12

CHAPTER II
SPECIAL LEAVE: ADMISSION POLICY

2.1 Introduction

2.2. Supreme Court of India

2.3 History of special leave appeal

2.4 Admission policy adopted by Privy Council

2.5 Abolition of Privy Council

2.6 Admission policy adopted by Supreme Court

2.7 Implicit limitations

2.7.1 Exhaustion of alternate remedy

2.7.2 Locus Standi

2.7.3 Delay

2.7.4 Interlocutory orders

2.8 Statutory limitations

2.9 Procedure under Supreme Court Rules

 13

CHAPTER II

SPECIAL LEAVE: ADMISSION POLICY

2.1 Introduction

The power given under article 136 of Constitution is in the nature of special
residuary power exercisable outside the purview of ordinary law. The chapter is
concerned with indefinite but fundamental question that has received inadequate attention
in the literature on power of Supreme Court in special leave appeal under article 136.

2.2. Supreme Court of India

The Supreme Court is the highest court of the land established by Part V, Chapter
IV of the Constitution. The Court comprises the Chief Justice and not more than 25 other
judges appointed by the President of India1.

2.3 History of special leave appeal

History reveals that in the United Kingdom, King-in- Council was regarded as the
court of last resort when there existed any default or miscarriage of justice in the orders
of lower courts. The royal prerogative of the sovereign as fountain of justice is the very
basis of exercise of the jurisdiction by King-in-Council. Blackstone2 defined prerogative
as that special pre-eminence which the King hath over and above all other persons, and
out of the ordinary common law, in right of his regal dignity. It signifies, in its etymology
something that is required or demanded before, or in preference to, all others. The
prerogative was described in Reg. v. Bertrand3 as follows:

.the inherent prerogative right and on all proper occasions, the duty of the
Queen-in-Council to exercise an appellate jurisdiction with a view not only to
1
The original Constitution of 1950 envisaged a Court with Chief Justice and 7 puisne Judges-leaving it
to Parliament to increase the number. In the early years, all the judges sat together to hear cases. As the
work of the Court increased and arrears of cases began to cumulate, Parliament increased the number
of judges to 11 in 1956, 14 in 1960, 18 in 1978 and 26 in 1986. As the number has increased, they sit
in smaller Benches of two or three- coming together in larger Benches of 5 and more only when
required to do so or to settle a difference of opinion or controversy. www.supremecourtofindia.nic.in
accessed on 12-9-2009.
2
Commentaries Vol. 1, p. 239.
3
L. R. I. A. (P. C.) (1926) 520, 529.
 14

ensure, as far as may be, the due administration of justice in the individual case but
also to preserve the due course of procedure generally.

Thus, every subject had a right to petition the sovereign for justice if he failed to
get it from ordinary courts.

Earlier a petition to the King-in-Council was taken into consideration only as a

matter of grace. King-in-Council exercised the discretion to grant leave to appeal. Later
royal charters4 were enacted to set up courts and allowing appeals to King-in-Council.
This resulted in a privilege for the Kings subjects.5 These were designated appeals as of
right. But that did not exhaust the royal prerogative. Appeals could still be brought
before the King-in-Council with special permission. Such appeals came to be designated
appeals by special leave. The appeals lay outside the conditions of limitations, which
were prescribed for purposes of appeals as of right.6

The Privy Council exercised jurisdiction to entertain appeals from courts of

many countries in civil and criminal matters. The Star Chamber Act, 1640 abolished the
jurisdiction of Privy Council in cases arising in England and later vested it in the House
of Lords. Fryer v. Bernard7 held that appeals from overseas dominions could lie only to
the King- in- Council based on the principle that the King, as fountain of justice, had the
prerogative to hear appeals from any colonial court. When the overseas colonies grew in
the 17th centaury, judicial function of the Privy Council assumed great importance. The
Judicial Committee was established by the Judicial Committee Act, 1833.The Judicial
Committee Act, 1844 provided that the Queen may, by Order-in-Council, admit appeals
from courts of colonies or overseas territories. Special leave to appeal is granted by the
Judicial Committee under section 1 of the Judicial Committee Act, 1844.

2.4 Admission policy adopted by Privy Council

The King-in-Council specifically reserved the power to grant special leave to

appeal. An agenda of circumstances in which special leave to appeal would be granted

4
Charter Act of 1833.
5
Lord Chancellor Cave in Nadan v. The King, 1926 A.C. 482.
6
M.P. Jain, Outlines of Indian Legal History (5th edn 1999) p.317.
7
Ibid, See also Bentwich, Privy Council Practice, (1912) p.6.
 15

was necessary. The necessity for seeking special leave arises when court below does not
possess the power to grant leave in the particular matter or has for some other reason
refused to grant leave. Leave might have been refused, for example, where the amount in
dispute was below the appealable value8 or where the application for leave was not been
made within the prescribed time. Special leave may be sought to avoid taking recourse to
an intermediate court of appeal9 or if the appellant desires to avoid the local court of
appeal.10 Special leave to appeal will be denied if it was never the intention of the
Parliament to create a tribunal with the ordinary incident of appeal to the Crown.11The
same considerations seem to apply to a determination of a court exercising special
statuary jurisdiction from which it was never intended that there should be an appeal.12
The objection that no appeal lies may be taken even where special leave has been
granted,13 but when a petition for special leave discloses any doubt as to jurisdiction to
entertain the appeal, it is the general practice to give a final decision on the point before
granting leave.14

It may be assumed that in granting special leave the Privy Council will adhere to
the usual principle, i.e. where some important question of law or matter of public interest
is involved.15 And that it will adhere to its principle that it does not act as a normal court
of criminal appeal but intervenes only to vindicate the law where there has been a
miscarriage of justice by neglect of essential legal principles.16In civil cases the attitude
of Privy Council was flexible. Privy Council grants special leave to appeal in civil cases
when it involved a substantial question of law, or when the case was of some gravity
involving some matter of public interest or where the case was of some public importance

8
In such a case special leave to appeal may be sought not only on the ground of the amount in dispute
but also on the ground that the question involves some general right: Gungowa Kome Malupa v.
Erawa Kome Jogapa, (1870) 13 Moo 433 (P.C.).
9
Harrison v. Scott, (1846) 5 Moo 239 (P. C.)
10
This is rare, but see Re Narnett, (1844) 4 Moo 453 (P. C.)
11
Theberge v. Laudry, (1876) 2 Appeals 102 (P.C.).
12
Patterson v. Solomon, (1960) A.C. 579.
13
Ibid. at 589.
14
Dennis Hotels Pvt Ltd v. State of Victoria, (1962) A.C. 25, 58.
15
Prince v. Gagnon, (1882) 8 A. C 103;Clergue v. Murray, (1903) A.C.521; Raghunath Prasad
Singh v. Partabgash Deputy Commrs (1927) LR 54 I.A. 126, Jivangiri Guru Chamelgiri v. Gajnan
Narauan Patkar, (1926) 50 Bom, 573.
16
Dillet, In re (1887) 12A. C. 459; Arnold v. King Emperor, (1932) LR.59: I.A.233; Ras Behari
Lal v. King Emperor, (1934) 60 I.A. 354.
 16

or of a substantial character.17 The principle was expounded by Viscount Haldane in

Hull v. Mckenna as follows:

..We are not at all disposed to advise the Sovereign unless there is some
exceptional question, such as the magnitude of the question of law involved, or it
is a question of public interest in the Dominion to give leave to appeal18

Moti Chand v. Ganga Singh19 stressed the aspect of involvement of substantial

question of law of general interest. The general rules relating to special leave are flexible.
In Lala Beni Ram v. Kundan Lall20 leave was given, though the value of the land was
less than Rs, 1000, for the reason that an important question of law of general interest to
all landlords and tenants was involved.

