CPC PROJECT WORK

CIVIL APPEAL TO THE SUPREME COURT

UNDER THE CPC AND THE CONSTITUTION:
A CRITICAL ANALYSIS

Submitted To:
Ms. Neha Sinha
Faculty, CPC

Submitted By:
Sanjeev Ratna Shukla
B.A.LL.B. (Hons.)
Semester IX, Section A,
Roll No. 124
Date of Submission: 18th October 2016

Hidayatullah National Law University, Raipur

1

Declaration

I, Sanjeev Ratna Shukla hereby declare that this project work is an

original piece of research and is not a result of plagiarism, the sources of data
has been adopted from other sources as well and proper mention about such
sources has been made in the form of footnotes and in bibliography.
I have completed this project work under the guidance of Ms. Neha
Sinha, faculty of CPC, Hidayatullah National Law University. Raipur (C.G).

Sanjeev Ratna Shukla

Roll No. 124
Semester -IX
B.A. L.L.B (Hons.)

ACKNOWLEDGEMENTS

Thanks to the Almighty who gave me the strength to accomplish the project with
sheer hard work and honesty.
This research venture has been made possible due to the generous co-operation of
various persons. To list them all is not practicable, even to repay them in words is beyond the
domain of my lexicon.
May I observe the protocol to show my deep gratitude to the venerated Faculty-incharge Ms.Neha Sinha for her kind gesture in allotting me such a wonderful and elucidating
research topic. Maam, your sincere and honest approach have always inspired me and pulled
me back on track whenever I went astray.
Last, but by no means the least, I would like to thank all the members of HNLU
family in general and my blooming and charismatic friends in particular for their
wholehearted co-operation throughout the odyssey.
I take this opportunity to also thank the University and the Vice Chancellor for
providing extensive database resources in the Library and through Internet.

Sanjeev Ratna Shukla

Semester - IX
B.A. L.L.B (Hons.)

TABLE OF CONTENT

S No.

Topic

Page No.

I
II
III

Introduction
Objectives
Research Methodology

1
2
2

IV

Chapter 1:

Appeal under the Act

Chapter 2:
Appeal under the Constitution

VII

Conclusion

13

VIII

Bibliography

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INTRODUCTION

The expression appeal has not been defined in the Code of Civil Procedure 1908. It is an
application or petition to appeal higher Court for are consideration of the decision of appeal
lower court. It is appeal proceeding for review to be carried out by appeal higher authority of
appeal decision given by appeal lower one. An appeal is appeal creature of statute and right to
appeal is neither an inherent nor natural right.

Statutory Right
Right to appeal is statutory and substantive right. It is not merely appeal procedural right.
Statutory right means must be conferred by statute unless it provides there wont be any right
to appeal. While right to institute a suit is not conferred by law. The right is inherent. But
right to appeal has to be conferred by appeal statute. Where statute provides for right to
appeal, it may constitute appeal machinery where shall the appeal lie. While the same isnt
true for right to sue. A civil suit has to be filed subject to condition of jurisdiction. An appeal
is appeal substantive right. Right to appeal cant be taken retrospectively because general rule
of specific interpretation. Substantive law operates prospectively unless an express statute
provides so.

When Does Right To Appeal Accrues To Any Person?

As soon as judgment is pronounced against party, right to appeal arises. Right to appeal
doesnt arise when adverse decision is given, but on the day suit is instituted i.e. proceedings
commenced, right to appeal get conferred. Thus, it can be said the Right to appeal is appeal
substantive right vested in parties from the date suit instituted. The right to appeal can be
waived by a party under a legal and valid agreement, and if a party has accepted the benefits
under the decree, he is stopped from challenging its legality. The right to appeal also stands
destroyed if the court to which appeal lies is abolished altogether without any forum being
substituted in its place.

OBJECTIVES

To understand the concept of appeal to Supreme Court under CPC.

To understand the concept of appeal to Supreme Court under Constitution.

