Supreme Court of India
ABHISHEK GUPTAversusDINESH KUMAR & ORS.
- Citation
- 2025 INSC 1406
- Decided
- 3 December 2025
- Disposal
- Disposed off
Holding
Rule 5 does not preclude a special appeal by a non‑party when a writ order under Art.226 adversely affects his rights; the appeal must be allowed to ensure access to justice.
Summary
The appellant, Abhishek Gupta, was allotted a fair‑price shop licence after the licence of respondent No.1 was revoked for breach of conditions. The revocation and its affirmation were challenged by respondent No.1 in a writ petition under Art.226, where the appellant was not impleaded. The Single Judge set aside the revocation, prompting the appellant to file an intra‑court special appeal, which the Allahabad High Court Division Bench dismissed as non‑maintainable under Rule 5 of the Allahabad High Court Rules, 1952, while granting liberty to seek review. The Supreme Court held that Rule 5 must be interpreted to further access to justice and that a party adversely affected by a writ order without being a party cannot be left without a remedy, invoking the maxim ubi jus, ibi remedium. Consequently, the Court set aside the Division Bench’s dismissal, restored the special appeal, and disposed of the appeals, leaving the substantive dispute to be decided in the restored proceedings.
Issues considered
- Whether Rule 5 of the Allahabad High Court Rules, 1952 bars a special appeal by a non‑party against an order of a Single Judge in a writ petition under Art.226.
- Whether the principle of non‑joinder and the maxim ubi jus, ibi remedium require that a party not impleaded in a writ proceeding be allowed a special appeal.
- Whether a review is an adequate remedy for a non‑party adversely affected by a writ order.
Legislation cited
Headnote
Issue for Consideration Whether in the facts and circumstances of the case, the Division Bench of the High Court erred in dismissing the Special Appeal filed by the appellant herein assailing the order of the Single Judge in a petition u/Art.226 of the Constitution which adversely affected his not impleaded as a party therein, as not maintainable relying on Chapter VIII r.5 of the Allahabad High Court Rules, 1952. Headnotes† Allahabad High Court Rules, 1952 – Ch. VIII – r.5 – Constitution of India – Art. 226 – Non-joinder of a necessary party –
Subjects
Rule 5 of Allahabad High Court Rules, 1952Special appealFair price shop licenseeRevocation of licensePrinciples of natural justiceAffected or necessary party not impleadedNon-joinder of a necessary partyIntra-court appealAccess to justiceRight to be heardRight to a fair hearingUbi jus ibi remediumFair price shop
Judgment
[2025] 12 S.C.R. 479 : 2025 INSC 1406
Abhishek Gupta
v.
Dinesh Kumar & Ors.
(Civil Appeal No(s). 14545-14546 of 2025)
03 December 2025
[Dipankar Datta and Augustine George Masih, JJ.]
Issue for Consideration
Whether in the facts and circumstances of the case, the Division
Bench of the High Court erred in dismissing the Special Appeal
filed by the appellant herein assailing the order of the Single
Judge in a petition u/Art.226 of the Constitution which adversely
affected his rights but he was not impleaded as a party therein,
as not maintainable relying on Chapter VIII r.5 of the Allahabad
High Court Rules, 1952.
Headnotes†
Allahabad High Court Rules, 1952 – Ch. VIII – r.5 – Constitution
of India – Art. 226 – Non-joinder of a necessary party – 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 – Revocation affirmed by appellate
order – Writ Petition filed by the Respondent No.1 challenging
the revocation of the license and the appellate order affirming
the revocation, however, the appellant was not impleaded
as a party – Allowed by Single Judge, revocation order set
aside – Special Appeal filed by appellant – Dismissed by the
Division Bench as not maintainable relying on Chapter VIII r.5
of the High Court Rules, 1952 though granting liberty to the
appellant to file a review – Challenge to:
Held: Although r.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 u/Art.226 where an appellate/revisional order
of the Government or any officer or authority under any of the
specified enactments is under challenge, r.5 has to be read and
480 [2025] 12 S.C.R.
