Topic -7 Mathai@JOBY vs. George &ANR.(2010) INSC196 (19 March 2010)

From Advocatespedia, ASSN: 147399
Jump to navigation Jump to search


Decided on 19 March,2010



Special Leave Petition(c) No.- 71o5 of 2010






In Mathai @ Joby vs.George and anr , the will of the defendant was challenged as not being genuine. The special leave jurisdiction of the court had been invoked, praying before the court, to enable the petitioner to send the will of the defendant for forensic testing a second time, which was rejected by the Trial Court and the High Court. In this case the matter was referred to a constitution bench to determine the kind of cases in which special leave to appeal could be granted under Article 136 of the Constitution.


This special leave petition has been filed by Mathai @ Joby against the judgment and order dated 09.11.2009 of the High Court of Kerala Ernakulam in W.P.(C) No. 31726/2009. By the impugned order the writ petition filed by the petitioner herein has been disposed off.

The petitioner herein is one of the defendants in a suit in which he has disputed the genuineness of a Will dated 13.01.2006.

The Will in question was sent for expert opinion to the Forensic Science Laboratory, Thiruvananthapurm. The Forensic Science Laboratory submitted its report to the Trial Court. Not satisfied with the report the Petitioner herein wanted another opinion from another expert. The said prayer of the petitioner was rejected by the Trial Court and the writ petition filed against the order of the Trial Court has been dismissed by the impugned order. Against the High Court's order the SLP has been filed.

The Court is of the prima facie of the opinion that such special leave petitions should not be entertained by this Court as all kinds of special leave petitions are being filed in this Court against every kind of order.


The issue in this case to determine as to in what kind of cases the discretion should be exercised by the Supreme Court under Article 136 of the Constitution of India. In this Slp the Court is to lay down some broad guidelines inorder to prevent flooding of the Court with all kinds of frivolous Special Leave Petition.


Article 136 of the Constitution of India.


The Apex Court opined that two additional categories of cases can be added to the list, namely (i) where the Court is satisfied that there has been a grave miscarriage of justice and (ii) where a fundamental right of a person has prima facie been violated. However, it is for the Constitution Bench to which is being referred in this matter to decide what are the kinds of cases in which discretion under Article 136 should be exercised.

If special leave petitions are entertained against all and sundry kinds of orders passed by any court or tribunal, then the Court after some time will collapse under its own burden thus it is need of the hour for an authoritative decision by a Constitution Bench to lay down some broad guidelines as to when the discretion under Article 136 of the Constitution should be exercised, i.e., in what kind of cases a petition under Article 136 should be entertained.

The hon’ble Court referred to Pritam Singh Vs. The State in this case a Constitution Bench of this Court observed (vide Para 9) that "a more or less uniform standard should be adopted in granting Special Leave". Unfortunately, despite this observation no such uniform standard has been laid down by this Court, with the result that grant of Special Leave has become, as Mr. Setalvad pointed out in his book ` My Life', a gamble. This is not a desirable state of affairs as there should be some uniformity in the approach of the different benches of this Court. Though Article 136 no doubt confers discretion on the Court, judicial discretion, as Lord Mansfield stated in classic terms in the case of John Wilkes, (1770) 4 Burr 2528 "means sound discretion guided by law. It must be governed by rule, not humor: it must not be arbitrary, vague and fanciful"

The Apex Court lays down the law for the whole country and it should have more time to deliberate upon the cases it hears before rendering judgment as Mr. Justice Frankfurter observed. However, sadly the position today is that it is under such pressure because of the immense volume of cases in the Court that Judges do not get sufficient time to deliberate over the cases, which they deserve, and this is bound to affect the quality of our judgments.

Since the matter involves interpretation of Article 136 of the Constitution, thus the court feel that it should be decided by a Constitution Bench in view of Article 145(3) of the Constitution, thus the papers of this case was laid before Hon'ble the Chief Justice of India for constitution of an appropriate Bench, to decide which kinds of cases should be entertained under Article 136, and/or for laying down some broad guidelines in this connection


This is a vital judgement delivered by the Hon’ble Supreme Court in respect to exercise of discretion of the Court under Article 136 of the Constitution of India.

The Supreme Court's verdict clearly expresses prohibiting frivolous special leave petitions and thus has referred the matter to a constitutional bench to lay down guidelines as to what kind of cases should invoke article 136 of the constitutional, as absence of any such guidelines has lead a trend of Special leave petitions for ang kinds of matters, which would cause inefficiency of article 136 and also cause. burden on the Court.