How to Protect Trans Border Reputation Trademark In India

How to Protect Trans Border Reputation Trademark In India

A trademark is a visual symbol applied to an article with a view to indicating the trade source from which it comes. It can be a word, device, label, name, letter, numeral, brand, heading or colors. The purpose of the trademark is to distinguish goods or services of one origin from those of the others. It advertises the product and creates an image for it. As the trademark creates a separate identity for a product, it should be protected from infringement and passing off.

A trademark is a company’s identity in the market, an identity which they bank upon, an identity to which a customer connects, an identity which not only creates a relationship with the customers but also creates a platform of the market for that company.

Transborder reputation is basically similar to reputation only but just the fact that the presence of that company is Pan world or Global. When we talk about trans border reputation the important aspect to look out for is the fact that a name, brand and its presence is not merely confined to one place but can be omnipresent.

Transborder reputation is provided in Section 35 of the Indian Trade Mark Act, 1999 and offers protection to foreign trademarks on the basis of their international reputation.

SECTION 134 (C): For passing off arising out of the use by the defendant of any trademark which is identical with or deceptively similar to the plaintiff’s trademark, whether registered or unregistered.

In addition to Section 134 (c), Section 27(2) of trademarks act 1999, expressly provides for an action of passing off if:

1. The trademarks are similar.

2. The defendant is deceptively passing off its goods as those of the plaintiff.

3. There is bound to be confusion in the minds of the customers.

The test to be applied for checking if the confusion is persisting is ‘whether a person of average intelligence and of imperfect recollection would be confused or not’.

 JUDICIAL PRECEDENTS:

  1. The Supreme Court in Ruston & Hornby Ltd. v. Zamindara Engineering Co. 1970 2 SCR 222, held that “there does not seem to be any requirement that the plaintiff must carry on business in India before bringing an action for passing off for he can prove that he has otherwise acquired reputation in the country.”
  2. In R. Dongre v. Whirlpool Corporation 1996 PTC (16) 583 (SC), the doctrine of “transborder reputation” was considered in detail for the first time. It was held that “In today’s world it cannot be said a product and the trademark under which it is sold abroad, does not have a reputation or goodwill in countries where it is not available. The knowledge and awareness of it and its critical evaluation and appraisal travels beyond the confines of the geographical area in which it is old.
  3. The Supreme Court held in Milment Oftho Industries v Allergan Inc (2004 (28) PTC 585) that the first entrant in the market has the right in the mark; the court even considered the word ‘market’ to extend to the global market.
  4. In WWE v Reshma Collection (October 15, 2014) the Delhi High Court held for the first time in India that due to advancements in technology and the changing ways of conducting business online, it is possible for an entity to have a virtual presence in a place some distance from its physical presence. The availability of website transactions is virtually the same thing as the seller having shops in that place in the physical world.
  5. At the same time, the courts have taken the view that merely filing an application for registration or a registration per se(if granted in India) does not prove used, as observed in Marico v Agrotech (2010 (43) PTC 39 (Del)). Using a later mark and taking unfair advantage of an earlier mark give statutory recognition to the concept of trademark dilution.

5 Easy Ways You Can Defend Transfer Petition (100% Must read)

lawyer to defend transfer petition in india delhi

When wife files the transfer petition in Supreme Court usually husband is defenceless, although husband receives the summons from the Supreme Court if the transfer is from one state to another, here are some of the judgments which can help

In Gayatri Mohapatra v. Ashit Kumar Panda : (2003)11SCC731 , the Supreme Court has found that the wife is a Director in a Company run by her mother travelled from place to place and could not be permitted to state that she was incapable of travel as a ground to seek transfer of the husband’s caseIn Teena Chhabra v. Manish Chhabra (2004) 13 SCC 411, the Supreme Court accepted the husband’s offer to bear the expenses for the travel, boarding and lodging of the wife and dismissed her transfer petition on the ground that she had no source of income to travel.

In M. Sivagami v. R. Raja : (2005) 12 SCC 301, the Supreme Court disallowed the wife’s transfer application based on monetary grounds directing the husband to pay her litigation costs and also to cover her costs and expenses and those of her witnesses.

