Non‑Party Intra‑Court Appeals and the Primacy of Natural Justice over Rule 5, Chapter VIII, Allahabad High Court Rules

Commentary on Abhishek Gupta v. Dinesh Kumar & Ors., 2025 INSC 1406

1. Introduction

The Supreme Court’s decision in Abhishek Gupta v. Dinesh Kumar & Ors., 2025 INSC 1406 (Civil Appeal Nos. 14545–14546 of 2025), delivered on 3 December 2025 by a Bench of Dipankar Datta and Augustine George Masih, JJ., makes a significant doctrinal contribution to Indian procedural law. The Court clarifies when a non‑party to writ proceedings under Article 226 of the Constitution can maintain an intra‑court appeal (Special Appeal) in the Allahabad High Court despite the apparent bar contained in Rule 5, Chapter VIII of the Allahabad High Court Rules, 1952.

The decision reconciles three competing considerations:

The textual bar on Special Appeals from certain writ orders under Rule 5, Chapter VIII;
The foundational principles of natural justice, especially the right to be heard of persons whose rights are affected; and
The right to an effective remedy embodied in the maxim ubi jus, ibi remedium (where there is a right, there is a remedy).

The Court ultimately holds that, where a person’s rights are prejudicially affected by a Single Judge’s decision in a writ petition under Article 226–227, and that person was not impleaded as a party despite being a necessary party, the High Court must not reject his/her intra‑court appeal as non‑maintainable under Rule 5. In such cases, the procedural bar must yield to natural justice and access to justice.

2. Factual and Procedural Background

2.1 Substantive dispute: Fair price shop licence

The underlying dispute concerns a fair price shop licence under the public distribution system in Uttar Pradesh.

Respondent No. 1 (Dinesh Kumar) was originally the licensee of a fair price shop.
His licence was revoked by the authorities on the ground of breach of lawful terms and conditions.
Upon revocation, the licence was re‑allotted to the Appellant (Abhishek Gupta) through grant of a fresh licence, making him the incumbent fair price shop dealer.

2.2 Writ proceedings before the Allahabad High Court

Dinesh Kumar challenged:

The revocation order passed by the licensing authority; and
The appellate order affirming such revocation,

by filing Writ C No. 37063 of 2019 under Article 226 of the Constitution before the High Court of Judicature at Allahabad.

Critically:

The new licensee, Abhishek Gupta, whose licence depended on the validity of the revocation of Dinesh Kumar’s licence, was not impleaded as a respondent in the writ petition.

On 10 June 2025, a Single Judge of the High Court:

Allowed the writ petition;
Set aside the revocation order and the confirming appellate order; and
Directed that Dinesh Kumar be reinstated as fair price shop licensee.

The inevitable practical consequence of this order was that Abhishek Gupta, though not heard in the writ petition, would be required to vacate the shop to make way for Dinesh Kumar.

2.3 Intra‑court appeal and dismissal on maintainability

Sensing the imminent impact on his rights, Abhishek Gupta filed an intra‑court appeal before a Division Bench of the Allahabad High Court:

Special Appeal Defective No. 908 of 2025.

His core grievance:

The Single Judge’s order had been passed without hearing him and without impleading him in the writ petition, though it directly prejudicially affected his licence.

The Division Bench, by judgment dated 30 October 2025, held the Special Appeal to be not maintainable, relying on:

Rule 5, Chapter VIII of the Allahabad High Court Rules, 1952 (the “1952 Rules”); and
The Full Bench judgment in Sheet Gupta v. State of U.P. & Ors., AIR 2010 All 46 (FB).

The Division Bench thus dismissed the Special Appeal on the ground of maintainability. It granted liberty to Abhishek Gupta only to file a review petition before the Single Judge against the judgment dated 10 June 2025.

2.4 Appeals before the Supreme Court

In the Supreme Court, Abhishek Gupta challenged:

The judgment and order of the Division Bench dated 30 October 2025, holding his Special Appeal non‑maintainable; and
Also, by way of abundant caution, the Single Judge’s judgment dated 10 June 2025.

