Constitution of India – Article 136 – Special Leave Petition – Withdrawal – Second SLP – Maintainability –
Where a special leave petition challenging a High Court order is withdrawn unconditionally, without seeking or being granted liberty to re-approach the Supreme Court, a second SLP against the same order is not maintainable. Principle of Order XXIII Rule 1 CPC (withdrawal without liberty precludes fresh proceeding) applies to SLPs as a matter of public policy – Upadhyay & Co. v. State of U.P., (1999) 1 SCC 81, applied. S. Narahari v. S.R. Kumar, (2023) 7 SCC 740, distinguished.
Civil Procedure Code, 1908 – Order XLVII Rule 7(1) – Review – Appealability –
An appeal does not lie against an order rejecting a petition for review. Rejection of review does not result in merger; it only affirms the original decree/order. Remedy lies, if at all, against the parent order, not against the review dismissal.
SARFAESI Act, 2002 – Section 13(4) –
Borrower default – Loan classified as NPA – High Court directing repayment schedule – Challenge before Supreme Court by second SLP not maintainable once earlier SLP was withdrawn unconditionally.
Doctrine of Merger / Res judicata – Public policy –
Entertaining a second SLP in such circumstances would amount to sitting in appeal over earlier SC order and is barred by principles of public policy; litigation must attain finality (interest reipublicae ut sit finis litium).
Held – Appeals dismissed as not maintainable. Connected applications closed. Liberty reserved to appellant to pursue remedy before appropriate forum in accordance with law.
2025 INSC 1140
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.11752-11753/2025
[ARISING OUT OF SLP(C) NOS.30056-30057/2024]
SATHEESH V.K. … APPELLANT
VERSUS
THE FEDERAL BANK LTD. … RESPONDENT
J U D G M E N T
DIPANKAR DATTA, J.
1. Appellant, Satheesh V.K., is a borrower within the meaning of section
2(f) of the Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 20021
. Undisputedly, the
appellant obtained financial assistance from the respondent-Federal
Bank, a secured creditor within the meaning of section 2(zd) of the
SARFAESI Act, by creating equitable mortgage over properties
situated in Kozhikode. However, the appellant having defaulted in his
obligation to repay the loan, the respondent classified the loan
account as ‘Non-Performing Asset’ (NPA) and initiated measures
under section 13(4) of the SARFAESI Act.
1
SARFAESI Act
2
2. Aggrieved by the action taken by the respondent, the appellant
invoked the jurisdiction of the High Court of Kerala at Ernakulam
under Article 226 of the Constitution by presenting a writ petition2
.
According to the respondent, the total outstanding amount was
Rs.7,77,41,321/-. The order dated 1st October, 2024 passed by the
High Court disposing of the writ petition required the appellant to pay
Rs.2,00,00,000/- on or before 30th October, 2024 and the remaining
amount along with future interest in 12 (twelve) equal monthly
instalments. The first instalment was to be paid on or before 15th
November, 2024 and the remaining eleven (11) instalments were to
be paid on or before 15th day of each succeeding month. The
impugned order further directed that in case of failure to make
payment of Rs.2,00,00,000/- or any of the subsequent instalments,
as directed, the respondent would be free to proceed against the
appellant under the SARFAESI Act for realisation of the dues in
accordance with law. Appellant was also granted liberty to approach
the respondent for one time settlement after making payment of the
initial sum of Rs.2,00,00,000/- on or before 30th October, 2024.
3. The order dated 1st October, 2024 was challenged by the appellant in
a special leave petition3 before this Court. Order dated 28th
November, 2024 recorded on the said special leave petition by a coordinate Bench reads as follows:
2 Writ Petition (C) No.33280 of 2024
3 Special Leave Petition (C) No.28259/2024
3
ORDER
1. After arguing for some time and on our expressing reservation in
entertaining the present petition, the learned senior counsel for the
petitioner seeks permission to withdraw the present petition.
