NATIONAL LAW INSTITUTUTE

UNIVERSITY, BHOPAL

CPC PROJECT ON

“Appeal to Supreme Court under CPC and

other laws”

VIII TRIMESTER

Submitted to: Submitted by:

Prof. P.K Gupta Suyash Thakur
2008 B.A.LL.B 18
8th Trimester

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 TABLE OF CONTENTS

1. Introduction……………………………………… 4

2. History of the section………………………… 5

3. Functioning of the supreme court…………… 6

4. Appeal under code of civil procedure……… 8

5. Appellate jurisdiction of Supreme Court……… 10

6. Conclusion…………………………………………. 16

7. Bibliography……………………………………….. 17

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DECLARATION

I hereby declare it that the ideas expressed in the report are mine and not

of the University. The work reported in this report is original and not

reproduced anywhere without adequate acknowledgement.

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INTRODUCTION

India, being a common law country, derives most of its modern judicial framework from
the British legal system. There exists a uniform system of justice dispensation, with the
Supreme Court at the apex and High Courts in the States (provincial units in India), as
well as numerous other subordinate courts. Thus, in the strict sense, the Indian judicial
system does not operate on wholly federal lines, as may be seen in the United States. It
does not have a dual system of courts and the judiciary is one integrated whole. There are
no federal courts as such to decide federal questions exclusively.
The decisions of the subordinate courts are appealable in the High Courts. However,
though the High Courts function independently in their area of jurisdiction, their
decisions can be challenged in the Supreme Court. The procedures for this mechanism
are laid down in the Constitution and various rules have also been framed by the courts
for this purpose. It may be said, therefore, that the Indian judiciary operates on “quasi-
federal” lines.

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HISTORY OF THE SECTION

Under the present code of civil procedure, section 109 deals with appeal to the supreme
court. Section 109 to 112 of the code originally dealt with appeals to the Privy Council.
Consequent upon the passing of the Indian Independence Act, 1947, it was thought fit to
put an end to the jurisdiction of the Privy Council in this matter and to transfer such
jurisdiction to the Federal Court of India. The first step in this direction was the Federal
Court (Enlargement of Jurisdiction) Act, 1947. this Act provided for the enlargement of
the appellate jurisdiction of the Federal Court in Civil matters to the fullest extend
possible under section 206 of the Government of India Act, 1935, and for the abolition
pro tanto of all direct appeals in such cases from the High Courts to the Privy Council
either with or without special leave. The act, however, did not interfere with appeals
pending before the Privy Council or in respect of which special leave had been granted
by the Privy Council. The next step was the abolition of privy Council Jurisdiction Act,
1949, by which the jurisdiction of the Federal court was enlarged still further.
The effect of the Act was as follows:
With effect from 10th October 1949 the jurisdiction of His Majesty in Council to entertain
and dispose of appeals from any court other than the Federal Court in India, including
appeals in criminal matters, was put an end to and transferred to the federal Court. Only
the jurisdiction of the Privy Council in certain pending cases was not affected.

The Federal Court has now been succeeded by the Supreme Court under the new
Constitution.
In addition to the substitution of the Supreme Court for the Privy Council as the appellate
forum, the other main changes introduced in these sections are as follows:
1. the minimum value for appeal under clause (a) and (b) of sec. 110 has been raised
2. the words “judgment, decree or final order” have been substituted for the words
“decree or final order” in clause. (a) and (b) and for “decree or order” in clause (c)
by the Code of Civil Procedure.
3. section 111 has been repealed.

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Further the provisions are subject to the articles in Chapter IV of Part V of the
constitution of India .

Thus the predecessor of the present Supreme Court of India was the Federal Court
(established in 1937), which heard appeals from the High Courts, and whose decisions
were appealable to the Privy Council. The current Supreme Court of India enjoys the
combined jurisdiction of the Privy Council and the Federal Court, which are no longer in
existence.

