CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION(C)NO. 7105 OF 2010
Mathai @ Joby .... Petitioner
Versus
George & Anr. .... Respondents
O R D E R
1. Heard learned counsel for the petitioner.
2. This special leave petition has been filed against the judgment and
order dated 09.11.2009 of the High Court of Kerala Ernakulam in
W.P.(C) No. 31726/2009. By the impugned order the writ petition filed
by the petitioner herein has been disposed off.
3. The petitioner herein is one of the defendants in a suit in which
he has disputed the genuineness of a Will dated 13.01.2006. The Will
in question was sent for expert opinion to the Forensic Science
Laboratory, Thiruvananthapurm. The Forensic Science Laboratory
submitted its report to the Trial Court. Not satisfied with the report
the Petitioner herein wanted another opinion from another expert. The
said prayer of the petitioner was rejected by the Trial Court and the
writ petition filed against the order of the Trial Court has been
dismissed by the impugned order. Against the High Court's order the
SLP has been filed.
4. We are prima facie of the opinion that such special leave petitions
should not be entertained by this Court. Now-a-days all kinds of
special leave 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 the appellate court, the matter is
fought upto this Court. Consequently, the arrears in this Court are
mounting and mounting and this Court has 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 as to in what kind of cases special leave petitions should
be entertained under Article 136 of the Constitution.
5. Article 136, no doubt, states that 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. However, it is not
mentioned in Article 136 of the Constitution as to in what kind of
cases the said discretion should be exercised. Hence, some broad
guidelines need to be laid down now by a Constitution bench of this
Court otherwise this Court will be flooded (and in fact is being
flooded) with all kind of special leave petitions even frivolous ones
and the arrears in this Court will keep mounting and a time will come
when the functioning of this Court will become impossible. It may be
mentioned that Article 136, like Article 226, is a discretionary
remedy, and this Court is not bound to interfere even if there is an
error of law or fact in the impugned order.
6. This Court in the case of N. Suriyakala Vs. A. Mohandoss and Others
(2007) 9 SCC 196 observed as under:
"In this connection we may clarify the scope of Article 136.
Article 136 of the Constitution is not a regular forum of appeal at
all. It is a residual provision which enables the Supreme Court to
interfere with the judgment or order of any court or tribunal in India
in its discretion."
7. Article 136(1) of the Constitution states:
"Article 136(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."
8. The use of the words "in its discretion" in Article 136 clearly
indicates that Article 136 does not confer a right of appeal upon any
party but merely vests a discretion in the Supreme Court to interfere
in exceptional cases vide M/s. Bengal Chemical & Pharmaceutical Works
Ltd. vs. Their Employees AIR 1959 SC 633(635), Kunhayammed & Ors. Vs.
State of Kerala & Anr. 2000(6) SCC 359 and State of Bombay Vs. Rusy
Mistry AIR 1960 SC 391(395). In Municipal Board, Pratabgarh & Anr. Vs.
Mahendra Singh Chawla & Ors. 1982(3) SCC 331 and in Chandra Singh Vs.
State of Rajasthan AIR 2003 SC 2889 (vide para 43 & 45), this Court
observed that under Article 136 it 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.
9. Though the discretionary power vested in the Supreme Court under
Article 136 is apparently not subject to any limitation, the Court has
itself imposed certain limitations upon its own powers vide Ram Saran
Das and Bros. Vs. Commercial Tax Officer, Calcutta & Ors. AIR 1962 SC
1326(1328) and Kunhayammed Vs. State of Kerala 2000(6) SCC 359 (para
13). The Supreme Court has laid down that this power has to be
exercised sparingly and in exceptional cases only. Thus, in Pritam
Singh Vs. The State AIR 1950 SC 169, this Court observed (vide para 9)
as under :-
"On a careful examination of Art.136 along with the preceding
article, it seems clear that the wide discretionary power with which
this Court is invested under 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."
10. In Tirupati Balaji Developers Pvt. Ltd. Vs. State of Bihar AIR
2004 SC 2351, this Court observed about Article 136 as under :-
"It is an extraordinary jurisdiction vested by the Constitution in
the Supreme Court with implicit trust and faith, and extraordinary
care and caution has to be observed in the exercise of this
jurisdiction. Article 136 does not confer a right of appeal on a party
but vests a vast discretion in the Supreme Court meant to be exercised
on the considerations of justice, call of duty and eradicating
injustice."