2. Permission to withdraw is granted.
3. The Special Leave Petition is dismissed as withdrawn.
4. Having been permitted to withdraw the special leave petition, the
appellant next approached the High Court with a petition4 seeking
review of the order dated 1st October, 2024. Such petition came to be
dismissed vide order dated 5th December, 2024.
5. Consequent upon such dismissal, these two civil appeals were
presented by the appellant before this Court on 12th December, 2024.
The appeal5
registered prior in point of time is directed against the
order dated 1st October, 2024 of disposal of the appellant’s writ
petition, whereas the one6 subsequently registered is directed against
the dismissal of the review petition.
6. The alacrity with which the appellant moved from court to court
between 1st October, 2024 (date of disposal of his writ petition) and
12th December, 2024 (date of presenting the special leave petitions
before this Court giving rise to these appeals) without showing
semblance of an inclination to repay the dues of the respondent and
to buy time by resorting to technicalities are certainly factors which
we propose to bear in mind while deciding these appeals.
4 RP No.1294 of 2024
5 Civil Appeal No.11752/2025
6
Civil Appeal No.11753/2025
4
7. Mr. Aljo K. Joseph, learned counsel appearing for the respondent, has
vehemently objected to maintainability of the appeals. He has
referred to the aforesaid order dated 28th November, 2024 passed on
the appellant’s previous special leave petition and contended that no
liberty having been sought and/or granted by this Court to present a
fresh special leave petition to lay a challenge to the order dated 1st
October, 2024, the appellant has no right in law to approach this
Court once again after withdrawing the initial challenge. Also, in view
of Order XLVII Rule 7 (1) of the Code of Civil Procedure, 19087
, there
can be no appeal against an order refusing review.
8. The objection to the maintainability of the appeal against the order
dated 1st October, 2024 was sought to be countered by Mr. Menon,
learned counsel for the appellant, by citing the decision of a coordinate Bench of this Court in S. Narahari and Others v. S.R.
Kumar and Others8
. It was pointed out that a reference was made
for constitution of a larger Bench to deliberate and adjudicate the
issue as to whether a second special leave petition would be
maintainable against an order which was previously challenged in a
special leave petition but the challenge had either been withdrawn or
spurned. Our attention was further drawn by Mr. Menon to orders
dated 29th July, 2024 and 13th August, 2024 passed by another coordinate Bench of this Court [of which one of us (Dipankar Datta) was
7 CPC
8
(2023) 7 SCC 740
5
a member] in N.F. Railway Vending and Catering Contractors
Association Lumding Division vs. Union of India & Ors.9 where,
noticing S. Narahari (supra), the special leave petitions were
adjourned till such time the reference is decided.
9. Apart from referring to the aforesaid decisions, Mr. Menon relied on a
compilation of precedents starting from Dhakeswari Cotton Mills
Ltd. v. Commissioner of Income Tax, West Bengal10
. Reliance
was placed on paragraph 8 of Dhakeswari Cotton Mills Ltd. (supra)
on the extent of powers conferred by Article 136 of the Constitution,
reading as follows:
“8. … It is not possible to define with any precision the limitations on
the exercise of the discretionary jurisdiction vested in this Court by
the constitutional provision made in Article 136. The limitations,
whatever they be, are implicit in the nature and character of the
power itself. It being an exceptional and overriding power, naturally
it has to be exercised sparingly and with caution and only in special
and extraordinary situations. Beyond that it is not possible to fetter
the exercise of this power by any set formula or rule. All that can be
said is that the Constitution having trusted the wisdom and good
sense of the Judges of this Court in this matter, that itself is a
sufficient safeguard and guarantee that that power will only be used
to advance the cause of justice, and that its exercise will be governed
by well-established principles which govern the exercise of overriding
constitutional powers. It is, however, plain that when the Court
reaches the conclusion that a person has been dealt with arbitrarily
or that a court or tribunal within the territory of India has not given
a fair deal to a litigant, then no technical hurdles of any kind like the
finality of finding of facts or otherwise can stand in the way of the
exercise of this power because the whole intent and purpose of this
Article is that it is the duty of this Court to see that injustice is not
perpetuated or perpetrated by decisions of courts and tribunals
because certain laws have made the decisions of these courts or
tribunals final and conclusive. …”
9 Special Leave Petition (C) Nos.17501-17502/2024
10
AIR 1955 SC 65
6
10. According to Mr. Menon, the power conferred by Article 136 of the
Constitution of India is an extra-ordinary power and such power must
be exercised to advance the cause of justice and not to thwart it.
