admin - MANPREET SINGH SOOD, ADVOCATE

October 11, 2025

Civil Procedure Code, 1908 (CPC) — Order 8 Rule 1 — Limitation for filing Written Statement in Commercial Suits — Extension of time due to COVID-19 pandemic — Supreme Court’s suo motu order excluded period from 15.03.2020 to 28.02.2022 for computing limitation — Even if statutory period of 120 days expired, if it fell within the excluded period, defendant should be allowed to file Written Statement.

2025 INSC 1202

SUPREME COURT OF INDIA

DIVISION BENCH

M/S ANVITA AUTO TECH WORKS PVT. LTD.

Vs.

M/S AROUSH MOTORS AND ANOTHER

( Before : Aravind Kumar and N.V. Anjaria, JJ. )

Civil Appeal No….of 2025 (Arising out of Special Leave Petition (Civil) No. 21917 of 2025)

Decided on : 08-10-2025

A. Civil Procedure Code, 1908 (CPC) — Order 8 Rule 1 — Limitation for filing Written Statement in Commercial Suits — Extension of time due to COVID-19 pandemic — Supreme Court’s suo motu order excluded period from 15.03.2020 to 28.02.2022 for computing limitation — Even if statutory period of 120 days expired, if it fell within the excluded period, defendant should be allowed to file Written Statement. (Paras 15, 26, 28, 30)

B. Civil Procedure Code, 1908 (CPC) — Order 8 Rule 10 — Passing of Decree — Mere non-filing of Written Statement does not automatically empower court to pass a decree — Court must assess if a prima facie case is made out. (Para 18)

C. Civil Procedure Code, 1908 (CPC) — Rights of Defendant without Written Statement — Defendant’s right to cross-examine plaintiff’s witnesses is not foreclosed even if Written Statement is not filed or suit proceeds ex-parte — Cross-examination is crucial for eliciting truth and impeaching credibility. (Paras 17, 31)

D. Interpretation of Statutes — Procedural Law — Principle of Substantial Justice — Procedural rules are aids to justice, not tyrants — Rigid adherence to technicalities that cause injustice must be avoided — Substantial justice should not be sacrificed at the altar of procedural rigidity. (Paras 2, 3, 19)

E. Commercial Courts Act, 2015 — Object and Purpose — To expedite disposal of commercial disputes — Provisions like Order 8 Rule 1 CPC in commercial courts are designed to ensure timely adjudication — However, flexibility is required when extraordinary circumstances like a pandemic hinder compliance. (Para 26)

F. Limitation Act, 1963 — General Clauses Act, 1897 — Section 9 — Exclusion of day of service — When calculating the period of limitation, the day on which the summons was served is to be excluded. (Para 30)

G. Constitution of India, 1950 — Article 142 — Exercise of Power — Supreme Court can pass any order necessary for doing complete justice, including extending limitation periods due to extraordinary circumstances like the COVID-19 pandemic. (Para 28)

H. Remand of Cases — Trial Court — Where lower courts erred by rejecting Written Statement and denying right to cross-examine due to technicalities, and the Supreme Court’s intervention is warranted due to the COVID-19 pandemic’s impact on limitation, the case will be remanded to the trial court to allow filing of Written Statement, subject to costs, and to permit cross-examination. (Para 32)

JUDGMENT

Aravind Kumar, J. – Heard. Leave Granted.

2. The present controversy can be encapsulated in words of the Hon’ble Justice V.R. Krishna Iyer:

“Procedural law is not to be a tyrant but a servant, not an obstruction but an aid to justice. It is the handmaid of justice and not its mistress”

3. The object of the procedural rules is to advance the cause of justice and not to thwart it and when the rigid adherence to technicalities of procedure causes injustice, courts have to come to the rescue by adopting a liberal approach. The courts cannot countenance a situation where substantial justice is sacrificed at the altar of procedural rigidity. Where substantial justice is at stake, technicalities must give way to ensure that the litigant is afforded sufficient opportunity to defend. The present controversy must be tested on the said principle.

4. The Appellant herein challenges the Impugned Judgement and order dated 20.05.2025 passed by the High Court of Karnataka at Bengaluru in Commercial Appeal No. 19 of 2023 which has affirmed the Judgement and decree dated 15.11.2022 passed by the Additional City Civil & Sessions Judge (Exclusive Commercial Court) in Original Commercial Suit No. 372 of 2021 filed by the Respondent No. 1-M/s. Aroush Motors for recovery of monies.

