VIPIN KUMARversusJAYDEEP & OTHERS

                 [2025] 1 S.C.R. 1659 : 2025 INSC 169

                               Vipin Kumar
                                    v.
                             Jaydeep & Others
                       (Civil Appeal No. 2225 of 2025)
                               21 January 2025
       [B.V. Nagarathna* and Satish Chandra Sharma, JJ.]


                            Issue for Consideration
       Whether there has been a miscarriage of justice as the second
       appeal was allowed ex parte without hearing the appellant and
       without framing any substantial questions of law.

                                   Headnotes†
       Civil Procedure Code, 1908 – s.100 – Second appeal (S.A.
       No.140/2016) was allowed ex parte vide order dated 01.07.2019
       without hearing the appellant-defendant no.3 and without
       formulating any substantial question of law – Review
       thereagainst was dismissed vide order dated 11.10.2019 – By
       way of the impugned order, High Court rejected the application
       seeking recall of the said order:
       Held: Appellant who was the successful defendant before the Trial
       Court as well as the first Appellate Court was not served in the
       second appeal by the High Court in S.A. No.140/2016 which was
       filed by the respondent no.1-plaintiff – There has been a miscarriage
       of justice as the appellant was not heard in second appeal and
       it was allowed without framing any substantial question of law at
       all – Therefore, there has been an error in passing of the judgment
       dated 01.07.2019 by the High Court in S.A. No.140/2016 – Further,
       the dismissal of the Special Leave Petition (Civil) No.41568/2019,
       filed against the judgment in the Second Appeal, as well as the
       Review Petition (Diary) No. 56394/2024 by this Court would not
       come in the way of the reconsideration of the second appeal by the
       High Court – In the peculiar facts of this case, the impugned order
       dated 05.01.2021, 11.10.2019 and judgment dated 01.07.2019 are
       set aside – S.A. No.140/2016 is restored on the file of the High
       Court. [Paras 27-30]

* Author
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                              Case Law Cited
     Hemavathi v. V. Hombegowda [2023] 12 SCR 477 : 2023 SCC
     Online SC 1206; Kunhayammed v. State of Kerala [2000] Supp.
     1 SCR 538 : AIR 2000 SC 2587 – relied on.
     A.V. Papayya Sastry v. Govt. of A.P. [2007] 3 SCR 603 : (2007)
     4 SCC 221 – referred to.

                                List of Acts
     Code of Civil Procedure, 1908; Right to Information Act, 2005.

                             List of Keywords
     Second appeal; Substantial question of laws not framed; Second
     appeal allowed ex parte; Miscarriage of justice; Dealership/
     distributorship; Rajiv Gandhi Rural LPG Gas Distributor; Domicile
     certificate; Second Review Petition; Fraud; Non-speaking or speaking
     order; Doctrine of merger; Order refusing special leave to appeal.

                            Case Arising From
     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2225 of 2025
     From the Judgment and Order dated 05.01.2021 of the High Court
     of Uttarakhand at Nainital in MCC No. 12090 of 2021

                         Appearances for Parties
     Devadatt Kamat, Sr. Adv., Ms. Devyani Gupta, Ms. Tanvi Anand,
     Revanta Solanki, Hruday Bajentri, Advs. for the Appellant.
     Gunnam Venkateswara Rao, Poli Naidu Vudamala, Mrs. Priya Puri,
     Sachin Dubey, Mrs. Pinki Aggarwal, Sharad Kumar Puri, Vibhav
     Srivastava, Ashutosh Kumar Sharma, Ajay Kumar Bahuguna, Advs.
     for the Respondents.

                Judgment / Order of the Supreme Court

                                 Judgment

     Nagarathna, J.