The respondent raised an initial objection that the appeals should be dismissed for suppression of material facts (para 9), which the Supreme Court rejected.

3. Issues Before the Supreme Court

From the Supreme Court’s reasoning, the core legal issues can be framed as:

Maintainability of intra‑court appeal by a non‑party:
Whether a person who was not a party to writ proceedings under Article 226, but whose rights are directly and prejudicially affected by the Single Judge’s decision, can maintain a Special Appeal under Rule 5, Chapter VIII of the 1952 Rules, even where Rule 5 ostensibly bars such appeals?
Interaction between Rule 5 and natural justice:
Does the procedural bar under Rule 5 yield to the principles of natural justice—particularly, the right to be heard—where a necessary party was not impleaded in the writ petition?
Adequacy of review as a remedy:
Can a person so affected be confined to a review petition before the Single Judge, or must an effective appellate remedy be available, consistent with the maxim ubi jus, ibi remedium?
Extent of the Full Bench ruling in Sheet Gupta:
Whether the Full Bench decision in Sheet Gupta conclusively covers a situation where the appellant is a non‑party to the original writ petition and asserts non‑joinder as a necessary party?

4. Summary of the Judgment

The Supreme Court holds as follows:

Rule 5, Chapter VIII – textual bar acknowledged but not absolute: On a plain reading, Rule 5 appears to bar the Special Appeal. However, this bar cannot be applied mechanically where it would undermine natural justice and access to justice (paras 13–15).
Limited role of Sheet Gupta: The Full Bench in Sheet Gupta correctly interpreted Rule 5, but it did not consider the specific question of maintainability of an appeal by a non‑party challenging a writ decision that affects his rights (para 14). Therefore, Sheet Gupta does not conclude the present question.
Natural justice and non‑joinder override the bar: Where a Single Judge’s writ order under Article 226 adversely affects the rights of a person who was not impleaded despite being a necessary party, the bar under Rule 5 must yield to the principles of natural justice and access to justice (paras 15–16).
Appeal by non‑party with leave is permissible: Relying on Smt. Jatan Kanwar Golcha v. Golcha Properties (P) Ltd. and State of Punjab v. Amar Singh, the Court reiterates that a person who was not a party to the proceedings below can file an appeal with leave, if he shows that the order is prejudicial to him or is binding on him (para 17).
Review is inadequate as sole remedy: Although such a person may technically seek a review, review is a narrow remedy and not as effective as an appeal for redressing the grievance of non‑joinder and lack of hearing (para 18).
Guideline for High Courts: Where in an intra‑court appeal an allegation of non‑joinder of a necessary party is raised and the High Court finds merit in it, the High Court should (para 19):
- Either remand the matter to the Single Judge for re‑adjudication after impleading the necessary party; or
- Itself decide the matter on merits, after appropriately dealing with the non‑joinder.
This approach respects the object of Rule 5 while ensuring a remedy for the affected non‑party.
Outcome in the present case:
- The Supreme Court sets aside the Division Bench order dated 30 October 2025 that had dismissed Abhishek Gupta’s Special Appeal as non‑maintainable (para 21).
- The Special Appeal is restored to its original file and number for fresh hearing by the Division Bench, to be decided expeditiously (para 21).
- The Court declines to allow the appellant to run the fair price shop pending the appeal. The shop, already re‑allotted to Dinesh Kumar pursuant to the Single Judge’s order, shall continue with Dinesh Kumar but will abide by the result of the restored Special Appeal (para 23).
- The Supreme Court does not express any opinion on the merits of the licencing dispute (para 22).

5. Detailed Analysis

5.1 Rule 5, Chapter VIII of the Allahabad High Court Rules, 1952

Rule 5, Chapter VIII of the 1952 Rules governs Special Appeals within the Allahabad High Court. In substance, it:

Provides for an appeal to a Division Bench from a judgment of a Single Judge; but
Carves out several exceptions where such an appeal will not lie.

