This article is written by Nishtha Pandey (batch 2023), student of Dr. Ram Manohar Lohiya National Law University, Lucknow. This article deals with various aspects of the appeals made to the Supreme Court. Special focus is laid on the provisions present in the Civil Procedural Code, 1908 and the Indian Constitution,1950.
Supreme Court is the apex court in the country. Being at the top of the pedestal it enjoys varied jurisdiction:
- Original jurisdiction- Acts as a guardian of the law.
- Appellate jurisdiction- Hear appeals from the lower court. It is also the final court for appeals in the country.
- Writ jurisdiction- Issuing writs for the enforcement of Fundamental Rights.
- Advisory jurisdiction- Supreme Court has the power to give advice to the president on the important questions of law.
Supreme Court is the highest court of appeal in India. Appeals from every court present in the country ultimately go to the Supreme Court, if not settled at the lower courts. The appellate jurisdiction of the Supreme Court is enshrined in Article 132 and 133 of the Indian Constitution,1950 and Section 109 and 112 of the Civil Procedural Code, 1908.
The appellate jurisdiction is one of the most important jurisdictions exercised by the courts in the country. This jurisdiction enables a person to approach the higher court in case he is not satisfied with the judgment given by the lower courts. In the appellate jurisdiction, the higher court is asked to review and revise the judgement given by the lower courts. This also helps to eradicate any misinterpretation of law or misconstruction of facts, in the proceedings of the lower court.
Conditions for an appeal to the Supreme Court
Following are the conditions for appeal in the Supreme Court-
- When the judgement, decree or order passed by the High Court.
- When the issues in the case involve a substantial question of law.
- When the High Court deems it fit that case must be dealt with by the Supreme Court only.
Appellate jurisdiction of the Supreme Court is further divided into
- Civil Matters
- Criminal Matters
- Constitutional Matters
- Special Leave Petition
An appeal can be filed against any judgment, final order or sentence of a High Court in a criminal proceeding in the following situations:
- The concerned High Court has reversed an appeal by an order of acquittal of an accused person and sentenced him to death, imprisonment for life or imprisonment for a period of not less than ten years.
- The High Court has withdrawn for trial before itself of any case from any of its subordinate courts and in such case, the accused has been convicted and sentenced to death or imprisonment for life or not less than 10 years.
- The High Court certifies that the case is a fit one for an appeal to the Supreme Court.
- A person convicted on a trial held by the High Court in its extraordinary original criminal jurisdiction is also appealable.
- However, no appeal can be filed by a convicted person if the sentence passed against him by the HC does not exceed the term of 6 months or a fine not exceeding Rs. 1000 or both.
- The criminal appeal can be filed if the High Court disregarded or misapplied the established principles of criminal law.
No court fee is applicable in case of criminal appeal
- If the certificate of fitness is granted by the High Court, then the appeal must be made within 60 days of such grant of certificate, otherwise, the appeal should be filed within 60 days of the final order or judgement.
- Time spent on obtaining a copy of the judgment as order appealed from or the time spent on obtaining the certificate and order granting the certificate are excluded.
- However, if sufficient cause is shown for the delay, then in such cases the delay could be condoned.
The High Court under Article 132(1) grants a certificate to the party, which permits it to file an appeal in the Supreme Court if the High Court deems it fit that such case involves a substantial question of law. The Supreme Court acts guardian of the constitution, hence all the matter relating to important aspects of the constitution or if there is a need to interpret the constitution, then the case should be referred to the Supreme Court.
Article 133, deals with the appeals of the civil suit from the High Court. Certain conditions are present for the same.
Judgment, decree or final order
Article 133(1), states that the appeal against any order, judgement or decree from any High Court present in the Indian territory would lie to the Supreme Court if the High Court certifies it under Article134(A).
Judgement- Defined under Section 2(9) of the CPC, 1908. It is a statement that is made by the judge based on decree and order passed.
In fact, in the case of Balraj Taneja vs Sunil Madan, the Court held that the judge can’t simply say that the suit is dismissed or suit is decreed but has to give reasons for the same. Judgements are very important because they form part of the future precedents, and also a check on the judges that they do not use their discretionary powers blindly.
Essentials of Judgement
- A concise statement of the case.
- The points for determination.
- The decision thereon.
- The reasons for such a decision.
The decisions from the small cause courts would contain only the second and the third points. Moreover sketchy orders which could not be used as future judgements. Conversely, an order passed by the Central Administrative Tribunal is not “judgement”. The meaning of “judgement” in the definition of the letter patent is wider than the actual definition of “judgement” and cannot be said so in the current reference.
