APPEALS TO THE SUPREME COURT

When appeals lie to the Supreme Court. subject to the provision in chapter IV of Part V of the
constitution and such rules as may, from time-to-time, be made by the Supreme Court regarding
appeals from the Courts of India, and to the provisions hereinafter contained, an appeal shall lie to the
Supreme Court from any Judgement, decree or final order in a civil proceeding of a High Court, if the
High Court certifies:

i. That the case involved a substantial question of law of general importance; and
ii. That in the opinion of the High Court the said question needs to be decided by the Supreme
Court.

HISTORICAL BACKGROUND

The provisions contained in section 109 and under article 133(1) of the Constitution of India are
identical in nature and its application. It may further be examined along with the provisions contained
in order XLV of the code also which provide for the appeal to the Supreme Court. The Jurisdiction
under section 109 is subjected to the rules regarding appeals framed by the Supreme Court under the
provision contained in Chapter IV of Part V of the Constitution of India. By the Code of Civil
Procedure (Amendment) Act (49 of 1973), section 109 has been put in line with that of amended
article 133. Now the provisions contained under article 133 and under section 109 are identical.

The jurisdiction under section 109 further depends on two things, viz., if the High Court certifies:

i. That the case involved a substantial question of law of general importance; and
ii. That in the opinion of the High Court the said question needs to be decided by the Supreme
Court.
Hence these two conditions must be there, to invoke jurisdiction under this section.

The jurisdiction conferred by article 133 is in addition to and independent of the provisions of article
136. If no appeal lies under article 133, there is no bar to approach the Supreme Court under article
136 even without applying to the high court for a certificate as required by section 109 of CPC and by
article 133 of Indian Constitution; Collector v. Mishra, (1978) 1 SCR 372 (379).

Section 109 provides for an appeal to the Supreme Court from any judgement, decree or final order in
a civil proceeding of a High Court. Thus prior to the amendment, there was three alternative grounds
for appeal to the Supreme Court from a High Court in a civil proceeding, the grounds were:

i. Value of appeal being 20,000 and above,

ii. The matter on appeal indirectly involving same value. The case being otherwise fit for appeal,
those grounds have been substituted by a single ground that the case involves a substantial
question of law which needs to be decided by the Supreme Court.

Clause 2 of article 133 ignores the existence of the provisions under article 132 for deciding a case
being fit for appeal to the Supreme Court. It may be noted that said article 132 is confined to
constitutional to question, but comprises appeals from civil, criminal and other cases, while article
133 is confined to civil appeals only. Under the old provisions substantial question of law did not
come for consideration where the value test was satisfied. Now no such value test is a ground and the
substantial question of law is the objective question.

RIGHT OF APPEALS IN SUPREME COURT

The High Court of Punjab-Haryana in Gulzari lal v. The Swadeshi Mills Ltd., Bombay, AIR 1952 P&H
379 examined the right of appeal to the Supreme Court. Two applications were filed for the similar
purpose. The points also involved in both the application were the same and, therefore, they were
disposed of by one judgement. It is submitted by the learned counsel for the petitioner that the
petitioner firm, Gopal Rai Gulzari Mal, have got some cases pending in the subordinate Judges Court
and if we add the amounts involved in those cases to the amounts involved in the presents applications
the subject matter of appeal will be more than Rs.10,000 and he, therefore, submitted that as the
judgement of this courts are judgement of variance he is, under section 110 of the code of civil
procedure, entitled, as a matter of right, to go in appeal to the Supreme Court, because the decree
indirectly involves claim or question to or respecting property of more than Rs. 10,000. But according
to the section of 110, Civil Procedure Code, before the constitution a person could go, as a matter of
right, in appeal to the federal court if the subject matter of the suit in the Court of the first instance
were was Rs. 10,000 or over and the amount of subject matter in dispute on appeal was also the same.
In the present cases there is no doubt that the su8bject6 matter of the suit was in one suit about Rs.
5,000 and in other about Rs. 9,800. So the first condition is not fulfilled even if the petitioner is
entitled to rely on the section 110, Civil Procedure Code, as it was before the coming into operation of
the Constitution.

