Joby Vs. George & ANR.  INSC 196 (19 March 2010)
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE
PETITION(C)NO. 7105 OF 2010 Mathai @ Joby .... Petitioner Versus George &
Anr. .... Respondents
O R D E R
Heard learned counsel for the petitioner.
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.
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.
in question was sent for expert opinion to the Forensic Science Laboratory,
Thiruvananthapurm. The Forensic Science 2 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.
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.
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.
Article 136, no doubt, states that the Supreme Court may in 3 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.
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
(2007) 9 SCC 196 observed as under:
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."
Article 136(1) of the Constitution states:
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."
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 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.
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 5 of Kerala 2000(6) SCC 359
(para 13). The Supreme Court has laid down that this power has to be exercised
sparingly and in 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
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
6 exercised on the considerations of justice, call of duty and eradicating
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.
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
same decision this Court also observed as under :- "It is well settled
that Article 136 of 7 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.
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
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 8
discretionary power of widest amplitude on the Supreme Court to be exercised
for satisfying the demands of justice.
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 where under
the Court may generously step in to impart justice and remedy injustice."
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.
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
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
Supreme Court entertains all and sundry kinds of cases it will soon be flooded
with a huge amount of backlog and will not be 9 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.
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.
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.
further observed as under :
have, however, to sympathize with the judges. They are struggling with an
unbearable burden. The judges spend late 10 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 11 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.
are aberrations in the functioning of an Apex Court of any country."
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.
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".
13 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.
Epictetus, he recognized 'the impropriety of being emotionally affected by what
is not under one's control'.
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 14
intermediate courts of appeal finally to settle all cases that are of
consequence only to parties.
reserves to the court of last resort only questions on which lower courts are
in conflict or those of general importance to the law."
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.
Court as follows :
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.
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".
According to Justice Mathew, the Supreme Court, to remain effective, must
continue to decide only those cases which present 16 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."
Venugopal has suggested the following categories of cases 17 which alone should
be entertained under Article 136 of the Constitution.
matters involving substantial questions of law relating to the interpretation
of the Constitution of India;
matters of national or public importance;
Validity of laws, Central and State;
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.
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 18 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.
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.
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 19 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"
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.
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
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
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 20 136, and/or for laying down some broad guidelines
in this connection.
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)