5. For convenience, we will be referring the parties as per their rank before the Trial Court, as such, the Appellant herein being Defendant No. 1 and Respondent No. 1 & 2, being Plaintiff and Defendant No. 2, respectively.

6. The facts shorn of unnecessary details are summarized hereinunder:

7. The Defendant No. 1-M/s. Anvita Auto Tech Works Pvt. Ltd. (Appellant-herein), launched a flagship motorcycle by the name of CFMOTO in India in 2019 and invited applications for its dealership across the country including Bengaluru City. Plaintiff-M/s. Aroush Motors (Respondent No. 1-herein) applied and was provisionally appointed dealer under a Letter of Intent dated 03.09.2019. In consideration of the dealership, the plaintiff remitted a sum of Rs. 20,00,000/- (Rupees Twenty Lakhs Only) towards security deposit to Defendant No. 1, incurred expenditure of rent and interiors for setting up a showroom. Further, the plaintiff paid sum amount to Rs. 70,00,000/-(Rupees Seventy Lakhs Only) towards spare parts, software, equipment and initial stock of motorcycles. Moreover, additional sum of Rs. 5,00,000/- (Rupees Five Lakhs Only) was remitted to Defendant No. 1 and on the advice of Defendant No. 1, the plaintiff also remitted Rs. 7,06,900/- (Rupees Seven Lakhs Six Thousand Nine Hundred Only) to Defendant No. 2-Conair Equipment Pvt. Ltd (Respondent No. 2-herein) for service centre equipment being its authorised service provider.

8. The Defendant No. 1 supplied Nineteen (19) motorbikes of BS-IV Category to Plaintiff out of which the Eight (8) were sold. On 01.04.2020, the Government imposed ban on the sale of BS-IV Category vehicles, as such, Defendant No. 1 imposed prohibition upon sale of the such motorcycles but promised to supply Kits and Equipment to upgrade the motorcycles to BS-VI Category. Nevertheless, due to the inability of Defendant No. 1 to supply the same, the plaintiff’s business was stalled and is said to have sustained substantial loss, following which, the plaintiff terminated the dealership of Defendant No. 1 on 14.09.2020 alleging breach of obligations and sought recovery of monies invested by way of filing the present Commercial Original Suit (Com. O.S.) No. 372 of 2021 claiming a sum of Rs. 1,78,03,090/- (Rupees One Crore Seventy-Eight Lakhs Three Thousand Ninety Only) from Defendant No. 1 with an Interest of 18% (Eighteen Percent) and Rs. 7,06,900/- (Rupees Seven Lakhs Six Thousand Nine Hundred Only) from Defendant No. 2 with an Interest of 18% (Eighteen Percent) till the realization of payments along with 3 (Three) Interim Applications (IAs) No. I to III.

9. After the service of summons, the Defendant No. 1 appeared on 07.08.2021 but did not file the Written Statement on the said date. Later Defendant no. 1 preferred I.A. No. IV seeking extension of time to file Written Statement on 07.09.2021. Meanwhile, the 3 (three) I.As which were filed with Com. OS No. 372 of 2021, came to be decided by way of order dated 30.10.2021 wherein IA No. 1 which sought direction to defendant no. 1 to take back the remaining motorcycles from possession of plaintiff was allowed, but the other two IAs which had sought for mandatory injunction against Defendant No. 1 & 2, respectively, to refund the monies were directed to be kept in abeyance for consideration along with main suit since the nature of relief was that of final in nature.

10. On 14.11.2021, the time period of 120 days as prescribed under the law for filing Written Statement in a commercial suit expired and Defendant No. 1 again preferred I.A. No. 5 under section 148 of the Code of Civil Procedure, 1908 (hereinafter to be referred as “CPC”) seeking extension of time to file Written Statement. The plaintiff filed its objection to I.A. No. 5 on 06.12.2021 and preferred I.A. No. 6 under section 151 of CPC seeking to strike out the defence. However, while the said IAs were pending objections, the defendant no. 1 on 07.01.2022 preferred I.A. No. VI/6A along with Written Statement seeking permission to file the same by seeking condonation of delay on the premise that the delay was due to non-residing of the defendant no. 1 in Bengaluru and COVID-19.

11. The said IA came to be Rejected by order dated 22.03.2022 by the Trial Court and consequently, the Written Statement also came to be rejected. The Defendant No. 1 challenged the order of dismissal of IA by way of Commercial Appeal bearing No. 189 of 2021. Meanwhile, the Written Statement on behalf of Defendant No. 2 was also taken as Nil. The suit progressed subsequently to the stage of recording plaintiff’s evidence and on 30.07.2022, 10.08.2022 and on 19.08.2022 the examination-in-chief of PW1 was recorded and cross-examination of the defendant was taken as Nil by the Trial Court on the ground that defendant had failed to file their Written Statement within Stipulated time and the matter was posted for defendant’s evidence.