Restrictive approach of Privy Council in criminal cases was specifically stated in

R v. Eduljee Byramjee21 and R v. Aloo Paroo.22 The King-in-Council had no power to
grant any leave in criminal matter. In Gangadhar Tilak v. Queen Empress,23though there
was a misdirection as to the meaning of section 124 A of Indian Penal Code, the Judicial
Committee were of opinion that no case had been made out consistently with the rules by
which their advice to Her Majesty had been hitherto guided in giving leave to appeal in
criminal cases. The clause in that Charter according to Privy Council, referred to civil
cases. Thus the Privy Council was reluctant to grant special leave in criminal matters on
the ground that the relevant charters the King-in-Council had not left with any residuary
prerogative to grant such leave. The Privy Council considered the question of special
leave to appeal from Sadar Nizamat Adalat at Calcutta in R v. Joykissen Mookerjee.24 In
this case the Privy Council refused to grant leave though admitted the existence of the
prerogative of the Crown.

17
Hull v. Mckenna, (1926) I.R. 402.
18
Ibid. at 403.
19
(1933) 29 I. A. 40.
20
(1928) L.R.26 I.A.58.
21
(1868) 5 Moo 296 (P.C.)
22
(1867) 5 Moo 198 (P.C.)
23
(1931) L.R 23 I. A.1.
24
(1862) 1 Moo 273 (P.C.)
 17

But after 1862 the Privy Council relaxed the stiff attitude to grant special leave in
25
criminal cases. In re Dillets it was stated that His Majesty interfered in with the
criminal proceedings only if there was disregard of forms of legal process or some
violation of the principle of natural justice, or grave and substantial injustice had been
done. In 1913 a Privy Council interfered in Vaithinatha Pillai v. The King Emporer,26
which was the first appeal from India. The appeal involved a situation when a man had
been condemned to death without any evidence. Again the matter was examined by the
Privy Council in Dal Sing v. The King Emperor27 and it was observed that Such
interference ought to take place where there has been a disregard of the proper form of
legal process or violation of principle in such a fashion as amounts to a denial of justice.28

Viscount Haldane further observed:

The exercise of the prerogative takes place only where it is shown that injustice
of a serious and substantial character has occurred. A mere mistake on the part of
the court below, as for example, in the admission of improper evidence, will not
suffice if it has not led to injustice of a grave character.29

In Ibrahim v. Rex30 the Privy Council reiterated the principle. The principle was
further explained in Arnold v. King Emperor31 and also in Mohammed Nawaz v.
Emperor.32 The Judicial Committee33 interfered sparingly when there was miscarriage of
justice. Privy Council was reluctant to interfere to keep the flow of criminal cases within
limits.

2.5 Abolition of Privy Council

The service rendered by the Privy Council to the cause of justice in India was
really great. The influence of judgments of Privy Council still continues and the Supreme

25
(1898) 12 A. C 459; also R v. Bertrand, L.R.I.A (P.C.) 529 .
26
(1930) 40 I. A 193.
27
(1932) 44 I. A. 137.
28
Ibid at 138.
29
Ibid at 140.
30
(1914) A.C. 599.
31
(1914) A.C.644.
32
68.I.A.125.
33
Judicial Committee Act, 1833.
 18

Court34 held that they were entitled to great respect. The decisions are of persuasive value
as regards the Supreme Court.

The Government of India Act, 1935 substituted the Privy Council and made
provisions to establish a Federal Court in India. Federal Court had original, advisory and
appellate jurisdictions. It had a very limited appellate jurisdiction from High Courts. The
appeal lay to the Federal Court only if the High Court certified that the case involved a
substantial question of law as to the interpretation of the Government of India Act, 1935.
If the High Court refused certificate, the Federal Court was helpless as it had no
jurisdiction to grant special leave to appeal.35 The Privy Council refused to grant special
leave in Hari Ram Singh v. The Emperor.36 Under clause (b) of section 208 of The
Government of India Act, 1935, appeal from Federal Court lay to Privy Council if it
raised really a substantial issue.

On January 26, 1950 the Supreme Court was established. There is a historic
continuity between Federal Court and Supreme Court.37 In anticipation of the new
Constitution the Parliament passed the Abolition of Privy Council Jurisdiction Act on
24th September 194938. It abolished the jurisdiction of Privy Council in respect of appeals
from India and also provided for pending appeals so that there might be minimum trouble
and inconvenience at the date of the commencement of the Constitution. The Act
abolished the jurisdiction of His Majesty-in-Council to entertain appeals and petitions
from any judgment, decree or order of any court or tribunal in India.39 The Privy Council
disposed of the last appeal from India on December 15, 1949.40 On January 26, 1950 the
Federal Court gave way to the Supreme Court under the Constitution. The service
rendered by the Privy Council to the cause of justice in India was indeed great. The
influence of Privy Council still continues.

34
C.C.Revenue Authority v. M.S.Mills, AIR1950 SC 218.
35
Lakhpot Ram v. Bchare Lal Missir, (1939) F.L.J.121, P.C., Pashupati Bharati v. Secretary of State
for India in Council, (1939) F.L.J. 13. P.C.
36
(1940) 3 F.L.J. 11 P.C.
37
Under Article 135, the Supreme Court has also been vested with jurisdiction and powers as were
exercisable by the Federal Court with respect to any matter to which articles 133 and 134 did not
apply.
38
IX Constitutional Assembly Debates 1614-1617.
39
The Abolition of Privy Council Jurisdiction Act, 1949.
40
N.S. Krishnaswami Ayyangar v. PerumalGoundan, AIR 1950 P.C. 105.
 19

The Supreme Court is conferred with very broad jurisdiction. According to Pandit
Thakur Das Bhargava41:

This article 112 (article 136 in the constitution) is exceptionally wide. The
words are in any cause or matter and I understand this departure from the
established law of the land also. Now perhaps in all the provinces the revenue
jurisdiction is quite exclusive and the Privy Council had got nothing to do with
such jurisdiction, but our Supreme Court shall be fully omnipotent as far as a
human court could be and it shall have all kinds of cases and I think that so far
as the other courts of other jurisdictions are concerned, for instance, if there is
an International Court sitting in India, if there is a Court Martial, if there is an
Industrial tribunal, if there is an Income-tax tribunal, if there is a railway
tribunal ,all kinds of cases will come before the Supreme Court and it becomes,
therefore necessary as to what ought to be the range of the jurisdiction.

According to Alladi Krishnaswami Ayyar, the framers took care not to import
into article 112 any limitation on the exercise of criminal jurisdiction. During the
discussion he asserted the plentitude of the jurisdiction under article 112 and stated that
the Court would be able to develop its own jurisprudence according to its own light,
suited to the conditions of the country.42

Thus the incorporation of article 136 in the Constitution of India dates back to the
British colonialism. Though one can trace the rudiments of royal prerogative in the
jurisdiction, there is still something which makes it unique.