RESERCH METHODOLOGY

The method of research adopted for the project is analytical methodology. For the present
project relevant data and information has been received and collected from secondary sources
and there has been use of authentic books and websites that provided reliable information and
data.

CHAPTER 1:
APPEALS UNDER THE CIVIL PROCEDURE CODE, 1908

The Civil Procedure Code provides for an appeal to the Supreme Court under Section 109.
An appeal would lie to the Supreme Court under Section 109 of the Code only if the
following conditions are fulfilled:
(a) a judgment, decree or final order must have been passed by the High Court;
(b) a substantial question of law of general importance must have been involved in the
case; and
(c) in the opinion of the High Court, the said question needs to be decided by the
Supreme Court.
(I) Judgment, decree or final order
An appeal lies to the Supreme Court only against a judgment, decree or final order of the
High Court. A judgment, decree or final order against which an appeal can be preferred to the
Supreme Court must be one which purports to put an end to the litigation between the
parties.1 No certificate can be granted in respect of an interlocutory order.2 The test whether
the order is final or not will not depend on whether the controversy as finally over, but
whether the controversy raised before the High Court is finally over or not.3

(II) Substantial question of law of general importance

An appeal would lie to the Supr4eme Court if the High Court certifies that the case involves a
substantial question of law of general importance. The expression substantial question of law
of general importance has not been defined in the Code, but it is clear that the High Court can
grant certificate under Section 109 only when it is satisfied that the question of law involved
in the case is not only substantial but also of general importance. In other words, the
1 Jhethanand G. Sons v. State of UP, AIR 1961 SC 794
2 Syeda Taker Satfuddm v. State of Bombay, AIR 1958 SC 253.
3 Ramesh v. Gendalal Mottlal Palm, AIR 1966 SC 1445.
4

substantial question of law must be such that, apart from the parties to the litigation, the
general public should be interested in determination of such question by the Supreme Court,
e.g., it would affect a large number of persons or a number of Proceedings involving the same
questions.5 Therefore, if the question is settled by the Supreme Court, the application of the
principle to the facts of a particular case does not make the question a substantial question of
law of general importance.6
The test to determine whether a question was a substantial question of law or not, was laid
down by a Constitution Bench of the SC in Chunilal V. Mehta and Sons Ltd. v. Century Spg.
and Mfg. Co. Ltd. while determining the said expression occurring in Article 133(1) of the
Constitution of India. The Supreme Court laid down the test as follows:
The proper test for determining whether a question of law raised in the case is
substantial would, in our opinion, be whether it is of general public importance or
whether it directly and substantially affects the rights of the parties and if so whether
it is either an open question in the sense that it is not finally settled by this Court or
by the Privy Council or by the Federal Court or is not free from difficulty or calls for
discussion of alternative views. If the question is settled by the highest court or the
general principles to be applied in determining the question are well settled and there
is a mere question of applying those principles or that the plea raised is palpably
absurd, the question would not be a substantial question of law.

In MSV. Raja v. Seeni Thevar7, it was held by the Supreme Court that the formulation of a
substantial question of law may be inferred from the kind of questions actually considered
and decided by the High Court in second appeal, even though the substantial questions of law
were not specifically and separately formulated. The observations made by the Court in this
regard are as follows:
We are unable to accept the argument of the learned Senior Counsel for the
appellants that the impugned judgment cannot be sustained as no substantial question
of law was formulated as required under S. 100 CPC. In para 22 of the judgment the
5 Chunnilal v. Mehta and Sons Ltd v Century Spa, AIR 1962 SC 2319.
6 SBI v. N. Sundara Money, (1976) 1 SCC 822.
7 AIR 1991 SC 1233.

High Court has dealt with substantial questions of law. Whether a finding recorded by
both the courts below with no evidence to support it was itself considered as a
substantial question of law by the High Court. It is further stated that the other
questions considered and dealt with by the learned Judge were also substantial
questions of law. Having regard to the questions that were considered and decided by
the High Court, it cannot be said that substantial questions of law did not arise for
consideration and they were not formulated. Maybe, substantial questions of law were
not specifically and separately formulated. In this view, we do not find any merit in
the argument of the learned counsel in this regard.

