Supreme Court of India came up in 1958 and is located on Tilak Marg, New Delhi. The Supreme Court of India functioned from the Parliament House till it moved to the present building. It has a 27.6 metre high dome and a spacious colonnaded verandah. For a peek inside, one has to obtain a visitor's pass from the front office.
On the 28th of January, 1950, two days after India became a Sovereign Democratic Republic, the Supreme Court came into being. The inauguration took place in the Chamber of Princes in the Parliament building, which also housed India's Parliament, consisting of the Council of States and the House of the People. It was here, in this Chamber of Princes, that the Federal Court of India had sat for 12 years between 1937 and 1950. This was to be the home of the Supreme Court for years that were to follow until the Supreme Court acquired its own present premises.
The inaugural proceedings were simple but impressive. They began at 9.45 a.m. when the Judges of the Federal Court - Chief Justice Harilal J.Kania and Justices Saiyid Fazl Ali, M. Patanjali Sastri, Mehr Chand Mahajan, Bijan Kumar Mukherjea and S.R. Das - took their seats. In attendance were the Chief Justices of the High Courts of Allahabad, Bombay, Madras, Orissa, Assam, Nagpur, Punjab, Saurashtra, Patiala and the East Punjab States Union, Mysore, Hyderabad, Madhya Bharat and Travancore-Cochin. Along with the
Attorney-General for India, M.C. Setalvad were present theAdvocate-Generals of Bombay, Madras, Uttar Pradesh, Bihar, East Punjab, Orissa, Mysore, Hyderabad and Madhya Bharat. Present too, were Prime Minister, other Ministers, Ambassadors and diplomatic representatives of foreign States, a large number of Senior and other Advocates of the Court and other distinguished visitors.
Taking care to ensure that the Rules of the Supreme Court were published and the names of all the Advocates and agents of the Federal Court were brought on the rolls of the Supreme Court, the inaugural proceedings were over and put under part of the record of the Supreme Court.
After its inauguration on January 28, 1950, the Supreme Court commenced its sittings in a part of the Parliament House. The Court moved into the present building in 1958. The building is shaped to project the image of scales of justice. The Central Wing of the building is the Centre Beam of the Scales. In 1979, two New Wings - the East Wing and the West Wing - were added to the complex. In all there are 15 Court Rooms in the various wings of the building. The Chief Justice's Court is the largest of the Courts located in the Centre of the Central Wing.
The original Constitution of 1950 envisaged a Supreme Court with a Chief Justice and 7 puisne Judges - leaving it to Parliament to increase this number. In the early years, all the Judges of the Supreme Court sat together to hear the cases presented before them. As the work of the Court increased and arrears of cases began to cumulate, Parliament increased the number of Judges from 8 in 1950 to 11 in 1956, 14 in 1960, 18 in 1978 and 26 in 1986. As the number of the Judges has increased, they sit in smaller Benches of two and three - coming together in larger Benches of 5 and more only when required to do so or to settle a difference of opinion or controversy.
Therefore, presently, the Supreme Court of India comprises the Chief Justice and not more than 25 other Judges appointed by the President of India. Supreme Court Judges retire upon attaining the age of 65 years. In order to be appointed as a Judge of the Supreme Court, a person must be a citizen of India and must have been, for at least five years, a Judge of a High Court or of two or more such Courts in succession, or an Advocate of a High Court or of two or more such Courts in succession for at least 10 years or he must be, in the opinion of the President, a distinguished jurist. Provisions exist for the appointment of a Judge of a High Court as an Ad-hoc Judge of the Supreme Court and for retired Judges of the Supreme Court or High Courts to sit and act as Judges of that Court.
The Constitution seeks to ensure the independence of Supreme Court Judges in various ways. A Judge of the Supreme Court cannot be removed from office except by an order of the President passed after an address in each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of members present and voting, and presented to the President in the same Session for such removal on the ground of proved misbehaviour or incapacity. A person who has been a Judge of the Supreme Court is debarred from practising in any court of law or before any other authority in India.
The proceedings of the Supreme Court are conducted in English only. Supreme Court Rules, 1966 are framed under article 145 of the Constitution1to regulate the practice and procedure of the Supreme Court.1
In Nanavati, K.M. v. State of Bombay, MANU/SC/0063/1960 : 1961 (1) SCR 497: AIR 1961 SC 112 (pages 124 & 125), the Supreme Court laid down that the power to make rules to regulate its own procedure is in aid of the power of the Apex Court under article 142, to make such order as is necessary for doing complete justice in any cause or matter pending before it. However, this rule making power of the Supreme Court is subject to laws made by Parliament2and being subordinate legislation, having been framed under article 145 in exercise of delegate power, such rules cannot override the provisions of the Constitution of India. Therefore, that power cannot be exercised so as to affect the fundamental rights conferred under Part III of the Constitution of India.3
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1. 145. Rules of Court, etc.—
(1) Subject to the provisions of any law made by Parliament, the Supreme Court may from time to time, with the approval of the President, make rules for regulating generally the practice and procedure of the court including—
(a) rules as to the persons practicing before the court;
(b) rules as to the procedure for hearing appeals and other matters pertaining to appeals including the time within which appeals to the court are to be entered;
(c) rules as to the proceedings in the court for the enforcement of any of the rights conferred by Part III;
(cc) rules as to the proceedings in the court under article 139A;
(d) rules as to the entertainment of appeals under sub-clause (c) of clause (1) of article 134;
(e) rules as to the conditions subject to which any judgment pronounced or order made by the court may be reviewed and the procedure for such review including the time within which applications to the court for such review are to be entered;
(f) rules as to the costs of and incidental to any proceedings in the court and as to the fees to be charged in respect of proceedings therein;
(g) rules as to the granting of bail;
(h) rules as to stay to proceedings;
(i) rules providing for the summary determination of any appeal which appears to the court to be frivolous or vexatious or brought for the purpose of delay;.
(j) rules as to the procedure for inquiries referred to in clause (I) of article 317.
(2) Subject to the provisions of clause (3), rules made under this article may fix the minimum number of Judges who are to sit for any purpose, and may provide for the powers of single Judges and Division Courts.
(3) The minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under article 143 shall be five:
Provided that, where the Court hearing an appeal under any of the provisions of this chapter other than article 132 consists of less than five Judges and in the course of the hearing of the appeal the court is satisfied that the appeal involves a substantial question of law as to the interpretation of this Constitution of determination of which is necessary for the disposal of the appeal, such court shall refer the question for opinion to a court constituted as required by this clause for the purpose of deciding any case involving such a question and shall on receipt of the opinion dispose of the appeal in conformity with such opinion.
(4) No judgment shall be delivered by the Supreme Court save in open court, and no report shall be made under article 143 save in accordance with an opinion also delivered in open court.
(5) No judgment and no such opinion shall be delivered by the Supreme Court save with the concurrence of a majority of the Judges present at the hearing of the case, but nothing in this clause shall be deemed to prevent a Judge who does not concur from delivering a dissenting judgment or opinion.
1.www.supremecourtofindia.nic.in(history).
2. Partha Sarathy A.D. v. State of Andhra Pradesh, MANU/SC/0383/1965 : AIR 1966 SC 38.
3. Prem Chand Garg v. Excise Commissioner, U.P., 1963 Supp (1) SCR 885: MANU/SC/0082/1962 : AIR 1963 SC 996.
Before coming to various rules specifically we may keep in mind briefly following mentioned points:-
1. Supreme Court of India came up in 1958 and is located on Tilak Marg, New Delhi. The Supreme Court of India functioned from the Parliament House till it moved to the present building.
2. On the 28th of January, 1950, two days after India became a Sovereign, Democratic, Republic, the Supreme Court came into being. The inauguration took place in the Chamber of Princes in the Parliament building, which also housed India's Parliament, consisting of the Council of States and the House of the People. It was here, in this Chamber of Princes, that the Federal Court of India had sat for 12 years between 1937 and 1950. This was to be the home of the Supreme Court for years that were to follow until the Supreme Court acquired its own present premises.
3. After its inauguration on January 28, 1950, the Supreme Court commenced its sittings in a part of the Parliament House. The Court moved into the present building in 1958.
4. The original Constitution of 1950 envisaged a Supreme Court with a Chief Justice and 7 puisne Judges - leaving it to Parliament to increase this number. In the early years, all the Judges of the Supreme Court sat together to hear the cases presented before them. As the work of the Court increased and arrears of cases began to cumulate, Parliament increased the number of Judges from 8 in 1950 to 11 in 1956, 14 in 1960, 18 in 1978 and 26 in 1986. As the number of the Judges has increased, they sit in smaller Benches of two and three - coming together in larger Benches of 5 and more only when required to do so or to settle a difference of opinion or controversy.
5. Presently the Supreme Court of India comprises the Chief Justice and not more than 25 other Judges appointed by the President of India. Supreme Court Judges retire upon attaining the age of 65 years. In order to be appointed as a Judge of the Supreme Court, a person must be a citizen of India and must have been, for atleast five years, a Judge of a High Court or of two or more such Courts in succession, or an Advocate of a High Court or of two or more such Courts in succession for at least 10 years or he must be, in the opinion of the President, a distinguished jurist.
6. The proceedings of the Supreme Court are conducted in Englishonly.
7. Supreme Court Rules, 1966 are framed under article 145 of the Constitutionto regulate the practice and procedure of the Supreme Court.
8. Appeals under section 38 of the Advocates Act 1961:-
(i) An appeal from an order made by the Disciplinary Committee of the Bar Council of India under section 361or section 372of the AdvocatesAct, 1961 (25 of 1961) shall be lodged in the Court by the aggrieved person, or the Attorney-General for India, or the Advocate-General of the State concerned, as the case may be, within sixty days from the date on which the order complained of is communicated to aggrieved person.3
(ii) The petition shall be made on a Court-fee stamp of the value of ten rupees and shall be signed by the appellant, where the appellant appears in person, or by a duly authorised advocate on record on his behalf.4
9. Business in chambers:-
(i) Needless to say that Court proceedings are held in a Court room and generally they are open to the public. However, for quick disposal of certain kind of matters, instead of they being heard by the Judges, Registrar has been empowered to dispose of the same in his own chamber.5Reason for such
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1. 36. Disciplinary powers of Bar Council of India.—
(1) Where on receipt of a complaint or otherwise the Bar Council of India has reason to believe that any advocate whose name is not entered on any State roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee.
(2) Notwithstanding anything contained in this Chapter the disciplinary committee of the Bar Council of India may, either of its own motion or on a report by any State Bar Council or an application made to it by any person interested, withdraw for inquiry before itself any proceedings for disciplinary action against any advocate pending before the disciplinary committee of any State Bar Council and dispose of the same.
(3) The disciplinary committee of the Bar Council of India disposing of any case under this section, shall observe, so far as may be, the procedure laid down in section 35, the references to the Advocate-General in that section being construed as references to the Attorney-General for India.
(4) In disposing of any proceedings under this section the disciplinary committee of the Bar Council of India may make any order which the disciplinary committee of a State Bar Council can make under sub-section (3) of section 35, and where any proceedings have been withdrawn for inquiry before the disciplinary committee of the Bar Council of India the State Bar Council concerned shall give effect to any such order.
2. 37. Appeal to the Bar Council of India.—
(1) Any person aggrieved by in order of the disciplinary committee of a State Bar Council made under section 35 or the Advocate-General of the State, may, within sixty days of the date of the communication of the order to him, prefer an appeal to the Bar Council of India.
(2) Every such appeal shall be heard by the disciplinary committee of the Bar Council of India which may pass such order including an order varying the punishment awarded by the disciplinary committee of the State Bar Council thereon as it deems fit:
Provided that no order of the disciplinary committee of the State Bar Council shall be varied by the disciplinary committee of the Bar Council of India so as to prejudicially affect the person aggrieved without giving him reasonable opportunity of being heard.
3. Order V, rule 1.
4. Order V, rule 4.
5. Order VI, rule 1.
a procedure is that such matters do not involve Judicial application of mind and at the same time that saves the time of the Judges.
(ii) Similarly, the powers of the Court in relation to certain matters may be exercised by a single Judge sitting in his Chamber.1
10. Constitution of Division Courts and Powers of a Single Judge:-
(i) Subject to the other provisions of these rules every cause, appeal or matter shall be heard by a Bench consisting of not less than two Judges nominated by the Chief Justice, provided, however, that certain categories of matters may be heard and disposed of finally by a Judge sitting singly nominated by the Chief Justice.2
(ii) Where in the course of the hearing of any cause, appeal or other proceeding, the Bench considers that the matter should be dealt with by a larger Bench, it shall refer the matter to the Chief Justice, who shall thereupon constitute such a Bench for the hearing of it.3
(iii) The Chief Justice may from time to time appoint a Judge to hear and dispose of all applications which may be heard by a Judge in Chambers under these rules.4
(iv) During the vacation, the Vacation Judge sitting singly may, in addition to exercising all the powers under the proviso to rule 1 of Order VII and of a Judge in Chambers under these rules, exercise the powers of the Court in relation to certain urgent matters.5
11. Notices of Motions:-
(i) Except where otherwise provided by any statute or prescribed by these rules, all applications which in accordance with these rules cannot be made in Chambers shall be made on motion after notice to the parties affected thereby.6
(ii) Where the delay caused by notice would or might entail serious hardship, the applicant may pray for an ad interim ex parte order in the notice of motion, and the Court, if satisfied upon affidavit or otherwise that the delay caused by notice would entail serious hardship may make an order ex parte upon such terms as to costs or otherwise, and subject to such undertaking being given, if any, as the Court may think just, pending orders on the motion after notice to the parties affected thereby.7
12. Proceedings by or against minors or persons of unsound mind:-
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1. Order VI, rule 2.
2. Order VII, rule 1.
3. Order VII, rule 2.
4. Order VII, rule 3.
5. Order VII, rule 4.
6. Order VIII, rule 1.
7. Order VIII, rule 2.
(i) The provisions of Order IX are almost similar to those contained in Order XXXII of the Code of Civil Procedure, 1908, which is titled as 'Suits by or against minors and persons of unsound mind'. Significance of this Order in the Supreme Court Rules is same as under the Code of Civil Procedure, since it is admitted fact that the minors and persons of unsound mind do not possess mental faculties, which may help them in recognizing what is right and wrong for them. Therefore, these rules have been enacted to protect their interest before any forum, whatsoever, including the Supreme Court.1
(ii) Every appeal, petition or other proceeding by a minor shall be instituted or continued in his name by his next friend. A next friend shall not retire without the leave of the Court. The Court may require him to procure a fit person to be put in his place before he is permitted to retire, and may also, if it thinks fit, require him to furnish security for costs already incurred as a condition of his retirement.2
13. Affidavits:-
The Court may at any time, for sufficient reason, order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable:
Provided that where it appears to the Court that either party bona fide desires the production of a witness for cross-examination and that such witness can be produced, an order shall not be made authorising the evidence of such witness to be given by affidavit. Upon any application evidence may be given by affidavit; but the Court may, at the instance of either party, order the attendance for cross-examination of the deponent, and such attendance shall be in Court, unless the deponent is exempted from personal appearance in Court or the Court otherwise directs.3
14. Appeals on Certificate by High Court:-
Where a certificate of the nature referred to in clause (1) of article 132 or clause (1) of article 133 has been given under article 134A of the Constitution or a certificate has been given under article 135 of the Constitution or under any other provision of law the party concerned shall file a petition of appeal in the Court.4
15. Appeals by Special Leave:-
Where certificate of fitness to appeal to the Court was refused in a case by the High Court, a petition for special leave to appeal to
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1. Order IX,
2. Order IX, rule 1 and 2.
3. Order XI, rule 1 and 2.
4. Order XV, rule 1. For further details study all the 42 rules of this Order XV.
the Court shall, subject to the provisions of sections 4, 5, 12 and 14 of the Limitation Act, 1963 (36 of 1963) be lodged in the Court within sixty days from the date of the order of refusal and in any other case within ninety days from the date of the judgment or order sought to be appealed from:
Provided that where an application for leave to appeal to the High Court from the judgment of a single Judge of that Court has been made and refused, in computing the period of limitation in that case under this rule, the period from the making of that application and the rejection thereof shall also be excluded.1
16. Appeals and applications by indigent person:-
(i) An application for leave to proceed as an indigent person shall be made on a petition. It shall be accompanied by:
(a) a copy of the petition of appeal and the documents referred to in rule 3 of Order XV, or of the petition for special leave and the documents mentioned in rule 5 of Order XVI, as the case may be, and
(b) an affidavit from the petitioner disclosing all the property to which he is entitled and the value thereof other than his necessary wearing apparel and his interest in the subject-matter of the intended appeal and stating that he is unable to provide security or surety for the cost of respondent and pay Court-fees.2
(ii) (a) No fees shall be payable by an indigent person to his advocate, nor shall any such fees be allowed on taxation against the other party except by an order of Court. The advocate may however receive from the indigent person money for out of pocket expenses, if any, properly incurred in the case.