2.6 Admission policy adopted by Supreme Court

The extraordinary jurisdiction of the Supreme Court under article 136 empowers
the Court to grant special leave to appeal from any judgment, decree, determination,
sentence or order in any cause or matter, passed or made by any court or tribunal in the
territory of India. Except for sub clause (2) of the article 136, no restrictions are imposed
on the exercise of its jurisdiction. Article 136 reads as follows:

41
Constituent Assembly Debates, IX, p. 638.
42
Ibid, p. 639.
 20

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its
discretion, grant special leave to appeal from any judgment, decree, determination,
sentence or order in any cause or matter passed or made by any court or tribunal in the
territory of India

(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or
order passed or made by any court or tribunal constituted by or under any law relation to
the Armed Forces.

The provision confers very wide and plenary powers on the Court. Since the
power is purely constitutional, it cannot be diluted or curtailed by legislation. Moreover,
the non obstante clause indicates that the intention of the framers was to disregard
limitations contained in the previous articles on the power of the Court to entertain
appeals. The power may be extensively used even statute is silent or alternative remedy is
provided or the order of the tribunal is made final by the statute. From the very inception,
the Court availed the opportunity to define the scope of its jurisdiction. Though the power
is illimitable, the court has tried to exercise the same according to certain principles.

The extraordinary jurisdiction is ordinarily not supposed to be guided by any

principle laid down by Privy Council or Federal Court. The Court thought it fit to impose
self-limitations prescribing criteria for regulating inflow of appeals. The task of the judge
is really tough when aspiring incomers are too large in number. The court declared a
policy of non-intervention in cases where exercise of discretion and findings of fact arise.
However extraordinary jurisdiction springs up when extraordinary circumstances arise.
Though the Court has adopted guidelines the critical survey of the case law under the
jurisdiction testifies that the policy has been honored in breach than by observance.

Even prior to the establishment of the Supreme Court, the Federal Court had
opportunity to discuss the principles laid down by the Privy Council while granting
special leave to appeal.43 The Federal Court opined that though they were not bound by
principles laid down by the Privy Council, to remove all misapprehensions on the subject,
it would be useful to refer to some of the cases in which those principles had been

43
Kapildeo Singh v. King Emperor, AIR 1950 FC 80.
 21

enunciated and explained. In Dal Singh v. The Emperor44 the exercise of prerogative took
place only where it was shown that injustice of a serious and substantial character had
occurred. Interference was not favoured even if a different view of evidence was
possible.

Under the Supreme Court Rules a formal petition is necessary for granting special
leave.45But the court even treated an oral prayer as petition for special leave.46 The Court
at the stage of granting leave hears the matter ex parte for the limited purpose of granting
special leave.47 The liberal attitude of the Court as observed in Baldota Bros v. Libre
Mining Works48 shows that appellants gets an easy entry making it an ordinary appellate
court. In order to check the frequent inflow of appeals the Court has to stick on to strict
guidelines as done by the Privy Council.

The prima facie test is wholly inconsistent with the spirit of the extraordinary
jurisdiction. If the court thinks that there is a prima facie arguable case opportunity
should be given to the respondents to oppose the case before admission. Whether the case
is a fit one for intervention arises only at the stage of final hearing of appeal. If not so
satisfied, the appeal is liable to be dismissed without further investigation into the merits
of case.49 The Court generally does not reject an appeal on the score that leave was
granted erroneously. This goes to show that if an appellant is fortunate enough to pass the
liberal test of prima facie arguable point at the admission stage, he is assured of a hearing
of his appeal, though theoretically the court retains a power to re-examine the aspect of
extraordinary features of the appeal. Thus the matter boils down to the ability of the
counsel to designate a ground as worthy of consideration at the final hearing stage.

44
AIR 1917 PC 25.
45
The procedure for appeal by special leave has been laid down in Order XVI of the Supreme Court
Rules, 1966. Rule 4 is to the effect that a petition shall state succinctly and clearly all such facts as
may be necessary to enable the Court to determine whether special leave to appeal ought to be granted
and shall be signed by the advocates on record for the petitioner unless the petitioner appeals in
person
46
In Express News Paper Ltd v. Madras, AIR. 1981 SC 968. Oral prayer for special leave was refused
as the case involved no substantial question of law. In case of oral prayer, leave may be granted subject
to the direction that the formal petition be filed within the time mentioned in the order. See Bijli
Cotton Mills (P) Ltd. v. Presiding Officer, AIR 1972 SC 1903. Here the certificate granted by the High
Court was found defective and court granted leave on oral application.
47
Baldota Bros. v. Libre Mining Works, AIR. 1961 SC 100, 103.
48
Ibid.
49
Management of D. T. C. v. Majalay, AIR 1978 SC 764, 785.
 22

Broad principles concerning grant of special leave were laid down by the Court in
Paritam Singh v. Punjab.50 While delivering the majority judgment Justice Fazl Ali,
opined that the Court should grant special leave to appeal only in those cases where
special circumstances existed51. While conferring such jurisdiction the framers thought it
would ensure fair administration of justice in the country.52 The Court has observed that
the article had been engrafted by the founding fathers of the Constitution for the purpose
of avoiding mischief of injustice on the wrong assumption of law, but only when the
dispute needs to be settled by the Apex Court, so as to avoid injustice and infraction of
law.53

The Supreme Court described the sweeping nature of the jurisdiction as discretion
subjected only to the wisdom and good sense of justice of the judges and also that no
right of appeal is conferred upon the parties.54 The discretionary power vested in the
Court under article 136 cannot be construed as conferring a right of appeal where none
exists.55 Moreover, the court has special residuary power to entertain appeal against any
order of any court, and the power confers judicial superintendence over all courts and
tribunals including subordinate courts.56 The Court, emphasized that the jurisdiction is
extraordinary in its amplitude, its limits, when it chases injustice, is the sky itself.57
However, such power is to be used very sparingly with caution and circumspection and
only in rarest of rare cases.58 But the Court on many occasions could not observe the
principles laid down by it. The orders of Cauvery Water Dispute Tribunal are often
entertained by the Court though there is specific bar on jurisdiction of courts as provided
50
AIR 1950 SC 169.
51
Ibid at 171, It was observered thus: ..on careful examinations of Article 136 along with the
preceding article, it seems clear that the wide discretionary power with which this court is invested
under it is to be exercised sparingly and in exceptional cases only, and as far as possible a more or less
uniform standard should be adopted in granting special leave in the wide range of matters which can
come up before it under this article. By virtue of this article, we can grant special leave in civil cases,
in criminal cases, in income tax cases, in cases which come up before different kinds of tribunals and
in a variety of other cases. The only uniform standard, which in our opinion can be laid down in the
circumstances, is that the court should grant special leave to appeal only in those cases where special
circumstances are shown to exist
52
Engineering Mazdooor Sabha v Hind Cycles Ltd, AIR 1963 SC 874.
53
Bharat Cooking Coal Co v Karan Chand Thapar, (2003) 1 SCC 6.
54
Kunhayammed v. Kerala, AIR 2000 SC 2587.
55
L.M.Nayakhara v. K.E.Thapar, AIR 1993 SC 2596.
56
Delhi Judicial Service Association v. Gujarat, AIR 1991 SC 2176.
57
Esher Singh v Andra Pradesh, JT 2004 (3) SC 391.
58
Pawan Kumar v. Haryana, AIR 2003 SC 2987.
 23

in article 262 of the Constitution.59 The Supreme Court in Mathai @ Joby v. George;60
observed thus:

We are prima facie of the opinion that such special leave petitions
could not be entertained by the court. Nowadays all kinds of special petitions
are being filed in this court against every kind of order. For instance, if in a
suit the trial court allows an amendment application the matter is often
contested right up to this court, similarly if the delay in filing an application
or appeal is condoned by the trial court or appellate court, the matter is
fought up to this court. Consequently the arrears in this court have been
converted practically into an ordinary appellate court, which in our opinion,
was never the intention of article 136 of the constitution. In our opinion, now
the time has come when it should be decided by a constitution bench of this
court whether in what kind of cases special leave petition should be
entertained under article 136 of the constitution.