11. Other decisions relied on by Mr. Menon are Patel Narshi Thakershi
and Ors. v. Shri Pradyumansinghji Arjunsinghji11
, S. Nagaraj
and Others v. State of Karnataka and Another12
, Lily Thomas
and Others v. Union of India & Ors.13
, Kunhayammed and
Others v. State of Kerala & Another14
, Ramnik Vallabhdas
Madhvani and Others v. Taraben Pravinlal Madhvani15
, Union
of India v. Amrit Lal Manchanda and Another16, and Khoday
Distilleries Limited (Now Known as Khoday India Limited) and
Others v. Sri Mahadeshwara Sahakara Sakkare Karkhane
Limited, Kollegal (Under Liquidation) Represented by the
Liquidator17
.
12. Of these decisions, Kunhayammed (supra) and Khoday
Distilleries Limited (supra) have relevance and, therefore, we
propose to consider the same in some detail for deciding the question
arising before us at a later part of this judgment. The other decisions
not being directly related to the point under consideration are not
separately considered. Suffice to record, these decisions lay down
11 (1971) 3 SCC 844
12 1993 Supp (4) SCC 595
13 (2000) 6 SCC 224
14 (2000) 6 SCC 359
15 (2004) 1 SCC 497
16 (2004) 3 SCC 75
17 (2019) 4 SCC 376
7
general principles of law, inter alia, of what is a review, that power to
review is not an inherent power and has to be statutorily conferred,
whether res judicata is applicable in a case where there is inherent
lack of jurisdiction, how to read precedents, and that law has to bend
before justice in given circumstances.
13. On merits, Mr. Menon referred to the decision in M/s Pro Knits v.
The Board of Directors of Canara Bank & Ors.18 and Shri Shri
Swami Samarth Construction & Finance Solution and Another
v. Board of Directors of NKGST Co-op. Bank Ltd and Others19
to contend that the appellant’s company being an unit which is an
MSME, it is entitled to the benefits flowing from Notification dated
29th May, 2015 issued by the Central Government in terms of Section
9 of the Micro Small and Medium Enterprises Development Act, 2006
and that the respondent had acted illegally in not extending the
benefit of such notification to the appellant.
14. Since the question of examining the merits of the appellant’s claim
would arise if the objection to the maintainability were overcome, we
proceed to examine the maintainability aspect first.
15. In course of hearing, we had invited Mr. Menon’s attention to the
order of recent origin dated 1st September, 2025 of another coordinate Bench in Vasantalata Kom Vimalanand Mirjankar Rep.
by G.P.A. Holder vs. Deepa Mavinkurve & Ors.20
. Mr. Menon
18 (2024) 10 SCC 292
19 2025 SCC OnLine SC 1566
20 Special Leave Petition (C) Diary No.36933/2025
8
sought to distinguish Vasantalata (supra) by referring to the
opening sentence of paragraph 7. It was submitted that this Court in
Vasantalata (supra) had dealt with a case where a special leave
petition was dismissed and not withdrawn, as in the present case;
therefore, Vasantalata (supra) has no application here.
16. The question we are tasked to decide, though of frequent occurrence
now-a-days, is not res integra. It is, whether a special leave petition
(second in the series) would be maintainable against a judgment and
order which was earlier challenged before this Court but such
challenge turned out to be abortive because the special leave petition
before this Court is either (i) withdrawn unconditionally, or (ii)
dismissed on merits by a brief order not containing reasons, or (iii)
withdrawn with liberty to apply for review but without the liberty to
approach this Court once again, should the review too fail.