It may here be pointed put that in the appeal against which Civil miscellaneous No. 291C of 1950 was
directed, this court found on a question of fact that note No.2 in the textile Commissioner therefore
did not apply to the 15 bales (which were in dispute) which were to be delivered iThe n July and the
maximum prices mentioned in the order of the textile Commissioner therefore did not apply to the
these 15 bales. It was further held by the court that there was a contract to make delivery in July to
which the textile commissioners order does not apply. After giving this finding, the manufacturer.
The judgement of this Court therefore proceeded not merely on the interpretation of a section but also
on a facts as to whether delivery was to be made before or after July.

The court said that in regard to the appeal which was dealt with in civil miscellaneous no. 292C of
1950, again the case was primarily decided on its peculiar facts. At pages 6 of the judgement my
learned brother Soni, J. , said that as the price were fixed in December 1943 the section would not be
applicable to and no fund was allowable. Here again the question of a manufacturer not being
included in the word dealer was subsequently discussed. This case also therefore was decided on
peculiar facts of this case and no question of law really arose. In my opinion, the petitions do not fall
under the section 109(c) or second clause of section 110 of the code of civil procedure and are
therefore dismissed with costs.

APPEALS TO SUPREME COURT UNDER CONTITUTION

Article 132 of the constitution allows an appeal to the Supreme Court from judgement, decree or final
order passed by High Court in a civil, criminal or other proceeding, if the High Court certifies that the
case involves a substantial question of law as to the interpretation of the Constitution.
Article 133 provides appeal to the Supreme Court from any Judgement, decree or final order in a civil
proceeding if the High court certifies that a judgement

a) The case involves a substantial question of law of general importance;

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

Article 134 permits an appeal to the Supreme Court from any judgment, final order or sentence in a
criminal proceeding if the High

a) Has on appeal reversed an order of acquittal of an accused person and sentenced him to
death; or
b) Has withdrawn for trial before itself any case from any court subordinate to its authority and
in such trial convicted the accused person and sentenced to death ; or
c) Certifies that the case is fit one for appeal to the Supreme Court.

Article 134-A enacts that a High Court passing or making a judgement, decree, final order or sentence
referred to in article 132, 133 or 134 may, either suo moto or on oral application by or on behalf of
aggrieved party immediately after passing or making such judgement, decree, final order or sentence
determine whether certificate may be granted.

Article 136 starts with a non obstante clause and confers very wide and plenary powers on the
Supeme Court, in its discretion, to grant special leave to appeal from any judgement, decree,
determination, sentence or order (final as well as interlocutory) in any cause or matter passed or made
by any court or tribunal(except a court or tribunal constituted by or under any law relating to armed
forces).

SECTION 109 OF CODE OF CIVIL PROCEDURE AND ARTICLE 133

Prior to 1973, there were certain discrepancies between two provisions. The Code of Civil Procedure
(Amendment) Act of 1973 removed the discrepancies and brought the provisions contained section
109 in the line of article 133 and now two provisions are identical in nature.

Both provisions contemplate appeal against judgement, decree or final order passed in any civil
proceeding and is not limited to civil suits only.

The Privy Council had said that the word judgement indicates a judicial decision given on the merits
of the dispute before the court, Kuppu Swami v. the King, AIR 1949 PC1. The Privy Council said in
the case of Amino Bros. that the judgement does not include an interlocutory judgement ; Amin
Bros v Dominion of India AIR 1950 PC 77: 1949 FCR 842: 1950 SCJ 139.

The Supreme Court said that there is no judgement or order where the function of the court was mere
to dissolve; Prem Chand v. State of Bihar , AIR 1950 SCR 799: AIR 1951 SC 14: 1951 SCJ 5

JUDGEMENT, DECREE AND FINAL ORDER

Judgement- An appeal lies to the Supreme Court against a judgement, decree or final order passed by
High Court in Civil proceeding. Section 2(9) of the Code defines Judgement as the statement given
by the judge on the grounds of decree or order
 But the word judgement occurring in section 109 of the Code (as also in 133 of Indian
constitution) has not the same meaning as given in definition clause. The context in which the word
has been used clearly postulates that it is the decision or adjudication which puts to an end a suit or
proceeding and not the reasons in support of such decisions or adjudication. To be appealable under
this section, the judgement must be final and the rights of the parties must have been finally
determined. In order to be a judgement, there must be a decision pronounced by a Court in a cause
on merits. Interim or interlocutory order, therefore cannot be said to be a judgement, e.g., an order
of remand. Where the High Court decides only one of the issues without disposing of the suit, there is
no judgement. The omission of the word Final to qualify judgement is not material and does not
change legal position.

