Jurisprudence and Practice of Civil Special Leave Petitions under Article 136

Article 136 allows the Supreme Court, in its discretion, 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 India. The only express exclusion, in Article 136(2), is for courts and tribunals constituted under laws relating to the Armed Forces. Within that wide field, the power is not an appeal as of right. A petitioner asks the Court for permission to appeal, and the Court may refuse that permission without giving reasons.

The Court explained the character of the power soon after the Constitution came into force. In Pritam Singh v. The State, it said that the power, being exceptional, is to be exercised sparingly and only where special circumstances are shown. In Durga Shankar Mehta v. Thakur Raghuraj Singh, it held that the power reaches the decisions of tribunals such as election tribunals, and is not cut down by a statute that declares a tribunal's order final. Later decisions, including Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai and N. Suriyakala v. A. Mohandoss, repeat the same two points: the jurisdiction is plenary in reach, but the Court is not a regular court of appeal, and it may decline to interfere even where some error is shown if substantial justice has been done.

In practice, this means that a civil special leave petition (SLP) succeeds or fails at the threshold on the strength of the question it raises, not on the volume of errors it lists. The petition must persuade a Bench, usually within a few minutes of hearing, that the case is one of the comparatively few that deserve the Court's attention.

There is no closed list, but certain kinds of case recur among those in which leave or notice is granted: a substantial question of law of general public importance; conflicting decisions of High Courts on the same provision; a High Court decision that runs contrary to a binding precedent of the Supreme Court; an order passed without jurisdiction or in breach of the principles of natural justice; and findings of fact so perverse that they result in a manifest miscarriage of justice.

Concurrent findings of fact recorded by the trial court and the first appellate court are seldom reopened. The petitioner must show more than that another view was possible: for example, that the finding rests on no evidence, ignores material evidence, or misreads a document on which the case turns. Questions not raised in the courts below are generally not allowed to be argued for the first time, unless they are pure questions of law arising on admitted facts.

Petitions against interlocutory orders face a further hurdle. The Court is often reluctant to interfere while the main case is still pending before the High Court or the trial court, and may decline to entertain the petition while leaving the point open to be raised in an appeal from the final decision. The exceptions are orders that decide a question of jurisdiction or cause harm that cannot be undone later.

The Court's concern about its own docket is recorded in Mathai @ Joby v. George, where a two-judge Bench, noting the very large number of SLPs filed against routine orders, referred to a Constitution Bench the question whether guidelines should govern the grant of special leave. When the reference was heard in 2016, the Constitution Bench declined to restrict the scope of Article 136 by guidelines, while stressing that the power is to be exercised with circumspection.

A civil SLP is first listed for preliminary hearing. At that stage the Bench may dismiss it, issue notice to the respondents (sometimes limited to a particular question), grant interim relief, or grant leave straight away. If notice is issued, the respondents file a counter affidavit and the petitioner may file a rejoinder; the matter is then listed again, and the Court decides whether to grant leave or dispose of the case.

Once leave is granted, the petition is converted into a civil appeal and given a new number. From that point the Court is exercising appellate jurisdiction in the full sense, and the case proceeds to a final hearing in which the whole of the impugned judgment can be examined within the questions on which leave was granted. Many matters are, however, disposed of at the notice stage itself, either by a short order setting aside the impugned judgment and remitting the case, or by dismissing the petition after hearing both sides.

The legal effect of an order refusing special leave was settled by a three-judge Bench in Kunhayammed v. State of Kerala. The Court held that an order refusing leave, whether it gives reasons or not, does not attract the doctrine of merger: the High Court's judgment does not merge into the Supreme Court's order, because no appeal was ever entertained. A non-speaking order of dismissal does not declare any law under Article 141. If the order gives reasons, any statement of law in it binds all courts under Article 141, and its findings bind the parties as a matter of judicial discipline, but there is still no merger. Merger occurs only when leave is granted and the appeal is decided.