(b) It shall be open to the Court, if it thinks fit, to award costs against the adverse party or out of the property decreed to an indigent person and direct payment of such costs to the advocate for the indigent person.3
(iii) No appeal or other proceeding begun, carried on or defended by an indigent person shall be compromised or discontinued without the leave of the Court.4
17. Appeals under section 23 of the Consumer Protection Act:-
The petition of appeal from an order made by the National Consumer Disputes Redressal Commission (hereinafter referred to
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1. Order XVI, rule 1. For further details study all the 13 rules of this Order XVI.
2. Order XVII, rule 1.
3. Order XVII, rule 7(a) and (b).
4. Order XVII, rule 13.
as 'The National Commission') under sub-clause (i) of clause (a) of section 21 of the Consumer Protection Act, 1986 (68 of 1986), shall, subject to the provisions of sections 4, 5 and 12 of the Limitation Act, 1963 (36 of 1963), be presented by an aggrieved person within thirty days from the date of the order sought to be appealed against:
Provided that for computing the said period, the time requisite for obtaining a copy of such order shall be excluded.1
21. Special Leave Petitions in Criminal Proceedings and Criminal Appeals:-
(i) Where leave to appeal to the Court was refused in a case by the High Court, a petition for special leave to appeal shall, subject to the provisions of sections 4, 5, 12 and 14 of the Limitation Act, 1963 (36 of 1963), be lodged in the Court within sixty days from the date of order of refusal and in any other case not involving sentence of death, within ninety days from the date of judgment or order sought to be appealed from and in a case involving sentence of death within sixty days from the date of judgment or order sought to be appealed from:
Provided that where an application for leave to appeal to the High Court from the judgment of a single Judge of that Court has been made and refused, in computing the period of limitation in that case under this rule, the period from the making of that application and the rejection thereof shall also be excluded.2
(ii) Every criminal appeal in which a certificate of the nature referred to in clause (1) of article 132 or sub-clause (c) of clause (1) of article 134 has been granted under article 134A of the Constitution shall be lodged in the Court within sixty days from the date of the certificate granted by the High Court, and every appeal under article 134(1)(a) and (b) of the Constitution or under any other provision of law within sixty days from the date of the Judgment, final order or sentence appealed from:
Provided that in computing the period, the time requisite for obtaining a copy of the judgment or order appealed from, and where the appeal is on a certificate, of the certificate, and the order granting the certificate shall be excluded:
Provided further that the Court may, for sufficient cause shown extend the time.3
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1. Order XXF, rule 1.
2. Order XXI, rule 1. For further details study all the 11 rules pertaining to Special Leave Petitions under Order XXI.
3. Order XXI, rule 12. For further details study all the rules 12 to 29 pertaining to Criminal Appeals under Order XXI.
22. The Founding Fathers of the Constitution of India, being aware of the part played by prerogative writs in England and other countries, made specific provisions in our Constitution also by way of empowering the Supreme Court as well as High Courts to issue writs in the nature of habeas Corpus, mandamus, prohibition, quo-warranto and certiorari, for enforecement of fundamental rights under articles 32 by the Supreme Court and article 226 by the High Courts. In fact mere declaration of fundamental right is meaningless unless, there is an effective machinery for their enforcement also. It is only the remedy which makes such a right real. In the absence of any remedy for enforcement of fundamental rights, the same are meaningless in the eyes of law. Further, unlike other fundamental rights, the right guaranteed under article 32 of the Constitution is remedial and not substantive in nature. Under article 32, the right to approach the Supreme Court for the enforcement of fundamental rights is guaranteed. Thus, the framers of the Constitution have made through the provision of article 32 the Supreme Court, custodian of the fundamental rights.
23. Applications for enforcement of Fundamental Rights (article 32 of the Constitution)
(i) Every petition under article 32 of the Constitution shall be in writing and shall be heard by a Division Court of not less than five Judges provided that a petition which does not raise a substantial question of law as to the interpretation of the Constitution may be heard and decided by a Division Court of less than five Judges, and, during vacation, by the Vacation Judge sitting singly. All interlocutory and miscellaneous applications connected with a petition under article 32 of the Constitution, may be heard and decided by a Division Court of less than five Judges, and, during vacation, by the Vacation Judge sitting singly, notwithstanding that in the petition a substantial question of law as to the interpretation of the Constitution is raised. No Court-fees shall be payable on petitions for habeas corpus or other petitions under article 32 of the Constitution arising out of criminal proceedings, or in proceedings connected with such petitions.1
(ii) A petition for a direction, or order, or writ including writs in the nature of mandamus, prohibition, quo-warranto or certiorari shall set out the name and description of the petitioner, the nature of the fundamental right infringed the relief, sought and the grounds on which it is sought and shall be accompanied by an affidavit verifying the facts relied on and at least seven copies of the petition and affidavit shall be lodged in the Registry. The petition shall also state whether the petitioner has moved the High Court concerned for similar relief and, if so, with what result.2
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1. Order XXXV, rule 1 and 2.
2. Order XXXV, rule 7.
24. Application for transfer of criminal proceedings:-
Every petition for transfer under section 406 of the Code of Criminal Procedure, 1973 or under section 11 of the Terrorist Affected Areas (Special Courts) Act, 1984 shall be in writing. It shall set out concisely in separate paragraphs the facts and particulars of the case, the relief sought and the grounds therefor and shall be supported by an affidavit or affirmation.1
25. Application for transfer under article 139A(1) of the Constitution:-
Every application under article 139A(1) of the Constitution shall be in writing. It shall set out concisely in separate paragraphs, the facts and particulars of the cases, pending before the Supreme Court and one or more High Courts or as the case may be, before two or more High Courts, the names and addresses of the parties, the questions of law involved and a statement that the same or substantially the same questions of law are involved in all the cases and that such questions are substantial questions of general importance. In the case of an application made by the Attorney-General, no affidavit shall be necessary in support thereof but it shall be accompanied by a certificate of the advocate on record to the effect that such questions are substantial questions of general importance in terms of clause (1) of article 139A of the Constitution, and in the case of an application made by a party to a case it shall be accompanied by an affidavit in support thereof and also by a certificate as aforesaid. The petition shall be made on a Court-Fee stamp of the value of rupees ten.2
26. Application for transfer under article 139A(2) of the Constitution and section 25 of the Code of Civil Procedure, 1908:-
Every petition under article 139A(2) of the Constitution or section 25 of the Code of Civil Procedure, 1908, shall be in writing. It shall state succinctly and clearly all relevant facts and particulars of the case, the name of the High Court or other Civil Court in which the case is pending and the grounds on which the transfer is sought. The petition shall be supported by an affidavit.3
27. Special Reference under article 143 of the Constitution:-
On the receipt by the Registrar of the Order of the President referring a question of law or fact to the Court under article 143 of the Constitution the Registrar shall give notice to the Attorney-General for India to appear before the Court on a day specified in the notice to take the directions of the Court as to the parties who shall be served with notice of such reference, and the Court may, if it considers it desirable, order that notice of such reference, shall
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1. Order XXXVI, rule 1.
2. Order XXXVIA, rule 1.
3. Order XXXVIB, rule 1.
be served upon such parties as may be named in the order. Subject to the directions of the Court the notice shall require all such parties served therewith as desired to be heard at the hearing of the reference to attend before the Court on the day fixed by the order to take the directions of the Court with respect to statements of facts and arguments and with respect, to the date of the hearing.1
28. Review:-
The Court may review its judgment or order, but no application for review will be entertained in a civil proceeding except on the ground mentioned in Order XLVII, rule 1 of the Code, and in a criminal proceeding except on the ground of an error apparent on the face of the record.2
Thus in exercise of the powers conferred by article 145 of the Constitution, as mentioned above, and all other powers enabling it in this behalf, the Supreme Court, with the approval of the President made various rules, which were published in the Gazette of India, Extra., dated 15th January, 1966. These rules have been categorized in the Form of XLIX Orders distributed subject wise in twelve parts. Each Order has further parts, referred to as rules. There are five schedules appended to the said Supreme Court Rules, 1966. The First Schedule pertains to 'rules as to printing of record'. The Second Schedule is for 'Fees payable to Advocates'. The Third Schedule relates to 'Table of Court-Fees'. The Fourth Schedule is with regard to 'Fees to Officers of Court' and finally the fifth one is pertaining to the 'Forms'. Students may refer to, for their knowledge sake the aforementioned different Supreme Court Rules. However, from examination point of view study of the following mentioned Orders/rules might be enough.
Under the Advocates Act, 1961 every State has its own statutory body called State Bar Council. Under the Advocates Act, an advocate is a person, who is enrolled with a particular State Bar
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1. Order XXXVII, rules 1 and 2.
2. Order XL, rule 1.
3. 38. Appeal to the Supreme Court:
Any person aggrieved by an order made by the disciplinary committee of the Bar Council of India under section 36 or section 37 or the Attorney-General for India or the Advocate-General of the State concerned as the case may be, within sixty days of the date on which the order is communicated to him, prefer an appeal to the Supreme Court and the Supreme Court may pass such order including an order varying the punishment awarded by the disciplinary committee of the Bar Council of India thereon as it deems fit:
Provided that no order of the disciplinary committee of the Bar Council of India shall be varied by the Supreme Court so as to prejudicially affect the person aggrieved without giving him a reasonable opportunity of being heard.
Council of his respective State. A representative from every State Bar Council along with the Attorney-General for India and the Solicitor-General of India, as ex officio members constitute Bar Council of India. One of the functions assigned to the State Bar Council is to entertain and determine cases of misconduct against advocates on its roll, which is performed by the Disciplinary Committee. Even the Bar Council of India under section 36 may itself decide a case of misconduct against the advocates or by way of an appeal under section 37 to it, from the order of State Bar Council, it may pass an order in this regard. However, any person aggrieved by such an order made by the Bar Council of India may file an appeal before the Supreme Court under section 38 of the Advocates Act and the procedure in this regard is given under this Order V of the Supreme Court Rules, which contains fourteen rules and are mentioned as under:
1. An appeal from an order made by the Disciplinary Committee of the Bar Council of India under section 361or section 372of the AdvocatesAct, 1961 (25 of 1961) shall be lodged in the Court by the aggrieved person, or the Attorney-General for India, or the Advocate General of the State concerned, as the case may be, within sixty days from the date on which the order complained of is communicated to aggrieved person:
Provided that in computing the period of sixty days the time requisite for obtaining an authenticated copy of the order sought to be appealed from shall be excluded.
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1. 36. Disciplinary powers of Bar Council of India:
(1) Where on receipt of a complaint or otherwise the Bar Council of India has reason to believe that any advocate whose name is not entered on any State roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee.
(2) Notwithstanding anything contained in this Chapter the disciplinary committee of the Bar Council of India may, either of its own motion or on a report by any State Bar Council or an application made to it by any person interested, withdraw for inquiry before itself any proceedings for disciplinary action against any advocate pending before the disciplinary committee of any State Bar Council and dispose of the same.
(3) The disciplinary committee of the Bar Council of India disposing of any case under this section, shall observe, so far as may be, the procedure laid down in section 35, the references to the Advocate-General in that section being construed as references to the Attorney-General for India.
(4) In disposing of any proceedings under this section the disciplinary committee of the Bar Council of India may make any order which the disciplinary committee of a State Bar Council can make under sub-section (3) of section 35, and where any proceedings have been withdrawn for inquiry before the disciplinary committee of the Bar Council of India the State Bar Council concerned shall give effect to any such order.
2. 37. Appeal to the Bar Council of India:
(1) Any person aggrieved by in order of the disciplinary committee of a State Bar Council made under section 35 or the Advocate-General of the State may, within sixty days of the date of the communication of the order to him, prefer an appeal to the Bar Council of India.
(2) Every such appeal shall be heard by the disciplinary committee of the Bar Council of India which may pass such order including an order varying the punishment awarded by the disciplinary committee of the State Bar Council thereon as it deems fit:
Provided that no order of the disciplinary committee of the State Bar Council shall be varied by the disciplinary committee of the Bar Council of India so as to prejudicially affect the person aggrieved without giving him reasonable opportunity of being heard.
2. The memorandum of appeal shall be in the form of a petition. It shall state succinctly and clearly all the relevant facts leading up to the order complained of, and shall set forth in brief the objections to the decision appealed from and the grounds relied on in support of the appeal. The petition shall also state the date on which the order complained of was received by the appellant. The allegations of facts contained in the petition which cannot be verified by reference to the duly authenticated copies of the documents accompanying it shall be supported by affidavit of the appellant.
3. The petition shall be divided into paragraphs, numbered consecutively, each paragraph being confined to a distinct portion of the subject and shall be typed or cyclostyled or printed on one side of standard petition paper, demy-foolscape size, or on paper of equally superior quality.
4. The petition shall be made on a court-fee stamp of the value of ten rupees and shall be signed by the appellant, where the appellant appears in person, or by a duly authorised advocate on record on his behalf.
5. The petition of appeal shall be accompanied by:
(i) an authenticated copy of the decision sought to be appealed from;
(ii) and at least seven spare sets of the petition and the papers filed with it.
6. The Registrar after satisfying himself that the petition of appeal is in order, shall endorse thereon the date of presentation, register the same as an appeal and send a copy thereof to the Secretary, Bar Council of India, for record.
7. On the registration of the petition of appeal, the Registrar shall, after notice to the appellant or his advocate on record, if any, post the appeal before the Court for preliminary hearing and for orders as to issue of notice. Upon such hearing, the Court, if satisfied that no prima facie case has been made out for its interference, may dismiss the appeal, and, if not so satisfied, direct that notice of the appeal be issued to the Advocate-General of the State concerned or to the Attorney-General for India or to both and to the respondent.
8. Within ten days of the receipt by him of the intimation of admission of appeal under rule 7, the Secretary of the Bar Council of India shall transmit to the Court the entire original record relating to the case and such number of copies of the paper books prepared for the use of the Disciplinary Committee of the Bar Council of India as may be available.
9. Within fifteen days of the service of the notice of admission of appeal under rule 7 the Advocate-General of the State or the Attorney-General of the respondent may cause an appearance to be entered either personally or by an advocate on record on his behalf.
10. Where a respondent does not enter appearance within the time limited under rule 9, the appeal shall be set down for hearing ex parte as against him on the expiry of the period of one month from the receipt by him of the notice of the admission of appeal.
11. After the receipt of the original record the Registrar shall with all convenient speed, in consultation with the parties to the appeal, select the documents necessary and relevant for determining the appeal and cause sufficient number of copies of the said record to be typed or cyclostyled or printed at the expense of the appellant.
12. Unless otherwise ordered by the Court, every appeal under this Order shall be made ready and if possible posted for hearing before the Court within four months of the registration thereof.
13. Where the appellant fails to take any steps in the appeal within the time fixed for the purpose by these rules or unduly delays in bringing the appeal to a hearing, the Registrar shall call upon him to explain his default and if no Explanation is offered, or if the Explanation offered is, in the opinion of the Registrar, insufficient, the Registrar may after notifying all the parties who have entered appearance, place the appeal before the Court for orders on the default, and the Court may dismiss the appeal for want of prosecution or give such directions in the matter as it may think fit and proper.
14. The costs of and incidental to all proceedings in the appeal shall be in the discretion of the Court.
Needless to say that Court proceedings are held in a Court room and generally they are open to the public. However, for quick disposal of certain kind of matters, instead of they being heard by the Judges, Registrar has been empowered to dispose of the same in his own chamber. Reason for such a procedure is that such matters do not involve Judicial application of mind and at the same time that saves the time of the Judges. These kinds of matters categorized as under:-
1. The powers of the Court in relation to the following matters may be exercised by the Registrar, namely:-
(1) Applications for discovery and inspection.
(2) Applications for delivery of interrogatories.
(3) Applications for substituted service, or for dispensing with service of notice of the appeal on any of the respondents to the appeal under rule 10 of Order XV.
(4) Applications for time to plead, for production of documents, and generally relating to the conduct of cause, appeal or matter save those coming under rule 2 of this Order.
(5) Applications for leave to take documents out of the custody of the Court.
(6) Questions arising in connection with the payment of Court-Fees
(7) Applications by third parties for return of documents
(8) Applications for grant of copies of records to third parties
(9) Applications for the issue of a certificate regarding any excess Court-Fee paid under a mistake.
(10) Applications for requisitioning records from the custody of any Court or other authority.
(11) Applications for condoning delay in paying deficit court-fees or delay in representation.
(12) Applications for condonation of delay in filing statement of case: Provided that where the Registrar does not think fit to excuse the delay, he shall refer the application to the Court for Orders.
(13) Applications for appointment and for approval of a translator or interpreter.
(14) Applications for withdrawal of appeal by an appellant prior to his lodging the petition of appeal.
(15) Applications for substitution, except where the substitution would involve setting aside an abatement.
(16) Applications for production of documents outside Court premises.
(17) Applications for change or discharge of advocate-on-record.