Decree- Decree has been defined in section 2(2) of the code as the formal expression of an
adjudication which, so far as regards the court expressing it, conclusively determines the rights of the
parties with regards to all or any of the matters in controversy in the suit. Rule 1 of order 45,
however, states that unless there is something repugnant in the subject or context, the expression
decree shall include a final order.

The term decree will include both preliminary as well as final decree. At one time, a decision of a
High Court on a cardinal issue was to be held to be decree within section 109 of the code.
Subsequently, however the view was changed. Thus, an order of the High Court determining a plea of
limitation or rejecting an application for condonation of delay in filing an appeal; were not held to be
decree. Similarly, a decision given by the High Court on reference under a taxing statute is not a
decree. Again, where the High Court gives decision on one of the several issues, the order cannot be
termed as decree.

Final Order-

i. Meaning- The word order has been defined in the code as the formal expression of any
decision of a civil Court which is not a decree.
The expression final order has not been defined in the code though section 109 uses the
said expression. Article 132, 133 134 and 134-A of the Constitution also refer to final
order.
ii. Explanation- For the purpose of this article, the expression final order includes an order
deciding an issue which, if decided in favour of the appellant, would be sufficient for the
final disposal of the case.
iii. Nature and Scope though the code does not define Final order, it has been used in the
ordinary sense and means an order which puts or purports to put an end to the litigation
between the parties. The word final order have been used in contradistinction to the
words interlocutory order. The word Final controls the word order and, hence, it is
an order of that nature which can be brought before the Supreme Court under this section.

In case Rahimboy v. Turner, interpreting the provisions of Section 595 of the old code of 1882, the
Privy Council observed that an order determining the defendants liability and directing accounts to be
taken can be said to be final order. It was held that an order can be termed as Final order if it
decides the cardinat point in the case not withstanding that there may still be subordinate enquiries
to make.

A similar view was taken in Muzhar Hossein V. Bodha Bibi. In that case a will was held invalid by the
trial court. The High Court, however, different from the Court of first Instance, held the will valid and
remanded the matter. The question before the Privy Council was whether the order passed by the High
Court could be said to final order. The Privy Council held the order as final as it decided the
cardinal issue in controversy (validity of the will).

CERTIFICATE.

The provisions for granting or refusing certificate by the High Court obtained for appeal to the
Supreme Court is laid down in Article 134A of the Constitution.

Nature of Certificate- whether Conclusive

In the case of Venkatramana it was held that by Article 133, the Supreme Court may entertain a
preliminary objection that appeal does not lie before the Supreme Court. Venkatramana v. State of
Mysore. Hence the certificate is not conclusive in nature. The Supreme Court can examine imperative
of the certificate granted by the High Court, whether the case fulfils the requirements of article 133 or
not. The Court may refuse to entertain an appeal in spite of certificatete Manehar V. Chranchandr. In
the case of Nirod, the Supreme Court examined the criteria for granting or refusing a certificate as
stated by article 133 and section 109. The word certifies carries its normal dictionary meaning, but
the criteria or granting or refusing a certificate has been subject of judicial scrutiny. In the case of
Nirod the Supreme Court said that the High Court In determining whether certificate should be
granted or should be refused, should be confined to two question, namely, whether the case involves
a substantial question of law of general importance, and whether the question need to be decided by
the Supreme Court. Thus the Supreme Court stressed on strict Compliance of the statutory
requirements for entertaining a question of certificate; Nirod v. Deputy Commissioner.

Here the law requires the High Court to simplify, but at the same time, expressly state, while granting
a certificate that the case involves a substantial question of law of general importance and that it needs
to be decided by the Supreme Court. The High Court is not required to record reasons for arriving at
that said conclusion. The law does not say that the High Court will grant certificate for reasons to be
recorded.

However, in Express Newspaper v State of Madras, the Supreme Court held that the certificate must
give reasons.

