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Report No. 54

View of previous Commissions and of High Court Arrears Committee

1J.61. We are aware that in 1958, a previous Law Commission examined1 the matter in detail, and, after weighing the arguments advanced in favour of curtailment of the right, did not recommend any restriction on the right to file a second appeal under section 100. The matter was again considered in the earlier Report on the Code.2 In that Report, agreement was expressed with the previous Commission's conclusion that "considering the conditions in this country, there is not much scope for curtailing the right of appeal".

1. 14th Report (1958).

2. 27th Report (1964).

1J.62. We are also conscious that recently the High Courts' Committee,1 which analysed in detail the causes of arrears (including arrears of second appeals), did not recommend any change in the scope of second appeal. It observed that "the primary cause of the accumulation is the laxity with which second appeals are admitted without scrutiny in the light of the provisions of section 100, Civil Procedure Code".

1. Report of the High Court's Arrears Committee, 1972.

Re-examination of position necessary

1J.63. We do not mean any disrespect to these bodies when we say that the matter requires re-examination, and that there is justification for considering the scope for modification of the right of second appeal. This justification is derived not only from the spectacle of mounting arrears in the High Courts, but also from certain basic issues, which we shall discuss in due course. In that discussion, experience of the practical operation of the various clauses of section 100 will naturally occupy an important place.

Question included in the Questionnaire

1J.64. Having regard to the above considerations it appeared to us when we made a preliminary study of the subject that there should be some limitation on the right of second appeal to the High Court.

1J.65. In order to elicit informed opinion on the subject, we had, in our questionnaire on the Code, put a question1 as follows:-

"8. Do you agree that a second appeal should be allowed only if a substantial question of law is involved?"

1. Question 8.

Replies on the Questionnaire analysed

1J.66. The suggestion put forth in the query has received mixed reception. Some of the High Courts1 and some of the individual Judges of two High Courts,2 have favoured it, as also one State Government3 and one member of the Bar.4 On the other hand, some High Courts5 and individual Judges of few Courts,6 have opposed it. Almost all Bar Associations that have replied to this question, are against7 it.

1. S. No. 5; S. No. 11; S. No. 12; S. No. 25.

2. S. No. 28 and S. No. 16.

3. S. No. 10.

4. S. No. 19.

5. S. No. 14.

6. (a) S. No. 15;

(b) S. No. 16;

(c) S. No. 28.

7. (a) S. No. 1;

(b) S. No. 6; S. No. 20;

(c) S. No. 21; S. No. 26.

1J.67. The replies favouring the amendment have not considered it necessary to give explicit reasons.

1J.68. In the replies opposing it, various reasons have been advanced. It has been stated, for example1, that gross misappreciation of evidence ought to be provided for. One High Court2 which has opposed the suggested amendment, has stated that the expression "substantial" will raise controversy. A Judge of another High Court3 has stated, that ordinarily, a second appeal is admitted only if the question is not decided at the highest, and has been wrongly decided by the first appellate court.

1. S. No. 2 (An Advocate).

2. S. No. 14.

3. S. No. 15.

1J.69. Another High Court Judge,1 who is also opposed to any amendment, has stated that the law should be uniform in all districts.

1. S. No. 28.

1J.70. One High Court Judge1 favours total abolition of second appeals, with enlargement of revisional jurisdiction to correct errors of law.

1. S. No. 25.

The Code of Civil Procedure, 1908 Back

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