Practice and Procedure

Q. 1. (i) Discuss the provisions in the Constitution relating to substantial

questions of law as to the interpretation of the Constitution.
(ii) Discuss the distinctions between and state the features of 'substantial
question of law as to the interpretation of the Constitution', 'substantial
question of law' and 'question of law.'

Answer:
Substantial Question of Law (Article 132, 145, 147, 228):
i. As to the interpretation of the Constitution of India (Article 132,
145, 147, 228(High Court) and
ii. of general importance
Article 132 – Civil appeal from any judgment, decree or final order of
any High Court in the territory of India in any civil, criminal or any
other legal proceedings,
• High Court under Article 134A certifies that the case involves a
substantial question of law as to the interpretation of the
Constitution of India.
Article 133 : any judgment, decree or final order in a civil proceeding
of a High Court within the territory of India
• High court under Article 134 A certifies that the case involves the
substantial question of law of general importance.

➢ The minimum of judges to decide the substantial question of law as

to the interpretation of the Constitution of India shall be 5 (FIVE), if
not it shall be referred to the bench with a minimum of five judges
for opinion. The court, receipt of the opinion, shall dispose off the
case accordingly (Article 145 – Rules of Cort)
➢ Substantial Questions of Law as to the interpretation of the
Constitution shall include references to the interpretation of the
Government of India Act 1935, and Indian Independence Act 1947.
(Article 147)
➢ If the High Court is satisfied that a substantial question of law as to
the interpretation of the Constitution of India before any court
subordinate to it, it may withdraw the case to itself and decide the
case itself or determine the said question of law and return the case to
the deciding court. (Article 228)
Answer ii
Question of Law: Question of law is a question that must be answered
by applying relevant legal principles to the interpretation of the law
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involved in a case and subsequently deciding the case. A particular may

have one or more questions of law and it becomes necessary to address
those questions to settle the disputes arising out of case and deciding the
rights of the parties to the case.
Substantial Question of Law: Though substantial question of law has
been referred a number of times in the Constitution of India and other
acts yet the phrase “Substantial Question of Law” is not defined
anywhere in any statute. The Supreme Court of India in Sir Chunni Lal
V. Mehta and Sons Ltd Versus Century Spinning & Mfg Co. Ltd,
observed that a question of law would be a substantial question of law if
it directly or indirectly affects the rights of the parties and /or there is
some doubt or difference of some opinion on the issue.
Therefore, a question of law is substantial when it is debatable, has not
been previously settled by the law of the land or any binding
precedent, and has a material bearing on the decision of the case
and/or rights of the parties to the case, there is a difference of
opinions of the different High Courts of India.
Substantial Question of Law as to the interpretation of the
Constitution: When the substantial question of law involves the
interpretation of the Constitution of India, then it becomes a Substantial
Question of Law as to the Interpretation of the Constitution. Such
questions are to be decided by the bench of having a minimum 5 (Five)
judges of the Supreme Court. (Article 145)

Q. 2. (i) Section 11 of the: Inter-State River Waters Disputes Act, 1956,

bars the jurisdiction of all courts, including the Supreme Court, in water
disputes between States. Can a Section in an Act take away, and if so,
state the reasons for the same, from the constitutional jurisdiction of the
Supreme Court under Article. 131, Article 32, and Article 136 the
subject of water disputes? (5 marks)

Answer: Article 131 of the Constitution of India confers power upon

Supreme Court of India the power of original jurisdiction to adjudicate
disputes, involving a question of law or fact on which the existence of a
legal right depends, this dispute must be :-
1. between one or more States on both sides
2. between Union of India and one or more States on one side and
one or more States on the other side
3. Between the Union of India and the State

Exclusions:
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• Dispute arising out of any treaty, agreement, engagement, Sanad

or similar instrument which was executed before the
commencement of the Constitution of India and continues to be in
operation or which exclusively rules out the jurisdiction of the
Supreme Court
• Article 262 of the Constitution of India states that Parliament may
by law exclude the jurisdiction of the Supreme Court in disputes
or complaints with respect to the use, distribution, or control of
water of any interstate river or river valley.
Considering Article 262 of the Constitution of India, a section of an
Act can take away the Constitutional Jurisdiction of the Supreme
Court under Article 131 (Original jurisdiction related to the matters
of and/ or between the Union of India and States),.
A section of an Act can not take away the jurisdiction of the Supreme
court under Articles 32 (WRITS), and 136 (Special Leave to Appeal).

Article 32 is a basic structure of the Constitution of India.