In Kanagalakshmi v. A. Venkatesan : (2004) 13 SCC 405, the Supreme Court again accepted the plea of the husband that he would bear the expenses not only for the wife but also her companion for their travel and stay at the place where the case was pending and accordingly dismissed her transfer petition. The same principle was reiterated in Priyanka Batra v. Manish Batra (2005) 12 SCC 236; Kakali Pal v. Balai Chandra Pal (2005) 12 SCC 216; Anuradha Dutta v. Subash Chandra Dutta (2004) 13 SCC 694; Sarita Singh Alias Babli Baghel v. A.P. Baghel (2005) 12 SCC 376; Kamudi Aurora v. Surinder Pal Singh Aurora (2004) 13 SCC 634 and Gargi Konar v. Jagjeet Singh (2005) 11 SCC 446. In Preeti Sharma v. Manjit Sharma (2005) 11 SCC 535, the Supreme Court observed that merely because the petitioner was a lady it did not mean that she could not travel to another place and that, at the highest, she could be paid expenses for her travel and stay. In Premlata Singh and Ors. v. Rita Singh : (2005) 12 SCC 277, the Supreme Court directed the transfer of the case taking into account the fact that the wife was undergoing treatment for kidney failure. In Usha George v. Koshy George : (2000) 10SCC95, the Supreme Court has found that a number of hearings had already taken place held that it was not proper to transfer the proceedings to any other Court.

In Anindita Das v. Srijit Das : (2006) 9 SCC 197, the Supreme Court found that leniency to ladies shown by the Court in transfer matters was being often misused and taken advantage of by women. Stating so, the Court observed that it was required to consider each petition on its merit. On the facts of that case, the Court found that the grandparents were available to look after the six-year-old child and taking note of the husband’s offer to bear the expenses for the wife’s travel and stay along with her companion, rejected her transfer application based on those grounds.

In Eluri Raji Reddy and Ors. v. State of Delhi and Anr. : (2004) CriLJ2555, the Supreme Court found that as the wife had a house in Andhra Pradesh and her parents were living there it would be proper to transfer the cases filed by her at Delhi to a Court in Andhra Pradesh as sought by her husband.

In Neelam Bhatia v. Satbir Singh Bhatia : (2004) 13 SCC 436 the Supreme Court taking note of the fact that the case had progressed to the stage of trial disallowed the wife’s transfer application, directing the husband to bear the travel and incidental expenses of the wife and her companion.

In Meenakshi v. Mukesh Kumar : (2004) 13 SCC 497, the Supreme Court accepted the statement made by the husband with regard to the safety and security of the wife and that he would bear her conveyance charges and disallowed the wife’s transfer application. From an overview of the aforestated Judgments, it is clear that there is no hard and fast rule that can be applied in cases of this nature. Each case would ultimately turn on its own special facts and circumstances and must be dealt with accordingly.

Read Also:-Transfer petition in favour of the wife

In this regard, reference may be made to the Judgment of the Supreme Court in Kulwinder Kaur v. Kandi Friends Education Trust: AIR2008SC1333. The Supreme Court, while dealing with the power of the Court to transfer suits, appeals or other proceedings under Sections 24 and 25 of the Code, observed that the discretionary power of transfer of cases cannot be imprisoned within a straitjacket of any cast-iron formula unanimously applicable to all situations and that it cannot be gainsaid that the power to transfer a case must be exercised with due care, caution, and circumspection. The Court indicated certain broad propositions as to what may constitute a ground for transfer. These are balance of convenience or inconvenience to the plaintiff or the defendant or witnesses; convenience or inconvenience of a particular place of trial having regard to the nature of evidence on the points involved in the suit; issues raised by the parties; reasonable apprehension in the mind of the litigant that he might not get justice in the court in which the suit is pending; important questions of law involved or a considerable section of public interested in the litigation; ‘interest of justice’ demanding for transfer of suit, appeal or other proceeding. The Court stated that the above was only illustrative and were not to be treated as exhaustive. The Supreme Court also observed that normally while making an order of transfer, the Court may not enter into the merits of the matter as it may affect the final outcome of the proceedings or cause prejudice to one or the other side but at the same time an order of transfer must reflect application of mind by the court and the circumstances which weighed with it in taking the action.

