This guide explains the entire law and procedure to filing Special Leave Petition or SLP. The provisions of the Supreme Court Rules on the procedure to file Special Leave Petitions as well all the important judgements on the issue of maintainability of SLPs is explained.
The format in which the Special Leave Petition should be drafted is also given by way of an example or specimen.
When can Special Leave petition or SLP be filed?
Under Article 136 of the Constitution of India Special Leave petition or SLP can be filed in the following circumstances:
- SLP can be filed against any judgment or decree or order of any High Court /tribunal in the territory of India.
- SLP can also be filed if the High court declines to grant the certificate of fitness to appeal to the Supreme Court.
What is the procedure for filing Special Leave Petition (SLP)
The procedure for filing Special Leave Petition is set out in order XVI of the Supreme Court Rules 1966.
Under the said rules, SLP can be filed against either the order of High Court rejecting petition for leave to appeal to Supreme Court of India; i.e. on High Court refusing to grant certificate of fitness for leave to appeal to Supreme Court or against the order/ judgement itself.
It is also possible to file SLP against the judgement of the High Court either in Writ Petition or in the Income tax Reference.
Time limit for filing SLP
The time limit for filing SLP is 90 days from the date of judgement/order of the High Court.
If the SLP is filed against the order of High Court refusing to grant certificate of fitness for appeal, the time limit is 60 days from the date of order refusing to grant certificate.
The above time limits are subject to the time taken for obtaining certified copy of the judgement/order i.e. subject to sections 4,5,12 and 14 of the Limitation Act, 1963.
The Supreme Court is entitled to condone the delay in the filing the Special Leave Petition.
Format of Special Leave Petition
The SLP should be in the prescribed format.
The title of the Special Leave Petition should state the following:
IN THE SUPREME COURT OF INDIA
[Under Order XXI, Rule 3(1)(a) of the S.C. Rules]
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION
(Under Article 136 of the Constitution of India)
SPECIAL LEAVE PETITION (CIVIL) NO._______ OF 2016
(WITH PRAYER FOR INTERIM RELIEF)
BETWEEN: POSITION OF PARTIES
High Court
Supreme Court
1. (Name of Petitioner)
Aged _____
W/o____________________
R/o____________________
________________________
Versus
1. (Name of Respondent)
TO,
THE HON’BLE CHIEF JUSTICE OF INDIA
AND HIS COMPANION JUDGES OF THE
HON’BLE SUPREME COURT OF INDIA
THE HUMBLE PETITION OF
THE ABOVE NAMED PETITIONER
MOST RESPECTFULLY SHOWETH: –
1. The present Special Leave Petition is being filed by the Petitioner herein against the impugned judgment and final order dated _____, passed by the Hon’ble High Court of _________, in Civil Writ Petition No. ____ of 2018, whereby the Hon’ble High Court was pleased to dismiss the appeal filed by the Petitioner.
Thereafter, the questions of law arising for the consideration of the Supreme Court in the SLP should be set out.
The grounds of challenge should then be systematically set out as to why the High Court’s judgement is not correct in law.
There is also to be filed a synopsis and a list of dates and events with the Special Leave Petition.
Dismissal of Special Leave Petition
When a Special Leave Petition is dismissed, there are important legal questions which arise as to the following issues:
(i) Mere dismissal of SLP does not mean that High Court judgement is approved on merits so as to be a judicial precedent.
In Smt. Tej Kumari vs. CIT (2001) 247 ITR 210 Full Bench of the Patna High Court held that when a SLP is summarily rejected or dismissed under Art 136 of the Constitution such dismissal does not lay down any law.
The decision of the High Court against which the SLP is dismissed in limine would not operate as resjudicata. However, when Supreme Court dismisses an SLP with reason, it might be taken as the affirmation of the High Court views on merits of the case, thus there is no reason to dilute the binding nature of precedents in such cases.
(ii) Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgement-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing the petition for special leave to appeal.
The Bombay High Court in the case of CIT vs. M/s. Pamwi Tissues Ltd. (2008) 3 DTR 66 (Bom) / 215 CTR 150 (Bom) while considering the issue of interpretation of Sec. 43B, 2(24)(x) r/w sec. 36(1)(va) as to the claim of deductions in respect of PF, ESIC contribution, held that the Hon’ble Supreme Court in CIT vs. M/s. Vinay Cement Ltd. had dismissed the SLP, [(2007) 213 CTR 268] as it was not a fit case for grant of a SLP therefore cannot be said to be the law decided on the subject and it was not a binding precedent as per Article 141 of the Constitution of India.
(iii) In State of Orissa & Ors. vs. M.D. Illyas, (2006) 1 S.C.C.275 the Supreme Court has held that a decision is a precedent on its own facts and that for a judgment to be a precedent it must contain the three basic postulates.
A finding of material facts, direct and inferential. An inferential finding of fact is the inference which the Judge draws from the direct or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) Judgment based on the individual effect of the above.