Supreme Court Reports
understood in a manner that advances the cause of “access to
justice” and not thwart it – The rigours of r.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
u/Art.226 of the Constitution, adversely affecting the rights of a
party who was not a party-respondent before the Single Judge
– Special Appeal ought not to have been held not maintainable
– Also, the maxim ubi jus ibi remedium cannot be ignored – A
party suffering an adverse order in judicial proceedings where he
is not noticed, 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 – Impugned judgment of the
Division Bench set aside, Special Appeal of the appellant restored.
[Paras 15, 16]
Allahabad High Court Rules, 1952 – Ch. VIII – rule 5 –
Interpretation – Object & purpose of, stated. [Para 15]
Maxim – ubi jus ibi remedium – Constitution of India –
Art.226 – Non-joinder of a necessary party – Intra-court
appeal – Allahabad High Court Rules, 1952 – r.5:
Held: 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 – 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 r.5 would,
at the same time, accord with the maxim ubi jus ibi remedium.
[Paras 19, 21]
Case Law Cited
Smt. Jatan Kanwar Golcha v. Golcha Properties (P) Ltd. [1971]
3 SCR 247 : AIR 1971 SC 374; State of Punjab v. Amar Singh
[1974] 3 SCR 152 : AIR 1974 SC 994 – held applicable.
Sheet Gupta v. State of U.P., AIR 2010 All 46 (FB) – referred to.
[2025] 12 S.C.R. 481
Abhishek Gupta v. Dinesh Kumar & Ors.
List of Acts
Allahabad High Court Rules, 1952; Constitution of India; Code of
Civil Procedure, 1908.
List of Keywords
Rule 5 of Allahabad High Court Rules, 1952; Special appeal; Fair
price shop licensee; Revocation of license; Principles of natural
justice; Affected or necessary party not impleaded; Non-joinder
of a necessary party; Intra-court appeal; Access to justice; Right
to be heard; Right to a fair hearing; Ubi jus ibi remedium; Fair
price shop.
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No(s). 14545-
14546 of 2025
From the Judgment and Order dated 10.06.2025 and 30.10.2025
of the High Court of Judicature at Allahabad in WRITC No. 37063
of 2019 and SAD No. 908 of 2025, respectively.
Appearances for Parties
Advs. for the Appellant(s):
Pranav Krishna, Lavam Tyagi, Ms. Srishti Mayank.
Advs. for the Respondent(s):
Sanjeev Malhotra, Ashwin Vaish, Vinod Pandey, Ashutosh Thakur,
Himanshu Pandey, Sandeep Yadav, Ms. Ritu Pandey, Uttam
Panwar.
Judgment / Order of the Supreme Court
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.
482 [2025] 12 S.C.R.
Supreme Court Reports
5. Revocation of the license and an appellate order of its affirmance
were the subject matter of challenge in a writ petition1 presented by
the respondent no.1 before the High Court of Judicature at Allahabad.
In such writ petition, the appellant was not impleaded as a party.
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 10th June, 2025.
9. At the outset, we reject the contention of learned counsel for the
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
1
2
Writ C No. 37063 of 2019
3 Special Appeal Defective No. 908 of 2025
4 1952 Rules
5 AIR 2010 All 46 (FB)
[2025] 12 S.C.R. 483
Abhishek Gupta v. Dinesh Kumar & Ors.
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;
484 [2025] 12 S.C.R.
Supreme Court Reports
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;
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
[2025] 12 S.C.R. 485
Abhishek Gupta v. Dinesh Kumar & Ors.
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 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 Constitution before this Court or seek a review under the High
Court’s inherent jurisdiction.
486 [2025] 12 S.C.R.
Supreme Court Reports
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, 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
6 AIR 1971 SC 374
7 AIR 1974 SC 994
[2025] 12 S.C.R. 487
Abhishek Gupta v. Dinesh Kumar & Ors.
10th 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.
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.
Result of the case: Appeals disposed of.
†
Headnotes prepared by: Divya Pandey
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