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Civil · Reportable judgment

Abhishek Gupta vs Dinesh Kumar & Ors.

Court
Supreme Court of India
Date
3 December 2025
Case No.
Civil Appeal No(s). 14545-14546 of 2025
Result
Disposed
Bench
Dipankar Datta, Augustine George Masih
Citation
[2025] 12 S.C.R. 479 : 2025 INSC 1406
Acts & Sections
Allahabad High Court Rules, 1952 Constitution CPC
Supreme Court Reports [2025] 12 S.C.R. 479 : 2025 INSC 1406
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.
Headnote

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 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]

Read the full headnote (1 more paragraph)

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]

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

As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Divya Pandey. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.

Full Judgment Text

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 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 part
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