(18) Applications to withdraw suits.
(19) Applications for payment into Court.
(20) Applications for payment out of Court of money or security, or interest or dividend on securities.
(21) Applications for extending returnable dates of warrants.
(22) Applications to appoint or discharge a next friend or guardian of a minor or a person of unsound mind and direct amendment of the record thereon.
(23) Application for refund of security deposit or part thereof, or for payment out of security deposit.
(24) Deleted w.e.f. 2-7-1983.
(25) Applications for consolidation of appeals and writ petitions for purposes hearing, and preparation of record.
(26) Applications for directions regarding preparation of record.
(27) Applications for exemption from filing of certified copies of judgments, decrees, orders, certificates or orders granting certificate:
Provided that applications for exemption from filing of certified copies of judgments or orders accompanying a special leave petition shall be posted before the Court along with the Special Leave Petition.
(28) Application for condonation of delay in re-filing, provided the delay does not exceed 90 days from the date of notifying the defects.
(29) Application for condonation of delay in filing process fee.
(30) Issue of fresh summons and notices.
(31) Application for extension of time for filing pleadings, provided that the Registrar shall not grant more than two extensions for the same purpose.
(32) Application for cancellation of date on the written joint request of the appearing parties, provided the matter has not appeared in the final cause-list, on the date of filing of application.
(33) Application for amendment of pleadings with the consent of all the appearing parties, or where the other side has not appeared.
(34) Office Report for renewal of Fixed Deposit Receipts and Bank Guarantees.
(35) Application for exemption from filing official translation.
(36) Application for exemption from filing process fee and/or spare copies.
(37) All uncontested Interlocutory Applications of formal nature.
(38) Any matter which in accordance with orders or directions issued by the Court, is required to be dealt with by the Registrar.
(39) Imposing costs on the party in default of compliance of the orders passed by the Registrar.
2. The powers of the Court in relation to the following matters may be exercised by a Single Judge sitting in Chambers, namely:-
Similarly, there are certain matters which have been assigned not to the Registrar, but to the Judge, that too sitting singly, to dispose of the same in his chamber, keeping in view their nature, since they do not require elaborate arguments. These matters have been enumerated under the Supreme Court Rules as under:
(1) Applications by advocate-on-record for leave to withdraw.
(2) Applications for leave to compromise or discontinue an appeal where permission was granted to sue as an indigent person.
(3) Applications for striking out or adding party or for intervention in a suit, appeal or other proceeding.
(4) Applications for separate trials of causes of action.
(5) Applications for separate trials to avoid embarrassment.
(6) Rejection of plaint.
(7) Applications for setting down for judgment in default of written statement.
(8) Applications for better statement of claim or defence.
(9) Applications for particulars.
(10) Applications for striking out any matter in a pleading.
(11) Applications for amendment of pleading and for enlargement of time to amend any pleading.
(12) Applications to tax bills returned by the Taxing Officer.
(13) Applications for review of taxation.
(14) Applications for enlargement or abridgement of time except applications for condonation of delay in filing Special Leave Petitions.
(15) Applications for issue of commissions.
(16) Deleted w.e.f. 2-7-1983.
(17) Applications for assignment of security Bonds.
(18) Questions arising in taxation referred by the Taxing Officer.
(19) Applications for orders against clients for payment of costs.
(20) Applications for taxation and delivery of bill of costs and for delivery by an advocate of documents and papers.
(21) Applications for registration of advocates as advocates-on-record.
(22) Applications for leave to proceed as an indigent person.
(23) Applications for grant of bail where the petitioner is confined in jail.
(24) Applications for stay of execution of a sentence or order in criminal proceedings.
(25) Applications by accused persons in custody for being produced before the Court at the hearing of the appeal.
(26) Consent applications in interlocutory matters.
(27) Applications by accused persons for engagement of advocate under rule 25 of Order XXI.
(28) Fixing the remuneration of a guardian ad litem.
(29) Deleted w.e.f. 2-7-1983.
(30) Deleted w.e.f. 30-7-1983.
(31) Summons for non-prosecution under Order XV, rule 30 of Supreme Court Rules.
(32) Office Report on default.
(33) Application for exemption from paying Court-Fee.
(34) Application for condonation of delay in seeking substitution and application for substitution where it would involve setting aside an abatement.
(35) Application for condonation of delay in re-filing where the delay exceeds 90 days from the date of notifying the defects.
(36) Application for refund of security.
(37) Application for withdrawal of any appeal/petition with the consent of all the appearing parties or where the other side has not appeared.
(38) Application for exemption from surrendering.
Rule 3 further provides that any person aggrieved by any order made by the Registrar under this Order may, within fifteen days of the making of such order, appeal against it to the Judge in Chambers.
Rule 4 says that the Registrar, may, and if so directed by the Judge in Chambers, shall, at any time adjourn any matter and lay the same before the Judge in Chambers, and the Judge in Chambers may at any time adjourn any matter and lay the same before the Court.
Normally, in the Supreme Court every matter is heard by Bench consisting of not less than two Judges subject to certain exceptions, which is apparent from this Order VII, containing two rules as mentioned below:
1. Subject to the other provisions of these rules every cause, appeal or matter shall be heard by a Bench consisting of not less than two Judges nominated by the Chief Justice:
Provided, however, that the following categories of matters may be heard and disposed of finally by a Judge sitting singly nominated by the Chief Justice:
(1) Special leave petition arising out of the decisions or orders of a single Judge of a High Court or of a Member of a Tribunal sitting singly.
(2) Bail applications.
(3) Applications for substitution other than those falling under rule 1(15) of Order VI.1
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1. 15. Verification of pleadings
(1) Save as otherwise provided by any law for the time being in force, every pleading shall be varied at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case.
(2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.
(3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed.
(4) The person verifying the pleading shall also furnish an affidavit in support of his pleadings.
HIGH COURT AMENDMENTS
Bombay.—
In Order VI, in rule 15, in sub-rule (1), at the end, substitute colon for the full-stop and insert the following proviso, namely:—
"Provided that in respect of pleading to be filed in the Bombay City Civil Court such verification shall within the local jurisdiction of the Court, be made before one of the officers of the said Court empowered to administer oath and elsewhere, before any other mentioned in section 139 of the Code of Civil Procedure, 1908." (w.e.f. 1-10-1983)
Orissa.—
Same as in Patna.
Patna.—
In Order VI, in rule 15, for sub-rule (1), substitute the following sub-rule, namely:—
"(1) Save as otherwise provided by any law for the time being in force, the facts stated in every pleading shall be verified by solemn affirmation or on oath of the party or of one of the parties pleading or of some other person proved to the satisfaction of the Court to be acquainted with the facts of the case, before any officer empowered to administer oath under section 139 of the Code." (w.e.f.27-9-1961)
(4) Summons for non-prosecution.
(5) Applications for exemption from paying Court-fees.
(6) Applications for extension of time for paying Court-fees or for furnishing undertaking, bank guarantee or security.
(7) Applications for disposal of an appeal in terms of a compromise petition.
(8) Applications for withdrawal of special leave petitions, appeals or writ petitions.
2. Where in the course of the hearing of any cause, appeal or other proceeding, the Bench considers that the matter should be dealt with by a larger Bench, it shall refer the matter to the Chief Justice, who shall thereupon constitute such a Bench for the hearing of it.
3. The Chief Justice may from time to time appoint a Judge to hear and dispose of all applications which may be heard by a Judge in Chambers under these rules.
During the vacation, though the Courts are closed, but still matters of urgent nature may be heard by a vacation Judge, appointed by the Chief Justice. The Rules in this regard are mentioned below:
4. During the vacation, the Vacation Judge sitting singly may, in addition to exercising all the powers under the proviso to rule 1 and of a Judge in Chambers under these rules, exercise the powers of the Court in relation to the following matters, namely:-
(1) Applications for special leave to appeal in urgent cases where interim relief is prayed for subject to the condition that the Vacation Judge shall not decide such a petition if it raises substantial question of law as to the interpretation of the Constitution.
(2) Applications for stay of execution of a decree or order or stay of proceedings in civil matters.
(3) Applications for transfer of cases under section 406 of the Code of Criminal Procedure, 1973 (2 of 1974).
(4) Applications for stay of proceedings in criminal matters.
(5) Applications under article 32 of the Constitution of an urgent nature which do not involve a substantial question of law as to the interpretation of the Constitution.
(6) Issue of a rule nisi in urgent applications under article 32 of the Constitution which involve a substantial question of law as to the interpretation of the Constitution.
(7) Deleted w.e.f. 30-7-1983.
(8) Applications of an urgent nature for transfer of cases under section 25 of the Code of Civil Procedure, 1908 (5 of 1908).
(9) Issue of notice in applications of an urgent nature under
article 139A(1) of the Constitution; and
(10) Applications of an urgent nature for transfer of cases under article 139A(2) of the Constitution.
In our democratic set-up principles of natural justice are of utmost importance, according to which a person should not be condemned, without granting any hearing. Therefore, before the Courts no order can be passed in the absence of the other party and accordingly the concept of 'notice of motion' comes into the picture, regarding which Order VIII of the Supreme Court Rules lays down the following mention rules:-
1. Except where otherwise provided by any statute or prescribed by these rules, all applications which in accordance with these rules cannot be made in Chambers shall be made on motion after notice to the parties affected thereby.
2. Where the delay caused by notice would or might entail serious hardship, the applicant may pray for an ad interim ex parte order in the notice of motion, and the Court, if satisfied upon affidavit or otherwise that the delay caused by notice would entail serious hardship may make an order ex parte upon such terms as to costs or otherwise, and subject to such undertaking being given, if any, as the Court may think just, pending orders on the motion after notice to the parties affected thereby.
3. Where an ex parte order is made by the Court, unless the Court has fixed a date for the return of the notice, or otherwise directs, the Registrar, shall fix a date for the return of the notice and the application by notice of motion shall be posted before the Court for final orders on the returnable date.
4. A notice of motion shall be instituted in the suit or matter in which the application is intended to be made and shall state the time and place of application and the nature of the order asked for and shall be addressed to the party or parties intended to be affected by it, unless they have an advocate on record, in which case it will be addressed to the advocate on record, and shall be signed by the Advocate on record of the party moving, or by the party himself where he acts in person.
5. (1) Unless otherwise ordered, the notice of motion together with the affidavit in support thereof shall be served on the opposite party not less than seven days before the day appointed for the motion where such opposite party has entered appearance, and not less than fourteen days before the day appointed for the motion where such party has not entered appearance.
The affidavits in opposition shall be filed in this Registry not later than five days before the day appointed for the hearing and affidavits in reply shall be filed not later than two days before the day of hearing. The affidavits in opposition or reply shall be served on the opposite party or parties and shall not be accepted in the Registry unless they contain an endorsement of service signed by such party or parties.
(2) Leave to serve short notice of motion may be obtained ex parte from the Registrar upon affidavit.
6. Notice shall be given to the other party or parties of all grounds intended to be urged in support of, or in opposition to, any motion.
7. Any interlocutory or miscellaneous application, notwithstanding that it is made in an appeal or other proceeding in which a substantial question of law as to the interpretation of the Constitution is raised, may be heard and decided by a Bench of not less than five Judges.
The provisions of this order are almost similar to those contained in Order XXXII of the Code of Civil Procedure, 1908, which is titled as 'Suits by or against minors and persons of unsound mind'. Significance of this Order in the Supreme Court Rules is same as under the Code of Civil Procedure, since it is admitted fact that the minors and persons of unsound mind do not possess mental faculties, which may help them in recognizing what is right and wrong for them. Therefore, these Rules have been enacted to protect their interest before any forum, whatsoever including the Supreme Court. Accordingly, under the Supreme Court Rules, they are as under:
1. Every appeal, petition or other proceeding by a minor shall be instituted or continued in his name by his next friend.
2. A next friend shall not retire without the leave of the Court. The Court may require him to procure a fit person to be put in his place before he is permitted to retire, and may also, if it thinks fit, require him to furnish security for costs already incurred as a condition of his retirement.
3. (1) On the retirement, removal or death of the next friend of a minor, further proceedings shall be stayed until the appointment of a new next friend in his place.
(2) Where the advocate-on-record of such minor omits, within a reasonable time, to take steps to get a new next friend appointed, any person interested in the minor or in the matter in issue may apply to the Court for the appointment of one, and the Court may appoint such person as it thinks fit as the next friend of such minor.
4. An application for the appointment of new next friend of a minor shall be supported by an affidavit showing that the person proposed is a fit and proper person to be so appointed and has no interest adverse to that of the minor.
5. Where a respondent to an appeal or petition is a minor and is not represented by a guardian, an application shall be made to the Court by the appellant or petitioner as the case may be, or by some person interested in the minor for the appointment of a guardian of such minor; and it shall be supported by an affidavit stating that the proposed guardian has no interest in the matter in question in the appeal or petition adverse to that of the minor. Where a person other than the father or other natural guardian of the minor is proposed as guardian, notice of the application shall be served on the father or other natural guardian of the minor, or on the person with whom the minor resides, not less than fourteen days before the day named in the notice for the hearing of the application. Where there is no other person fit and willing to act as guardian, the Court may appoint an officer of the Court to be guardian.
6. (1) No guardian of a minor shall retire from a suit, appeal or other proceeding without the leave of Court. Where a guardian of a minor fails to do his duty or other sufficient cause is shown for his removal, the Court may remove him from the guardianship of the minor and make such order as to costs as it thinks fit.
(2) Where the guardian of a minor retires, dies or is removed by the Court during the pendency of the suit, appeal or other proceeding, the Court shall appoint a new guardian in his place.
7. When a guardian ad litem of a minor respondent is appointed, and it is made to appear to the Court that the guardian is not in possession of any, or sufficient funds for the conduct of the appeal or petition on behalf of the respondent, and that the respondent will be prejudiced in his defence thereby, the Court may, in its discretion, from time to time, order the appellant or petitioner, as the case may be, to advance to the guardian of the minor for the purpose of his defence such moneys as the Court may fix, and all moneys so advanced shall form part of the costs of the appellant or petitioner in the appeal or petition, as the case may be. The order shall direct that the guardian to file in Court an account of the moneys so received by him.
8. An application to declare as a major a party to a proceeding described as a minor and to discharge his next friend or guardian shall be supported by an affidavit stating the age of the alleged major and the date on which he attained majority. Notice of the application shall be given to the next friend or guardian and to the alleged major.
9. No next friend or guardian of a minor in an appeal or other proceeding, shall without the leave of the Court, expressly recorded in the proceedings, enter into any agreement or compromise on behalf of a minor with reference to the appeal or proceeding in which he acts as next friend or guardian.
10. An application made to the Court for leave to enter into an agreement or compromise or for the withdrawal of any appeal or other proceedings in pursuance of a compromise on behalf of a minor, shall be supported by an affidavit from the next friend or guardian of the minor stating that the agreement or compromise is for the benefit of the minor, and, where the minor is represented by an Advocate, by a certificate or by a statement at the bar from such advocate to the effect that the agreement or compromise is, in his opinion, for the benefit of the minor. A decree or order made in pursuance of the compromise of an appeal or other proceeding, to which a minor is a party, shall recite the sanction of the Court thereto and shall set out the terms of the compromise.
11. The provisions of this order, so far as they are applicable, shall apply to persons adjudged to be on unsound mind and to persons who, though not so adjudged, are found by the Court of inquiry, by reason of unsoundness of mind or mental infirmity, to be incapable of protecting their interests when suing or being sued.
12. Save as aforesaid, the provisions of Order XXXII of the Code relating to suits so far as applicable, shall apply mutatis mutandis to appeals and other proceedings in the Court.
Affidavits play very important role in the proceedings before the Court. Anything said on affidavit is presumed to be said truthfully because of section 1911of the Indian Penal Code, which makes stating anything false on affidavit, an offence. Hence, even evidence may be given now a days before the Court in the form of affidavit under certain circumstances. Before the Supreme Court, how an affidavit can be given, what should it include and under what circumstances it can be rejected - all these and other kinds of matters related to 'affidavits' are explained under this Order by way of following mentioned thirteen rules:
1. The Court may at any time, for sufficient reason, order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable:
Provided that where it appears to the Court that either party bona fide desires the production of a witness for cross-examination and that such witness can be produced, an order shall not be made authorising the evidence of such witness to be given by affidavit.
2. Upon any application evidence may be given by affidavit; but the Court may, at the instance of either party, order the attendance for cross-examination of the deponent, and such attendance shall be in Court, unless the deponent is exempted from personal appearance in Court or the Court otherwise directs.
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1. Giving false evidence: Whoever, being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to give false evidence.
3. Every affidavit shall be instituted in the cause, appeal or matter in which it is sworn.
4. Every affidavit shall be drawn up in the first person, and shall be divided into paragraphs to be numbered consecutively, and shall state the description, occupation, if any, and the true place of abode of the deponent.
5. Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted, provided that the grounds thereof are stated.