(iv) In Delhi Administration vs. Madan Lal Nangia AIR 2003 SC 4672 it was held that if a SLP is summarily dismissed, this cannot prevent other parties from filing a SLP against the same judgement.
(v) The Supreme Court in Indian Oil Corporation Ltd. vs. State of Bihar & Ors. (1987) 167 ITR 897 (SC) has clarified that the dismissal of a special leave petition by the Supreme Court by a non-speaking order would not operate as res judicata by observing that-
“When the order passed by this Court was not a speaking one, it is not correct to assume that this Court had necessarily decided implicitly all the questions in relation to the merits of the award, which was under challenge before this Court in the special leave petition.
A writ proceeding is a wholly different and distinct proceeding. Questions which can be said to have been decided by this Court expressly, implicitly or even constructively while dismissing the special leave petition cannot, of course, be reopened in a subsequent writ proceeding before the High Court.
But neither on the principle of res judicata nor on any principle of public policy analogous thereto, would the order of this Court dismissing the special leave petition operate to bar the trial of identical issues in a separate proceeding, namely, the writ proceeding before the High Court merely on the basis of an uncertain assumption that the issues must have been decided by this Court at least by implication.
It is not correct or safe to extend the principles of res judicata or constructive res judicata to such an extent so as to found it on mere guesswork”.
(vi) In all cases of admission of the SLP the further decision on merits follows whereas in every case of dismissal there is no question of further decision or proceedings from the Supreme Court and effectively the order of the lower Court/ authority which is challenged before the apex Court is affirmed and becomes final.
In such a situation the question whether the person/s aggrieved by the order of the lower Court could agitate his grievance by way of an application for review or rectification of mistakes apparent from record so as to pursuade the lower authority to modify its final order in the light of the application for rectification or review, to the extent and in the manner found appropriate is still open for consideration.
The respondent often pleads that the order of the lower Court having been affirmed by the Supreme Court it is no more open to the lower authority, after the dismissal of the SLP to entertain any application and/or decide the same for the purpose of review, revision or modification of the order which has been upheld by the Supreme Court.
The controversy is not free from doubt. The effect of dismissal of SLP by the Supreme Court is that the order of the Supreme Court does not constitute res judicata to deny the petitioner the right to agitate matters on merits before the competent Court/Tribunal.
(vii) Before the Delhi Tribunal Special Bench in the case of Dy. CIT Circle II Meerut vs. Padam Prakash (HUF) [2009] 117 ITD 129 (Del.)(SB) the assessee had filed a Miscellaneous Application against the decision of the Special Bench alleging certain mistake in the decision.
On the date of hearing it was noticed that the decision of Special Bench was challenged in appeal before High Court u/s. 260A of the Act and the Hon’ble High Court held that the order of Spl. Bench was not sustainable.
In view of the above the Tribunal held that as the Special Bench decision was merged with the order of High Court there was no question of rectification.
(vii) Where a question has been decided in favour of the assessee or the Department, as the case may be by the High Court, the mere fact that a SLP from the judgment of the High Court is pending before the Supreme Court will not be a ground for allowing an application u/s. 256(2) of the Act, for directing the Tribunal to state the case and refer a question of law to the High Court because, until the question is finally decided by the Supreme Court, the High Court would be bound by its own earlier decision. [See CIT vs. Desai Brothers Ltd. (1991) 189 ITR 88 (Bom) and CIT vs. Godavari Sugar Mills Ltd. (1992) 198 ITR 196 (Bom)]
Text of Article 136 of the Constitution of India
Article 136 of the Constitution of India reads as under:
“Art. 136. (1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any Court or Tribunal in the territory of India.
(2) Nothing in clause (1) shall apply to any judgement, determination, sentence or order passed or made by any Court or Tribunal constituted by or under any law relating to the Armed Forces.”
A person aggrieved by any order or judgement of High Court or of Tribunal, may appeal to the Supreme Court by filing special leave petition notwithstanding the provisions for regular appeals.
The power of the Supreme Court to grant special leave to appeal from the decision of any Court or Tribunal save military tribunals, is not subject to any constitutional limitation, and is left entirely to the discretion of the Supreme Court.
Under Article 136 of the Constitution of India the Supreme Court shall have the power to grant special leave to appeal –
a) from any judgment, decree, determination, sentence or order,
b) in any cause or matter,
c) passed or made by any Court or Tribunal, in the territory of India.
Special Leave can be granted from orders of any Court or Tribunal even where there is an appeal to the High Court. The jurisdiction conferred by the Supreme Court is a plenary jurisdiction in the matter of entertaining and hearing appeals by granting special leave against any kind of the judgment or order made by the Court or Tribunal in any case or matter and the jurisdiction can be exercised inspite of other specific provision for appeal contained in the Constitution or other laws.
Any legislation, subordinate to the Constitution, cannot whittle down, the jurisdiction of the Supreme Court under Article 136 or of the Constitutional courts in this country as observed by the Supreme Court in case of Mahendra Saree Emporium II vs. G.V. Srinivasa Murthy (2005) 1 SCC 481.
