Supreme Court Reiterates Prima Facie View That Second SLP Cannot Be Filed If First SLP Was Dismissed Without Any Reasons Or Was Withdrawn

The Supreme Court bench of Justice Dipankar Datta and Justice Prashant Kumar Mishra reiterated its prima facie view that in cases where a special leave petition (SLP) was dismissed by way of a non-speaking order or withdrawal, the remedy of filing a fresh SLP does not exist.

The bench reiterated its disagreement with the views taken by a Division Bench of the Supreme Court in S Narahari and Ors. v. SR Kumar and Ors., citing the case of M/s. Upadhyay & Co. v. State of Uttar Pradesh. The bench said that this case clearly established that the principles under Order 23 Rule 1 of the CPC, which govern the withdrawal of suits, also apply to SLPs filed before the Supreme Court.

“Our prime facie view of disagreeing with the decision in S. Narahari (supra) is strengthened by the decision of this Court reported in (1999) 1 SCC 81 : M/s. Upadhyay & Co. vs. State of Uttar Pradesh which, in no uncertain terms, lays down that the principles flowing from Order 23 Rule 1 of the Code of Civil Procedure, 1908 are also applicable to special leave petitions filed before this Court. This decision does not appear to have been placed for consideration of the coordinate Bench in S. Narahari (supra)”, the bench observed in its order.

In S Narhari, a coordinate bench had referred to a larger bench on the question of maintainability of subsequent SLP if previous SLP is dismissed without providing reasons or due to withdrawal by the petitioner.

The Court however, recalled part of its earlier order dated July 29, 2024, which had adjourned sine die the hearing of several SLPs till the larger bench decides the question.

Following a July 31, 2024, communication from the respondents requiring petitioners to vacate spaces and deposit funds within 15 days, the petitioners sought to recall the adjournment order. The Court, noting that the larger Bench might rule favorably for the petitioners, decided to recall the adjournment. It issued notice on the SLPs and stay application, returnable in four weeks, and granted interim protection, allowing the petitioners to continue their business until the next hearing, without prejudice to the respondents' rights.

The S Narahari Case

In the S Narahari case, a Division Bench referred to the decision in Khoday Distilleries Ltd. and Ors. v. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd. which held that a dismissal by a non-speaking order does not invoke the doctrine of merger.

The Bench noted that this means that the dismissal does not constitute a law under Article 141 of the Constitution, nor does it act as res judicata. Consequently, even if an SLP is dismissed as withdrawn without reasons, the option to file a fresh SLP remains, the Bench observed. However, the Bench referred the matter to a larger Bench to settle the question, observing that such a view could potentially open the floodgates of litigation.

Case no.: Special Leave to Appeal (C) Nos. 17501-17502/2024

Case Title: NF Railway Vending and Catering Contractors Association Lumding Division v. Union of India & Ors.