6. An affidavit requiring interpretation to the deponent shall be interpreted by an interpreter nominated or approved by the Court, if made within the State of Delhi, and if made elsewhere, shall be interpreted by a competent person who shall certify that he has correctly interpreted the affidavit to the deponent.
7. Affidavits for the purposes of any cause, appeal or matter before the Court may be sworn before a Notary or any authority mentioned in section 139 of the Code or before the Registrar of this Court, or before a Commissioner generally or specially authorised in that behalf by the Chief Justice.
8. Where the deponent is a pardanashin lady, she shall be identified by a person to whom she is known and that person shall prove the identification by a separate affidavit.
9. Every exhibit annexed to an affidavit shall be marked with the title and number of the cause, appeal or matter and shall be initialled and dated by the authority before whom it is sworn.
10. No affidavit having any interlineation, alteration or erasure shall be filed in Court unless the interlineation or alteration is initialled, or unless in the case of an erasure the words or figures written on the erasure are rewritten in the margin and initialled, by the authority before whom the affidavit is sworn.
11. The Registrar may refuse to receive an affidavit where in his opinion the interlineations, alterations, or erasures are so numerous as to make it expedient that the affidavit should be rewritten.
12. Where a special time is limited for filing affidavits, no affidavit filed after that time shall be used except by leave of the Court.
13. In this Order, 'affidavit' includes a petition or other document required to be sworn or verified; and 'sworn' includes affirmed. In the verification of petitions, pleadings or other proceedings, statements based on personal knowledge shall be distinguished from statements based on information and belief. In the case of statements based on information, the deponent shall disclose the source of this information.
Articles 132 to 1361of the Constitution deal with the appellate jurisdiction of the Supreme Court. Article 132 deals with the appellate jurisdiction of the
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1. 132. Appellate jurisdiction of Supreme Court in appeals from High Courts in certain cases:
(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order of a High Court in the territory of India, whether in a civil, criminal or other proceeding, if the High Court certifies under article 134A that the case involves a substantial question of law as to the interpretation of this Constitution.
(2) Deleted w.e.f. 1-8-1979
(3) Where such a certificate is given, any party in the case may appeal to the Supreme Court on the ground that any such question as aforesaid has been wrongly decided.
Explanation.—For the purposes of this article, the expression "final order" includes an order deciding an issue, which, if decided in favour of the appellant, would be sufficient for the final disposal of the case.
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.
134. Appellate jurisdiction of Supreme Court in regard to criminal matters:
(1) An appeal shall lie to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India if the High Court—
(a) 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 its authority and has in such trial convicted the accused person and sentenced him to death; or
(c) certifies under article 134A that the case is a fit one for appeal to the Supreme Court:
Provided that an appeal under sub-clause (c) shall lie subject to such provisions as may be made in that behalf under clause (1) of article 145 and to such conditions as the High Court may establish or require.
(2) Parliament may by law confer on the Supreme Court any further powers to entertain and hear appeals from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India subject to such conditions and limitations as may be specified in such law.
134A. Certificate for appeal to the Supreme Court: Every High Court, passing or making a judgment, decree, final order, or sentence, referred to in clause (1) of
article 132 or clause (1) of article 133, or clause (1) of article 134,—
(a) May, if it deems fit so to do, on its own motion; and
(b) 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, as soon as may be after such passing or making, the question whether a certificate of the nature referred to in clause (1) of article 132, or clause (1) ofarticle 133 or, as the case may be, sub-clause (c) of clause (1) of article 134, may be given in respect of that case.
135. Jurisdiction and powers of the Federal Court under existing law to be exercisable by the Supreme Court: Until Parliament by law otherwise provides, the Supreme Court shall also have jurisdiction and powers with respect to any matter to which the provisions of article 133 or article 134 do not apply if jurisdiction and powers in relation to that matter were exercisable by the Federal Court immediately before the commencement of this Constitution under any existing law.
136. Special leave to appeal by the Supreme Court: (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.
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.
Supreme Court in constitutional cases. It must be read with article 134A (inserted by the 44th Amendment) under which, inter alia, if a substantial question of interpretation of the Constitution is involved, the High Court must grant a certificate. Unlike article 133(1)(a), article 132(1) does not require that the question must be of general importance.
Article 133 deals with the appellate jurisdiction of the Supreme Court from High Courts in civil cases. As amended by the 30th Amendment Act, 1972, the article allows such appeal if (i) the case involves a substantial question of law of general importance, and (ii) in the opinion of the High Court, the said question needs to be decided by the Supreme Court. The certificate is issued under article 134A.
Article 134(1) allowed criminal appeals to the Supreme Court from High Courts in the specified cases. Clauses (a) and (b) involve a death sentence. Clause (c) is much wider. If the High Court certifies under article 134A that the case is a fit one for appeal to the Supreme Court, then the appeal is competent.
Article 135 saves jurisdiction under existing law, conferred on the Federal Court, which will now be exercised by the Supreme Court.
Article 136 confers on the Supreme Court jurisdiction to entertain by special leave to appeal. The jurisdiction is of the widest amplitude as regards
(a) the court from whose decision the appeal may be entertained (but court martials are excluded);
(b) the nature of the decision that may be appealed from;
(c) the nature of the proceeding in which appeal may be entertained;
(d) the grounds that may be allowed to be raised for seeking such special leave.
The procedural aspect of filing appeals covered under articles 132-136 is given in Orders XV and XVI, which are mentioned below:
1. Where a certificate of the nature referred to in clause (1) of article 132 or clause (1) of article 133 has been given under article 134A of the Constitution or a certificate has been given under article 135 of the Constitution or under any other provision of law the party concerned shall file a petition of appeal in the Court.
2. Subject to the provisions of sections 4,152and 123of the Limitation Act, 1963 (36 of 1963), the petition of appeal shall be presented within sixty days from the date of the grant of the certificate of fitness:
Provided that in computing the said period, the time requisite for obtaining a copy of the certificate and the order granting the said certificate, shall also be excluded.
3. (1) The petition shall recite succinctly and in chronological order with relevant dates, the principal steps in the proceedings leading up to the appeal from the commencement thereof till the grant of the certificate of leave to appeal to the Court, and shall also state the amount or value of the subject-matter of
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1. Expiry of prescribed period when court is closed.—
When the prescribed period for any suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the court reopens.
Explanation: A court shall be deemed to be closed on any day within the meaning of this section if during any part of its normal working hours it remains closed on that day.
2. Extension of prescribed period in certain cases.—
Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908) may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.
Explanation: The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.
3. Exclusion of time in legal proceedings.—
(1) In computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned shall be excluded.
(2) In computing the period of limitation for an appeal or an application for leave to appeal or for revision or for review of a judgment, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded.
(3) Where a decree or order is appealed from or sought to be revised or reviewed, or when an application is made for leave to appeal from a decree or order the time requisite for obtaining a copy of the judgment on which the decree or order is founded shall also be excluded.
(4) In computing the period of limitation for an application to set aside an award, the time requisite for obtaining a copy of the award shall be excluded.
Explanation.—In computing under this section the time requisite for obtaining a copy of a decree or an order, any time taken by the court to prepare the decree or order before an application for copy thereof is made shall not be excluded.
the suit in the Court of first instance and in the High Court, and the amount or value of the subject-matter in dispute before the Court with particulars showing how the said valuation has been arrived at. Where the appeal is incapable of valuation, it shall be so stated:-
(2) The petition shall be accompanied by a certified copy of
(i) judgment and decree or order appealed from;
(ii) certificate granted by the High Court; and
(iii) the order granting the said certificate.
In cases where according to the practice prevailing in the High Court, the decree or order is not required to be drawn up it shall be so stated upon affidavit. In appeals falling under any of the categories enumerated in rule 5A, however, in addition to the documents mentioned above, a certified copy (or uncertified copy if such copy is affirmed to be true copy upon affidavit) of the judgment or order and also of the decree of the Court immediately below or such a copy of the order of the Tribunal, Government authority or person, as the case may be shall also be filed before the appeal is listed for hearing ex parte. At least seven copies of the aforesaid documents shall be filed in the Registry.
(3) Where at any time between the grant by the High Court of the Certificate for leave to appeal to the Court and the filing of the petition of appeal, and party to the proceeding in the Court below dies, the petition of appeal may be filed by or against the legal representative, as the case may be, of the deceased party, provided that the petition is accompanied by a separate application, duly supported by an affidavit, praying for bringing on record such person as the legal representative of the deceased party and setting out the facts showing him to be the proper person to be entered on the record as such legal representatives.
4. The Registrar, after satisfying himself that the petition of appeal is in order, shall endorse the date of presentation on the petition and register the same as an appeal in the Court.
5. Where a party desires to appeal on grounds which can be raised only with the leave of the Court, it shall lodge along with the petition of appeal a separate petition stating the grounds so proposed to be raised and praying for leave to appeal on those grounds.
5A. Each of the following categories of appeals, on being registered, shall be put up for hearing ex parte before the Court which may either dismiss it summarily or direct issue of notice to all necessary parties or may make such orders as the circumstances of the case may require, namely:-
(a) an appeal from any judgment, decree or final order of a High Court summarily dismissing the appeal or the matter, as the case may be before it;
(b) deleted w.e.f. 30-5-1981;
(c) an appeal on a certificate granted by a High Court under article 134A of the Constitution being a certificate of the nature referred to in clause (1) of article 132 or clause (1) of article 133 of the Constitution or under any other provision of law if the High Court has not recorded the reasons or the grounds for granting the certificate.
(d) an appeal under clause (b) of sub-section (1) of section 19 of the Contempt of Courts Act, 1971 (70 of 1971).
(6) Deleted w.e.f. 2-7-1983.
(7) Deleted w.e.f. 2-7-1983.
(8) Deleted w.e.f. 2-7-1983.
(9) Deleted w.e.f. 2-7-1983.
10. As soon as the petition of appeal has been registered and in the case of categories of appeals falling under rule 5A as soon as notice is directed to be issued the Registrar of the Court shall-
(i) require the appellant to furnish as many copies of the petition of appeal as may be necessary for record and for service on the respondent; and
(ii) send to the Registrar of the Court appealed from a copy of the petition of appeal for record in that Court and a copy for service upon the respondent or each respondent:
Provided that the Registrar of the Court may on an application made for the purpose, dispense with service of the petition of appeal on any respondent who did not appear in the proceedings in the Court appealed from or on his legal representative:
Provided however that no order dispensing with service of notice shall be made in respect of a respondent who is a minor or a lunatic:
Provided further that an order dispensing with service of notice shall not preclude any respondent or his legal representative from appearing to contest the appeal.
11. On receipt from the Court of the copy of the petition of appeal, the Registrar of the Court appealed from shall-
(i) cause notice of the lodgment of the petition of appeal to be served on the respondent personally or in such manner as the Court appealed from may by rules prescribe;
(ii) unless otherwise ordered by the Court transmit to the Court at the expense of the appellant the original record of the case, including the record of the Courts below:
Provided that where a transcript is to be prepared in accordance with the proviso to sub-rule (1) of rule 14, no original record shall be transmitted until specifically requisitioned; and
(iii) as soon as notice as aforesaid is served, to send a certificate as to the date or dates on which the said notice was served.
12. A respondent shall enter appearance in the Court within thirty days of the service on him of the notice of lodgment of the petition of appeal.
13. The respondent may within the time limited for his appearance deliver to Registrar of the Court and to the appellant a notice in writing consenting to the appeal, and the Court may thereupon make such order on the appeal as the justice of the case may require without requiring the attendance of the person so consenting.
14. (1) The record shall be printed in accordance with the rules contained in the First Schedule to these rules and, unless otherwise ordered by the Court, it shall be printed under the supervision of the Registrar of the Court:
Provided that where the proceedings from which the appeal arises were had in courts below in a language other than English, the Registrar of the Court appealed from shall within 1[six months] from the date of the service on the respondent of the notice of petition of appeal transmit to the Court in triplicate a transcript in English of the record proper of the appeal to be laid before the Court, one copy of which shall be duly authenticated. The provisions contained in rules 15 to 20 shall apply to the preparation and transmission to the Court of the said transcript record:
Provided further that where the records are printed for the purpose of the appeal before the High Court and the said record be in English, the High Court shall prepare 10 extra copies in addition to the number of copies required by the High Court for use in the Court.
(2) Upon receipt from the Court appealed from, of the English transcript of the record as aforesaid, the Registrar of the Court shall proceed to cause an estimate of the costs of preparing the printed copies of the records to be made and served on the appellant in accordance with the provisions contained inrule 19 and will all convenient speed arrange for the preparation thereof.
(3) Unless otherwise ordered by the Court, at least twenty copies of the record shall be prepared.
15. (1) As soon as the original record of the case is received in the Court, the Registrar shall give notice to the parties who have entered appearance of the arrival of the original record and the parties shall, thereafter be entitled to inspect the record and to extract all necessary particulars therefrom.
(2) The appellant shall within four weeks of the service upon him of the notice referred to in sub-rule (1), file a list of the documents which he proposes to include in the paper book, a copy whereof shall be served on the respondent. The respondent may within three weeks of the service on him of the said list, file a list of such additional documents as he considers necessary for the determination of the appeal.
16. After the expiry of the time fixed for the filing of the additional list by the respondent, the Registrar shall fix a day for the settlement of list of documents to be included in the appeal record and shall give notice thereof to the parties who have entered appearance. In settling the lists the Registrar, as well as the parties concerned, shall endeavour to exclude from the record all documents that are not relevant to the subject-matter of the appeal and generally to reduce the bulk of the record as far as practicable.
17. Where the respondent objects to the inclusion of a document on the ground that it is not necessary or is irrelevant and the appellant nevertheless insists upon its inclusion, the record as finally printed shall, with a view to subsequent adjustment of cost of and incidental to the printing of the said document, indicate in the index of papers or otherwise the fact that the respondent has objected to the inclusion of the document and that it has been included at the instance of the appellant.
18. Where the appellant objects to the inclusion of a document on the ground that it is not necessary or is irrelevant and the respondent nevertheless insists upon its inclusion, the Registrar, if he is of opinion that the document is not relevant, may direct that the said document be printed separately at the expense of the respondent and require the respondent to deposit within such time as he may prescribe, the necessary charges therefor, and the question of the costs thereof shall be dealt with by the Court at the time of the determination of the appeal.
19. As soon as the index of the records is settled, the Registrar concerned shall cause an estimate of the costs of the preparation of the record to be prepared and served on the appellant and require him to deposit within thirty days of such service the said amount. The appellant may deposit the said amount in lump sum or in such instalments as the Registrar may prescribe.
20. Where the record has been printed for the purpose of the appeal before the High Court and sufficient number of copies (if it is in English) are available, no fresh printing of the record shall be necessary except of such additional papers as may be required.
21. Where an appeal paper book is likely to consist of two hundred or less number of pages, the Registrar may, instead of having it printed, have the record cyclostyled under his supervision.
22. If at any time during the preparation of the record the amount deposited is found insufficient, the Registrar shall call upon the appellant to deposit such further sum as may be necessary within such further time as may be deemed fit but not exceeding twenty-eight days in the aggregate.
23. Where the appellant fails to make the required deposit, the preparation of the records shall be suspended and the Registrar concerned shall not proceed with the preparation thereof without an order in this behalf of the Court and where the record is under preparation in the Court appealed from, of the Court appealed from.
24. When the record has been made ready the Registrar shall certify the same and give notice to the parties of the certification of the record and append to the record a certificate showing the amount of expenses incurred by the party concerned for the preparation of the record.
25. Each party who has entered appearance shall be entitled to three copies of the record for his own use.
26. Subject to any special direction from the Court to the contrary, the costs of, and incidental to, the printing of the record shall form part of the costs of the appeal, but the costs of, and incidental to, the printing of any document objected to by one party in accordance with rule 18 or rule 19, shall, if such document is found, on taxation of costs, to be unnecessary or irrelevant, be disallowed to, or borne by the party insisting on including the same in the record.
27. Where the record is directed to be prepared under the supervision of the Registrar of the Court appealed from, the provisions contained in rules 15 to 25 shall apply mutatis mutandis to the preparation thereof.
28. Where the decision of the appeal is likely to turn exclusively on a question of law, any party, with the sanction of the Registrar of the Court, may submit such question of law in the form of a special case, and the Registrar may call the parties before him, and having heard them and examined the record, may report to the Court as to the nature of the proceedings and the record that may be necessary for the discussion of the same. Upon perusing the said report, the Court may give such directions as to the preparation of the record and hearing of the appeal, including directions regarding the time within which or otherwise, the parties shall lodge their respective statements of case:
Provided that nothing herein contained shall in any way prevent this Court from ordering the full discussion of the whole case if the Court shall so think fit.
29. Where at any stage prior to the hearing of the appeal an appellant desires to withdraw his appeal, he shall present a petition to that effect to the Court. At the hearing of any such petition a respondent who has entered appearance may apply to the Court for his costs.
