Report No. 44
9. On the other hand, the existence of a right of appeal based on valuation is open to the following criticism-
(1) It discriminates unfairly between the rich litigant and the poor.
(2) It is well known that important questions of law do not depend on the value of the subject-matter in dispute.
(3) It promotes the leading of perjured evidence as regards valuation, and causes considerable delay in the High Court in determining valuation for the purpose of appeal. It is notorious that litigants under-value the subject-matter for the purpose of court fee, and then try to over-value the same for the purpose of appeal to the Supreme Court.
(4) It causes avoidable congestion in the Supreme Court, and thereby impairs the prompt discharge of its primary functions, namely, the grant of speedy relief in those cases which involve (a) interpretation of the Constitution (Article 132), and (b) enforcement of fundamental rights (Article 32) in regard to which this Court has (in the words of Chief Justice Patanjali Sastri) "been assigned the role of a sentinel on the qui vive".1
1. State of Madras v. V.G. Rau, 1952 SCR 597 (695) AIR 1952 SC 196 (199)
10. Uniformity in the interpretation of civil law, as indeed of all laws, throughout the country is essential. But this uniformity can always be brought about either by the High Court granting a certificate of fitness under sub-clause (c) of Article 133(1), or by the Supreme Court granting special leave under Article 136. As regards the other two advantages also1, the power of the Supreme Court to grant special leave under Article 136 may suffice.
1. Para. 8 above
11. An English Chief Justice observed1 long ago that "it is the glory and happiness of our excellent Constitution that, to prevent any injustice, no man is to be concluded by the first judgment; but that, if he apprehends himself to be aggrieved, he has another court to which he can resort for relief." This principle will not be substantially jeopardised by the repeal of sub-clauses (a) and (b). Ordinary civil litigation reaches a High Court either in the first appellate stage or in the second appellate stage, according to the valuation of the subject-matter of litigation. Hence, by the time the High Court disposes of the matter, the parties have had the benefit of at least one appeal on law and facts, and sometimes also a second appeal on questions of law.
Even in those High Courts which have ordinary original civil jurisdiction, such as the High Courts of Calcutta, Bombay and Madras, if the original judgment is delivered by a single judge, there is always an unrestricted right of appeal to a Division Bench under the Letters Patent. It is true that if, in those High Courts, the original trial is held before a Division Bench, there will be no unrestricted right of appeal if sub-clauses (a) & (b) are repealed. But such original trials of civil suits before Division Benches are very rare indeed. However, if this aspect is considered important, a suitable provision on the subject could be made in Article 133.
1. King v. Chancellor, Masters and Scholars of the University of Cambridge, (1723) 93 ER 698 (702-703) (Sir John Pratt, C.J.)
12. The proposed amendment is not intended to interfere with the appeal to the Supreme Court against orders passed by the High Court, where such a right is conferred by provisions in special laws.1 That right will not be affected in any way by the present proposals.
1. E.g.-(a) section 56, Indian Divorce Act, 1869;
(b) section 116A, Representation of the Peoples Act, 1951;
(c) section 29, Wealth Tax Act, 1957;
(d) section 28, Gift Tax Act, 1958;
(e) section 38, Advocates Act, 1961;
(f) section 83, Income Tax Act, 1961; etc.
13. It may be said that by giving a right of appeal based solely on the test of value of the subject-matter-and that too-after an appeal to the High Court-the law gives an opportunity "to put the dice into the box for another throw"1. It only leads to heavy expense and delay in litigation, and to sot+ extent, affects the prompt discharge by the Supreme Court of its primary functions.
1. Ambrose Bierce, quoted by Carpentier, Counsel on Appendix, p. 145
14. A review of the existing position in England, France, U.S.A. and a few other countries with a federal constitution has been made, and the result briefly indicated in Annexure B. The value of the subject-matter in dispute at the final appellate stage is relevant in three countries, viz., Australia, Canada and Switzerland; in England, France, West Germany, Russia and the U.S.A., it is not.