FUNCTIONING OF THE SUPREME COURT

The Supreme Court is primarily a court of appeal and has extensive appellate jurisdiction.
Its primary function is to interpret the Constitution and declare whether or not any
legislation or administrative action is unconstitutional. The Supreme Court is the final
arbiter in all constitutional controversies. The law declared by the Supreme Court is
binding on all courts in India, and is the law of the land. The Court is a court of record
and can also punish for its contempt. Any judgment of the High Court can be brought
before it, if the High Court certifies that the matter at hand concerns a substantial
question of interpretation of law or the Constitution. Appeal to the Supreme Court is not a
matter of right. In cases where a High Court does not issue certificate of appeal, and there
exists an important legal question, recourse to “Special Leave” may be made, as per the
Constitution of India. This provision (Article 136 of the Constitution) enables the
Supreme Court 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. This power is extremely wide and enables the Supreme Court to act as a
check against improper exercise of jurisdiction by judicial or quasi judicial bodies as well
as maintain a uniformity of legal approach. In certain special circumstances, the Supreme
Court can also transfer to itself any case from any of the High Courts. This usually takes
place when cases are pending before the Supreme Court and High Court, or before two or
more High Courts, involving same or similar questions of law and the Supreme Court is
satisfied either suo motu or on an application made by the attorney general or any party to

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any case that such questions are of general importance, the Supreme Court may withdraw
the cases from the High Courts and dispose them itself. Thus, the Supreme Court
possesses the ultimate jurisdiction over all courts and legal proceedings in India and
enjoys a wide appellate power.

Relationship between High Court and Supreme Court

Generally speaking, the High Court is not subordinate to the Supreme Court. In a
way, the canvass of judicial power vested with the High Courts is wider inasmuch as its
writ jurisdiction is concerned. However, if the Supreme Court and the High Courts both
were to be thought of as brothers in the administration of justice, the High Court has
larger jurisdiction but the Supreme Court still remains the elder brother. This is because
though the Constitution allowed a certain degree of independence to the High Courts,
certain constitutional provisions were incorporated to give supervisory powers to the
Supreme Court. This was done to create a unified hierarchical judicial system in India,
with the Supreme Court at the pinnacle.
There are a few constitutional provisions which give an edge, and assign a
superior place in the hierarchy, to the Supreme Court over High Courts. So far as the
appellate jurisdiction is concerned, in all civil and criminal matters, the Supreme Court
is the highest and the ultimate court of appeal. It is the final interpreter of the law.
Secondly, the Supreme Court may transfer any case pending before one High Court to
another High Court or may withdraw the case to itself. Thirdly, the law declared by the
Supreme Court shall be binding on all courts, including High Courts, within the territory
of India. Lastly, all authorities, civil and judicial, in the territory of India, including the
High Court are under a constitutional obligation to act in aid of the Supreme Court.

Because of the fact that the Constitution confers an appellate power on the Supreme
Court over the High Courts, certain consequences naturally flow and follow. Appeal
implies in its natural and ordinary meaning the removal of a cause from any inferior court
or tribunal to a superior one for the purpose of testing the soundness of decision and
proceedings of the inferior court or tribunal. The superior forum shall have jurisdiction to
reverse, confirm, annul or modify the decree or order of the forum appealed against and

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in the event of a remand the lower forum shall have to re-hear the matter and comply
with such directions as may accompany the order of remand. The appellate jurisdiction
inherently carries with it a power to issue corrective directions binding on the forum
below.

APPEAL UNDER CODE OF CIVIL PROCEDURE

Provision for appeal to the Supreme Court is given under section 109, Order 45, Rule 3 of
the code.
An appeal would lie to the Supreme Court under section 109 of the code only if the
following conditions are fulfilled:
1. a judgment, decree or final order must have been passed by the High court;
2. a substantial question of law of general importance must have been involved
in the case; and
3. in the opinion of the High Court, the said question needed to be decided by the
Supreme Court.

Judgement, decree or final order.

An appeal lies to the Supreme Court only against a judgment, decree or final
order of the High Court. It should be one which purports to put an end to litigation
between the parties. No certificate is granted for an interlocutory order. The test
whether the order is final or not will depend upon whether the controversy is
finally over, but whether the controversy raised before the High Court is finally
over or not.

Substantial question of law of general importance

An appeal would lie to the Supreme 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
court. 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

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substantial but also of general importance. That is, it should 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. Example, it affect a large
no. of persons or a number of proceedings involving the same question. 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.

Need to be decided by the 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 suggests 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.

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APPELATE JURISDICTION OF THE SUPREME COURT

1. Constitutional Appeal:
Appeal under Article 132 of the Constitution – Appeal permitted if the High Court
certifies that the case involves substantial question of Law as to the interpretation of the
Constitution.
A very broad power is thus conferred on the Supreme Court to hear appeals in
constitutional matters. When the appeal is not competent under article 132 the Supreme
Court will not hear it even if the High Court has granted the necessary certificate.1
This article symbolizes the Supreme Court as the final court of constitutional
interpretation. Questions of constitutional interpretation are thus placed in a special
category irrespective of the nature of proceedings in which they arise. As divergent
interpretations of a constitutional provision by various high court would create
difficulties for the people, it is desirable that such questions are decided authoritatively as
soon as possible. Hence article 132 provides a machinery for this purpose.