The key part relevant here is the exclusion of Special Appeals from orders passed by a Single Judge in the exercise of jurisdiction under Articles 226 or 227 of the Constitution, where the writ petition challenges:

A judgment, order or award of a tribunal, Court or statutory arbitrator under any U.P. or Central Act relating to matters in the State or Concurrent Lists; or
A judgment, order or award of the Government or any officer or authority, made in exercise of appellate or revisional jurisdiction under such an Act.

In other words, when:

A statutory appellate or revisional authority has already adjudicated upon a matter; and
A Single Judge, under Article 226/227, then reviews that decision,

Rule 5 generally bars a further intra‑court appeal to the Division Bench. The purpose, as the Supreme Court points out (para 15), is to avoid a third tier of adjudication within the High Court on the same lis between the same parties.

5.2 The Full Bench in Sheet Gupta v. State of U.P.

In Sheet Gupta v. State of U.P. & Ors., AIR 2010 All 46 (FB), a Full Bench of the Allahabad High Court exhaustively interpreted Rule 5, Chapter VIII. It held that a Special Appeal will not lie in six broad classes of cases (para 12 of the Supreme Court judgment reproduces these).

In essence, Sheet Gupta confirms that:

No Special Appeal lies against:
- Judgments of a Single Judge in exercise of appellate jurisdiction over subordinate Courts;
- Orders passed in revisional jurisdiction, or in superintendence, criminal jurisdiction, etc.;
- Orders under Article 226/227 concerning tribunals, Courts, statutory arbitrators, or Government/authorities acting under specified Acts.

The Supreme Court in Abhishek Gupta accepts the correctness of the Full Bench’s interpretation as far as it goes (para 14). However, crucially, it observes 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... Since this was not a question which the Full Bench was required to examine, whatever has been laid down in Sheet Gupta ... may not be decisive in a situation under consideration.” (para 14)

Thus, Sheet Gupta did not address the specific scenario where:

The person filing the intra‑court appeal was not a party to the writ petition; and
He alleges that he was a necessary party whose rights have been directly affected by the Single Judge’s decision.

Therefore, the Division Bench’s reliance on Sheet Gupta as a complete bar to Abhishek Gupta’s Special Appeal was misplaced and, according to the Supreme Court, “erroneous” (para 14).

5.3 Object and purpose of Rule 5: avoiding a third tier, not denying justice

The Supreme Court begins its interpretative exercise by acknowledging that a literal reading of Rule 5 would suggest that the Special Appeal is barred (para 13). However, it then moves to a purposive interpretation, emphasising the need to construe Rule 5 in a way that:

Advances access to justice, and
Does not “thwart” it (para 15).

The Court identifies the underlying object and purpose of Rule 5 (para 15):

The object seems to be that when two tiers of adjudication—quasi‑judicial and judicial—are available:

a determination by the appellate/revisional forum under a specified Act; followed by

an adjudication by a Single Judge in writ proceedings examining the legality of that determination,

a third tier in the shape of a Special Appeal ought not to be made available to the same aggrieved party on the same lis.

Thus, Rule 5 aims to:

Prevent multiplicity of tiers (three levels within the High Court) on the same dispute between the same parties;
Achieve a degree of finality at the Single Judge level in such statutory‑origin cases; and
Ensure that further challenge lies only by way of:
- Article 136 (Special Leave Petition) before the Supreme Court; or
- Review before the Single Judge in the High Court (para 15).

However, this logic assumes:

The same set of parties participated in all tiers; and
The Single Judge’s decision followed a hearing where all affected parties were represented.

Where that assumption fails—because an affected person was never heard—the justification for denying a Special Appeal weakens dramatically.

5.4 Natural justice, non‑joinder, and the relaxation of Rule 5

The Court then squarely confronts this problem in paras 16–19.

5.4.1 Non‑joinder of necessary parties and writ proceedings

The Court notes (para 16):

The principle of non‑joinder (failure to implead necessary parties) originates from the Code of Civil Procedure, 1908 (CPC);
But it applies with equal force to writ proceedings under Article 226.

As a general principle of Indian administrative and constitutional law, a writ petition that affects the rights of a third party who has not been impleaded as a respondent is vulnerable to challenge on grounds of breach of natural justice and non‑joinder of necessary parties.

