Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
2025 INSC 1406
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos.14545-14546/2025
[SPECIAL LEAVE PETITION (C) Nos. 35171-72/2025]
(@ Diary No.68082/2025)
ABHISHEK GUPTA APPELLANT
VERSUS
DINESH KUMAR & ORS. RESPONDENTS
J U D G M E N T
1. Permission, to file special leave petitions, is granted.
2. Delay condoned.
3. Leave granted.
4. Appellant was allotted, by grant of a license, a fair price shop in
place of the respondent no.1, upon revocation of the license of such
respondent on the ground of breach of lawful terms and conditions
thereof.
5. Revocation of the license and an appellate order of its affirmance
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were the subject matter of challenge in a writ petition presented by the
respondent no.1 before the High Court of Judicature at Allahabad. In such
Signature Not Verified
writ petition, the appellant was not impleaded as a party.
Digitally signed by
rashmi dhyani pant
Date: 2025.12.09
17:36:57 IST
Reason:
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Writ C No. 37063 of 2019
6. The writ petition of the respondent no.1 came to be allowed by an
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order dated 10 June, 2025 of a Single Judge. The order revoking the
license of the respondent no.1 and the appellate order of affirmation
stood set aside. In pursuance of such order, the respondent no.1 was
required to be reinstated as a fair price shop licensee by the official
respondents.
7. Sensing the imminent consequence of the order of the Single Judge,
i.e., he would be compelled to step down and make way for the
respondent no.1, the appellant approached a Division Bench of the High
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Court with an intra-court appeal . His complaint was that the order
passed by the Single Judge prejudicially affected his interest, without he
being given an opportunity of hearing. Such appeal has been dismissed
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by the Division Bench vide judgment and order dated 30 October, 2025
as not maintainable, placing reliance on Chapter VIII Rule 5 of the
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Allahabad High Court Rules, 1952 and a Full Bench Judgment of the
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same High Court in Sheet Gupta v. State of U.P. interpreting such
rule. However, the appellant was granted liberty to apply for a review of
the judgment and order under appeal before the Single Judge.
8. In the present appeals, the appellant has not only questioned the
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judgment and order of the Division Bench dated 30 October, 2025 but
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also questioned the judgment and order of the Single Judge dated 10
June, 2025.
9. At the outset, we reject the contention of learned counsel for the
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Special Appeal Defective No. 908 of 2025
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1952 Rules
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AIR 2010 All 46 (FB)
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respondent no.1 that the appeals should be dismissed on the ground of
suppression of material facts.
10. Looking to the impugned judgment and order of the Division Bench,
we find that it neither reproduces Rule 5 of Chapter VIII of the 1952
Rules nor adverts to the specific answer given by the Full Bench in Sheet
Gupta (supra) to the question which was referred. We, therefore,
propose to note Rule 5 and the answer of the Full Bench.
11. Rule 5 of Chapter VIII of the 1952 Rules reads as follows:
5. Special appeal :- An appeal shall lie to the Court from a judgment
(not being a judgment passed in the exercise of appellate
jurisdiction) in respect of a decree or order made by a Court subject
to the superintendence of the Court and not being an order made in
the exercise of revisional jurisdiction or in the exercise of its power
of superintendence or in the exercise of criminal jurisdiction or in
the exercise of the jurisdiction conferred by Article 226 or Article
227 of the Constitution in respect of any judgment, order or award--
(a) of a tribunal, Court or statutory arbitrator made or purported to
be made in the exercise or purported exercise of jurisdiction under
any Uttar Pradesh Act or under any Central Act, with respect to any
of the matters enumerated in the State List or the Concurrent List in
the Seventh Schedule to the Constitution, or (b) of the Government
or any officer or authority, made or purported to be made in the
exercise or purported exercise of appellate or revisional jurisdiction
under any such Act of one Judge.
12. In Sheet Gupta (supra), the Full Bench has recorded as follows:
15. Having given our anxious consideration to the various plea (sic.,
pleas) raised by the learned counsel for the parties, we find that
from the perusal of Chapter VIII Rule 5 of the Rules a special appeal
shall lie before this Court from the judgment passed by one Judge of
the Court. However, such special appeal will not lie in the following
circumstances:
1. The judgment passed by one Judge in the exercise of appellate
jurisdiction, in respect of a decree or order made by a Court
subject to the Superintendence (sic., superintendence) of the
Court;
2. the order made by one Judge in the exercise of revisional
jurisdiction;
3. the order made by one Judge in the exercise of the power of
superintendence of the High Court;
4. the order made by one Judge in the exercise of criminal
jurisdiction;
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5. the order made by one Judge in the exercise of jurisdiction
conferred by Article 226 or Article 227 of the Constitution of
India in respect of any judgment, order or award by
(i) the tribunal,
(ii) Court or
(iii) statutory arbitrator
made or purported to be made in the exercise of or purported
exercise of jurisdiction under any Uttar Pradesh Act or under any
Central Act, with respect to any of the matters enumerated in the
State List or the Concurrent List in the Seventh Schedule to the
Constitution;
6. the order made by one Judge in the exercise of jurisdiction
conferred by Article 226 or 227 of the Constitution of India in
respect of any judgment, order or award of
(i) the Government or
(ii) any officer or
(iii) authority,
made or purported to be made in the exercise or purported
exercise of appellate or revisional jurisdiction under any such
Act, i.e. under any Uttar Pradesh Act or under any Central Act,
with respect to any of the matters enumerated in the State List
or the Concurrent List in the Seventh Schedule to the
Constitution.