12. Ultimately, the suit came to be partly decreed on 15.11.2022 wherein Defendant No.1 was directed to pay sum of Rs. 1,78,03,090/-(Rupees One Crore Seventy-Eight Lakhs Three Thousand Ninety Only) and Defendant No. 2 was directed to pay Rs. Rs. 7,06,900/- (Rupees Seven Lakhs Six Thousand Nine Hundred Only) with future interest of 9% (Nine Percent) per annum each from the date of suit till realization. Consequently, in the light of the judgement and decree, the Commercial Appeal No. 189 of 2022 came to be dismissed as withdrawn.

13. The Defendant No.1 being aggrieved by the judgement and decree of the Trial Court preferred Commercial Appeal No. 19 of 2023 which came to be dismissed by the Impugned Order dated 20.05.2025. Hence, the present appeal.

14. We have heard the Learned Counsels appearing on behalf of the parties and perused the material on record.

SUBMISSIONS ON BEHALF OF THE APPELLANTDEFENDANT NO. 1

15. Shri Pb. Suresh, Learned Senior Counsel appearing on the behalf of the appellant submitted that court below erred in rejecting the written statement dated 07.01.2022 which is in contravention of the orders passed by this Court in Suo Moto Writ Petition (C) No. 3 of 2020 extending the limitation due to COVID-19 wherein the limitation period between 15.03.2020 to 28.02.2022 was waived off in all cases including commercial disputes. To buttress his contention, the learned senior counsel has relied upon the decisions of this court in Babasaheb Raosaheb Kobarne & Anr. vs. Pyrotek India Private Limited and Ors. 2022 SCC SC 1315 and Prakash Corporates vs. Dee Vee Projects Limited (2022) 5 SCC 112.

16. The Learned Senior Counsel further submitted that failure on the part of the defendant to file the Written Statement within the time permitted by the court would not tantamount to pronouncement of judgment against the defendant. To back the said contention, the learned senior counsel relies upon the decision of this court in Asma Lateef vs. Shabbir Ahmad (2024) 4 SCC 696.

17. The Learned Senior counsel vehemently submitted while placing reliance upon the decision of this court in Ranjit Singh vs. State of Uttarakhand, 2024 INSC 724 that even without filing of written statement, the right to cross-examine survives and not permitting the same has resulted in petitioner’s substantial rights being defeated without adjudication on merits.

18. He further submitted that Order VIII Rule 10 CPC does not empower the court to automatically pass a decree merely because a written statement is not filed. The court must still assess whether a prima facie case is made out and in the present case, the decree was passed summarily without such satisfaction being recorded.

19. He lastly submitted that if the impugned decree is executed, it would cause severe and irreparable loss to the petitioner despite him not having had a fair opportunity to contest the claim and it is settled principle that procedural rules must not be used to defeat substantial justice.

SUBMISSION ON BEHALF OF THE RESPONDENT NO. 1-PLAINTIFF

20. Per contra, Shri Balaji Srinivasan, learned counsel appearing on behalf of the respondent no. 1 submits that the right of cross-examination on the part of defendant No. 1 stood forfeited on account of non-filing of written statement. The High Court has rightly concluded that despite repeated and adequate opportunities afforded to the defendant No. 1, he wilfully chose not to exercise his right of cross-examination.

21. The Learned Counsel further submits that at no stage during the proceedings before the trial court did the defendant no. 1 Company chose to file an application for recall of the order closing the stage for crossexamination of PW1 nor did it file any appeal or writ petition challenging such order of closing the stage. Thus, defendant No.1 had acquiesced and is now estopped from raising such plea at this belated stage especially when defendant no. 1 did not take such a ground even in the memo of appeal.

22. The Learned counsel also submitted that Defendant No. 1 has approached this Court with unclean hands. Its conduct before the courts below reveal a consistent pattern of dilatory tactics, false pleadings, and abuse of process. It failed to file the Written Statement within the statutory period, allowed the opportunity of cross-examination to lapse and never challenged the orders closing its right to cross-examination at the first instance. Hence, the present Special Leave Petition is only a last-ditch attempt to obstruct & delay the lawful execution of the decree.

ISSUE FOR CONSIDERATION

23. This Court while issuing notice in the present special leave petition on 18.05.2025 was of the view that the only issue that arises for consideration is:

“Whether the High Court was correct in observing that on account of non-filing of written statement by the defendant, his right to cross-examination is taken away?”

