“An appeal shall lie in the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court where the case involves a substantial question of law of general importance.” Discuss.

Question: “An appeal shall lie in the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court where the case involves a substantial question of law of general importance.” Discuss.

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Answer

Appeals to the Supreme Court are governed by the provisions of Articles 132, 133, and 134-A of the Constitution of India with regard to civil matters. Subject to the provisions of the Constitution, an appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court if the High Court certifies that

1. The case involves a substantial question of law of general importance; and
2. In the opinion of the High Court the said question needs to be decided by the Supreme Court.

Sections 109 and 112 read with Order 45 deal with appeals to the Supreme Court.

Conditions: Section 109

An appeal would lie to the Supreme Court under Section 109 of the Code only if the following conditions are fulfilled

1. A judgment, decree, or final order must have been passed High Court;
2. A substantial question of law of general importance must have been involved in the case; and
3. In the opinion of the High Court, the said question needs to be decided by the Supreme Court.

i. 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 referred to the Supreme Court must be one that purports to put an end to the litigation between the parties. No certificate can be granted in respect of an interlocutory order. 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.

ii. 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 the High Court can grant a certificate under Section 109 only when it is satisfied that the question of law involved in the case is not only substantial but also of general importance.

In other words, the 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, e.g., it would affect a large number of persons or a number of proceedings involving the same question. Therefore, if the question is settled by the Supreme Court, the application of the principle to the facts of a particular case does not make the question a substantial question of law of general importance.

iii. Need to be decided by Supreme Court

It is not sufficient that the case involves a substantial question of law of 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.

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

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