17. No doubt, the co-ordinate Bench in S. Narahari (supra) has referred
the issue to a larger Bench for consideration. The facts therein may
be noted now. The coordinate Bench in S. Narahari (supra) was
seized of the question as to whether, upon dismissal of a special leave
petition against the parent order as withdrawn with liberty to file a
review before the high court but without liberty to approach this Court
again against the parent order should the review fail, a fresh special
leave petition filed against both the parent order and the review
rejection order would be maintainable. The Bench pondered whether
liberty granted by this Court to approach the high court in review
9
automatically places the said matter in the “escalation matrix”, and
makes the remedy of a special leave petition available again. The
Bench traced the first line of cases, Vinod Kapoor v. State of Goa21
and Sandhya Educational Society v. Union of India22 which ruled
that when no liberty has been granted to approach the Supreme
Court once again, a subsequent special leave petition is not
maintainable. This was contrasted with the decision rendered in
Khoday Distilleries (supra) wherein after placing reliance on
Kunhayammed (supra), a three-Judge Bench came to the
conclusion that even after dismissal of a special leave petition, a
review before the high court is maintainable.
18. The Bench in S. Narahari (supra) while acknowledging that the
question in the matter before it was different, was of the view that
the logic employed by the larger Bench in Khoday Distilleries
(supra) caused a crack in the reasoning of the first line of cases and
came to the conclusion that Khoday Distilleries (supra) essentially
ruled that the doctrine of merger does not apply when a special leave
petition is dismissed by way of a non-speaking order. If indeed that
be so, the Bench in S. Narahari (supra) was concerned that such
dismissal by way of a non-speaking order is not to be considered as
law declared under Article 141 of the Constitution and then the same
cannot be considered res judicata; therefore, in every such dismissal,
21 (2012) 12 SCC 383
22 (2014) 7 SCC 701
10
the remedy of filing a special leave petition would still persist. Further,
if a review is allowed to be filed after a special leave petition is
dismissed, then a fresh special leave petition cannot be barred
arbitrarily. Hence, the matter was referred to a larger Bench to put a
quietus to the issue.
19. Having noticed S. Narahari (supra), a stark dissimilarity in facts is
discernible. There, the unsuccessful petitioner at the time of dismissal
of the special leave petition as withdrawn had prayed for and was
granted leave to apply for a review. Upon the review being dismissed,
the parent order was challenged once again. Before us, there is
something very adverse to the appellant. He having sensed that the
co-ordinate Bench was not inclined to entertain the special leave
petition, did not invite an order of dismissal thereof on merits but
went away content with permission to withdraw. Neither permission
was sought to apply for review nor was any window kept open by this
Court to permit the appellant to approach it once again mounting a
challenge to the same order. This is a plain and simple case where
the law laid down in the previous century by a co-ordinate Bench in
its decision in Upadhyay & Co. v. State of U.P. and Others23 would
squarely apply.
20. As noted by the co-ordinate Bench in its order dated 13th August,
2024 in N.F. Railway Vending and Catering Contractors
Association (supra), relied on by Mr. Menon, the decision in
23 (1999) 1 SCC 81
11
Upadhyay & Co. (supra) was not placed for consideration of the coordinate Bench in S. Narahari (supra).
21. In Upadhyay & Co. (supra), it was held thus:
“9. In the meanwhile, the petitioner challenged the order of the
Allahabad High Court dated 3-5-1996 by filing SLP (C) No. 12673 of
1996 in this Court. But for reasons better known to the petitioner he
withdrew the SLP on 9-7-1996. Thereafter, he filed an application
before the High Court for clarification of the order dated 3-5-1996,
but the Division Bench did not find anything to be clarified about that
order and hence dismissed the petition on 10-10-1997.
10. The present special leave petitions are filed against the two
orders of the High Court, one dated 3-5-1996 and the other dated
10-9-1997.