24. Before we delve into the merits of the case, it is apposite to lay down the chronology of factual matrix pertaining to stage of suit especially which are central to the determination of the present dispute as emerges from the perusal of the material on record.

Sr. No.	Stages of Commercial Suit COM. OS NO. 372 of 2021	Date
1.	Institution of the Suit before the commercial court	18.06.2021
2.	Suit summons issued to Defendant no. 1 & defendant no. 2	23.06.2021
3.	Summons served upon the defendant no. 1	17.07.2021
4.	Defendant No. 1 entered appearance through its counsel.	07.08.2021
5.	The Commercial Court directed the defendant No. 1 to file WS by 07.09.2021	17.08.2021
6.	IA No. IV preferred by the Defendant No. 1 seeking extension of time to file WS.	07.09.2021

INITIAL 30 DAYS PERIOD COMPLETED

7.	Completion of Statutory period of 120 days as mandated under 2nd proviso to sub-rule (1) of Rule 1 of Order V and Proviso to sub-rule (1) of Rule 1 of Order VIII CPC as per the Special Amendment under the Commercial Courts Act, 2015.	14.11.2021
8.	Defendant No. 1 files IA No. 5 under section 148 CPC for enlargement of time for filing WS.	24.11.2021
9.	Plaintiff-Respondent No. 1 filed IA No. 6 to strike out defence under section 151 CPC and Defendant No. 1 filed IA No. 7 under section 148 CPC for extension of time to file WS.	06.12.2021
10.	IA No. VI/6A filed by the defendant no. 1 seeking permission to file WS along with WS.	07.01.2022
11.	Rejection of IA No. VI/6A and consequent rejection of WS to be taken on record.	22.03.2022
12.	Commercial Appeal No.189/2021 preferred challenging rejection of WS.	21.04.2022
13.	For recording of evidence of PW-1 adjourned at the instance of plaintiff on.	30.07.2022 to 10.08.2022
14.	Meanwhile, PW1 examined-in-chief and cross examination of Defendant taken as “Nil” as they failed to file their WS within stipulated time.	19.08.2022
15.	Suit came to be partly decreed.	15.11.2022

25. The aforesaid chart clearly reveals that though the summons was served upon the defendant no. 1 company on 17.07.2021, they could not file the Written Statement up till 07.01.2022 which was long after the statutory period of 120 days had already expired on 14.11.2021.

26. The law regarding the mandatory filing of Written Statement in a commercial dispute within the statutory period is clearly envisaged under Proviso to sub-rule (1) of Rule 1 of Order VIII Code of Civil Procedure, 1908 (CPC) and Second Proviso to Sub-rule (1) of Rule 1 of Order V CPC as amended by the Special Amendment under the Commercial Courts Act, 2015. The said provisions impose an absolute embargo upon the courts to accept the written statement after the expiry of one hundred twenty (120) days. For easy reference, the aforesaid bare provision of Proviso to subrule (1) of Rule 1 of Order VIII CPC is extracted herewith:

“1. Written Statement. -The defendant shall, within thirty days from the date of service of summons on him, present a Written Statement of his defence:

Provided that where the defendant fails to file written statement within the said period of thirty days, he shall be allowed to file the written statement on such other day, as may be specified by the court, for reasons to be recorded in writing and on payment of such costs as the court deems fit, but which shall not be later than one hundred twenty days from the date of service of summons and on expiry of one hundred twenty days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the court shall not allow the written statement to be taken on record.”

27. The mandatory nature of statutory period in filing WS in a commercial dispute stood fortified by the decision of this court in SCG Contracts (India) Pvt. Ltd. v. K.S. Chamankar Infrastructure Private Limited and Ors. (2019) 12 SCC 210 wherein this court held that timeline of 120 days’ fixed by the statute is not directory but rather mandatory, therefore, commercial courts cannot condone the delay beyond 120 days in filing the WS. On this very aspect the appeal could have been dismissed nevertheless, there is something more vital to the present issue which this court cannot lose sight of.

