No Second SLP After Unconditional Withdrawal: Supreme Court Reaffirms Upadhyay Principle and Fortifies Finality Under Article 136

Introduction

In a reportable decision clarifying a frequently recurring procedural question, the Supreme Court of India (per Dipankar Datta, J.; K.V. Viswanathan, J. concurring) dismissed Civil Appeal Nos. 11752–11753 of 2025 in Satheesh V.K. v. The Federal Bank Ltd. (2025 INSC 1140, decided on 23 September 2025). The Court held that a second Special Leave Petition (SLP) under Article 136 of the Constitution is not maintainable where an earlier SLP challenging the same order was withdrawn unconditionally without liberty to file afresh. The judgment reinforces a public-policy-based bar derived from Order XXIII Rule 1 CPC (withdrawal of suits) and extends it to SLP practice, while also reiterating the statutory bar under Order XLVII Rule 7(1) CPC against appeals from an order refusing review.

The case arises from a borrower–bank dispute under the SARFAESI Act. The appellant-borrower defaulted on a secured credit facility from the respondent bank, leading to classification as NPA and measures under Section 13(4) of the SARFAESI Act. The Kerala High Court, in disposing the borrower’s writ petition, imposed a structured repayment plan (an upfront payment of Rs. 2 crore by 30 October 2024, followed by 12 equal monthly instalments with future interest) and permitted consideration of a one-time settlement after the initial payment. The borrower first approached the Supreme Court by SLP and, when the Bench expressed reservations, withdrew the SLP on 28 November 2024 without seeking or receiving liberty. He then pursued a review before the High Court, which was dismissed on 5 December 2024, and thereafter filed fresh SLPs on 12 December 2024 leading to the present appeals against both the parent and the review orders.

The primary issue before the Court was procedural: whether, after unconditionally withdrawing an SLP challenging the High Court’s order, the appellant could maintain a second SLP against the same parent order (and incidentally, whether a challenge could be laid against the review rejection order). On merits, the appellant invoked MSME-related reliefs, but those contentions were not reached because the Court disposed of the appeals on maintainability.

Summary of the Judgment

The Supreme Court dismissed the appeals at the threshold on maintainability. Relying squarely on Upadhyay & Co. v. State of U.P. (1999) 1 SCC 81 and Sarguja Transport Service v. STAT (1987) 1 SCC 5, the Court held that where a litigant withdraws an SLP without obtaining liberty to file a fresh SLP, a subsequent SLP against the same impugned order is barred on grounds of public policy. The bar extends to situations where, after such withdrawal, the litigant pursues and loses a review before the High Court: by virtue of Order XLVII Rule 7(1) CPC, no appeal lies from an order refusing review, and given the bar on a second SLP, the litigant cannot seek to challenge either the review rejection or the original order via a fresh SLP.

Emphasizing finality in litigation (interest reipublicae ut sit finis litium), the Court found the appellant’s litigation conduct—shuttling between forums without showing an inclination to pay—indicative of time-buying through technicalities. The Court distinguished authorities like Kunhayammed v. State Of Kerala (2000) 6 SCC 359 and Khoday Distilleries Ltd. v. Sri Mahadeshwara SSK Ltd. (2019) 4 SCC 376 as inapposite: those cases deal with the doctrine of merger and the maintainability of review where an SLP has been dismissed by a non-speaking order, not with the effect of unconditional withdrawal of an SLP.

Consequently, both appeals were dismissed, and connected applications were closed, with liberty to pursue any appropriate remedy before the competent forum in accordance with law.

Detailed Analysis

A. Precedents Cited and Their Influence

1) Upadhyay & Co. v. State of U.P. (1999) 1 SCC 81

This decision is the fulcrum of the Court’s ruling. Upadhyay held that a litigant who withdraws an SLP challenging a High Court order, without liberty to file afresh, cannot subsequently re-approach the Supreme Court by another SLP against the same order. The Court analogized to Order XXIII Rule 1 CPC: just as a plaintiff abandoning a suit without leave cannot institute a fresh suit on the same subject, a litigant who withdraws an SLP without leave cannot revive the same challenge, as a matter of public policy. This rule is designed to prevent forum-shopping and bench-hunting, and to promote finality. The present Bench declares Upadhyay to be controlling and “still the law holding the field.”

2) Sarguja Transport Service v. STAT (1987) 1 SCC 5

Sarguja extended Order XXIII Rule 1 principles to writ jurisdiction: withdrawal of a writ petition without liberty precludes filing a fresh writ on the same cause under Article 226 (though it does not bar a suit or an Article 32 petition). The Supreme Court in Satheesh V.K. reads Sarguja together with Upadhyay to apply the same public-policy bar in the Article 136 context, thereby foreclosing a second SLP after unconditional withdrawal of the first.