Substantial question of law is such a question of law which materially influences

decision of a particular issue. If a particular view of the law is taken, it may turn the decision one way
or other. Then, all questions of law are substantial question of law; Raghunath v. Deputy
Commissioner.

Power to grant certificate whether mandatory

A division bench of the high court of Calcutta held that even if all the tests are satisfied, the High
Court may refuse certificate on that ground that the error may be corrected in a similar case in future
by a special Bench. State of West Bengal v. Somendra Kumar Mitra.
 QUESTION OF LAW AND SUBSTANTIAL QUESTION OF LAW

Question of law- The Supreme Court explained the meaning of the term law and said that it is not
restricted to statutory law. The term in the present context means the general law. The Supreme Court
asked some case for example also. In the case of Nafar Chandra pal v. Shankar the court said that the
legal effect of a proved fact is a question of law. In the case of Deshmukh v. Kothari the Supreme
Court said that the application of section 18 of Limitation Act upon proved fact is a question of law.
Whether a property is secular or debettar, or whether the defendant had accepted the mortgage deed,
as binding obligation upon himself are the cases of question of law.

Substantial question of law- An appeal lies to the Supreme Court only if the High Court certifies
that the case involves substantial question of law of general importance, which in the opinion of the
High Court needs to be decided by the Supreme Court.

Though the expression substantial question of law has not been defined in the code, expression has
been used in section 100 of the Code and it has the same meaning in section 109 also.

The expression involves conveys that such a question must have arisen in the case and there is
considerable degree of necessity to decide it,

In the following situations it can be said that the case involves such question:

a) The question has been raised and decided; or

b) The question has been raised but not decided; or
c) The question, though not raised, yet decided.

But a question neither raised before the Court nor considered nor decided by the Court cannot be said
to be substantial question of involved in the case. Likewise, if the question is settled by the Supreme
Court, Federal Court or Privy Council, the application of the principle to the facts of a particular case
does not make the Substantial question of law.

The Supreme Court may, however permit such question by granting Special Leave to Appeal under
Article 136 of the Constitution.

GENERAL IMPORTANCE

Nature and Scope-

No certificate of fitness to appeal in Supreme Court can be granted by the High Court unless it is
satisfied that a substantial question of law involved is of general importance. Thus, it is not only
substantial question of law which is important, it is further necessary that such question should be of
general importance.
"Substantial question of law of general importance"

The words "substantial question of law" are further qualified by the words "of general importance". It
is therefore, clear that a substantial question of law involved in the case must also be of general
importance. In other words, a case must involve both;

(i) substantial question of law; and

(ii) (ii) a question of general importance.

A substantial question of law may or may not be of general importance. Where such question affects
the rights of the parties to the litigation, it is covered by Section 100 of the Code but not by the
Section 109. Where the question affects over and above parties to the litigation, general public or
public at large, it will attract Section 109 of the Code and Article 133 of the Constitution.

Substantial question of law "of general importance" and "as to interpretation of the
Constitution"

Under Article 133 of the Constitution and Section 109 of the Code, an appeal can be filed in the
Supreme Court if Substantial question of law of general importance is involved, whereas, under
Article 132 of the Constitution, such appeal is maintainable if the case involves a substantial question
of law as to interpretation of the Constitution.

When the certificate is governed by the High Court under Article 132(substantial question of law as to
interpretation of the Constitution), the appeal can be heard by a Constitution Bench of two or three
Judges. It is, however, open to parties to urge that question as to interpretation of the Constitution is
involved. In that case the appeal will be placed fir hearing before the Constitution Bench.

When constitutional validity or VIRES of the statute is challenged, it cannot be said that it raises only
a question of interpretation of the statute and not of the Constitution. In adjudicating VIRES of a
statute in the light of the provisions of the Constitution, there is mutual relation between the statute
and Constitution. Both are normally inseparably linked together and any attempt to theoretically
dissociate them might mean indulging in legal nicety which will not be appropriate to the principles of
interpretation of the Constitution.

Power and duty of High Court-

Where the High Court is satisfied that the case involves a substantial question of law of general
importance, which needs to be decided by the Supreme Court, it will grant certificate of fitness for
appeal to the Supreme Court.

