# Adeel Ahmad Khan v. State of U.P. & Ors

- **Citation:** (2025) 3 ILRA 54
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-03-07
- **Case number:** Civil Misc. Review Application No. 33 of 2025
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/adeel-ahmad-khan-v-state-of-u-p-ors-53222
- **Pages:** 5

## Headnote

A. Civil Law-Civil Procedure Code,1908Order
XLVII
Rule
1(a)-The
review
application filed by the petitioner was
dismissed
on
the
ground
of
maintainability-The court held that since
the petitioner had already availed the
appellate remedy by filing a Special
Appeal and got it dismissed as withdrawn
without seeking liberty to file a review,
the
review
application
was
not
maintainable in law under Order XLVII
Rule 1(a) CPC-The court relied on the
Supreme court's rulings in Thungabhadra
Industries, Kunhayammed, and Khoday
Distilleries,
and
held
that
invoking
appellate jurisdiction bars a subsequent
review.(Para 1 to 13)

The review application is dismissed. (E-6)

List of Cases cited:

## Text

54 INDIAN LAW REPORTS ALLAHABAD SERIES
such omission is sufficient to vitiate the
impugned order. Further, there is no
substantive satisfaction on the part of the
District Magistrate on the point that after
being released on bail the detenue would
repeat
his
criminal
activities
prejudiciously affecting the maintenance of
public order. The District Magistrate
ignored the fact that earlier for a period of
about 9 years no criminal case was
registered against the detenue and in this
peculiar circumstance as well what was the
rational ground available to him to hold
that after getting bail the detenue was going
to act in any manner prejudiciously to the
maintenance of public order has not been
clarified in the impugned order. He also
missed to draw a distinction between the
areas of law & order and public order
because if the petitioner was likely to harm
the law & order only and it might not affect
the public order, no detention order could
be passed and no doubt on this point no
subjective satisfaction has been recorded at
the end of the detaining officer i.e. District
Magistrate, Ghaziabad. On the grounds
above-mentioned, the impugned order does
not fall into the category of 'speaking
order' as well.

37. Hence, in view of the above
analysis, we are of the considered view that
the detention order passed under the
provisions of Section 3 (2) of National
Security Act, 1980 is not sustainable under
law. Resultantly, the impugned detention
order
dated
4.3.2024
and
all
the
consequential orders are liable to be
quashed and the same are hereby quashed.

38. The present petition is allowed
and the petitioner/ detenue is ordered to be
set at liberty by the respondents forthwith
unless required in connection with any
other case.
----------
(2025) 3 ILRA 54
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.03.2025

BEFORE

THE HON'BLE SUBHASH VIDYARTHI J.

Civil Misc. Review Application No. 33 of 2025
In Civil Misc. Writ Petition No. 3191 of 2019

Adeel Ahmad Khan ...Petitioner
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Petitioner:
Sri Kushmondeya Shahi, Sri Tanuj Shahi

Counsel for the Opposite Parties:
Sri Arvind Prabodh Dubey, C.S.C.

A. Civil Law-Civil Procedure Code,1908Order
XLVII
Rule
1(a)-The
review
application filed by the petitioner was
dismissed
on
the
ground
of
maintainability-The court held that since
the petitioner had already availed the
appellate remedy by filing a Special
Appeal and got it dismissed as withdrawn
without seeking liberty to file a review,
the
review
application
was
not
maintainable in law under Order XLVII
Rule 1(a) CPC-The court relied on the
Supreme court's rulings in Thungabhadra
Industries, Kunhayammed, and Khoday
Distilleries,
and
held
that
invoking
appellate jurisdiction bars a subsequent
review.(Para 1 to 13)

The review application is dismissed. (E-6)

List of Cases cited:
1. Thungabhadra Industries Ltd. Vs Govt. of
A.P. (1964) AIR SC 1372,

2. Kunhayammed Vs St. of Ker. (2000) 6 SCC 359

3. Khoday Distilleries Ltd. Vs Sri Mahadeshwara
Sahakara Karkhane Ltd. (2019) 4 SCC 376,
3 All. Adeel Ahmad Khan Vs. State of U.P. & Ors.
55
(Delivered by Hon'ble Subhash Vidyarthi, J.)

