APPEALS TO THE SUPREME COURT UNDER CPC

A project submitted in partial fulfilment of the course C.P.C, 5th

SEMESTER during the Academic Year 2018-2019

SUBMITTED BY:
KHUSHBU KUMARI
Roll No. – 1533
B.A LL.B

SUBMITTED TO:
Faculty Of C.P.C
DR. MITA MOHINI

SEPTEMBER, 2018
CHANAKYA NATIONAL LAW UNIVERSITY, NAYAYA NAGAR,

MITHAPUR, PATNA-800001

1
 DECLARATION BY THE CANDIDATE

I hereby declare that the work reported in the B.A. LL.B (Hons.) Project Report entitled

“Appeals to the Supreme Court under C.P.C” submitted at Chanakya National Law

University, Patna is an authentic record of my work carried out under the supervision Dr.

Mita Mohini. I have not submitted this work elsewhere for any other degree or diploma. I am

fully responsible for the contents of my Project Report.

(Signature of the Candidate)

KHUSHBU KUMARI

Chanakya National Law University, Patna

5/09/2018

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 ACKNOWLEDGEMENT

“IF YOU WANT TO WALK FAST GO ALONE

IF YOU WANT TO WALK FAR GO TOGETHER”

A project is a joint endeavour which is to be accomplished with utmost compassion, diligence

and with support of all. Gratitude is a noble response of one’s soul to kindness or help

generously rendered by another and its acknowledgement is the duty and joyance. I am

overwhelmed in all humbleness and gratefulness to acknowledge from the bottom of my

heart to all those who have helped me to put these ideas, well above the level of simplicity

and into something concrete effectively and moreover on time.

This project would not have been completed without combined effort of my revered C.P.C

teacher Dr. Mita Mohini whose support and guidance was the driving force to successfully

complete this project. I express my heartfelt gratitude to her. Thanks are also due to my

parents, family, siblings, my dear friends and all those who helped me in this project in any

way. Last but not the least; I would like to express my sincere gratitude to our C.P.C teacher

for providing us with such a golden opportunity to showcase our talents. It was truly an

endeavour which enabled me to embark on a journey which redefined my intelligentsia,

induced my mind to discover the various events and provisions which led to the development

of law in India.

Moreover, thanks to all those who helped me in any way be it words, presence?

Encouragement or blessings...

- Khushbu Kumari

- 5th, Semester

- BA LL.B

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 TABLE OF CONTENTS
Acknowledgement …………………………………………………..............………………………….3

Table Of Contents………………………………...………………….............…………………......... 4

Introduction……………………………………………...……………...............………………………5

Aims And Objectives……………………………………..…………….............……………....………6

Hypothesis……………………………………………………………………..............………………..6

Research Methodology…………………………………………………….............…………………..6

Contract Labour- Concept, Scope And Dimensions...................................................................9

Legal Protection To Contract Labour In India.........................................................................11

The Contract Labour (Regulation And Abolition) Act, 1970 ...................................................11

Objects Of The Act....................................................................................................................11

Applicability..........................................................................................................................................................12

Interpretation Of Definition Clauses......................................................................................................12

Authorities Under This Act..................................................................................................................................15

Registration Of Establishments And Licensing Of Contractors....................................................................17

Abolition Of Contract Labour..................................................................................................19

Welfare , Health And Penal Provisions.............................................................................................................20

Contract Labour And Judicial Intervention......................................................................................................22

Conclusion................................................................................................................................26

Bibliography.............................................................................................................................28

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 INTRODUCTION

When a decree is appealed to a superior court initially, it is called the first appeal and if the
same is appealed again, a second appeal lies to the High Court. But when a High Court passes
a decision against one party and against another, the judgement debtor may even appeal to the
Supreme Court. The provisions deals with the appeal to Supreme Court are provided under
Section 109 and Section 112 of the Code of Civil Procedure, 1908.

Section 109 and 112 are provides for the conditions where an appeal would lie to the
Supreme Court of India along with Order 45 Rule 3 which provides for the procedural part.
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.