Thus the Court opined that broad guidelines need to be laid down by a
Constitution Bench so that it will not be flooded with frivolous special leave petitions and
the arrears in the Court will not keep mounting. Article 136, like article 226 is a
discretionary remedy, and the court is not bound to interfere even if an error of law or
fact in the impugned order occurs.

In Suriyakala v. A. Mohandoss61 it was observed that article 136 was not a regular
forum of appeal at all. The words in its discretion in article 136 clearly indicates that
the article does not confer a right of appeal upon any party, but merely vests a discretion
in the Court to interfere in exceptional cases as suggested in M/s. Bengal Chemical and
Pharmaceutical Works Ltd. v. Their Employees.62 In Municipal Board, Pratabgarh v.
Mahendra Singh Chowla63 and in Chandra Singh v. Rajasthan64 it was observed that it

59
www.the hindu .com. visited on 20-10-2010.
60
(2010) 4 SCC 358.
61
(2007) 9 SCC 196.
62
AIR 1959 SC 635.
63
(1982) 3 SCC 331.
64
AIR 2003 SC 2889.
 24

was not bound to set aside an order even if it was not in conformity with law, since the
power under article 136 was discretionary.

In Jamshed Hormusji Wadia v. Board of Trustees65 it was observed that the

discretionary power was plenary in the sense that there were no words in article136
qualifying that power. The power is permitted to be invoked not in a routine fashion but
in very exceptional circumstances as when a question of law of general public importance
arises or a decision sought to be impugned shocks the conscience. The overriding and
exceptional power is to be exercised sparingly and only in furtherance of the cause of
justice in exceptional cases when special circumstance exist. The Court should not
constitute itself into a tribunal or court settling disputes and reduce itself to a mere court
of error.

There are two stages involved in the exercise of power. At the first instance
seeking to appeal and afterwards when the appeal is heard. At the first stage the Court
disposes the prayer for leave to appeal. The Court considers whether the petitioner has to
be granted such leave or not. The Court does not exercise its appellate jurisdiction. It
merely exercises its discretionary jurisdiction to grant or not to grant leave to appeal. If
the petition seeking leave to appeal is granted, then the appellate jurisdiction gets invoked
and the Court hears the appeal on merits.66 The leave granted may be revoked if the
respondent brings to the notice of the Court facts which would justify such revocation in
the interest of justice.67

In Bihar Legal Support Society v. Chief Justice of India68 it was reiterated that it
was not a regular court of appeal. It was held that it could interfere when law was not
correctly enunciated by lower court or tribunal, and it was necessary to pronounce the
correct law on the subject. It was observed that it would correct grave miscarriage of
justice, but such cases would be exceptional by the very nature. It was pointed out that if
it granted special leave in every case it would be converting the apex court into a regular
court of appeal. Moreover, by so doing, the apex court would soon be reduced to a

65
AIR 2004 SC 1815.
66
M.P. Jain, Principles of Administrative Law (6th edn., 2007) Vol. 2, p.1800.
67
Penn Balakrishna M. Ariya v. Ramaswami Iyer, AIR 1965 SC 195.
68
(1986) 4 SCC 767.
 25

position where it would find itself unable to remedy any injustice at all on account of the
tremendous, backlog of cases, which was bound to accumulate.69 The Court need only to
lay down the legal principles correctly and leave it to the lower forums to apply them.
The Court need not correct every error which comes to its notice. Errors may be
classified into as serious ones and miscarriage of justice. The point is that serious errors
or grave miscarriage of justice need be rectified. The issue to be grappled with is whether
court should interfere when such results happen from a proper application of correct legal
principle.

The Court should not do injustice nor allow injustice to be perpetuated just for the
sake of upholding technicalities.70 Very often there are cases brought to the notice of the
Court in which the conscience of the Court pricks or its heart bleeds for imparting justice
or undoing injustice, since care and attention of the tribunal below was not received.71
The Court seldom furnishes reasons when it refuses special leave.72 If it hears the
respondent before special leave is granted a reasoned order follows even if leave is
refused. In cases which do not involve issues meriting urgent disposal, the Court often
drags the other party to Court at the time of admission.73 This results in harassment to
parties. It may resort to such a practice only in cases which involve issues requiring
urgent disposal.

The practice of limiting leave to certain grounds or issues raised in a case may be
traced to Privy Council.74 In Nirmal v. R.75 the appellate court quashed the order and a
retrial was ordered. Leave was granted against that part of the judgment, which ordered
new trial. The judicial attempt was to confer the jurisdiction some respectability and
meaning without wasting time over irrelevant matters. But it is interesting to note that the

69
Ibid. at 769.
70
Jamshed Hormusji Wadia v. Board of Trustees, (2004) 3 SCC 214.
71
Ibid.. at 217.
72
Associated Tubewells Ltd v. Gujamal, AIR 1957 SC 742. Reasoned decisions are necessary when the
Supreme Court is exercising the power to review under Art.137 i.e. right to review. Every order should
be accompanied with the reasons so that other decision-making authority can ensure proper
consideration.
73
Binoy Kumar Chatterjee v. Jugantar Ltd., AIR 1983 865, Harihar Polyfibres v. Regional Director,
AIR 1984 SC 1680.
74
Halsburys Laws of England (IV edn.) Vol. 10, p.364 where, it has been observed: Special leave may
be confined to one or more specific issues of those raised in the proceedings below.
75
(1972) Crim.L.R.226.
 26

court gets only a partial view of the case. Much useful information that might enable it to
have a proper appreciation of the issues may be withheld. T

The practice was adopted by the Supreme Court for the first time in Vishwamitra
Press v. Workers,76 where leave was limited to three questions. In Strawboard
Manufacturing Co. v. Gutta Mill Workers Union77 leave was limited to one question.78
Here two difficulties arise. First, the judges who granted leave ex parte might have
thought certain points to be important enough to merit the attention of the court. It is
quite likely that judges, who later hear the appeal, may not find such points to be worthy
of consideration. It is also quite likely that some other points, not so considered worthy
by leave-granting judges, may impress other judges. Secondly, it is doubtful whether
judges, who hear the appeal, are bound by any such restriction. It seems to be the law that
the whole case is at large before the court and the practice of limiting the issues can
thrive only on a sense of comity or propriety among judges.

The Supreme Court Rules lay down that non-disclosure of the fact of filing a
similar petition earlier and its dismissal entails revocation of leave. The leave may be
revoked for non-compliance with Supreme Court Rules79and suppression of material
facts.80 It was held that the omission to mention in the application the fact that an
application for certificate under articles 132 and 133 was pending before the High Court
could not be considered to be a deliberate suppression of fact so as to warrant revocation
of the leave.