     Leave granted.
2.   Being aggrieved by the order dated 05.01.2021 passed by the
     High Court of Uttarakhand in MCC No.12090 of 2021 by which the
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                    Vipin Kumar v. Jaydeep & Others


     application seeking recall of the order dated 11.10.2019 (passed in
     Review Application No.708/2019 which was filed in S.A. No.140/2016
     which appeal was allowed by order dated 01.07.2019) was rejected,
     the appellant has preferred this appeal.
3.   Briefly stated the facts of the case are as under. For the sake of
     convenience, the parties are referred to in terms of their status and
     position before the Trial Court while narrating the facts. However, they
     have also been referred to as appellant (defendant no.3); respondent
     no.1 (plaintiff); respondent no.2 (defendant no.1); respondent no.3
     (Union of India); and, respondent no.4. (Tehsildar).
     The plaintiff is stated to be a permanent resident of Village Fakarhedi,
     Tejupur. Defendant No.1, through a daily newspaper Amar Ujala
     dated 21.01.2011 invited applications for the appointment of a
     Rajiv Gandhi Rural LPG distributor for Village Chudiyala, Tejupur,
     Tehsil Roorkee, District Haridwar, in the State of Uttarakhand.
     The application stated that the applicants who met the conditions
     mentioned in the advertisement could submit their applications by
     23.02.2011. The eligibility criteria for the appointment of a Rajiv
     Gandhi Rural LPG distributor were outlined in paragraph 4 of the
     advertisement. According to Condition No.4(Kha), the applicant
     must: 1. be a permanent resident of the notified Nyaya Panchayat of
     Chudiyala, Village Tejupur; 2. be an Indian citizen; 3. have completed
     at least 10th-grade education; 4. fulfill norms for multiple dealerships/
     distributorships; and 5. possess a 20x24-meter plot of land in their
     ownership, suitable for construction as per RGGLV Cylinder rules.
4.   The plaintiff contended that Defendant No.3, who is neither a resident
     of the notified village nor the Nyaya Panchayat, was appointed
     despite being a permanent resident of Village Sherpur, Shahpur,
     District Saharanpur, in the State of Uttar Pradesh. The plaintiff
     alleged that the appointment of Defendant No.3 was made on the
     basis of an illegal and fake domicile certificate. On 17.11.2011, the
     plaintiff raised objections to Defendant No.1 claiming that the domicile
     certificate submitted by Defendant No.3 was fraudulent. In support
     of his arguments, the plaintiff produced a document obtained from
     the Tehsildar of Roorkee confirming that no domicile certificate had
     been issued to Defendant No.3 by that office. It is alleged that despite
     this, Defendant No.1 ignored the objection and appointed Defendant
     No. 3 as the gas distributor.
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5.   The plaintiff further averred that the plaintiff had fulfilled all the
     eligibility criteria set by Defendant Nos.1 and 2 for the appointment
     of a gas distributor but was not considered for the position. The
     plaintiff submitted an application with evidence to Defendant No.1
     on 17.11.2011, requesting the cancellation of Defendant No. 3’s
     appointment.
6.   It was further averred that under the Right to Information Act, the
     plaintiff sought information about the domicile certificate of Defendant
     No.3. On 17.02.2012, the Nayab Tehsildar of Roorkee, acting as the
     Public Information Officer, confirmed that no such domicile certificate
     had been issued by Tehsil Roorkee. However, Defendant No.1 rejected
     the plaintiff’s application on 25.08.2011 on the grounds that the plaintiff
     did not reside in the notified area and that the plaintiff did not own
     land in the notified area. In this regard, the plaintiff stated that all
     necessary documentary evidence was submitted to Defendant No.1.
7.   The plaintiff initially filed Writ Petition No.714 of 2012 titled ‘Jaydeep v.
     State of Uttarakhand & Others’ before the High Court of Uttarakhand.
     The writ petition was disposed of on 24.04.2012 whereby the High
     Court directed the plaintiff to approach the appropriate forum for
     relief as the case involved questions of fact.
8.   Consequently, the plaintiff approached the Court of Civil Judge
     (Junior Division) Roorkee, Haridwar District by way of filing O.S.
     No.2 of 2013 seeking a decree of mandatory injunction directing
     Defendant Nos.1 and 2 to cancel the appointment of Defendant
     No.3 as the Rajiv Gandhi Rural LPG Gas Distributor and to appoint
     the plaintiff instead of Defendant No.3. The Trial Court, by its order
     dated 17.09.2013, proceeded ex parte against the defendants due
     to their non-appearance and dismissed the suit filed by the plaintiff
     through an order dated 28.07.2014. The Trial Court held that the
     competent officer of Defendant No.1 had taken note of the plaintiff’s
     allegations against Defendant No.3 and had cancelled the domicile
     certificate or identity card of Defendant No.3. Furthermore, the Trial
     Court observed that the High Court, by its order dated 24.04.2012
     in Writ Petition No.714 of 2012, granted liberty to the plaintiff to
     approach the appropriate forum regarding the relief sought.
9.   Being aggrieved by the dismissal of the suit, the plaintiff filed a first
     appeal before the First Additional District Judge, Roorkee, Haridwar
     in Civil Appeal No.28 of 2014. On 25.07.2016, the Additional District
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                    Vipin Kumar v. Jaydeep & Others