It is no doubt true that formation of opinion by the High Court is one of the conditions for grant of
certificate. but it is equally true that it is not purely subjective and if the question involved is a
substantial question of law of general importance based on objective facts, which needs to be decided
by the Supreme Court, the High Court cannot refuse to grant certificate of fitness.

Substantial question of law of general importance involved:

The following questions were held to be substantial question of law of general importance:

a) A question of law where there is conflict of judicial opinion;

b) A question relating to distribution of legislative power between Union and State;
c) A question pertaining to effect in amendment in a statutory provision;
 d) Construction of agreement between rival temples affecting public at large;
e) A question of jurisdiction of Civil Court;
f) A question relating to VIRES of a statute;
g) An order regarding taking of disciplinary action against a legal practitioner; etc.

QUESTION NEEDS TO BE DECIDED BY THE SUPREME COURT

It is not sufficient that the case involves a substantial question of law of general importance. In
addition High Court should be of the opinion that such question needs to be decided by the Supreme
Court.

The word "needs" suggest that there should be imperative necessity arising from the fact and
circumstances of the case. Such a necessity may be said to exist where two views ate possible on a
question of law and High Court has taken one of the said views; or where different views have been
expressed by the different High Court or question turns on application of first principles and case law
does not throw light on it.

In STATE BANK OF INDIA V N. SUNDARA MONEY, Apex Court said stated: " The certificate
issued by the High Court under article 133(1) is bad on its face, according to the counsel for
respondent and the appeal consequently incompetent. We are inclined to agree that grant of
constitutional passport to the supreme Court by the High Court is not a matter of easy insouciance but
anxious advertence to the dual vital requirements built into Article 133(1) by specific amendment.
Failure here stultifies the scheme of the article and floods this Court with cases of lesser magnitude
with illegitimate entry.A substantial question of law of general importance is a SINE QUA NON to
certify fitness for hearing by the Apex Court. Nay, more; the question, however important and
substantial, must be of such pervasive import and deep significance that in the High Court's
Judgement it imperatively needs to be settled at the national level by highest Bench."

Applying the doctrine to Article 136 of the constitution, Krishna Iyer, J., Proceeded to state: "It is but
fair to add an implied but important footnote that while exercising the wider power under Article 136
this Court must have due regard to the Constitutional limitations on Articles 133(1) and owe
negligence to those restraints save in exceptional cases."

It is however, submitted that the larger and wider observations on interpretation of the Article 136 of
the constitution are more in the nature of OBITER rather than proposition of law. Moreover, they also
do not reflect the correct legal position. Had that been the intention of the Founding Fathers of the
Constitution, the phraseology used in Article 133 could have been repeated in Article Article 136 as
the Drafters were conscious and aware of the language used in Article 133. The observations were
also against the interpretation of Article 136 by the Supreme Court in numerous decisions. It was
rather "unfair" to have added "an implied but important footnote" to Article 136. The above
observations, in the humble opinion of the author, require consideration.

The Grant of Constitutional passport to approach the Supreme Court by the High Court is not a matter
of easy insouciance but anxious advertence to the dual vital requirement built into section 109 and
Article 133 of the Constitution.
But once the certificate is granted and the appeal is lodged in the Supreme Court, it is open to the
appellant to raise all grounds which rise in the appeal.

PROCEDURE, LIMITATION AND DIRECT APPEAL TO THE SUPREME COURT

Procedure- Order 45 of the (First) Schedule lays down procedure for making application for leave to
appeal to the Supreme Court, grant of certificate, furnishing of security for costs of the respondent,
deposit of expenses, admission of appeal, execution of orders of the Supreme Court, etc.

Limitation- Article 133 of the Limitation Act, 1963 provides that an application fir leave to appeal to
the Supreme Court can be filed within 90 days from the date of decree, judgement or final order.

The provision of Limitation Act, however has to be read in the light of and subject to Article 134-A of
the Constitution. By the Constitution (Forty-Forth Amendment) Act, 1978 , Article 134-A has been
inserted with effect from august 1, 1979. It states that every High Court, passing or making a
judgement, decree or final order or sentence referred to in Article 132(1) or 133(1) or 134(1), may, if
it deems so to do, either SUO MOTO or shall , if an oral application is made, by or on behalf of the
party aggrieved, IMMEDIATELY AFTER THE PASSING OR MAKING OF SUCH JUDGEMENT,
DECREE FINAL ORDER OR SENTENCE, determine whether a certificate may be given or not.