76
AIR 1953 SC 41.
77
AIR 1953 SC95.
78
Workmen v. Metro Theatre Ltd, AIR 1981 SC (1685) (leave limited to three points); Hindustan Tin
Works v. Employees, AIR 1979 SC 75 (court rejected petition with regard to the relief of reinstatement
but limited to the grant of full back-wages); Workmen v. Voltas Ltd., AIR 1974 SC 2289 (limited to
three questions); Workmen v. Delhi Electric Supply Undertaking, AIR 1973 SC 365(leave limited to
two issues); Daily Pratap v. Katibs, AIR 1972 SC 1872; Panitola Tea Estate v. Workmen; AIR 1971
SC 2171 (leave limited to the question whether order of compensation be substituted for order of
reinstatement passed by the tribunal); Bhagat Raja v. Union of India, AIR 1967 SC 1606 ( whether
speaking order to be made in disposing a revision petition); Associated Electrical Industries (India)
(p) Ltd. v. Workmen, AIR 1967 SC 284; (leave limited to the question of jurisdiction of the tribunal);
Air Lines Hotel (P) Ltd. v. Workmen, AIR 1962 SC 676 (leave limited to three grounds) See also
Saiyid Alimuddin v. Saeed Ahmad, AIR 1955 SC 761 (whether the order of the tribunal declaring the
respondent to be duly elected was illegal.)
79
Management of H.G. Bank v. Bhagwan Dass, AIR 1965 SC 1142.
80
P.D. Sharma v. State Bank of India, AIR 1968 SC 985, 988.
 27

In Chandi Prasad v. Bihar81 at the final stage of hearing the leave was revoked, as
there was no special circumstance justifying the exercise of special leave jurisdiction.
Justice S.K. Das opined that if leave was granted without hearing the respondents or full
materials in the record were not available nor placed before the court it was open to
question the propriety of the leave granted even at the time of the hearing of the appeal.
The Court in many of its earlier decisions uniformly held that there must be exceptional
circumstances to justify the exercise of the discretion under article 136. The appellant in
Chandi Prasad was seeking to bypass High Court orders. The appellant was really trying
to go behind the orders of the High Court by preferring appeals directly from the orders
of the Board of Revenue. The Court was of view that special leave was not properly
granted and dismissed the appeals without going into the merits of the case.

It seems that article 136 may be involved only when,

(a) Substantial or grave injustice has been done; or

(b) Exceptional or special circumstances exist in the case.

In Sales Tax Officer v. Shree Durga oil Mills82 leave was sought to be revoked on
the ground that the State had not attempted to file appeals in two earlier cases. The
argument was that the State had accepted the legal position as binding. It was held that
those considerations were not valid to merit refusal of leave.

Ordinarily, the Court does not go into findings of fact. Exceptions do exist to the
rule as pointed out in Ishwar Dass Jain v. Sohan Lal.83 There are two situations in which
interference with findings of fact is permissible. The first is when material or relevant
evidence was not considered which, if considered would have led to an opposite
conclusion. The second is where the court below had arrived at a finding by placing
reliance on inadmissible evidence, which if omitted an opposite conclusion was possible.

Usually in labour matters decisions of industrial tribunals are not interfered

lightly. Where special circumstances existed and the Labour Appellate Tribunal did not

81
AIR 1961 SC 1708.
82
(1998)1 SCC 572 .
83
(2000) 1 SCC 434.
 28

direct its mind to the real question to be decided, and passed an order on the basis of
somewhat irrelevant finding which resulted in manifest injustice,84the Court interfered.
The matter involved was an application for permission to discharge ninety-six temporary
employees. The Court held that the Tribunal had discretion in the matter.

The discretion, has to be exercised in accordance with well-recognized principles.

A court of law proceeds on the footing that it has no power to make contracts for people
and the parties must make their own contracts. An Industrial Tribunal may create new
obligations or modify contracts in the interests of industrial peace to protect legitimate
trade union activities and to prevent unfair labour practice or victimization. However,
Industrial Tribunal can ignore existing agreement or existing obligation only for valid and
reasonable grounds. The Supreme Court interfered with the facts and circumstances of
the case in greater detail, because the Labour Appellate Tribunal did not do so. The
permission granted to the appellant to discharge ninety six temporary workmen was set
aside. But if a finding was recorded by erroneous application of principle of law, and was
apt to result in miscarriage of justice then the Court will be justified in interfering.85 In
Karnataka v. G. Hallappa86 the Court set aside the decision of Administrative Tribunal
which had earlier been upheld by the Court.

The effect of a non- speaking order of dismissal of special leave petition was
considered in Workmen v. Board of Trustees of the Cochin Port Trust.87 The Court had
come to the conclusion that it was not a fit case where special leave should be granted.
The order passed was not a speaking one. It was held that it was not correct to assume
that it had necessarily decided implicitly all questions involved on any principle of public
policy analogous thereto. It was held that it would not operate to bar the trial of identical
issues in separate proceedings. The Court in Ahmedabad Manufacturing & Calico
Printing Co. Ltd v. Workmen had reiterated the legal position88

84
Rohtas Industries Ltd. v. Brijnandan AIR 1957 SC 1.
85
Ram Piari v. Bhagwant (1990) 3 SCC 364.
86
(2002) 4 SCC 662.
87
(1978) 3 SCC 119.
88
(1981) 2 SCC 663.
 29

An in limine dismissal of a special leave petition through a non-speaking order

does not constitute res judicata. The principle was reiterated in Kunhayammed v.
Kerala.89 The earlier view taken in Gopabandhu Biswal v. Krishna Chandra Mohanty90
was that rejection of a special leave petition against the order of a tribunal made the order
final and binding and the party could not approach the tribunal for review. The petition
seeking special leave to appeal may be rejected for several reasons.91 For example,

(i) as barred by time; or

(ii) being defective presentation; or

(iii)the petitioner having no locus standi; or

(iv) the question was not fit for consideration or deserves to be dealt with by the
apex court.

The Court applies its mind to the merit worthiness of the petitioners prayer
seeking leave to file appeal and having formed an opinion may say dismissed on merits.
Such an order may be passed even ex- parte.

In any case, dismissal by a non-speaking order has no effect of a declared law.

The dismissal is not of the appeal but of the special leave petition. Even if merits have
been gone into, they can be merits of the special leave petition only. Mere rejection of a
special leave petition cannot take away the jurisdiction of the court, tribunal or forum to
review its own order if grounds for exercise of review jurisdiction are shown to exist.
Where the order rejecting an SLP is a speaking order, still it remains one rejecting grant
of leave to appeal. It can only mean that petitioner has been turned away at the threshold
without having been allowed to enter in the appellate jurisdiction of the Court. How it can
have effect of res judicata is difficult to understand.

89
(2000) 6 SCC 359.
90
(1998) 4 SCC 447.
91
Supra n. 89, by J J K T Thomas, D P Mhapatra and R C Lahoti.
 30

2.7 Implicit limitations

Though the power of the Court under article 136 is plenary, the Court was forced
to set some limits on itself. These limitations were categorized as exhaustion of
alternative remedy, locus standi, res judicata, necessary parties, delay, interlocutory
orders, new pleas etc.