Therefore it can be construed from above mentioned provision that no certificate can be
obtained in case of an interlocutory order. It was also decided that the test whether the order
is final or not will not depend on whether the controversy is finally over but whether the
controversy raised before the High Court is finally over or not.

The second prerequisite is that the case must involve a substantial question of law of general
importance. Since the term substantial question of law of great importance is not defined in
the Code, it must be construed from the circumstances of each case. It is decided that
substantial question of law must be such that apart from the parties to the litigation, the
general public should be interested in the determination of such question by the Supreme
Court as it would affect a large number of persons or a number of proceedings involving the
same question.1

1
Law Times Journal, Appeals to the Supreme Court ,( 5 August 2017)

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 AIMS AND OBJECTIVES

The aims and objectives of this project are:

1. To study about provisions of appeals under C.P.C.

2. To understand the procedure at hearing in Supreme Court.
3. To know about the jurisdiction of Supreme Court under C.P.C.

HYPOTHESES

The researcher considers the following hypotheses:

1. An appeal lies to Supreme Court only against a judgment, decree or final order of
High Court.
2. An appeal would lie to Supreme Court if the High Court certifies that the case
involves a substantial question of law of general importance.

RESEARCH METHODOLOGY

The researcher has adopted doctrinal method of research only.

SOURCES OF DATA

The researcher has used both primary and secondary sources of data.

PRIMARY SOURCES

1. Civil Procedure Code 1908

2. Case laws

SECONDARY SOURCES

Secondary sources include books, articles, magazines, journals, websites etc.

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 BOOKS

1. S.N Mishra , Labour and Industrial law (Central Law Publication, 28th Edition)
2. P.K Padhi , Labour and Industrial law ( Eastern Company Edition, 3rd Edition)
3. Sanjay Upadhyaya. Policy and Law on Contract Labour in India (New Delhi:
Thomson Reuters, 2013)

STYLE OF WRITING

The researcher has used both descriptive and analytical styles of writing.

MODE OF CITATION

The researcher has used a uniform mode of citation throughout this paper.

SCOPE AND LIMITATIONS OF THE STUDY

Though the researcher has tried her level best not to leave any stone unturned in doing this
project work to highlight various aspects relating to the topic, but the topic is so dynamic
field of law ,the researcher has sight with some of unavoidable limitations. The limitations
encountered by the researcher were the paucity of time.

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 CHAPTER-1

APPEAL PROVISIONS

An appeal in common legal usage denotes challenging an order passed by an inferior

authority or court. It is a creature of a statute. This means that unless the Act passed by the
Legislature under which an order is passed permits an appeal against the order passed by an
authority, no appeal can be filed.

The Civil Procedure Code governs the procedure that is to be followed in a typical civil
litigation. It is this 'Act' which bestows an appeal to a litigant against an order or a judgment
passed by a civil court. It is this Act which provides the first appeal under Sec.96 and second
appeal under Sec.100.

Appeal is made by the party who is aggrieved or unhappy by the decision of the Court.
Appeals are made to the Court superior to the one who has passed the original decision which
is appealed.2

First appeal is available to both the parties to a suit as a matter of right. It can be made on any
ground initiated in a suit; evidences not properly examined, witnesses not properly cross-
examined etc.

But, the second appeal can only be made only regarding ‘substantial question of law’. A
substantial question of law is one where the law is not clear or not clearly interpreted by the
inferior court, for which appeal is made to the higher court. As the words suggest, first appeal
is made first and after it second appeal can be made if allowed, as it is necessary that it should
involve substantial question of law.3

The primary difference between the first appeal and the second appeal is that a second appeal
is maintainable only on a 'substantial question of law' and a question of fact cannot be raised.

2
Ibid
3
http://shodhganga.inflibnet.ac.in/bitstream/10603/59725/11/11_chapter%206.pdf

8
APPEAL MAINTAINABLE4

a. Against a decree

b. Against preliminary decree

c. Against final decree

d. Rejection of plaint under Order 7 Rule 11 C.P.C.

e. Determination of any question within Section 144 (restitution)

f. Original decree passed ex-parte.