     Judge dismissed the appeal and affirmed the judgment and order
     dated 28.07.2014 passed by the Trial Court. The Additional District
     Judge opined, inter alia, that the relief of mandatory injunction could
     not be granted when an equally efficacious remedy could be obtained
     through other legal proceedings.
10. Being aggrieved, the plaintiff filed a second appeal before the High
    Court of Uttarakhand in Second Appeal No.140 of 2016. The High
    Court noted that despite notice being served to Defendant No.3, there
    was no appearance on his behalf. By order dated 01.07.2019, the
    High Court allowed the second appeal, setting aside the orders of
    the courts below and directing Defendant No.1 to undertake a fresh
    exercise for the grant of the dealership. The High Court observed
    that the records confirmed that Defendant No.3 was a permanent
    resident of Saharanpur District and was therefore not eligible as per
    the conditions stipulated in the advertisement.
11. Aggrieved by the fact that the High Court directed Defendant No.1
    to conduct a fresh exercise for granting the dealership instead of
    decreeing the suit in their favour, the plaintiff challenged the order
    dated 01.07.2019 in Second Appeal No.140 of 2016 before this
    Court in SLP (Civil) No.20616 of 2019. This Court dismissed the
    SLP (Civil) No.20616 of 2019 by order dated 02.09.2019, thereby
    affirming the High Court’s order dated 01.07.2019.
12. Be that as it may, Defendant No.3 contended that they were unaware
    of the order dated 01.07.2019 and only came to know about it later.
    Subsequently, Defendant No.3 filed a review petition in MCC No.708
    of 2019 stating that the second appeal had been decided without
    affording them an opportunity to be heard and that the High Court
    had failed to frame substantial questions of law. However, this review
    petition was dismissed by the High Court on 11.10.2019 holding
    that notice had been duly served to the father of Defendant No.3.
    Aggrieved by this dismissal, Defendant No.3 approached this Court
    in SLP (Civil) Nos.29017-18 of 2019. By order dated 09.12.2019,
    this Court dismissed SLP (Civil) Nos.29017-18 of 2019.
     Thereafter, Defendant No.3 filed an RTI application, which purportedly
     revealed that the plaintiff had submitted forged documents before
     the Trial Court. It was alleged that the letter dated 17.02.2012 from
     the Nayab Tehsildar of Roorkee, relied upon by the plaintiff, was,
     in fact, not issued by the Office of Tehsildar of Roorkee. Based on
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     new information, Defendant No.3 filed a review petition before the
     High Court in Second Appeal No.140 of 2016 in MCC No.12090 of
     2021. However, by order dated 05.01.2021, the High Court dismissed
     the review petition, holding that it was barred under Order 47 Rule
     9 of the Code of Civil Procedure (“Code” for the sake of brevity).
     Subsequently, Defendant No.3 filed a correction application No.12091
     of 2021, which the High Court allowed on 23.03.2021.
13. The relevant procedural facts of the case are that first respondent
    herein had filed O.S. No.2 of 2013 which was dismissed by an ex
    parte judgment and decree dated 28.07.2014. Being aggrieved by the
    dismissal of the suit, respondent No.1 herein had filed Civil Appeal
    No.28/2014 before the Court of Additional District Judge, Roorkee,
    District Haridwar. The said appeal also was dismissed by judgment
    dated 25.07.2016. Hence, the first respondent herein had preferred
    Second Appeal No.140/2016 before the High Court.
14. At this stage itself we may refer to the contentions of learned senior
    counsel for the appellant herein: Firstly, it was contended that the
    notice in the said second appeal was not served on the appellant
    herein by the High Court; that the said notice was served on the
    father of the appellant and as a result, there was no proper service
    of notice on the appellant herein who was the respondent(s) in the
    said second appeal. Secondly, even in the absence of the appellant
    herein the second appeal was allowed by judgment dated 01.07.2019
    without formulating any substantial question of law. It was submitted
    that Section 100 of the Code was not complied with and as a result
    the said judgment and decree of the High Court was wholly contrary
    to the basic tenets of Section 100 of the Code.
15. It was next submitted that being aggrieved by the said judgment
    passed in the Second Appeal dated 01.07.2019, Review/Recall
    Application No.708/2019 was filed seeking to produce additional
    documents in order to bring to the notice of the High Court that
    there was, in fact, a fraud committed by the first respondent herein
    in the said application and also for contending that as no substantial
    questions of law were framed in the Second Appeal, the judgment
    dated 01.07.2019 had to be reviewed. However, by order dated
    11.10.2019, the said Review Petition was also dismissed.
16. It is further submitted that as against the judgment in the Second
    Appeal, SLP (C) No.41568/2019 was preferred before this Court
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                    Vipin Kumar v. Jaydeep & Others