2.7.1 Exhaustion of alternate remedy

Ordinarily the Court insists that appellant has to pursue and exhaust the
alternative remedies by way of appeal or revision provided by the relevant law due to the
heavy burden it experienced. But this is no bar to grant leave. There was a practice of
moving the Court straightaway from orders of Income Tax Appellate Tribunal without
resorting to the statutorily provided reference to the concerned High Court.92

In Dhakeswari Cotton Mills Ltd. v. C. I.T., West Bengal,93it was observed that it
was not possible to define with any precision the limitations on the exercise of
discretionary jurisdiction and held that it was not possible to fetter the exercise of the
power by any set of formula or rule. The Court observed that the Constitution makers
trusted the wisdom and good sense of the judges of the Court in the matter, and that itself
was a sufficient safeguard and guarantee that the power would only be used to advance
the cause of justice, and that its exercise would be governed by well-established
principles which governed the exercise of overriding constitutional powers. It was
observed that no technical hurdles of any kind like finality of finding of facts or
otherwise could stand in the way of the exercise of the power. It was the duty of the
Court to see that injustice was not perpetrated or perpetuated by decisions of subordinate
courts and tribunals because certain laws had made such decisions final and conclusive.94

In this case special leave appeal was admitted, since statutory remedies were
exhausted. The Court found that the Tribunal violated certain fundamental rules of
justice. First, it did not disclose to the assessee the information supplied by the

92
C.I.T. v. K.W. Trust, AIR 1967 SC 844, Ballabhadas v. Bihar, AIR 1966 SC 814;
Indian Aluminium Co. v. C.I. T., AIR 1962 SC 1619; Bombay v. Ratilal Vadilal, AIR 1961 SC 1106.
93
AIR 1955 SC 65.
94
Ibid. at 69. See also Durga Shankar Mehta v. Takur Reghu Raj Singh, AIR 1954 SC 520.
 31

departmental representative. Secondly, it did not give an opportunity to the assessee to

rebut the material furnished, and lastly, it declined to take all the material that the
assessee wanted to produce in support of its case. The result was that the assessee had no
fair hearing. The Court remanded the case for fresh hearing.

The Court in Ballahdas v. Bihar95 held that the Rule of exhaustion remedies was
not rigid as it was self-imposed restriction. The Court might relax it if there were special
circumstances such as breach of the principle of natural justice or jurisdictional errors. In
this case, the appellant having reached the High Court by way of reference from the
Income Tax Appellate Tribunal and getting an adverse verdict sought to appeal to the
Supreme Court from the tribunals order and not from the High Court decision. This was
because he wished to raise new questions not referred to the High Court. The Court
refused leave because it would result in a conflict of decision between Supreme Court
and High Court.

In Mahadayal Premachandra v. C.T.O.96, the Supreme Court heard an appeal

from C.T.O.s order because the assessment had been made behind the back of the
assessee and there was breach of natural justice. The appellant in the instant case without
exhausting the alternative remedies approached the Court. The facts show that the
assessing officer had not exercised his own judgment in the matter of assessment and had
not given any opportunity to counter the point. In another case, the Court heard an appeal
directly from the appellate tribunal as the assessee had lost his remedy of reference to the
High Court owing to a delay not attributable to him.97

In Lakshmi Rattan Engg. Works v. Asst. Commissioner98 the Court granted special
leave from the order of the Assistant Sales Tax Commissioner without the exhaustion of
alternate remedy. The facts show that the High Court had already given a ruling which
was adverse to the assessee in an earlier case. The same ratio was reiterated in Onkar
Nandilal v. Rajasthan.99 The Supreme Court entertained an appeal directly from the order

95
AIR 1966 SC 814 .
96
AIR 1958 SC 667.
97
Baldeosingh v. C.I.T., AIR 1961 SC 736; C.I.T. v. National Finance, AIR 1963 SC 835.
98
AIR 1968 SC 488.
99
AIR 1986 SC 2146.
 32

of labour court, though the High Court summarily dismissed the writ petition, since it did
not make a speaking order in P.D. Sharma v. State Bank of India.100It was not possible
for the Court to ascertain the reasons on which the High Court had rejected the writ
petition and the principle of res judicata did not apply to the facts of the case.

The Court in Indo China Steam Navigation Co. v. Jasjit Singh 101 heard an appeal
directly from an order of the Collector of Customs though the party had not exhausted the
statutory remedies as the case raised some important points of law.

All these cases reveal that it is not mandatory for an appellant under article 136 to
exhaust even the remedy under article 226. Since the High Courts jurisdiction is
discretionary and its scope is rather limited, an appeal under article 136 cannot be thrown
out on the ground that the appellant had not exhausted the constitutional remedy.
Moreover, in an appeal under article 136 the Court may go into questions of fact as well
as law.

2.7.2 Locus Standi

Normally an aggrieved party approaches the Court when he is affected by the

decision. In Gopalbandhu Biswal v. Krishna Chandra Mohanty102 an appeal was held
maintainable even when filed by a person adversely affected by the decision in question
and who was not a party to the case. The Court in Arunachalam v. P.S.R.
Setharathnam103 clarified that article 136 neither conferred on anyone the right to invoke
the jurisdiction nor inhibited anyone from invoking the jurisdiction. The exercise of the
power is not circumscribed by any limitation as to who may invoke it.

Again in Kunhaymed v. Kerala104 the Court stated that no right of appeal was
conferred on any party. The discretion is vested in the Court to grant leave. Wide
discretion is conferred upon the Court for satisfying the demands of Justice.105

100
AIR 1968 SC 985.
101
AIR 1964 SC 1140.
102
AIR 1998 SC 1872.
103
AIR 1979 SC 1284.
104
Supra. n.89.
105
Narpat Singh v. Jaipur Development Authority. AIR 2002 SC 2036.
 33

2.7.3 Delay

There is no period of limitation prescribed in the very wording of article of special

leave jurisdiction. The Court insists that the appeal must be filed without undue delay and
refuses leave if there is delay in filing. But the Court may condone delay in order to do
justice to the parties by deciding the matter on merits.106 The person filing a special leave
petition is duty bound to explain the reasons for the delay. Length of delay is not a
matter; acceptability of the explanation is the only criterion.107 In Uttar Pradesh v.
Manisha Dwivedi108 petitions seeking leave of the Court are usually dismissed on the
ground of unexplained delay.

Usually the Court takes a liberal view in matter of condoning the delay when
government happens to be the appellant. One of the reasons is that bureaucratic process
moves slowly. If the case deserves merit the Court should consider the question of
condonation from that perspective.109 The delay caused by the State was criticized by in
Special Tehsildar, Land Acquisition, Kerala v. K. V. Ayisumma.110 No one takes personal
responsibility in processing the matters expeditiously. Hence at several stages, much time
is taken to reach a decision.

On the question of delay by the state in filing appeals, the Supreme Court has
observed in Haryana v. Chandra Mani111 that delay of procedural red-tape in the process
of their decision making shall not affect the public interest. Moreover another reason the
Court feels is that if the state is denied an opportunity to appeal because of delay, it may
be the loss of the society as a whole.112

106
Union of India v. Cynamide India Ltd., AIR 1987 SC 180; Harsharan Varma v. Union of India,
AIR 1987 SC 1969; Uttar Predesh v. Rafiquddin, AIR 1988 SC 162; Madurai Kamaraj University v.
K. Rajayyam. AIR 1988 SC 385; Bihar v. Kameshwar Prasad Singh, AIR 2000 SC 2306.
107
N. Balakrishnan v. M. Krishnamurthy, AIR 1998 SC 3222.
108
AIR 2001 SC 3750.
109
Uttar Pradesh v. Harish Chandra, AIR 1996 SC 2173.
110
AIR 1996 SC 2750.
111
AIR 1996 SC 1623.
112
Chief G.M. Telecom v. G. Mohan Prasad, (1999) 6 SCC 67; Bihar Kameshwar Prasad Singh,
AIR 2000 SC 2306.
 34

2.7.4 Interlocutory orders

Under article 136(1) the Court has power to grant leave even from an
interlocutory order, whereas the appellate jurisdiction under articles 133(1) and 134(1)
may be invoked only against final orders. The Court ordinarily does not interfere with
interlocutory orders. In order to prevent obvious failure of justice or for fixing uniform
standards for a sound administration of justice, the Court may interfere in exceptional
case.113 In certain circumstances such interlocutory orders in question may not be
justified, and the ends of justice compel the Court to intervene.114 By an interlocutory
order the High Court stayed the operation of the order of the Company Law Board in
Union of India v. Swadeshi Cotton Mills.115 Since the basis of the interlocutory order was
obscure, the Court interfered in public interest. The Court observed that the Company
Law Board was a specialized body to watch corporate process in the country. Only in
exceptional circumstances decisions of such bodies were to be interfered.