30. If an appellant fails to take any steps in the appeal within the time fixed for the same under these rules, or if no time is specified, it appears to the Registrar of the Court that he is not prosecuting the appeal with due diligence, the Registrar shall call upon him to explain his default and, if no Explanation is offered, or if the Explanation offered appears to the Registrar to be insufficient, the Registrar may issue a summons calling upon him to show cause before the Court why the appeal should not be dismissed for non-prosecution.
31. The Registrar shall send a copy of the summons mentioned in the last specified rule to every respondent who has entered appearance. The Court may, after hearing the parties, dismiss the appeal for non-prosecution or give such other directions thereon as the justice of the case may require.
32. Where at any time between the filing of the petition of appeal and the hearing of the appeal the record becomes defective by reason of the death or change of status of a party to the appeal, or for any other reason, an application shall be made to the Court, stating who is the proper person to be substituted or entered on the record in place of, or in addition to the party on record.
33. Upon the filing of such an application the Registrar of the Court shall, after notice to the parties concerned, determine who in his opinion is the proper person to be substituted or entered on the record in place of, or in addition to the party on record, and the name of such person shall thereupon be substituted or entered on the record:
Provided that no such order of substitution or revivor shall be made by the Registrar-
(i) where a question arises as to whether any person is or is not the legal representative of the deceased party, or
(ii) where a question of setting aside the abatement of the cause is involved;
and in such a case he shall place the matter before the Court for orders:
Provided further that where during the course of the proceedings it appears to the Registrar that it would be convenient for the enquiry that investigation in regard to the person who is to be substituted on record, be made by the Court appealed from or a Court subordinate thereto, the Registrar may place the matter before the Judge in Chambers and the Judge in Chambers may thereupon make an order directing to the Court appealed from to investigate into the matter either itself or cause an enquiry to be made by a Court subordinate to it, after notice to the parties, and submit its report thereon to this Court within such time as may be fixed by the order. On receipt of the report from the Court below the matter shall be posted before the Judge in Chambers again for appropriate orders.
34. Save as aforesaid the provision of Order XXII of the Code relating to abatement shall apply mutatis mutandis to appeals and proceedings before the Court.
35 (1) Within forty-five days of the service on him of the notice of authentication of the record, the appellant shall lodge in the Court the statement of his case and serve a copy thereof on the respondent. The respondent shall lodge statement of case within thirty-five days thereafter. In appeals where printing of record is dispensed with, the appellant shall file statement of case within 45 days from the date of order dispensing with the printing of appeal record or from the expiry of period granted by the Court for filing additional papers or record, whichever is later and the respondent shall file statement of case within 35 days either from the date on which the period of 30 days from the date of service of notice of lodgment of petition of appeal expires or from the date of service of statement of case of the appellant, whichever is later.
(2) No party to an appeal shall be entitled to be heard by the Court unless the party has previously lodged statement of case in the appeal:
Provided that where a respondent who has entered appearance, does not desire to lodge a statement of case in the appeal, he may give the Registrar of the Court, notice in writing of his intention not to lodge any case while reserving his right to address the Court on the question of costs only.
36. (1) The statement of a case shall consist of two parts as follows:-
Part I shall consist of a concise statement of the facts of the case in proper sequence. A list of the dates of the relevant events leading up and concerning the litigation in chronological order and pedigree tables, wherever necessary, shall be given at the end of the part. Part II shall set out the contentions of facts and law sought to be urged in support of the claim of the party lodging the statement of case and the authorities in support thereof. Where authorities are cited, reference shall be given to the Official Reports, if available, where textbooks are cited, the reference shall if possible, be to the latest available editions. Where a statute, regulation, rule, ordinance or bye-law is cited or relied on, so much thereof as may be necessary to the decision of the case shall be set out. At the end of the part shall ordinarily be set out a table of cases cited.
(2) The statement of case shall consist of paragraphs numbered consecutively. Reference shall be given by page and line to the relevant portions of the record in the margin and care shall be taken to avoid, as far as possible, the re-producing in the statement of case of long extracts from the Record. The statement of case shall not travel beyond the limits of the certificate or the special leave, as the case may be, and of such additional grounds, if any, as the Court may allow to be urged on application made for the purpose. The Taxing Officer in taxing the costs of the appeal shall, either of his own motion, or at the instance of the opposite party, enquire into any unnecessary prolixity in the case, and shall disallow the costs occasioned thereby.
37.Two or more respondents may, at their own risk as costs lodge separate statement of cases in the same appeal.
38. A respondent who has not entered appearance shall not be entitled to receive any notice relating to the appeal from the Registrar of the Court, nor allowed to lodge a statement of case in the appeal.
39. The appeal shall be set down for hearing one month after the expiry of the time prescribed for lodging the statement of case by the respondent. Where a respondent fails to lodge the statement of the case within the time prescribed, the appeal shall, subject to the provision contained in the proviso to sub-rule (2) of rule 35 be set down ex parte against respondent in defeat.
40. If the printing of record has not been dispensed with, the appellant shall, within two weeks of the receipt of the notice setting down the appeal for hearing, attend at the Registry and obtain eight copies of the record and the statements of case to be bound in cloth or in one-fourth leather with paper sides, and six leaves of blank paper shall be kept for the use of the Court. The front cover shall bear a label stating the title and Supreme Court number of the appeal, the contents of the volume and the name and address of the advocates-on-record. The several documents indicated by inducts shall be arranged in the following order:-
(1) Appellant's Statement of Case;
(2) Respondent's Statement of Case;
(3) Record (if in more than one Part, showing the separate Parts by inducts, all Parts being paged at the top of the page);
(4) Supplemental Record (if any) and the short title and Supreme Court number of appeal shall also be shown on the back.
41. The appellant shall lodge the bound copies not less than ten clear days before the date fixed for the hearing of the Appeal.
42. (1) Where the appellant is not represented by an Advocate of his choice, the Court may in a proper case, direct the engagement of an Advocate amicus curiae at the cost of the State. The fee of the Advocate so engaged shall be a lump sum not exceeding Rs. 500 as may be fixed by the Bench hearing the case, and in an appropriate case, the Bench hearing the case, may for the reasons to be recorded in writing, sanction payment of a lump sum not exceeding Rs. 750 to the said Advocate.
(2) After the hearing of the appeal, the Registrar or the Deputy Registrar shall issue to the Advocate amicus curiae a certificate in the prescribed form indicating therein the name of the said Advocate engaged at the cost of the State and the amount of fees payable to the said Advocate.
(3) The State concerned shall pay the fees specified in the certificate issued under sub-rule (2) to the Advocate named therein within three months from the date of his presenting before it, his claim for the fees supported by the certificate. If the fees are not paid within the above said period, the Advocate shall be entitled to recover the same from the State concerned by enforcement of the certificate as an order as to costs under the Supreme Court (Decrees and Orders) Enforcement Order, 1954.
Explanation:-For the purposes of this rule, the term "State" shall include a Union Territory.
1. Where certificate of fitness to appeal to the Court was refused in a case by the High Court, a petition for special leave to appeal to the Court shall, subject to the provisions of sections 4, 5, 12and 141of the Limitation Act, 1963
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1. Exclusion of time of proceeding bona fide in court without jurisdiction—
(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of the appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a count of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it
(3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court of other cause of a like nature.
Explanation.—For the purpose of this section,—
(a) In excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted;
(b) Plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding;
(c) Mis-joinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction
(36 of 1963) be lodged in the Court within sixty days from the date of the order of refusal and in any other case within ninety days from the date of the judgment or Order sought to be appealed from:
Provided that where an application for leave to appeal to the High Court from the judgment of a single Judge of that Court has been made and refused, in computing the period of limitation in that case under this rule, the period from the making of that application and the rejection thereof shall also be excluded.
Explanation:-For purposes of this rule, the expression 'order of refusal' means the order refusing to grant the certificate under article 134A of the Constitution being a certificate of the nature referred to in article 132 or article 133 of the Constitution on merits and shall not include an order rejecting the application on the ground of limitation or on the ground that such an application is not maintainable.
2. Where the period of limitation is claimed from the date of the refusal of a certificate under article 134A of the Constitution, being a certificate of the nature referred to in article 132 or article 133 of the Constitution, it shall not be necessary to file the order refusing the certificate, but the petition for special leave shall be accompanied by an affidavit stating the date of the judgment sought to be appealed from, the date on which the application for a certificate of fitness to appeal to the Court was made to the High Court, the date of the order refusing the certificate, and the ground or grounds on which the certificate was refused and in particular whether the application for the certificate was dismissed as being out of time.
3. Deleted w.e.f. 30-5-1981.
4. (1) (a) The petition for seeking Special Leave to appeal (SLP) filed before the Court, under article 136 of the Constitution shall be in Form No. 28 appended to the rules. No separate application for interim relief need be filed. Interim prayer if any should be incorporated in Form No. 28.
(b) Along with the petition, list of dates in chronological order with relevant material facts or events pertaining to each of the dates shall be furnished.
(c) SLPs shall be confined only to the pleadings before the Court/Tribunal whose order is challenged. However, the petitioner may, with due notice to the respondent, and with leave of the Court urge additional grounds, at the time of hearing.
(d) (i) The petitioner may produce copies of such petition/documents which are part of the record in the case before the Court/Tribunal below if and to the extent necessary to answer the question of law arising for consideration in the petition or to make out the grounds urged in the SLP, as Annexures to the petition-numbering them as Annexures 1, 2, 3 and so on.
(ii) If the petitioner wants to produce any document which was not part of the records in the Court below he shall make a separate application stating the reasons for not producing it in the Court/Tribunal below and the necessity for its production in the Court and seek leave of the Court for producing such additional documents.
(e) Every petition shall be supported by the affidavit of the petitioners or one of the petitioners as the case may be or by any person authorised by the petitioner in which the deponent shall state that the facts stated in the petition are true and the statement of dates and facts furnished along with the SLP are true to his knowledge and/or in formation and belief.
(f) The papers of the SLP shall be arranged in the following order:
(i) List of dates in terms of clause (b) of sub-rule (1).
(ii) Certified copies of the judgment and order against which the leave to appeal is sought for.
(iii) The special leave petition in the prescribed Form No. 28.
(iv) Annexures, if any, filed along with the SLP.
(g) If notice is ordered on the special leave petition, the petitioner should take steps to serve the notice on the respondent:
Provided in the case of a special leave petition against an interlocutory order, the notice may be served on the advocate appearing for the party in the Court/Tribunal against whose order the leave to appeal is sought for.
(2) No petition shall be entertained by the Registry unless it contains a statement as to whether the petitioner had filed any petition for special leave to appeal against the impugned judgment or order earlier and if so, with what result, duly supported by an affidavit of the petitioner or his Pairokar only.
(3) The Court shall, if it finds that the petitioner has not disclosed the fact of filing a similar petition earlier and its dismissal by this Court, dismiss the second petition if it is pending or, if special leave has already been granted therein, revoke the same.
(4) The petition shall also contain a statement as to whether the matter was contested in the Court appealed from and if so, the full name and address of all the contesting parties shall be given in the statement of facts in the petition.
5. The petition shall be accompanied by-
(i) a certified copy of the judgment or order appealed from; and
(ii) an affidavit in support of the statement of facts contained in the petition.
6. No annexures to the petition shall be accepted unless such annexures are certified copies of documents which have formed part of the record of the case in the Court sought to be appealed from:
Provided that uncertified copies of documents may be accepted as annexures, if such copies are affirmed to be true copies upon affidavit.
7. The petitioner shall file at least seven spare sets of the petition and of the accompanying papers.
8. Where any person is sought to be impleaded in the petition as the legal representative of any party to the proceedings in the Court below, the petition shall contain a prayer for bringing on record such person as the legal representative and shall be supported by an affidavit setting out the facts showing him to be the proper person to be entered on the record as such legal representative.
9. Where at any time between the filing of the petition for special leave to appeal and the hearing thereof the record becomes defective by reason of the death or change of status of a party to the appeal or for any other reason, an application shall be made to the Court stating who is the proper person to be substituted or entered on the record in place of or in addition to the party on record. Provisions contained in rule 33 of Order XV shall apply to the hearing of such applications.
10. (1) Unless a caveat as prescribed by rule 2 of Order XVIII has been lodged by the other parties, who appeared in the Court below, petitions for grant of special leave shall be put up for hearing ex parte, but the Court, if it thinks fit, may direct issue of notice to the respondent and adjourn the hearing of the petition:
Provided that where a petition for special leave has been filed beyond the period of limitation prescribed therefor and is accompanied by an application for condonation of delay, the Court shall not condone the delay without notice to the respondent.
(2) A caveator shall not be entitled to costs of the petition, unless the Court otherwise orders.
Where a caveat has been lodged as aforesaid, notice of the hearing of the petition shall be given to the caveator; but a caveator shall not be entitled to costs of the petition, unless the Court otherwise orders.
(3) Notwithstanding anything contained in sub-rules (1) and (2) above, the Respondents who contested the matter in the Court appealed from shall be informed about the decision on the petition after it is heard ex parte, if the petition stands dismissed.
10A. (1) Where the petitioner is not represented by an Advocate of his choice, the Court may in a proper case direct the engagement of an Advocate amicus curiae at the cost of the State. The fees of the Advocate so engaged shall be Rs. 250 up to the admission stage and a lump sum not exceeding Rs. 500 for the hearing of the appeal arising therefrom as may be fixed by the Bench hearing the appeal, and in an appropriate case the Bench hearing the case may, for the reasons to be recorded in writing, sanction payment of a lump sum not exceeding Rs. 750 to the said Advocate.
(2) After the hearing of the petition or the appeal, as the case may be, is over, the Registrar or the Deputy Registrar shall issue to the Advocate amicus curiae a certificate in the prescribed form, indicating therein the name of the said Advocate engaged at the cost of the State, and the amount of fees payable to the said Advocate.
(3) The State concerned shall pay the fees specified in the certificate issued under sub-rule (2) to the Advocate named therein within three months from the date of his presenting before it his claim for the fees supported by the certificate. If the fees are not paid within the period abovesaid, the Advocate shall be entitled to recover the same from the State concerned by enforcement of the certificate as an Order as to costs under the Supreme Court (Decrees and Orders) Enforcement Order, 1954.
Explanation:-For the purposes of this rule, the term "State" shall include a Union territory.
11. On the grant of special leave, the petition for special leave shall, subject to the payment of additional Court-Fee, if any, be treated as the petition of appeal and it shall be registered and numbered as such. The provisions contained in Order XV shall with necessary modifications and adaptations, be applicable to appeals by special leave and further steps in the appeal shall be taken in accordance with the provisions therefor:
Provided that if the respondent had been served with the notice in the Special Leave Petition or had filed caveat or had taken notice, no further notice is required after the lodging of the appeal.
11A. The record of the appeal arising out of the petition for special leave shall normally consist of the petition of appeal and the paper book of the Court below, if available, plus such additional documents that the parties may file from the record of the case, if the printed record of the Court below be not available. In that event, no fresh printing of the record shall be necessary, and the original record will be called for, from the Court below for reference of the Court:
Provided however, that where in a particular case the Court feels that fresh printing of record is necessary, a specific order to that effect shall be made by the Court at the time of granting special leave to appeal, the provisions contained in Order XV relating to preparation of record shall with necessary modification and adaptation apply.
12. While granting special leave in all matters in which the Bench granting special leave is of the opinion that the matter is capable of being disposed of within a short time, say within an hour or two, it will indicate accordingly. The office shall maintain a separate register of such matters to enable the Chief Justice to constitute a Bench for the disposal of such matters.
13. (1) Respondent to whom a notice in a Special Leave Petition is issued or who had filed a caveat shall be entitled to oppose the grant of leave or interim orders, without filing any written objections. He shall also be at liberty to file his objections within 30 days from the date of receipt of notice or not later than 2 weeks before the date appointed for hearing, whichever be earlier, but shall do so only by setting out the grounds in opposition to the questions of law or grounds set out in the SLP and may produce such pleadings and documents filed before the Court/Tribunal against whose order the SLP is filed and shall also set out the grounds for not granting interim order or for vacating interim order if already granted.
(2) No separate application for vacating interim order need be filed. The respondent shall, however, be at liberty to file application for vacating stay separately before or after filing objections.
(3) (a) Where any statement of objection is filed by the respondent, it shall be supported by an affidavit of the party or any person authorised by him verifying to the correctness of the statements made therein and also to the effect that annexures produced are the true copies of the originals which formed part of record in the Court below.
(b) If respondent wants to produce any document which was not part of the record in the Court below, he shall file an application seeking permission of the Court to produce such documents setting out the reason as to why it was not produced in the Court below as also the necessity of producing it before the Court.
(4) The respondent may, if considered necessary, file additional list of dates with material facts in addition to those furnished by the petitioners if he considers that the list of dates and facts by the petitioner is inaccurate or incomplete.
