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Report No. 54

Direction of historical evolution

1J.91. It would, thus, be seen that the direction of historical evolution is towards gradually narrowing down the scope of second appeal to the Sadar Divani Adalat and later to the High Court. We, can, therefore, legitimately claim that having regard to the social needs of today, we are attempting to hasten the process to narrowing down the scope of second appeals.

1J.92. In the light of the above discussion, we recommend that section 100 should be revised as follows:-

Re-draft of section 100

"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 if the High Court certifies that the case involves a substantial question of law.

(1A) In an appeal under this section the memorandum of appeal shall precisely state the substantial question of law on which admission of the appeal is sought.

(1B) Where the High Court certifies that a substantial question of law is so involved, it shall, at the time of admission of the appeal:

(a) formulate that question;

(b) state its reasons for so certifying; and

(c) specify any other points that were raised at the time of the hearing prior to the admission, but not accepted as raising substantial questions of law.

(1C) The appeal shall be heard only on the question so certified, and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:

Provided that a question not so certified and not raised prior to the admission of the appeal may, if the High Court considers proper, be argued on such terms as to costs or otherwise as the High Court orders, after hearing the opposite party as to whether such order ought to be passed.

Main points summarised

1.1.93. It may be convenient to summarise the main points regarding section 100, as made in the above discussion:-

(i) Reasonable limitations are desirable on this right, in the interest of the public and in the interest of the litigants themselves.

(ii) The basic principle, even behind the present section, is that decisions of the first Court of appeal on facts should be final.

(iii) Clause (a) and clause (b) of section 100 purport to be faithful to this basic principle; clause (c) goes beyond it.

(iv) Even as regards clause (a) and clause (b), decided cases as to what are questions of fact and questions of law (including decisions which allow second appeal where there is no evidence) and also decided cases dealing with mixed questions of fact and law, show that in actual practice, the basic principle referred to above has been departed from.

(v) The question what is the proper scope of the right of second appeal is linked up with the proper role of the High Court. The proper role of the High Court, in the Commission's view, is to introduce and re-introduce uniformity in the State, on substantial questions of law. The High Court is not an ordinary court of appeal, to be invoked for correcting the errors of subordinate courts on all conceivable questions.

(vi) The rationale behind the right of second appeal being as stated above, only substantial questions of law should be agitated in second appeal.

(vii) Limitations on the right of second appeal are, therefore, desirable. Replies to the Questionnaire having been considered, the Commission has come to the conclusion that a second appeal should be allowed only where the case involves a substantial question of law.

(viii) Nature of the questions of law that would fall within the above. formula is then indicated.

(ix) It is also made clear, that a wide scope is not contemplated for the jurisdiction of the High Court.

(x) The formula indicated is illustrated in its application.

(xi) The proposed amendment does not go against the trend of history, as is shown by the evolution of section 100.

The Code of Civil Procedure, 1908 Back

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