Content of Judgement
- Judgments of the Court of Small Causes need not contain more than the second and third points for determination and the decision.
- Judgments of other Courts shall contain a concise statement of the case, the points for determination, the particular decision, and the reasons for such decision.
The judgement should be a self-sufficient document, in which the entire reasoning of the judgement must be given. The judgement should describe the controversy that the court sought to settle and the mode for doing so and the conclusion reached in this process.
Judgement cannot be altered once signed except to correct any clerical or arithmetical errors, accidental slips or omissions or in case of review.
Order- It is defined under Section 2(14) of the CPC,1908. It means a formal expression by any civil court which is not a decree. As a general rule, an order is founded on objective considerations and as such the judicial order must contain a discussion of the question at issue and the reasons used by the court which led to the passing of the order.
It is defined under Section 2(2) of the CPC, 1908. It is a formal expression of adjudication, which according to the Court, describes the rights of the party concerned with respect to all or any of the issues in the case, it could be preliminary or final or partly final and preliminary.
It shall, however, not include:
- a) Any adjudication from which an appeal lies as an appeal from a particular order.
- b) Any order of dismissal for default.
Essentials of Decree
- The formal expression of an adjudication.
- The adjudication must be with regard to a suit before the court.
- The concerned court shall determine the rights of the parties with regard to all or any issue in the case.
- The adjudication in question should be conclusive.
Types of Decree
When the rights and liabilities of the parties are declared by the Court, but the actual result is to be decided in the further proceedings. In the case of Shankar vs Chandrakant, it was held that further inquiries are conducted with respect to the preliminary decree, the rights of the parties are fully determined and decree is passed in accordance with such determination which is final.
- The time has lapsed to file an appeal against a preliminary decree, or the case has been decided by the highest court.
- When the concerned court feels that the case has been disposed of.
Partly Final And Partly Preliminary Decree
The issue of a decree being partly preliminary and partly final comes when the Court decides two questions by the same decree. Thus, in one issue is resolved in toto but the other issue is left to be resolved in the further proceedings.
The distinction between Decree and Judgement
- Judgement is a statement made by the judge on the basis of the decree. It is not important to pass a statement in a decree but it is in the case of a judgement.
- Judgement is a contemplation of a stage prior to the decree.
- It is desirable and not mandatory to pass an order in a judgement.
The distinction between Decree and Order
- A decree can only be passed in a suit which arose through a plaint. An order may originate from a suit by plaint or may arise from a proceeding initiated by a petition or application.
- Decree conclusively determine the rights of the parties according to the case at hand and with respect to the concerned court. An order may or may not conclusively determine the rights of the parties.
- A decree may be preliminary or final or partly so, but an order cannot be preliminary.
The substantial question of law of general importance
The High Court under Article 134A, issue a certificate of appeal to the Supreme Court if it finds that there is a substantial question of law that is involved. The High Court can issue the certificate for appeal under two conditions:
(i) It deems fit on its own accord.
(ii) If an oral application is made by the parties or on their behalf, immediately after the passing or making of such judgment, decree, final order or sentence, determine, as soon as may be after such passing or making, whether the certificate of the nature referred to in Article 132(1), or Article 133(1) or, as the case may be, of Article 134(1)(c), may be given in respect of that case.
Hence no interlocutory orders could be passed. Moreover, the test whether the order is final or not will depend on whether the controversy in the case is resolved or not. Under this Article, the party could plead in the Supreme Court, that the question of law decided by the lower court, wrongly interpreted.
“Substantial question of law” is not defined in the CPC,1908, therefore it must be construed from the facts of the case. One of the prime identification, of the substantial question of law, is to test whether the question would benefit the general public. A decision in the cases involving “substantial question of law”, acts as a precedent for the cases, regarding the same question and affect the public at large, rather than the parties concerned.
Need to be decided by SC
Furthermore, the High Court should be of the strong opinion that the particular question of law is of grave importance and hence should be decided by the Supreme Court only. Another reason for this could be the lack of competency of the High Court to consider the issues involved in the particular case.
Certificate of Fitness
Under Article 133, it is stated that the High Court grants a Certificate of Fitness to the party, so as to make the other party competent to file an appeal in the Supreme Court. The certificate could be granted on two conditions:
- The case involves a substantial question of law.
- The High Court thinks that the matter should be settled by the Supreme Court.