     which was however dismissed by order dated 09.12.2019. At this
     stage, itself we may also mention that the appellant herein thereafter
     filed Review Petition being R.P. Diary. No.56394/2024 which has
     also been dismissed by order dated 18.12.2024. It is necessary to
     also note that the said Review Petition was filed before this Court
     during the pendency of this appeal.
17. This appeal arises out of the order dated 05.01.2021 wherein an
    application seeking recall of the order passed in the Review Petition
    dated 11.10.2019 and consequently, the judgment dated 01.07.2019
    was sustained. This was on the premise that a second Review Petition
    is barred under Order XLVII Rule 9 of the Code.
18. We have heard learned senior counsel for the appellant and learned
    counsel for the first respondent and learned counsel for the second
    respondent as well as learned counsel for the fourth respondent-
    Tehsildar, Roorkee, Haridwar and perused the material on record.
19. Although several other contentions were raised by the learned senior
    counsel for the appellant herein, we find that this appeal could be
    considered and disposed of on the main contentions raised by the
    learned senior counsel appearing for the appellant which is, that
    no substantial question of law was raised in S.A. No.140/2016 and
    the same was allowed by judgment dated 01.07.2019 ex parte.
    Consequently, the dismissal of the suit as well as the appeal filed
    as against the said judgment was reversed in the absence of there
    being any substantial question of law raised in the second appeal
    and also the appellant herein not being heard in the said appeal.
20. It was contended by learned senior counsel for the appellant that
    subsequent to the dismissal of the Review Petition by the High Court
    and which was affirmed by the Supreme Court by the dismissal of
    the Special Leave petition certain facts came to the knowledge of the
    appellant herein and as a result, an application was filed for recall
    of the order passed in the Review Petition as well as the judgment
    passed in the Second Appeal. However, by the impugned order the
    said application has been dismissed.
21. Learned senior counsel submitted that having regard to the material
    that has now come to the knowledge of the appellant herein in respect
    of which the appellant seeks to bring to the notice of the High court
    the palpable fraud that has been played by the first respondent herein
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     in seeking a reversal of the judgment and decree of the Trial Court
     which was affirmed by the first appellate court and in the absence of
     there being any hearing granted to the opportunity of hearing granted
     to the appellant herein, justice would demand that the impugned
     order be set aside and consequently, the order passed by the High
     Court in the Review Petition may also be set aside or recalled and
     consequently, the judgment dated 01.07.2019 may also be recalled
     and the Second Appeal may be restored on the file of the High Court
     so as to give the parties a fresh opportunity of addressing arguments
     before the High Court.
22. Learned senior counsel for the appellant submitted that if the second
    appeal is restored on the file of the High Court then liberty may be
    given to the appellant herein to file an application under Order 41
    Rule 27 of the Code so as to bring additional evidence to the notice
    of the High Court by allowing this appeal.
23. Per contra, learned counsel for the respondent at the outset submitted
    that the impugned order would not call for any interference inasmuch
    as this Court has dismissed the Special Leave petition assailing not
    only the order passed in the second appeal dated 01.07.2019 but
    also the order passed in review Petition by the High Court dated
    11.10.2019. Further the belated review petition filed by the appellant
    before this court has also been dismissed.
24. In the circumstances, the High Court was justified in holding that there
    could not be a second review maintainable and thereby dismissing
    the application seeking recall of the order and judgment passed by
    the High court on 01.07.2019. He submitted that there has to be a
    finality to the lis between the parties and the appellant cannot again
    and again seek to reopen what has already been concluded at the
    hands of this Court. He therefore, submitted that there is no merit
    in this appeal and the same may be dismissed.
25. Learned counsel for the first respondent herein submitted that there
    was no fraud played by the first respondent herein and that he
    cannot be prejudiced or penalized if the High Court did not frame
    the substantial questions of law while allowing the appeal.
26. Learned counsel appearing for the second and fourth respondents
    submitted that an appropriate order may be made in the matter
    having regard to the facts of this Court.
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                     Vipin Kumar v. Jaydeep & Others


