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Order XXXVII - Special Case under Supreme Court Rules, 2013

Order XXXVII of the Supreme Court Rules, 2013 governs the procedure for a special case in a suit instituted before the Supreme Court. It adopts specified provisions of Order XXXVI of the First Schedule to the Code of Civil Procedure, 1908 (CPC), subject to stated exclusions.

What is a special case?

A special case is a procedure under which parties interested in the determination of a question of fact or law may, in accordance with Order XXXVI CPC, state that question in a written agreement for the opinion of a court. It is distinct from a regular contested trial and is not a general route for obtaining an advisory opinion from the Supreme Court. In the Supreme Court, the procedure operates only within a suit properly instituted before it, subject to its constitutional jurisdiction and the applicable rules.

Order XXXVII - statutory provision

Order XXXVII incorporates Rules 1, 2 and 5 of Order XXXVI in the First Schedule to the CPC for special cases in suits before the Supreme Court. The published text also specifies exclusions referring to Rule 3(1), Rule 3(2) and Rule 5(2) of Order XXXVI CPC. The exclusions are retained below because they form part of the original rule and must not be overlooked.

Rules 1, 2 and 5 of Order XXXVI in the First Schedule to the Code with respect to procedure by way of special case shall apply in suits instituted before the Court, except the words - 'which would have jurisdiction to entertain a suit the amount or value of the subject-matter of which is the same as the amount or value of the subject-matter of the agreement' in sub-rule (1) of rule 3, the words 'claiming to be interested as plaintiff or plaintiffs' to the end of sub-rule (2) of rule 3; and the words 'and upon the judgment so pronounced a decree shall follow' in sub-rule (2) of rule 5.

The wording above follows the published Supreme Court Rules, 2013. Its references to Rule 3 appear alongside its express reference to Rules 1, 2 and 5; those references have not been silently rewritten.

Relevant provisions of Order XXXVI CPC

Rule 1 - Power to state a case for the court's opinion

Persons claiming to be interested in the decision of a question of fact or law may enter into a written agreement stating the question in the form of a case for the court's opinion and agreeing on consequences depending upon the court's finding. The subject matter may concern money or property, the determination of a right or liability, or another agreed legal consequence contemplated by the rule.

Rule 2 - Value of the subject matter

Where the agreement concerns delivery of property or the doing or refraining from doing an act, its estimated value must be stated in the agreement. This identifies the subject matter and assists in applying the procedural provisions.

Rule 3 - Filing and court jurisdiction

Rule 3 of Order XXXVI CPC deals with the court in which the agreement is filed and its registration as a suit. Order XXXVII of the Supreme Court Rules expressly excludes identified words of Rule 3; the Supreme Court's jurisdiction must in any event arise independently under the Constitution or applicable law. A private agreement cannot itself confer jurisdiction upon the Supreme Court.

Rule 5 - Hearing and judgment

Under Rule 5, the court considers the stated case and may pronounce judgment where the prescribed conditions are satisfied. Order XXXVII of the Supreme Court Rules expressly excludes the concluding words of Rule 5(2) concerning a decree following the judgment. The precise form and effect of any Supreme Court order are governed by the applicable Supreme Court procedure.

How the special case procedure works

  1. Identify a proper suit: confirm that the matter falls within the Supreme Court's original jurisdiction.
  2. Prepare the written agreement: clearly identify the parties, agreed facts, questions requiring determination, proposed consequences and subject-matter value where relevant.
  3. Apply the incorporated rules: comply with Order XXXVII of the Supreme Court Rules and the applicable portions of Order XXXVI CPC, subject to the express exclusions.
  4. Observe filing requirements: comply with the Registry's applicable procedural directions and any judicial orders.
  5. Obtain the Court's decision: the Court determines whether the special case can properly be entertained and decided on the agreed record.

Important distinctions

Order XXXVII of the Supreme Court Rules concerns a special case. It should not be confused with Order XXXVII CPC, which concerns summary suits, or Article 143 of the Constitution, which deals with Presidential references to the Supreme Court.

Official legal references

Refer to the current consolidated rules, notified amendments and Registry directions before filing. This explanatory article does not replace the statutory text.