Article 136 : Legislative enactment cannot override or take away

powers of the Supreme Court under Article 136 of the Constitution of
India. (Reference: Durga Shankar Mehta Vs Thakur Raghuraj Singh)

The Inter-State Water Dispute Act of 1956 empowers the Central

Government to establish Tribunals to adjudicate such disputes. The
decision of the Tribunal shall be final and no court including the
Supreme Court of India will have jurisdiction in respect of any water
dispute.
(ii) Can Article 136 be invoked against an interim award of a Water
Disputes Tribunal and if so on what ground? (5 marks)
Answer: The Supreme Court, in its discretion, may 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 (except by the court or tribunal constituted by the
Armed Forces Courts).
Test if a particular body or authority is a tribunal –
• Authority or body must be constituted by a State
• Authority or body must be vested with powers to execute judicial
functions.

DURGA SHANKAR MEHTA VERSUS THAKUR RAGHU RAJ

SINGH.
A legislative enactment can not override or take away the powers of the
Supreme Court under Article 136 of the Constitution of India.
Practice and Procedure

Article 136 can be invoked against an interim award of a water dispute

Tribunal on following grounds (reference: Clerks of Calcutta Tramways
Versus Calcutta Tramways Co. Ltd.)
1. The Tribunal acted in access of its jurisdiction
2. There is an error apparent on face of the decision
3. Award are made in violation of principle of natural justice
4. Tribunal has erroneously applied well established of
laws/jurisprudence.

(iii) Can a Presidential Reference be made under Article 143 in respect

of a legislation passed by a State with respect to the waters of an
interstate river, which legislation prejudicially affects the rights of
another State to the said waters? (5 marks)

Answer: Article 143

:
Keywords: President, Question of law of fact has arisen or tends to
arise, which is of such nature and of such public importance that it
is expedient to obtain the opinion of the Supreme Court of India, the
Supreme Court may refer the question of law for the consideration
of Supreme Court, Supreme court after hearing, communicated its
opinion to the President for further action.
Legislation passed by a State with respect to the waters of an interstate
river prejudicially affects the rights of another State, it means, there are
questions of law or facts involved in the concerned legislation which
are of public importance, so Presidential reference can be made in
respect of such legislation. It is the discretion of the President if he
wants to refer such questions to the Supreme Court or not. In the matter
of the Cauvery Disputes Tribunal, a Tribunal was appointed by the
Central Government of India to decide the dispute related to the water of
the Cauvery River which flows through the States of Karnataka and
Tamil Nadu. The tribunal gave an interim order directing the State of
Karnataka to release a particular quantity of water to the State of Tamil
Nadu. The State Government of Karnataka resented the interim order of
the Tribunal and passed an ordinance empowering the Government
not to honour the interim order of the Tribunal. The Government of
Tamil Nadu protested the action of the State Government of Karnataka;
hence the President referred the matter to the Supreme Court under
Article 143 of the Constitution of India. The Supreme Court held the
Ordinance unconstitutional as it nullifies the decision of the Tribunal
which has been constituted under Article 262 of the Constitution of
India, The Ordinance is also against the rule of law as it has assumed the
role of a judge in its own case.
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QUESTION NO 3.
(i) Does a High Court judgment or order merge in an order made
on a Petition for Special Leave under Article 136? Give
reasons.( 3 marks)
ANSWER
The doctrine of merger maintains the decorum of the hierarchy of the
courts and tribunals, the doctrine of merger is simply based on the
reason that there cannot be, at the same time, more than one operative
order from different courts in the hierarchy governing the same subject
matter. Once the leave to appeal has been granted and the appellate
jurisdiction of the Supreme Court has been invoked, the order in appeal
would attract the doctrine of merger, the order may be of reversal,
modification, or merely affirmation. High Court’s Judgement or order
merges with an order made on a Petition for Special Leave to Appeal.
If the petition under Article 136 has been dismissed, the doctrine of
merger does not apply. Mostly, petition u/a 136 is filed against the
judgment, decree, determination, order or sentence of the High Courts.

