First Appeal

Appeal from Original Decrees (Section 96)

An appeal is a judicial examination by a higher Court of the decision of an inferior Court. It is the right of approaching a superior tribunal for the review of an order of a lower tribunal. The right to appeal is a statutory right and not an inherent right. It must be conferred by statute. In India, the right to appeal in civil cases is primarily governed by the Code of Civil Procedure, 1908 (CPC).

Section 96 of the CPC deals with appeals from original decrees. It states that an appeal shall lie from every original decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court. This section lays down the fundamental rule regarding the right to prefer an appeal against an original decree.

What is an Original Decree?

Before understanding the appeal from an original decree, it is crucial to know what a decree is. According to Section 2(2) of the CPC, a "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144 (Restitution), but shall not include:

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

An "original decree" is a decree passed by a Court exercising its original jurisdiction (i.e., a Court of first instance). This is in contrast to a decree passed by an appellate court (which would be an appellate decree) or a revisional court.

Who Can Appeal?

Generally, the following persons can file an appeal under Section 96:

Any party to the suit who is aggrieved by the decree. This includes plaintiffs, defendants, and persons claiming under them.
A legal representative of a deceased party who was a party to the suit.
Any person claiming title under a party to the suit.
A person bound by the decree, even if not formally a party to the suit, provided they obtain leave from the Court. For instance, a purchaser of property pending a suit might be affected by the decree and could seek leave to appeal.

The person filing the appeal is called the appellant, and the other party is called the respondent.

Appeal to the Court to which the decree is appealed

Section 96 states that the appeal lies "to the Court authorised to hear appeals from the decisions of such Court". This refers to the competent Appellate Court as determined by law. The jurisdiction to hear appeals is usually determined by the pecuniary limits and territorial jurisdiction of the Courts. For instance, appeals from decrees of a Civil Judge (Junior Division) or Senior Division might lie to the District Court, while appeals from the District Court in higher value cases might lie to the High Court. The High Court is generally the final court of appeal from original decrees in many cases, though a further appeal to the Supreme Court might be available under certain circumstances (e.g., Article 136 of the Constitution, Section 109 read with Order XLV CPC, or under special leave).

Grounds for Appeal

An appeal under Section 96 can be filed on questions of both fact and law. The appellant must show that the original court committed an error that warrants the appellate court's intervention. Common grounds for appeal include:

The findings of fact by the trial court are erroneous, perverse, or not supported by evidence.
The trial court misapplied or misinterpreted the relevant law.
There were procedural irregularities that affected the outcome of the suit (e.g., improper admission/rejection of evidence, failure to frame proper issues).
The judgment is contrary to the evidence on record or principles of natural justice.
The trial court failed to consider relevant evidence or considered irrelevant evidence.
Improper exercise of discretion by the trial court where discretion was involved (e.g., in granting injunctions).

Limitations and Exceptions to Section 96

Section 96 itself provides certain exceptions where an appeal from an original decree does not lie:

(a) No appeal from a consent decree (Section 96(3)): Where a decree is passed by the Court with the consent of the parties, no appeal lies against such decree. The logic is that parties have agreed to the terms, waiving their right to dispute the decree. However, if the consent itself is disputed (e.g., alleged to be fraudulent or under coercion), a separate suit may be filed to set aside the consent decree, or an application may be moved in the same court.

(b) No appeal in small causes suits below a certain value (Section 96(4)): No appeal shall lie from any decree passed in any suit of the nature cognisable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed ten thousand rupees (value amended from time to time by State Governments). This aims to prevent appeals in petty cases decided summarily by Small Cause Courts.

(c) Appeal from ex-parte decree (Section 96(2)): While Section 96(1) gives a general right, Section 96(2) specifically allows an appeal from an ex-parte decree (a decree passed in the absence of the defendant). This is an alternative remedy to applying under Order IX, Rule 13 to set aside the ex-parte decree. A person may choose either remedy, or sometimes both concurrently (though succeeding in one may affect the other). In an appeal from an ex-parte decree, the appellant can challenge the decree on merits as well as on the ground that they were prevented by sufficient cause from appearing.