2. Constitutional Civil Appeal:

Appeal under Article 133 of the Constitution – Appeal permitted from any Judgment,
decree or final order in a civil proceeding of High Court if the High Court certifies that
the case involves substantial question of Law of general importance and in its opinion the
said question needs to be decided by the Supreme Court.
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 are valued at Rs. 20000 or more. This
has now been changed. Article 133 discards the distinction between appellate and
original jurisdiction of the High Court. It deliberately uses words which are as wide as
language can make them. It includes all judgements, decrees and orders passed in the
exercise of appellate or ordinary original civil jurisdiction.
No appeal in a civil matter lies to the Supreme Court as a matter of right. It can lie only
on a certificate of a High Court issued on fulfilling of above two conditions.

1
Syedna Taher v. State of Bombay, AIR 1958 SC 253

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 3. Constitutional Criminal Appeal:
Appeal under Article 134 of the Constitution – Appeal permitted from any Judgment,
final order or sentence in a Criminal proceeding of High Court if (a) it 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 it and has in such
trial convicted the accused and sentenced him to death or (c) it certified that the case is a
fit one for appeal to the Supreme Court.
Article 134 confers a limited criminal appellate jurisdiction on the Supreme Court. Court
hears appeal only in exceptional criminal cases where justice demands interference by the
apex court. It was necessary to restrict the flow of criminal appeals to the supreme court.
The word “acquittal” in this provision has been interpreted broadly. It does not merely
mean that the trial should have ended in a complete acquittal but would also include a
case where an accused has been acquitted of the charge of murder and acquitted of a
lesser offence, and on appeal, the High Court reverses the decision of the trial court and
convicts the accused of murder; it would amount to reversing an order of acquittal and
the accused is entitled to appeal to the supreme court.

4. Constitutional Appeal by Special Leave:

Appeal under Article 136 of the Constitution -The Supreme Court may in its discretion
grant special leave to appeal from 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, “notwithstanding anything in this chapter”. This means that the power of
Supreme Court under this article is not affected by articles132, 133, 134 and 134 (A).
This power of the Supreme Court under this article is in the nature of residuary power.
The power is plenary in the sense that there are no words in article 136 qualifying that
power. It is a sweeping power, exercisable outside the purview of ordinary law to meet
the pressing demands of justice. Supreme Court has characterized its power under article
136 as “an unramelled reservoir of power incapable of being confined to definitional

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bounds , the discretion conferred being subjected to only one limitation, that is, the
wisdom and good sense of justice of the Judges.”
A petition for grant of special leave can be rejected on several grounds like:
1. the petition is time barred
2. defective presentation
3. petitioner lacks locus standi to file the petition.
4. conduct of the petitioner disentitles him to any indulgence by the court.
5. the question raised in the petition is not considered fit for the consideration by the
court, or does not deserve to be dealt with by the apex court.

5. Appeal under Criminal Procedure Code:

Section 379 of the Criminal Procedure Code, 1973 read with Section 2 of the Supreme
Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970, provides for an appeal
to 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 to
imprisonment for a period of not less than ten years; (b) has withdrawn for trial before
itself any case from any Court subordinate to its authority and has in such trial convicted
the accused person and sentenced him to imprisonment for life or to imprisonment for a
period of not less than ten years.

6.Appeals under other Law:

Statutory appeal lies to Supreme Court under following Acts of Parliament:
1. Appeal under Customs Act.
Section 130E of the Customs Act provides for an appeal to the Supreme Court from any
judgment of the High Court on a reference made under Section 130, in any case which
the High Court certifies to be a fit one for appeal to the Supreme Court, or any order
passed by the Appellate Tribunal relating, amongst other things, to the determination of
any question having relation to the rate of custom duty or the value of goods for the
purpose of assessment.

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2. Appeal under Central Excise and Salt Act
Section 35L of Central Excise and Salt Act provides for an appeal to the Supreme Court
from any judgment of the High Court delivered on a reference made under Section 35G,
in any case which the High Court certifies to be a fit one for appeal to the Supreme Court,
or any order passed by the Appellate Tribunal relating, amongst other things, to the
determination of any question having a relation to the rate of duty of excise or to the
value of goods for purpose of assessment.

