M/S. S.B. MINERALSversusM/S. MSPL LIMITED

                    [2009] 15 (ADDL.) S.C.R. 1102


A                      MIS. S.B. MINERALS
                                  v.                                         ~

                        M/S. MSPL LIMITED
          (Special leave Petition (Civil) No. 29213 of 2009)
                         NOVEMBER 23, 2009
B
     [R.V. RAVEENDRAN AND K.5. RADHAKRISHNAN, JJ.]

         Code of Civil Procedure, 1908:
         s. 100(5) - Second appeal - High Court formulating                  ...
    substantial questions of law and admitting the appeal for
c   admission - Order challenged under Article 136 of the
    Constitution, contending that the case did not involve any
    substantial law and second appeal ought not to have been
    admitted - HELD: s.100(5) provides that redpondent, at the
    hearing of second appeal, can argue that the o'ase does not
D   involve such questions - Thus the substantial questions of law
    formulated by High Court are not final, and it is open to the
    respondent in second 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 -
    Petition for special leave to appeal dismissed - Constitution
E   of India, 1950 - Article 136.
         Constitution of India, 1950:
       Article 136 - Petition for special leave to appeal
  challenging order of High Court admitting a second appeal -
F Maintainability of- HELD: An order admitting a second appeal           ~
  is neither a final order nor an interlocutory/interim order- It does
  not amount to ajudgment, decree, determination, sentence or
  even "order" in the traditional sense - It does not decide any
  issue but merely entertains an appeal for hearing - Scope of
  Article 136 and /imitation upon discretionary power of Court
G thereunder - Explained - The instant case falls under the
  category of exclusion ofjurisdiction but does not fall under the
  exception to the exclusion - Court expressed its concern on
  increase in number of such special leave petitions against such
  'non-orders' referred to as orders - Code of Civil Procedure,
H                                  1102
                        S.S. MINERALS v. MSPL LIMITED                    1103

     ..._    1908 - s. 100 - Judgments/Orders - Practice and Procedure           A
             - Filing of petitions for special leave to appeal.
                  CIVIL APPELLATE JURISDICTION: SLP (Civil) No. 29213
             of 2009.
                  From the Judgment & Order dated 08.10.2009 of the High
             Court of Karnataka, Circuit Bench at Dharwad in RS.A No. 5418       B
             of 2009.
                  Mukul Rohtagi, S.K. Kulkarni, M. Gireesh Kumar, Ankur S.
     "       Kulkarni, for the Petitioner.
                  K.K. Venugopal, Krishnan Venugopal, Udai Tiwary, A.
             Raghunath, for the Respondent.
                                                                                 c
                  The Order of the Court was delivered by
 ,                                        ORDER
 .
 '
                  R.V. RAVEENDRAN, J. 1. The respondent filed a suit for
             declaration and injunction against the petitioner. The suit was D
     ,i
             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 , E
             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
         i   against the ·order' of admission of the second appeal. The
 ~


             petitioner contends that the case did not involve any substantial   F
             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 ' G
             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 i.n the pending appeal)
             to demonstrate during hearing that no substantial question of law H
    1104 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.


A   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
8   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
c   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
D   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
E orders which do not decide any issue. Orders admitting a
    petition/appeal/revision, or orders issuing notice to show cause
    why 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       i.,
F
    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'
G referred to as orders.
        8. The special leave petition is dismissed.
    R.P.                          Special Leave Petition dismissed.