RIGHT OF APPEAL VESTED RIGHT

Right of appeal is vested right and accrues on the date on which first proceedings (suit,
application, objection etc.) are initiated. If the right of appeal is taken away or restricted
thereafter, it does not affect right of appeal in respect of pending proceedings, unless
expressly so expressed vide Videocon v. SEBI AIR 2015 SC 1042. However this principle
does not apply to revision.

4
Supra note 1.

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 CHAPTER-2

APPEAL TO THE SUPREME COURT UNDER C.P.C

When a decree is appealed to a superior court initially, it is called the first appeal and if the
same is appealed again, a second appeal lies to the High Court. But when a High Court passes
a decision against one party and against another, the judgement debtor may even appeal to the
Supreme Court. The provisions deals with the appeal to Supreme Court are provided under
the Constitution of India which is Article 132 to 133-A along with Section 109 and Section
112 of the Code of Civil Procedure, 1908.

Article 132 provides for the appellate jurisdiction of Supreme Court in appeals from High
Courts in cases where 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 the interpretation of this Constitution. It further provides that 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 declaring an issue which, if decided in
favour of the appellant, would be sufficient for the final disposal of the case.

The content of the Article 133 and Section 109 and 112 are similar which generally provides
for the conditions where an appeal would lie to the Supreme Court of India along with Order
45 Rule 3 which provides for the procedural part. 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.5

The bare language of Article 134-A provides that 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 may, if it
deems fit so to do, on its own motion; and 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,

5
Article 133

10
the question whether a certificate of the nature referred to in clause (1) of Article 132, or
clause (1) of Article 133 or, as the case may be, sub clause (c) of clause (1) of Article 134,
may be given in respect of that case.

Therefore it can be construed from above mentioned provision that no certificate can be
obtained in case of an interlocutory order. It was also decided that the test whether the order
is final or not will not depend on whether the controversy is finally over but whether the
controversy raised before the High Court is finally over or not.6

The second prerequisite is that the case must involve a substantial question of law of general
importance. Since the term substantial question of law of great importance is not defined in
the Code, it must be construed from the circumstances of each case. It is decided that
substantial question of law must be such that apart from the parties to the litigation, the
general public should be interested in the determination of such question by the Supreme
Court as it would affect a large number of persons or a number of proceedings involving the
same question.7

The third requisite construed from the Article 133 is that in the opinion of the High Court the
said question needs to be decided by the Supreme Court. This means that the fulfilment of the
condition that such is a substantial question of law of great importance is not sufficient to be
decided by the Supreme Court but in fact, the High Court must be of opinion that such
question needs to be decided by the Supreme Court. The word need therefore put a peculiar
emphasis on the necessity which is called for to decide that case appealed for.

The Article further provides that 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 and 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 Court8.

6
Union of India v. Gopal Singh ( 1976) 2 SCWR 639
7
Mahindra and Mahindra limited v. Union of India AIR 1979 Sc 798
8
Article 133

11
The procedure for Appeal to Supreme Court under Order 45 provides that a petition of leave
is to be made by the appellant from the court, the decision of which is appealed against. The
period of appeal to Supreme Court is sixty days from the decision given by such court. The
petition should also state the grounds which have been stated above and it is only after that
the court against whose decision an appeal is preferred gives notice to the other side that is
judgement creditor, in whose favour the case is decided and only then a certificate is given to
the judgement debtor to appeal before the Supreme Court.

Other procedural aspects involving furnishing of security and costs, etc which are mandatory
along with the procedure of admission by the court to scrutinise the certificate of appeal by
the subordinate court along with checking if the expenses are paid in stipulated time so that
such appeal may enter in records of the Supreme Court. Henceforth the provision, in general
sums up the provisions and procedure in regard to the Appeal to the Supreme Court.9

9
Supra note 7.

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 CHAPTER-3

PROCESS TO APPEAL

An appeal would lie to the Supreme Court under Section 109 of the Code Of Civil Procedure
only if the following questions are fulfilled:

(i)A judgment, decree or final order must have been passed by the High Court

(ii)A substantial question of law of general importance must have been involve in the case
and

(iii)In the opinion of the High Court, the said question needs to be decided by the Supreme
Court.