27. The detailed narration of the aforesaid facts would not call for a
    reiteration. What is striking in this matter is the fact that the appellant
    herein who was the successful defendant before the Trial Court as
    well as the first Appellate Court was not really served in the second
    appeal by the High Court in S.A. No.140/2016 which appeal was
    filed by the first respondent herein. It may be that the father of the
    appellant herein was served but that, in our view, is not service on
    the appellant. Consequently, the appellant did not appear in S.A.
    No.140/2016, Therefore, even in the absence of giving an opportunity
    of being heard to the appellant herein, the judgment dated 01.07.2019
    was passed in S.A. No.140/2016. More importantly, while allowing
    the said Second Appeal (S.A. No.140/2016) the least that the High
    Court ought to have done was to have framed substantial questions
    of law inasmuch as the appeal was allowed by judgment dated
    01.07.2019 without doing so. It is necessary to observe that one of
    the unique jurisdictions of the High Court is to consider a Second
    Appeal in terms of Section 100 of the Code which is an appeal which
    could be considered and entertained only on the basis of framing a
    substantial question of law in terms of the Section 100 of the Code.
    In the absence of framing any such substantial question of law in
    our view, the High Court could not have allowed the said appeal.
    In this regard, we place reliance on a recent judgment of this Court
    in the case of Hemavathi vs. V. Hombegowda, 2023 SCC Online
    SC 1206, the relevant portions of the said judgment read as under:
           “18. In this context, the law on the practice to be followed
           while considering a regular second appeal, has been
           re-iterated by this Court in C.A. No. 4935 of 2023 in
           Bhagyashree Anant Gaonkar vs. Narendra @ Nagesh
           Bharma Holkar and Anr. dated 07.08.2023, and the relevant
           extracts in this regard are exposited as under:
           a)   Roop Singh v. Ram Singh, (2000) 3 SCC 708, as relied
                upon in C.A. Sulaiman vs. State Bank of Travancore,
                Alwayee (2006) 6 SCC 392:
                      “7. It is to be reiterated that under Section 100
                      CPC jurisdiction of the High Court to entertain a
                      second appeal is confined only to such appeals
                      which involve a substantial question of law and
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                  it does not confer any jurisdiction on the High
                  Court to interfere with pure questions of fact
                  while exercising its jurisdiction under Section
                  100 CPC.”
        b)   State Bank of India vs. S.N. Goyal (2008) 8 SCC 9215:
             “15. It is a matter of concern that the scope of second
             appeals and as also the procedural aspects of second
             appeals are often ignored by the High Courts. Some
             of the oft-repeated errors are:
             (a) Admitting a second appeal when it does not give
             rise to a substantial question of law.
             (b) Admitting second appeals without formulating
             substantial question of law.
             (c) Admitting second appeals by formulating a
             standard or mechanical question such as “whether
             on the facts and circumstances the judgment of the
             first appellate court calls for interference” as the
             substantial question of law.
             (d) Failing to consider and formulate relevant and
             appropriate substantial question(s) of law involved
             in the second appeal.
             (e) Rejecting second appeals on the ground that
             the case does not involve any substantial question
             of law, when the case in fact involves substantial
             questions of law.
             (f) Reformulating the substantial question of law
             after the conclusion of the hearing, while preparing
             the judgment, thereby denying an opportunity to the
             parties to make submissions on the reformulated
             substantial question of law.
             (g) Deciding second appeals by reappreciating
             evidence and interfering with findings of fact, ignoring
             the questions of law.
             These lapses or technical errors lead to injustice and
             also give rise to avoidable further appeals to this Court
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                and remands by this Court, thereby prolonging the
                period of litigation. Care should be taken to ensure
                that the cases not involving substantial questions
                of law are not entertained, and at the same time
                ensure that cases involving substantial questions