3) Kunhayammed v. State Of Kerala (2000) 6 SCC 359

Kunhayammed is the leading authority on the doctrine of merger and the effect of dismissal of an SLP. It holds that a non-speaking dismissal of an SLP does not result in merger of the High Court’s judgment into the Supreme Court’s order, and hence, a review before the High Court remains maintainable. In Satheesh V.K., the Court carefully explains that Kunhayammed addresses the dismissal (speaking or non-speaking) of an SLP, not the unconditional withdrawal of an SLP. Thus, Kunhayammed’s recognition of a maintainable review after a non-speaking dismissal does not translate into a right to file a second SLP after an unconditional withdrawal.

4) Khoday Distilleries Ltd. v. Sri Mahadeshwara SSK Ltd. (2019) 4 SCC 376

Relying on and reiterating Kunhayammed, Khoday held that a review in the High Court is maintainable even after a non-speaking dismissal of an SLP. The present Bench notes that Khoday, like Kunhayammed, did not concern the withdrawal of an SLP; it addressed an erroneous High Court refusal to entertain review following a non-speaking dismissal. Therefore, neither case undermines Upadhyay’s bar on a second SLP after unconditional withdrawal.

5) Vinod Kapoor v. State Of Goa (2012) 12 SCC 383 and Sandhya Educational Society v. Union Of India (2014) 7 SCC 701

These cases reflect a line of authority that disfavors second SLPs in the absence of explicit liberty. In S. Narahari v. S.R. Kumar (2023) 7 SCC 740, a coordinate Bench perceived tension between this line and Kunhayammed/Khoday, and referred the broader question to a larger Bench. In Satheesh V.K., the Court distinguishes S. Narahari on facts and underscores that Upadhyay was not placed before that Bench, reinforcing Upadhyay’s continued vitality for unconditional-withdrawal scenarios.

6) S. Narahari v. S.R. Kumar (2023) 7 SCC 740 and subsequent references

S. Narahari raised whether a fresh SLP is maintainable where the first SLP was dismissed as withdrawn with liberty to seek review (but not expressly with liberty to approach the Supreme Court again) and the review was subsequently dismissed. The reference remains pending. The present decision confines itself to the unconditional-withdrawal situation and thus does not trench upon the reference; instead, it reaffirms Upadhyay for the fact-pattern at hand.

7) Other references

The Court noted an interim order in N.F. Railway Vending & Catering Contractors Association (2024) adjusting case management around the S. Narahari reference, but found it irrelevant after subsequent recall. The Court also distinguished a recent order in Vasantalata Kom Vimalanand Mirjankar (1 September 2025) as involving dismissal, not withdrawal.

B. The Court’s Legal Reasoning

The Court begins by identifying the recurring procedural question: whether a second SLP is maintainable after the first is (i) unconditionally withdrawn, (ii) dismissed on merits by a brief non-reasoned order, or (iii) withdrawn with liberty to seek review but without liberty to re-approach the Supreme Court. It then confines its decision to the actual facts—unconditional withdrawal (scenario i).
The Court applies Upadhyay directly: withdrawal of an SLP without liberty bars a subsequent SLP against the same order. This bar is rooted not in res judicata but in public policy derived from Order XXIII Rule 1 CPC, adopted to discourage bench-hunting and to uphold finality.
Reading Upadhyay with Sarguja, the Court articulates a composite proposition for the unconditional-withdrawal scenario: if a party withdraws an SLP without liberty and later files for review in the High Court (a course of action that may remain open because there is no merger), the rejection of review cannot itself be appealed due to Order XLVII Rule 7(1) CPC; nor can the party re-ignite the challenge to the parent order by a second SLP because the earlier unconditional withdrawal forecloses it.
The Court explains the significance of Order XLVII Rule 7(1) CPC: an order rejecting review does not alter the original decree or order; there is no merger; and no appeal lies against the refusal. The proper challenge is to the original order itself. But, in this specific procedural posture, that route is blocked by the Upadhyay bar on a second SLP.
The Court distinguishes Dhakeswari Cotton Mills (1955) on the amplitude of Article 136: the exceptional and overriding nature of the Supreme Court’s discretionary power is most relevant at the first instance of challenge, not after a party has elected to withdraw that challenge and then seeks a “second bite” without liberty. Article 136 cannot be invoked to subvert public-policy constraints and finality.
Public policy and finality underpin the outcome. The Court invokes the maxim interest reipublicae ut sit finis litium and notes the appellant’s case-management conduct—rapid forum-hopping without steps to comply with repayment directions, suggestive of an attempt to buy time.

C. Impact and Prospective Significance

1) Litigation strategy under Article 136

Counsel must exercise great care before seeking withdrawal of an SLP. If there is any possibility that the petitioner may later need to re-approach the Supreme Court on the same order, explicit liberty to do so must be sought at the time of withdrawal. Absent such liberty, a second SLP is barred.
Even where a review in the High Court remains maintainable (e.g., after a non-speaking dismissal of an SLP), an appeal to the Supreme Court from the review rejection order is statutorily barred by Order XLVII Rule 7(1) CPC. The correct appellate target would be the original order—but in unconditional-withdrawal cases, that path is foreclosed by Upadhyay.

