133.Appellate Jurisdiction of supreme court in appeals from High Court in regard to civil matters:

(1) An appeal shall lie to the Supreme Court from any Judgement, decree or final order in a civil proceeding of a High Court in the territory of India if High Court certificates under Article 134A___

(a) that the case involves a substantial question of law general importance :and

(b)that in the opinion of the High Court , the said question needs to be decided by the Supreme Court.

(2)Not withstanding anything in Article 132, any party appealing to the supreme Court under clause(1) may urge as one of the grounds in such appeal that a substantial question of law as to the interpretation of this Constitution has been wrongly decided.

COMMENTS

In the case of James Joseph vs. State of Kerala, the following principles with reference to appeals were laid down, namely:

‘(i) An appeal is a proceeding where a higher forum reconsiders the decision of a lower forum, on questions of fact and question of law ,with jurisdiction to confirm, reverse, modify the decision or remand the matters to the lower forum for fresh decision in terms of its direction.

(ii) The appellate jurisdiction can be limited or regulated by the legislature and its extent has to be decided with reference to the language employed by the statue conferring the appellate jurisdiction;

(iii) The width of jurisdiction or the limitation on jurisdiction with reference to an appeal, does not depend on whether the appeal is a first appeal or a second appeal, but depends upon the limitations, if any , placed by the statue conferring the right of appeal;

(iv) If the legislature’s intention is to limit the jurisdiction in an appeal, it may indicate such limits in the provision providing for appeal, it may indicate such limits n the provision providing for appeal. Alternatively, it may expressly or impliedly incorporate the provisions of section 100 of the code into the provision for appeals;

(v) Generally, statutory provisions for appeals against original orders or decrease(that is , first appeals)will not have any limitation and , therefore, rehearing on both law and fact is contemplated; and statutory provisions for appeals against appellate orders ( that is , second appeals) will be restricted to questions of law. But such restriction is not on account of any legal principle that all second appeals should always be with reference to questions of law, but would depend upon the wording of the statue placing the restrictions upon the scope of second appeal;

(vi) Where the statue does not place any limitations or restriction in regard to the scope and width of the appeal, it shall be construed that the appeal provides a right of rehearing on law as well as facts. If the Legislature enacts a self-contained provision for second appeals, without any limitation upon the scope of the second appeal and excludes the possibility of reading the provision of Section 100 of the Code, into such provision , then it will not permissible to read the limitations of Section 100 of the Code into the special provision.”

136.Special leave to appeal by the Supreme Court:

(1)Notwithstanding anything in this Chapter , the Supreme Court may, in its discretion , grant special leave to appeal from any judgement, 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 judgement, determination; sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.

COMMENTS

Under Article 136 of the Constitution of India any person aggrieved by any judgement, decree , determination or order in any cause or matter passed or made by any Court or Tribunal in the territory of India may appeal to the Supreme Court of India. Accordingly a person aggrieved by any order or judgement of High Court or of Tribunal may appeal to the Supreme Court by filling a special Leave Petition.

The rules governing SLP are contained in order XVI of the Supreme Court Rules , 1966. Under the said Rules , SLP can be filed against either the Order of High Court rejecting petition for Leave to Appeal to the Supreme Court of India i.e., on High Court refusing to grant Certificate of Fitness for Leave to Appeal to the supreme Court or against the Order / Judgement itself. It is also possible to file SLP against the judgement of the High Court either in writ petition or in the Income-tax Reference. If the petition is field against the judgement of the High court , the time limit is 90 days from the date of Judgment /Order and if the petition is field against the Order of High Court refusing to grant Certificate of Fitness for Appeal, the time limit is 60 days from limit is subject to the time taken for obtaining certified copy of the judgement /Order , i.e., subject 4,5,12 and 14 of the Limitation ACT,1963.