11 In Jamshed Hormusji Wadia Vs. Board of Trustees, Port of Mumbai AIR
2004 SC 1815 (para 33), this Court observed as under :-
"The discretionary power of the Supreme Court is plenary in the
sense that there are no words in Article 136 itself qualifying that
power. The very conferment of the discretionary power defies any
attempt at exhaustive definition of such 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 before the Supreme Court
shocks the conscience. This overriding and exceptional power has been
vested in the Supreme Court to be exercised sparingly and only in
furtherance of the cause of justice in the Supreme Court in
exceptional cases only when special circumstances are shown to exist."
In the same decision this Court also observed as under :-
"It is well settled that Article 136 of the Constitution does not
confer a right to appeal on any party; it confers a discretionary
power on the Supreme Court to interfere in suitable cases. Article 136
cannot be read as conferring a right on anyone to prefer an appeal to
this Court; it only confers a right on a party to file an application
seeking leave to appeal and a discretion on the Court to grant or not
to grant such leave in its wisdom. When no law confers a statutory
right to appeal on a party, Article 136 cannot be called in aid to
spell out such a right. The Supreme Court would not under Article 136
constitute itself into a tribunal or court just settling disputes and
reduce itself to a mere court of error. The power under Article 136 is
an extraordinary power to be exercised in rare and exceptional cases
and on well-known principles."
12. In Narpat Singh Vs. Jaipur Development Authority (2002) 4 SCC 666,
this Court observed as under :-
"The exercise of jurisdiction conferred by Art.136 of the
Constitution on the Supreme Court is discretionary. It does not confer
a right to appeal on a party to litigation; it only confers a
discretionary power of widest amplitude on the Supreme Court to be
exercised for satisfying the demands of justice. On one hand, it is an
exceptional power to be exercised sparingly, with caution and care and
to remedy extraordinary situations or situations occasioning gross
failure of justice; on the other hand, it is an overriding power
whereunder the Court may generously step in to impart justice and
remedy injustice."
13. In Ashok Nagar Welfare Association Vs. R.K. Sharma AIR 2002 SC
335, this Court observed that even in cases where special leave is
granted, the discretionary power vested in the Court continues to
remain with the Court even at the stage when the appeal comes up for
hearing.
14. Now-a-days it has become a practice of filing SLPs against all
kinds of orders of the High Court or other authorities without
realizing the scope of Article 136. Hence we feel it incumbent on us
to reiterate that Article 136 was never meant to be an ordinary forum
of appeal at all like Section 96 or even Section 100 CPC. Under the
constitutional scheme, ordinarily the last court in the country in
ordinary cases was meant to be the High Court. The Supreme Court as
the Apex Court in the country was meant to deal with important issues
like constitutional questions, questions of law of general importance
or where grave injustice had been done. If the Supreme Court
entertains all and sundry kinds of cases it will soon be flooded with
a huge amount of backlog and will not be able to deal with important
questions relating to the Constitution or the law or where grave
injustice has been done, for which it was really meant under the
Constitutional Scheme. After all, the Supreme Court has limited time
at its disposal and it cannot be expected to hear every kind of
dispute.
15. Mr. K.K. Venugopal, Senior Advocate and a very respected lawyer of
this Court in his R.K. Jain Memorial Lecture delivered on 30.01.2010
has pointed out that an alarming state of affairs has developed in
this Court because this Court has gradually converted itself into a
mere Court of Appeal which has sought to correct every error which it
finds in the judgments of the High Courts of the country as well as
the vast number of tribunals. Mr. Venugopal has further observed that
this Court has strayed from its original character as a Constitutional
Court and the Apex Court of the country. He further observed that if
the Apex Court seeks to deal with all kinds of cases, it necessarily
has to accumulate vast arrears over a period of time which it will be
impossible to clear in any foreseeable future. According to him, this
is a self-inflicted injury, which is the cause of the malaise which
has gradually eroded the confidence of the litigants in the Apex Court
of the country, mainly because of its failure to hear and dispose of
cases within a reasonable period of time. He has further observed that
it is a great tragedy to find that cases which have been listed for
hearing years back are yet to be heard. He has further observed as
under :
"We have, however, to sympathize with the judges. They are
struggling with an unbearable burden. The judges spend late nights
trying to read briefs for a Monday or a Friday. When each of the 13
Divisions or Benches have to dispose off about 60 cases in a day, the
functioning of the Supreme Court of India is a far cry from what
should be desiderata for disposal of cases in a calm and detached
atmosphere. The Judges rarely have the leisure to ponder over the
arguments addressed to the court and finally to deliver a
path-breaking, outstanding and classic judgment. All this is
impossible of attainment to a Court oppressed by the burden of a huge
backlog of cases. The constant pressure by counsel and the clients for
an early date of hearing and a need to adjourn final hearings which
are listed, perforce, on a miscellaneous day i.e. Monday or a Friday,
where the Court finds that it has no time to deal with those cases,
not only puts a strain on the Court, but also a huge financial burden
on the litigant. I wonder what a lawyer practising in 1950 would feel
if he were today to enter the Supreme Court premises on a Monday or a
Friday. He would be appalled at the huge crowd of lawyers and clients
thronging the corridors, where one finds it extremely difficult to
push one's way through the crowd to reach the Court hall. When he
enters the Court hall he finds an equally heavy crowd of lawyers
blocking his way. I do not think that any of the senior counsel
practicing in the Supreme Court, during the first 3-4 decades of the
existence of the Court, would be able to relate to the manner in which
we as counsel argue cases today. In matters involving very heavy
stakes, 4-5 Senior Advocates should be briefed on either side, all of
whom would be standing up at the same time and addressing the court,
sometimes at the highest pitch possible.