(ii) Does a summary dismissal by a non-speaking order of a Petition for

Special Leave against a judgment or order of the High Court amount
to approval or affirmance thereof? Give reasons. (3 marks)
Answer:
Summary dismissal by a non speaking order of a Petition for Special
Leave to Appeal against a judgement or order of the High Court does
not amount to approval of affirmation thereof. Power conferred by
Article 136 of the Constitution of India are residuary and discretionary
in nature. Intention of Article 136 of the Constitution of India was never
to make Supreme Court an Appellate Court.
In “Kunhayammed and Ors, Versus State of Kerala”, the Supreme
Court held that irrespective of the dismissal nature of a SLP, whether it
is a speaking order or non-speaking order, Order of the Supreme Court
dismissing the SLP does not attract the doctrine of merger and res-
judicata.
If the SLP is allowed, then it is converted to an appeal and the final
order or judgment in such appeal would attract the doctrine of merger,
such order may be of reversal, modification or affirmance.
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iii) While the Petition for Special leave is pending or after it has been
dismissed by the Supreme Court, is it open to the High court to review
its own judgment or order? ,Give reasons. (3 marks)
Answer:
Yes, it is open to the High Court to review its own judgment or order
after the SLP is dismissed or SLP is pending. Doctrine of merger would
apply only after SLP is allowed and decided.
Case Law: Kunhayammed Versus State of Kerala, the Supreme Court
held that irrespective of nature of dismissal of SLP (whether it is
speaking order or non speaking order), doctrine of merger would not
apply and High Court can review its own judgment under review
petition.
(iii) Does a non-speaking order dismissing a Petition for Special Leave
constitute res-judicata? Give reasons. (3 marks)
Answer: A non-speaking order dismissing the SLP does not constitute
the res-judicata. ReasonsL
• When a SLP is summarily rejected or dismissed under Article 136
of the Constitution of India, such dismissal does not lay down any
law.
• In case, the SLP is allowed, then it is converted to an appeal and
the final order or judgment of the Supreme Court would constitute
resjudicata and would become binding on the parties to the case.
Such final order of judgment of the Supreme Court may be of
reversal, modification or affirmance of the impugned order.
• Case Reference : Kunhayammed and Ors v. State of Kerala,
Khoday Distilleries Ltd Vs. Sri Mahadeshwara Sahakara
•
(iv) What is the difference between the doctrines of stare decisis
and res judicata as regards the binding nature of judgments.
Give reasons. (3 marks)
Res-judicata Stare decisis
it means a thing To stand by
already decided, a decided cases, to
thing adjudicated uphold precedents
Res-judicata binds Stare Decisis
parties and privies operates between
to a specific cause. strangers also and
binds the court
from taking a
contrary view on
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the point of law

already decided.
it relates to a It touches on the
specific legal principle
controversy
Res- judicata It applies same
presupposes principle of law to
judicial finding all parties.
upon the same facts
as involved in the
subsequent
litigation between
the same parties

** In Gulam Server Vs Union of India – it was held that rule

of res judicata is not applicable in the Writ Petition of Habeas
Corpus. If the WRIT of Habeas Corpus has been dismissed
under Article 226, then the Petitioner may proceed with WRIT
under Article 32.
** In Darayo Vs State of U.P. it was held that where the matter
had been ‘heard’ and decided by the High Court under Article
226, the WRIT under Article 32 is barred due to Res- Judicata.

Q. 4. (i) What are the courts and tribunals excluded, by the

Constitution from - the purview of the power of the Supreme Court
to grant special leave under Article 136 against the decision of any
court or tribunal in the territory of India? (3 marks)
Answer: Article 136 (2) of the Constitution of India excludes any court
or tribunal, constituted by or under any law relating to the Armed
Forces, from the purview of the Supreme Court to grant special leave
under Article 136 against their judgment, determination, sentence, or
order.

(ii) Which are the· classes of persons whose fundamental rights may
constitutionally be restricted or modified and for what purpose? (3
marks)
Answer: Generally Fundamental rights conferred by Part III of the
Constitution of India can not be taken away or abridged by the State,
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however, Article 33 is an exception to this. Article 33 empowers the

Parliament to restrict or abrogate, by law, the fundamental rights of;
(i) The member of the Armed Forces
(ii) The forces charged with the maintenance of the public order
(iii) The person employed in any bureau or other organization
established by the State for the purpose of intelligence or
counter intelligence.
(iv) The person employed in connection with the setup of the
telecommunication system for armed forces, any force charged
with the maintenance of the public order, bureau, or
organization established by the State for the purpose of
intelligence or counter intelligence.
The object of this restriction under Article 33 is to ensure the proper
discharge of their duties and maintenance of discipline among the
persons belong to this restricted category as mentioned above.

(iii) What is the effect on fundamental rights when martial law is in

force in any area? (3 Marks)
Answer:
Article 34: restriction on fundamental rights when martial law is in
force: notwithstanding anything in the foregoing provisions of Part III
of the Constitution of India, Parliament may, by law, indemnify any
person in the service of the Union or any State or any other person in
respect of the act done by him for the maintenance or restoration of
order in any area within the territory of India where martial law was in
force or validate any sentence passed, punishment inflicted or forfeiture
ordered or other act done under martial law in such area.
So, an act of indemnity, passed by the Parliament. cannot be challenged
on the ground that it violates fundamental rights. The power of
Parliament is however restricted to
1) There must be martial law.
2) The act must be done in respect of the maintenance or restoration
of order in any area within the territory of India.
(iv) What is martial law and what is a Court-martial? Which
provisions of the Constitution refer to them? (3-mark)
Answer: There is no express provision in the Indian Constitution which
confers power on the executive to declare martial law in any area within
the territory of India. However, there is an implicit provision in Article
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34 of the Constitution of India under which martial law can be declared