The discretionary power of the supreme court may be used where it considers appropriate against any order of High court in civil or criminal matters where such High Court has not issued a certificate under Article 133 or Article 134 of the constitution. Under Article 136 an application for special leave to appeal lies against orders of a court or tribunal including Industrial. Tribunal . power under Article 136 is to be exercised in exceptional circumstance only.

137.Review of judgement or orders by the Supreme court :

Subject to the provisions of any law made by the parliament or any rules made under Article 145, the Supreme Court shall have power to review any judgement pronounced or order made by it.

COMMENTS

Part VIII Order XL of the supreme court Rules , 1966 deals with the review and consists of four rules. Rule 1 reads as under:

“The court may review its judgement or order, but no application for review will be entertained in a civil proceeding except on the ground mentioned in order XLVII Rule 1of the Code and in a criminal proceeding except on the ground of an error apparent on the face of the record.”

Order XLVII,Rule 1(1) of the code of civil procedure, 1908 provides for an application for review, which reads as under:

“Any person considering himself aggrieved:

(a)by on a reference a decree or order from which an appeal is allowed, but from which no appeal has been preferred,

(b)by a decree or order from which no appeal is allowed, or

(c) by a decision on a reference from a Court of small cause, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made , or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgement to the court which passed the decree or made the order.”

In a criminal proceeding , review is permissible on the ground of an error apparent on the face of the record.

To sum up, a review will be maintainable on:

(I) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the petitioner or could not be produced by him;

(ii)Mistake or error apparent on the face of the record;

(iii)Any other sufficient reason.

141. Law declared by the Supreme Court to be binding on all courts :

The law declared by the Supreme Court shall be binding on all courts within the territory of India.

COMMENTS

The binding essence of a judicial decision is traditionally summed up in the phrase ration decided (‘ reason for deciding’) in legal theory, there are two leading views of the ratio decided of a case. One is the classical theory which holds that the ration is the rule or principle that the court deciding a case considers necessary for the result reached in the case. The other view is the Goodhart theory , Which is that the ration consists of the facts the judge in the precedent case belived were material, and the judge’s decision based on those facts.

In India , a decision of the supreme Court on identical facts and law binds the curt on the same points of law in a later case. The doctrine of binding precedents has been settled by several pronouncements of the Supreme Court. The constitution Bench of this court in the case of Union of India Vs Raghubir Singh observed as under.

“8.Taking note of the hierarchical character of the judicial system in India, it is of paramount importance that the law declared by this Court should be certain , clear and consistent. It is commonly known that most decision of the courts are of significance not merely because they constitute an adjudication on the rights of the parties and resolve the dispute between them, but also because in doing so, they embody a declaration of law operating as a binding principle in future cases. In this latter aspect lies their particular value in developing the jurisprudence of the law.

9.The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the law, besides providing assurance to the individual as to the consequence of transaction forming part of his daily affairs. And , therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a court.

In Municipal corporation of Delhi Vs Gurnam Kaur , it was observed that the decisions of the supreme court have no binding force firstly, where it is obiter dicta, i.e. statements which are not part of ration decided ; secondly , where a decision is per incurium, i.e. given in ignorance of the term of a statue or rule having the force of a statute; thirdly, where a decision is passed sub-silentio, i.e. without any argument or debate on the relevant question; and fourthly, where an order is made with the consent of the parties, and with the reservation that it should not be treated as precedent.”

The Latin expression ‘ per incuriam’ literally means ‘through inadvertence’. In State of U.P. Vs. Synthetics and Chemicals Ltd., it was explained as follows:

“40 ‘Incuria’ literally means ‘carelessness’. In practice ‘per incuriam’ appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis….

On another exception of the rule of precedent, i.e. sub-silention, the court observed in as under:

“41. Does this principle extend and apply to a conclusion of law, which was neither raised nor preceded by any consideration. In other words, can such conclusions be considered as declaration of law? Here again the English courts and jurists have carved out an exception to the rule of precedents. It has been explained as rule of sub-silentio. A decision passes sub-silentio in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind."