M/S S. B.
Minerals Vs. M/S Mspl Limited  INSC 1752 (23 November 2009)
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION [C]
NO.29213 OF 2009 M/s. S.B. Minerals ... Petitioner M/s. MSPL Limited ...
O R D E R
The respondent filed a suit for declaration and injunction against
the petitioner. The suit was decreed. The petitioner filed an appeal and the
first appellate court allowed the appeal and dismissed the suit. Feeling
aggrieved, the respondent filed a regular second appeal under section 100 of
the Code of Civil Procedure (for short `CPC'). By order dated 8.10.2009, the
High Court admitted the appeal formulating three substantial questions of law.
In view of the urgency expressed, the High Court directed that the appeal be
set down for final hearing in November, 2009.
The respondent has sought leave to file an appeal against the
`order' of admission of the second appeal. The petitioner contends that the
case did not involve any substantial question of law and the second appeal
ought not to have been admitted.
Sub-section (5) of section 100 CPC provides that a second appeal
shall be heard on the substantial questions of law formulated by the Court. It
also provides that the respondent, at the hearing of the second appeal, can
argue that the case does not involve such questions. Thus the substantial
questions of law formulated by the High Court are not final, and it is open to
the petitioner herein (who is the respondent in the pending appeal) to
demonstrate during hearing that no substantial question of law arose for
consideration in the case and that the second appeal should be dismissed.
An order admitting a second appeal is neither a final order nor an
interlocutory/interim order. It does not amount to a judgment, decree,
determination, sentence or even "order" in the traditional sense. It
does not decide any issue but merely entertains an appeal for hearing.
The scope of Article 136 is no doubt very wide. Special leave to
appeal can be granted under Article 136 against any judgment, decree, determination,
sentence or order passed or made by any court or tribunal, in any case or
matter. There are no limitations upon the discretionary power of this Court
under Article 136, except those which are self- imposed. One recognised area
where the discretion is not exercised is where the remedy by way of an appeal
or revision is available against the order. Another recognised area is where
the subject matter is stale or frivolous or cantankerous or where the stakes or
issue involved is so small and negligible, that grant of leave or even issue of
notice will cast a heavy burden in terms of expense, time and energy on a poor
or ordinary respondent.
There is a third recognised area of exclusion relating to orders
which do not decide any issue. Orders admitting a petition/appeal/revision, or
orders issuing notice to show cause why a petition/appeal/revision should not
be entertained, or an order merely adjourning a case, fall under this category.
Extraordinary situations leading to irreversible injustice can of course be
exceptions to the exclusion. This case falls under the third category of
exclusion, but does not fall under the exception to the exclusion.
It is a matter of concern that there is a noticeable increase in
the number of special leave petitions against such `non-orders' referred to as
The special leave petition is dismissed.
__________________J. (R V Raveendran)