The Court underscores that:

“An order passed in writ jurisdiction without impleading an affected or necessary party is liable to be invalidated on that ground alone.” (para 16)

This statement is a clear and strong affirmation of the necessity of impleading those whose rights will be directly impacted by the outcome of a writ petition.

5.4.2 Courts exist to administer justice, not to enforce rigid procedure

The Court declares (para 16) that:

“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...”

The underlying logic:

Courts are instruments of justice, not mere enforcers of technical procedural rules.
Procedural rules like Rule 5 must be applied in a way that does not defeat substantive justice and the basic right to a fair hearing.
Where a Single Judge’s writ order adversely affects a person who was not heard because he was not impleaded, the bar under Rule 5 must “yield” to natural justice.

5.5 Non‑party appeals with leave: Role of Jatan Kanwar Golcha and Amar Singh

At para 17, the Court relies on two earlier Supreme Court decisions:

Smt. Jatan Kanwar Golcha v. Golcha Properties (P) Ltd., AIR 1971 SC 374;
State of Punjab v. Amar Singh, AIR 1974 SC 994.

These cases lay down the principle 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...” (para 17)

In other words:

A person who was not a party to the original proceedings is not automatically barred from appealing;
Such a person may be granted leave to appeal if he shows:
- The impugned order is prejudicial to him; or
- It adversely affects him; or
- It is otherwise binding on him.

By importing this doctrine into the context of intra‑court Special Appeals under Rule 5, the Supreme Court effectively carves out a specific exception to the bar:

Where a person who was not a party to the writ petition shows that the Single Judge’s order prejudicially affects his rights, he can maintain a Special Appeal with leave of the Court, despite Rule 5.

This is the doctrinal bridge between:

The general competence of non‑party appeals in civil law; and
The specific procedural constraints of High Court Special Appeals under Rule 5.

5.6 Ubi jus, ibi remedium and inadequacy of review

At para 18, the Court invokes the Latin maxim ubi jus, ibi remedium:

“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.”

The Court accepts that such a person could, in theory, file a review petition. However, it notes:

The scope of a review is “much narrow” than that of an appeal (para 18);
A review does not provide a remedy as effective as an appeal in correcting errors such as non‑joinder and denial of a hearing.

Thus, to confine the affected non‑party solely to review—especially where the writ order has substantially impacted his legal rights—would be inadequate and inconsistent with the principle that where a right is infringed, there must be a meaningful remedy.

5.7 The operative rule laid down: Guideline for High Courts

The central operational holding is at para 19:

“... 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.”

Key elements:

The appellant must raise a specific allegation of non‑joinder of a necessary party in the writ proceedings;
The High Court must examine whether this allegation has substance:
- Was the appellant a necessary party? i.e., was his presence indispensable for effectively and completely adjudicating upon the matter?
- Does the Single Judge’s order adversely affect his rights?
If the High Court is satisfied that non‑joinder is genuine and material:
- It must not dismiss the appeal as barred by Rule 5; rather,
- It should either:
  - Remand the case to the Single Judge for fresh decision after impleading the necessary party; or
  - Itself decide the matter on merits, after addressing the defect.

This approach is crafted to:

Preserve the object of Rule 5 (avoid third tier for the same lis between the same parties); and
Simultaneously give effect to natural justice and access to justice for those left unheard.

5.8 Application to the present case

Applying these principles:

Abhishek Gupta’s licence depended entirely on the validity of the revocation of Dinesh Kumar’s licence.
The Single Judge’s order setting aside the revocation effectively displaced Abhishek Gupta as fair price shop licensee without hearing him.
He was, in substance, a necessary party to Dinesh Kumar’s writ petition.
His intra‑court appeal raised a clear plea that:
- He was not impleaded; and
- The Single Judge’s order prejudicially affected his rights.

Accordingly, the Supreme Court holds that the Division Bench erred in treating his Special Appeal as barred by Rule 5 and in confining him merely to a review remedy (paras 19–21). The Division Bench should have considered the Special Appeal on maintainability with reference to non‑joinder, and then either remanded the matter or adjudicated it.