Typical Transfer petition Grounds Taken By Wife Are Below:-

o    Having a child o    Travel is unsafe being a lady o    Expenses required for travel o    A threat to life at Husband’s place o    Husband is very influential in his place o    Inconvenience to travel a long distance Counters for the above Transfer petition Grounds

 COUNTER OF POINT 1:

  • One of the parents of the wife can look after the child and another can accompany her. Some of the precedences where this court has taken a similar stand are listed below. (TP (CIVIL) NO.191 OF 2005, TP (CIVIL) NO. 27 OF 2005)

COUNTER OF POINT 2

  • Just because she is a lady does not mean that she cannot travel a distance of just 8 hours. Supreme court also accepted this fact recently while disposing of the “TP (CIVIL) NOS.117-118 OF 2004” while passing the following order.

“The grounds made out are that the Petitioner is an unemployed lady and totally dependent on her uncle and that she will be hard-pressed to defend the Suit at Muzaffar Nagar. It is also claimed that there is a Petition for restitution of conjugal rights and certain other proceedings pending in Delhi. In our view, no substantial ground for transfer has been made out. If the Petitioner wishes that all cases be tried at one place, she may apply for the same and we will transfer the cases pending in Delhi to Muzaffar Nagar. Merely because the Petitioner is a lady does not mean she cannot travel to Muzaffar Nagar. At the highest, she can be paid expenses for travel and stay. We, therefore, direct that the Respondent shall pay to the Respondent and a companion travel and stay expenses on every occasion that the Petitioner is required to go to Muzaffar Nagar. The Court at Muzaffar Nagar shall ensure that such payment is made to the Petitioner on every occasion. With these directions, the Transfer Petitions are dismissed.” Just because she is a lady does not mean that she cannot travel a distance of just 8 hours. The respondent wants to bring to the kind attention of the honourable court that in general ladies are misusing the leniency shown by this honourable court in regard to the transfer petition. Supreme court also accepted this fact recently while disposing of the “TP (CIVIL) NO.191 OF 2005” while passing the following order. “Even otherwise, it must be seen that at one stage this Court was showing leniency to ladies. But since then it has been found that a large number of transfer petitions are filed by women taking advantage of the leniency taken by this Court. On an average at least 10 to 15 transfer petitions are on Board of each Court on each admission day. It is, therefore, clear that leniency of this Court is being misused by the women. This Court is now required to consider each petition on its merit. In this case, the ground taken by the wife is that she has a small child and that there is nobody to keep her child. The child, in this case, is six years old and there are grandparents available to look after the child. The Respondent is willing to pay all expenses for travel and stay for the Petitioner and her companion for every visit when the Petitioner is required to attend the Court at Delhi. Thus, the ground that the Petitioner has no source of income is adequately met. Except for stating that her health is not good, no particulars are given. On the ground that she is not able to come to Delhi to attend the Court on a particular date, she can always apply for the exemption and her application will undoubtedly be considered on its merit. Hence, no ground for transfer has been made out. Accordingly, we dismiss the Transfer Petition. We, however, direct that the Respondent shall pay all travel and stay expenses of the Petitioner and her companion for each and every occasion when she is required to attend the Court at Delhi”.

COUNTER OF POINT 3:

  • Ready to pay all expenses but mention that this will be paid on actual. Husband is willing to pay reasonable expenses to wife whenever she is required to travel for these cases. Some of the precedences where the Supreme Court has taken a similar stand is listed below. (TP (CIVIL) NO.191 OF 2005, TP (CIVIL) NO. 23 OF 2005, TP(C) No. 24/2005, TP (CIVIL) NO. 27 OF 2005, TP(C) No. 61/2005, TP (Civil) No.66 of 2003, TP (Civil) No.136 of 2003, TP (CIVIL.) NO(s). 212 OF 2006, TP (CIVIL.) NO(s). 142 OF 2005, TP (CIVIL) NOS.117-118 OF 2004, TP NO..416 OF 2004, T.P.(C) No. 489 OF 2004, TP (CIVIL.) NO(s). 561 OF 2004, TP (CIVIL.) NO(s). 191 OF 2005, TP(C) NO.195 OF 2005, TP (CIVIL) NO.243 OF 2005, TP (CIVIL.) NO(s). 245 OF 2005, TP(C) NO.246 OF 2005, TP (CIVIL.) NO(s). 302 OF 2005, TP NO.393 OF 2005, TP (C) NO. 414/2005, TP (CIVIL) NO.459 OF 2005, TP (C) NO. 564 OF 2005, TP (C) NO. 686 OF 2005, TP (CIVIL.) NO(s). 698 OF 2005, TP (CIVIL.) NO(s). 722 OF 2005, TP (CIVIL) NO.725 OF 2005, TP (CIVIL.) NO(s). 741 OF 2005, TP (CIVIL.) NO(s). 743 OF 2005, TP (CIVIL.) NO(s). 746 OF 2005, TP (CIVIL.) NO(s). 759 OF 2005, TP (CIVIL.) NO(s). 769 OF 2005, TP (C) NO. 798 OF 2005).

COUNTER OF POINT 4:

  • You have to mention that you too face a threat at her place. You need to argue that in that case should be transferred to a neutral place where both husband and wife can fight the legal battle peacefully. There is a judgment on this. Will be provided on request. Please note that in this case, you have to give her travel and stay expenses. But this should be a last-ditch effort. You should not mention this point of the neutral place in the petition. In case your lawyer feels that the judge may transfer the petition then only this method should be used.

COUNTER OF POINT 5:

  • You have to mention that the wife’s family is also influential in their place. You need to argue that in that case it should be transferred to a neutral place where both husband and wife can fight the legal battle peacefully. There is a judgment on this. Will be provided on request. Please note that in this case, you have to give her travel and stay expenses. But this should be a last-ditch effort. You should not mention this point of the neutral place in the petition. In case your lawyer feels that the judge may transfer the petition then only this method should be used.

COUNTER OF POINT 6:

  • The distance between place A and B are not so far that it will cause inconvenience to wife. Some of the precedences where this court has taken a similar stand are listed below. (TP (CIVIL) NO.191 OF 2005, TP (CIVIL) NO. 23 OF 2005, TP (C) No. 61/2005, TP (Civil) No.66 of 2003, TP (CIVIL.) NO(s). 142 OF 2005, TP (CIVIL) NOS.117-118 of 2004).

Contact us:- Kapil chandna- Best lawyer in Delhi High court 9899011450

Counter Case Quash Ground for Divorce Against False Section 498A Complaint

Counter Case Quash Ground for Divorce Against False Section 498A Complaint

498 A deals with Matrimonial Cruelty. The objective of this section is to punish the Husband and Relatives of Husband who harasses and torture the wife to coerce her or her relatives to satisfy the unlawful demands of dowry.

498 A Reads under I.P.C.

Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be pun­ished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.

For the purpose of this section, “cruelty” means—

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

Misuse of Section 498 A I.P.C.

Nowadays, a woman uses this safeguard to harass and torture their husband and his relatives. Woman files a false case on her husband and his relatives or used to blackmail them to fulfill their demands.

498 A is a cognizable, non-bailable and non-compoundable offense.

Remedies

As the offense is non-compoundable, only quashing may be the remedy after filing F.I.R. but there are certain conditions that need to be fulfilled for quashing.

Quashing can be done by the discretion of Hon’ble High Court under section 482 Cr.P.C.

Section 482 Cr.P.C. is the inherent power of the High Court with respect to criminal proceedings and is reproduced below-

482. “Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.”

COURT: Punjab-Haryana High Court

BENCH: S K Mittalustice Dr. Arijit Pasayat & D.K.

Raj Kumar And Anr. Vs The State Of Punjab And Anr. on 21 March 2007

LAW POINT

In the matrimonial disputes to implicate all the family members, even sometimes the remote relations, on the vague allegations

COURT: Bombay High Court

BENCH   : P Brahma

Shamrao vs State Of Maharashtra on 24 March 2004

LAW POINT

Mere harassment by itself is not cruelty. Mere demand for property, etc. by itself is also not cruelty. It is only when the harassment is shown to have been committed for the purpose of coercing a woman to meet the demands, is cruelty and this is made punishable under the section. In other words, it is not every harassment or every type of cruelty that would attract provisions of section 498 A of Indian Penal Code.