Admittedly, our country is a welfare State and accordingly all the functions of its Government are directed towards the welfare of its Citizens. After the judgment of Supreme Court in Maneka Gandhi's case the scope of article 21 of the Constitution has expanded to such an extent that even right to free legal aid has become a fundamental right and therefore, various legal aid committees have been constituted at different levels. We find similar kind of rules in Order XLIV of the Code of Civil Procedure, 1908. Even the Supreme Court Rules have made provisions for filing of appeals and applications by indigent persons under this Order, which contains following mentioned rules:-
1. An application for leave to proceed as an indigent person shall be made on a petition. It shall be accompanied by:
(a) a copy of the petition of appeal and the documents referred to in rule 3 of Order XV, or of the petition for special leave and the documents mentioned in rule 5 of Order XVI, as the case may be, and
(b) an affidavit from the petitioner disclosing all the property to which he is entitled and the value thereof other than his necessary wearing apparel and his interest in the subject-matter of the intended appeal and stating that he is unable to provide security or surety for the cost of respondent and pay Court-Fees.
2. The Registrar shall, on satisfying himself that the petition is in order, direct that the petition shall be registered and set down for hearing before the Chamber Judge on a date to be fixed for the purpose.
3. The application shall be posted before the Judge in Chambers who may himself inquire into the indigency of the petitioner after notice to the other parties in the case and to the Attorney-General, or make an order directing the High Court either by itself or by a Court subordinate to the High Court, to investigate the indigency after notice to the parties interested and submit a report thereon within such time as may be fixed by the order. On receipt of the report, the petition shall again be posted before the Judge in Chambers for further orders:
Provided that, if the applicant was allowed to sue or appeal as an indigent person in the Court from whose decree the appeal is preferred, no further inquiry in respect of his indigency shall be necessary, unless this Court sees cause to direct such inquiry.
4. In granting or refusing leave to appeal as an indigent person, the Court shall ordinarily follow the principles set out in sub-rule (2) of rule 1 of Order XLIV1of the Code.
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1. Grant of time for payment of court-fee:
Where an application is rejected underrule 1, the Court may, while rejecting the application, allow the applicant to pay the requisite Court-fee, within such time as may be fixed by the Court or extended by it from time to time; and upon such payment, the memorandum of appeal in respect of which such fee is payable shall have the same force and effect as if such fee has been paid in the first instance.
5. Where a petitioner obtains leave of the Court to appeal as an indigent person he shall not be required to pay Court-Fees on the documents filed in the case or fees payable for service of process. He shall, however, be required to pay fees for obtaining copies of any documents or orders.
6. The Judge in Chambers may assign an advocate on record to assist an indigent person in the case, unless the indigent person has made his own arrangement for his representation. Such assignment shall ordinarily be from a panel of advocates willing to assist indigent persons and chosen by the Judge in Chambers. It shall however be open to the Judge in Chambers in his discretion to assign an advocate outside the panel in any particular case.
7. (a) No fees shall be payable by an indigent person to his advocate, nor shall any such fees be allowed on taxation against the other party except by an order of Court. The advocate may, however, receive from the indigent person money for out of pocket expenses, if any, properly incurred in the case.
(b) It shall be open to the Court, if it thinks fit, to award costs against the adverse party or out of the property decreed to an indigent person and direct payment of such costs to the advocate for the indigent person.
(c) Save as aforesaid no person shall take or agree to take or seek to obtain from an indigent person any fee, profit or reward for the conduct of his case, and any person who takes, agrees to take or seeks to obtain, any such fee, profit or reward, shall be guilty of Contempt of Court.
(d) Soon after an appeal by an indigent person has been heard and disposed of, the advocate for the indigent person shall file in the Registry a statement of account showing what moneys, if any, were received by him in the case on any account from the indigent person or from any person on his behalf and the expenditure incurred. If no money had been received, a statement shall be filed to that effect. The Taxing Officer may, where he thinks it necessary, place the statement filed before the Judge in Chambers for his perusal and orders.
8. Where the appellant succeeds in the appeal, the Registrar shall calculate the amount of Court-Fees which would have been paid by the appellant if he had not been permitted to appeal as an indigent person and incorporate it in the decree or order of the Court; such amount shall be recoverable by the Government of India from any party ordered by the Court to pay the same, and shall be the first charge on the subject-matter of the appeal.
9. Where the appellant fails in the appeal or the permission granted to him to sue as an indigent person has been withdrawn, the Court may order the appellant to pay the Court-Fees which would have been paid by him if he had not been permitted to appeal as an indigent person.
10. The Central Government shall have the right at any time to apply to the Court to make an order for the payment of Court-Fees underrule 8 or rule 9.
11. All matters arising between the Central Government and any party to the appeal under the three preceding rules shall be deemed to be questions arising between the parties to the appeal.
12. In every appeal by an indigent person the Registrar shall, after the disposal thereof, send to the Attorney-General for India a memorandum of the court-fees payable by the indigent person.
13. No appeal or other proceeding begun, carried on or defended by an indigent person shall be compromised or discontinued without the leave of the Court.
The rules with regard to appeals under section 23 of the Consumer Protection Act, 1986 were recently introduced w.e.f. 7-7-1990 and the same are as under:
1. The petition of appeal from an order made by the National Consumer Disputes Redressal Commission (hereinafter referred to as 'The National Commission') under sub-clause (i) of clause (a) of section 21 of the Consumer Protection Act, 19862(68 of 1986), shall, subject to the provisions ofsections 4, 5 and 12 of the Limitation Act, 1963 (36 of 1963), be presented by an aggrieved person within thirty days from the date of the order sought to be appealed against:
Provided that for computing the said period, the time requisite for obtaining a copy of such order shall be excluded.
2. The petition of appeal shall recite succinctly and clearly all the relevant facts leading up to the order appealed from, and shall set forth in brief the objections to the order appealed from and the grounds relied on in support of the appeal. The petition shall also state the date of the order appealed from as well as the date on which it was received by the appellant.
3. The petition of appeal shall be accompanied by:
(i) an authenticated copy of the order appealed from; and
(ii) at least seven spare sets of the petition and the papers filed with it.
4. After the appeal is registered, it shall be put up for hearing ex parte before the Court which may either dismiss it summarily or direct issue of notice to all necessary parties or may make such orders as the circumstances of the case may require.
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1. Appeal.—Any person aggrieved by an order made by the National Commission in exercise of its power conferred by sub-clause (i) of clause (a) of section 21, may prefer an appeal against such order to the Supreme Court within a period of thirty days from the date of the order:
Provided that the Supreme Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period:
Provided further that no appeal by a person who is required to pay any amount in terms of an order of the National Commission shall be entertained by the Supreme Court unless that person had deposited in the prescribed manner fifty per cent. of that amount or rupees fifty thousand, whichever is less.
2. Jurisdiction of the National Commission.—Subject to the other provisions of this Act, the National Commission shall have jurisdiction
(a) to entertain_
(i) complaints where the value of the goods or services and compensation, if any, claim exceeds rupees twenty lakhs;
(ii) appeals against the orders of any State Commission; and
(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.
5. A fixed Court-fee of Rs. 250 shall be payable on the petition of appeal under this order.
6. Save as otherwise provided by the rules contained in this order, the provisions of other orders shall apply so far as may be, to appeals undersection 23 of the Consumer Protection Act, 1986 (68 of 1986).
Regarding this we have already discussed earlier under 'Appellate Jurisdiction' of the Supreme Court. However, with regard to the criminal appeals following mentioned rules have been framed by the Supreme Court.
1. (1) Where leave to appeal to the Court was refused in a case by the High Court, a petition for special leave to appeal shall, subject to the provisions of sections 4, 5, 12 and 14 of the Limitation Act, 1963 (36 of 1963), be lodged in the Court within sixty days from the date of order of refusal and in any other case not involving sentence of death, within ninety days from the date of judgment or order sought to be appealed from and in a case involving sentence of death within sixty days from the date of judgment or order sought to be appealed from:
Provided that where an application for leave to appeal to the High Court from the judgment of a single Judge of that Court has been made and refused, in computing the period of limitation in that case under this rule, the period from the making of that application and the rejection thereof shall also be excluded.
Explanation:-For purposes of this rule, the expression 'order of refusal' means an order refusing to grant the certificate under article 134A of the Constitution, being a certificate of the nature referred to in article 132 orarticle 134, as the case may be, of the Constitution on merits and shall not include an order rejecting the application on the ground of limitation or on the ground that such an application is not maintainable.
(2) Where the period of limitation is claimed from the date of refusal of a certificate, it shall not be necessary to file the order refusing a certificate, but the petition for special leave shall be accompanied by an affidavit stating the date of the judgment sought to be appealed from, the date on which the application for a certificate was made to the High Court, the date of the order refusing the certificate and the ground or grounds on which the certificate was refused and in particular whether the application for a certificate was dismissed as being out of time.
2. Deleted w.e.f. 19-8-1978.
3. (1) The petition shall state succinctly and clearly all such facts as may be necessary to enable the Court to determine whether special leave to appeal ought to be granted and shall be signed by the advocate-on-record for the petitioner unless the petitioner appears in person. The petition shall also state whether the petitioner has moved the High Court concerned for leave to appeal against its decision, and if so, with what result.
(2) No petition shall be entertained by the Registry unless it contains a statement as to whether the petitioner had filed any petition for special leave to appeal against the impugned judgment or order earlier, and if so, with what result, duly supported by an affidavit of the petitioner or his pairokar only.
(3) The Court shall, if it finds that the petitioner has not disclosed the fact of filing a similar petition earlier and its dismissal by this Court, dismiss the second petition if it is pending or if special leave has already been granted therein, revoke the same.
(4) SLPs shall be confined only to the pleadings before the Court/Tribunal whose order is challenged and the other documents relied upon in those proceedings. No additional facts, documents or grounds shall be stated or relied upon without express prior permission of the Court obtained on an application made for this purpose.
4. The petition shall be accompanied by-
(1) a certified copy of the judgment or order appealed from; and
(2) an affidavit in support of the statement of facts contained in the petition.
5. (1) No annexures to the petition shall be accepted unless such annexures are certified copies of documents which have formed part of the record in the Court or Tribunal sought to be appealed from provided that uncertified copies of documents may be accepted as annexures if such copies are affirmed to be true copies upon affidavit.
(2) The High Court or the Tribunal concerned shall, on application by a petitioner intending to apply for special leave, grant him free of cost a certified copy of the judgment or order sought to be appealed from.
6. Where the petitioner has been sentenced to a term of imprisonment, the petition shall state whether the petitioner has surrendered. Where the petitioner has not surrendered to the sentence, the petition shall not be posted for hearing unless the Court, on a written application for the purpose, orders to the contrary. Where the petition is accompanied by an application for exemption from surrendering, that application alone shall be posted for hearing orders before the Court in the first instance.
7. Unless a caveat as prescribed by rule 2 of Order XVIII has been lodged by the other parties who appeared in the Court below, petitions for grant of special leave shall be put up for hearing ex parte, but the Court, if it thinks fit, may direct issue of notice to the respondent and adjourn the hearing of the petition.
7A. The Respondent shall be at liberty to file his objections within 30 days from the date of receipt of notice or not later than 2 weeks before the date appointed for hearing, whichever be earlier.
8. (1) If the petitioner is in jail and is not represented by an advocate-on-record, he may present his petition for special leave to appeal together with the certified copy of the judgment and any written argument which he may desire to advance to the officer-in-charge of the jail, who shall forthwith forward the same to the Registrar of this Court. Upon receipt of the said petition, the Registrar of the Court shall, whenever necessary call, from the proper officer of the Court or the Tribunal appealed from, the relevant documents for determination of the petition for special leave to appeal.
(2) As soon as all necessary documents are available the Registrar shall, assign an Advocate from a panel of amicus curiae and thereafter place the petition and complete documents for hearing before the Court. The fee of the advocate so engaged shall be Rs. 250 upto the admission stage and a lump sum not exceeding Rs. 500 for the hearing of the appeal arising therefrom, as may be fixed by the Bench hearing the appeal, and in an appropriate case, the Bench hearing the case may for the reasons to be recorded in writing, sanction payment of a lump sum not exceeding Rs. 750.
Explanation: For the purpose of this rule, the term "State" shall include a Union Territory.
(3) After the hearing of the petition or the appeal, as the case may be, is over, the Registrar or the Deputy Registrar shall issue to the Advocate amicus curiae a certificate in the prescribed form indicating therein the name of the said Advocate engaged at the cost of the State concerned and the amount of fees payable to the said advocate.
(4) The State concerned shall pay the fees specified in the certificate issued under sub-rule (3) to the Advocate named therein within three months from the date of his presenting before it his claim for the fees supported by the certificate. If the fees are not paid within the period abovesaid, the Advocate shall be entitled to recover the same from the State concerned by enforcement of the certificate as an order as to costs under the Supreme Court (Decrees and Orders) Enforcement Order, 1954.
Explanation: For the purposes of this rule, the term "State" shall include a Union territory.
9. On granting of the special leave, the petition for special leave shall be treated as the petition of appeal and shall be registered and numbered as such.
9A. While granting special leave, in all matters in which the Bench granting special leave is of the opinion that the matter is capable of being disposed of within a short time, say, within an hour or two, it will indicate accordingly. The office shall maintain a separate register of such matters to enable the Chief Justice to constitute a Bench for the disposal of such matters.
10. Upon an order being made granting special leave to appeal, the Registrar shall transmit to the Court appealed from, a certified copy of the order together with a certified copy of the petition for special leave, and the affidavit, if any, filed in support thereof.
11. On receipt of the said order, the Court appealed from shall give notice of the order to the respondent and require the parties to take all necessary steps to have the record of the case transmitted to the Court in accordance with the directions contained in the order granting special leave. The Registrar of the Court appealed from shall certify to the Registrar of the Court that the respondent has received notice of the order of the Court granting special leave to appeal.
12. Every criminal appeal in which a certificate of the nature referred to in clause (1) of article 132 or sub-clause (c) of clause (1) of article 134 has been granted under article 134A of the Constitution shall be lodged in the Court within sixty days from the date of the certificate granted by the High Court, and every appeal under article 134(1)(a) and (b) of the Constitution or under any other provision of law within sixty days from the date of the judgment, final order or sentence appealed from:
Provided that in computing the period, the time requisite for obtaining a copy of the judgment or order appealed from, and where the appeal is on a certificate, of the certificate, and the order granting the certificate shall be excluded:
Provided further that the Court may, for sufficient cause shown extend the time.
13. (1) The memorandum of appeal shall be in the form of a petition. It shall state succinctly and briefly, and as far as possible, in chronological order, the principal steps in the proceedings from its commencement till its conclusion in the High Court.
(2) The petition of appeal shall be accompanied by a certified copy of the judgment or order appealed from and in the case of an appeal on a certificate also of the certificate granted by the High Court, and of the order granting the said certificate. In appeals falling under any of the categories enumerated in sub-rule (1) of rule 15, however, in addition to the documents mentioned above, a certified copy (or uncertified copy if such copy is affirmed to be true copy upon affidavit) of the judgment or order of the Court immediately below shall also be filed before the appeal is listed for hearing ex parte. At least seven copies of the aforesaid documents shall be filed in the Registry.
13A. Where the appellant has been sentenced to a term of imprisonment, the petition of appeal shall state whether the appellant has surrendered. Where the appellant has not surrendered to the sentence, the appeal shall not be registered, unless the Court, on a written application for the purpose, orders to the contrary. Where the petition of appeal is accompanied by such an application, the application shall first be posted for hearing before the Court for orders.
14. Where the appellant is in jail, he may present his petition of appeal and the documents mentioned in rule 13 including any written argument which he may desire to advance to the officer-in-charge of the jail, who shall forthwith forward the same to the Registrar of the Court.
15. (1) The petition of appeal shall be registered and numbered as soon as it is found to be in order. Each of the following categories of appeals, on being registered, shall be put for hearing ex parte before the Court, which may either dismiss it summarily or direct issue of notice to all necessary parties, or may make such orders, as the circumstances of the case may require, namely:-
(a) an appeal from any judgment, final order or sentence in a criminal proceeding of a High Court summarily dismissing the appeal or the matter, as the case may be before it;
(b) an appeal on a certificate granted by the High Court underarticle 134A of the Constitution being a certificate of the nature referred to in clause (1) of article 132 or sub-clause (c) of clause (1) of article 134 of the Constitution or under any other provision of law, if the High Court has not recorded the reasons or the grounds for granting the certificate.
(c) Deleted w.e.f. 30-5-1981.
(d) Deleted w.e.f. 30-5-1981.
(e) an appeal under clause (b) of sub-section (1) of section 19 of the Contempt of Courts Act, 1971 (70 of 1971).
(2) On the registration of the appeal and in the appeals falling undersub-rule (1) as soon as notice is directed to be issued, the Registrar shall send a copy of the petition of appeal and the accompanying papers, if any, to the High Court or the Tribunal concerned; and shall cause notice of the appeal to be given, where the appeal is by a convicted person to the Attorney-General for India or to the Advocate General or the Government Advocate of the State concerned, or to both as the case may require, and in cases where the appeal is by the Government to the accused and in cases under section 467B of the Code of Criminal Procedure, 1898 to the respondent.