28. The meticulous scrutiny of the chronological chart as mentioned supra shows that the limitation period for filing the WS commenced on 17.07.2021 and ended on 14.11.2021. Both these dates fell at a time when our nation was in garb of global pandemic of COVID-19 which affected the lives of millions of people around the world as well our judicial systems. This court was conscious of the fact as to the difficulty faced by the litigants in approaching the courts physically and was of the view that the said pandemic should not become the reason to vandalise the rights of the litigants due to expiry of period of limitation who could have approached the court well within the time had it not been for the pandemic. Hence this court In Re: Cognizance for Extension of Limitation (2022) 3 SCC 117 in Suo Moto Writ Petition (C) No. 3 of 2020 by exercise of its powers under Article 142 of the Constitution of India passed series of orders to exclude the period commencing from 15.03.2020 till 28.02.2022 for the purpose of computing the limitation period under any general or special laws in respect of all judicial or quasi-judicial proceedings. For the purpose of reference, the relevant portion of the order is extracted below:

I. The order dated 23.03.2020 is restored and in continuation of the subsequent orders dated 08.03.2021, 27.04.2021 and 23.09.2021, it is directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasijudicial proceedings.

II. Consequently, the balance period of limitation remaining as on 03.10.2021, if any, shall become available with effect from 01.03.2022.

III. In cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01.03.2022. In the event the actual balance period of limitation remaining, with effect from 01.03.2022 is greater than 90 days, that longer period shall apply.

….”

29. This court in Aditya Khaitan & Ors. v. IL & FS Financial Services Limited 2023 INSC 867 had encountered a similar situation wherein the High Court had disallowed the appellant to file the Written Statement in a commercial dispute on the premise that the same was beyond the mandatory statutory period of 120 days. This Court while relying upon the orders passed In Re: Cognizance for Extension of Limitation (supra) allowed the appeal and directed the Written statement to be taken on record. Further this court in Babasaheb Raosaheb Kobarne & Anr. v. Pyrotek India Private Limited & Ors. 2022 SCC OnLine SC 1315 and Prakash Corporates v. Dee Vee Projects Limited (2022) 5 SCC 112 had allowed the appellant to file its written statement notwithstanding the fact that it was filed beyond the period of 120 days in the light of the COVID-19 pandemic wherein the period of limitation was extended as stated supra.

30. Relegating back to the facts of the instant case, the statutory period of 120 days commenced from date of service of summons on 17.07.2021 and as per section 9 of the General Clauses Act, 1897, the date of service had to be excluded therefore, from 18.07.2021, the 120 days’ period commenced and it ended on 14.11.2021. In the light of aforesaid discussion, it can be very well said that both the dates fell within the sweep of period between 15.02.2020 to 28.02.2022. In fact, during this period itself, to be precise on 24.11.2021 itself defendant No.1 had filed I.A. No.5 seeking enlargement of time to file written submission and subsequently on 07.01.2022 had filed IA No.VI/ 6A seeking permission to file written submission enclosing the written submission also. Therefore, the High Court ought to have excluded the aforesaid period for the purpose of filing the written statement and ought to have permitted the defendant No.1 to file written statement on record and contest the suit on merits rather than dismissing the appeal.

31. There is another consideration why the present appeal deserves to be allowed. The perusal of the records particularly, the order sheet of the trial court dated 19.08.2022 (Annexure P-17) clearly reveal that after the examination-in-chief of PW1 was closed, the cross-examination of Defendant no. 1 was taken as “Nil” on the ground that defendant had failed to file their written statement within stipulated time. The said reason is absolutely perverse and is contrary to the right of defence available to the defendant. The purpose of cross-examination is to elicit the truth from the witness and impeach its credibility. When the WS was not allowed to be taken on record, the denial of the right to cross examine cannot be taken away by leaving the defendant in lurch and this has acted as final nail in the coffin to defendant’s right of defence. This court not long back in Ranjit Singh v. State of Uttarakhand, 2024 INSC 724 had held that even when the defendant has not filed the Written statement, his right to cross-examine the plaintiff witnesses is not foreclosed. The relevant portion of the decision for easy reference is extracted herewith:

“5…..At this stage, we must clarify the legal position. Even if a defendant does not file a written statement and the suit is ordered to proceed ex-parte against him, the limited defence available to the defendant is not foreclosed. A defendant can always cross-examine the witnesses examined by the plaintiff to prove the falsity of the plaintiff’s case. A defendant can always urge, based on the plaint and the evidence of the plaintiff, that the suit was barred by a statute such as the law of limitation..”

32. Thus, in the light of the aforesaid discussion, we are of the considered view that the present appeal deserves to be allowed and accordingly, the same stands Allowed. Consequently, the impugned judgment dated 20.05.2025 in Commercial Appeal No. 19 of 2023 and consequently the judgment and decree passed in commercial suit No.372/2021 by the Addl. City Civil and Sessions Judge (Exclusive Commercial Court) dated 15.11.2022 quo defendant No.1 (Appellant herein) is set aside and the matter is remanded back to the trial court to dispose of the same after allowing the appellant herein to file the Written Statement subject to payment of cost to the tune of Rs. 1,00,000/- (Rupees One Lakh Only) and to permit the appellant to exercise his right of cross-examination of plaintiff’s witnesses. The trial court is requested to dispose of the present commercial suit expeditiously and preferably within a period of Six (6) months from today.