The Supreme Court therefore:

Sets aside the Division Bench’s judgment;
Restores the Special Appeal for fresh adjudication;
Clarifies that the present fair price shop arrangement (in favour of Dinesh Kumar) is provisional and subject to the outcome of the Special Appeal (para 23); and
Declares that it expresses no view on merits, leaving all contentions open (para 22).

6. Complex Concepts Simplified

6.1 What is a “Special Appeal” / intra‑court appeal?

A Special Appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules is an intra‑court appeal:

It is an appeal from a Single Judge to a Division Bench of the same High Court.
It is distinct from:
- An appeal from the High Court to the Supreme Court under Article 136 (Special Leave Petition), and
- An appeal from subordinate Courts to the High Court under the CPC.

6.2 Necessary party and non‑joinder

A necessary party is a person:

Without whose presence, the Court cannot pass an effective and complete order;
Whose rights are so directly affected by the decision that the proceeding would be defective and possibly voidable if he is not made a party.

Non‑joinder means failing to implead such a person. In writ proceedings:

If a person whose vested rights will be displaced or directly affected by the outcome is not made a party, the writ order may be set aside for breach of natural justice.

6.3 Natural justice: Right to be heard

The principles of natural justice, particularly the rule audi alteram partem (hear the other side), require that:

A person whose rights are likely to be prejudicially affected by an order must be given:
- Notice of the proceedings, and
- An opportunity to present his case.

In this case, Abhishek Gupta’s fair price shop licence was at stake. Yet he had no notice and was not heard in the writ petition. The Single Judge’s order therefore raised a serious issue of violation of natural justice.

6.4 Access to justice and ubi jus, ibi remedium

The idea of access to justice is constitutional in nature, grounded in Articles 14 and 21. It implies that:

Persons whose legal rights are infringed must have a real, practical avenue for redress;
Technical procedural rules should not arbitrarily block that avenue where substantive injustice would result.

The maxim ubi jus, ibi remedium captures the same intuition: if the law recognises a right, it must also provide an effective remedy for its violation. In this case:

Abhishek Gupta had a legal right under his licence;
The Single Judge’s writ order impaired that right without hearing him;
To leave him only with a narrow review remedy would have been inconsistent with the need for a meaningful, effective remedy—hence the Court’s insistence on permitting an appeal in such a situation.

6.5 Distinction between appeal and review

A review:

Is filed before the same judge or court that passed the original order;
Is confined to narrow grounds:
- Discovery of new and important matter or evidence not within knowledge despite due diligence;
- Apparent error on the face of the record; or
- Other analogous reasons.

An appeal:

Is heard by a higher or larger Bench;
Permits re‑examination of facts and law, depending on its nature and the governing statute/rules;
Is generally a fuller remedy than review.

For a person who was never heard at all in the original proceeding, a review is a blunt instrument: it does not allow a comprehensive re‑hearing with full participation. That is why the Court holds that confining such a person to review alone is insufficient.

7. Impact and Implications

7.1 Clarification of the scope of Rule 5, Chapter VIII

The judgment does not dilute Rule 5 across the board. Instead, it:

Affirms the general bar on Special Appeals from Single Judge orders in writs arising from statutory appellate/revisional orders, as interpreted in Sheet Gupta;
Recognises a narrow, principled exception where:
- The appellant was not a party to the writ petition;
- He was a necessary party; and
- His rights were prejudicially affected by the Single Judge’s order.

The decision thus harmonises Rule 5 with constitutional values of fairness and access to justice, rather than undermining its basic objective of limiting tiers of adjudication.

7.2 Procedural guidance for High Courts

The Court provides a clear operational guideline (para 19) that will likely shape High Court practice:

When an intra‑court appeal alleges non‑joinder of a necessary party:
- The High Court must examine that allegation on merits;
- If satisfied that non‑joinder is real and material, it should not dismiss the appeal on the Rule 5 bar;
- It should either:
  - Remand to the Single Judge; or
  - Decide the merits itself.