Example 1. Mr. Sharma filed a suit against Mr. Verma in the Court of Civil Judge, Senior Division, seeking recovery of Rs. 5,00,000/- based on a loan agreement. The Court after hearing both parties, passed a decree directing Mr. Verma to pay Rs. 4,50,000/- with interest to Mr. Sharma. Mr. Verma feels that the decree is incorrect and that he does not owe any money. Can Mr. Verma file an appeal?

Answer:

Yes, Mr. Verma can file an appeal. The decree passed by the Court of Civil Judge, Senior Division, is an original decree as it was passed by a court exercising original jurisdiction. The decree conclusively determined the rights and liabilities of the parties regarding the loan amount. Since Mr. Verma is a party to the suit and is aggrieved by the decree, he has a statutory right under Section 96 of the CPC to file an appeal against this original decree. The appeal would lie to the competent Appellate Court, which is likely the District Court or the High Court depending on the valuation and state rules.

Example 2. In a property dispute suit, the parties, Mr. Gupta and Mr. Singh, inform the Court that they have reached a settlement. They file a compromise agreement, and the Court passes a decree in terms of the compromise. Later, Mr. Gupta changes his mind and wants to challenge the decree. Can he file an appeal under Section 96?

Answer:

No, Mr. Gupta generally cannot file an appeal under Section 96 against a decree passed by the Court based on the compromise agreement. Section 96(3) of the CPC explicitly states that no appeal shall lie from a decree passed by the Court with the consent of the parties. Such a decree is known as a consent decree. If Mr. Gupta contends that the compromise itself was not lawful (e.g., obtained by fraud, coercion, or misrepresentation), his remedy is usually to file a separate suit to set aside the consent decree or approach the same court that passed the decree alleging that the compromise was not valid or lawful, as provided under Order XXIII, Rule 3 of the CPC.

Procedure in First Appeal (Order XLI)

Order XLI of the Civil Procedure Code, 1908, lays down the detailed procedure that must be followed when filing and prosecuting a first appeal from an original decree under Section 96. It covers everything from the presentation of the memorandum of appeal to the judgment of the appellate court and the drawing up of the decree.

Submission of Memorandum of Appeal

Rule 1 of Order XLI prescribes the form and contents of the memorandum of appeal:

Form: Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf.
Contents: The memorandum shall set forth concisely and under distinct heads the grounds of objection to the decree appealed from without any argument or narrative thereof. This is crucial as the appellant is confined to the grounds taken in the memorandum of appeal unless the court grants permission to urge additional grounds (Rule 2).
Accompaniments: The memorandum must be accompanied by a certified copy of the decree appealed from and (unless the Appellate Court dispenses therewith) a certified copy of the judgment on which it is founded. Where the appellant is allowed to prefer the appeal as a pauper (indigent person), the memorandum needs to be accompanied by the application to allow him to appeal as a pauper.
Index: The memorandum must also be accompanied by an index of all the papers in the appeal.

Procedure After Submission

Once the memorandum of appeal is submitted, the procedure generally follows these steps:

(a) Scrutiny: The Court's office examines the memorandum to ensure it complies with the rules regarding form, contents, necessary accompaniments, court fees, and limitation period. If there are defects, the memorandum may be returned for correction.

(b) Admission: If the memorandum is in order, the appeal is admitted by the Appellate Court. The Court may, before admitting the appeal, require the appellant to furnish security for the costs of the respondent or for the performance of the decree under certain circumstances (Rule 6). The Court can also reject the appeal summarily without sending notice to the respondent if it finds no sufficient ground for interfering with the decree (Rule 11). However, this power is exercised cautiously.

(d) Notice to Respondent (Rule 14): Unless the appeal is dismissed summarily under Rule 11, notice of the appeal is served upon the respondent informing them about the appeal and the date fixed for hearing. The respondent has the right to appear and contest the appeal.

(e) Cross-Objections (Rule 22): Upon receiving notice, the respondent may, if they are also aggrieved by any part of the decree, file cross-objections against the appellant or other respondents. Cross-objections are treated as a separate appeal and can be heard even if the original appeal is withdrawn or dismissed for default.

