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REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION(C)NO. 7105 OF 2010

Mathai @ Joby .... Petitioner

Versus

George & Anr. .... Respondents

O R D E R

1. Heard learned counsel for the petitioner.

2. This  special  leave  petition  has  been  filed  against  the  

judgment and order dated 09.11.2009 of the High Court of Kerala  

Ernakulam in W.P.(C) No. 31726/2009.  By the impugned order the  

writ petition filed by the petitioner herein has been disposed  

off.

3. The petitioner herein is one of the defendants in a suit in  

which he has disputed the genuineness of a Will dated 13.01.2006.  

The Will in question was sent for expert opinion to the Forensic  

Science  Laboratory,  Thiruvananthapurm.  The  Forensic  Science

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Laboratory submitted its report to the Trial Court. Not satisfied  

with the report the Petitioner herein wanted another opinion from  

another expert.  The said prayer of the petitioner was rejected by  

the Trial Court and the writ petition filed against the order of  

the Trial Court has been dismissed by the impugned order. Against  

the High Court’s order the SLP has been filed.

4. We are prima facie of the opinion that such special leave  

petitions should not be entertained by this Court. Now-a-days all  

kinds of special leave petitions are being filed in this Court  

against every kind of order.  For instance, if in a suit the trial  

court  allows  an  amendment  application,  the  matter  is  often  

contested right up to this Court.  Similarly, if the delay in  

filing an application or appeal is condoned by the Trial Court or  

the  appellate  court,  the  matter  is  fought  upto  this  Court.  

Consequently, the arrears in this Court are mounting and mounting  

and this Court has been converted practically into an ordinary  

appellate Court which, in our opinion, was never the intention of  

Article 136 of the Constitution.  In our opinion, now the time has  

come when it should be decided by a Constitution Bench of this  

Court as to in  what kind of cases special leave petitions should  

be entertained under Article 136 of the Constitution.   

5. Article 136, no doubt, states that the Supreme Court may in

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its discretion, 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 the territory of India.  

However, it is not mentioned in Article 136 of the Constitution as  

to in what kind of cases the said discretion should be exercised.  

Hence,  some  broad  guidelines  need  to  be  laid  down  now  by  a  

Constitution bench of this Court otherwise this Court will be  

flooded (and in fact is being flooded) with all kind of special  

leave petitions even frivolous ones and the arrears in this Court  

will keep mounting and a time will come when the functioning of  

this  Court  will  become  impossible.  It  may  be  mentioned  that  

Article 136, like Article 226, is a discretionary remedy, and this  

Court is not bound to interfere even if there is an error of law  

or fact in the impugned order.  

 6. This Court in the case of N. Suriyakala Vs. A. Mohandoss and  

Others (2007) 9 SCC 196 observed as under:

 “In this connection we may clarify the  

scope of Article 136. Article 136 of the  

Constitution  is  not  a  regular  forum  of  

appeal  at  all.   It  is  a  residual  

provision which enables the Supreme Court  

to interfere with the judgment or order  

of any court or tribunal in India in its  

discretion.”

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7. Article 136(1) of the Constitution states:

"Article 136(1) 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  

cause  or matter  passed or  made by  any  

court  or  tribunal  in  the  territory  of  

India."

8. The  use  of  the  words  "in  its  discretion"  in  Article  136  

clearly indicates that Article 136 does not confer a right of  

appeal upon any party but merely vests a discretion in the Supreme  

Court to interfere in exceptional cases vide M/s. Bengal Chemical  

&  Pharmaceutical  Works  Ltd.  vs.  Their  Employees AIR  1959  SC  

633(635), Kunhayammed & Ors.  Vs.  State of Kerala & Anr.  2000(6)  

SCC  359  and  State  of  Bombay  Vs.   Rusy  Mistry AIR  1960  SC  

391(395).  In Municipal Board, Pratabgarh & Anr.  Vs.  Mahendra  

Singh Chawla & Ors. 1982(3) SCC 331 and in Chandra Singh Vs. State  

of Rajasthan  AIR 2003 SC 2889 (vide para 43 & 45), this Court  

observed that under Article 136 it was not bound to set aside an  

order even if it was not in conformity with law, since the power  

under Article 136 was discretionary.  