October 10, 2025

Civil Procedure Code, 1908 (CPC) — Jurisdiction — Suit for injunction simpliciter — Whether maintainable without a prayer for declaration of title when title is disputed — Where a party asserts title based on a Will but the defendant claims co-ownership and occupancy rights, and possession is admitted to be with the defendant, a suit for injunction simpliciter without a prayer for declaration of title may not be maintainable, especially when recovery of possession is not sought.

2025 INSC 1197

SUPREME COURT OF INDIA

DIVISION BENCH

S. SANTHANA LAKSHMI AND OTHERS

Vs.

D. RAJAMMAL

( Before : Ahsanuddin Amanullah and K. Vinod Chandran, JJ. )

Civil Appeal No….of 2025 (@Special Leave Petition (Civil) No.18943 of 2024)

Decided on : 07-10-2025

A. Civil Procedure Code, 1908 (CPC) — Jurisdiction — Suit for injunction simpliciter — Whether maintainable without a prayer for declaration of title when title is disputed — Where a party asserts title based on a Will but the defendant claims co-ownership and occupancy rights, and possession is admitted to be with the defendant, a suit for injunction simpliciter without a prayer for declaration of title may not be maintainable, especially when recovery of possession is not sought. (Para 10, 11)

B. Evidence — Proof of Will — Whether a Will is proved if signatures of testator and attesting witness are affirmed by persons who are beneficiaries and sons of deceased attesting witnesses, respectively — Evidence held sufficient to prove the Will in the context of both testators having passed away. (Para 4)

C. Property Law — Will — Validity of Will — Bequest of ancestral land — Testator’s right to bequeath property — If a property is found to be ancestral, the testator’s right to execute a Will over it may be questionable and can remain under a cloud, even if the Will is proved. (Para 3, 11)

D. Civil Procedure Code, 1908 (CPC) — Injunction — Ad interim injunction — Whether proper when possession is admitted with defendant — Granting an injunction against interference with peaceful enjoyment of property is questionable when possession is unequivocally admitted to be with the defendant, in pleadings and oral evidence. (Para 11, 12)

Supreme Court Powers — Reservation of liberty to file fresh proceedings — Where a stalemate is created in ownership due to conflicting claims and ill-drafted pleadings, the Supreme Court may reserve liberty to parties to initiate fresh proceedings for declaration of title and consequential possession, untrammelled by previous findings. (Para 12, 13)

JUDGMENT

K. Vinod Chandran, J. – Leave granted.

2. The present appeal arises from a suit filed by Rajammal against Munuswamy, her brother, for injunction simpliciter, one, to restrain alienation or encumbrance of the suit property and the other to restrain interference with the peaceful possession & enjoyment of the plaint schedule property. The plaintiff claimed absolute right over the property being half share of 1.74% acres coming to 0.87% acres of dry landed property with all appurtenances attached thereto. The claim was made specifically on the ground that by a Will dated 30.09.1985, Rangaswamy Naidu, their father had bequeathed the said property equally in favour of the plaintiff and another brother, Govindarajan. The plaintiff’s contention itself was that the defendant was continuing in the property as a tenant while the defendant claimed that he came into possession as a co-owner and later there was an arrangement, by which in the lifetime of his father, the property was equally divided between the brothers i.e. the defendant and Govindarajan.

3. The trial court found the Will to have been proved and decreed the suit injuncting the defendant from alienating the property and from interfering with the plaintiff’s peaceful possession. On appeal, the appellate court found that the bequest was made of an ancestral land, on which the testator had no right to execute the Will. The trial court judgment was upset and the suit was dismissed. In the second appeal, the High Court formulated two questions of law as to whether the appellate court was correct in finding the suit property to be a joint family property and whether Ex.B5 document produced by the defendant was properly construed.

4. The property was found to be the absolute property of the plaintiff’s father though it was purchased by the grandmother of the plaintiff. The title of the plaintiff’s father was neither questioned by the grandmother in her lifetime nor did she claim a right over the said property. Ex. A6 Will was found to have been proved since the signature of the testator was affirmed by PW1, the plaintiff and the signature of one of the testators, who was deceased, was affirmed by his own son, PW2. In the context of both the testators having passed away, the evidence was found to be sufficient to prove the Will. Based on the above findings, the right of the plaintiff over the property was established and the possession was found to follow title thus enabling both the injunctions sought for. The first appellate court’s order was set aside, and the suit was allowed restoring the trial court’s judgment & decree.