Powers of Appellate Court

Order XLI confers wide powers on the Appellate Court while hearing a first appeal. The Appellate Court is the final court of fact in first appeals and can re-appreciate the entire evidence on record. Its powers include:

(a) Power to Dismiss (Rule 11, Rule 17): The Appellate Court can dismiss the appeal summarily (Rule 11) or if the appellant fails to appear when the appeal is called for hearing (Rule 17). If the appeal is dismissed for default, the appellant may apply for re-admission (Rule 19).

(b) Power to Hear and Decide: The Court hears arguments from both sides based on the grounds raised in the memorandum of appeal and cross-objections (if any). It can affirm, vary, or reverse the decree of the trial court.

(c) Power of Remand (Rule 23, 23A): The Appellate Court can send the case back to the trial court (remand) for a fresh decision under specific circumstances:

Rule 23: Where the trial court has disposed of the suit upon a preliminary point (e.g., limitation, jurisdiction) and the appellate court reverses that decision. In this case, the trial court is directed to re-admit the suit and proceed to determine the remaining issues.
Rule 23A: Where the trial court has pronounced judgment on all issues, but the appellate court considers a retrial to be necessary in the interests of justice. This is a broader power than Rule 23.

(d) Power to Frame Issues and Refer Them for Trial (Rule 25): If the trial court has omitted to frame or try any issue, or to determine any question of fact which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may frame issues and refer them to the trial court for trial. The trial court then takes additional evidence (if required), records its findings on those issues, and returns the evidence and findings to the Appellate Court. The Appellate Court then proceeds to determine the appeal.

(e) Power to Take Additional Evidence (Rule 27): As a general rule, parties are not entitled to produce additional evidence in the appellate court. The appeal must be decided based on the evidence already on record. However, the Appellate Court may allow additional evidence to be produced in certain exceptional circumstances:

Where the trial court refused to admit evidence which ought to have been admitted.
Where the party seeking to produce additional evidence shows that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not be produced at the trial.
Where the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause. This power is discretionary and exercised sparingly, usually to fill a gap or clarify a point essential for the decision.

(f) Power to Pronounce Judgment (Rule 30): After hearing the appeal, the Appellate Court pronounces its judgment in open Court. The judgment must contain:

The points for determination.
The decision thereon.
The reasons for the decision.
Where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.

(g) Power to Decree (Rule 31): A decree is drawn up in accordance with the judgment. It must bear the date on which the judgment was pronounced.

(h) General Power of the Appellate Court (Rule 33): This is a very wide power. It states that the Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require. This power may be exercised notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or cross-objections. This rule is intended to do complete justice between the parties and avoid multiplicity of proceedings.

Example 3. Mr. Khanna files a first appeal against a decree passed by the Civil Judge. In his memorandum of appeal, he lists two grounds: (1) The trial court wrongly appreciated the evidence, and (2) The trial court misinterpreted Section 10 of a particular Act. During the hearing, Mr. Khanna's lawyer argues a third ground: that the trial court lacked territorial jurisdiction, which was not raised in the memorandum. Can the Appellate Court consider this new ground?

Answer:

Under Order XLI, Rule 2 of the CPC, the appellant is not entitled to urge any ground in appeal which has not been set forth in the memorandum of appeal. However, the rule also states that the Appellate Court may permit the appellant to urge any additional ground if the Court is satisfied that the omission of such ground from the memorandum was not deliberate and the ground involves a question of law which does not require any fresh evidence or investigation of facts. Lack of territorial jurisdiction is typically a question of law that might be apparent from the plaint itself. Therefore, the Appellate Court has the discretion to allow Mr. Khanna to argue the ground of lack of territorial jurisdiction, even though it was not included in the original memorandum of appeal, provided it is a pure question of law and no fresh evidence is needed.

Example 4. Ms. Priya filed a suit for recovery of possession of property from Mr. Rohan. The trial court dismissed the suit finding that the suit was barred by limitation, without going into the merits of ownership. Ms. Priya files a first appeal. The Appellate Court agrees with Ms. Priya that the suit was filed within the limitation period. What is the likely course of action for the Appellate Court?