in any area within the territory of India.
Martial Law is nothing but the suspension of the ordinary law of land
and suspension of the democratic Government in whole country or
within a part of the country.
Court Martial is a type of military court that is empowered to try
members of the Armed Forces for offenses committed under military
law. The purpose of court martial is to maintain discipline and order
within the military by ensuring that members of the armed forces are
held accountable for their actions.
Provisions of the constitution referring to martial law and court
martial
• Article 34: restriction on rights conferred by Part III of the
Constitution of India while martial law is in force.
• Article 136 (2) : Special leave to appeal shall not apply from any
judgment, determination, sentence or order passed by any court or
tribunal constituted by or under any law relating to the Armed
Forces
• Article 72: President’s power to grant pardon, suspend , remit or
commute sentences by a court martial.
(v) What is the effect on enforceability of all or any of the
fundamental rights guaranteed by Part III by virtue of Articles 358
and 359 of the Constitution when an Emergency is proclaimed
under Article 352? ( 3 marks)
Answer:
• Article 358: (44th CAA) Article 19 will be suspended only when
there is a proclamation of emergency on the grounds of “war” and
“external aggression” only. Article 19 will automatically be revived
after the emergency situation is expired.
• Article 359: President is authorised to suspend, by order, to move
any court for the enforcement of fundamental rights (except Article
20 and Article 21) during a National Emergency. Thus, remedial
measures are suspended and not the fundamental rights. This order
should be approved by the Parliament. 44 th CAA mandates that
President is not authorised to suspend, by any order, to move the
court for the enforcement of fundamental rights guaranteed by
Article 20 and Article 21.
Question:
Practice and Procedure

(i) Does the Constitution expressly or impliedly empower the

Supreme Court to overrule its own decisions? Is the power to
overrule traceable to Article 137 read with Order XL (Review) of
the Rules or Articles 141, 129, 142 read with Order VII Ru1e 2
(Reference to larger Benches)? Give reasons. (5 marks)
Answer: Yes, the Constitution expressly empowers the Supreme Court
to overrule its own decision under Article 137. Article 137 –“Subject to
the provisions of any law made by Parliament or any rules made under
Article 145, the Supreme Court shall have the power to review any
judgment pronounced or order made by it”. During the review, the
judgment pronounced or the order made may be overruled.
Order to overrule is traceable to Article 137 r/w Order XLVII (Review).
Article 141 – The law declared by the Supreme Court shall be binding
on all courts within the territory of India. This article is not about
reviewing the power of its judgement/order of the Supreme Court.
Article 129 – The Supreme Court shall be a court of record and shall
have the powers of such courts including the power to punish for the
contempt of itself. This article is also not about the reviewing power of
its judgement / order of the Supreme Court.
Article 142 – The Supreme Court in exercise of its jurisdiction, may
pass such decree or order as is necessary for doing complete justice in
any cause or matter pending before it. The power conferred on the
Supreme Court by Article 142 is very wide and the Court can formulate
the legal doctrines to meet the ends of justice.

(ii) Is the Supreme Court included in "all courts" in Article 141

which provides that the law declared by the Supreme Court shall be
binding on all courts? Why is adherence to precedents considered
important in our system of administration of justice?(5 marks)
Answer: The expression “all courts within the territory of India” clearly
means the Court other than the Supreme Court. Thus the Supreme Court
is not bound by its own decisions and may in proper case reverse its
previous decisions, the power is conferred on the Supreme Court by
virtue of Article 137. This question was considered in detail in the case
of Bengal Immunity Co Vs State of Bihar. In this case, the Supreme
Court held that there is nothing in the Indian Constitution which
prevents the Supreme Court from departing from its previous decision if
the Supreme Court is convinced of its error and it is beneficial for the
public. The Supreme Court further said that the doctrine of stare decisis
is not an inflexible rule of law and the same cannot be permitted to
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perpetuate the errors of the Supreme Court to the detriment of the

general welfare of the public.