One practical consequence is that a party whose SLP has been dismissed at the threshold may still apply to the High Court for review of its own judgment, on the grounds available under Order XLVII Rule 1 of the Code of Civil Procedure. A three-judge Bench in Khoday Distilleries Ltd. v. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd. reaffirmed this position. Practitioners should nonetheless consider carefully, before filing an SLP, whether a review in the High Court is the more suitable first step, particularly where the error is one apparent on the face of the record.

Where a petition is withdrawn, the terms of the order matter. A petition withdrawn without liberty is generally treated as closing the door to a second petition against the same order, on the principle underlying Order XXIII Rule 1 of the Code of Civil Procedure. If the petitioner wishes to pursue a review in the High Court or another remedy, liberty to do so should be sought expressly when the petition is withdrawn.

Under Article 133 of the Limitation Act, 1963, and Order XXI of the Supreme Court Rules, 2013, a civil SLP must be filed within 90 days from the date of the judgment or order, or within 60 days from the date on which the High Court refused a certificate of fitness to appeal. The time requisite for obtaining a certified copy of the impugned order is excluded under Section 12 of the Limitation Act.

A petition filed late must be accompanied by an application for condonation of delay, supported by an affidavit that accounts for the period of delay. The Supreme Court Rules require notice to the respondent before delay is condoned, so a delayed petition is rarely granted ex parte relief. The principles on which delay is condoned are discussed in the guide to SLP limitation and condonation of delay.

The petition must be accompanied by a certified copy of the impugned judgment, and annexures must be copies of documents that formed part of the record of the courts below. Where a certified copy is not yet available, an application for exemption from filing it is moved with the petition, and the certified copy is filed later.

The Bench usually turns first to the synopsis and list of dates, then to the questions of law, and then to the impugned judgment. The synopsis should state in a few paragraphs what the dispute is, what the courts below decided, and why the case calls for the Supreme Court's intervention. The list of dates should be accurate and should cite the page of the paper-book where each document is found.

The questions of law should be few, precise and genuinely arising from the impugned judgment. Grounds that merely repeat the arguments made below, or that invite the Court to reappreciate evidence without showing why the findings are perverse, weaken the petition. The petition must also state whether any other petition has been filed against the same order, and must disclose the material facts fully: suppression of a material fact, such as an earlier round of litigation or an undertaking given below, is a recognised ground for dismissal.

The petition is filed through an Advocate-on-Record, in the prescribed form and with an affidavit of the petitioner. The step-by-step SLP guide covers the paper-book, e-filing, curing defects and listing.

A petitioner who needs protection while the petition is pending, for instance against execution of a decree or dispossession, files an application for stay with the SLP. The Court may grant an ex parte interim order at the first hearing, decline it, or grant it on conditions such as deposit of the decretal amount or furnishing security. Conditional orders are common in money decrees and commercial disputes.

A party who expects an SLP from the other side may lodge a caveat in the Supreme Court. Where a caveat has been lodged, the petition must be served on the caveator, and the Court will ordinarily not pass an ex parte order without hearing the caveator.

Interim orders of High Courts do not lapse merely because time passes. In High Court Bar Association, Allahabad v. State of U.P., a Constitution Bench held that there can be no automatic vacation of a stay granted by a High Court, and that constitutional courts should not ordinarily fix time-bound schedules for the disposal of cases pending in other courts.

Once a matter is before it, the Court may pass any order necessary for doing complete justice under Article 142, for instance to mould the relief, to direct a fresh determination, or to bring a long dispute to an end. The power is wide but not unlimited. In Supreme Court Bar Association v. Union of India, a Constitution Bench explained that Article 142 is meant to supplement, not supplant, the substantive law, and cannot be used to achieve something that the law expressly prohibits.

For a litigant, the realistic measure of a civil SLP is therefore not whether the judgment below can be criticised, but whether it raises a question of law of wider importance or causes an injustice serious enough to warrant the Court's discretionary intervention.