Table of Contents
Introduction
The jurisdiction of the Supreme Court under Article 136 through Special Leave Petitions (SLPs) is one of the most powerful yet carefully controlled features of Indian constitutional law. While SLPs provide a wide gateway to approach the Supreme Court, the Court has placed firm procedural limits to prevent abuse of this extraordinary jurisdiction. One such limit is the bar on filing a second SLP after the first has been withdrawn without liberty, which directly raises the question: can a litigant get a “second bite at the cherry” before the Supreme Court by refiling an SLP?
This blog explains, in simple terms, what SLPs are, what “withdrawal without liberty” means, how the bar on successive SLPs has developed, how it relates to the doctrine of merger and High Court review, and why this rule exists from a policy perspective.
What is a Special Leave Petition (SLP) under Article 136?
Article 136 of the Indian Constitution empowers the Supreme Court to grant special leave to appeal against any judgement/decree/order/sentence in any case or matter passed or made by any court or tribunal in India (except military courts). This is not to be misconstrued as a right to appeal instead it creates a right to seek leave, with the SC having the discretion to grant or refuse special leave.
SLPs are often filed when a party alleges grave injustice, serious error of law, or a question of general public importance and has exhausted or does not have a regular statutory appeal and can be filed by any party aggrieved. In Kunhayammed vs. State of Kerala Article 136 has been observed to have 2 distinct stages. At the first stage, the Court decides whether to grant leave, only after leave is granted does the matter transform into a regular appeal on merits. The court in Pritam Singh v. the State observed that the power under this article is “to be exercised sparingly and only in exceptional cases” and the leave shall be only granted when it is shown that “exceptional and special circumstance exist” and that “substantial and grave injustice” has been done.
Difference between SLPs and Statutory Appeals and Appeals under Articles 132-134
Appeals under Articles 132–134 and various statutes establish a structured right of appeal for defined scenarios, such as substantial constitutional questions (Art. 132), high-value civil decrees (Art. 133), or serious criminal convictions (Art. 134). Once preconditions like High Court certification or valuation thresholds are met, the litigant is entitled to a full hearing on merits before the Supreme Court, reflecting a predictable appellate pathway.
In sharp contrast, Article 136 SLP jurisdiction is residuary and extraordinary, unbound by subject-matter or thresholds. It offers only a right to seek special leave, not a guaranteed appeal. The Court exercises wide discretion, granting it sparingly for grave injustice, legal errors, or public importance. This restraint prevents SLPs from becoming routine second appeals, preserving the Court’s power while serving as a safety valve when statutory routes fail.
Concept of Withdrawal of an SLP
Once an SLP is filed, the petitioner may decide not to press it and, instead seek permission to withdraw. On permission being granted by the Supreme Court, it usually passes a short order recording that the SLP is “dismissed as withdrawn”, thereby bringing that particular proceeding to a close without pronouncing upon the merits of the challenge. The SLP comes to an end in this way because of the choice of the petitioner itself seeking to withdraw, and not as a result of any judgment pronounced by the Supreme Court on the validity of the judgment under challenge.
Withdrawal, therefore, is distinct from dismissal on merits: in the former, the Court dismisses the challenge-even at the leave stage-whereas in the latter, the party itself gives up that attempt to invoke Article 136. This distinction assumes relevance in deciding whether such a party can come back with a fresh SLP against the same order.
“With Liberty” v. “Without Liberty”
When seeking withdrawal, a petitioner may either simply ask to withdraw the SLP, or may request to withdraw with liberty to pursue another specified remedy. If the Court records that the SLP is dismissed as withdrawn with liberty to file a review before the High Court, or with liberty to pursue some other proceeding, it is expressly keeping a future procedural route open.
Conversely, in the event that the order merely says that the SLP is “dismissed as withdrawn” without any reservation of liberty, then it would amount to an unconditional withdrawal. In such an event, the petitioner would be held to have voluntarily abandoned the SLP process, and the Court would not retain any liberty to reapproach it through a new SLP on the same issue. This is what is called “withdrawal without liberty.”
Maintainability of Successive SLPs when Withdrawn without Liberty
The central question at the heart of this doctrine is straightforward yet profound: After withdrawing an SLP against a particular judgment without any recorded liberty, can the same party later file another SLP against the same judgment? Successive SLPs, in this context, refer to multiple petitions filed sequentially by the same party, all challenging the identical underlying order, be it a High Court judgment or tribunal decision, and grounded in the same cause of action or set of facts.