11. We made a recapitulation of the events as above for the purpose
of showing that the petitioner has absolutely no case in the present
SLPs. He cannot, at any rate, now challenge the order of the High
Court dated 3-5-1996 over again having withdrawn the SLP which he
filed in challenge of the same order. It is not a permissible practice
to challenge the same order over again after withdrawing the special
leave petition without obtaining permission of the court for
withdrawing it with liberty to move for special leave again
subsequently.
12. The above principle has been incorporated as a rule in the realm
of suits. Order 23 Rule 1 of the Code of Civil Procedure deals with
withdrawal of suit or abandonment of part of the claim. Sub-rule (3)
says that the court may in certain contingencies grant permission to
withdraw from a suit with liberty to institute a fresh suit in respect of
the subject-matter of such suit. Sub-rule (4) reads thus:
‘1. (4) Where the plaintiff—
(a) abandons any suit or part of a claim under sub-rule (1),
or
(b) withdraws from a suit or part of a claim without the
permission referred to in sub-rule (3),
he shall be liable for such costs as the court may award and
shall be precluded from instituting any fresh suit in respect of
such subject-matter or such part of the claim.’
13. The aforesaid ban for filing a fresh suit is based on public policy.
This Court has made the said rule of public policy applicable to
jurisdiction under Article 226 of the Constitution [Sarguja Transport
Service v. STAT : (1987) 1 SCC 5]. The reasoning for adopting it in
writ jurisdiction is that very often it happens, when the petitioner or
his counsel finds that the court is not likely to pass an order admitting
the writ petition after it is heard for some time, that a request is
made by the petitioner or his counsel to permit him to withdraw it
without seeking permission to institute a fresh writ petition. A court
which is unwilling to admit the petition would not ordinarily grant
liberty to file a fresh petition while it may just agree to permit
withdrawal of the petition. When once a writ petition filed in a High
12
Court is withdrawn by the party concerned, he is precluded from filing
an appeal against the order passed in the writ petition because he
cannot be considered as a party aggrieved by the order passed by
the High Court. If so, he cannot file a fresh petition for the same
cause once again. The following observations of E.S. Venkataramiah,
J. (as the learned Chief Justice then was) are to be quoted here:
‘[W]e are of the view that the principle underlying Rule 1 of
Order 23 of the Code should be extended in the interests of
administration of justice to cases of withdrawal of writ petition
also, not on the ground of res judicata but on the ground of
public policy as explained above. It would also discourage the
litigant from indulging in bench-hunting tactics. In any event
there is no justifiable reason in such a case to permit a
petitioner to invoke the extraordinary jurisdiction of the High
Court under Article 226 of the Constitution once again. While
the withdrawal of a writ petition filed in the High Court without
permission to file a fresh writ petition may not bar other
remedies like a suit or a petition under Article 32 of the
Constitution of India since such withdrawal does not amount
to res judicata, the remedy under Article 226 of the
Constitution of India should be deemed to have been
abandoned by the petitioner in respect of the cause of action
relied on in the writ petition when he withdraws it without such
permission.’
14. ***
15. We have no doubt that the above rule of public policy, for the
very same reasoning, should apply to special leave petitions filed
under Article 136 of the Constitution also. Even otherwise, the order
passed by the Division Bench of the High Court on 3-5-1998 does not
warrant interference on merits as the learned Judges of the High
Court have taken into account all the relevant facts and come to the
correct conclusion.”
(emphasis ours)
22. Upadhyay & Co. (supra), which precedes Kunhayammed (supra)
in point of time, is still the law holding the field declaring in no certain
terms that the principle flowing from Order XXIII Rule 1 of the CPC is
also applicable to special leave petitions presented before this Court.