13. On a plain reading of Rule 5, the Special Appeal of the appellant
would appear to be barred. However, there is much more than what is
plainly visible. In our considered opinion, the Special Appeal ought not to
have been held not maintainable for the reasons we propose to assign.
14. While interpretation of Rule 5 by the Full Bench of the High Court is
correct, we discern from Sheet Gupta (supra) that the Full Bench in
course of answering the reference had not been called upon to examine
whether an appeal with an application seeking leave to appeal, by a non-
party to a writ petition under Article 226, would or would not be
maintainable if the order - appellate or revisional - under challenge in
such petition is passed by the Government or officer or authority under a
Central/State legislation. Since this was not a question which the Full
Bench was required to examine, whatever has been laid down in Sheet
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Gupta (supra) on interpretation of Rule 5 may not be decisive in a
situation under consideration. This aspect of the matter escaped the
attention of the Division Bench which, erroneously, dismissed the appeal
as not maintainable.
15. Although Rule 5, inter alia , ordains that no Special Appeal shall lie
from an order passed by a Single Judge of the High Court in writ
proceedings under Article 226 of the Constitution where an
appellate/revisional order of the Government or any officer or authority
under any of the specified enactments is under challenge, in our
considered opinion, Rule 5 has to be read and understood in a manner
that advances the cause of “access to justice” and not thwart it. The
object and purpose behind enactment of Rule 5 have to be borne in mind
while embarking on its interpretation. The object seems to be that when
two tiers of adjudication – quasi-judicial and judicial - are available, i.e.,
(i) a determination by the appellate/revisional forum under a specified
Central/State legislation on a particular lis raised by a party and defended
by the adversary at the first instance, is (ii) followed by an adjudication
by a Single Judge on a writ petition under Article 226 of the Constitution
as to whether such appellate/revisional order is legal, valid or proper, a
third tier for ruling on the same lis in the shape of a special appeal before
the Division Bench ought not to be made available to the aggrieved party.
The purpose is clear: to achieve a sort of finality at the level of the High
Court and not to add to the agony of the concerned litigant. The
unwritten rule is that any party aggrieved by the adjudication made by
the Single Judge will have to seek remedy under Article 136 of the
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Constitution before this Court or seek a review under the High Court’s
inherent jurisdiction.
16. In the circumstances before us, the bar created by Rule 5 must
yield to the foundational principles of natural justice, namely, the right to
be heard and the right to a fair hearing. It is trite law that the principle of
non-joinder, though originating from the Code of Civil Procedure, 1908,
applies with equal force to writ proceedings. An order passed in writ
jurisdiction without impleading an affected or necessary party is liable to
be invalidated on that ground alone. Since the courts exist to administer
justice, the rigours of Rule 5 would not apply and stand relaxed in a case
of the present nature where the order under challenge is one, passed by a
Single Judge on a petition under Article 226 of the Constitution, adversely
affecting the rights of a party who was not a party-respondent before the
Single Judge.
17. In our further considered opinion, the law laid down by this Court in
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Smt. Jatan Kanwar Golcha v. Golcha Properties (P) Ltd. and State
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of Punjab v. Amar Singh that an appeal could be preferred with an
application for leave to appeal, provided the non-party appellant
demonstrates that either the order under challenge is prejudicial to his
interest or adversely affects him or is binding on him, would be
applicable.
18. Also, the maxim ubi jus, ibi remedium cannot be ignored. A party
suffering an adverse order in judicial proceedings where he is not noticed,
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AIR 1971 SC 374
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AIR 1974 SC 994
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because he was not a party, cannot be left without a remedy. Although he
can apply for a review, the scope of a review is much narrow than an
appeal and would not provide a remedy as effective as an appeal.
19. For the foregoing reasons, we hold that where an allegation of non-
joinder of a necessary party is raised in an intra-court appeal, the High
Court, if satisfied that such allegation has merit, should either remand the
matter to the Single Judge or decide it on the merits. Such an approach
while not militating against the object and purpose of Rule 5 would, at the
same time, accord with the maxim ubi jus, ibi remedium .
20. Even otherwise, the appellant by way of abundant caution has
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appealed against the judgment and order of the Single Judge dated 10
June, 2025. Had we concurred with the Division Bench that the
appellant’s appeal before it was not maintainable, nothing would have
prevented us to hear such appeal against the said judgment and order.
21. In such view of the matter, we set aside the impugned judgment
and order of the Division Bench and restore the Special Appeal of the
appellant to its original file and number. The same may now be heard by
the Division Bench and disposed of expeditiously, since we are not
inclined to allow the appellant to run the fair price shop for the present.
22. We leave it open to the respondent no.1 to seek dismissal of the
Special Appeal in the light of the affidavit sworn by the appellant at the
time he was allotted the fair price shop in place of the respondent no.1.
Equally, we leave it open to the appellant to counter such contention in
such manner and on such ground(s) as he may be advised. No opinion is
expressed by us on the merits of the rival claims.
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23. We are informed that the fair price shop has been allotted in favour
of the respondent no.1 in compliance with the order of the Single Judge;
hence, the same shall abide by the result of the Special Appeal.
24. The appeals stand disposed of on the aforesaid terms.
25. Pending application(s), if any, shall also stand disposed of.
…………………………………………J.
[DIPANKAR DATTA]
…………………………………………J.
[AUGUSTINE GEORGE MASIH]
NEW DELHI;
DECEMBER 03, 2025.
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