(III) Need to be decided by Supreme Court

It is not sufficient that the case involves a substantial question of law of general importance,
but, in addition to it, the High Court must be of the opinion that such question needs to be
decided by the Supreme Court. The word needs suggest that there has to be a necessity for a
decision by the Supreme Court on the question, and such a necessity can be said to exist
when, for instance, two Views are possible regarding the question and the High Court takes
one view of the said views. Such a necessity can also be said to exist when a different view
has been expressed by another High Court.8

PROCEDURE AT THE HEARING

(a) Application for leave and certificate of fitness
Whoever desires to appeal to the Supreme Court shall apply by a petition to the court whose
decree is sought to be appealed from. 9 Ordinarily, such a petition should be decided within
sixty days from the date filing of the petition. 10 Every petition should state the grounds of
appeal and pray for the issue of a certificate
(I)

that the case involves a substantial question of law of general importance; and

8 See, Or. 45 R. 2(1).

9 See, Or. 45 R. 2(2).
10See, Or. 45 R. 3.

(II)

that in the opinion of the court the said question needs to be decided by the
Supreme Court.11 After notice to the other side, the court may grant or refuse to
grant the certificate.

These provisions, however, must be read in the light of and subject to Article 134-A of the
Constitution. By the Constitution (Forty-fourtl1 Amendment) Act, 1978, Article 134-A has
been inserted with effect from 1 August 1979. It states that every High Court, passing or
making a judgment, decree, 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 motu or shall, if an oral application is made, by
or on behalf of the party aggrieved, immediately after the passing or making of such
judgment, decree, final order or sentence, determine whether a certificate may be given or
not.
The effect of the 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 the judgment, and if
such an application is not made immediately, by taking resort to Article 133(1) of the
Limitation Act, 1963, he may not be able to approach the Supreme court. The reason is that
the source of power is Articles 132, 133, 134 read with Article 134-A, and if an application is
not made as per the provisions of the Constitution, the procedural law cannot override the
substantive law and such an application even if it is filed within a period of sixty days from
the date of judgment, order, etc. as per Article 133(b) of the Limitation Act, 1963, it is not
maintainable at law. Therefore, in the light of the Constitution (Forty-fourth Amendment)
Act, 1978, Article 133(1) of the Limitation Act, 1963 requires to be amended. But even if it is
not done, it cannot override the provisions of the Constitution. 12
(b) Security and deposit: Rules 7, 9 & 12
When the certificate is granted, the applicant should furnish security for the costs of the
respondent and also deposit the expenses for translating, printing, indexing, etc. within the
stipulated period. The court may revoke acceptance of security. The court has also the power
to refund the balance of the deposit after necessary deductions for expenses.13

11See, Or. 45 R. 3(2),6,7.

12 Keshava S. Jamkhandi v. Ramchandra S. Jamkhandu, AIR 1981 Kant. 976.
13 See, Or. 45 R 7,9,12.

(c) Admission of appeal: Rule 8

Where the directions regarding furnishing of security and making of deposit are carried out,
the court shall declare the appeal admitted, give notice thereof to the respondent and transmit
the record to the Supreme Court. If the security furnished or the costs deposited appears to be
inadequate, the court may order further security to be furnished or costs to be deposited. If the
appellant fails to comply with such order, the proceedings shall be stayed and the appeal shall
not proceed with. out an order of the Supreme Court. The execution of the decree shall not be
stayed meanwhile.
(d) Powers of court pending appeal
The pendency of an appeal to the Supreme Court does not affect the right of the decreeholder to execute the decree unless the court otherwise directs. The court may stay execution
after taking sufficient security from the appellant or it may allow the decree to be executed
after taking sufficient security from the respondent.
(e) Execution of orders of Supreme Court: Rules 15-16
The appeal will then be heard by the Supreme Court and an order will be made. Whoever
desires to execute a decree or an order of the Supreme Court shall apply by a petition
accompanied by a copy of the decree or order sought to be executed to the court from which
the appeal was preferred to the Supreme Court. Such court shall transmit the record of the
Supreme Court to the trial court or to such court as the Supreme Court may direct, with the
necessary directions for execution of the same. The court to which it is transmitted shall
execute it in the same manner as it executes its own decrees and orders.21 The orders relating
to such execution shall be appealable in the same manner as the orders relating to the
execution of its own decree.