2.8 Statutory limitations

In special leave petitions, the Court has first to decide whether it should grant
or deny special leave. The special leave is not automatic. If there is any specific exclusion
of the jurisdiction, it would have expected that the bar be taken note of and means of
overcoming it gone into before leave is granted. The question arose in regard to the
orders passed by the Tribunal in Cauvery river water dispute. Though there is explicit bar
on the jurisdiction of courts in case of river water dispute in Interstate Water Dispute Act
and article 262 of the Constitution, the leave was granted. It is of course possible that this
aspect may be examined when petitions are taken up for detailed hearing. However, it is
not clear how the question of jurisdiction will come up at that stage. Having admitted
them, how can the Court go into the question of admissibility? Will it then be dismissed?
The question was whether the non-obstante clause in article 262 is overridden by article
113
Godrey Phillips India Ltd. v. Girnar Food & Beverages(P) Ltd., (1998) 9 SCC 531; Southern
Petrochemical Industries Ltd. v. Madras Refineries Ltd.,. AIR1998 SC 302; Baby Samuel v. Tukaram
Laxman Sable,(1995) 4 SCC 215; U.P. Tajya Krishi Utpadan Mandi Parishad,.v. Sanjiv
Rajan,(1993)3 SCC 483; Joginder Nath Gupta v.Satish Chander Gupta, (1983) 2 SCC 325; United
Commercial Bank v. Bank of India, AIR 1981 SC 1426; Union of India v. Swadeshi Cotton Mills, AIR
1978 SC 1818; Ganesh Trading Company v. Moji Ram, AIR 1978 SC 484.
114
Union of India v. Era Educational Trust, AIR 2000 SC 1573.
115
AIR 1978 SC 1818.
 35

136. Does article 136 carry an unstated super non-obstante clause that overrides the
explicit non-obstante clause in article 262. Such questions were not discussed before the
petitions were admitted.116The Cauvery Water Dispute Tribunal was established in 1990
at a specific direction of the Supreme Court. Despite constitutional and statutory bar the
Court has made it difficult for the Tribunal to function in accordance with the Act even
after years of time.

2.9 Procedure under Supreme Court Rules

The procedure for filing a special leave petition is contained in Order XVI of The
Supreme Court Rules, 1966. Rule 1 Order XVI of the Supreme Court Rules and Rule 1
Order XXI prescribe that a petition for special leave to appeal shall, subject to the
provisions of sections 4, 5, 12, and 14 of the Limitation Act, 1963, be lodged in the
Supreme Court within sixty days from the date of refusal of a certificate by the High
Court, and in other cases within ninety days from the date of judgment or order sought to
be appealed from. Usually, the special leave petitions are to be filed within ninety days
from the date of the order of the High Court.117 In case the petition has been filed after
the expiry of that period, an application for condonation of delay must be filed, stating
inter alia that petitioner had sufficient cause for not preferring the petition within in time.
The Court has power to condone delay if the reasons are justified. The petitioner has to
explain delay of each and every day. If the Court was prima facie satisfied that petitioner
was prevented by sufficient cause in filing the petition in time, it would issue notice to
the respondent to show cause why the delay should not be condoned.

116
www.the hindu.com visited on 20-10-10 at 10 pm.
117
Rule1. Where certificate of fitness to appeal to the Court was refused in a case by the High Court, a
petition for special leave to appeal to the Court shall, subject to the provisions of sections 4,5,12,and
14 of the Limitation Act, 1963(36 of 1963)be lodged in the Court within sixty days from the date of the
order of refusal and in any other case within ninety days from the date of the Judgment or Order sought
to be appealed from:
Provided that where an application for leave to appeal to the High Court from the Judgment of a single
Judge of that Court has been made and refused, in computing the period of limitation in that case under
this rule, the period from the making of that application and the rejection thereof shall also be
excluded.
Explanation:- For purposes of this rule, the expression order of refusal means the order refusing to
grant the certificate under article 134A of the constitution being a certificate of the nature referred to in
article 132or article 133 of the Constitution on merits and shall not include and order rejecting the
application on the ground of limitation or on the ground that such an application is not maintainable.
 36

Though the Court has power to condone delay exparte, in Ramlal Kapur and Sons
(P) Ltd. v. Ram Nath118 it adopted the rule that delay should not be condoned exparte. In
Rule 2 where the period of limitation is claimed from the date of the refusal of a
certificate under article 134A of the Constitution, being a certificate of the nature referred
to in article 132 or article 133 of the Constitution, it shall not be necessary to file the
order refusing the certificate, but the petition for special leave shall be accompanied by
an affidavit stating the date of the judgment sought to be appealed from, the date on
which the application for a certificate of fitness to appeal to the Court was made to the
High Court, the date of the order refusing the certificate, and the ground or grounds on
which the certificate was refused and in particular whether the application for the
certificate was dismissed as being out of time. A provision to achieve the purpose was
incorporated in Order XVI, Rule 10(1) of the Supreme Court Rules119, 1966. In Bihar v.
Kameshwar Prasad Singh120 the Court held that generally it adopted a liberal approach in
condonation of delay if sufficient cause for the delay had been shown, and where the
interests of justice so required.

The liberal approach adopted in condoning the delay in Collector, Land

Acquisition, Anantnag v. Mrs. Katiji121 will definitely lead to injustice.

The special leave petition proper should be filed in Form 28 annexed to the Rules.
The relevant documents are annexed to the special leave petition.122

118
(1963) 2 SCR 242.
119
Rule (10) 1.
120
(2000) 9 SCC 94.
121
(1987) 2 SCC 107.
122
Rule 4. Reads thus: (1) (a) The petition for seeking special leave to appeal (SLP) filed before the
Court, under article 136 of the Constitution shall be in Form No. 28 appended to the rules. No separate
application for interim relief need be filed. Interim prayer if any should be incorporated in Form
No. 28.
(b) Along with the petition, list of dates in chronological order with relevant material facts or events
pertaining to each of the dates shall be furnished.
(c) SLPs shall be confined only to the pleadings before the Court /Tribunal whose order is challenged.
However, the petitioner may, with due notice to the respondent, and with leave of the Court urge
additional grounds, at the time of hearing.
(d) (i) The petitioner may produce copies of such petition/documents which are part of the record in
the case before the Court/Tribunal below if and to the extent necessary to answer, the question of law
 37

Rule 5 and Rule 21 of Order XVI of Supreme Court Rules prescribe that the
petition shall be accompanied by:

(a) a certified copy of the judgment or the order appealed from, and

(b) An affidavit in support of the statement of facts contained in the

petition.