Reading Upadhyay & Co. (supra) together with Sarguja Transport
Service (supra), which had the occasion to deal with a subsequently
filed writ petition under Article 226 of the Constitution of India after
unconditional withdrawal of the first writ petition under the same
13
article, the position in law seems to be this - a second special leave
petition would not be maintainable at the instance of a party, who
elects not to proceed with the challenge laid by him in an earlier
special leave petition and withdraws such petition without obtaining
leave to file a fresh special leave petition; if such party applies for a
review before the court from whose order the special leave petition
was initially carried and the review fails, then he can neither challenge
the order rejecting the review nor the order of which review was
sought.
23. That no appeal lies from an order rejecting a petition for review is
clear from the plain language of Order XLVII Rule 7(1), CPC. We need
not burden this judgment by referring to any authority on this point.
24. However, the principle underlying Order XLVII Rule 7(1), CPC may be
understood. Whenever a party aggrieved by a decree or order seeks
a review thereof based on parameters indicated in Section 114 read
with Order XLVII, CPC and the application ultimately fails, the decree
or order under review does not suffer any change. It remains intact.
In such an eventuality, there is no merger of the decree or order
under review in the order of rejection of the review because such
rejection does not bring about any alteration or modification of the
decree or order; rather, it results in an affirmance of the decree or
order. Since there is no question of any merger, the party aggrieved
by the rejection of the review petition has to challenge the decree or
order, as the case may be, and not the order of rejection of the review
14
petition. On the contrary, if the petition for review is allowed and the
suit or proceedings is placed for rehearing, Rule 7(1) permits the
party aggrieved to immediately object to the order allowing the
review or in an appeal from the decree or order finally passed or
made in the suit, i.e., after rehearing of the matter in dispute.
25. It is now time to consider the decisions relied upon by Mr. Menon.
26. The passage from the decision in Dhakeswari Cotton Mills Ltd.
(supra) referred to by Mr. Menon has no application on facts and in
the circumstances of the present case. We are inclined to the view
that the nature of power exercisable by this Court under Article 136,
as elaborately laid down there, would apply in the first round when a
judgment and order is challenged and not when the challenge to the
same judgment and order is withdrawn in the first round and a second
bite at the cherry is attempted without having obtained the
permission of the Court to re-approach it.
27. Reliance placed by Mr. Menon on the decisions in Kunhayammed
(supra) and Khoday Distilleries Limited (supra) also do not aid the
appellant’s cause for the reasons that follow.
28. In Kunhayammed (supra), the facts were these. After the special
leave petition of the State of Kerala which was directed against an
appellate judgment and order of the High Court dated 17th December,
1982 was dismissed on 18th July, 1983 by a single line order24, the
State had invoked the review jurisdiction of the High Court in January,
24 “Special Leave Petition is dismissed on merits.”
15
1982 seeking review of the said judgment and order dated 17th
December, 1982. A preliminary objection to the maintainability of the
review petition was raised before the High Court, which came to be
overruled by an order dated 14th December, 1995. The said order also
directed the review petition to be posted for hearing on merits. The
order dated 14th December, 1995 overruling the preliminary objection
was carried to this Court in a special leave petition, on which leave
was granted on 16th September, 1996. By an order dated 14th March,
2000, the matter was referred to a three-Judge Bench for decision.
29. Kunhayammed (supra) is considered an authority on the doctrine
of merger. However, on the facts before the three-Judge Bench, it was
held that since the judgment and order of the High Court dated 17th
December, 1982 did not merge in the single line unreasoned order of
dismissal of the special leave petition (dated 18th July, 1983), the
petition for review was maintainable.
30. Turning to Khoday Distilleries (supra), two appeals were under
consideration. It is found that in the lead appeal, a petition for review
of the judgment and order dated 12th November, 2008 was not
entertained by the High Court of Karnataka by its order dated 9th
September, 2011 on the ground that a special leave petition against
the said judgment and order dated 12th November, 2008 stood
dismissed by a single line order25 of this Court dated 4th December,
25
“Delay condoned. Special leave petition is dismissed.”