All these are aberrations in the functioning of an Apex Court of
any country."
16. Mr. Venugopal has pointed out that in the year 1997 there were
only 19,000 pending cases in this Court but now, there are over 55,000
pending cases and in a few years time the pendency will cross one lakh
cases. In 2009 almost 70,000 cases were filed in this Court of which
an overwhelming number were Special Leave Petitions under Article 136.
At present all these cases have to be heard orally, whereas the U.S.
Supreme Court hears only about 100 to 120 cases every year and the
Canadian Supreme Court hears only 60 cases per year.
17. In Bihar Legal Support Society Vs. Chief of Justice of India and
Anr. (1986) 4 SCC 767 (vide para 3) a Constitution Bench of this Court
observed as under :-
"It may, however, be pointed out that this Court was never
intended to be a regular court of appeal against orders made by the
High Court or the sessions court or the magistrates. It was created
for the purpose of laying down the law for the entire country ……………It
is not every case where the apex court finds that some injustice has
been done that it would grant special leave and interfere. That would
be converting the apex court into a regular court of appeal and
moreover, by so doing, the apex court would soon be reduced to a
position where it will find itself unable to remedy any injustice at
all, on account of the tremendous backlog of cases which is bound to
accumulate. We must realize that in the vast majority of cases the
High Courts must become final even if they are wrong".
18. In this connection Paul Freund has set out the opinion of Mr.
Justice Brandeis', the celebrated Judge of the U.S. Supreme Court in
the following words:
"... he was a firm believer in limiting the jurisdiction of the
Supreme Court on every front as he would not be seduced by the
Quixotic temptation to right every fancied wrong which was paraded
before him. ...... Husbanding his time and energies as if the next day
were to be his last, he steeled himself, like a scientist in the
service of man, against the enervating distraction of the countless
tragedies he was not meant to relieve. His concern for jurisdictional
and procedural limits reflected, on the technical level, an
essentially stoic philosophy. For like Epictetus, he recognized 'the
impropriety of being emotionally affected by what is not under one's
control'.
The only way found practicable or acceptable in this country
(U.S.A.) for keeping the volume of cases within the capacity of a
court of last resort is to allow the intermediate courts of appeal
finally to settle all cases that are of consequence only to parties.
This reserves to the court of last resort only questions on which
lower courts are in conflict or those of general importance to the
law."
19. Justice K.K. Mathew, an eminent Judge of this Court, in an article
published in (1982) 3 SCC (Jour) 1, has referred to the opinion of Mr.
Justice Frankfurter, the renowned Judge of the U.S. Supreme Court as
follows :
"The function of the Supreme Court, according to Justice
Frankfurter, was to expound and stabilize principles of law, to pass
upon constitutional and other important questions of law for the
public benefit and to preserve uniformity of decision among the
intermediate courts of appeal. The time and attention and the energy
of the court should be devoted to matters of large public concern and
they should not be consumed by matters of less concern, without
special general interest, merely because the litigant wants to have
the court of last resort pass upon his right. The function of the
Supreme Court was conceived to be, not to remedying of a particular
litigant's wrong, but the consideration of cases whose decision
involved principles, the application of which were of wide public or
governmental interest and which ought to be authoritatively declared
by the final court. Without adequate study, reflection and discussion
on the part of judges, there could not be that fruitful interchange of
minds which was indispensable to thoughtful, unhurried decision and
its formulation in learned and impressive opinions and therefore
Justice Frankfurter considered it imperative that the docket of the
court be kept down so that its volume did not preclude wise
adjudication. He was of the view that any case which did not rise to
the significance of inescapability in meeting the responsibilities
vested in the Supreme Court had to be rigorously excluded from
consideration".
