Report No. 54
1J.11. We are of the view that an express provision on the subject of non-joinder is desirable, and the position should be the same as in the case of mis-joinder. At the same time, non-joinder of essential parties should not be included. Accordingly, we recommend that section 99 should be revised,1 so as to read as follows:-
"99. No decree shall be reversed or substantially varied, nor shall any case be remanded in appeal, on account of any mis-joinder or non-joinder of parties or cause of action or any error, defect or irregularity in any proceeding in the suit not affecting the merits of the case or the jurisdiction of the court.
Provided that nothing in this section shall apply to non-joinder of a necessary party."
1. Similar amendment would be desirable in Order 1, rule 9.
1J.12. As regards appeals against final orders under section 47, we had included a question1 in the Questionnaire as to adoption of the principle that "no such order shall be reversed or substantially carried, nor shall any case be remanded, in appeal on account of any error, defect or irregularity in any proceedings not affecting the merits of the case or the jurisdiction of the Court."
1. Question 10.
1J.13. Replies on this question generally favour the proposal, and we have come to the conclusion that it is desirable.
1J.14. We, therefore, favour a provision of the nature suggested in the question referred to above, but after some discussion, we have decided to employ the wording "unless it has prejudicially affected the decision of the case." We further think that want of jurisdiction should also not matter, in this context.
1J.15. Accordingly, we recommend the insertion of a new section as follows:-
"99A. No order under section 47 shall be reversed or substantially varied, nor shall any case relating to such order be remanded, in appeal on account of any error, defect or irregularity in any proceedings relating to such order, unless such error, defect or irregularity has prejudicially affected the decision of the case".
Section 100-Right of second appeal
1J.16. We now come to a very important question, which pertains not to mere procedure but to a substantive right. This is the right of second appeal conferred by section 100.
1J.I6A. Any rational system of administration of civil law should recognise-and it always does-that litigation in civil causes (as described in section 9 of the Code) should have two hearings on facts-one by the trial Court and one by the Court of Appeal. That, in fact, has been the scheme of the Code of Civil Procedure ever since 1859. According to recognised principles of administration of civil law, every litigant is entitled to take his cause before a second appellate Court on a question of law, and this right also has always been recognised in our country. The two relevant provisions in which this right is recognised are section 100 of the Code and a Article 133 of the Constitution1.
1. Article 133 has been recently amended.
Two categories of civil litigation
1J.17. Traditionally, civil litigation has been placed in two categories in our country. For convenience, we may refer to the two categories as 'minor' and 'major'. In our country, there is a hierarchy of the judiciary, beginning with Munsifs or Civil Judges, Junior Division, followed by the Civil Judges or Civil Judges Senior Division, (or corresponding officers) and district Judges and, above them, is the High Court. Formerly, above the High Courts in India, there used to be the Privy Council, but, in 1947, the Federal Court took the place of the Privy Council and, since 1950, the Supreme Court is the highest Court in the country.
Chronology of litigation instituted in lowest court
1J.18. The Code of Civil Procedure requires that all civil litigation must be instituted in the court of the lowest jurisdiction. Inevitably, minor litigation begins its career in the Court of the Munsif or the Civil Judge, Junior Division. After he pronounces his judgment and a decree is drawn, an appeal lies either to the District Court or the Civil Judge (Senior Division) on whom appellate power has been conferred. The appeal to this Court is filed under Order XLI. After the decision of the first appellate Court is pronounced and an appellate decree is drawn, the aggrieved party moves the High Court under section 100 of the Code and, broadly stated, such an appeal has to be within the terms of clauses (a), (b) and (c) of section 100.
1J.19. Major litigation begins its career in the Court of the Civil Judge or the Civil Judge (Senior Division) and, after the trial Court has pronounced its judgment and a decree has been drawn, the aggrieved party goes to the High Court in first appeal under Order XLI. After the High Court has pronounced its judgment and an appellate decree has been drawn up, the appeal used to go to the Privy Council, then to the Federal Court and now it goes to the Supreme Court under Article 133 or with a certificate under Article 136 of the Constitution. That, broadly stated, is the position of the hierarchy of the judiciary and, if we may say so, the hierarchy of appeals contemplated by the procedural law.
Recommendation in Report on Article 133
1J.20. Before we proceed to consider the changes which we wish to recommend in amending section 100 of the Code, we ought to indicate briefly the reasons why we recommended to the Union Government the amendment of Article 133 of the Constitution by our Report on the subject.1 The Union Government has accepted our Report and Article 133 has accordingly been amended. The philosophy of this amendment is that High Courts in our country should ordinarily decide all questions of law pertaining to the interpretation of State legislation and their decisions on such points should be final.
If any of the provisions of State legislation use material expressions or clauses which are common to other State legislations and there appears to be conflict in the views taken by different High Courts in regard to the interpretation of such expressions or clauses, the matter can legitimately be taken before the Supreme Court for resolving such conflict. Subject to such cases, in a federal structure, it is legitimate and natural that High Courts of the State should be regarded as final Courts of Appeal so far as the interpretation of State statutes is concerned.
1. 45th Report.
1J.21. In regard to the interpretation of Central statutes, however, the position is different. A party aggrieved by the decision of the High Court in respect of any provision of the Central statute may be entitled to move the Supreme Court, provided the matter sought to be raised by him is not already concluded by a decision of the Supreme Court. In regard to the interpretation of provisions of Central statutes, if there is a difference of opinion amongst High Courts, the case for moving the Supreme Court for resolving such a dispute is all the stronger. It is in the light of this approach that we recommended to the Union Government to amend Article 133 in a radical way; and, in doing so, we had emphasised the fact that the test of pecuniary valuation, which had been prescribed by the erstwhile Article 133, had no relevance to our approach in this matter.
The reference to the pecuniary valuation having now been deleted, it is conceivable that, even in regard to a case falling under the minor litigation, a party may be entitled to go to the Supreme Court, provided, of course, the test prescribed by the amended Article 133 is satisfied. The words used in Article 133 of the Constitution require that the point raised by the appellant should be a substantial point of general importance which, according to the High Court, it is necessary for the Supreme Court to decide.