The Supreme Court has consistently answered this in the negative, viewing such repeated filings as antithetical to the foundational principles of judicial administration. Over time, through a series of precedents, the Court has crystallised a clear procedural principle: once an SLP is withdrawn unconditionally , a second SLP challenging the same order is ordinarily not maintainable. This bar serves as a self-imposed restraint on the Court’s plenary power under Article 136, ensuring that the extraordinary jurisdiction remains just that and does not devolve into routine re-litigation. It directly flows from the distinction between withdrawal “with liberty” (which preserves future options) and “without liberty” (which signals voluntary abandonment), reinforcing the procedural discipline that underpins SLP practice.
The Supreme Court has taken the view that permitting such repeated SLPs would undermine finality, invite abuse of process, and allow litigants to treat Article 136 as an endless appellate tier rather than an exceptional remedy.
Analogy with Order XXIII CPC: Withdrawal of Suits
Order XXIII Rule 1(4) of the Code of Civil Procedure (CPC) provides that if a plaintiff withdraws a suit without the Court’s permission to file afresh, a fresh suit on the same cause of action is barred. The rationale is that litigants should not be allowed to repeatedly institute the same litigation once they have chosen to abandon it without seeking liberty to start again.
The Supreme Court has drawn an analogy between this rule on withdrawal of suits and the withdrawal of SLPs: just as a plaintiff cannot file a fresh suit after unconditional withdrawal, a petitioner should not ordinarily be permitted to file a fresh SLP after withdrawing the first one without liberty. This analogy supports the bar on successive SLPs as a matter of procedural fairness and finality.
Judicial Interpretation on the Bar Against Second SLPs
M/s. Upadhyay & Co. v. State of U.P. (1998)
In this foundational case, a toll contractor challenged a High Court order directing it to refund excess toll collections, first by filing an SLP and then withdrawing that SLP unconditionally, without asking for liberty to file again. Later, the contractor tried to challenge the same High Court order through fresh SLPs. The Supreme Court held such successive SLPs impermissible: once an SLP is withdrawn without liberty, the petitioner is treated as having abandoned that remedy and cannot file a second SLP against the same judgment. Extending Order XXIII Rule 1(4) CPC’s public policy bar to Article 136, ruling that unconditional withdrawal signals abandonment and said this rule prevents abuse of process and bench‑hunting, and therefore dismissed the fresh SLPs, letting the High Court’s refund directions stand. Thus the Upadhyay & Co doctrine laid down the seminal principle governing unconditional withdrawals of SLPs.
Satheesh V.K. v. Federal Bank Ltd. (2025)
The borrower, in this case, challenged a Kerala High Court order under Article 226 fixing a repayment schedule for his SARFAESI dues, first by filing an SLP, which he withdrew as “dismissed as withdrawn” when the Bench showed reservations, and then by filing fresh SLPs against both the original order and the later dismissal of his review petition. The Supreme Court held these subsequent appeals not maintainable as a second SLP against the same order is barred, as this would amount to a “second bite at the cherry” and encourage bench‑hunting. The Court also applied Order XLVII Rule 7 CPC, holding that no appeal lies against an order refusing review. There is no merger of the main judgment into the review rejection, so the proper target is the original order, not the review order. On this combined reasoning the Court dismissed the appeals, strengthening the modern articulation of finality and procedural discipline under Article 136.
Kunhayammed & Ors. v. State of Kerala (2000)
In this case , landowners had succeeded before the Forest Tribunal and the Kerala High Court, which held that their private forest land did not vest in the State under the Kerala Private Forests (Vesting and Assignment) Act. The State filed an SLP against the High Court’s judgment, which the Supreme Court dismissed at the threshold by a brief, non‑speaking order. Later, relying on a new statutory provision allowing review, the State sought review before the High Court wherein the landowners argued this was barred because the High Court’s judgment had “merged” into the Supreme Court’s dismissal order. The Supreme Court rejected that contention and laid down the key rule that dismissal of an SLP without granting leave, whether by a short speaking or non‑speaking order, does not result in merger of the High Court’s order into the Supreme Court’s order, and generally does not create res judicata. Merger occurs only when leave is granted and the Supreme Court decides the matter in its appellate jurisdiction, until then, the High Court judgment remains independently operative and open to review under its own statutory powers.
Khoday Distilleries Ltd. v. Mahadeshwara SSK Ltd. (2019)
In Khoday Distilleries, the petitioner’s earlier SLP against a Karnataka High Court decree had been dismissed by the Supreme Court through a brief, non‑speaking order, the petitioner then sought review before the High Court, which was rejected on the ground that the earlier SLP dismissal barred review. In the fresh SLP challenging that rejection, the Supreme Court held that this approach was incorrect it reaffirmed that dismissal of an SLP at the admission stage by a non‑speaking order does not lead to merger of the High Court’s judgment into the Supreme Court’s order and does not, by itself, create res judicata, so a review in the High Court can still be maintainable if otherwise within Order XLVII CPC.
