The maintainability of a second Special Leave Petition (SLP) against the same order presents one of the most frequently encountered yet contentious procedural questions before the Supreme Court. The legal principles governing this issue have evolved through various precedents, creating a complex matrix of rules that require careful analysis to understand the current state of law.

This procedural complexity arises from the intersection of constitutional remedy access under Article 136 with statutory withdrawal provisions and public policy considerations aimed at ensuring litigation finality.

The seminal principle governing unconditional withdrawal of SLPs was established in M/S Upadhyay & Co. v. State of U.P. and Others. This decision firmly held that "it is not a permissible practice to challenge the same order over again after withdrawing the special leave petition without obtaining permission of the court for withdrawing it with liberty to move for special leave again subsequently".

The Upadhyay & Co doctrine draws its strength from Order XXIII Rule 1 of the Code of Civil Procedure (CPC), particularly sub-rule (4), which precludes filing fresh suits after abandonment or withdrawal without proper permission. This provision creates a statutory bar against repetitive litigation based on the same cause of action. The Supreme Court extended this principle to SLPs under Article 136, reasoning that allowing such practice would amount to "bench-hunting tactics" and undermine the finality of judicial proceedings.

The doctrine of merger, as crystallised in Kunhayammed and Others v. State of Kerala & Another, establishes crucial distinctions between different types of orders arising out of SLPs. It held that when leave is granted and appeal dismissed, merger applies. However, when leave is not granted, no merger occurs as there is legally no appeal. Consequently, petitioners whose SLPs are dismissed can file review petitions before the High Court against the original judgment. The Kunhayammed formulation also distinguishes between speaking and non-speaking orders. Speaking orders create binding law under Article 141 and bind parties through judicial discipline, yet do not result in merger as the original order remains independently challengeable.

Khoday Distilleries Limited v. Sri Mahadeshwara Sahakara Sakkare Karkhane Limited further refined this principle, affirming that non-speaking dismissal orders do not result in merger, thereby allowing review petitions to be filed before the original court. The three-judge bench emphasised that dismissal merely indicates the Court's unwillingness to exercise discretion, without substituting for the original order. The Khoday Distilleries decision also established that once leave to appeal is granted and appellate jurisdiction invoked, merger occurs regardless of whether the final order involves reversal, modification or affirmation. This creates a clear demarcation between the preliminary stage (leave to appeal) and the substantive stage (appellate jurisdiction).

S Narahari and Others v. SR Kumar and Others presented a nuanced scenario where an SLP was withdrawn with liberty to apply for review, but without liberty to approach the Supreme Court again. The coordinate bench was concerned about the "crack in reasoning" created by Khoday Distilleries, particularly regarding whether liberty to file review automatically places the matter back in the "escalation matrix".

The S Narahari bench grappled with complex logical implications of existing precedents. If the Khoday Distilleries principle means that non-speaking dismissal orders do not attract merger and are not considered law under Article 141, then such dismissals cannot be considered res judicata. This would theoretically leave the remedy of filing a second SLP available in every non-speaking dismissal case.

The logical tension identified in S Narahari reveals a fundamental question: if review jurisdiction survives SLP dismissal (per Khoday Distilleries), can fresh SLP challenges be arbitrarily barred when liberty to file review has been granted? This question touches the core of judicial hierarchy and the relationship between different remedial mechanisms.

The principle that no appeal lies from an order refusing review finds its foundation in Order XLVII Rule 7(1) of the CPC. This rule reflects a deliberate legislative choice to limit the cascade of appeals that could theoretically extend review proceedings indefinitely. Hence, when a review petition fails, the original decree or order remains intact without any alteration. The underlying logic recognises that review rejection does not create a new adjudicatory outcome but merely affirms the existing position. Since there is no merger of the original order in the review rejection order, any challenge must be directed against the original order, not the review rejection.

However, Rule 7(1) also creates an exception when review petitions are allowed and proceedings are placed for rehearing. In such cases, parties can immediately object to the review allowance order or appeal from the final decree/order passed after rehearing. This balanced approach prevents abuse while preserving legitimate appellate rights.

The Supreme Court in Satheesh VK v. The Federal Bank Ltd (2025) delivered a definitive ruling that firmly upholds the Upadhyay & Co principle while dismissing concerns about its continued validity. The Court categorically held that when an SLP is withdrawn unconditionally without express liberty to file fresh proceedings, no second SLP can be maintained against the same order.

The Court distinguished the S Narahari reference, clarifying that the larger bench concerns about "crack in reasoning" apply only to specific scenarios where liberty to file review is granted, but Supreme Court access is denied. The present case involved straightforward unconditional withdrawal, making the Upadhyay & Co doctrine directly applicable.

It held that the legal framework governing second SLP maintainability is fundamentally anchored in public policy considerations that transcend technical procedural rules. The maxim "interest reipublicae ut sit finis litium" - it is for the public good that there be an end to litigation - embodies a constitutional principle essential to the rule of law. The concern is that entertaining second SLPs without proper authorisation would be contrary to public policy and could amount to "sitting in appeal over the previous order of this Court which has attained finality."

The Supreme Court in Satheesh has shown particular concern about litigants who resort to technical manoeuvers to "buy time" while avoiding substantive compliance with judicial orders.

The current legal position creates distinct pathways depending on how the first SLP concludes, each governed by different principles and authorities. These categories represent careful judicial attempts to balance finality concerns with legitimate access to justice considerations.

Category I: Unconditional withdrawal - This scenario, governed by Upadhyay & Co principles, creates the strictest bar against subsequent challenges. When parties withdraw SLPs without seeking any liberty, they are deemed to have abandoned the constitutional remedy entirely.

Category II: Dismissal on merits by non-speaking order - This category, subject to merger doctrine exceptions from Kunhayammad/Khoday Distilleries, allows continued access to review jurisdiction in the original court. The distinction recognises that non-speaking dismissals do not represent substantive adjudication, but merely discretionary decline to exercise jurisdiction.

Category III: Withdrawal with review liberty but no Supreme Court access - This category, currently pending larger bench consideration in S Narahari, presents the most complex legal questions. The grant of review liberty suggests judicial recognition of potential merit, while the denial of Supreme Court access reflects concern about repeated constitutional challenges.

Category IV: Speaking order dismissals - Though not extensively discussed in recent cases, speaking order dismissals create binding legal precedent under Article 141 while potentially leaving some remedial avenues open. The precedential effect must be balanced against the non-merger principle established in Kunhayammad.

While Upadhyay & Co remains good law for unconditional withdrawals, the S Narahari reference highlights several unresolved questions that require comprehensive examination by a larger constitutional bench. The precise scope of the merger doctrine in cases where liberty to file review is granted but Supreme Court access is denied needs definitive clarification.

Further, the 90-day limitation for filing SLPs creates natural deadlines that intersect with withdrawal and review timelines. When parties withdraw SLPs and subsequently file review petitions, the interplay between these different limitation periods can create procedural complications.

The interaction between speaking and non-speaking dismissal orders under Article 141 presents fundamental questions about the precedential effect of procedural determinations versus substantive legal pronouncements. Courts need clear standards for determining when liberty should be granted and what conditions can be imposed to balance access to justice with finality concerns.

The circumstances that would justify deviation from established precedents, particularly in cases involving gross injustice or substantial constitutional questions, need comprehensive examination. The extraordinary nature of Article 136 power suggests that rigid procedural bars should not prevent correction of fundamental injustices, but the boundaries of this exception remain undefined.

Prafull Bhardwaj & Shubhi Singh are advocates practising before the Supreme Court of India.