As per the 44th report of Law Commission of India, granting of the certificate of appeal to the Supreme Court should not be taken lightly. The certificate should be granted only when the High Court finds it extremely difficult to decide the matter itself or in exceptional circumstances. It is important to note that exceptional circumstances do not mean the high monetary value of the suit. Moreover, the High Court is in a better position to adjudicate matters involving within the state, as it is well versed with situation prevalent there, hence ordinary civil jurisdiction relating to the state matters must be dealt by the High Court itself.
Special Leave Petition
Special leave petition (SLP) means that an individual takes special permission to file an appeal against any verdict of the lower court. Thus it is not an appeal but a petition filed for an appeal. So after an SLP is filed, the Supreme Court may hear the matter and if it deems fit, it may grant the ‘leave’ and convert that petition into an ‘appeal’. SLP shall then become an Appeal and the Court will hear the matter and pass judgment. It must be noted that appeal in the Supreme Court is a matter of privilege and not a matter of right. It is only on the Supreme Court, to decide whether it will grant or not grant the right to appeal to a party.
This leave is granted when the case involves a substantial question of law. Mere errors of fact, misinterpretation of evidence or facts are not grounds of appeal before the Supreme Court. The Supreme Court is only concerned if the law was correctly applied, whether the interpretation of the law was in accordance with the settled principles of law etc.
The Supreme Court can hold, reject or modify the earlier judgement, it can also send the case back to the lower court for fresh proceedings in accordance with the principles held by the Supreme Court.
Procedure at hearing
Application of leave and certificate of fitness
An appeal could be made in the Supreme Court only if the High Court grants a certificate of fitness to the party, which makes the party competent to file an appeal in the Supreme Court.
The Certificate could be granted under the following conditions:
- The High Court thinks it fit to grant, on his own accord.
- The aggrieved party or someone on their behalf, immediately after passing of the order, decree or judgement, make an oral application demanding the grant of such certificate. The court has discretionary power in this matter.
Effect of amendment in the Constitution
Article 134A was added by way of 44th amendment of the Constitution. Before this amendment, there was no provision in the Constitution regarding the time and manner of filing an application for the issue of a certificate by the High Court under articles 132, 133 and 134.
Article 134A has to be read with articles 132, 133 and 134 as it seeks to streamline the High Court’s grant of certificates for an appeal to the Supreme Court. Articles 134A states that every High Court giving a “judgement, decree, final order or sentence” under its appellate jurisdiction under Articles 132, 133 and 134 in civil, criminal or other cases involving “a substantial question of law as to interpretation of the Constitution” “may”, on its own determine whether a certificate of fitness for appeal to the Supreme Court is to be given. But, it “shall” do so “as soon as may be” if an “oral application” is made by the aggrieved party “immediately after” passing of the judgement, decree, final order or sentence. The determination, in either case, has to be in accordance with the provisions of Articles 132(1), 133(1) and 134(1). Hence, to grant a certificate under Article 134A, the court has to ensure that the conditions under Article 132, 133 and 134 are fulfilled.
Security and deposit
Under Order XLV Rule 7 of CPC, 1908, the provision of “security” is provided. Where the certificate of appeal has been granted, the applicant has to, within ninety days, or if the satisfactory cause is given, within a further period of 60 days, from the date of decree complained of or within six weeks from the date when the certificate was granted, whichever is later.
- Furnish security in cash or in Government securities for the costs of the respondent.
- Deposit the amount required to manage the expenses of translating, printing, and transmitting etc and to provide to the Supreme Court a correct copy of the whole record of the suit, except-
(i) Formal documents directed to be excluded by any Rule of the Supreme Court in force at that time.
(ii) Papers which the parties agreed to exclude.
(iii)Accounts, or portions of accounts, which the officer appointed by the Court for that purpose considers unnecessary, and which the parties were not asked specifically.
(iv) any other documents as the High Court may direct to be excluded.
Provided that the Court at the time of granting the certificate may, after hearing any opposite party who appears, order on the ground of special hardship that some other form of security may be furnished. Moreover, no delay shall be permitted to an opposite party to contest the nature of such security.
- The Court may also at any point of time during the proceeding revoke the security and give further directions. (Order XLC Rule 9 of CPC,1908).
- The Supreme Court after the admission of appeal but before the transmission of a copy of the record can ask for further securities if it appears inadequate. Time for furnishing such security is to be fixed by the Court and other sufficient security would be made (Order XLC Rule 10 of CPC, 1908).
- The Court can demand security in all cases in which the appellant is residing out of India, and is not possessed of any sufficient immovable property in India other than the property (if any) to which the appeal relates.