Q. 6. (i) Discuss the nature of disputes that may be entertained

under Article 131 and those that may not be so entertained. Can
such a suit be heard and decided by a bench of less than five
Hon'ble Judges? Is there a period of limitation prescribed for suits
under Article 131 under the Constitution, the Limitation Act, 1961,
or the Supreme Court Rules 1966? Give reasons for your answer. (5
marks)
Answer:
The nature of disputes which may be entertained under Article 131:
Article 131 confers the power of exclusive original jurisdiction on the
Supreme Court to try suits
(i) Between the Government of India and one or more States or
(ii) Between the Government of India and any State or States on
one side and one or more States on the other side or
(iii) Between two or more States
to resolve the disputes which involves any question of law or fact on
which the existence or extent of any legal rights depends.
Exclusion:
• This power/ jurisdiction shall not extend to a dispute arising out
of any treaty, agreement, covenant, engagement or Sanad or other
similar instrument which must have been entered into before the
commencement of the Constitution of India and still continue in
operation after the commencement or which provides that said
jurisdiction shall not extend to such disputes.
• Article 262 of the Constitution of India excludes the jurisdiction
of the Supreme Court of India in adjudicating the
matter between states having disputes related to the use,
distribution, or control of waters of interstate rivers or river
valleys. Such disputes may only be resolved by Parliament by
making laws.
• Matters referred to the Finance Commission (Article 280)
• Adjustment of finances between the Union and States (article
290)
Can such a suit be heard and decided by a bench of less than five
Hon'ble Judges?
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Such a suit can be heard and decided by a bench of less than five judges
if there is no substantial question of law involved as to the interpretation
of the Constitution.
Is there a period of limitation prescribed for suits under Article 131
under the Constitution, the Limitation Act, 1961, or the Supreme Court
Rules 1966? NO

(ii) Discuss the provisions of the Constitution and the Rules relating
to
execution of decrees of the Supreme Court and the duty of civil and
judicial authorities to act in aid of the Supreme Court. Are the
Armed
Forces under such a duty? (5 marks)

Q. 7.
(i) Does a petition under Article 32 lie to challenge a judicial
order of the Supreme Court or High Court? Does a second
review petition lie? Is an interim order of stay amenable to the
review jurisdiction or it can be recalled or vacated upon an
I.A. filed for the purpose? Give reasons. (5 marks)

Answer:
A petition under Article 32 does not lie to challenge a judicial
order of the Supreme Court or High Court. Principally, a
petition under Article 32 lies when there is a violation of the
fundamental rights of the petitioner. The Supreme Court of
India ( 9 judges bench) in Naresh Shridhar Mirajkar and Ors
V State of Maharashtra and Anr held that a judicial order can
not be challenged on the ground that it was violative of
fundamental rights. In Rupa Ashok Hurra Vs Ashok Hurra,
the Supreme Court of India held that judgment/ order passed
by this court can not be assailed in an application under Article
32 by an aggrieved person whether he was a party to the case
or not.

A second review petition does not lie (Order XLVII of the

Supreme Court Rules 2013) – where an application for review
of judgment has been made and disposed of, no further
application for review shall be entertained.
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(ii) What are the grounds and requirements of a curative petition

which may be filed "in the rarest of rare" cases for relief ex
debito justitiae? (5 marks)

Answer: Ex Debito Justitiae means that no one should suffer

due to the mistakes of the court. To err is human and the
Courts and the Apex Court are not exceptions. The following
are the grounds and requirements of a curative petition:
1. Curative petitions shall be governed by the judgement of
the Supreme Court dated 10.04.2002 in the matter of Rupa
Ashok Hurra Vs Ashok Hurra. It is evolved by the Supreme
Court by invoking its inherent powers under Article 142.
The Grounds for Curative Petitions include;
1. Review Petition must have been dismissed by circulation.
2. Violation of the principle of natural justice where the
petitioner was not a party to the lis but
3. his interests were adversely affected by the judgment.
4. The Petitioner was a party to the lis but he was not served
the notice of the proceedings and the matter continued.
5. Where the learned Judge failed to disclose his connection
with the matter (proceedings)
6. The parties have reason to believe that there is scope of
bias and the verdict adversely affected the Petitioner.

The requirements of the Curative Petition (Order XLVIII

of the Supreme Court Rules 2013)
1) It must be governed by the principles laid down in the case
of Rupa Ashok Hurra Vs Ashok Hurra.
2) The Curative shall specifically aver that the grounds
mentioned therein have been taken in the Review Petition
and the Review petition was dismissed by circulation.
3) The curative petition must be accompanied by a certificate
of a designated senior advocate that the curative meets the
requirement delineated in the case of Rupa Ashok Hurra
Vs Ashok Hurra.
4) The curative petition must be accompanied by a certificate
from the Advocate on Record that it is the first curative
petition in the impugned matter.
5) The curative petition must be filed within a reasonable time
from the date of judgement or order passed in the review
petition.
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6) The curative petition shall be circulated to first three senior

most judges and the judges, if available, who passed the
order or judgement in the review petition.
7) Unless otherwise directed by the court, the curative petition
shall be disposed by circulation without oral arguments but
the petitioner may provide additional written arguments in
the petition.
8) If the bench before which the curative petition was
circulated concludes by a majority that the petition needs a
hearing, it shall be listed before the same bench, as far as
possible, for hearing.
9) If the Court at any stage concludes that the petition is
vexatious and without merit, it may impose an exemplary
cost on the petitioner.