JUDGMENT, DECREE OR FINAL ORDER

An appeal lies to the Supreme Court only against a judgment, decree or final order of the
High court. A judgment, decree or final order against which an appeal can be preferred to the
Supreme Court must be one which purports to end to the litigation between the parties.10 No
certificate can be granted in respect of interlocutory order.11 The test whether the order is
final or not will depend on whether the controversy is finally over, but whether the
controversy raised before the High Court is finally over or not.12

Against decree, as defined under Section 2(2), regular First Appeal is provided under Section
96, C.P.C. Normally suit concludes by pronouncement of (final) judgment under Order 20
Rule 1. (Such judgment in view of its definition given under Section 2(10) means the
statement given by the Judge on the grounds of the decree.).

Thereafter, by virtue of Order 20 Rules 6 and 7 the decree shall be drawn which shall agree
and be in accordance with the judgment and shall be signed by the judge on being satisfied
about its correctness as such. The decree shall bear date, the day on which the judgment was
pronounced (even though its preparation and drawing up may take some time, within 15 days
as per Order 20 Rule 6-A).

10
Jethanand Sons V. State of U.P., AIR 1961 SC 794
11
Syedna Taher Saifuddin V. State of Bombay, AIR 1958 SC 253
12
Ramesh V. Gendalal Motilal Patni, AIR 1966 SC 1445

13
The main ingredient of the decree is operative portion of the judgment. According to Order
20 Rule 6 decree shall contain particulars of the claim and shall specify clearly the relief
granted or other determination of the suit. Amount of costs are also to be stated therein.
(Rules 6, 6-A and 7 of order 20 quoted at the end)

APPEAL AGAINST PRELIMINARY AND FINAL DECREES:

In certain suits, two decrees are passed, one is preliminary and the other is final, like
partition suit, in which, in the preliminary decree shares of the parties are determined and in
final decree actual partition is done by metes and bounds. Appeal is provided against both the
decrees i.e. preliminary as well as final. However, if against the preliminary decree appeal is
not filed then its correctness cannot be questioned in an appeal which is preferred against
final decree as provided under Section 97 C.P.C.

SUBSTANTIAL QUESTION OF LAW OF GENERAL IMPORTANCE

An appeal would lie to the Supreme Court if the High Court certifies that the case involves a
substantial question of law of general importance. The expression substantial question of law
of general importance has not been defined in the Code, but it is clear that High Court can
grant certificate under section 109 only when it is satisfied that the question of law must be
such that , part from the parties to the litigation, the general rule should be interested in the
determination of such question by the Supreme Court. It would affect a large number of
persons or a number of proceeding involving in the same questions.13 Therefore, if the
question is settled by the Supreme Court , the application of the principle to the facts of the
particular case does not make the question a substantial question of law of general
importance.14

NEED TO BE DECIDED BY THE SUPREME COURT

It is not sufficient that the case involve the substantial questions of law of the general
importance. But, in addition to it , the High Court must be of the opinion that such question
needs to be decided by the Supreme Court.

13
Chunnilal V. Mehta and Sons Ltd. , AIR 1962 SC 1314
14
Ibid.

14
The word need suggest that there has to be necessity for a decision by the Supreme Court on
the question, and such necessity can be said to be exist when, for instance, two views are
possible regarding the question and the High Court takes on view of the said views. Such
necessity can also be said to the exist when a different view has been expressed by another
High Court.15

15
SBI v. N. Sundara Money , (1979) 2 SCC 529

15
 CHAPTER-4

PROCEDURE AT HEARING

1 .APPLICATION FOR LEAVE AND CERTIFICATE OF FITNESS

Whoever desire to appeal to the Supreme Court shall apply by the petition to the court whose
decree is sought to be appealed from .16 Ordinarily such a petition should be decide within the
sixty days from the date of filing of the petition. 17 Every petition should state the ground and
pray for the issue of the certificate

That the case involves the substantial question of law of general importance

That the opinion of the court the said question needs to be decided by the Supreme Court.18
After notice to the other side, the may grant or refuse to grant the certificate.19

