Report No. 54
Search for absolute truth to be limited
1J.31. At this stage, it may be permissible to point out that a search for absolute truth in the administration of justice, however laudable, must in the very nature of things be put under some reasonable restraint. In other words, a search for truth has to be reconciled with the doctrine of finality. Cynics have sometimes said that, if appeals are provided against the judgments pronounced by the highest Court in the country, a fair percentage of the decisions of the highest Court may be reversed. Indeed, some critics, embittered by their experience in litigation, have gone to the extent of suggesting that, if the same appeal is placed before two different Benches of the same High Court or the Supreme Court, it is not altogether impossible that different verdicts may be rendered. That is what has given rise to the saying which is current at the Bar that the correct judgment is one against which no appeal lies.
1J.32. We are referring to this aspect of the matter only to emphasise the point that, in the interests of the litigants themselves, it may not be unreasonable to draw a line in respect of the two different categories of litigation where procedure will say at a certain stage that questions of fact have been decided by lower courts and the matter should be allowed to rest where it lies without any further appeal. This may sound somewhat harsh to an individual litigant; but, in the larger interest of the administration of justice, this view seems to us to be juristically sound and pragmatically wise. It is in the light of this basic approach that we will now proceed to consider the three clauses of section 100 and deal elaborately with all the point which ultimately lead to the recommendation which we propose to make to amend section 100 of the Code of Civil Procedure in a radical way.
Average litigant usually exhausted by the stage of first appeal
1J.33. The average litigant is exhausted by the time he has travelled to the court of first appeal, and too often a wealthy litigant, (such as, a Corporation), may well be in a position to carry appeals to a point where the financial resources of the opposite party are practically exhausted. No one can deny that courts should be readily accessible to the people; and when litigation is embarked upon, there should be a remedy against erroneous decisions. But this right of appeal should be within a reasonable limit, and within the control of the resources of the litigants.
Present law considered in detail
1J.34. Bearing in mind these broad principles we proceed to consider in detail the present law on the subject of second appeals.
1J.35. The relevant section1 of the Code provides-
"100. Second appeal-(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to a High Court, on any of the following grounds, namely;
(a) the decision being contrary to law or to some usage having the force, of law;
(b) the decision having failed to determine some material issue of law or usage having the force of law;
(c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits."
(2) An appeal may lie under this section from an appellate decree passed ex parte.
1. Section 100.
Main principle-Finality of decision on facts
1J.36. This section was enacted for the express purpose of securing some measure of finality in cases where the balance of evidence-verbal and documentary-arose for decision1 It is, therefore, appropriate to consider how far the section (as interpreted judicially) is faithful to this object.
1. 2. Nafar Chandra Pal v. Shukur, (1918) 45 IA 183: ILR 46 Cal 189 (PC).
Clauses (a) and (b)-Meaning of 'law'
1J.37. Clauses (a) and (b) of the section are simple in appearance. A second appeal lies under clause (a) where the decision of the lower appellate court is "contrary to law". The term 'law' in clause (a), of course, is not limited in its meaning to statute law; it means general law.1
1. Ram Gopal v. Shakshaton, 1893 ILR 20 Cal 93 (PC).
As regards, clause (b), which is not often invoked, the position would be the same.
1J.38. But the simplicity of these clauses is deceptive, as will be apparent from the cases which we shall discuss later.