Report No. 54
1J.81. To formulate in precise language a test which, while excluding the questions to be excluded from the purview of the High Court will include all questions to be included in its purview in conformity with what we have stated above, is not easy. After careful consideration, we have come to the conclusion that in respect of second appeals to the High Court, it is necessary that the question involved must be a question of law and that it must be a substantial question.
1J.82. It is needless to add that the extraordinary jurisdiction of the High Court under Article 227 of the Constitution-jurisdiction which is admittedly not subject to any rigid limitation pertaining to courts, proceedings or questions-is not intended to be affected by our recommendation or by the preceding discussion.
Distinction between scope of appeal to the Supreme Court and scope of appeal to the High Court
1J.83. We should make it clear that the formulae which we propose will not equate the scope of appeal to the High Court to that of appeal to the Supreme Court. Although the question of law, both in the case of the Supreme Court (under Article 133 of the Constitution) and in the case of the High Court (under our proposal) is described as 'substantial', there is a further aspect which makes all the difference. In the former case, the question must be one which needs to be decided by the Supreme Court and must be of general importance, while in the latter case, there is no such restriction.
The Supreme Court, broadly speaking, will concentrate on questions possessing country-wide importance while the High Court will be free to deal with a wider range of questions. For example, a question whether the purpose for which an institution provided in a remote village is charitable in the legal sense, will hardly, if ever, be dealt with by the Supreme Court. But the High Court may deal with it. Similarly, a question of law on which other High Courts have consistently taken one view, while Benches of the particular High Court have given conflicting decisions, can be re-considered by the particular High Court, but the question may not necessarily be fit for consideration by the Supreme Court.
1J.84. At the same time, it should be clarified that the question of law can relate to procedure, e.g. improper rejection of evidence or improper admission of evidence-in which case correction by the High Court should be available if the question is substantial.
Question need not be of general importance
1J.85. It should be noted that we are not limiting the scope of second appeal to the questions of law of general importance. If the law has been clearly laid down by the High Court, and the decision of the subordinate court is in clear violation of the law as pronounced by the High Court, the power of the High Court to correct it should be left intact. This situation will not be covered if the limitation of general importance is inserted.
Historical aspect considered
1J.86. We are aware that in making a recommendation for cutting down the scope of second appeals to substantial questions of law as above, we are making a departure from a position which has held the field for a century. Even then, we may note that the progress of law has been towards reduction of the scope of second appeal.
1J.87. The predecessors of the High Courts in their Civil appellate jurisdiction were the Sadar Divani Adalats. The right of appeal to the Sadar Divani Adalat was very wide initially, but came to be severely curtailed in the course of time. The "Cornwallis Scheme", for example, made provision for two appeals in every category of cases, irrespective of its value. By 1814, this was reduced to one appeal only. Only in cases of Rs. 5,000 or over, there could be two appeals: one to the Provincial Court of Appeal and second to the Sadar Divani Adalat. As Lord Hastings observed,-
"The facility of appeal is founded on a most laudable principle of securing, by double and treble checks, the proper decision of all suits; but the utopian idea, in its attempt to prevent individual injury from a wrong decision, has been productive of general injustice by withholding redress, and general inconvenience, by perpetuating litigation".
Provisions in Codes of 1859 and 1882
1J.88. There is another aspect of the matter. Section 100 of the present Code is the successor of section 584 (of the 1882 Code), which in its turn corresponded to section 372 of the old Code1 (Act 8 of 1859).
1. In between 1859 and 1882, there was the code of 1877, but its provisions were almost same as those of the Code of 1882.
1J.89. When the Code of Civil Procedure was revised in 1882, only a slight change was made in clause (c). Clause (c) in the 1882 Code laid down that a second appeal would lie on the ground of "a substantial error or defect in the procedure as prescribed by this Code or any other law, which may possibly have produced error or defect in the decision of the case upon the merits". The corresponding part of section 372 of the Code of 1859 gave a right of second appeal on the ground "of a substantial error or defect in law in the procedure or investigation of the case which may have produced error or defect in the decision of the case upon the merits".
The absence of the phrase "investigation of the case", in section 584 of the 1882 Code (and also in present section 100) might lead to the inference that the right of second appeal was intended to be more restricted than it was under the 1859 Code; but, on the other hand, the insertion of the word 'possibly' would lead to the contrary inference. On the whole, however, the change of language in 1882 introduced no material alteration in the law.
1J.90. As was observe1 in an Allahabad case-
"Investigation simply means the process by which conclusion as to the merits of the case are arrived at; procedure means the rules by which that process is to be guided. The one is the subject of the other, and the law will presume that, where there is no defect of procedure there is no defect of investigation. It follows therefore that the omission of the phrase "investigation of the case" in sections 584 implied no intention on the part of the Legislature to restrict the right of second appeal by rendering it narrower than what it was under the Code of 1859. On the other hand, the introduction of the word "possibly", does not go far to show that the present Code intended to extend the right of second appeal".
1. See Nivat Singh v. Bhekki Singh, 1886 ILR 7 All 649 (657) (per Mahmood J.).