9. Though the discretionary power vested in the Supreme Court  

under Article 136 is apparently not subject to any limitation, the  

Court has itself imposed certain limitations upon its own powers  

vide  Ram  Saran  Das  and  Bros.   Vs.   Commercial  Tax  Officer,

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Calcutta & Ors. AIR 1962 SC 1326(1328) and Kunhayammed  Vs.  State  

of Kerala 2000(6) SCC 359 (para 13).  The Supreme Court has laid  

down  that  this  power  has  to  be  exercised  sparingly  and  in  

exceptional cases only.  Thus, in Pritam Singh  Vs.  The State AIR  

1950 SC 169, this Court observed (vide para 9) as under :-

"On  a  careful  examination  of  Art.136  

along  with  the  preceding  article,  it  

seems clear that the wide discretionary  

power with which this Court is invested  

under is to be exercised sparingly and  

in exceptional cases only,  and as far  

as  possible  a  more  or  less  uniform  

standard should be adopted in granting  

special  leave in  the  wide  range  of  

matters  which  can  come  up  before  it  

under this article."   

10. In Tirupati Balaji Developers Pvt. Ltd. Vs.  State of Bihar  

AIR 2004 SC 2351, this Court observed about Article 136 as under  

:-

"It  is  an  extraordinary  jurisdiction  

vested  by  the  Constitution  in  the  

Supreme  Court  with  implicit  trust  and  

faith,  and  extraordinary  care  and  

caution  has  to  be  observed  in  the  

exercise of this jurisdiction. Article  

136 does not confer a right of appeal  

on a party but vests a vast discretion  

in  the  Supreme  Court  meant  to  be

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exercised  on  the  considerations  of  

justice,  call  of  duty  and  eradicating  

injustice."

11 In  Jamshed Hormusji Wadia Vs.  Board of Trustees, Port of  

Mumbai AIR 2004 SC 1815 (para 33), this Court observed as under :-

“The discretionary power of the Supreme  

Court  is  plenary  in  the  sense  that  

there  are  no  words  in  Article  136  

itself qualifying that power.  The very  

conferment  of  the  discretionary  power  

defies  any  attempt  at  exhaustive  

definition of such power.  The power is  

permitted  to  be  invoked  not  in  a  

routine fashion but in very exceptional  

circumstances as when a question of law  

of general public importance arises or  

a decision sought to be impugned before  

the Supreme Court shocks the conscience.  

This  overriding  and  exceptional  power  

has been vested in the Supreme Court to  

be  exercised  sparingly  and  only  in  

furtherance of the cause of justice in  

the Supreme Court in exceptional cases  

only  when  special  circumstances  are  

shown to exist."

In the same decision this Court also observed as under :-

"It is well settled that Article 136 of

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the  Constitution  does  not  confer  a  

right  to  appeal  on  any  party;  it  

confers  a  discretionary  power  on  the  

Supreme Court to interfere in suitable  

cases.  Article 136 cannot be read as  

conferring a right on anyone to prefer  

an  appeal  to  this  Court;  it  only  

confers a right on a party to file an  

application seeking leave to appeal and  

a discretion on the Court to grant or  

not to grant such leave in its wisdom.  

When no law confers a statutory right  

to  appeal  on  a  party,  Article  136  

cannot be called in aid to spell out  

such a right.  The Supreme Court would  

not under Article 136 constitute itself  

into a tribunal or court just settling  

disputes  and  reduce  itself  to  a  mere  

court  of  error.   The  power  under  

Article  136  is  an  extraordinary  power  

to be exercised in rare and exceptional  

cases and on well-known principles."

12. In Narpat Singh Vs. Jaipur Development Authority (2002) 4 SCC  

666, this Court observed as under :-

"The exercise of jurisdiction conferred  

by Art.136 of the Constitution on the  

Supreme  Court  is  discretionary.   It  

does not confer a right to appeal on a  

party to litigation; it only confers a

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discretionary power of widest amplitude  

on  the  Supreme  Court  to  be  exercised  

for satisfying the demands of justice.  

On one hand, it is an exceptional power  

to be exercised sparingly, with caution  

and  care  and  to  remedy  extraordinary  

situations  or  situations  occasioning  

gross failure of justice; on the other  

hand,  it  is  an  overriding  power  

whereunder  the  Court  may  generously  

step  in  to  impart  justice  and  remedy  

injustice."

13. In Ashok Nagar Welfare Association Vs. R.K. Sharma AIR 2002  

SC 335, this Court observed that even in cases where special leave  

is granted, the discretionary power vested in the Court continues  

to remain with the Court even at the stage when the appeal comes  

up for hearing.  