5. Before us, the legal heirs of the defendant, the appellants, contended that they have been always in possession of the land, as admitted by the plaintiff. The suit was filed without any prayer for declaration and the injunction simpliciter ought not to have been granted. It was contended that by Ex. B1 agreement entered into by Rangaswamy Naidu, Govindarajan and the original defendant, there was a division of the properties in the year 1983 itself. The plaintiff was unable to produce any ocular or documentary evidence to establish possession. The plaintiff’s own admission was that the defendant was in possession of the property.

6. The learned Senior Counsel appearing for the respondent-plaintiff, however, would point out that there are two different properties, as has been noticed by the High Court, one purchased in the year 1934 and another in the year 1984. The house property is said to have been purchased in the year 1984 with which the plaintiff was not concerned in the suit. In fact, a specific pleading was made reserving her right to take action against the house property separately. The appellants as of now is concerned only with the property more fully described in the plaint which does not contain a house, is the contention.

7. We have gone through the suit in which clear statements are made as to the defendant having been inducted into the property as a tenant by the father. The father is said to have filed OS No. 895 of 1984 to obtain possession of the suit property and arrears of rent, which, after the death of the father, stood dismissed allegedly for reason of the defendant having agreed to pay the rent. Immediately, we have to notice that Annexure P7 dismissed OS No.895 of 1984 filed by Rangaswamy Naidu, after his death, substituting Govindarajan and the plaintiff as the legal heirs. The suit was dismissed for default without any observation of an agreement regarding payment of rent. It is also pertinent to observe that even at that stage a written statement was filed by the original defendant, Munuswamy contending that in the suit property, the defendant had put up a structure in which he was residing with his family. He claimed possession of the property as a co-owner and not as a tenant; which relationship was asserted to be not existing since there was no such tenancy created orally or on the strength of documents. The original plaintiff having died, the siblings who got impleaded as his legal heirs, filed an amended plaint again alleging tenancy and claiming the property as per the registered Will dated 30.09.1985. The substituted plaintiffs despite taking up a plea of the Will executed by the deceased father in the amended plaint, the proceedings were not continued and the suit stood dismissed for default.

8. It was after a few years that the present suit was instituted in the year 2003 wherein also the possession of the defendant was admitted, again on the contention of a tenancy arrangement. In the present suit also, the defendant took up a contention that it was a joint family property later set apart to his share.

9. More pertinent is the fact that the plaintiff in her evidence clearly stated that property covered by the Will is in the possession of Munuswamy and Govindrajan, her brothers. The total extent of the property even according to the plaintiff is 1.74% acres and her share is 87.25 cents. The property on the four sides of her share is stated to be in the hands of third parties; which cannot be correct since when half of the property is claimed, at least on one side the property bequeathed to Govindrajan should have been mentioned. In fact, even in evidence, it is repeated that in the suit property the father and Munuswamy, the defendant were staying in half portions of the house and Govindrajan was staying in the ancestral house. As of now, with respect to the suit property, it is contended that Munuswamy is enjoying the western portion and Govindrajan is enjoying the eastern portion of the house.

10. It is also significant that though the plaintiff did not have possession, she had not claimed recovery of possession. While asserting a Will and title on its strength, there should have been a declaration of title sought, especially when the contention of the defendant was that he came into the property as a co-owner and then occupies it with absolute rights, making valuable improvements. The defendant also did not seek to get a declaration on the basis of an arrangement entered into with the father and the other brother or seek a partition on the strength of a counter claim.

11. In the above circumstances, we cannot but find the ‘Will’ is proved but the right of the testator to bequeath the property is still under a cloud. Even if the title is established, there should have been a recovery of possession sought by the plaintiff. The ill-drafted plaint and the clear admissions made in the witness box ought to have restricted the trial court and the High Court from granting an injunction against the interference of peaceful enjoyment of the property, especially when the possession was admitted to be with the defendant, in the pleadings as also the oral evidence. The injunction against alienation is perfectly in order since the defendant too has not sought for a declaration of title.