COURT: Supreme Court Of India

BENCH: Justice Altamas Kabir, A.K. Patnaik

Sunita Jha vs State Of Jharkhand & Anr on 13 September 2010

LAW POINT

Court categorically held that neither a girlfriend nor a concubine is a relative of the husband within the meaning of section

498 A IPC, since they were not connected by blood or marriage to the husband.

Kapil Chandna Advocate

Supreme Court of India

9899011450, 9911218741

A Remedy For Delayed Justice : Fundamental Right to Speedy Trials In India

A Remedy For Delayed Justice -Fundamental Right to Speedy Trials In India

The right to a speedy trial is a human right under which it is asserted that a government prosecutor may not delay the trial of a criminal suspect arbitrarily and indefinitely. Otherwise, the power to impose such delays would effectively allow prosecutors to send anyone to jail for an arbitrary length of time without trial.

Although it is important for the protection of speedy trial rights that there be a court in which a defendant may complain about the unreasonable delay of the trial, it is also important that nations implement structures that avoid the delay.

‘Speedy Trial’ is a fundamental right guaranteed under article 21 of the Constitution to the accused of early disposal of cases. The constitutional guarantee of speedy trails is an important safeguard to prevent undue and oppressive incarceration to trial; to minimise concern accompanying public accusation and to limit the possibilities that long delays will impair the ability of an accused to defend himself.

There are various factors which contribute to delay in trials and results in the pendency of cases; they are:

  1. Court system delay which accounts for the period of entering the cause till it’s taken up for trial.
  2. Delay due to the professional courtesy of lawyers towards each other and lawyer’s vis-a-vis the court.

In Hussainara Khatoon v. State of Bihar of 1980, Speedy trial was recognized as a Fundamental right under article 21.  In the case of Katar Singh v. the State Of Punjab, it was held that Right to speedy trial is an essential part of fundamental right to life and liberty. Also in the case of Sheela Barse v. Union Of India, The Supreme court reaffirmed that Speedy trial is a fundamental right.

  • How long does it take for a person to go to a normal trial in India?

The preliminary hearing phase of the trial usually takes place 5-6 days after an arraignment. In case of a misdemeanour charge, the next phase of the trial is the motions and hearing phase. This usually takes 3-4 months to occur but can last as long as 2years!

  • In how many days a  speedy trial be winded up?

In many jurisdictions, the prosecution generally has 60-120  days to bring an imprisoned defendant to trial unless the defendant waives the right to a speedy trial. The time period is generally longer for a defendant out of custody.

At the same time, it cannot be denied that cases are delayed in the interest of the defendant,  its rightly said that delay is known as a defence tactic. To effectively implement this right of the speedy trial the approach to be adopted by the judiciary should be a practical one instead of a pedantic one.

  • At which stage speedy Trial can be initiated in a proceeding?

As held in the case of A.R.Antulay vs. R.S. Nayak Speedy trial can be demanded all the stages which include Investigation, Inquiry, trial, appeal, revision an retrial.

The speedy trial has to be observed at every stage till last breath of an accused and shall be extended to the disposal of Mercy petition under article 72; as declared in the case of Triveniben v. the State of Gujarat by the Gujarat High court.

 

  • What is the procedure to apply for speedy trials?

Speedy trials can be applied by filing a petition under section 482 of the Criminal procedure code for getting direction from the High Court to the lower court for Speedy disposal of the case and you can direct the lower by through high court for disposal in a specific period of time.

Delay in trial unnecessarily confers a right upon the accused to apply for bail. Under section 482 read with 483 Cr.P.c. lays that every possible measure to be taken to dispose of the case within 6 months from today.

An accused or a defendant can apply for speedy trials in the Hon’ble High Court or the Supreme Court by filing a writ petition under article   226 and article 32 of the Constitution respectively.

  • Quashing of the pending cases.