2. EFFECT OF THE AMENDMENT IN CONSTITUTION

By the Constitution Act, 1978, Article 134-A has been inserted with the effect from from 1
August 1979. It states that every High Court , passing or making a judgment, decree or final
order or sentence referred to in Art.132(i) or 133(i) or 134(i), may, it deems to do so, either
suo moto or shall, if an oral application is made, by or in behalf of the part aggrieved,
immediately after the passing or making the such judgment, decree or final order or sentence,
determine whether a certificate may be given or not.20

The effect of the amendment is that if an aggrieved party wants to the approach to the
Supreme Court under Art. 132,133 or 134 after getting certificate from the High Court, he
will have to make a oral application immediately after the pronouncement of the judgment,
and if such an application not made immediately, by taking resort to Art. 133(b) of the
Limitation Act, 1963, he may not able to approach to the Supreme Court . The reason is that
the source of power is Art.132 , 133 or 134 read with the Art.134-A , and if the application is

16
Or. 45 R.2 (1)
17
R. 2(2)
18
R.3.
19
Rr. 3(2), 6, 7.
20
SBI v. Employees’ Union (1987) 4 SCC 370

16
not made as per the provision of the Constitution, the procedural law can not override the
substantive law and such an application even it is filled within the period of the sixty days
from the date of the judgment , order etc. As per the Art.133( b) of the Limitation Act is not
maintainable at law.

3. SECURITY AND DEPOSIT: RULE 7, 9& 12

When certificate is granted, the applicant should furnish security for the costs of the
respondents and also deposits the expenses translating, printing, indexing, etc. within the
stipulated period. The Court may revoke the acceptance of security. The court has also power
to the refund the balance of the deposit after necessary deduction for expenses.21

4. ADMISSION OF APPEAL: RULE 8

Where the direction regarding the furnishing of the security and making of the deposit are
carry out, the court shall declare the appeal admitted, give notice thereof to the respondent
and transmit the record to the Supreme Court.22 If the security furnished or the cost deposit
appears to be inadequate, the court may order furnish security to furnished or the cost to be
deposited.23 If the appellant fails to comply with the such order the proceeding shall be stayed
and appeal shall not to be proceed without an order of the Supreme Court.24 The execution of
decree shall not stayed meanwhile.25

5. POWERS OF COURT PENDING APPEAL

The pendency of appeal to the Supreme Court does not affect the decree-holder to execute the
decree unless the court otherwise directs.26 The court may stay execution after taking

21
Rr. 7, 9, 12
22
R. 8 , See also, Shiv Jute Baling Ltd. V. Hindley Co., AIR 1955 SC 464(1955) 2 SCR 243.
23
Rr. 10 , 14 .
24
R.11
25
R. 13(1). Deochand v. Shiv Ram . AIR 1965 SC 615
26
Rr. 7, 9, 12.

17
sufficient security from the appellate or it may allow the decree to be executed after taking
sufficient security from the respondent.27

6. EXECUTION OF ORDERS OF THE SUPREME COURT: RULE 15-16

The appeal will then heard by the Supreme Court and the order will be made. Whoever desire
to execute a decree or an order of the Supreme Court shall apply by a petition and
accompanied by a copy of decree or order sought to be executed to the court from which the
appeal was preferred to the Supreme Court. Such court may transmit the record of the
Supreme Court to the Trial Court or such court as the Supreme court may direct, with the
necessary direction for the execution of the same. The court to which it is transmitted shall
execute in the same manner as executes its own decrees or orders.28 The order relating to the
such execution shall be appealable in the same manner as the orders relating to the execution
of its own decree.29

27
R.13(2). Deochand v. Shiv Ram . AIR 1965 SC 615
28
R.15
29
R.16

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 CHAPTER-5

CONCLUSION

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 BIBLIOGRAPHY

BOOKS:

1. S.N Mishra , Labour and Industrial law (Central Law Publication, 28th Edition)
2. P.K Padhi , Labour and Industrial law ( Eastern Company Edition, 3rd Edition)
3. Sanjay Upadhyaya. Policy and Law on Contract Labour in India (New Delhi:
Thomson Reuters, 2013)

20