3. Appeal under Consumer Protection Act, 1986

Section 23 of the Consumer Protection Act, 1986 provides for an appeal to the Supreme
Court from an order made by the National Commission, entertaining complaints where
the value of the goods or services and compensation, if any, claimed exceeds Rupees One
Crore.

4. Appeal under Contempt of Courts Act, 1971

Section 19(1)(b) of Contempt of Courts Act, 1971; provides for an appeal to the Supreme
Court, as of right, from any order or decision 13 of Division Bench of a High Court in
exercise of its jurisdiction to punish for contempt.

5. Appeal under Advocates Act, 1961

Section 38 of Advocates Act, 1961: provides for an appeal to the Supreme Court from an
order made by the Disciplinary Committee of the Bar Council of India under Section 36
or 37 of the said Act.

6. Appeal under Representation of Peoples Act

Section 116A of Representation of People Act; provides for an appeal to the Supreme
Court on any question, whether of law or fact, from every order passed by a High Court
under Section 98 or Section 99 of the said Act.

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7. Appeal under Special Court (Trial of offences relating to Transaction and Securities)
Act, 1992
Section 10 of the Special Court (Trial of offences relating to Transaction and Securities)
Act, 1992); provides for an appeal lies to the Supreme Court from any judgment,
sentence or order not being interlocutory order, of the special court, both on fact and on
law.

8. Appeal under Telecom Regulatory Authority of India Act

Section 18 of Telecom Regulatory Authority of India Act; provides for an appeal to the
Supreme Court against any order not being an interlocutory order, of the Appellate
Tribunal, on one or more of the grounds specified in Section 100 of Code of Civil
Procedure.

9. Appeal under Electricity Act, 2003

section 125 of the act provides for appeal to supreme court. It reads as under:
Any person aggrieved by any decision or order of the Appellate Tribunal,
may, file an appeal to the Supreme Court within sixty days from the date of
communication of the decision or order of the Appellate Tribunal, to him, on any
one or more of the grounds specified in section 100 of the Code of Civil
Procedure,1908:
Provided that the Supreme Court may, if it is satisfied that the appellant
was prevented by sufficient cause from filing the appeal within the said period,
allow it to be filed within a further period not exceeding sixty days.

10. Appeal under Securities and Exchange Board of India Act

Section 15(z) of Securities and exchange Board of India Act, 1992; provides that any
person aggrieved by any decision or order of the Securities Appellate tribunal may file an
appeal to the Supreme Court on any question of law arising out of such order.

11. Appeal under Income Tax Act: By virtue of Section 261 of the Income Tax Act an
appeal lies to the Supreme Court from any Judgment of the High Court (delivered on a

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reference made under Section 256 against the order made under Section 254), in any case
which the High Court certifies to be a fit one for appeal to the Supreme Court.

12. Appeal under Terrorist and Disruptive Activities (Prevention) Act, 1987.
Section 19 of Territories and Disruptive Activities (Prevention) Act, 1987 provided an
appeal to the Supreme Court from any judgment, sentence or order not being an
interlocutory order, of a 14 Designated Court, both on facts and on law. The Act has
since been repealed.

13. Monopolies and Restrictive Trade Practices Act

Section 55 of the Monopolies and Restrictive Trade Practices Act provides for an appeal
to the Supreme Court from certain orders passed by the Central Government or by MRTP
Commission.

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 CONCLUSION

The Supreme Court of India is the highest court of the land as established by Part V,
Chapter IV of the Constitution of India. According to the Constitution of India, the role
of the Supreme Court is that of a federal court, guardian of the Constitution and the
highest court of appeal. Parliament has the power to enlarge the appellate jurisdiction of
the Supreme Court and has exercised this power in case of criminal appeals by enacting
the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970.
Appellate jurisdiction of the Supreme Court is of utmost significance as it gives the
aggrieved one more chance to present his case. Thus it ensures justice. It doesn’t let
justice to be beaten in the garb of speedy process. If the party to litigation is not satisfied
by the decision of any lower court or tribunal, it can appeal to Supreme Court following
the procedure. Not just the constitution but other statutory laws also provide for appeal to
Supreme Court as provided in the project.

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 BIBLIOGRAPHY:

Books referred:

1. C.K Takwani –Civil Procedure (fifth E.d), published by Eastern book company
2. Sudipto sarkar, sarkar’s Code of civil procedure, (eleventh E.d) 2008, reprint
2008 vol 11
3. Majumdar, The code of civil procedure, (fourth E.d) published by orient
publishing company

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