Answer:

In this scenario, the trial court decided the suit on a preliminary point (limitation). The Appellate Court has reversed this decision. According to Order XLI, Rule 23 of the CPC, where the trial court has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the suit. Therefore, the Appellate Court is likely to remand the case back to the trial court. It will direct the trial court to re-admit the suit under its original number in the register of suits and proceed to determine the other issues in the suit (like ownership), taking the evidence on record and giving a decision on the merits of the case.

Second Appeal

Appeal from Appellate Decrees (Section 100)

A second appeal is an appeal filed in the High Court against a decree passed by a subordinate Appellate Court (usually a District Court or a Court of Civil Judge, Senior Division, exercising appellate powers) in a first appeal. Unlike a first appeal under Section 96, which can be filed on questions of both fact and law, a second appeal under Section 100 of the Code of Civil Procedure, 1908, is strictly limited to challenging the decision of the lower Appellate Court on a substantial question of law.

Section 100 of the CPC states that an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.

Conditions for Second Appeal

For a second appeal to be maintainable under Section 100, the following conditions must be met:

There must have been a decree passed by a Court subordinate to the High Court in a first appeal.
The High Court must be satisfied that the case involves a "substantial question of law".

If these conditions are met, the appeal is admitted for hearing. Section 100 was significantly amended in 1976 to restrict the scope of second appeals only to substantial questions of law, clarifying and limiting earlier ambiguities where findings of fact could sometimes be interfered with.

Substantial Question of Law

The core requirement for a second appeal is the existence of a substantial question of law. This term is not defined in the CPC, but its meaning has been illuminated through numerous judicial pronouncements by the Supreme Court and High Courts. It is distinct from a mere question of law.

A question of law is "substantial" if it is arguable, not free from difficulty, or is of importance to the parties or for the general public interest. It is not a substantial question of law if it is already settled by a binding precedent of the Supreme Court or the jurisdictional High Court, or if the question is trivial.

Characteristics of a Substantial Question of Law:

It must be a question of law, not fact. The High Court in second appeal cannot re-appreciate evidence or interfere with findings of fact by the lower Appellate Court unless those findings are perverse or based on a misapplication of law or procedure.
The question must be *substantial* in the sense that it involves an arguable point, not a settled proposition of law.
It must affect the rights of the parties to the litigation.
Examples include:
- Misinterpretation of a statute or a provision of law.
- Failure to follow binding precedents of the Supreme Court or the High Court.
- Arriving at a finding of fact based on no evidence.
- Ignoring mandatory procedural requirements leading to a miscarriage of justice.
- Drawing wrong legal inferences from proved facts.
- Perverse finding of fact (one which is so unreasonable that no reasonable person could have reached it) which stems from a misapplication of law or procedure, or is based on no evidence. While this touches upon fact, the challenge in second appeal is on the *legal error* in reaching such a finding.

Conversely, what is not a substantial question of law often includes:

A mere question of fact.
A question of law already settled by a binding decision.
A trivial question of law that does not affect the rights of the parties significantly.

The High Court is required to formulate the substantial question(s) of law at the time of admitting the second appeal for final hearing (Section 100(4)). The appeal is then heard only on those formulated questions, although the court may permit argument on other substantial questions of law if satisfied that the case involves such questions (Section 100(5)).

Example 1. Mr. A filed a suit for possession against Mr. B. The trial court dismissed the suit, finding Mr. A's claim to be barred by limitation. In the first appeal, the District Court upheld the trial court's finding on limitation based on its interpretation of Section 5 of the Limitation Act, 1963. Mr. A wants to file a second appeal, arguing that the District Court wrongly interpreted Section 5 of the Limitation Act. Does this involve a substantial question of law?

Answer:

Yes, this likely involves a substantial question of law. The interpretation of a provision of a statute (Section 5 of the Limitation Act) is a question of law. If the appellant, Mr. A, can demonstrate that the District Court's interpretation is debatable, contrary to established principles, or inconsistent with higher court judgments, it would constitute a substantial question of law enabling him to file a second appeal before the High Court. The High Court would then examine whether the lower appellate court correctly applied the law of limitation.

