Full Judgment Text
| M<br>V<br>M<br>R | Reportable<br>IN THE SUPREME COURT OF INDIA<br>CIVIL APPELLATE JURISDICTION<br>SPECIAL LEAVE PETITION [C] NO.29213 OF 2009<br>/s. S.B. Minerals … Petitioner<br>s.<br>/s. MSPL Limited … Respondent<br>O R D E R<br>.V. Raveendran, J.<br>The respondent filed a suit for declaration and injuncti<br>gainst the petitioner. The suit was decreed. The petitioner filed<br>ppeal and the first appellate court allowed the appeal and dismissed t<br>uit. Feeling aggrieved, the respondent filed a regular second appe<br>nder section 100 of the Code of Civil Procedure (for short ‘CPC’).<br>rder dated 8.10.2009, the High Court admitted the appeal formulati<br>hree substantial questions of law. In view of the urgency expressed, t<br>igh Court directed that the appeal be set down for final hearing<br>ovember, 2009.<br>. The respondent has sought leave to file an appeal against t<br>order’ of admission of the second appeal. The petitioner contends th |
|---|---|
| a<br>a<br>s<br>u<br>o<br>t<br>H<br>N<br>2<br>‘ |
the case did not involve any substantial question of law and the second
appeal ought not to have been admitted.
3. Sub-section (5) of section 100 CPC provides that a second appea
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.
4. 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.
5. 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 i
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.
6. There is a third recognised area of exclusion relating to order
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 situation
leading to irreversible injustice can of course be exceptions to the
exclusion. This case falls under the third category of exclusion, but doe
not fall under the exception to the exclusion.
7. 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 a
orders.
8. The special leave petition is dismissed.
__________________J
(R V Raveendran)
New Delhi; __________________J
November 23, 2009. (K S Radhakrishnan