Question 8
1. What are the grounds of review in civil and criminal matters? (3marks)
Answer:
Power to review its own decision is conferred upon the Supreme Court
of India under Article 137 and governed by Order XLVII of the Supreme
Court Rule 2013. Unless otherwise ordered by the court, an application
for review shall be disposed of by circulation without any oral argument.
In case of mhd Arif @Ashfaq vs. Registrar, the Supreme Court held that
in review petitions arising out of those cases where the death penalty is
awarded, it would be necessary to accord oral hearing in the open
court.
Grounds for Review (Civil proceedings - Order XLVII, Rule 1 of
Civil Procedure Code 1908) :
A review petition can be filed against the
• decree of order from which an appeal is allowed but from which
no appeal has been preferred or
• decree or order from which no appeal is allowed or
• by a decision on a reference from a court of small causes
under following circumstances
i. on the discovery of new and important matter or evidence which
was not within the knowledge of the petitioner even after the
exercise of the due diligence or could not be produced by him at
the time when the decree was passed or order made or
ii. on account of some mistake or error apparent on the face of the
record or
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iii. for any other sufficient reasons.

Grounds for Review (Criminal proceedings)

• According to the Order XLVII of the Supreme Court Rules 2013,
no review petition can be filed in criminal proceedings except on
the ground of error apparent on the face of the record, thus the
scope of review in criminal matters is very much limited as
compared with that in civil matters.

2. What is the practice when a Two Judges Bench differs from a

decision rendered by another Bench of Two, Three or Five
Judges? (2 marks)
Answer:
When a Two Judges Bench differs from a decision rendered by another
Bench of Two, Three or Five Judges, in such cases, Two Judges Bench
has the competence to refer the matter to the Chief Justice, who shall
thereupon constitute such a Bench having appropriate number of Judges,
for the hearing of the matter.
3. State the grounds on which a party may move the Court and the
procedure to be followed:
a. if an appeal is dismissed in default of appearance
b. if an appeal is heard exparte and judgment is pronounced;
c. if an appeal is dismissed after hearing both sides;
d. if a review petition has been dismissed either by circulation or
hearing.
Answer:
a. Order XVI of the Supreme Court Rules 2013 (Rule 4
(1))– If an appeal is dismissed in default of the appearance
of the appellant, then the appellant may file the petition
praying for restoration of appeal within thirty (30) days of
the dismissal order of the appeal. The Court, after giving
notice of this petition for restoration of the appeal to the
respondent who has entered an appearance in the appeal,
i. may restore the appeal if good and sufficient cause is
shown subjected to costs or otherwise as it thinks fit
or
ii. pass such other order to meet the ends of justice
considering the facts and circumstances of the
matter.
b. Order XVI of the Supreme Court Rules 2013 (Rule
4(2)): If the appeal is heard exparte and judgment is
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pronounced, the opposite party may apply to the court for

rehearing of the appeal and the court may allow the
application to rehear the appeal if he satisfies to the court
i. The notice of hearing of appeal was not served upon
him or
ii. He was prevented by sufficient cause from appearing
in the court when the appeal was called for hearing.
The court may allow such application and rehear the appeal
on such terms as to the cost or otherwise as it thinks fit to
impose on him.
c. If an appeal is dismissed after hearing both sides, a review
petition under Order XLVII of the Supreme Court Rules
2013 may be filed by any aggrieved party.
d. if a review petition has been dismissed either by
circulation, then petitioner may file a curative petition
subjected the sufficient grounds are available and meet the
requirement of Order XLVIII of the Supreme Court Rules
2013. If the review petition is dismissed after hearing, then
the order / judgement is final.
Question 9
i. Rules regarding Plaints under Article 131.

Answer: Every plaint under Order XXVI of Supreme Court

Rules 2013 shall comply with the rules enumerated under
Order XXIX of the Supreme Court Rules so far as these rules
are applicable.
(i) Plaint should contain only the statement, in concise
form, of the material facts on which the plaintiff
relies.
(ii) It should not state the evidence by which the
material facts of the plaint are to be proved.
(iii) The material facts should be divided into
paragraphs numbered consecutively.
(iv) Dates, sums, and numbers should be expressed
in figures.
(v) It should contain the better statement of the claim
or particulars of any matter stated in the plaint in an
ordered manner upon such terms as to costs and
otherwise as may be just.
(vi) Wherever the contents of any documents are
material, it shall be sufficient to state the effect
thereof as briefly as possible.
Practice and Procedure