Example 2. Ms. Kavita sued Mr. Rohit for damages arising from a breach of contract. The trial court examined the evidence (witness testimonies, documents) and awarded Rs. 1,00,000/- as damages, finding that a contract existed and was breached. The first appellate court re-appreciated the same evidence and confirmed the trial court's finding and the quantum of damages. Ms. Kavita wants to file a second appeal, arguing that the lower courts should have awarded Rs. 1,50,000/- based on the evidence. Does this involve a substantial question of law?

Answer:

No, this typically does not involve a substantial question of law. Both the trial court and the first appellate court, which are the final courts of fact, have examined the evidence and arrived at a finding regarding the existence of the contract, its breach, and the appropriate quantum of damages. The appellant, Ms. Kavita, is essentially asking the High Court to re-appreciate the evidence and substitute its own finding of fact regarding the quantum of damages. Re-appreciation of evidence and interfering with concurrent findings of fact by the lower courts is outside the scope of a second appeal under Section 100 of the CPC, unless the finding is perverse due to a legal error, which is not indicated here. The argument is based purely on a factual dispute regarding the valuation of damages from the same evidence.

Procedure in Second Appeal

The procedure for filing and hearing a second appeal is primarily governed by Section 100 and Order XLII of the Code of Civil Procedure, 1908. Order XLII essentially states that the rules contained in Order XLI (Procedure in First Appeal) shall apply, so far as may be, to appeals from appellate decrees.

Key Procedural Steps:

(a) Presentation of Memorandum of Appeal (Order XLI, Rule 1 read with Order XLII): The appeal is preferred by way of a memorandum of appeal presented to the High Court. The memorandum must be signed by the appellant or their pleader and should set forth concisely and under distinct heads the grounds of objection to the lower appellate court's decree. Importantly, the memorandum must specifically state that the appeal involves a substantial question of law and formulate such question(s) of law.

(b) Accompaniments: The memorandum must be accompanied by certified copies of the decrees and judgments of both the trial court and the lower appellate court.

(c) Initial Hearing (Section 100(4), (5)): This is a distinctive stage in a second appeal. The High Court, upon receiving the memorandum, holds a preliminary hearing. At this stage, the High Court must be satisfied that the case involves a substantial question of law. If the High Court is so satisfied, it shall formulate that question (or those questions) and the appeal shall be heard only on the question(s) so formulated. The High Court has the power to hear the appeal on any other substantial question of law not formulated, if it is satisfied that the case involves such question, but only after recording reasons.

It is crucial to understand that the High Court does *not* simply admit the appeal and then look for questions of law during the final hearing. It must be satisfied that a substantial question of law exists *at the time of admission* and formally formulate it.

(d) Admission and Notice: If the High Court formulates a substantial question of law, the appeal is admitted, and notice is issued to the respondent(s).

(e) Cross-Objections (Order XLI, Rule 22 read with Order XLII): The respondent, upon receiving notice, may file cross-objections. These cross-objections must also involve a substantial question of law and adhere to the same principles as cross-objections in a first appeal.

(f) Final Hearing: The appeal is finally heard based on the formulated substantial question(s) of law. Arguments are restricted to these questions. The High Court examines whether the lower appellate court correctly decided the formulated question(s) of law.

(g) Judgment and Decree (Order XLI, Rules 30 & 31 read with Order XLII): After hearing, the High Court pronounces judgment, which must contain the points for determination (the formulated substantial questions of law), the decision, and the reasons. A decree is drawn up in accordance with the judgment.

