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The Pendency of Appeal - Hypothetical Questions - Power To Grant Relief Under Article 136

Torts Law
Legal Service India.com
  • A Party Can Compromise The Matter During The Pendency of Appeal Under Article 136

    In Swadeshi Cotton Mills Lid, Kanpur v. Rajeshwar Prasad, the Court held that pending the petition/appeal, it is open to the parties to enter into a compromise and settle the dispute. Such. compromise has been treated as valid compromise and the Court can pass orders in terms of the compromise. Where a petition for recording compromise is filed in appeal before the Supreme Court and the terms of compromise are reasonable and romote the best interests of the parties, a decree in terms of compromise can be directed to be made in substitution of the decree under appeal.

    Hypothetical Questions Are Not Decided By The Supreme Court

    The Supreme Court will not decide any hypothetical question under Article 136. It will decide only a point of law if it has actually arisen. Under Article 136 the Supreme Court does not have any advisory jurisdiction and hence it will not tender any advice. In Central Bank of India Ltd, v Workmen, it was observed:
    It is to be remembered that we are exercising our appellate jurisdiction in these seven appeals and not our advisory jurisdiction... It is, therefore, not necessary for us to decide hypothetical questions which may arise in future reference that may be made under the amended section. In the exercise of its appellate power this Court does not give speculative opinions on hypothetical questions. It would be contrary to principles, inconvenient and inexpedient that opinion should be given on questions."

    In the under noted case arising under Section 68-F(I-D) of the Motor Vehicles Act 1939, where an extension of permit was quashed by High court, and pending the appeal before the Supreme Court, the route was nationalized, it was held that the appeal had become in fructuous, because even if the Supreme Court were to allow the appeal it could not grant or direct the grant of the permit.

    Powers of Court To Grant Relief Under Article 136 On Equitable Considerations

    In I.J. Divakar v. State of Andhra Pradesh, the appellant had applied for selection to the post of Junior Engineers in response to the advertisement by the Public Service Commission. The Government, however, withdrew the posts from the Public Service Commission. The Government Order was challenged by the appellants. Though the Court rejected all the pleas of the appellants, still, to do justice between the parties, it granted relief to the appellants. The Court observed:

    "Even though we rejected both the contentions, equity demands that the matter cannot be allowed to rest here..... In order to do justice between the parties and not to leave the appellants, fresh young engineering graduates, in lurch, we direct that the Commission shall proceed to finalize the list of selection on the basis of the viva voce tests conducted and marks assigned and forward the same to the Government within two months from today."

    Similarly in Municipal Board, Pratapgarh v. Mahendra Singh
    Chawla, the order of reinstatement passed by the High Court was challenged by the Municipal Board. The Court held that though the view taken by the High Court was not in conformity with law, it would, instead of setting aside the order of the High Court, mould the final order in exercise of its extraordinary jurisdiction. The Court held:

    While administering law it is to be tempered with equity and if the equitable situation demands after setting right the legal formulations not to take it to the logical end, this Court will be failing in its duty if it does not notice equitable considerations and mould the final order in exercise of its extraordinary jurisdiction. Any other approach would render this Court a normal court of appeal which it is not.

    In the aforementioned case, the Court directed that the respondent be treated to be in service ignoring the order of termination. The respondent was granted all benefits of service including increments, but not the back wages.

    In Chandra Bansi Singh v. State of Bihar, where the question arose to whether the Supreme Court can give relief in equity where relief in law is not available, the Court held that the Court was not only a Court of law but a Court of equity as well. Thus, where there was a delay in taking possession of the lands in question, the Court ordered payment of additional compensation for that period, though there was no provision in law for payment of compensation.

    In the case of Mohinder Singh Garg v. State of Punjah, six petitioners challenged the allotment of 25% marks for interview for the post of Taxation Inspectors/ Excise Inspectors. The appointments were, however made and the persons were selected on the basis of interview marks being They also joined the service. The Supreme Court came to the conclusion that the allotment of 25% marks was bad in law. The consequence would have been to set aside the entire selection and order fresh selections. But, considering the fact that the selected candidates had not been made parties before the High Court or the Supreme Court and the fact that a number of years had passed, the Supreme Court held that it would be unjust to quash the appointments of those persons. The Court considered the written marks obtained by the petitioners and came to the conclusion that three candidates stood a fair chance of selection in case the selection was done with lower interview marks. Considering this fact and the fact that no other petition or case had been filed by any other unsuccessful candidate even after a long lapse of time, the Court directed that the three petitioners be appointed, if otherwise found suitable, without considering the age bar.

    Similarly, in another case, where on grant of special leave, the operation of the High Court order had been stayed and respondent had continued to work on the post, the Court held that due to the time lag the displacement of the respondent would not serve anybody's purpose.

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