16. The respondent may enter appearance in the Court within thirty days of the service of the notice of lodgment of the petition of appeal on him.
17. The record of the appeal shall be printed in accordance with the rules contained in the First Schedule to these rules, and unless otherwise directed by the Court, it shall be printed under the supervision of the Registrar of this Court and at the expense of the appellant. In appeals involving sentence of death and in other cases in which the Court thinks fit so to direct, the record shall be printed at the expense of the State concerned.
17A. The record of appeal arising out of the petition for special leave to appeal shall normally consist of the petition of appeal and the paper book of the Court below, if available plus such additional documents that the parties may file from the record of the case, if the printed record of the Court below be not available. In that event, no fresh printing of the record shall be necessary, and the original record will be called for, from the Court below for reference of the Court:
Provided however, that where the records are printed for the purpose of the appeal before the High Court, the High Court shall prepare 10 extra copies in addition to the number of copies required by the High Court for use in the Court, if the said record be in English:
Provided further that where in a particular case the Court feels that fresh printing of record is necessary, a specific order to that effect shall be made by the Court at the time of granting special leave to appeal, and the provisions contained in Order XV relating to preparation of record shall, with necessary modification and adaptation apply.
18. (1) Save as otherwise provided for in the rules, the provisions contained in Order XV relating to the printing and preparation of the record in civil appeals shall with necessary modifications and adaptations, apply to the printing and preparation of records in Criminal Appeals.
(2) In all cases where the record has been printed for the purposes of the appeal before the High Court or other proceedings all available copies of the printed record except one, if the record be in English, shall be dispatched to this Court along with the entire original record including the records of the Court below. One of such copies shall be duly authenticated by the Registrar of the Court appealed from.
(3) If a minimum number of 5 copies of the said printed record is available, no fresh printing of the record shall be necessary except of such additional papers as may be required.
Explanation: For the purposes of this rule the original record shall not include judgments of the High Court and the Courts below, but only duly authenticated copies thereof.
Explanation: Printing for the purpose of this rule includes cyclostyling and typing and printed record includes cyclostyled or typed record.
(4) Two copies of the High Court paper book if available for dispatch to this Court shall be treated as transcript record for the purpose of printing in this Court. In that event only such of the additional documents as the parties choose to include for the hearing of the appeal in this Court shall be typed in duplicate and transmitted to this Court along with the High Court paper books, one copy of each of which shall be duly authenticated.
(5) For the purpose of transcript record proper of the appeal, to be laid before this Court, such of the documents in vernacular as have already been translated for the purpose of the High Court appeal and which are included in the High Court appeal paper book need not be translated again.
19. Where the appellant fails to take necessary steps to have the record prepared and transmitted to the Court with due diligence, the Registrar of the Court appealed from, shall report the default to the Registrar of this Court and the Registrar of this Court may thereupon issue a summons to the appellant calling upon him to show cause before the Court on a date to be specified in the summons why the appeal should not be dismissed. The Court may thereupon dismiss the appeal for non-prosecution or pass such orders as the justice of the case may require.
20. Where an appeal has been dismissed for non-prosecution, the appellant may, within thirty days of the order, present a petition praying that the appeal may be restored and the Court may, after giving notice of the application to the respondent, if he has entered appearance, restore the appeal if good and sufficient cause is shown.
21. (1) In the event of the Court ordering the printing of the record under the supervision of the Registrar of the Court appealed from, he shall dispatch to the Registrar of this Court unless otherwise directed by this Court, not less than 15 copies where the appeal raises a question as to the interpretation of the Constitution, and not less than 10 copies in other cases. In the event of the Record being printed in this Court the Registrar will fix the number of copies to be printed for the use of this Court.
(2) In all cases involving a sentence of death the printed record shall be made ready and dispatched to this Court within a period of 60 days after the receipt of the intimation from the Registrar of this Court of the filing of the petition of appeal or of the order granting special leave to appeal.
22. As soon as the record is ready the Registrar concerned shall give notice thereof to the parties to the appeal, and where the record is prepared under the supervision of the Registrar of the Court appealed from, the said Registrar shall after service of the notice, send to the Registrar of this Court a certificate as to the date or dates on which the notice has been served.
23. Each party who has entered appearance shall be entitled to two copies of the record for his own use.
24. Unless otherwise ordered by the Court the appeal shall be set down for hearing thirty days after the expiry of the time prescribed for entering appearance by the respondent.
25. Where the accused person is not represented by an Advocate-on-Record of his choice the Court may, in a proper case direct the engagement of an Advocate at the cost of the Government. The fee of the Advocate so engaged shall be a lump sum not exceeding Rs. 500 as may be fixed by the Bench hearing the case, and in an appropriate case, the Bench hearing the case may, for the reasons to be recorded in writing, sanction payment of a lump sum not exceeding Rs. 750.
25A. (1) After the hearing of the appeal, the Registrar or the Deputy-Registrar shall issue to the Advocate appointed at the cost of the State a certificate in the prescribed form indicating therein the name of the said Advocate and the amount of fees payable to the said Advocate.
(2) The State concerned shall pay the fees specified in the certificate issued under sub-rule (1) to the Advocate named therein within three months from the date of his presenting before it his claim for the fee supported by the said certificate. If the fees are not paid within the period abovesaid, the Advocate shall be entitled to recover the same from the State concerned by the enforcement of the certificate as an Order as to costs under the Supreme Court (Decrees and Orders) Enforcement Order, 1954.
Explanation: For the purposes of this rule, the term "State" shall include a Union Territory.
26. (1) Due notice shall be given to the accused, where he is not represented, of the date fixed for the hearing of the appeal. The accused person may, if he so wishes present his case by submitting his arguments in writing and the same shall be considered at the hearing of the appeal.
(2) It shall not be necessary for an accused person in custody to be produced before the Court at the hearing unless the Court thinks fit in the interest of justice to direct him to be produced to enable him to argue his case or for other reasons.
27. Pending the disposal of any appeal under these rules the Court may order that the execution of the sentence or order appealed against be stayed on such terms as the Court may think fit.
28. After the appeal has been disposed of, the Registrar shall, with the utmost expedition, send a copy of the Court's judgment or order to the High Court or Tribunal concerned.
29. In criminal proceedings, no security for costs shall be required to be deposited, and no Court-Fee, process fee, or search fee shall be charged, and an accused person shall not be required to pay copying charges except for copies other than the first.
The Founding Fathers of the Constitution of India, being aware of the part played by prerogative writs in England and other countries, made specific provisions in our Constitution also by way of empowering the Supreme Court as well as High Courts to issue writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari, for enforecement of fundamental rights under articles 32 by the Supreme Court and under article 226 by the High Courts. In fact, mere declaration of fundamental rights is meaningless unless, there is an effective machinery for their enforcement also. It is only the remedy which makes such a right real. In the absence of any remedy for enforcement of fundamental rights, the same are meaningless in the eyes of law. Further, unlike other fundamental rights, the right guaranteed under article 32 of the Constitution is remedial and not substantive in nature. Under article 32 the right to approach the Supreme Court for the enforcement of fundamental rights is guaranteed. Thus, the framers of the Constitution have made through the provision of article 32 the Supreme Court custodian of the fundamental rights.
Article 32(1) guarantees the right to move the Supreme Court by appropriate proceedings for the enforcement of the fundamental rights conferred by Part III of the Constitution and article 32(2) confers power on the Supreme Court to issue appropriate direction or orders or writs, including writs in the nature of Habeas Corpus, mandamus, prohibition, quo-warranto and certiorari, for the enforcement of any of the rights conferred by Part III of the Constitution. Under article 32(3) Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2). According to clause (4) the right guaranteed by article 32 cannot be suspended except as otherwise provided by the Constitution.
It is pertinent to reiterate here that the right to move Supreme Court is only available when fundamental rights are infringed.1The right to move the Supreme Court is itself a guaranteed right and the significance of this has been explained by Gajendragadkar, J. as under, in the case of Ramesh Thappar v. State of Madras, MANU/SC/0006/1950 : 1950 SCR 594: AIR 1950 SC 124.
"The fundamental right to move Supreme Court can therefore" be appropriately described as the cornerstone of the democratic edifice raised by the Constitution. That is why, it is natural that Supreme Court who, in the words of Patanjali Sastri, J. regard itself 'as the protector and guarantor of fundamental rights' and should declare that "it can not consistently with the responsibility laid upon it, refuse to entertain applications seeking protection against infringement of such rights".
The procedural aspect of approaching the Supreme Court for the enforcement of fundamental rights is provided under this order in the form of following mentioned eleven rules:
1. (1) Every petition under article 32 of the Constitution shall be in writing and shall be heard by a Division Court of not less than five Judges provided that a petition which does not raise a substantial question of law as to the interpretation of the Constitution may be heard and decided by a Division Court of less than five Judges, and, during vacation, by the Vacation Judge sitting singly.
(2) All interlocutory and miscellaneous applications connected with a petition under article 32 of the Constitution, may be heard and decided by a Division Court of less than five Judges, and, during vacation, by the Vacation Judge sitting singly, notwithstanding that in the petition a substantial question of law as to the interpretation of the Constitution is raised.
2. No Court-fees shall be payable on petitions for habeas corpus or other petitions under article 32 of the Constitution arising out of criminal proceedings, or in proceedings connected with such petitions.
3. A petition for a writ of habeas corpus shall be accompanied by an affidavit by the person restrained stating that the petition is made at his instance and setting out the nature and circumstances of the restraint:
Provided that where the person restrained is unable owing to the restraint to make the affidavit, the petition shall be accompanied by an affidavit to the like effect made by some other person acquainted with the facts, which shall state the reason why the person restrained is unable to make the affidavit.
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1. Madhu Limaye, MANU/SC/0047/1968 : 1969 (3) SCR 154: (1969) 1 SCC 292: AIR 1969 SC 1014.
The petition shall state whether the petitioner has moved the High Court concerned for similar relief and if so, with what result.
4. The petition shall be posted before the Court for preliminary hearing, and if the Court is of the opinion that a prima facie case for granting the petition is made out, rule nisi shall issue calling upon the person or persons against whom the order is sought, to appear on a day to be named therein to show cause why such order should not be made and at the same time to produce in Court the body of the person or persons alleged to be illegally or improperly detained then and there to be dealt with according to law.
5. On the return day of such rule or any day to which the hearing thereof may be adjourned, if no cause is shown or if cause is shown and disallowed, the Court shall pass an order that the person or persons improperly detained shall be set at liberty. If cause is shown and allowed, the rule shall be discharged. The order for release made by the Court, shall be a sufficient warrant to any gaoler, public official, or other person for the release of the person under restraint.
6. In disposing of any rule, the Court may in its discretion make such order for costs as it may consider just.
7. A petition for a direction, or order, or writ including writs in the nature of mandamus, prohibition, quo-warranto or certiorari shall set out the name and description of the petitioner, the nature of the fundamental right infringed, the relief sought and the grounds on which it is sought and shall be accompanied by an affidavit verifying the facts relied on and at least seven copies of the petition and affidavit shall be lodged in the Registry. The petition shall also state whether the petitioner has moved the High Court concerned for similar relief and, if so, with what result.
8. The petition shall be posted before the Court for preliminary hearing and orders as to the issue of notice to the respondent. Upon the hearing, the Court, if satisfied that no fundamental right guaranteed by the Constitution has been infringed or that the petition is otherwise untenable, shall dismiss the petition and if not so satisfied, shall direct a rule nisi to issue to the respondent calling upon him to show cause why the order sought should not be made, and shall adjourn the hearing for the respondent to appear and be heard.
8A. If the Court, on preliminary hearing, orders issue of show cause notice to the Respondent, he shall be entitled to file his objections within 30 days from the date of receipt of such notice or not later than 2 weeks before the date appointed for hearing, whichever be earlier.
9. Upon making the order for a rule nisi, the Court may, if it thinks fit, grant such ad-interim relief to the petitioner as the justice of the case may require, upon such terms if any as it may consider just and proper.
10. (1) Unless the Court otherwise orders, the rule nisi together with a copy of the petition and of the affidavit in support thereof shall be served on the respondent not less than twenty-one days before the returnable date. The rule shall be served on all persons directly affected and on such other persons as the Court may direct.
(2) Affidavits in opposition shall be filed in the Registry not later than four days before the returnable date and affidavits in reply shall be filed within two days of the service of the affidavit in opposition.
(3) Within four weeks of the filing of the pleadings, the petitioner shall file written brief prepared in the following manner, namely:-
(a) At the outset, the brief shall contain a short summary of the pleading essential for the decision of the points in issue. This shall ordinarily not exceed two pages:
(b) Thereafter, the petitioner shall formulate propositions of fact and law that are proposed to be advanced at the hearing citing under each of those propositions, authorities including textbooks, statutory provisions, regulations, ordinances or bye-laws or orders that are desired to be relied upon. In the case of decisions, reference shall be given to official reports, if available. In the case of textbooks reference shall, if possible, be given to the latest edition. Where any statute, regulation, rule or ordinance or bye-law is cited or relied upon, so much thereof as may be necessary for the decision of the points in issue shall be set out.
(4) Within four weeks of the service of the petitioner's written brief on him, the contesting respondent shall file his written brief setting out briefly the grounds on the basis of which he is opposing each of the propositions formulated by the petitioner. Under each of those grounds he shall cite such authorities as he may seek to rely in the same manner as the petitioner is required to do under sub-rule (3). In his written brief, the respondent may raise objections as to the maintainability or sustainability of either the petition as a whole or any relief claimed therein in the form of propositions, supported by authorities in the manner mentioned earlier.
(5) Within one week of the receipt of the brief filed by the respondent, the petitioner may submit his reply brief which shall be concise and to the point in respect of the points raised in the respondent's brief.
(6) Copies of affidavits and briefs required to be filed under this rule shall be served on the opposite party or parties and the affidavits or brief shall not be accepted in the Registry, unless they contain an endorsement of service signed by such party or parties. Every party to the proceeding shall supply to any other party on demand and on payment of the proper charges, copies of any affidavit or brief filed by him. At least seven copies of affidavits and briefs shall be lodged in the Registry.
(7) If the Court considers any of the propositions formulated or grounds taken by any of the parties in the written briefs filed as being irrelevant of frivolous the Court may award against such party or parties such costs as the Court may consider fit.
(8) At the hearing of rule nisi, except with the special permission of the Court, no party shall be allowed to advance any proposition or urge any ground not taken in the written briefs, nor shall be allowed to rely on any authorities (including provisions of statute, rule, bye-law, regulation or order) other than those mentioned in the briefs, unless such authorities or provisions have been published or made after the written briefs were filed into Court.
(9) At the hearing the rule nisi, if the Court is of the opinion that an opportunity be given to the parties to establish their respective cases by leading further evidence, the Court may take such evidence or cause such evidence to be taken in such manner as it may deem fit and proper.
(10) No party to a petition under this rule shall be entitled to be heard by the Court unless he has previously lodged his written brief in the petition.
11. The provisions contained in rules 1 to 10 respectively of Order XVIII1relating to petitions shall, so far as may be applicable, apply to petitions under this Court.
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1. 1. Every petition shall consist of paragraphs numbered consecutively and shall be fairly and legibly written, type-written, lithographed or printed on one side of standard petition paper, demy-foolscape size, or of the size of 29.7 cm x 21 cm. or on paper ordinarily used in High Courts for transcribing petitions, with quarter margin, and endorsed with the name of the Court appealed from, the full title and Supreme Court number of the appeal or matter to which the petition relates and the name and address of the advocate on record of the petitioner or of the petitioner where the petitioner appears in person. The petitioner shall file along with his petition such number of copies thereof as may be required for the use of the Court.
2. Where a petition is expected to be lodged, or has been lodged, which does not relate to any pending appeal of which the record has been registered in the Registry of the Court, any person claiming a right to appear before the Court on the hearing of such petition may lodge a caveat in the matter thereof, and shall thereupon be entitled to receive from the Registrar notice of the lodging of the petition, if at the time of the lodging of the caveat such petition has not yet been lodged, and, if and when the petition has been lodged, to require the petitioner to serve him with copy of the petition and to furnish him, at his own expense, with copies of any papers lodged by the petitioner in support of his petition. The caveator shall forthwith, after lodging his caveat, give notice thereof to the petitioner, if the petition has been lodged.
3. Where a petition is lodged in the matter of any pending appeal of which the record has been registered in the Registry of the Court, the petitioner shall serve any party who has entered an appearance in the appeal, with a copy of such petition and the party so served shall thereupon be entitled to require the petitioner to furnish him at his own expense, with copies of any papers lodged by the petitioner in support of his petition.
4. A petition other than memorandum of appeal containing allegations of fact which cannot be verified by reference to the record in the Court shall be supported by an affidavit.