In Abdul Rehman vs.R.S. Nayak the SC observed that the ultimately it’s the courts whether Right to a speedy trial has to be denied or not.  Every time proceedings cannot be quashed as it might not be in the interest of the society.

Moreover, in the case of Arun Kumar Ghosh v. the State of Bengal, it was held that mental torture and anxiety suffered by an accused of a long time be treated as a punishment inflicted on him.

Also in the landmark judgement of Vakil Prasad Singh vs. State of Bihar Supreme Court had held that unjustified delay in the prosecution amounts to the violation of a fundamental right of an accused.

Conclusion

Speedy trials make the Judiciary more efficient and trustworthy having its main towards inculcating justice in the society at the earliest..!!  As held in Hussainnara v. Home Secretary that speedy trial is the essence of the criminal justice and there can be no doubt that delay in the trial itself constitutes a denial of justice.

A legal maxim which says “JUSTICE DELAYED IS JUSTICE DENIED” can be corrected only by the way of speedy trials and get your cases disposed of earlier!!

How to File Special Leave Petition In Supreme Court||Special Leave Petition Meaning

File Special leave petition meaning of special leave petiton

Special Leave Petition Meaning?

Special Leave petition (SLP) means that an individual takes special permission to be heard in appeal against any high court/tribunal verdict.

Thus it is not an appeal but a petition filed for an appeal.

So after an SLP is filed, the Supreme Court may hear the matter and if it deems fit, it may grant the ‘leave’ and convert that petition into an ‘appeal’.

SLP shall then become an Appeal and the Court will hear the matter and pass a judgment.

Where is the provision mentioned for a Special Leave Petition?

Under Article 136, the Constitution of India gives power to the Supreme Court to grant special permission or leave to an aggrieved party to appeal against an order or judgement or decree passed in any of the lower courts or tribunals in India.

In Which Circumstances Special Leave Petition Can be Filed?

  • It can be filed against any judgment or decree or order of any high court /tribunal in the territory of India, or
  • It can be filed in case a high court refuses to grant the certificate of fitness for appeal to the Supreme Court of India.

In which circumstances can an SLP be entertained?

The Honorable Supreme Court accepts SLP in those cases where there is a question of law iinvolved not a question of fact. Moreover, if it is a question of fact then there should be an emergence of fact which is pivotal in the case and could not be discovered without due diligence and the petitioner feels that the high court has not applied the law with due care and caution.

The case of Pritam Singh v. State, (AIR 1950 SC 169:1950 SCR 453) has had a huge importance in understanding the SLP.

This was an appeal by special leave from a judgment and order of the High Court of Judicature for the Province of East Punjab at Simla dated the 23rd November, 1949, in Criminal Appeal No. 367 of 1949 upholding the conviction of the appellant on a charge of murder and confirming a sentence of death passed on him by the Sessions Judge of Ferozepore. On appeal, the Punjab High Court dismissed the appeal and upheld the sentence. The counsel for the special leave pleaded that once an appeal had been admitted by special leave, the entire case was at large and the appellant had the freedom to contest all the findings of the High Court or the trial Court.

The SC found this totally unwarranted. The SC actually explained how the discretionary powers will be exercised in granting special leave to appeal. This has actually gone on to define SLP. The appeal was subsequently dismissed.

In normal circumstances, the SC does not interfere with an order of acquittal by the High Court as has been exemplified in the case of State of AP v the P Anjaneyulu (AIR 1982, SC 1184).

In exceptional situation only, the SC allows an appellant to raise fresh pleas under special leave. As, in the case of CCE v National Tobacco Co of India Ltd. (AIR 1972 SC 2563), where the authority does not have any jurisdiction under the rules to issue the impugned notice the SC allowed a special leave. However, a new plea requiring investigations of facts is not generally permitted at this level. Once again, in a situation, where an interpretation of a statute is the basis of a new plea, leave petition may be permitted. In the case of Laxmi & Co. v Anand R Deshpande, (AIR 1973, SC 171), it was held that “the court takes notice of subsequent events while hearing appeals under Article 136 to shorten litigation, to preserve the rights of both the parties and to subserve the ends of justice”.