Conclusiveness or finality given by a statute to any decision of a Court or Tribunal cannot deter the Supreme Court from exercising this jurisdiction. It is not restricted even by the appellate provisions enumerated under Cr. P.C or any other statute.
If the issue raised is essentially one of law of considerable importance, it can be raised before the Supreme Court for the first time with its leave. When special leave is granted only the issues raised alone can be contested and the entire case is not open at large.
The Supreme Court may refuse to entertain appeal under Art. 136 from the order of inferior Tribunal where the litigant has not availed himself to the ordinary remedies available to him at law, or has not appealed from the final order of the Appellate Tribunal on appeal from the decision of the inferior Tribunal.
No rules or principles as to when such leave ought to be granted and when it ought to be refused can be laid down, as each case would depend on its own peculiar facts.
The Supreme Court itself observed in one case:
“It is not possible to define the limitations on the exercise of the discretionary jurisdiction vested in this Court by Art. 136…….. It being an exceptional and overriding power, naturally, it has to be exercised sparingly and with caution and only in special and extraordinary situations.” [Dhakeswari Cotton Mills Ltd. vs. CIT West Bengal AIR 1955 SC 65 / (1954) 26 ITR 775 (SC)].
Article 136 does not give a right to a party to appeal to the Supreme Court. It confers a wide discretionary power on the Supreme Court to interefere in suitable cases.
When High Court had passed other orders simultaneously with the order impugned in the SLP and the Revenue, inspite of having been given the opportunity, failed to file an affidavit to explain as to why it did not file appeal against those orders, the Supreme Court may dismiss an appeal without going to the merits of the case so that no likelihood is caused against the orders of the Tribunals order.
A pure question of law though never raised or argued before High Court can be gone into but not of fact or a mixed question of law and fact or in respect of jurisdiction of the court.
In case the question of fact to be decided the Supreme Court may direct the same to be decided by the appropriate authority and where any mixed question of law and fact went to the root of the matter and it became relevant the Supreme Court may remand the matter back to the High Court for fresh consideration. Similar direction was made by Supreme Court in the matter of Anil Jain vs. CIT & Anr (2007) 294 ITR 435 (SC).
Interference by the Supreme Court is justified in tax matters where the question is purely one of law and there was a difference of opinion among various High courts.
Generally, the Supreme Court will not grant special leave, unless it is shown that exceptional and special circumstances exist, that substantial and grave injustice has been done and that the case in question presents features of sufficient gravity to warrant a review of the decision appealed against.
Important case laws on Special Leave Petition
There are a number of important Supreme Court judgements and case laws in which the scope and maintainability of Special Leave Petition or SLP has been explained in detail.
Some of these important case laws are the following:
Jamshed Hormusji Wadia Vs. Board of Trustees, Port of Mumbai AIR 2004 SC 1815
The Supreme Court held that the discretionary power of the Supreme Court is plenary in nature in the sense that there are no words in Article 136 itself qualifying that power.
The court further said the very conferment of the discretionary power defies any attempt at exhaustive definition of such power. The power is permitted to be invoked not in a routine fashion but in very exceptional circumstances as when a question of law of general public importance arises or a decision sought to be impugned before the Supreme Court shocks the conscience.
It clarified that the overriding and exceptional power has been vested in the Supreme Court to be exercised sparingly and only in furtherance of the cause of justice.
Kunhayammed vs. State of Kerala (2000) 245 ITR 360 (SC)
The question as to what is the effect of dismissal of a SLP was explained by the Supreme Court.
It was held that while hearing the special leave petition, this court is merely examining whether the Petitioner should be granted leave or not.
The Supreme Court made it clear that if the SLP is dismissed then it is expression of the opinion of the Court that a case invoking appellate jurisdiction of the Court was not made out.
The Judgment, decree or order against which leave to appeal is sought continues to be final and binding even in case the SLP is filed.
It is only if leave is granted that the finality of the judgment or order is put in jeopardy though it continues to be binding and effective between the parties unless it is reversed or the court passes specific order granting stay of the judgment or order.
Tirupati Balaji Developers Pvt. Ltd. Vs. State of Bihar AIR 2004 SC 2351
The Supreme Court made it clear that Article 136 does not confer a right of appeal on a party but vests a discretion in the Supreme Court which is meant to be exercised on the considerations of justice, call of duty and eradicating injustice.
The scope of a SLP or Special Leave Petition has been explained in a number of other judgements such as Tej Kumari vs. CIT (2001) 247 ITR 210, Pritam Singh v. the State AIR 1950 SC 169, Joby v. George (2010) 4SCC 358, Columbia Sportswear Company v. Directorate of Income Tax etc.
Senior Advocate Rajeev Dhavan has argued that Special Leave Petitions are the Supreme Court’s ‘biggest bugbear’because they consume time while lawyers earn fees in crores of rupees.