(vii) Plaint should be signed by AOR on behalf of

the Attorney General of India or Advocate General
of State as the case may be.
(viii) If the leave of the court is provided to amend
the plaint, it should be done within the time frame
as given by the Court or within 14 (Fourteen) Days
if the time limit is not set by the court.
(ix) Order XXVI of the Supreme Court Rules: A
plaint shall contain the following:
a. The names of the plaintiff and of the
defendants.
b. The facts constituting the cause of
action and when the cause of action
arose.
c. The facts showing the jurisdiction of the
court.
d. Relief which the plaintiff claims

ii. Rules regarding Applications under Article 139 A (1) and

(2). (5 marks)

Answer:
Rules regarding the application under Article 139 A (1) are
enumerated in Order XL of the Supreme Court Rules 2013.
(i) Every application under Article 139 A (1) 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 pending
before the two or more High Courts, the names and
addresses of the parties, the questions of law involved
and the statement that the same or substantially same
questions of law are involved in all the cases and such
questions are substantial questions of general
importance. In case the transfer application is made by
the Attorney General of India, no affidavit is required
but it shall be accompanied by the certificate of
Advocate on Record that such questions are substantial
questions of general importance in terms of clause 1 of
the Article 139 A. In case, if application for transfer of
case is made by any party to such cases, then this
application shall be supported by the Affidavit along
with the certificate of Advocate on Record stating that
questions of laws mentioned in the application are
Practice and Procedure

substantial questions of law and are of general

importance in terms of the clause 1 of the Article 139 A.
(ii) The application shall be posted for a preliminary
hearing and if there is a prima facie case made out, the
notices shall be issued to the parties in the case
concerned parties to show cause why the cases should
not be withdrawn to the Supreme Court. A copy of order
shall be transmitted to the concerned High Court or
Concerned High Courts.
(iii) Notices shall be served upon the parties concerned
through the High Court not less than 6 (Six) weeks
before the date of final hearing upon the application.
Affidavits shall be filed by the parties not later than 2
(two) weeks before the date of final hearing on the
transfer application. Affidavit in reply shall be filed by
the Attorney General not later than two days before date
of final hearing. Copies of affidavit shall be served on
the parties and Attorney General and affidavits shall not
be accepted in the registry unless they contain an
endorsement of service.

Rules regarding the application under Article 139 A (2)

are enumerated in Order XL1 of the Supreme Court
Rules 2013.
1. Application shall be in writing, it shall state all facts
succinctly and clearly all relevant facts and particulars
of the case, the name of the High Courts/ civil courts 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 posted for a preliminary hearing, if
there is any prima facie case is made out, the notices are
issued to the concerned parties else petition is
dismissed. A copy of the order shall be transmitted to
the concerned High Court.
3. Notice shall be served on the parties to the case not less
than 4 (four) weeks from the date of hearing. Affidavit
in opposition shall be filed not less than 2 weeks from
the date of hearing. Affidavit in reply shall be filed not
less than 2 days before the date of hearing. Copies of the
affidavit in opposition and reply shall be served on the
concerned parties to the case. Affidavit in reply and
opposition shall not be accepted in registry unless
endorsement regarding service of same is not shown.
Practice and Procedure

4. The petition shall thereafter shall be listed for final

hearing.

iii. Rules regarding Appeals under the Advocates Act, 1961.

(5 marks)

Answer
▪ Rules are mentioned in the Order XXIII of the
Supreme Court Rules 2013.
▪ Order against which appeal is to be filed is made by
the Disciplinary Committee of the Bar Council of
India.
▪ Appeals are to be filed by the Attorney General of
India, or Advocate General of State as the case may
be or the aggrieved person
▪ Limitation period is 60 days from the date on which
the order complained of is communicated to the
appellant, time requisite for obtaining the certified
copy of the order complained of is excluded while
computing the limitation period.
▪ Memorandum of appeal shall be in the form of
petition.
• It shall state all the facts succinctly till the
order complained of is made by the
disciplinary committee. The petitioner shall
mention the objections to the order
complained of and the grounds of objections.
• It shall mention the date on which the order
complained of is received by the Petitioner.
• Affidavit if facts are not supported by the
documents.
• Petition shall be divided into paragraphs and
numbered consecutively, court fee stamp is Rs
5000/
• signed by the petitioner where petitioner
appear in person else by A.O.R.
• At the time of filing: original set + one copy,
after removing defects: original + 3 sets