                of law are not rejected as not involving substantial
                questions of law.”
           c)   Municipal Committee, Hoshiarpur v. Punjab SEB,
                (2010) 13 SCC 216:
                “16 A second appeal cannot be decided merely on
                equitable grounds as it lies only on a substantial
                question of law, which is something distinct from
                a substantial question of fact. The court cannot
                entertain a second appeal unless a substantial
                question of law is involved, as the second appeal
                does not lie on the ground of erroneous findings
                of fact based on an appreciation of the relevant
                evidence. The existence of a substantial question
                of law is a condition precedent for entertaining the
                second appeal; on failure to do so, the judgment
                cannot be maintained. The existence of a substantial
                question of law is a sine qua non for the exercise
                of jurisdiction under the provisions of Section 100
                CPC. It is the obligation on the court to further clear
                the intent of the legislature and not to frustrate it by
                ignoring the same.”
           d)   Umerkhan v. Bismillabi, (2011) 9 SCC 684:
                “11. In our view, the very jurisdiction of the High
                Court in hearing a second appeal is founded on
                the formulation of a substantial question of law. The
                judgment of the High Court is rendered patently illegal,
                if a second appeal is heard and judgment and decree
                appealed against is reversed without formulating a
                substantial question of law. The second appellate
                jurisdiction of the High Court under Section 100 is
                not akin to the appellate jurisdiction under Section
                96 of the Code; it is restricted to such substantial
                question or questions of law that may arise from
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               the judgment and decree appealed against. As a
               matter of law, a second appeal is entertainable
               by the High Court only upon its satisfaction that a
               substantial question of law is involved in the matter
               and its formulation thereof. Section 100 of the Code
               provides that the second appeal shall be heard on
               the question so formulated. It is, however, open to
               the High Court to reframe substantial question of
               law or frame substantial question of law afresh or
               hold that no substantial question of law is involved
               at the time of hearing the second appeal but reversal
               of the judgment and decree passed in appeal by
               a court subordinate to it in exercise of jurisdiction
               under Section 100 of the Code is impermissible
               without formulating substantial question of law and
               a decision on such question.”
          e)   Raghavendra Swamy Mutt v. Uttaradi Mutt, (2016)
               11 SCC 235:
               “18. In the instant case, the High Court has not
               yet admitted the matter. It is not in dispute that no
               substantial question of law has been formulated as it
               could not have been when the appeal has not been
               admitted. We say so, as appeal under Section 100
               CPC is required to be admitted only on substantial
               question/questions of law. It cannot be formal
               admission like an appeal under Section 96 CPC.
               That is the fundamental imperative. It is peremptory
               in character, and that makes the principle absolutely
               cardinal.”
28. Therefore, we find that in the instant case, there has been a
    miscarriage of justice inasmuch as the appellant herein firstly, was
    not heard in S.A. No.140/2016; Secondly, the said second appeal
    was allowed in the absence of framing any substantial question
    of law at all. Therefore, there has been an error in passing of the
    judgment dated 01.07.2019 by the High Court in S.A. No.140/2016.
    It is for that very reason that Review Application No.708/2018 was
    filed by the appellant herein. The said Review Application was also
    dismissed on 11.10.2019. It may be that the said orders have not
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     been interfered by this Court inasmuch as the respective Special
     Leave Petition and Review Petition filed as against him have been
     dismissed. But the lis has not ended in this case inasmuch as the
     appellant herein, on the basis of certain material on record had sought
     to recall the said judgment/order dated 11.10.2019 passed in Review
