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Report No. 54

Commission's approach to proper scope of second appeal

1J.22. It is in the light of the amended Article 133 that we propose to approach the question about the scope of section 100 of the Code as it should be after it is amended. It would be noticed that clauses (a), (b) and (c) of section 100 to which we will presently refer, are, in a sense, very wide in effect. In fact as we will have occasion to point out, clauses (b) and (c) have led to a plethora of conflicting judgments and it may be safely stated that ingenuity of the lawyers determined to seek admission for second appeals of their clients in the High Court, coupled with judicial subtlety which generally believes that even an erroneous finding of fact does, on the ultimate analysis, lead to injustice, has unduly and unreasonably widened the horizon of section 100.

It is easy enough to understand what a point of law is; but in dealing with second appeals, courts have devised and successfully adopted several other concepts, such as a mixed question of fact and law, a legal inference to be drawn from facts proved, and even the point that the case has not been properly approached by the courts below. This has created confusion in the minds of the public as to the legitimate scope of the second appeal under section 100 and has burdened the High Courts with an unnecessarily large number of second appeals.

Approach of High Court to second appeal

1J.23. The approach to second appeals has traditionally differed from High Court to High Court, and from Judge to Judge even in the same High Court. The Kerala High Court, for instance admits second appeals, where the appellate court has reversed the findings of fact recorded by the trial court1; this position is prima facie difficult2 to reconcile with the plain provisions of section 100. Even where such a position does not exist, it is not uncommon that judges are more lenient in admitting second appeals where the courts below have recorded conflicting findings of fact.

This aspect of the matter has been noticed by several Committees and Commissions which dealt with the question of the growing arrears in the High Courts, substantially because of the indiscriminate admission of second appeals and civil revision applications, and we will have to say something very radical later on. To anticipate our recommendation, we might say at this stage that we are recommending3 that section 115 of the Code, relating to revision, should be deleted.

1. See Kerala amendment to section 100.

2. See 27th Report, para. 123 and 14th Report Vol. I.

3. See recommendation relating to section 115.

Discussion in 14th Report

1J.24. The Law Commission, in its Fourteenth Report,1 referred to the problem posed by the unduly lenient admission of second appeals and observed that "having regard to the terms of section 100, an appeal should not be admitted merely because the appellant has shown that an arguable or prima facie valid point of law arises in the appeal, but that the Court has to be satisfied that the decision of the lower appellate Court on a point. of law was erroneous and that in order to do justice between the appellant and the respondent, it is essential that a further hearing should be given to both the parties".

The Commission thought that the existing alarming position of arrears could be met if it was recommended that the High Court should adopt the practice of "circulating the papers relating to second appeal to a judge outside the Court hours for the purpose of enabling him to determine whether it should be admitted straightaway and notice issued to the respondent or whether the appeal should be posted for a preliminary hearing under Order XLI, rule 11." The Commission further recommended that such a scrutiny should be made by a senior and experienced Judge.

1. 14th Report, Vol. I.

1J.25. The Commission also thought that a statutory requirement should be made providing that the Judge admitting the second appeal should state the point or points of law which arise for consideration and enabling the High Court to admit a second appeal on specified points only and it should be provided by rules that where a second appeal is filed, certified copies of the judgments of both the Courts below should accompany the memorandum of appeal and, if in any such appeal the appellant proposes to raise any question of the construction of a document, a true translation of the document should also be filed along with the memorandum of appeal.

Arrears in High Courts

1J.26. These recommendations, however, do not appear to have been implemented and the position of the arrears pending in the High Court, partly because of indiscriminate admission of second appeals and civil revision application, grew from bad to worse. The Shah Committee, which dealt with this problem in 1972, has observed that "it is necessary to provide for a stricter and better scrutiny of second appeals and they should be made subject to special leave, instead of giving an absolute right of appeal limiting it to question of law."

It reiterated the observations made by the Law Commission in its Fourteenth Report, and repeated its recommendation that the second appeals should be circulated to the Judges for reading outside the working hours of the court for determining the question whether the second appeals should be admitted straightaway and notice issued to the respondents or whether they should be placed for preliminary hearing under Order 41, rule 11.

