The borrower challenged a High Court order disposing of his writ under Article 226 against SARFAESI proceedings and secured installment relief. He first filed an SLP before the Supreme Court but withdrew it unconditionally, then unsuccessfully sought a review in the High Court. Thereafter he filed two civil appeals in the Supreme Court against the original disposal order and the review-rejection order.
Statutory Analysis
- Constitution of India, Article 136: Extraordinary jurisdiction is discretionary and subject to public-policy limits.
- Code of Civil Procedure, Order XXIII Rule 1: Withdrawal of a suit without leave bars fresh suit on same cause. Applied by analogy to SLPs.
- Code of Civil Procedure, Order XLVII Rule 7(1): No appeal lies from an order rejecting a review application; the original decree/order remains intact.
Alert Indicators
- ✔ Precedent Followed – Confirms that established law in Upadhyay & Co. governs post-withdrawal SLPs.