CHAPTER 2:
APPEALS UNDER THE CONSTITUTION OF INDIA

Right of appeal under constitution of India

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The Supreme Court has original, appellate and advisory jurisdiction. Its exclusive original
jurisdiction extends to any dispute between the Government of India and one or more States
or between the Government of India and any State or States on one side and one or more
States on the other or between two or more States, if and insofar as the dispute involves any
question (whether of law or of fact) on which the existence or extent of a legal right depends.
The appellate jurisdiction of the Supreme Court can be invoked by a certificate granted by the
High Court concerned under Article 132(1), 133(1) or 134 of the Constitution in respect of
any judgement, decree or final order of a High Court in both civil and criminal cases,
involving substantial questions of law as to the interpretation of the Constitution. Appeals
also lie to the Supreme Court in civil matters if the High Court concerned 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. In
criminal cases, an appeal lies to the Supreme Court if the High Court (a) has on appeal
reversed an order of acquittal of an accused person and sentenced him to death or to
imprisonment for life or for a period of not less than 10 years, or (b) has withdrawn for trial
before itself any case from any Court subordinate to its authority and has in such trial
convicted the accused and sentenced him to death or to imprisonment for life or for a period
of not less than 10 years, or (c) certified that the case is a fit one for appeal to the Supreme
Court. Parliament is authorised to confer on the Supreme Court any further powers to
entertain and hear appeals from any judgement, final order or sentence in a criminal
proceeding of a High Court.
The Supreme Court has also a very wide appellate jurisdiction over all Courts and Tribunals
in India in as much as it may, in its discretion, grant special leave to appeal under Article 136
of the Constitution 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 133 of Constitution of India

Before 1972, there was a right of appeal to the Supreme Court from a decision of a High
Court if the subject-matter involved in the dispute was valued at Rs.20, 000 or more. This has
now been changed. Article 133 was amended due to following reasons and objects, This Bill
seeks to give effect to the recommendations of the Law Commission of India in its Forty8

fourth and Forty-fifth Reports on Civil Appeals to the Supreme Court on certificate of
fitness. At present, an appeal lies to the Supreme Court, inter alia, on a certificate given
by a High Court that the amount or the value of the subject-matter of dispute is not less than
twenty thousand rupees or that the judgment, decree or final order involves, directly or
indirectly, some claim or question respecting property of the like amount. The valuation
cannot be the rational yardstick for a right to appeal. An important question of law can arise
even in suits of small value and the test of valuation results in cases without merit going up to
the Supreme Court. The Law Commission recommended that clauses (a) and (b) of article
133(1) of the Constitution should be omitted and that an appeal should lie to the Supreme
Court only if the High Court certifies that the case involves a substantial question of law of
general importance and that in the opinion of the High Court the said question needs to be
decided by the Supreme Court. The amendment of the article accordingly would curtail the
number of appeals which are filed in the Supreme Court merely on the valuation test being
satisfied, without any merit in them. The Bill seeks to achieve this object. The present article
looks like this:133. Appellate jurisdiction of Supreme Court in appeals from High Courts in regard to
civil matters.(1) An appeal shall lie 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 under Article 134A(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.
(2) Notwithstanding anything in Article 132, any party appealing to the Supreme
Court under clause (1) may urge as one of the grounds in such appeal that a
substantial question of law as to the interpretation of this Constitution has been
wrongly decided.
(3) Notwithstanding anything in this article, no appeal shall, unless Parliament by law
otherwise provides, lie to the Supreme Court from the judgment, decree or final order
of one Judge of a High Court.