View of High Court Arrears Committee

1J.27. The High Court Arrears Committee was quite clear in its view that the primary cause of the accumulation of arrears in the High Courts is the laxity with which second appeals are admitted without serious scrutiny in the light of the provisions of section 100 of the Code.

View of some Judges

1J.28. As we have already indicated1, some Judges in the High Courts honestly believe that, if they are satisfied that, in any second appeal brought before them evidence has been grossly misappreciated either by the lower appellate court or by both the Courts below, it is their duty to interfere, because they seem to feel that a decree following upon a gross misappreciation of evidence involves injustice and it is the duty of the High Court to redress such injustice.

However laudable and commendable such an approach may ethically claim to be, it overlooks the fact that courts administer justice according to law; and where limits have been prescribed for the exercise of the High Court's powers under section 100, in trying to redress injustice by interfering with questions of fact, the Court, in effect, is violating the express provisions of section 100 itself. In this connection, we may quote two judgments of the Supreme Court where this aspect of the matter has been emphatically brought out.

1. Para. 1J.22, supra.

Privy Council case

1J.28A. Before doing so, however, it would be relevant to recall that, as early as 1890, the Judicial Committee of the Privy Council1 stated that there is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however gross or inexcusable the error may seem to be, and they added a note of warning that no Court in India has power to add to, or enlarge, that grounds specified in section 100.

1. Durga Chowdhrain (Mst.) v. Tawahur Singh, (1890) 17 IA 122 (PC).

Supreme Court cases

1J.29. Reverting, then, to the two judgments of the Supreme Court, in M. Ramappa v. M. Bojjappa, 1963 SCR 673, the Supreme Court was dealing with an appeal be special leave where the High Court of Andhra Pradesh had interfered with the finding of fact recorded by the appellate Court which, in turn, had itself reversed the trial Court's finding on the same, question of fact. In setting aside the decree of the second appellate Court, the Supreme Court observed:

"It may be that in some cases, the High Court dealing with the second appeal is inclined to take the view that what it regards to be justice or equity of the case has not been served by the findings of fact recorded by courts of fact, but on such occasions it is necessary to remember that what is administered in courts is justice according to law and considerations of fair play and equity however important they may be, must yield to clear and express provisions of the law. If in reaching its decisions in second appeals, the High Court contravenes the express provisions of section 100, it would inevitably introduce in such decisions an element of disconcerting unpredictability which is usually associated with gambling; and that is a reproach which judicial process must constantly and scrupulously endeavour to avoid".

1J.30. Similarly in Deity Pattabhiramaswamy v. S. Hanymayya and others, AIR 1959 SC 57, the Supreme Court was dealing with an appeal by special leave against the judgment and decree of the High Court of Madras setting aside the judgment and decree of the District Judge, Guntur, which had confirmed the judgment and decree of the Subordinate Judge, Guntur. Reversing the decision of the High Court, the Supreme Court observed that, notwithstanding the clear and authoritative pronouncement of the Privy Council on the limits and the scope of the High Court's jurisdiction under section 100 Civil Procedure Code, "some learned Judges of the High Courts are disposing of Second Appeals as if they were first appeals.

This introduces, apart from the fact that the High Court assumes and exercises a jurisdiction which it does not possess, a gambling element in the litigation and confusion in the mind of the litigant public. This case affords a typical illustration of such interference by a Judge of the High Court in excess of his jurisdiction under s. 100, Civil Procedure Code. We have, therefore, no alternative but to set aside the judgment of the learned Judge of the High Court. The learned Judge of the High Court had no jurisdiction to interfere in second appeal with the findings of fact given by the first appellate Court based upon an appreciation of the relevant evidence."

We have deliberately referred to these two decisions of the Supreme Court to emphasise the point that, notwithstanding the recommendations made by the Committees and Commissions in the past, and notwithstanding the words of caution and warning authoritatively pronounced by the Supreme Court, High Courts do sometimes unwittingly or even deliberately enlarge the scope of their jurisdiction under section 100 in pursuance of what they honestly regard as "the requirements of justice".

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