iv. Rules regarding transfer of criminal proceedings under

Section 406, Criminal Procedure Code, 1973. (5 marks)
Practice and Procedure

Answer

Order XXXIX of the Supreme Court Rules 2013

• Every petition shall be in writing, state the facts/
particulars of the case succinctly and concisely in
paragraphs, the relief sought and the grounds of the
relief, the petition shall be supported by the affidavit
or affirmation.
• Petition shall be posted before the court for a
preliminary hearing, if prima facie case is made out,
notice shall be issued to the respondent to show
cause why the order sought for should not be made.
Notice will be issued to the accused person if he is
not the applicant, to the concerned State and to such
other parties interested as the Court may think fit to
direct.
• if prima facie case is not made out, the petition shall
be dismissed. If the court is of the opinion that
petition was vexatious and without merit, court may
impose the cost.
• Notice shall be served not less than 21 days before
the date of final hearing. Affidavit in opposition shall
be filed in the registry not later than 4 days before
the date appointed for final hearing. Affidavit in
reply shall be filed not later than 2 p.m. preceding
the day of final hearing.
• Copies of affidavit in opposition and reply shall be
served to the parties concerned and the affidavit in
opposition and reply shall not be accepted in registry
until they contain an endorsement of service signed
by such party or parties.
Question no 10
(i) Are the Rules, or any of them, framed under Article 145 subject to
any law made by Parliament; are they subject to the approval of
the President or the Chief Justice; and are they open to challenge
on the ground of violation of fundamental rights including the
fundamental right under Article 32? Give reasons. (5 marks)
Answer
Yes, the rules or any of them, frame under Article 145 are subjected to
any law made by the Parliament.
Yes, these rules are subjected to approval of the President of India.
Practice and Procedure

Rules framed under Article 145 are open to challenge on the ground of
violation of fundamental rights including the fundamental right under 32
as the powers of the Supreme Court under Article 145 does not comes
within the purview of the doctrine of basic structure.

(ii) Are the C.P.C. and Cr. P.C. applicable to proceedings in the
Supreme Court under the civil appellate or criminal appellate
jurisdiction or the original civil and writ jurisdiction? Give
reasons. (5 marks)

Answer

The Practice and procedure of the Supreme Court are governed by the
Supreme Court Rules 2013.
• Civil appeals on the Certificate under Article 134A of the High
Court is governed by the rules of Order XIX of the Supreme
Court Rules 2013.
• Criminal appeals on the Certificate under Article 134A of the
High Court is governed by the rules of Order XX of the Supreme
Court Rules 2013.
• Original Civil Jurisdiction is regulated by the rules of Order XXV
to Order XXXVII of the Part III of the Supreme Court Rules
2013.
• WRIT jurisdiction under Article 32 is regulated by the rules of
Order XXXVIII of the Supreme Court Rules 2013.
• Review jurisdiction is governed by the rules framed under Order
XLVII of the Supreme Court Rules 2013.
From the above explanation, it is clear that provisions of CPC 1908 and
CrPC 1973 are not applicable to the proceedings in the Supreme Court
under the civil appellate or criminal appellate jurisdiction or the original
civil and WRIT jurisdiction.
The following provisions of the CPC 1908 and Cr PC 1973 are
applicable to the proceedings in the Supreme Court.
• Section 25 of CPC 1908 for transfer of any suit, appeal or other
proceedings from one High Court to Other High Court
• Section 406 of Cr PC 1973 from one High Court to another High
Court.
• The provisions of Order XXXII of the CPC 1908 shall apply
mutatis mutandis to appeal and other proceedings in the Supreme
Practice and Procedure

Court with respect to the proceedings under rules of Order VII of

the Supreme Court Rules 2013 (suit by or against minors or
person of unsound mind.)
• Section 139 of the CPC 190 regarding administration of oath to
the deponent.
• Order XXXIII of CPC 1908 is applicable in granting or refusing
the leave to appeal as an indigent person under Order XVIII
of the S.C.R. 2013.
• The provisions of Order XXII of CPC 1908 relating to abetment
shall apply mutatis mutandis to appeals and proceedings
before the Supreme Court.
Q. 11. (i) What are the powers of a learned Single Judge of the Supreme
Court under the Rules? (7 marks)
Answer
Power of single judge (Order VI of S.C.R. 2013)
(i) SLP arising out of grant, dismissal or rejection of bail application
or anticipatory bail application in the matters filed against the
orders passed under section 437, section 438 or section 439 of the
Cr. P.C. 1973 involving the offence punishable with sentence up
to seven years imprisonment.
(ii) Application for transfer of cases under section 406 of Cr. P.c.
1973.
(iii) Application of an urgent nature for transfer of cases under section
25 C.P.C. 1908.
(iv) Any other cat5egory of cases notified by the CJI from time to
time which mat be heard and disposed of finally by a judge
sitting singly.

(iii) An interlocutory application is filed in a matter required by

Article 145(3) to be heard and decided by a Bench of not less than
five Judges. Must such LA. be placed for orders before the Five
Judges Bench? Can an I. A. for interim relief be filed in a
Presidential reference under Article 143? Give reasons. (3 marks)
Answer: