Abhishek Gupta vs Dinesh Kumar

REPORTABLE 2025 INSC 1406 IN THE SUPREME COURT OF INDIA 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

JUDGMENT

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

were the subject matter of challenge in a writ petition 1 presented by the

respondent no.1 before the High Court of Judicature at Allahabad. In such Signature Not Verified Digitally signed by writ petition, the appellant was not impleaded as a party. rashmi dhyani pant Date: 2025.12.09 17:36:57 IST Reason:

1 Writ C No. 37063 of 2019

6. The writ petition of the respondent no.1 came to be allowed by an

order dated 10th June, 20252 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

Court with an intra-court appeal3. 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

by the Division Bench vide judgment and order dated 30th October, 2025

as not maintainable, placing reliance on Chapter VIII Rule 5 of the

Allahabad High Court Rules, 19524 and a Full Bench Judgment of the

same High Court in Sheet Gupta v. State of U.P.5 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

judgment and order of the Division Bench dated 30th October, 2025 but

also questioned the judgment and order of the Single Judge dated 10 th

June, 2025.

9. At the outset, we reject the contention of learned counsel for the

3 Special Appeal Defective No. 908 of 2025 4 1952 Rules 5 AIR 2010 All 46 (FB)

2 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;

3 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

4 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

5 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

Smt. Jatan Kanwar Golcha v. Golcha Properties (P) Ltd.6 and State

of Punjab v. Amar Singh7 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,

6 AIR 1971 SC 374 7 AIR 1974 SC 994

6 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

appealed against the judgment and order of the Single Judge dated 10 th

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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