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Report No. 54

Commission's conclusions arrived at after considering the replies

1J.71. It is needless to state that in coming to our final conclusions on the subject, we have given the utmost consideration to the replies received on the Questionnaire.

Limitations on scope of second appeal desirable

1J.72. Having considered the matter in all its aspects, we have come to the conclusion that the right of second appeal should be confined, to cases where

(i) a question of law is involved; and

(ii) the question of law so involved is substantial.

1J.73. The mere fact that a question of fact has been wrongly decided by the Court of first appeal, should not, in our view, constitute a ground for second appeal.1 The justification for second appeal is to rest solely on the criteria which we have just now referred to. Again, the mere fact that a finding of fact is supposed to be perverse or manifestly unjust, will not,2 under our proposal justify admission of a second appeal. But the appeal would be admissible if a question of law-whether the question relates to substance, procedure or evidence-has been wrongly decided.

1. This is with reference to the point raise in s. No 15.

2. This is with reference to the point raise in s. No 17 and S. No 23.

Status and calibre of final Court of appeal a vital consideration

1J.74. Since we are retaining the right of second appeal with the above modification, the query may be raised why the litigant who, before coming to the High Court, has had one right of an appeal before a subordinate court, should have the right of two appeals on questions of law. In other words, why a multiplicity of appeals should be allowed. Now, it is to be remembered that in any legal system which recognises the binding force of precedent, the status and calibre of the final appellate court on questions of law is vital. This consideration over-balances the consideration of multiplicity of appeals.

It is obvious that the numerous subordinate courts in the districts cannot be final arbiters on questions of law. If the law is to be uniformly interpreted and applied, questions of law must be decided by the highest Court in the State whose decisions are binding on all subordinate courts. If the right of second appeal is so abridged as to remove questions of law from the High Court, it would create a situation wherein a number of subordinate courts will decide differently questions of law, and their decisions will stand. Such a situation would be unsatisfactory.

1J.75. The subordinate appellate courts functioning in the districts are not superior courts of record, and their interpretations of law are not binding on other courts. In fact, ordinarily, subordinate courts in one district are not even aware of the pronouncements of other courts in other districts (except when a point of law is declared by the High Court in appeal). It is section 100 which enables the High Court to function as the author, distributor and clearing house of pronouncements of law for the benefit of all subordinate courts. The interpretation of the law by the High Court is (subject to the law declared by the Supreme Court) binding on all subordinate courts. It is, therefore, essential for uniformity that every error of law, raising a substantial question is promptly rectified by the High Court by a correct pronouncement of the law.

Some points raised in the replies considered

1J.76. In one of the replies1 received on our questionnaire, an apprehension has been expressed that the use of the expression "substantial" (with reference to the question of law) will equate the right of appeal to the High Court to that of appeal to the Supreme Court. We shall deal with this point later.2

1. S. No. 14.

2. See "Distinction between scope of appeal to Supreme Court and scope of appeal to the High Court", infra.

Nature of the question of law regarded as appropriate for second appeal

1J.77. We shall indicate very broadly the nature of the questions of law which we regard as appropriate for submission to the High Court under section 100 as we propose to revise.

First-and the most important of all is the consideration of uniformity throughout the State. It is obvious that on questions of law uniformity must be maintained. In so far as interpretation of enacted laws having State-wise importance is concerned, it is the task of the judiciary to maintain the unity and the High Court, as the highest tribunal at the State level, should continue to have the ultimate authority to establish unity by resolving or avoiding the possibility of different views in lower courts.

Secondly, apart from questions of interpretation of enacted law which falls in the category mentioned above, there arise other questions of law. The uncodified law constitutes a fertile ground for such questions, as also general principles of construction of statutes. The law of torts, and so much of the personal law as has not yet been codified, furnish examples.

Thirdly, there may be points already decided by the High Court which may, nevertheless, appear to require further consideration. Not unof ten on a question of law on which there has already been a pronouncement by the High Court, one comes to take the view that the matter is capable of further consideration at the hands of the High Court. To illustrate the cases which may fall in this category, there may be a judgment of the High Court which contains observations that are ambiguous, and the ambiguity should be removed by clarification. There may be conflicting decisions of Divisions Benches of a High Court. There may be a decision of the High Court which seems to require re-consideration, in view of subsequent pronouncements of the Supreme Court.

1J.78. An analogous situation would arise when there has been a difference of opinion among the judges of the High Court Bench on a question of law, and the usual avenues of settling the differences within the High Court have not been exhausted, so that the question is one of such difficulty that it ought to be allowed to be submitted for decision by a fuller Bench.

1J.79. Lastly, even apart from questions falling within the specific categories enumerated above, there remain questions of law of which the High Court should take cognizance, questions falling within this residuary category, though not easy of definition in the abstract, can be recognised when they arise in practice.

Wide scope for appellate jurisdiction not contemplated

1J.80. We should add that we do not visualise such a wide scope for the jurisdiction of the High Court as would embrace every question as to which a party is aggrieved. Being essentially the highest court at the State level which declares the law which is binding, the High Court should not ordinarily engage itself in settling merely factual controversies, however great the stakes may be.

The Code of Civil Procedure, 1908 Back

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