C.M. Application No.NIL of 2025
(Application for Condonation of Delay in
filing the Review Application):

1. The review application has been
filed with some delay. The review
application
is
accompanied
with
an
application seeking condonation of delay
supported by an affidavit wherein filing of
a Special Appeal is said to be the cause of
delay in filing the review application.
Adopting
a
liberal
approach,
the
application for condonation of delay is
allowed and the delay in filing the review
application is condoned.

Order on Review Application:

2. The instant application has been
filed seeking review of judgment and order
dated
03.07.2024,
passed
in
Writ-A
No.3191 of 2019.

3. The review applicant had filed a
Special Appeal Defective No.629 of 2024
against the judgment and order dated
03.07.2024, passed by this court, which is
sought to be reviewed. The Special Appeal
was filed after expiry of the period of
limitation alongwith an application for
condonation of delay in filing the Special
Appeal. The application for condonation of
delay was allowed and the delay in filing the
Special Appeal was condoned by means of an
order dated 08.01.2025. After condonation of
delay in filing the Special Appeal, the learned
counsel for the appellant prayed that the
Special Appeal be dismissed as withdrawn
and the Special Appeal was accordingly
dismissed as withdrawn.

4. Neither the learned counsel for
the appellant had sought liberty to file an
application for review of the order nor had
the Court granted such a liberty to him
while dismissing his Special Appeal.

5. Order XLVII, Rule 1 (a) C.P.C.
provides that any person aggrieved by an
order from which an appeal is allowed but
from which no appeal was preferred, may
file an application seeking review of the
order. Although the provisions of Code of
Civil Procedure do not in terms apply to the
writ proceedings, the basic principles of
civil procedure are applicable to writ
proceedings also.

6. The learned counsel for the
review applicant has relied upon the
following judgments:-

 (i) Thakur Singh Vs. Dinanath
Sah: 1937 SCC Online Pat 73;

(ii)
Badrunnisha
Mohmmad
Sikadar Vs. Keshiben Jethalal Parmar &
anr.:2000 SCC Online Guj 535;

(iii) Kunhayammed and others
Vs. State of Kerala and another: (2000) 6
SCC 359;

 (iv) Kanoria Industries Limited
and ors. Vs. Union of India and others:
2017 SCC OnLine Del 7215; and

(v) Khoday Distilleries Limited
Vs. Sri Mahadeshwara Sahakara Sakkare
Karkhane Limited: (2019) 4 SCC 376.

7. In Thungabhadra Industries
Ltd. v. Govt. of A.P.: AIR 1964 SC 1372,
the Hon'ble Supreme Court held that: -

"Order 47 Rule 1(1) of the Civil
Procedure Code permits an application for
review being filed "from a decree or order
from which an appeal is allowed but from
which no appeal has been preferred".
...The crucial date for determining whether
or not the terms of Order 47. Rule 1(1) are
56 INDIAN LAW REPORTS ALLAHABAD SERIES
satisfied is the date when the application
for review is filed. If on that date no appeal
has been filed it is competent for the Court
hearing the petition for review to dispose of
the
application
on
the
merits
notwithstanding the pendency of the
appeal, subject only to this, that if before
the application for review is finally decided
the appeal itself has been disposed of, the
jurisdiction of the court hearing the review
petition would come to an end."

8. The judgment in the case of
Thungabhadra
Industries
Ltd.
was
followed in Kunhayammed v. State of
Kerala: (2000) 6 SCC 359, wherein the
Hon'ble Supreme Court considered the
maintainability of a review application after
filing of a Special Leave Petition in light of
the provision contained in Order XLVII,
Rule 1 (a) C.P.C. and drew the following
conclusions: -

 (i) Where an appeal or revision is
provided against an order passed by a
court, tribunal or any other authority
before superior forum and such superior
forum modifies, reverses or affirms the
decision put in issue before it, the decision
by the subordinate forum merges in the
decision by the superior forum and it is the
latter which subsists, remains operative
and is capable of enforcement in the eye of
law.