- Where such security is not furnished within such time as the Court orders, the Court shall reject the appeal.
Admission of appeal
Under Order XLV Rule 8, of CPC,1908, the procedure of the admission of the appeal in the Supreme Court is delineated.
Where the security has been furnished and the deposit has been made with the satisfaction of the Court, the Court shall:
(a) declare that the appeal has been admitted,
(b) give notice of such admission to the respondent,
(c) transmit to the Supreme Court, under the seal of the Court, a correct copy of the said record, except as otherwise directed.
(d) give to either party one or more authenticated copies of any of the papers in the suit if applies for the same and has paid reasonable expenses incurred in preparing them.
Powers of court pending appeal
The pending appeal is an order which temporarily suspends the Court proceedings or any effect accruing from it. The motion of pending appeal is filed when the party wants to stop all the proceedings of the case, from where the appeal was filed. However, it does not stop the other party from enforcing the judgement of a lower court.
According to Order XLV Rule 13 of the CPC, 1908, the powers of the Court pending appeal are:
- The decree that is appealed from the Court shall be executed unconditionally unless directed otherwise, granting of a certificate of appeal is immaterial.
- The court may grant power of pending appeal if interest is shown by the party interested in the suit or any other special cause like-
- Impound any movable property in dispute.
- The Court may take the security from the respondents as it may deem fit would be necessary for the performance of any order by the Supreme Court.
- Stay the execution of the decree appealed from. The Court may ask for security from the appellant, which would be necessary for the performance of the decree or order on appeal.
- Place the party under such conditions or give directions, considering the subject matter of the appeal, by the appointment of a receiver.
It must be noted that Right of appeal is a vested right and accrues on the date on which first proceedings (suit, application, objection etc.) take place. In the case of Videocon v. SEBI, it was held that if the right of appeal is taken away or restricted, it does not affect the right of appeal in respect of pending proceedings, unless expressly so expressed. However, this principle does not apply to “revisions”.
Execution of orders of SC
Under Order XLV Rule 16 of the CPC,1908, the orders made by any Court which executes the decree, or order made by the Supreme Court, shall be appealable in the same manner and rules as the orders of that court relating to the execution of its own decrees.
Appeals under constitution
Article 132 provides for an appeal to the Supreme Court of any judgement, order or decree from civil or criminal cases or any other proceedings. But for that, the High Court has to certify that the issues in the case involve a substantial question of law, that could only be dealt by the Supreme Court or if there is a scope for the interpretation of the Constitution.
Article 133 provides for an appeal to the Supreme Court of any judgement, order or decree from a civil proceeding of a High Court if it gives a certificate to the party that the case revolves around an important question law that needs the opinion of the Supreme Court.
Article 133 provides for an appeal to the Supreme Court from any judgement, order or decree from any proceeding of a High Court if:
- On appeal, it has reversed the decision of acquittal of a person and has given him a death sentence.
- Withdrawn for trial before itself, any case from any Court subordinate to it and convicted the accused given him a death sentence.
- High Court certifies that the case is fit to be decided by the Supreme Court.
Article 136 provides that the Supreme Court may according to its discretion give “leave” to a case decided by any Court in the territory of India to become an “appeal”. The “Court” in this case should not be the one constituted under any law relating to armed forces.
Supreme Court is the topmost forum in the hierarchy of the Court. It is primarily the Court of appeal. It is the highest forum for appeal in the country. The power of appellate jurisdiction is given to the Supreme Court, by the Indian Constitution under Article 132, 133, 134, 134A.
Under these Articles, various conditions are present which need to be satisfied for filing an appeal in the Supreme Court. Filing an appeal in the Supreme Court is a matter of privilege and not a matter of right, hence the fulfilment of these conditions is mandatory.
Moreover, under Article 136, the Supreme Court has the power to convert any judgement, decree or order of any proceeding from any court in the country (except the court established under the laws of the armed forces) to an appeal. For this, the Supreme Court hears the matter and then decide upon whether to give a “leave” and make the case into an “appeal”. If it gets the consent, then the case would be filed as an appeal in the Supreme Court.
Moreover, there are also statutory provisions available for filing an appeal, like through Section 109 Civil Procedure Code, 1908, Section 379 of the Code of Criminal Procedure,1973, Section 130E of the Customs Act, 1962, Section 23 of the Consumer Protection Act, 1986, Section 35L of the Central Excise and Salt Act, 1944, Section 38 of the Advocates Act, 1961, etc.
- Subash C Kashyap Constitutional Law of India, National Book Trust, Edition 2nd, 2011.
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