Reportable  

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION [C] NO.29213 OF 2009

M/s. S.B. Minerals … Petitioner Vs. M/s. MSPL Limited … Respondent

O R D E R R.V. Raveendran, J.

The respondent filed a suit for declaration and injunction  against the petitioner. The suit was decreed. The petitioner filed an  appeal and the first appellate court allowed the appeal and dismissed the  suit.  Feeling  aggrieved,  the  respondent  filed  a  regular  second  appeal  under section 100 of the Code of Civil Procedure (for short ‘CPC’). By  order  dated  8.10.2009,  the  High  Court  admitted  the  appeal  formulating  three substantial questions of law. In view of the urgency expressed, the  High Court directed that the appeal be set down for final hearing in  November, 2009.

2. The  respondent  has  sought  leave  to  file  an  appeal  against  the  ‘order’ of admission of the second appeal. The petitioner contends that

the case did not involve any substantial question of law and the second  appeal ought not to have been admitted.

3. Sub-section (5) of section 100 CPC provides that a second appeal  shall  be  heard  on  the  substantial  questions  of  law  formulated  by  the  Court. It also provides that the respondent, at the hearing of the second  appeal, can argue that the case does not involve such questions. Thus the  substantial questions of law formulated by the High Court are not final,  and it is open to the petitioner herein (who is the respondent in the  pending appeal) to demonstrate during hearing that no substantial question  of law arose for consideration in the case and that the second appeal  should be dismissed.

4. An order admitting a second appeal is neither a final order nor an  interlocutory/interim order. It does not amount to a judgment, decree,  determination, sentence or even “order” in the traditional sense. It does  not decide any issue but merely entertains an appeal for hearing.

5. The scope of Article 136 is no doubt very wide. Special leave to  appeal can be granted under Article 136 against any judgment, decree,  determination, sentence or order passed or made by any court or tribunal,  in any case or matter. There are no limitations upon the discretionary  power  of  this  Court  under  Article  136,  except  those  which  are  self- imposed. One recognised area where the discretion is not exercised is  where the remedy by way of an appeal or revision is available against the  order. Another recognised area is where the subject matter is stale or  frivolous or cantankerous or where the stakes or issue involved is so

small and negligible, that grant of leave or even issue of notice will  cast a heavy burden in terms of expense, time and energy on a poor or  ordinary respondent.  

6. There is a third recognised area of exclusion relating to orders  which  do  not  decide  any  issue.  Orders  admitting  a  petition/appeal/revision, or orders issuing notice to show cause why a  petition/appeal/revision  should  not  be  entertained,  or  an  order  merely  adjourning  a  case,  fall  under  this  category.  Extraordinary  situations  leading  to  irreversible  injustice  can  of  course  be  exceptions  to  the  exclusion. This case falls under the third category of exclusion, but does  not fall under the exception to the exclusion.    

7. It is a matter of concern that there is a noticeable increase in the  number of special leave petitions against such ‘non-orders’ referred to as  orders.  

8. The special leave petition is dismissed.

__________________J. (R V Raveendran)

New Delhi; __________________J. November 23, 2009. (K S Radhakrishnan)