14. Now-a-days it has become a practice of filing SLPs against  

all kinds of orders of the High Court or other authorities without  

realizing the scope of Article 136.  Hence we feel it incumbent on  

us to reiterate that Article 136 was never meant to be an ordinary  

forum of appeal at all like Section 96 or even Section 100 CPC.  

Under the constitutional scheme, ordinarily the last court in the  

country in ordinary cases was meant to be the High Court.  The  

Supreme Court as the Apex Court in the country was meant to deal  

with important issues like constitutional questions, questions of  

law of general importance or where grave injustice had been done.  

If the Supreme Court entertains all and sundry kinds of cases it  

will soon be flooded with a huge amount of backlog and will not be

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able to deal with important questions relating to the Constitution  

or the law or where grave injustice has been done, for which it  

was really meant under the Constitutional Scheme.  After all, the  

Supreme Court has limited time at its disposal and it cannot be  

expected to hear every kind of dispute.

15. Mr.  K.K.  Venugopal,  Senior  Advocate  and  a  very  respected  

lawyer of this Court in his  R.K. Jain Memorial Lecture delivered  

on 30.01.2010 has pointed out that an alarming state of affairs  

has  developed  in  this  Court  because  this  Court  has  gradually  

converted itself into a mere Court of Appeal  which has sought to  

correct every error which it finds in the judgments of the High  

Courts of the country as well as the vast number of tribunals.  

Mr. Venugopal has further observed that  this Court has strayed  

from its original character as a Constitutional Court and the Apex  

Court of the country.  He further observed that if the  Apex Court  

seeks to deal with all kinds of cases, it necessarily has to  

accumulate vast arrears over a period of time which it will be  

impossible to clear in any foreseeable future.  According to him,  

this is a self-inflicted injury, which is the cause of the malaise  

which has gradually eroded the confidence of the litigants in the  

Apex Court of the country, mainly because of its failure to hear  

and dispose of cases within a reasonable period of time.  He has  

further observed that it is a great tragedy to find that  cases  

which have been listed for hearing years back are yet to be heard.  

He has further observed as under :

“We have, however, to sympathize with the  

judges.   They  are  struggling  with  an  

unbearable burden.  The judges spend late

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nights trying to read briefs for a Monday  

or  a  Friday.   When  each  of  the  13  

Divisions or Benches have to dispose off  

about 60 cases in a day, the functioning  

of the Supreme Court of India is a far  

cry  from  what  should  be  desiderata  for  

disposal of cases in a calm and detached  

atmosphere.  The Judges rarely have the  

leisure  to  ponder  over  the  arguments  

addressed  to  the  court  and  finally  to  

deliver a path-breaking, outstanding and  

classic judgment.  All this is impossible  

of attainment to a Court oppressed by the  

burden of a huge backlog of cases.  The  

constant  pressure  by  counsel  and  the  

clients for an early date of hearing and  

a  need  to  adjourn  final  hearings  which  

are listed, perforce, on a miscellaneous  

day i.e. Monday or a Friday, where the  

Court finds that it has no time to deal  

with those cases, not only puts a strain  

on the Court, but also a huge financial  

burden on the litigant.  I wonder what a  

lawyer practising in 1950 would feel if  

he were today to enter the Supreme Court  

premises on a Monday or a Friday.  He  

would be appalled at the huge crowd of  

lawyers  and  clients  thronging  the  

corridors, where one finds it extremely  

difficult to push one's way through the  

crowd to reach the Court hall.  When he

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enters the Court hall he finds an equally  

heavy crowd of lawyers blocking his way.  

I do not think that any of the senior  

counsel practicing in the Supreme Court,  

during  the  first  3-4  decades  of  the  

existence of the Court, would be able to  

relate  to  the  manner  in  which  we  as  

counsel  argue  cases  today.   In  matters  

involving very heavy stakes, 4-5 Senior  

Advocates  should  be  briefed  on  either  

side, all of whom would be standing up at  

the same time and addressing the court,  

sometimes at the highest pitch possible.

All  these  are  aberrations  in  the  

functioning  of  an  Apex  Court  of  any  

country.”  

16.  Mr. Venugopal has pointed out that in the year 1997 there  

were only 19,000 pending cases in this Court but now, there are  

over 55,000 pending cases and in a few years time the pendency  

will cross one lakh cases.  In 2009 almost 70,000 cases were filed  

in this Court of which an overwhelming number were Special Leave  

Petitions under Article 136.  At present all these cases have to  

be heard orally, whereas the U.S. Supreme Court hears only about  

100 to 120 cases every year and the Canadian Supreme Court hears  

only 60 cases per year.  

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17. In Bihar Legal Support Society Vs. Chief of Justice of India  

and Anr. (1986) 4 SCC 767 (vide para 3) a Constitution Bench of  

this Court observed as under :-

“It  may,  however,  be  pointed  out  

that this Court was never intended  

to  be  a  regular  court  of  appeal  

against  orders  made  by  the  High  

Court or the sessions court or the  

magistrates.  It was created for the  

purpose of laying down the law for  

the  entire  country  ……………It  is  not  

every  case  where  the  apex  court  

finds that some injustice has been  

done  that  it  would  grant  special  

leave and interfere.  That would be  

converting  the  apex  court  into  a  

regular  court  of  appeal  and  

moreover,  by  so  doing,  the  apex  

court  would  soon  be  reduced  to  a  

position where it will find itself  

unable  to  remedy  any  injustice  at  

all,  on  account  of  the  tremendous  

backlog of cases which is bound to  

accumulate.  We must realize that in  

the vast majority of cases the High  

Courts  must  become  final  even  if  

they are wrong”.

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18. In this connection Paul Freund has set out the opinion of Mr.  

Justice Brandeis', the celebrated Judge of the U.S. Supreme Court  

in the following words:

“...  he  was  a  firm  believer  in  

limiting  the  jurisdiction  of  the  

Supreme Court on every front as he  

would not be seduced by the Quixotic  

temptation  to  right  every  fancied  

wrong which was paraded before him.  

......  Husbanding  his  time  and  

energies as if the next day were to  

be  his  last,  he  steeled  himself,  

like a scientist in the service of  

man,  against  the  enervating  

distraction  of  the  countless  

tragedies  he  was  not  meant  to  

relieve.  His  concern  for  

jurisdictional and procedural limits  

reflected, on the technical level,  

an  essentially  stoic  philosophy.  

For  like  Epictetus,  he  recognized  

'the  impropriety  of  being  

emotionally affected by what is not  

under one's control'.

The only way found practicable  

or  acceptable  in  this  country  

(U.S.A.) for keeping the volume of  

cases within the capacity of a court  

of  last  resort  is  to  allow  the

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intermediate  courts  of  appeal  

finally to settle all cases that are  

of  consequence  only  to  parties.  

This reserves to the court of last  

resort only questions on which lower  

courts are in conflict or those of  

general importance to the law.”

19. Justice K.K. Mathew, an eminent Judge of this Court, in an  

article published in (1982) 3 SCC (Jour) 1, has referred to the  

opinion of Mr. Justice Frankfurter, the renowned Judge of the U.S.  

Supreme Court as follows :

“The function of the Supreme Court,  

according  to  Justice  Frankfurter,  

was  to  expound  and  stabilize  

principles  of  law,  to  pass  upon  

constitutional  and  other  important  

questions  of  law  for  the  public  

benefit  and  to  preserve  uniformity  

of  decision  among  the  intermediate  

courts  of  appeal.   The  time  and  

attention  and  the  energy  of  the  

court should be devoted to matters  

of  large  public  concern  and  they  

should not be consumed by matters of  

less  concern,  without  special  

general interest, merely because the  

litigant wants to have the court of  

last  resort  pass  upon  his  right.

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The  function  of  the  Supreme  Court  

was  conceived  to  be,  not  to  

remedying of a particular litigant’s  

wrong,  but  the  consideration  of  

cases  whose  decision  involved  

principles, the application of which  

were of wide public or governmental  

interest  and  which  ought  to  be  

authoritatively  declared  by  the  

final court. Without adequate study,  

reflection  and  discussion  on  the  

part of judges, there could not be  

that  fruitful  interchange  of  minds  

which  was  indispensable  to  

thoughtful,  unhurried  decision  and  

its  formulation  in  learned  and  

impressive  opinions  and  therefore  

Justice  Frankfurter  considered  it  

imperative  that  the  docket  of  the  

court  be  kept  down  so  that  its  

volume  did  not  preclude  wise  

adjudication.   He  was  of  the  view  

that any case which did not rise to  

the  significance  of  inescapability  

in  meeting  the  responsibilities  

vested in the Supreme Court had to  

be  rigorously  excluded  from  

consideration”.