TIME LIMIT TO FILE SLP

  • It can be filed against any judgment of a high court within 90 days from the date of judgment, or
  • It can be filed within 60 days against the order of a high court refusing to grant the certificate of fitness for appeal to Supreme Court.

WHO CAN FILE Special Leave Petition?

Any aggrieved party can file an Special Leave Petition against the judgment or order of refusal of grant of a certificate.

Through Special Leave Petition, an aggrieved party can appeal to the Supreme Court against any judgement passed by any lower court or tribunal. This leave is granted when the case involves a question of law. Mere errors of fact, mis-appreciation of evidence or even findings of fact arrived at wrongly are not grounds of appeal before the Supreme Court.

The Supreme Court is only concerned with the question of law i.e. if the law was correctly applied, whether the interpretation of the law was in accordance with the settled principles of law etc.

The aggrieved party or the petitioner filing Special Leave Petition has to give a brief synopsis of the facts and issues presented in the case along with a list of dates specifying the chronology of events pertinent to the judgement. Along with this, the petitioner has to formulate questions of law to appeal against the judgement. These questions should pertain to laws relevant to the general public as well.

Once registered and presented in the Supreme Court, the petitioner will get a hearing before the Court. Subsequently, depending on the merits of the case, the Supreme Court will issue a notice to the opposite parties who will then file a counter affidavit stating their views. It’s at this point that the Supreme Court will decide whether to grant leave to the petitioner or not. If the Court grants leave, the case is then converted into a civil appeal and will be argued afresh in the Supreme Court.

The Supreme Court can rescind or revoke the earlier judgement, modify it or allow it. The Court can also send the case back to the relevant lower court for fresh adjudication in light of principles laid down by it or on account of any issues missed out by the lower court.

Article 133–136 of the Constitution of India defines the appellate jurisdiction of the Supreme Court. Article 133 provides for civil appeals from orders of the High Court, Article 134 provides for criminal appeals and Article 136 provides for special leave petition. If a case does not fall within Article 133 or Article 134 then under Article 136 the Supreme Court may be moved and a special permission may be sought to grant leave to appeal.

DISCRETIONARY POWER

Appeal to Supreme Court is not a matter of right but it is a matter of privilege which only the Supreme Court will grant to any individual if there exists an important constitutional or legal issue involved. Appeals are regulated by the Constitution of India and Supreme Court Rules, 2013.

According to Article 141 of the Indian Constitution, the Supreme Court’s judgement is declared as law of the land and is binding on all courts in India.

What is “Special” About Special Leave Petition?

What is so special about article 136 that distinguishes it from the general appeals listed in 132-135 are as follows.

First, it is not just restricted to appeals against judgments, decrees and final orders of the High court but it can also be granted against the judgments of lower courts.

The second thing to note is that article 136 is fluid and flexible compared to articles 132-135 which deals with appeals. What is basically meant is that the judgments, decrees or orders do not have to be final in nature and appeals are allowed even against interlocutory and interim judgments and they may be from cases or matters of either criminal or civil nature or otherwise.

However, in the normal course, it is generally expected that the appellant has exhausted all other recourses the law provides. Moreover, there may not be any law which limits the jurisdiction of the Supreme Court when it comes to article 136.

Rules about Special Leave Petition

In leading case laws the following rules have been established.

By virtue of this article, we can grant special leave in cases of civil, criminal, Income tax-related cases, cases from various tribunals and any variety of other cases.

SLP can also be filed when a High Court does not approve fitness for appeal to the Supreme Court.

Ordinarily, a private party other than the complainant should not be permitted to appeal.

In the case of Kunhayammed v State of Kerala, AIR 2000 SC 2587, the discussion was about the exercise of the jurisdiction under article 136 and if it consisted of granting of the SLP and subsequently hearing the appeal. The court has a choice to grant the SLP and if the court decides to not grant it on its findings then the appellate jurisdiction of the court does not come into existence. However, mere dismissal of the SLP petition does not mean that there is res judicata, it merely means that the case was not fit for the grant of SLP and it is open to the aggrieved party to approach the concerned court for review under article 226.

Kapil Chandna Advocate

Practicing advocate at Supreme Court of India

9899011450, 9911218741