20. According to Justice Mathew, the Supreme Court, to remain
effective, must continue to decide only those cases which present
questions whose resolution will have immediate importance far beyond
the particular facts and parties involved. It is Justice Mathew's
opinion that -
"To say that no litigant should be turned out of the Supreme Court
so long as he has a grievance may be good populistic propaganda but
the consequence of accepting such a demand would surely defeat the
great purpose for which the Court was established under our
constitutional system. It is high time we recognize the need for the
Supreme Court to entertain under Article 136 only those cases which
measure up to the significance of the national or public importance.
The effort, then, must therefore be to voluntarily cut the coat of
jurisdiction according to the cloth of importance of the question and
not to expand the same with a view to satisfy every litigant who has
the means to pursue his cause."
21. Mr. Venugopal has suggested the following categories of cases
which alone should be entertained under Article 136 of the
Constitution.
(i) All matters involving substantial questions of law relating to
the interpretation of the Constitution of India;
(ii) All matters of national or public importance;
(iii) Validity of laws, Central and State;
(iv) After Kesavananda Bharati, (1973) 4 SCC 217, the judicial
review of Constitutional Amendments; and
(v) To settle differences of opinion of important issues of law
between High Courts.
22. We are of the opinion that two additional categories of cases can
be added to the above list, namely (i) where the Court is satisfied
that there has been a grave miscarriage of justice and (ii) where a
fundamental right of a person has prima facie been violated. However,
it is for the Constitution Bench to which we are referring this matter
to decide what are the kinds of cases in which discretion under
Article 136 should be exercised.
23. In our opinion, the time has now come when an authoritative
decision by a Constitution Bench should lay down some broad guidelines
as to when the discretion under Article 136 of the Constitution should
be exercised, i.e., in what kind of cases a petition under Article 136
should be entertained. If special leave petitions are entertained
against all and sundry kinds of orders passed by any court or
tribunal, then this Court after some time will collapse under its own
burden.
24. It may be mentioned that in Pritam Singh Vs. The State AIR 1950
S.C. 169 a Constitution Bench of this Court observed (vide para 9)
that "a more or less uniform standard should be adopted in granting
Special Leave". Unfortunately, despite this observation no such
uniform standard has been laid down by this Court, with the result
that grant of Special Leave has become, as Mr. Setalvad pointed out in
his book ' My Life', a gamble. This is not a desirable state of
affairs as there should be some uniformity in the approach of the
different benches of this Court. Though Article 136 no doubt confers a
discretion on the Court, judicial discretion, as Lord Mansfield stated
in classic terms in the case of John Wilkes, (1770) 4 Burr 2528 "means
sound discretion guided by law. It must be governed by rule, not
humour: it must not be arbitrary, vague and fanciful"
25. The Apex Court lays down the law for the whole country and it
should have more time to deliberate upon the cases it hears before
rendering judgment as Mr. Justice Frankfurter observed. However, sadly
the position today is that it is under such pressure because of the
immense volume of cases in the Court that Judges do not get sufficient
time to deliberate over the cases, which they deserve, and this is
bound to affect the quality of our judgments.
26. Let notice issue to the respondents. Issue notice also to the
Supreme Court Bar Association, Bar Council of India and the Supreme
Court-Advocates-on-Record Association.
27. Since the matter involves interpretation of Article 136 of the
Constitution, we feel that it should be decided by a Constitution
Bench in view of Article 145(3) of the Constitution. Let the papers of
this case be laid before Hon'ble the Chief Justice of India for
constitution of an appropriate Bench, to decide which kinds of cases
should be entertained under Article 136, and/or for laying down some
broad guidelines in this connection.
28. The Constitution Bench may also consider appointing some senior
Advocates of this Court as Amicus Curiae to assist in the matter so
that it can be settled after considering the views of all the
concerned parties.
.....................J.
(MARKANDEY KATJU)
.....................J.
(R.M. LODHA)
NEW DELHI;
MARCH 19, 2010
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