20. According to Justice Mathew, the Supreme Court, to remain  

effective, must continue to decide only those cases which present

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questions  whose  resolution  will  have  immediate  importance  far  

beyond the particular facts and parties involved.  It is Justice  

Mathew's opinion that  -

“To say that no litigant should  

be  turned  out  of  the  Supreme  

Court  so  long  as  he  has  a  

grievance may be good populistic  

propaganda but the consequence of  

accepting  such  a  demand  would  

surely defeat the great purpose  

for  which  the  Court  was  

established  under  our  

constitutional system. It is high  

time  we  recognize  the  need  for  

the  Supreme  Court  to  entertain  

under  Article  136  only  those  

cases  which  measure  up  to  the  

significance of the national or  

public importance.  The effort,  

then,  must  therefore  be  to  

voluntarily  cut  the  coat  of  

jurisdiction  according  to  the  

cloth  of  importance  of  the  

question  and  not  to  expand  the  

same with a view to satisfy every  

litigant  who  has  the  means  to  

pursue his cause.”

21. Mr. Venugopal has suggested the following categories of cases

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which  alone  should  be  entertained  under  Article  136  of  the  

Constitution.

(i) All  matters  involving  

substantial questions of law  

relating  to  the  

interpretation  of  the  

Constitution of India;  

(ii) All  matters  of  national  or  

public importance;

(iii) Validity of laws, Central and  

State;

(iv)  After  Kesavananda  Bharati,  

(1973) 4 SCC 217, the judicial  

review  of  Constitutional  

Amendments; and  

(v) To  settle  differences  of  

opinion of important issues of  

law between High Courts.

22. We are of the opinion that two additional categories of cases  

can be added to the above list, namely (i) where the Court is  

satisfied that there has been a grave miscarriage of justice and  

(ii) where a fundamental right of a person has prima facie been

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violated. However, it is for the Constitution Bench to which we  

are referring this matter to decide what are the kinds of cases in  

which discretion under Article 136 should be exercised.

23. In our opinion, the time has now come when an authoritative  

decision  by  a  Constitution  Bench  should  lay  down  some  broad  

guidelines as to when the discretion under Article 136 of the  

Constitution should be exercised, i.e., in what kind of cases a  

petition under Article 136 should be entertained.  If special  

leave petitions are entertained against all and sundry kinds of  

orders passed by any court or tribunal, then this Court after some  

time will collapse under its own burden.

24. It may be mentioned that in Pritam Singh Vs. The State  AIR  

1950 S.C. 169 a Constitution Bench of this Court observed (vide  

para 9) that “a more or less uniform standard should be adopted in  

granting Special Leave”.  Unfortunately, despite this observation  

no such uniform standard has been laid down by this Court, with  

the result that grant of Special Leave has become, as Mr. Setalvad  

pointed out in his book ‘ My Life’, a gamble.  This is not a  

desirable state of affairs as there should be some uniformity in  

the  approach  of  the  different  benches  of  this  Court.  Though  

Article 136 no doubt confers a discretion on the Court, judicial

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discretion, as Lord Mansfield stated in classic terms in the case  

of John Wilkes, (1770) 4 Burr 2528 “means sound discretion guided  

by law.  It must be governed by rule, not humour: it must not be  

arbitrary, vague and fanciful”  

25. The Apex Court lays down the law for the whole country and it  

should have more time to deliberate upon the cases it hears before  

rendering judgment as Mr. Justice Frankfurter observed.  However,  

sadly the position today is that it is under such pressure because  

of the immense volume of cases in the Court that Judges do not get  

sufficient time to deliberate over the cases, which they deserve,  

and this is bound to affect the quality of our judgments.   

26. Let notice issue to the respondents.  Issue notice also to  

the Supreme Court Bar Association, Bar Council of India and the  

Supreme Court-Advocates-on-Record Association.   

27. Since the matter involves interpretation of Article 136 of  

the  Constitution,  we  feel  that  it  should  be  decided  by  a  

Constitution Bench in view of Article 145(3) of the Constitution.  

Let the papers of this case be laid before Hon'ble the Chief  

Justice of India for constitution of an appropriate Bench, to  

decide which kinds of cases should be entertained under Article

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136,  and/or  for  laying  down  some  broad  guidelines  in  this  

connection.

28. The  Constitution  Bench  may  also  consider  appointing  some  

senior Advocates of this Court as Amicus Curiae to assist in the  

matter so that it can be settled after considering the views of  

all the concerned parties.

.....................J.         (MARKANDEY KATJU)

.....................J.                       (R.M. LODHA)

NEW DELHI; MARCH 19, 2010