5. The Registrar may refuse to receive a petition on the ground that it discloses no reasonable cause or is frivolous or contains scandalous matter but the petitioner may appeal by way of motion, from such refusal to the Court.
6. As soon as all necessary documents are lodged, the petition shall be set down for hearing.
7. Subject to the provisions of rule 8, the Registrar shall, as soon as the Court has appointed a day for the hearing of a petition, notify the day appointed on the notice board of the Court.
It would not be out of context to mention here that while framing the Supreme Court Rules under article 145 of the Constitution the Supreme Court retained the inherent powers with regard to certain matters. Further being the Apex Court it is within the jurisdiction of the Supreme Court to transfer any matter, of whatsoever nature, from one part to any other part of the country. The procedure with regard to transfer of criminal matters has been explained in this order in the following four Rules, which have been made applicable even to the cases under the Terrorist Affected Areas (Special Courts) Act, 1984 w.e.f.
17-12-1977:-
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8. Where the prayer of a petition is consented to in writing by the opposite party, or where a petition is of a formal and non-contentious character, the Court may, if it thinks fit, make an order thereon, without requiring the attendance of the parties, but the Registrar shall, with all convenient speed, after the Court has made its order, notify the parties that the order has been made and of the date and nature of such order.
9. A petitioner who desires to withdraw his petition shall give notice in writing to that effect to the Registrar. Where the petition is opposed the opponent shall, subject to any agreement between the parties to the contrary, be entitled to apply to the Court for his costs, but where the petition is unopposed, or where, in the case of an opposed petition, the parties have come to an agreement as to the costs of the petition, the petition may, if the Court thinks fit, be disposed of in the same way mutatis mutandis as a consent petition under the provisions of rule 8.
10. Where a petitioner unduly delays the bringing of a petition to a hearing, the Registrar shall call upon him to explain the delay, and if no Explanation is offered, or if the Explanation offered is, in the opinion of the Registrar, insufficient, the Registrar may, after notifying all parties, who have entered appearance, place the petition before the Court for such directions as the Court may think fit to give thereon.
1. Power of Supreme Court to transfer cases and appeals:
(1) Whenever it is made to appear to the Supreme Court that an order under this section is expedient for the ends of justice, it may direct that any particular case or appeal be transferred from High Court to another High Court or from a Criminal Court subordinate to one High Court to another Criminal Court of equal or superior jurisdiction subordinate to another High Court.
(2) The Supreme Court may act under this section only on the application of the Attorney-General for India or of a party interested, and every such application shall be made by motion, which shall, except when the applicant is the Attorney-General for India or the Advocate-General of the State, be supported by affidavit or affirmation.
(3) Where any application for the exercise of the powers conferred by this section is dismissed, the Supreme Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider appropriate in the circumstances of the case.
2. Power of Supreme Court to transfer case: Whenever it is made to appear to the Supreme Court that an order under this section is expedient for the ends of justice, it may direct that any particular case be transferred from one Special Court to another Special Court.
1. Every petition for transfer under section 406 of the Code of Criminal Procedure, 1973 or under section 11 of the Terrorist Affected Areas (Special Courts) Act, 1984 shall be in writing. It shall set out concisely in separate paragraphs the facts and particulars of the case, the relief sought and the grounds therefor and shall be supported by an affidavit or affirmation.
2. The petition shall be posted before the Court for preliminary hearing and orders as to issue of notice. Upon hearing the Court, if satisfied that no prima facie case for transfer has been made out or that the petition is otherwise not tenable, shall dismiss the petition; and if upon such hearing the Court is satisfied that a prima facie case for granting the petition is made out, it shall direct that notice be issued to the respondent to show cause why the order sought for should not be made; such notice shall be given to the accused person where he is not the applicant, to the respondent State and to such other parties interested as the Court may think fit to direct.
3. The notice shall be served not less than twenty-one days before the date fixed for the final hearing of the petition. Affidavits in opposition shall be filed in the Registry not later than four days before the date appointed for hearing and the affidavit in reply shall be filed not later than 2 p.m. preceding the day of the hearing of the petition. Copies of affidavits in opposition and in reply shall be served on the opposite party or parties and the affidavits shall not be accepted in the Registry unless they contain an endorsement of service signed by such party or parties.
4. Where the petition is dismissed the Court, if it is of opinion that the application was frivolous or vexatious, may order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider proper in the circumstances of the case.
The procedure of transfer of cases involving the same or substantially the same question of law pending before the Supreme Court or any other High
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1. Where cases involving the same or substantially the same questions of law are pending before the Supreme Court and one or more High Courts or before two or more High Courts and the Supreme Court is satisfied on its own motion or on an application made by the Attorney-General for India or by a party to any such case that such questions are substantial questions of general importance, the Supreme Court may withdraw the case or cases pending before the High Court or the High Courts and dispose of all the cases itself:
Provided that the Supreme Court may after determining the said questions of law return any case so withdrawn together with a copy of its judgment on such questions to the High Court from which the case has been withdrawn, and the High Court shall on receipt thereof, proceed to dispose of the case in conformity with such judgment.
Court(s) is given as under. It is worth mentioning here that the significance of transfer of such cases lies in saving of the judicial time of the Courts.
1. Every application under article 139A(1) of the Constitution shall be in writing. It shall set out concisely in separate paragraphs, the facts and particulars of the cases, pending before the Supreme Court and one or more High Courts or as the case may be, before two or more High Courts, the names and addresses of the parties, the questions of law involved and a statement that the same or substantially the same questions of law are involved in all the cases and that such questions are substantial questions of general importance. In the case of an application made by the Attorney-General, no affidavit shall be necessary in support thereof but it shall be accompanied by a certificate of the advocate on record to the effect that such questions are substantial questions of general importance in terms of clause (1) of article 139A of the Constitution, and in the case of an application made by a party to a case it shall be accompanied by an affidavit in support thereof and also by a certificate as aforesaid. The petition shall be made on a Court-fee stamp of the value of rupees ten.
2. The application shall be posted before the Court for preliminary hearing and orders as to issue of notice. If upon such hearing, the Court is satisfied that a prima facie case for granting the application is made out, it shall direct that notice be issued to the parties in the case concerned to show cause why the cases be not withdrawn. A copy of the order shall be transmitted to the High Courts concerned which shall report within four weeks the stages at which the concerned cases stand in the High Courts.
3. The notice shall be served through the High Court not less than six weeks before the date fixed for the final hearing of the application. Affidavits by the parties shall be filed in the Registry not later than two weeks before the date appointed for hearing and the affidavit in reply by the Attorney-General shall be filed not later than two days preceding the day of the hearing of the application. Copies of affidavits shall be served on the parties and the Attorney-General and the affidavits shall not be accepted in the Registry unless they contain an endorsement of service.
4. After hearing the Attorney-General and the parties, if the Court is satisfied that a case for granting the application has been made out, it shall require the High Court to transfer the case to this Court for its decision after it is ripe for hearing. The order will be transmitted to the High Court with utmost expedition.
5. (1) On transfer, the case shall be registered in the Court as Transferred Case.
(2) The Registrar of the High Court shall have the record of the transferred case prepared and printed in accordance with the First Schedule to the Rules and transmit, within six months from the date of the order of the transfer, twenty copies of the said printed record, one copy of which shall be duly authenticated by him.
(3) Where the Court has ordered the transfer of the case at the instance of a party, the record abovesaid shall be prepared at the cost of such party.
(4) Where the Court has directed the transfer of the case upon the application by the Union of India or the State Government, the record abovesaid shall be prepared at the cost of the Government of India or the State concerned, as the case may be.
(5) Where the Court has directed the transfer of a case on its own motion, the record shall be prepared in accordance with the rules of the High Court or subject to the directions of the Court, if any, regarding the cost thereof:
Provided, however, that where the record has been printed for the purpose of the case before the High Court and sufficient number of copies of the said printed record are available, the same shall be sent to the Court and no fresh printing of the record shall be necessary, except, however, such additional papers as may be required.
(6) The Registrar of the High Court shall give notice to the parties to the transferred case regarding the transmission of the printed record to the Court simultaneously with such transmission of the printed record.
(7) Where in a case, the Court directs that the original record be sent for and the case record, prepared in the Court, the record shall be prepared under the supervision of the Registrar of the Court, and in accordance with the provisions of rules 15 to 18 of Order XV and the First Schedule to the rules, the cost of the preparation of the record being borne as per the sub-rules (3), (4) and (5) of rule 5 of this Order, and as soon as the index of the record is settled, the Registrar of the Court shall cause an estimate of the cost of the preparation of the record to be prepared and served upon the party who is to bear the cost as per the sub-rule abovesaid and require the said party to deposit the said amount of cost within 30 days of the service of the estimate. The said party may deposit the amount of estimate in lump sum or in such instalments as the Registrar may prescribe.
6. The parties shall enter appearance in this Court in the Transferred Cases within 30 days of the service on them of such notice of transmission of the record unless they have already entered their appearance at an earlier stage.
7. Within sixty days of the receipt of the said notice regarding the dispatch of the record to this Court, the petitioner/appellant/plaintiff shall file his written brief prepared in the following manner, namely:
(1) At the outset the brief shall contain a short summary of the facts essential for the decision of the questions in issue.
(2) Thereafter, it shall contain propositions of law that are proposed to be advanced at the hearing, citing under each of those propositions, authorities including textbooks, statutory provisions, regulations, rules or Ordinances or bye-laws or orders that are desired to be relied upon. In the case of decisions, reference shall be given to official reports, if available. In the case of textbooks reference shall, if possible, be given to the latest edition. Where any statute, Regulation, Rule or Ordinance or bye-law is cited or relied upon so much thereof as may be necessary for the decision of the questions in issue shall
be set out. A list of the dates of the relevant events leading upto and concerning the litigation, in chronological order shall also be given at the end of the brief.
(3) Within four weeks of the service of the written brief, the respondent/defendant shall file his written brief setting out briefly the grounds on the basis of which he is opposing each of the propositions of the Petitioner/Appellant/Plaintiff. Under each of those grounds, he shall cite such authorities as he may seek to rely on in the same manner as is required under sub-rule (2).
(4) Copies of the briefs shall be served by such parties on the Attorney-General for India, and the Advocate-General of the State, where necessary, and he may file his written brief within four weeks of such service.
(5) Within one week of the receipt of the brief filed by the respondent/defendant/Attorney-General/Advocate-General, the petitioner/Appellant/plaintiff may submit his reply brief which shall be concise and to the point.
(6) Copies of the briefs required to be filed shall be served on the opposite party or parties and briefs shall not be accepted in the Registry unless they contain an endorsement of service signed by such party or parties. Every party to the proceeding shall supply to any other party, on demand and on payment of the proper charges, copies of any briefs filed by him. At least fifteen copies of the written briefs shall be lodged in the Registry.
(7) At the hearing of the reference, except with the special permission of the Court, no party shall be allowed to advance any proposition or urge any ground not taken in the written briefs nor shall he be allowed to rely on any authorities (including provisions of statute, Ordinance, rule, bye-law, regulation or order) other than those mentioned in the briefs unless such authorities or provisions have been published or made after the written briefs were filed in Court.
(8) No party to the Transferred Case shall be entitled to be heard by the Court unless he has previously lodged his written brief.
8. The Transferred Cases shall thereafter be listed for final hearing before the Court.
9. The Court may pass such orders as to costs as it may deem proper.
10. Save as otherwise provided by the rules contained in this Order, the provisions of other Orders shall, so far as may be, apply to a Transferred Case under this Order.
Again keeping in mind the saving of judicial time there is provision for transfer of Civil matters also from one Court to the other and the procedural aspect in this regard is contained in the following mentioned rules:-
1. Every petition under article 139A(2) of the Constitution or section 25 of the Code of Civil Procedure, 1908, shall be in writing. It shall state succinctly and clearly all relevant facts and particulars of the case, the name of the High Court or other Civil Court in which the case is pending and the grounds on which the transfer is sought. The petition shall be supported by an affidavit.
2. The petition shall be made on a Court-fee stamp of the value of rupees ten.
3. The petition shall be posted before the Court for preliminary hearing and orders as to issue of notice. Upon such hearing the Court, if satisfied that no prima facie case for transfer has been made out, shall dismiss the petition and if upon such hearing the Court is satisfied that a prima facie case for granting the petition is made out, it shall direct that notice be issued to the parties in the case concerned to show cause why the case be not transferred. A copy of the Order shall be transmitted to the High Court concerned.
4. The notice shall be served not less than four weeks before the date fixed for the final hearing of the petition. Affidavits in opposition shall be filed
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1. The Supreme Court may, if it deems it expedient so to do for the ends of justice, transfer any case, appeal or other proceedings pending before any High Court to any other High Court.
2. Power of Supreme Court to transfer suits, etc:
(1) On the application of a party, and after notice to the parties, and after hearing such of them as desired to be heard, the Supreme Court may, at any stage, if satisfied that an order under this section is expedient for the ends of justice, direct that any suit, appeal or other proceeding be transferred from a High Court or other Civil Court in one State to a High Court or other Civil Court in any other State.
(2) Every application under this section shall be made by a motion which shall be supported by an affidavit.
(3) The Court to which such suit, appeal or other proceeding is transferred shall, subject to any special directions in the order of transfer, either retry it or proceed from the stage at which it was transferred to it.
(4) In dismissing any application under this section, the Supreme Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum, not exceeding two thousand rupees, as it considers appropriate in the circumstances of the case.
(5) The law applicable to any suit, appeal or other proceeding transferred under this section shall be the law which the Court in which the suit, appeal or other proceeding was originally instituted ought to have applied to such suit, appeal or proceeding.
in the Registry not later than one week before the date appointed for hearing and the affidavit in reply shall be filed not later than two days preceding the day of the hearing of the petition. Copies of affidavits in opposition and in reply shall be served on the opposite party or parties and the affidavits shall not be accepted in the Registry unless they contain an endorsement of service signed by such party or parties.
5. The petition shall thereafter be listed for final hearing before the Court.
6. Save as otherwise provided by the rules contained in this Order the provisions of other orders (including Order XLIII) shall, so far as may be, apply to petition under this Order.
The procedure for responding to a special reference made by the President under article 143 of the Constitution to the Supreme Court is contained in the following mentioned five rules:
1. On the receipt by the Registrar of the Order of the President referring a question of law or fact to the Court under article 143 of the Constitution the Registrar shall give notice to the Attorney-General for India to appear before the Court on a day specified in the notice to take the directions of the Court as to the parties who shall be served with notice of such reference, and the Court may, if it considers it desirable, order that notice of such reference, shall be served upon such parties as may be named in the order.
2. Subject to the directions of the Court the notice shall require all such parties served therewith as desired to be heard at the hearing of the reference to attend before the Court on the day fixed by the order to take the directions of the Court with respect to statements of facts and arguments and with respect, to the date of the hearing.
3. Subject to the provisions of this Order, on a reference under article 143 of the Constitution, the Court shall follow as nearly as may be the same procedure as is followed in proceedings before the Court in the exercise of its original jurisdiction, but with such variations as may appear to the Court to be appropriate and as the Court may direct.
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1. Power of President to consult Supreme Court:
(1) If at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that Court for consideration and the Court may, after such hearing as it thinks fit, report to the President its opinion thereon.
(2) The President may, notwithstanding anything in the proviso to article 131, refer a dispute of the kind mentioned in the said proviso to the Supreme Court for opinion and the Supreme Court shall, after such hearing as it thinks fit, report to the President its opinion thereon.
4. After the hearing of the reference under article 143 of the Constitution the Registrar shall transmit to the President the report of the Court thereon.
5. The Court may make such order as it thinks fit as to the costs of all parties served with notice under these rules and appearing at the hearing of the reference under article 143 of the Constitution.
Like other Lower Courts including the High Courts even the Supreme Court has retained the power to review its own judgments/order and the procedure for the same is mentioned in the following rules:
1. The Court may review its judgment or order, but no application for review will be entertained in a civil proceeding except on the ground mentioned in Order XLVII, rule 1 of the Code,1 and in a criminal proceeding except on the ground of an error apparent on the face of the record.
2. An application for review shall be by a petition, and shall be filed within thirty days from the date of the judgment or order sought to be reviewed. It shall set out clearly the grounds for review.
3. Unless otherwise ordered by the Court, an application for review shall be disposed of by circulation without any oral arguments, but the petitioner may supplement his petition by additional written arguments. The Court may either dismiss the petition or direct notice to the opposite party. An application for review shall as far as practicable be circulated to the same judge or Bench of judges that delivered the judgment or order sought to be reviewed.
4. Where on an application for review the Court reverses or modifies its former decision in the case on the ground of mistake of law or fact, the Court, may, if it thinks fit in the interests of justice to do so, direct the refund to the petitioner of the court-fee paid on the application in whole or in part, as it may think fit.
5. Where an application for review of any judgment and order has been made and disposed of, no further application for review shall be entertained in the same matter.
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Explanation.—The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment.
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