(ii) The jurisdiction conferred by
Article 136 of the Constitution is divisible
into two stages. The first stage is upto the
disposal of prayer for special leave to file
an appeal. The second stage commences if
and when the leave to appeal is granted
and the special leave petition is converted
into an appeal.

 (iii) The doctrine of merger is
not a doctrine of universal or unlimited
application. It will depend on the nature of
jurisdiction exercised by the superior forum
and the content or subject-matter of
challenge laid or capable of being laid
shall be determinative of the applicability
of merger. The superior jurisdiction should
be capable of reversing, modifying or
affirming the order put in issue before it.
Under Article 136 of the Constitution the
Supreme Court may reverse, modify or
affirm the judgment-decree or order
appealed against while exercising its
appellate
jurisdiction
and
not
while
exercising the discretionary jurisdiction
disposing of petition for special leave to
appeal. The doctrine of merger can
therefore be applied to the former and not
to the latter.

 (iv) An order refusing special
leave to appeal may be a non-speaking
order or a speaking one. In either case it
does not attract the doctrine of merger. An
order refusing special leave to appeal does
not stand substituted in place of the order
under challenge. All that it means is that
the Court was not inclined to exercise its
discretion so as to allow the appeal being
filed.

(v) If the order refusing leave to
appeal is a speaking order, i.e., gives
reasons for refusing the grant of leave, then
the order has two implications. Firstly, the
statement of law contained in the order is a
declaration of law by the Supreme Court
within the meaning of Article 141 of the
Constitution. Secondly, other than the
declaration of law, whatever is stated in the
order are the findings recorded by the
Supreme Court which would bind the
parties thereto and also the court, tribunal
or authority in any proceedings subsequent
thereto by way of judicial discipline, the
Supreme Court being the Apex Court of the
country. But, this does not amount to
saying that the order of the court, tribunal
or authority below has stood merged in the
3 All. Adeel Ahmad Khan Vs. State of U.P. & Ors.
57
order of the Supreme Court rejecting the
special leave petition or that the order of
the Supreme Court is the only order
binding as res judicata in subsequent
proceedings between the parties.

(vi) Once leave to appeal has
been granted and appellate jurisdiction of
Supreme Court has been invoked the order
passed in appeal would attract the doctrine
of merger; the order may be of reversal,
modification or merely affirmation.

(vi) On an appeal having been
preferred or a petition seeking leave to
appeal having been converted into an
appeal before the Supreme Court the
jurisdiction of High Court to entertain a
review petition is lost thereafter as
provided by sub-rule (1) of Rule 1 of
Order 47 CPC."
(Emphasis added)

9. In Khoday Distilleries Ltd. v.
Sri Mahadeshwara Sahakara Sakkare
Karkhane Ltd.: (2019) 4 SCC 376, the
Hon'ble Supreme Court again discussed the
point and after referring to various
precedents, held as follows: -

"26. From a cumulative reading
of the various judgments, we sum up the
legal position as under:

26.1. The conclusions rendered
by the three-Judge Bench of this Court in
Kunhayammed and summed up in para 44
are affirmed and reiterated.

26.2. We reiterate the conclusions
relevant for these cases as under :

"(iv) An order refusing special
leave to appeal may be a non-speaking
order or a speaking one. In either case it
does not attract the doctrine of merger. An
order refusing special leave to appeal does
not stand substituted in place of the order
under challenge. All that it means is that
the Court was not inclined to exercise its
discretion so as to allow the appeal being
filed.

