MATHAI @ JOBY v. GEORGE & ANR

Citation: [2010] 3 S.C.R. 533

Court: Supreme Court of India

Bench: MARKANDEY KATJU, RAJENDRA MAL LODHA

Case summary

MATHAI @ JOBY v. GEORGE & ANR.pdf

Judgment text

[2010) 3 S. C. R. 533 MATHAI @JOBY v. GEORGE & ANR. (Special Leave Petition (C) No. 7105 of 2010) MARCH 19, 2010 [MARKANDEY KATJU AND R. M. LODHA, JJ. ] CONSTITUTION OF IND/A, 1950: Article 136 and 145(3) - Discretion of Supreme Court to entertain petitions under Article 136 - Matter referred to Constitution Bench - Petition filed against the order of High Court dismissing writ petition challenging the order of trial court rejecting the application of the defendant in a suit, seeking to send the will for another expert opinion as he was 0 not satisfied with the first expert report - HELD: Prima facie such special leave petitions should not be entertained by Supreme Court - Article 136, like Article ,226, is a discretionary remedy and the Supreme Court is not bound to interfere even if there is an error of law or fact in the order impugned before it - Article 136 was never meant to be an ordinary forum of appeal at all like s. 96 or even s.

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 - However, the Court has been converted practically into an ordinary appellate court which was never the intention of Article 136 - 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 - Since the matter involves interpretation of Article 136, it should be decided by a Constitution Bench in view ofArticle 145(3) of the Constitution 1 - 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 136, and/or for /aying·down some broad guidelines in this connection. [Para 4, 5, 14, 23 and 27) N. Suriyaka/a vs. A. Mohandoss & Ors. 2007 (2) SCR 419; Bengal Chemical & Pharmaceutical Works Ltd. Vs Their Employees 1959 AIR 633= 1959 (2) Suppl. SCR 136; Kunhayammed & Ors. Vs State of Kera/a & Anr. 2000 AIR 2587= 2000 (1) suppl. SCR 538; State of Bombay vs Rusy Mistry 1960 AIR 391; Municipal Board Pratabgarh vs Mmahendra Singh Chawla 1982 (3) SCC 331; Handra Singh vs State of Rajasthan & Anr. 2003 AIR 2889= 2003 (1) Suppl. SCR 674; Ram Saran Das & Bros.

Vs CIT Calcutta 1962 AIR 1326=1962 (1) Suppl. SCR 276; Pritam Singh vs. State 1950 SCR 453; Tirupati Bafaji Developers Pvt. Ltd. & Ors. Vs. State of Bihar & Ors. 2004 AIR 2351= 2004 (1) Suppl. SCR 494; Jamshed Hormusji Wadia vs. Board of Trustees Port of Mumbai & Anr. 2004AIR 1815= 2004 (1) SCR 483; Narpat Singh etc. etc. Vs Jaipur Development Authority & Anr. 2002 AIR 2036= 2002 (3) SCR 365; Ashok Nagar Welfare Association & Anr. Vs R. K. Sharma & Ors. 2002 AIR 335=2001 (5) Suppl. SCR 662; Bihar Legal Support Society New Ode/hi vs. Chief Justice of India 1987 AIR · 38= 1987(1) SCR 295, relied on. R. K. Jain Memorial Lecture delivered by K. K. Venugopa/ on 30. 1. 2010; and Article by Justice K. K. Mathew published in 1982(3) sec (Jour) 1, referred to. Case Law Reference: 2007 (2) SCR 419 relied on para 6 1959 (2) Suppl. SCR 136 relied on para 8 2000 (1) suppl. SCR 538 relied on para 8 1960 AIR 391 relied on para 8 1982 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 sec 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 discretionary power of widest amplitude on the Sμpreme Court to be exercised for satisfying the demands of }u~~e. 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 whe_reunder 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 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 cas. es, it necessarily has to accumulate vast arrears over a period oftime wnjch 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· 0 further observed as under : "We have, however, to sympathize with the judges. They are struggling with an unbearable burden. The judges spend late nights trying to read briefs for a Monday or 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 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. 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 cow't 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 c:;ourt of appeal and moreover, by so doing, the apex courtwould soon be reduced to a position where it will find itsel! _l{pable to remedy any injustice at all, on account of theji:e! nlendous backlog of cases which is bound to accumufote. We must " realize that in the vast majority of qase&the High Courts ~ must become final even if they are· wrong". 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 t~e 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 sJ;irvice 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'cs 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 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,,9n which lower courts are in 1 conflict or those of generafTri'fportance to the law. " 19. Justice K. K.

Mathew, an eminent Judge of this Court, in an article published in (1982) 3 sec (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.

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 tile 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 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 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 persor. has prima facie been 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 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 A Justice of India for constitution of an appropriate Bench, to decide which kinds of cases should be entertained under Article 136, and/or for laying down some broad guidelines in this connection. B 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. R. P. Matter referred to Constitution Bench.