The effect of Amendment is that if an aggrieved party wants to approach the Supreme Court under
Article 132, 133 or 134 after getting certificate from the High Court, He will have to make an oral
application IMMEDIATELY after the pronouncement of judgement, and if such an application is not
made immediately, by resorting to Article 133(b) of the Limitation Act, 1963 he may not be able to
file an application within sixty days. The reason is that the source of power is Articles 132, 133, 134
read with Article 134-A of the Constitution and if an application is not made as per the provisions of
the Constitutions, the matter must come to an end. The procedural law [ Article 133(b), Limitation
Act, 1963] cannot override the substantial law (Article 134-A of the Constitution) and such an
application even if it is filed within period if sixty days from the date of judgement, decree or order,
etc. as per Article 133(b) of the Limitation Act, 1963 it is not maintainable at law. The opinion that in
the light of Constitution (Forty- fourth Amendment) Act, 1978, Article 133(b) of the Limitation Act,
1963 ought to have been and requires to be amended. But ever if it is not done, it cannot override the
provisions of the Constitution.

Appeal direct to the Supreme Court- whether permissible

The Supreme Court has made it clear that rights of appeal before it refers to appeals under articles 132
and 133 against ant judgement, decree or final order of the High Court, other conditions being
satisfied. The Appellant could not directly approach the Supreme Court against orders of the District
Court; SHIN-ETSU CHEMICAL CO. LTD. V. VINDHYA TELELINKS LTD.

CIVIL PROCEEDING
A Full Bench of High Court of Kerala said that any proceeding involving the adjudication of a right to
property or any other civil right would be a civil proceeding; DHANALAKSHMI VILAS CASHEW
CO. V PRESIDENT, CASHEW INDUSTRIES STAFF ASSOCIATION,

A Proceeding is a civil proceeding if it relates to a civil right, whether resting on, common law or
created by statute; NARAYAN ROW V. ISHWARLAL BHAGWANDAS

In RAMESH V. GENDA LAL, it was held that a proceeding under article 226 of the Constitution is a
civil proceeding. Allahabad High Court in BHAGWANDASS AND CO. PRIVATE LTD. V INCOME
TAX OFFICER, DEHRADUN also examined the meaning and nature of the term ' civil proceeding'.

This was an application for a certificate under articles 132 and 133 of the Constitution and section 109
and 110 of the Code of Civil Procedure in respect of an order passed by this Court on 28th of
February, 1958, on a petition for issue of writs under article 226 of the Constitution. So far as article
132 of the Constitution is concerned, learned counsel for the applicant has not advanced any
arguements at all to show that case, which came up before this Court, or the appeal which is sought to
be taken before the Supreme Court raises any Substantial question of law as the interpretation of the
Constitution. Article 132 of the Constitution is, therefore, clearly not applicable.

There was another preliminary objection that this order was passed in proceedings which could not be
held to be civil proceedings and this was an additional ground on account of which no certificate is
granted under article 133 of the Constitution or section 109 and 110 of Code of Civil Procedure but,
because of the view we are taking on the first point, we have not considered it necessary to enter into
this second point.

Under the Constitution, discretion was vested in the High Court to exercise its Powers was laid down
in the rules of Court. The Rules of Court required that an application should be made to this Court for
exercising that discretionary power only by persons who are interested.

It was in this sense that the Court held that petitioner in that case was entitled to move the Court for
relief under article 226 of the Constitution. What the Court did was merely to say that, being a person
interested, he was the appropriate person for moving the Court to exercise its discretion under article
226 of the Constitution and not to lay down that such a person had any legal right to move the Court
and to claim issue of writ, direction or order under article 226 of the Constitution, as of right,
provided that the merits of his claim justified it. In the Circumstances, this decision does not go
against the view which was taken by full bench of this court in the case.

In these Circumstances, the Court held the view that the order, against which this application was
moved, was not a judgement or a final order as it did not decide any right of an applicant which might
have been the subject-matter of dispute before other authorities or Tribunals, in respect of which the
applicant has been left to seek his remedy in accordance with the appropriate procedure provided by
law