This framework:

Prevents abuse by frivolous non‑party appeals (since the High Court must first be “satisfied” about the allegation of non‑joinder); and
Provides a structured route for genuinely affected non‑parties to be heard.

7.3 Broader doctrinal significance: Non‑party appeals in writ jurisdiction

The decision reinforces—and extends into the intra‑court context—the earlier Supreme Court doctrine permitting non‑party appeals with leave in civil cases. It confirms that:

This doctrine is equally applicable in the context of writ jurisdiction and internal High Court appeals;
The form of the forum (civil court vs writ court) does not negate the right of an affected non‑party to seek appellate redress.

This is particularly important in areas like:

Licensing (e.g., fair price shops, mining leases, transport permits);
Service law (appointments and promotions where rival candidates’ rights are affected);
Town planning and land allotment matters;
Other contexts where administrative orders directly create or extinguish third‑party rights.

7.4 Practical impact on fair price shop and similar disputes

In fair price shop litigation, a common pattern is:

The original licensee challenges cancellation/revocation;
A new licensee is appointed in the meantime;
The original licensee sometimes fails to implead the new licensee in the writ petition.

Post Abhishek Gupta:

Counsel and courts must be especially vigilant to ensure that:
- The incumbent licensee is impleaded as a respondent in any writ challenge by the former licensee;
If the incumbent is not impleaded and suffers an adverse order, he can:
- Now maintain a Special Appeal despite Rule 5, provided he satisfies the High Court that he was a necessary party and was adversely affected.

7.5 Reinforcement of access to justice as a constitutional value

The judgment is also significant for its explicit rhetorical emphasis on:

Access to justice as a guiding interpretive value in reading court rules (para 15);
The idea that procedural rules like Rule 5 must be understood in ways that “advance”, and not “thwart”, this value.

This aligns with a broader trend in Indian constitutional jurisprudence of:

Reading procedural bars subject to overarching constitutional norms (Article 14, Article 21); and
Ensuring that formal rules do not produce substantive unfairness in access to adjudicatory forums.

8. Conclusion

Abhishek Gupta v. Dinesh Kumar is an important decision in the field of procedural and remedial law. Its key contributions can be summarised as follows:

Narrow but vital exception to Rule 5: The Supreme Court recognises that the bar on intra‑court Special Appeals under Rule 5, Chapter VIII of the Allahabad High Court Rules is not absolute. It must be read subject to the principles of natural justice where a necessary party was not impleaded in the writ proceedings.
Non‑party appeals with leave in intra‑court context: The Court explicitly applies the earlier doctrine from Jatan Kanwar Golcha and Amar Singh (that non‑parties can appeal with leave if prejudicially affected) to intra‑court appeals in writ matters, thereby affirming the availability of an appellate remedy to such persons.
Primacy of natural justice and access to justice: The judgment reiterates that natural justice—the right to be heard and to a fair hearing—and the constitutional ideal of access to justice cannot be sacrificed at the altar of rigid procedural bars.
Concrete procedural guidance for High Courts: Where non‑joinder of a necessary party is credibly alleged in an intra‑court appeal, the High Court must:
- Examine the allegation; and
- If satisfied of its merits, either remand to the Single Judge or decide the matter on merits, rather than dismissing the appeal as barred.
Balanced outcome in the individual case: The Court restores Abhishek Gupta’s Special Appeal, ensures that his grievance will be heard, maintains the existing fair price shop arrangement in favour of Dinesh Kumar only provisionally, and refrains from deciding the substantive licensing dispute—thus separating the procedural question from the merits.

In the broader legal landscape, this judgment serves as a reminder that procedural rules governing intra‑court appeals—while important for judicial efficiency and finality—must be interpreted in a manner that preserves the core judicial function: to do justice between parties after hearing all those whose rights are at stake.

Non‑Party Intra‑Court Appeals and the Primacy of Natural Justice over Rule 5, Chapter VIII, Allahabad High Court Rules — Commentary on Abhishek Gupta v. Dinesh Kumar (2025 INSC 1406)