(v) If the order refusing leave to
appeal is a speaking order i.e. gives
reasons for refusing the grant of leave, then
the order has two implications. Firstly, the
statement of law contained in the order is a
declaration of law by the Supreme Court
within the meaning of Article 141 of the
Constitution. Secondly, other than the
declaration of law, whatever is stated in the
order are the findings recorded by the
Supreme Court which would bind the
parties thereto and also the court, tribunal
or authority in any proceedings subsequent
thereto by way of judicial discipline, the
Supreme Court being the Apex Court of the
country. But, this does not amount to
saying that the order of the court, tribunal
or authority below has stood merged in the
order of the Supreme Court rejecting the
special leave petition or that the order of
the Supreme Court is the only order
binding as res judicata in subsequent
proceedings between the parties.

(vi) Once leave to appeal has
been granted and appellate jurisdiction of
the Supreme Court has been invoked the
order passed in appeal would attract the
doctrine of merger; the order may be of
reversal,
modification
or
merely
affirmation.

(vii) On an appeal having been
preferred or a petition seeking leave to
appeal having been converted into an
appeal before the Supreme Court the
jurisdiction of the High Court to entertain
a review petition is lost thereafter as
provided by sub-rule (1) of Order 47 Rule
1 CPC."
(Emphasis added)

10.
As
there
are
numerous
authoritative
pronouncements
of
the
Hon'ble Supreme Court on the point of
58 INDIAN LAW REPORTS ALLAHABAD SERIES
maintainability of a review application after
dismissal of an appeal, there is no need to
refer to the judgments of other High Courts
relied upon by the learned counsel for the
petitioner.

11. In the present case, the
petitioner had filed a Special Appeal, in
which no leave of the Court is required.
The petitioner had invoked the appellate
jurisdiction of this Court and the delay in
filing the Special Appeal had been
condoned by a Division Bench of this
Court, whereafter the appeal became
competent to be decided on its merits. It
was thereafter that the appellant got the
appeal dismissed as withdrawn, without
seeking leave to file a review application.
Thus, the petitioner had invoked the
appellate jurisdiction of the Division Bench
and thereafter he got the Special Appeal
dismissed.

12. The review application filed
after filing and dismissal of the Special
Appeal without granting leave to the
petitioner to file a review application,
cannot be entertained by this Court in view
of the principle incorporated in Order
XLVII Rule 1 (a) C.P.C. and in view of the
law laid down by the Hon'ble Supreme
Court in Thungabhadra Industries Ltd.,
Kunhayammed and Khoday Distilleries
Ltd. (Supra). Entertaining a review
application after the petitioner could not get
success in Special Appeal, would be
subversive to judicial discipline.

13. In view of the aforesaid
discussion, the review application is
dismissed.
----------
(2025) 3 ILRA 58
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.03.2025
BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Matters Under Article 227 No. 1133 of 2025

M/S Durga Travels & Ors. ...Petitioners
Versus
Debts Recovery Tribunal, Lko. & Ors.
 ...Respondents

Counsel for the Petitioners:
Ashish Chaturvedi, Manoj Kumar Dwivedi,
Vandana Singh

Counsel for the Respondents:
Abhishek Khare, Parul Sharma, Shivansh
Shukla

Manner in which the possession has been taken
violates the rights of the petitioners vested by
virtue of Article 300A of the Constitution of
India- was contrary to the mandate of Section
14 of the Act-Writ petition maintainabledirections issued.

W.P. allowed. (E-9)

List of Cases cited:

1. ICICI Bank Ltd. Vs Prakash Kaur & ors.;
(2007) 2 SCC 711

2. CELIR LLP Vs Bafna Motors (Mumbai) Pvt.
Ltd. & ors.; (2024) 2 SCC 1

3. PHR Invent Educational Society Vs UCO Bank
& ors.: 2024 SCC OnLine SC 528

4. United Bank of India Vs Satyawati Tondon:
(2010) 8 SCC 110.

5. NKGSB Co-operative Bank Ltd. Vs Subir
Chakravarty & ors.: (2022) 10 SCC 286

(Delivered by Hon'ble Pankaj Bhatia, J.)

1. Heard Sri Manoj Kumar Dwivedi
and Sri Ashish Chaturvedi, learned Counsel
for the petitioner as well as Sri Abhishek