Manisha Nimesh Mehta & Anr v. Board of Directors of ICICI Bank & Ors (Bombay HC, 2023)
The petitioners had filed a writ petition on the Original Side challenging actions of ICICI Bank. At the hearing, their counsel stated that they wished to withdraw the writ petition and instead pursue “appropriate proceedings” before the competent forum for the same grievances. The Division Bench therefore dismissed the writ petition as withdrawn with liberty as prayed, expressly allowing the petitioners to approach another proper forum for relief. This order is a clear illustration of withdrawal with liberty, where one proceeding is closed but another route is deliberately kept open by the court.
Finality, Abuse of Process and Bench Hunting
The bar on successive SLPs is rooted in the broader policy value of finality of litigation, often captured by the maxim, encapsulated in the Latin phrase interest reipublicae ut sit finis litium, that it is in the public interest that there should be an end to legal disputes. If litigants could repeatedly file SLPs after withdrawing earlier ones, they could effectively “test the waters” before one Bench and, sensing an unfavourable outcome, withdraw and refile to appear before another Bench, a practice often described as bench hunting.
Bench hunting undermines the institutional authority of the Court as a whole, burdens its docket, and creates perceptions of forum shopping and inconsistency. By insisting that unconditional withdrawal of an SLP closes the door to a fresh SLP on the same cause, the Supreme Court protects both its time and the integrity of judicial decision‑making.
Doctrine of Merger: When Does the High Court’s Judgment Merge?
The doctrine of merger explains what happens to a lower court’s order when a higher court passes a decision in appeal or revision. When a superior court hears a matter in its appellate jurisdiction, after notice and a full hearing, and then affirms, modifies or reverses the lower court’s decision, the lower court’s order is said to merge into the higher court’s judgment.
Once merger occurs, the operative order is that of the higher court, and the lower court order loses independent existence for most purposes. This has important consequences for remedies such as review, because after merger, it is the higher court’s judgment and not the original order that becomes the focus of challenge.
SLP Dismissal/Withdrawal and the High Court’s Power of Review
Critically, the Supreme Court has drawn a distinction between dismissal or withdrawal of an SLP at the leave stage and a full appellate decision after grant of leave. Where an SLP is dismissed in limine (with or without brief reasons) or withdrawn without leave being granted, the Court generally holds that the High Court’s judgment does not merge into the Supreme Court’s order.
Because no appellate jurisdiction is actually exercised in such dismissal/withdrawal orders, the High Court’s decision remains the substantive judgment, and the High Court’s power to entertain a review petition against its own order usually survives. Thus, while an unconditional withdrawal may bar a second SLP, it does not, in itself, extinguish the High Court’s jurisdiction to review its own judgment, since merger has not occurred.
Evaluation of Judicial Approach
The Supreme Court’s stance attempts to balance fair access to Article 136 with the need to prevent procedural abuse. On one hand, allowing review in the High Court after a non‑merger situation ensures that litigants are not completely shut out from correcting serious errors merely because an SLP was withdrawn or dismissed at threshold. On the other hand, barring a second SLP after unconditional withdrawal signals that the Supreme Court’s extraordinary jurisdiction cannot be used for repeated attempts before different Benches or as a substitute for structured appellate processes.
The rule may operate harshly in certain situations, particularly where the withdrawal of an SLP was the result of incorrect legal advice or a genuine misunderstanding of its consequences. In such cases, a litigant may be unfairly deprived of an opportunity to correct serious errors in the judgment. It can therefore be argued that limited exceptions, such as cases involving fraud, a clear violation of principles of natural justice, or a subsequent change in law, may be justified. However, any such relaxation must be applied with caution, as excessive flexibility could undermine the principle of finality and reopen the door to procedural abuse, which the Supreme Court seeks to avoid.
Conclusion
“Withdrawal without liberty” in the context of SLPs is far more than a procedural phrase. It marks the point at which a litigant voluntarily gives up the Article 136 route, triggering a strong judicial presumption against any second SLP on the same cause. By borrowing logic from Order XXIII CPC and tying it to the doctrine of merger and finality, the Supreme Court has created a doctrinal framework that simultaneously protects its docket, deters bench hunting, and preserves the High Court’s limited power to correct its own mistakes through review. For students and practitioners, understanding these interlocking ideas is essential to appreciating both the power and the discipline of the Supreme Court’s SLP jurisdiction
This article is authored by Ms. Shreya Joshi, a 2nd Year B.A. LL.B., student from Institute of Law, Nirma University, Ahmedabad.
All efforts are made to ensure the accuracy and correctness of the information published at Legally Flawless. However, Legally Flawless shall not be responsible for any errors caused due to oversight or otherwise. The users are advised to check the information themselves.