Powers of the High Court in Second Appeal

While Order XLII makes Order XLI applicable, the powers of the High Court in a second appeal are limited by the very nature of the appeal, i.e., its restriction to substantial questions of law. The High Court:

Can decide the substantial questions of law formulated by it.
Cannot ordinarily re-appreciate evidence or disturb findings of fact by the lower appellate court, unless the finding is perverse or vitiated by a legal error (e.g., based on no evidence, ignoring relevant evidence due to legal misconstruction, misapplying burden of proof).
Can frame additional substantial questions of law during the hearing if needed.
Can remand the case (send it back) to the lower appellate court (or even the trial court) if, for instance, the lower appellate court failed to decide a crucial issue involving a substantial question of law, or if a substantial question of law requires fresh findings based on evidence that was wrongly excluded, or if the judgment is legally flawed requiring a fresh decision according to law. This power is exercised sparingly and usually when the error of law by the lower court necessitates a fresh examination of facts or issues based on the correct legal principle.
Can allow additional evidence under Order XLI, Rule 27, but this power is exercised even more stringently in second appeal than in first appeal, and generally only if the evidence is essential for deciding the substantial question of law.
Can apply the general power under Order XLI, Rule 33, to pass any decree or order to do complete justice, but this power is also exercised within the confines of the scope of second appeal (dealing with questions of law).

Essentially, the High Court's role in second appeal is to correct errors of law committed by the lower appellate court, not to act as a second court of fact. The findings of fact by the lower appellate court are binding unless vitiated by an error of law.

Example 3. The District Court, in a first appeal, decided a property dispute based on a registered sale deed. In the second appeal, the appellant argues that the District Court failed to consider a crucial piece of evidence – a revenue record – which, according to the appellant, proves their possession and throws doubt on the sale deed, and that this failure constitutes a substantial question of law. Can the High Court simply look at the revenue record and decide the appeal?

Answer:

The High Court in second appeal cannot simply re-examine evidence and substitute its own findings of fact. However, if the appellant can demonstrate that the lower appellate court's failure to consider a crucial and admissible piece of evidence (like a revenue record) amounts to a legal error or makes its finding of fact perverse or based on no evidence, this *could* be framed as a substantial question of law. If the High Court is satisfied that this omission raises a substantial question of law and that considering the evidence is essential for a just decision on that question, it might adopt one of the following approaches:

1. Formulate a question of law about the perversity of the finding or the legal effect of ignoring relevant evidence.

2. In rare circumstances, it might admit the document under Order XLI Rule 27 (read with Order XLII) if it meets the strict conditions for admitting additional evidence in second appeal and is necessary to decide the legal issue.

3. More likely, if the non-consideration of crucial evidence amounts to a legal error affecting the finding of fact, the High Court might set aside the lower appellate court's decree and remand the case back to the lower appellate court with a direction to re-hear the appeal after considering the omitted evidence and decide the case afresh according to law. The High Court itself typically does not become a court of fact by re-appreciating evidence in a second appeal.

Appeals to the Supreme Court

Appeal by Special Leave (Article 136 of Constitution)

Apart from the regular appeals provided by statutes like the Code of Civil Procedure or Code of Criminal Procedure, the Constitution of India grants a very wide discretionary power to the Supreme 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. This power is enshrined in Article 136 of the Constitution.

Article 136(1) states:

"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."

Article 136(2) exempts judgments etc. of any court or tribunal constituted by or under any law relating to the Armed Forces.

Nature and Scope of Article 136

Key aspects of appeal by Special Leave (commonly referred to as filing a Special Leave Petition or SLP) are:

Extraordinary and Discretionary Power: This is not an appeal as of right. It is a discretionary power vested in the Supreme Court. The Court is not bound to grant special leave merely because there might be some error in the order challenged. It exercises this power only in exceptional circumstances.
Wide Amplitude: The power extends to any 'judgment, decree, determination, sentence or order'. This covers final as well as interlocutory orders. It also covers orders from 'any court or tribunal', making its scope much wider than statutory appeals.
Covers All Matters: The power under Article 136 is not confined to civil, criminal, or constitutional matters alone. It can be invoked in any 'cause or matter', including revenue cases, labour disputes, tribunal decisions, etc.
Purpose: This power is intended to be exercised to prevent grave injustice, correct palpable errors of law, interfere where there is manifest arbitrariness or perversity, or where a substantial question of law of general importance arises that needs authoritative pronouncement by the Supreme Court. It acts as a safety valve to correct gross failures of justice.
Not a Regular Channel of Appeal: Parties cannot claim special leave as if it were a normal right of appeal available under the CPC or other statutes.