Article 133 discards the distinction between appellate and original jurisdictions of the High
Court. Art. 133 deliberately uses the words which are as wide as language can make them. It
includes all judgments, decrees and orders passed in the exercised of appellate or ordinary
original civil jurisdiction.
For purposes of Art. 133(1), the proper test to determine whether a question of law is
substantial or not is whether it is of general public importance, or whether it directly and
substantially affects the rights of the parties, and if so, whether it is either an open question in
the sense that it is not finally settled by the highest court, or is not free from difficulty, or calls
for discussion of alternative views.
The Supreme Court has emphasized that for grant of the certificate, the question, howsoever
important and substantial, should also be of such pervasive import and deep significance that
in the High Courts judgment it imperatively needs to be settled at the national level by the
highest court, otherwise the Apex Court will be flooded with cases of lesser magnitude. 14 The
certificate granted by the High Court does not obligate the Supreme Court to hear the case,
and it is entitled to determine whether the certificate was rightly granted, and whether the
conditions pre-requisite to the grant were satisfied.15
When there is no justification for issuing the certificate by the High Court, the Supreme Court
can always revoke it. In Express Newspapers Ltd. v. State of Madras 16, the Supreme Court
revoked the certificate granted by the High Court as, in the opinion of the Supreme Court, on
facts, no substantial question of law was involved. 17 When the High Court has given such a
certificate then the appeal before the Supreme Court is not limited only to the specific
question of law, but the entire appeal will be before the Court. In an appeal to the Supreme
Court under Art.133, a question of constitutional law may also be raised [Art. 133(2)].
A High Court may grant a certificate, if it deems fit to do so, on its own motion. In the
alternative, an oral application can be made on behalf of the aggrieved party immediately
after the judgment, decree, final order or sentence. The High Court can thereafter decide, as
soon as may be, whether a certificate may be given in that case to take an appeal from its
14 Jain, M.P. (2010). Indian Constitutional Law. LexisNexis ButterworthsWadhwa Nagpur.
15 Biswani Pvt. Ltd. v. S.K. Dutta, AIR 1980 SC 226; M.M.Gupta v. State of J&K, AIR 1982 SC 1579
16 AIR 1981 SC 968;
17 V.T.S. Chandrasekhar Mudaliar v. Khulandaivelu Mudaliar, AIR 1963 SC 185.

10

decision to the Supreme Court. A High Court may grant a certificate, if it deems fit to do so,
on its own motion. In the alternative, an oral application can be made on behalf of the
aggrieved party immediately after the judgment, decree, final order or sentence. The High
Court can thereafter decide, as soon as may be, whether a certificate may be given in that
case to take an appeal from its decision to the Supreme Court.

Appeal by special leave

Article 136 runs as follows:
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 case or matter passed or made by any court or tribunal in the territory of
India.
Article 136 confers a special jurisdiction on the Supreme Court. It opens with a non-obstante
clause, viz.Notwithstanding anything in this chapter. This means that the power of the
Supreme Court under Art. 136 is unaffected by Arts. 132, 133, 134 and 134(A).
In Rajendra Kumar v. State18, the Supreme Court heard an appeal from the decision of the
Chief Judicial Magistrate. The appellant did not go to the High Court but came straight to the
Supreme Court. The Supreme Court did however observe that it does not ordinarily entertain
such petitions.
As the Supreme Court has stated in this connection:
the Court has special residuary power to entertain appeal against any order of
any court in the country. The plenary jurisdiction of this Court to grant leave and
hear appeals against any order of a court or tribunal, confers power of judicial
superintendence over all courts and tribunals in the territory of India including
subordinate courts of Magistrate and District Judge. This Court has, therefore,
supervisory jurisdiction overall courts in India19.
18 AIR 1980 SC 1510
19 Delhi Judicial Service Assn. v. State of Gujarat, AIR 1991 SC 2176 at 2194