     Application No.708/2019 as well as the judgment dated 01.07.2019
     passed in S.A. No.140/2016. In this regard, learned senior counsel
     for the appellant placed reliance on the judgment of this Court in
     the case of A.V. Papayya Sastry vs. Govt. of A.P., (2007) 4 SCC
     221, by contending that when there has been a fraud played by the
     first respondent herein, the same would have to be considered by
     the High Court by recalling the earlier orders passed by it and by
     rehearing the parties and rendering a judgment in accordance with
     law. The relevant observations from the aforesaid judgments are
     paraphrased as under:
           “Fraud may be defined as an act of deliberate deception
           with the design of securing some unfair or undeserved
           benefit by taking undue advantage of another. In fraud
           one gains at the loss of another. Even the most solemn
           proceedings stand vitiated if they are actuated by fraud.
           Fraud is thus an extrinsic collateral act which vitiates all
           judicial acts, whether in rem or in personam.
           A judgment, decree or order obtained by playing fraud on
           the court, tribunal or authority is a nullity and non-est in
           the eye of the law. Such a judgment, decree or order –
           by the first court or by the final court- has to be treated
           as nullity by every court, superior or inferior. It cannot be
           challenged in any court, at any time, in appeal, revision,
           writ or even in collateral proceedings.
           The matter could be looked at from a different angle as
           well. ... If this Court grants leave and thereafter decides
           to dismiss the appeal, such an order can be a judgment
           to which Article 141 of the Constitution would apply and
           the doctrine of merger also gets attracted. All orders
           passed by the courts/authorities below, therefore, merge
           in the judgment of this Court and after such judgment,
           it is not open to any party to the judgment to approach
           any court or authority to review, recall or reconsider the
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          order. … However, where a special leave petition is simply
          dismissed, the doctrine of merger would not apply.
          The above principle, however, is subject to exception of
          fraud. Once it is established that the order was obtained
          by a successful party by practicing or playing fraud, it
          is vitiated. Such order cannot be held legal, valid or in
          consonance with law. It is non-existent and non-est and
          cannot be allowed to stand. This is the fundamental
          principle of law. The principle of “finality of litigation”
          cannot be stretched to the extent of any absurdity that it
          can be utilized as an engine of oppression by dishonest
          and fraudulent litigants.”
29. Further having regard to the judgment of this Court in Kunhayammed v.
    State of Kerala, AIR 2000 SC 2587, an order refusing special leave
    to appeal may be a non-speaking or speaking order. 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 no inclined
    to exercise its discretion so as to allow an appeal being filed. In the
    circumstances, the dismissal of the Special Leave Petition (Civil)
    No.41568/2019 as well as the Review Petition (Diary) No. 56394/2024
    by this Court would not come in the way of the reconsideration of
    the second appeal by the High Court.
30. We do not wish to go into that aspect of the matter on merits but
    we find that we ought to give the appellant another opportunity
    of addressing his case before the High Court. We say so for the
    reason that fraud unravels everything and in the peculiar facts
    of this, the impugned order dated 05.01.2021, 11.10.2019 and
    judgment dated 01.07.2019 are liable to be set aside and are set
    aside. Consequently, S.A. No.140/2016 is restored on the file of
    the High Court.
31. Since the parties are represented by their respective counsel, they
    are directed to appear before the High Court on 18.02.2025 without
    expecting any separate notices from the said court. The High Court
    is requested to dispose of S.A. No.140/2016 by considering the
    respective contentions of the parties, the additional pleadings or
    applications and evidences that may be filed or let in by the parties
    and after framing the substantial questions of law.
[2025] 1 S.C.R.                                                     1673

                       Vipin Kumar v. Jaydeep & Others


     Liberty is reserved to both sides to place additional evidence before
     the High Court in accordance with law.
32. This appeal is allowed and disposed of in the aforesaid terms.
     Parties to bear their respective costs.

     Result of the case: Appeal allowed.



     †
         Headnotes prepared by: Divya Pandey