Grounds for Granting Special Leave

While the power is discretionary, the Supreme Court has laid down guidelines for its exercise. Special Leave is typically granted where the judgment or order of the lower court/tribunal:

Raises a substantial question of law of general public importance that has not been settled.
Suffers from a manifest error of law apparent on the face of the record.
Results in gross injustice or miscarriage of justice.
Is based on findings that are perverse or based on no evidence.
Involves a question of constitutional interpretation.
Violates principles of natural justice.
Is an arbitrary or capricious exercise of power.

The Supreme Court does not usually grant special leave to interfere with concurrent findings of fact by lower courts unless those findings are perverse or based on a legal error.

Procedure

The process involves filing a Special Leave Petition (SLP) in the Supreme Court. The Court holds a preliminary hearing to decide whether to grant special leave to appeal. If special leave is granted, the SLP is converted into a regular civil or criminal appeal, and the matter is then heard in detail as a regular appeal.

Example 1. A Labour Tribunal passed an order reinstating an employee. A challenge to this order in the High Court through a Writ Petition was dismissed. The employer believes the Tribunal's order and the High Court's decision are based on a complete misinterpretation of the Industrial Disputes Act and will set a wrong precedent. Can the employer approach the Supreme Court?

Answer:

Yes, the employer can approach the Supreme Court by filing a Special Leave Petition (SLP) under Article 136 of the Constitution. Article 136 gives the Supreme Court the power to grant special leave to appeal from any order of any tribunal in India. If the employer can demonstrate that the case involves a substantial question of law regarding the interpretation of the Industrial Disputes Act or that the decision of the Tribunal/High Court suffers from a manifest error of law leading to potential injustice or setting a wrong precedent, the Supreme Court may, in its discretion, grant special leave to hear the matter as an appeal.

Example 2. In a civil suit for recovery of Rs. 5,00,000/-, the trial court and the first appellate court (District Court) both passed decrees in favour of the plaintiff, based on appreciation of evidence. The defendant filed a second appeal in the High Court, which was dismissed on the ground that no substantial question of law was involved. Can the defendant file an SLP in the Supreme Court simply arguing that the lower courts wrongly appreciated the evidence?

Answer:

It is highly unlikely that the Supreme Court would grant special leave in this situation. The trial court and the first appellate court are the final courts of fact, and the High Court in second appeal correctly held that interference was not warranted as no substantial question of law was involved. The Supreme Court under Article 136 does not function as a regular court of appeal to re-appreciate evidence and interfere with concurrent findings of fact, especially in routine civil matters. An SLP might be considered only if the concurrent findings of fact were demonstrably perverse, based on no evidence, or vitiated by a clear error of law, which is not indicated in the scenario where the argument is merely 'wrong appreciation of evidence'.

Appeals in civil matters from High Courts

Apart from the extraordinary power under Article 136, the Constitution and the Code of Civil Procedure, 1908, provide for regular appeals to the Supreme Court from decisions of High Courts in civil matters, subject to certain conditions. These appeals are primarily governed by Article 133 of the Constitution and Sections 109 and 110 of the CPC (read with Article 134A of the Constitution).

Before the amendment of Section 110 CPC in 1973, there was a condition based on the pecuniary value of the subject matter of the suit and appeal. The 1973 amendment removed the pecuniary value condition, aligning the requirements with Article 133.

Conditions for Appeal under Article 133 and Section 109/110 CPC

An appeal lies to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India, *if the High Court certifies*:

(a) That the case involves a substantial question of law of general importance; and

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

Explanation of the Conditions:

Judgment, Decree or Final Order: The appeal lies against a 'judgment', 'decree', or 'final order' of the High Court in a civil proceeding. An interlocutory order that does not finally determine the rights of the parties or the issues in controversy is generally not appealable under this provision, although it might be challenged via an SLP under Article 136.
Civil Proceeding: The appeal must arise from a civil proceeding before the High Court. This includes appeals from original decrees, appellate decrees, and proceedings under various civil laws.
Certificate from the High Court (Article 134A): Article 134A requires that every High Court, passing a judgment, decree or final order in a civil proceeding which it considers fit for appeal to the Supreme Court, may, suo motu, or shall, if an oral application is made immediately after the passing of such judgment, decree or final order, make a certificate for appeal to the Supreme Court. This certificate is the gateway for a regular appeal under Article 133.
Substantial Question of Law of General Importance: This condition is similar to but distinct from the 'substantial question of law' required for a second appeal under Section 100 CPC. For an appeal to the Supreme Court, the question of law must not only be 'substantial' (arguable, not settled, affecting rights) but also of 'general importance', meaning it affects not just the parties to the suit but potentially a large number of people or future cases, or concerns the interpretation of fundamental laws or constitutional provisions.
Needs to be decided by the Supreme Court: The High Court must be of the opinion that the formulated substantial question of law of general importance is such that it requires an authoritative pronouncement by the highest court of the land. This reflects the role of the Supreme Court in settling important legal issues for uniform application across the country.

Appeal as of Right (if certified)

Once the High Court grants the certificate under Article 134A, the appeal to the Supreme Court under Article 133 becomes an appeal as of right (subject to fulfilling procedural requirements like filing within limitation etc.). The Supreme Court cannot refuse to entertain an appeal for which a valid certificate has been granted, although it may limit the scope of the appeal to the question certified.

Cases where Certificate is Often Granted:

A certificate is typically granted by the High Court where:

The case involves the interpretation of a complex or new statute.
There is a conflict of judicial opinion among different High Courts on a point of law.
The judgment involves a significant constitutional question.
The case involves a point of law that is fundamental and affects the administration of justice generally.
The High Court itself feels the point requires an authoritative decision from the Supreme Court.

Relationship between Article 133/134A and Article 136

These are alternative avenues to the Supreme Court. If a party is unable to obtain a certificate from the High Court under Article 134A for an appeal under Article 133, they can still approach the Supreme Court by filing a Special Leave Petition under Article 136. The scope of Article 136 is broader as it is not limited by the requirement of a certificate or the restrictions of 'substantial question of law of general importance', but it is purely discretionary power of the Supreme Court, whereas an appeal under Article 133 (with certificate) is a right.

Example 3. The High Court, in a first appeal, interpreted a provision of the new Goods and Services Tax (GST) law in a particular manner, which affects numerous businesses across the state and potentially other states. The High Court is aware that this is a novel point of law with no clear precedent. Can a party affected by this judgment seek to appeal to the Supreme Court under Article 133?

Answer:

Yes, a party affected by this judgment can seek to appeal to the Supreme Court under Article 133 of the Constitution, provided they obtain a certificate from the High Court under Article 134A. The interpretation of a new and complex statute like the GST law, which has wide-ranging implications, would likely be considered a substantial question of law of general importance. If the High Court is also of the opinion that this question needs to be decided by the Supreme Court for national uniformity and clarity, it would grant the necessary certificate. Once the certificate is granted, the party has the right to file a regular appeal in the Supreme Court.

Example 4. Mr. Kapoor filed a suit against Mr. Iyer for specific performance of a contract for sale of land valued at Rs. 25 lakhs. The trial court decreed the suit. The first appellate court confirmed the decree. The High Court, in a second appeal, reversed the decrees of the lower courts, finding that a crucial document relied upon by Mr. Kapoor was inadmissible in evidence, which was a pure question of law. Mr. Kapoor believes the High Court's decision on the admissibility of the document is wrong. Can he appeal to the Supreme Court under Article 133?

Answer:

Mr. Kapoor can appeal to the Supreme Court under Article 133, but only if the High Court certifies that the case involves a substantial question of law of general importance and needs to be decided by the Supreme Court. The High Court's decision on the admissibility of evidence is a question of law. If this question of law is considered 'substantial' (meaning arguable) and also of 'general importance' (meaning its resolution by the Supreme Court is necessary for clarifying the law on admissibility of such documents for courts generally), the High Court may grant the certificate under Article 134A. If the certificate is granted, Mr. Kapoor can file a regular appeal. If the certificate is refused, Mr. Kapoor's only recourse would be to file a Special Leave Petition under Article 136, where the Supreme Court would decide whether to grant leave based on the specific facts and the significance of the question of law.