2) Docket control and curbing bench-hunting

The judgment fortifies institutional control over repetitive challenges to the same order and disincentivizes bench-hunting and time-buying tactics. It advances finality and conserves judicial resources, particularly in high-volume areas like SARFAESI enforcement.

3) SARFAESI and MSME disputes

Although the borrower invoked MSME-related protections (including the Central Government’s 29 May 2015 Notification under Section 9 of the MSMED Act and decisions such as Pro Knits and Shri Shri Swami Samarth Construction), the Supreme Court did not reach those merits. Practically, this judgment signals that procedural missteps in Supreme Court practice (especially unconditional withdrawal of SLPs) can foreclose merits review altogether, leaving parties to pursue statutory remedies before specialized forums (e.g., DRT/DRAT) or to act within High Court processes in the first instance.

4) Relationship with pending reference in S. Narahari

The Court deliberately confines its ratio to unconditional withdrawal. Questions flagged in S. Narahari—particularly the effect of a prior SLP dismissed as withdrawn with liberty to file review (but without liberty to re-approach the Supreme Court)—remain for the larger Bench. Nonetheless, by re-centering Upadhyay as the controlling precedent in withdrawal scenarios, this judgment provides predictability for a significant slice of recurrent fact patterns.

Complex Concepts Simplified

1) What is a Special Leave Petition (SLP)?

An SLP is an application to the Supreme Court under Article 136 seeking “special leave” to appeal against any judgment, decree, or order. It is discretionary: the Supreme Court may choose to grant or refuse leave. If leave is granted, the SLP is converted into an appeal. A refusal to grant leave does not, by itself, amount to an affirmation of the lower court’s judgment unless the order is a reasoned, speaking order laying down law.

2) Non-speaking vs. speaking dismissal of SLP and the doctrine of merger

Non-speaking dismissal: “SLP dismissed” without reasons. As per Kunhayammed and Khoday, this does not result in merger of the lower court’s order with the Supreme Court’s order. A High Court review may still be maintainable.
Speaking dismissal: dismissal with reasons. The legal principles stated therein bind under Article 141, though there is still no merger. Findings may bind the parties by judicial discipline.
Merger attaches when leave is granted and the Supreme Court decides the appeal (affirming, modifying, or reversing).

3) Withdrawal of SLP and public policy (Order XXIII Rule 1 CPC analogy)

A party who withdraws a suit without the court’s permission cannot bring a fresh suit on the same subject. By analogy and as a matter of public policy, a litigant who withdraws an SLP without liberty cannot file another SLP challenging the same order. This prevents forum-shopping and ensures finality.

4) Review and the bar on appealing review refusals (Order XLVII Rule 7(1) CPC)

If a review is refused, there is no separate appeal against that refusal. The correct course, where available, is to challenge the original order. In unconditional-withdrawal cases, that path is closed by the Upadhyay bar, thereby ending the litigation in the Supreme Court.

5) Practical decision-tree

First SLP withdrawn without liberty:
- Review in High Court may be maintainable (no merger issue), but
- No appeal lies from review refusal (Order XLVII Rule 7(1)), and
- No second SLP against the parent order (Upadhyay/Sarguja public-policy bar).
First SLP dismissed non-speaking (no withdrawal):
- High Court review is generally maintainable (Kunhayammed/Khoday),
- But the maintainability of a subsequent SLP after review and its dismissal is governed by separate lines of authority and the issue referred in S. Narahari (pending larger Bench). Not decided here.
First SLP withdrawn with liberty limited to seeking review (no liberty to re-approach the Supreme Court):
- Issue flagged in S. Narahari; not determined here.

Conclusion

Satheesh V.K. v. The Federal Bank Ltd. settles, with renewed clarity, that an SLP withdrawn unconditionally cannot be revived by filing a second SLP against the same order. The Court roots this bar in public policy—importing Order XXIII Rule 1 CPC principles into Article 136 practice—aimed at finality and against bench-hunting. By coupling this with the statutory bar on appeals from review refusals under Order XLVII Rule 7(1) CPC, the Court closes the loop on a procedural gambit often used to delay enforcement, especially in high-stakes financial litigation under the SARFAESI Act.

The judgment carefully harmonizes Kunhayammed/Khoday, affirming that their doctrine-of-merger holdings do not conflict with Upadhyay’s unconditional-withdrawal bar; they operate in distinct spaces. While broader questions about second SLPs following other dismissal modalities remain with a larger Bench in S. Narahari, this decision provides firm guidance for a common scenario: once an SLP is withdrawn without liberty, the doors of Article 136 are closed for that cause. Litigants and counsel must plan strategy accordingly, mindful that Article 136’s extraordinary reach cannot be invoked to erode the basic architecture of finality in litigation.