11

The word order in Art. 136(1) has not been qualified by the adjective final as is the case in
Arts. 132, 133 and 134. The Supreme Court thus has power to hear an appeal even from an
interlocutory or an interim order. In practice, however, the Court does not ordinarily grant
leave to appeal from an interlocutory order, but it can do so in an exceptional case.
Under Article 136, the Supreme Court can hear appeal in a case involving substantial
question of constitutional law if the High Court refuses to grant the necessary certificate
under Art. 132. Similarly, the Supreme Court may entertain appeal in a civil case where
substantial question of law is involved but which is not covered by Article 133, as for
example, when the High Court may have re-fused to grant a fitness certificate. Ordinarily,
the Supreme Court does not entertain an appeal against an exercise of discretion by the court
below if it has been exercised along sound judicial lines.
But if the discretion is exercised arbitrarily or unreasonably, or is based on a
misunderstanding of the principles that govern its exercise, or the order has been passed
without jurisdiction, or if there is a patently erroneous interpretation of law by the High
Court, the Supreme Court would intervene if there has been a resultant failure of justice.
So also if the court below acts without jurisdiction, or in violation of principles of natural
justice or without a proper appreciation of material on record or the submissions made
interference under Art. 136 is warranted.

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CONCLUSION

Civil appeals as a matter of procedure is filed though Article 133 of Constitution of India,
though section 109 of Code of Civil Procedure provides for similar rights. After going
through plethora of cases one can understand that, if civil appeal is rejected due to any fault
in the grant of certificate by the High court i.e it does not complies with Article 133, parties
pray to treat the same application as special leave to appeal and decide upon the same. Court
has generally shown a reluctant attitude i.e it does interferes with such prayers. Lastly, the
author is of the opinion that High courts as a matter of fact are ignoring their duty to
judiciously grant the certificate to appeal, as matters which are not at all relevant to the public
at large or matters which does not involve any substantial question of law are also given the
approval to file an appeal to the Supreme Court, which has tremendously increased the
burden on Supreme Court and has undermined the very purpose to Article 133 i.e only
exclusive and special cases which affects the country as a whole and there is a need for
immediate law nationwide should be admitted.

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BIBLIOGRAPHY
Cases referred

Arbind Kumar v. Nand Kishore,

AIR 1968 SC 1227
Balai Chandra v. ShewdhariJadav,
AIR 1978 SC 1062
Biswani Pvt. Ltd. v. S.K. Dutta,
AIR 1980 SC 226
Delhi Judicial Service Assn. v. State of Gujarat,
AIR 1991 SC 2176
Keshava v. Ramachandra,
AIR 1981 Kant. 97
M. Satyanarayana v. State of Karnataka,
AIR 1986 SC 1162
M.M.Gupta v. State of J&K,
AIR 1982 SC 1579
Narayan Row v. Ishwarlal,
AIR 1965 SC 1818, 1822
Panchanan Mishra v. Digambar Mishra,
(2005) 3 SCC 143
Raghavamma v. Chenchamma,
AIR 1964 SC 136
Sita Ram V. State of U.P.
AIR 1979 SC 745
State Bank of India v. N. Sundara Money,
AIR 1976 SC 1111
V.T.S. Chandrasekhar Mudaliar v. KhulandaiveluMudaliar, AIR 1963 SC 185

Books/Articles

Durga Das Basu, Introduction to the Constitution of India (1991), Prentice Hall of

India Pvt. Ltd., New Delhi.

H.M. Seervai, Constitutional Law of India: A Critical Commentary, Vol. 2 (1984),

N.M. Tripathi Pvt. Ltd., Bombay.

Jain, M.P, Indian Constitutional Law. LexisNexis Butterworths Wadhwa Nagpur.
Takwani, C.K, Civil Procedure, Eastern Book Company.

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