According to Rule 6 no annexure to the petition shall be accepted unless such

annexure is certified copies of documents which have formed part of the record of the
case in the Court sought to be appealed from; provided that uncertified copies of
document may be accepted as annexure if such copies are affirmed to be true copies upon
affidavit. The petitioner shall file at least seven spare sets of the petition and of the
accompanying papers.123 In Rule 8 where any person is sought to be impleaded in the
petition as legal representative of any party to the proceedings in the Court below, the

arising for consideration in the petition or to make out the grounds urged in the SLP, as Annexure to
the petition-numbering them as Annexure 1, 2, 3 and so on. (ii) If the petitioner wants to produce any
document which was not part of the records in the Court below he shall make a separate application
stating the reasons for not producing it in the Court/Tribunal below and the necessity for its production
in the Court and seek leave of the Court for producing such additional documents.
(e) Every petition shall be supported by the affidavit of the petitioners or one of the petitioners as the
case may be or by any person authorized by the petitioner in which the deponent shall state that the
facts stated in the petition are true and the statement o f dates and facts furnished along with the SLP
are true to his knowledge and/or in formation and belief.
(f) The papers of the SLP shall be arranged in the following order:
(i) List of dates in terms of the clause (b) of sub-rule (1).
(ii) Certified copies of the judgment and order against which the leave to appeal is sought for.
(iii) The special leave petition in the prescribed Form No. 28.
(iv) Annexure, if any, filed along with the SLP.
(g) If notice is ordered on the special leave petition, the petitioner should take steps to serve the notice
on the respondent. Provided in the case of a special leave petition against an interlocutory order, the
notice may be served on the advocate appealing for the party in the Court/Tribunal against whose order
the leave to appeal is sought for.
(2) No petition shall be entertained by the Registry unless it contains a statement as to whether the
petitioner had filed any petition for special leave to appeal against the impugned judgment or order
earlier and if so, with what result, duly supported by an affidavit of the petitioner or his Pairokar only.
(3) The Court shall, if it finds that the petitioner has not disclosed fact of filling similar petition earlier
and its dismissal by this Court, dismiss the second petition if it is pending or, if special leave has
already been granted therein, revoke the same.
(4) The petition shall also contain a statement as to whether the matter was contested in the Court
appealed from and if so, the full name and address of the all the contesting parties shall be given in the
statement of facts in the petition.
123
Rule 7 reads thus: The petitioner shall file at least seven spare sets of the petition and of the
accompanying papers.
 38

petition shall contain a prayer for bringing on record such person as legal representative
of any party to the proceedings in the court below. The petition shall contain a prayer for
bringing on record such person as the legal representative and shall be supported by an
affidavit setting out the facts showing him to be the proper person to be entered on the
record as such legal representative. In Rule 9 where at any time between the filing of the
petition for special leave to appeal and the hearing thereof the record becomes defective
by reason of the death or change of status of a party to the appeal or for any other reason,
an application shall be made to the Court stating who is the proper person to be
substituted or entered on the record in place of or in addition to the party on record.
Provisions contained in Rule 33 of Order XV shall apply to the hearing of such
applications.

In case the certified copy has not been made available, the petitioner can file the
special leave petition accompanied by an office copy of the order along with an
application for exemption from filing certified copy. The Registry of Court has directed
that the affidavit must also affirm the contents of the list of dates and the contents of the
special leave petition, by clearly mentioning the pages. All applications filed along with
the petition must also be affirmed by affidavit.

Parties may, file such documents considered by them to be relevant, provided that
such documents were on record of the case in the court below. Accompaniments to the
petition should all be certified copies of such documents, but where it is not possible to
supply certified copies of such documents; uncertified copies may be filed provided such
copies are affirmed upon affidavit to be true copies. It is not permissible for a party to
file, any document which does not form part of the record of the case in the courts below.
Where, however, it is desirable to refer to such documents, the special leave petition
should be accompanied by a separate application praying for leave of the court to take the
said documents of record. The Court has deprecated the practice of filing new documents
or pleading new and directed the Registry not to entertain without the express direction of
the Court.124

124
See Indian Petrochemicals Corporation v. Shramik Sena, (1999) 3 SCC 643.
 39

The documents should be legible. The Court has directed that in case the
documents are not legible, typed copies of the same may be annexed to the special leave
petition. The documents must be in English. In case, a document is in other language, a
translated copy of the same may be annexed along with an application for exemption
from filing an official translation.

The Registry has issued a circular whereby it has now become necessary that
every special leave petition be accompanied by a certificate, in the prescribed form, by
the advocate-on-record to the effect that the special leave petition is confined to the
pleadings and the documents which formed a part of the records of the courts below, and
that documents were necessary to answer the questions of law raised in the petition and
make out the grounds urged.

Special leave petitions are generally listed for hearing ex-parte. Any person who
claims a right to be heard in such matters must file a caveat as prescribed by Rule 10 of
Order XVIII.125 It is not necessary that notice to the respondent should be issued at this
stage. The Court issue notice only where the petitioner has made out a prima facie case
for admission. Once notice is issued, the respondents may, if so advised, enter appearance
either in person or through an advocate-on-record.

Unless otherwise ordered by the court, the notice is sent by registered post with
acknowledgment due. If after the expiry of thirty days, neither acknowledgment card nor

125
Rule 10 reads thus:. (i) Unless a caveat as prescribed by rule 2 of Order XVIII has been lodged; by
the other parties, who appeared in the Court below, petitions for grant of special leave shall be put up
for hearing ex-parte, but the Court, if it thinks fit, may direct issue of notice to the respondent and
adjourn the hearing of the petition:
Provided that where a petition for special leave has been filed beyond the period of limitation
prescribed therefore and is accompanied by an application for condonation of delay, the Court shall not
condone the delay without notice to the respondent.
(2) A caveator shall not be entitled to costs of the petition, unless the Court other wise orders. Where a
caveat has been lodged as aforesaid, notice of the hearing of the petition shall be given to the caveator;
but a caveator shall not be entitled to costs of the petition, unless the Court otherwise orders.
(3) Notwithstanding anything contained in sub-rules (1d) and (2) above, the Respondents who
contested the matter in the Court appealed from shall be informed about the decision on the petition
after it is heard ex- parte, if the petition stands dismissed.
 40

unserved envelope is returned, the notice is deemed to be complete.126 The Court insists
that in such cases, the petitioner serves the respondents either by dasti or substituted
service. The respondents may be permitted to oppose the special leave petition by filing a
counter affidavit along with such documents that the respondents may feel essential for
purposes of the decision on the special leave petition. The petitioner, if facts so require
may file a rejoinder to the counter affidavit with the permission of the court. On hearing
the parties, the Court may decide the petition at the admission stage itself. The court may
grant leave as Rule 11 of Order XVI provides and the petition shall be treated as a
petition of appeal and registered as an appeal. In case the appeal is not disposed of at that
stage, further steps are required to be taken in accordance with the Rules applicable to
appeals by certificate. Thus the Supreme Court admits the special leave petition by
applying the rules and principles as discussed above and exercise a wide discretionary
power which varies from one judge to another or from one case to another without any
uniform pattern.

126
M. Ramjayarm v. General Manager, South Central Railway, (1996) 8 SCC 266.