12. The learned Senior Counsel for the plaintiff sought for agitating the cause afresh. We are of the opinion that since a stalemate is created; with the ownership not having been declared in favour of either of the parties, also considering the relationship, we reserve liberty to either of the parties to seek declaration of title and consequential possession or recovery of possession, if they desire, which proceedings will be instituted within a period of three months from today. If a fresh proceeding is initiated then the same would be considered afresh untrammelled by the findings in the present proceedings, which shall not govern the rights of the parties. However, we make it clear that no alienation shall be made by both parties or the subject property encumbered.

13. The appeal is disposed of with the above reservation of liberty.

14. Pending applications, if any, shall stand disposed of.

October 5, 2025

Civil Procedure Code, 1908 (CPC) — Order 47 Rule 7(1) — Appeal against order refusing review — No appeal lies from an order refusing a review, as the original decree or order remains unchanged.

2025 INSC 1140

SUPREME COURT OF INDIA

DIVISION BENCH

SATHEESH V.K.

Vs.

THE FEDERAL BANK LTD.

( Before : Dipankar Datta and K.V. Viswanathan, JJ. )

Civil Appeal Nos.11752-11753 of 2025 [Arising Out of SLP(C) Nos.30056-30057 of 2024]

Decided on : 23-09-2025

A. Civil Procedure Code, 1908 (CPC) — Order 47 Rule 7(1) — Appeal against order refusing review — No appeal lies from an order refusing a review, as the original decree or order remains unchanged.

B. Constitution of India, 1950 — Article 136 — Special Leave Petition — Withdrawal of — Once a Special Leave Petition (SLP) is withdrawn without liberty to re-approach, a second SLP against the same order is not maintainable, even if a review petition is filed and dismissed subsequently.

C. Public Policy — End of Litigation — The principle that there should be an end to litigation applies when a party withdraws an SLP without liberty to re-approach and then attempts to challenge the same order again.

D. Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) — Powers of Secured Creditor — A secured creditor can proceed under the SARFAESI Act for realization of dues if the borrower fails to comply with court-ordered payment installments.

JUDGMENT

Dipankar Datta, J. – 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, 2002[1]. 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. 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 petition[2]. 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.

[2] Writ Petition (C) No.33280 of 2024

3. The order dated 1st October, 2024 was challenged by the appellant in a special leave petition[3] before this Court. Order dated 28th November, 2024 recorded on the said special leave petition by a coordinate Bench reads as follows:

[3] Special Leave Petition (C) No.28259/2024

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 petition[4] 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 appeal[5] 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 one[6] subsequently registered is directed against the dismissal of the review petition.

[4] RP No.1294 of 2024

[5] Civil Appeal No.11752/2025

[6] Civil Appeal No.11753/2025

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.

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, 1908[7], there can be no appeal against an order refusing review.

[7] CPC

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 vs. S.R. Kumar and Others[8]. 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 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.

[8] (2023) 7 SCC 740

[9] Special Leave Petition (C) Nos.17501-17502/2024

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 Bengal[10]. 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. .”

[10] AIR 1955 SC 65

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 Arjunsinghji[11], S. Nagaraj and Others v. State of Karnataka and Another[12], Lily Thomas and Others v. Union of India & Ors.[13], Kunhayammed and Others v. State of Kerala & Another[14], Ramnik Vallabhdas Madhvani and Others v. Taraben Pravinlal Madhvani[15], Union of India v. Amrit Lal Manchanda and Another[16], 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 Liquidator[17].

[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

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 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 Others[19] 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.

[18] (2024) 10 SCC 292

[19] 2025 SCC OnLine SC 1566

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 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.

[20] Special Leave Petition (C) Diary No.36933/2025

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 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 Goa[21] and Sandhya Educational Society v. Union of India[22] 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.

[21] (2012) 12 SCC 383

[22] (2014) 7 SCC 701

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, 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 Others[23] would squarely apply.

[23] (1999) 1 SCC 81

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 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 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 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 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 order[24], the State had invoked the review jurisdiction of the High Court in January, 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.

[24] “Special Leave Petition is dismissed on merits.”

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 order[25] of this Court dated 4th December, 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.”

[25] “Delay condoned. Special leave petition is dismissed.”

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.

(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 case.

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 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.

38. If so advised, the appellant may pursue his remedy before the appropriate forum in accordance with law.

October 2, 2025

Civil Procedure Code, 1908 (CPC) — Order 47 Rule 7(1) — Appeal against order refusing review — No appeal lies from an order refusing a review, as the original decree or order remains unchanged. B. Constitution of India, 1950 — Article 136 — Special Leave Petition — Withdrawal of — Once a Special Leave Petition (SLP) is withdrawn without liberty to re-approach, a second SLP against the same order is not maintainable, even if a review petition is filed and dismissed subsequently.