16
2009. The question of law arising for decision was noted in paragraph
8, reading as follows:
“8. The question of law which needs to be determined in the aforesaid
circumstances is as to whether the review petition is maintainable
before the High Court seeking review of a judgment against which
the special leave petition has already been dismissed by this Court.”
31. After extensively referring to and/or relying on Kunhayammed
(supra), the three-Judge Bench summed up the legal position in
paragraph 26 as under:
“26. From a cumulative reading of the various judgments, we sum
up the legal position as under:
26.1. The conclusions rendered by the three-Judge Bench of this
Court in Kunhayammed and summed up in para 44 are affirmed and
reiterated.
26.2. We reiterate the conclusions relevant for these cases as under
: (Kunhayammed case, SCC p. 384)
‘(iv) An order refusing special leave to appeal may be a nonspeaking 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 the 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 the 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.
17
(vii) On an appeal having been preferred or a petition seeking
leave to appeal having been converted into an appeal before
the Supreme Court the jurisdiction of the High Court to
entertain a review petition is lost thereafter as provided by
sub-rule (1) of Order 47 Rule 1 CPC.’
26.3. Once we hold that the law laid down in Kunhayammed is to be
followed, it will not make any difference whether the review petition
was filed before the filing of special leave petition or was filed after
the dismissal of special leave petition. Such a situation is covered in
para 37 of Kunhayammed case6.
27. Applying the aforesaid principles, the outcome of these appeals
would be as under.
Civil appeal arising out of Special Leave Petition (Civil) No.
490 of 2012
28. In the instant case, since special leave petition was dismissed in
limine without giving any reasons, the review petition filed by the
appellant in the High Court would be maintainable and should have
been decided on merits. Order dated 12-11-2008 passed by the High
Court is accordingly set aside and matter is remanded back to the
High Court for deciding the review petition on merits. The civil appeal
is disposed of accordingly.”
32. In Khoday Distilleries Limited (supra), the order under appeal was
clearly in the teeth of the ratio laid down in Kunhayammed (supra)
and it was only a matter of time for such erroneous order to be set
aside.
33. Since the facts in Kunhayammed (supra) and Khoday Distilleries
Limited (supra) were different, there is evidently no consideration of
the decision in Upadhyay & Co. (supra) which clinches the issue and
assists us in drawing the conclusion we do hereunder.
34. Insofar as the order dated 13th August, 2024 passed in N.F. Railway
Vending and Catering Contractors Association Lumding
Division (supra) is concerned, the order records developments
having taken place subsequent to the order dated 29th July, 2024
18
which, in the opinion of the Bench, required a further consideration.
The order dated 13th August, 2024, for such reason, recalled the
earlier order dated 29th July, 2024 and issued notice on the special
leave petition as well as on the application for stay together with
interim protection. The order dated 13th August, 2024 recalled the
order dated 29th July, 2024 whereby hearing was adjourned sine die
awaiting the reference made in S. Narahari (supra). No assistance
can, thus, be drawn by the appellant from such order.
35. We have no doubt that entertaining a special leave petition in a case
of the present nature would be contrary to public policy and can even
tantamount to sitting in appeal over the previous order of this Court
which has attained finality. The maxim interest reipublicae ut sit finis
litium (it is for the public good that there be an end to litigation)
would apply in all fours when it is found that proceedings challenging
an order were not carried forward by withdrawing the special leave
petition and the litigant has returned to the same court after some
time mounting a challenge to the self-same order which was earlier
under challenge and such challenge had not been pursued. This is a
course of action which cannot be justified either in principle or
precept.
36. For the foregoing reasons, the preliminary objections to the
maintainability of the appeals raised by the respondent succeed.
37. The civil appeals are, consequently, dismissed. Connected
applications, if any, stand closed.
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38. If so advised, the appellant may pursue his remedy before the
appropriate forum in accordance with law.
……………………..………J.
[DIPANKAR DATTA]
…………..…………………J.
[K.V. VISWANATHAN]
NEW DELHI;
SEPTEMBER 23, 2025.
