M/S S.B.Minerals vs M/S Mspl Limited

M/s. S.B. Minerals ... Petitioner

Vs.

M/s. MSPL Limited ... Respondent

O R D E R

R.V. Raveendran, J.

The respondent filed a suit for declaration and injunction

against the petitioner. The suit was decreed. The petitioner filed an

appeal and the first appellate court allowed the appeal and dismissed the

suit. Feeling aggrieved, the respondent filed a regular second appeal

under section 100 of the Code of Civil Procedure (for short `CPC'). By

order dated 8.10.2009, the High Court admitted the appeal formulating

three substantial questions of law. In view of the urgency expressed, the

High Court directed that the appeal be set down for final hearing in

November, 2009.

2. The respondent has sought leave to file an appeal against the

`order' of admission of the second appeal. The petitioner contends that the case did not involve any substantial question of law and the second

appeal ought not to have been admitted.

3. Sub-section (5) of section 100 CPC provides that a second appeal

shall be heard on the substantial questions of law formulated by the

Court. It also provides that the respondent, at the hearing of the second

appeal, can argue that the case does not involve such questions. Thus the

substantial questions of law formulated by the High Court are not final,

and it is open to the petitioner herein (who is the respondent in the

pending appeal) to demonstrate during hearing that no substantial question

of law arose for consideration in the case and that the second appeal

should be dismissed.

4. An order admitting a second appeal is neither a final order nor an

interlocutory/interim order. It does not amount to a judgment, decree,

determination, sentence or even "order" in the traditional sense. It does

not decide any issue but merely entertains an appeal for hearing.

5. The scope of Article 136 is no doubt very wide. Special leave to

appeal can be granted under Article 136 against any judgment, decree,

determination, sentence or order passed or made by any court or tribunal,

in any case or matter. There are no limitations upon the discretionary

power of this Court under Article 136, except those which are self-

imposed. One recognised area where the discretion is not exercised is

where the remedy by way of an appeal or revision is available against the

order. Another recognised area is where the subject matter is stale or

frivolous or cantankerous or where the stakes or issue involved is so small and negligible, that grant of leave or even issue of notice will

cast a heavy burden in terms of expense, time and energy on a poor or

ordinary respondent.

6. There is a third recognised area of exclusion relating to orders

which do not decide any issue. Orders admitting a

petition/appeal/revision, or orders issuing notice to show cause why a

petition/appeal/revision should not be entertained, or an order merely

adjourning a case, fall under this category. Extraordinary situations

leading to irreversible injustice can of course be exceptions to the

exclusion. This case falls under the third category of exclusion, but does

not fall under the exception to the exclusion.

7. It is a matter of concern that there is a noticeable increase in the

number of special leave petitions against such `non-orders' referred to as

orders.

8. The special leave petition is dismissed.

__________________J.

(R V Raveendran)

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