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Report No. 54

Need for improvement

1B.11. At the same time, as an American writer has observed1-

"The need for procedural improvement in the civil courts is a subject of much current interest and effort on the part of the organised American bar, as well as of the judicial and other official agencies. It is fair to state that a steady progress in the improvement in civil procedure is being made. It is doubtful, however, whether any efforts at reform, no matter how sincere or how long continued, can reduce our civil procedure to that degree of simplicity which the layman is likely to think it ought to have. The situations which rules of procedure are designed to meet are in many cases rather complicated; and the framing of 'simple' rules to control complicated situations too often results not in simplicity, but rather in uncertainty and ambiguity, the resolving of which in turn entails the exercise of uncontrolled, and in procedural matters virtually, unreviewable, discretion by the judge."

1. Mayers The American Legal System, (1955), p. 242.

1B.12. These are the principles which have guided our approach. Important recommendation

1B.13. We shall now refer to some of the important matters in respect of which we have recommended an amendment of the law.

Res Judicata

1B.14. One of the significant provisions of the Code1 relates to res judicata. The provision in the Code on subject is, however, not comprehensive enough to cover a few proceedings, and we have considered it necessary to suggest an amendment in order to extend its scope by an express provision to certain proceedings. Further, the present requirement that the court whose judgment is sought to be set up as res judicata in the later suit should have been competent to try the subsequent suit, creates difficulties when a question which was decided by the previous court comes up for decision before a later court of higher jurisdiction.

We are therefore recommending an amendment in the procedure in this regard, under which a court of lower jurisdiction will, when such a question comes up incidentally, be expected to refer the matter to the District Court, so that the trial of the entire litigation before a more competent court can be arranged. These amendments should not be regarded as merely technical, because it is well-known that the doctrine of res judicata is based on the principles that there ought to be a finality in litigation and that a person ought not to be vexed with the same controversy twice.

1. Section 11.

Suits relating to public matters

1B.15. While our recommendation regarding res judicata and certain other matters is intended to reduce delay, there is another object of law reform which we have sought to achieve, namely, modernisation and simplification of the law, in proposing expansion of the scope of suits relating to public matters. In the Code, there are, at present, two main provisions1 covering suits relating to public matters, namely, section 91 which deals with suits relating to public nuisances, and section 92 which deals with suits relating to public trusts. As society advances and the life of the community becomes more complex, the importance of injuries to the public (as contrasted with injuries to private individuals) increases.

The relevance of these phenomena is seen not only in the criminal law-we had occasion to deal with this aspect in the field of criminal law in one of our Reports,2-but also in the field of civil law. Public nuisances are familiar and well understood types of injuries to the public; but there are other injuries to the public, and there ought to exist a provision for enabling responsible persons to file suits for the removal of public injuries of other kinds. It is from this point of view that we are recommending an amendment of section 91, which will widen its scope so as to cover all injuries to the public.

1. Sections 91-92.

2. 47th Report (Social and Economic Offences).

1B.16. We need not deal elaborately with the scope of injuries to the public that will be covered by the amended section, but we may state, by way of illustration, that in the case of big frauds on consumers, whether they be consumers of goods, services or other objects of consumption, it will be possible, under the amended section, to bring a suit on behalf of the consuming body. Such a suit could appropriately be for declaration or for injunction. It is axiomatic that the existence of a suitable procedure facilitates the pursuit of appropriate remedies; and this, in turn, also helps in the clarification of substantive rules of law relating to the matters which are the subject-matter of the remedies pursued.

It could even pave the way for legislative action. As an American writer1 has pointed out, constitutional litigation, even where unsuccessful in the courts, may stimulate, the legislature to action. "All the major social changes which have made America a finer place to live have their basis in fundamental constitutional litigation. Somebody had to sue somebody before the legislature took long overdue action"2.

1. Yannacone A Lawyer answers the Technocrats (August-September, 1969) 5 Trial, pp. 14, 15 cited in The New Public Interest Lawyers, (1970) Yale Law Journal, pp. 1069-1101.

2. Yannacone, quoted in Rogin, All He Wants to Save is the World, Sports illustrated Feb. 3, 1969, p. 24, cited in 'The New Public Interest Lawyers", (1970) Yale Law Journal, pp. 1069-1109.

1B.17. In respect of the right of second appeal, we recommend an amendment which will reduce both expense and delay. The increasing number of second appeals in the High Courts has added to the arrears of the High Courts, with the result that appeals which are more than five years old, come up for hearing today; but quite apart from this aspect, the jurisdiction of the High Courts in second appeal has, to a large extent, been wrongly invoked in order to seek interference at the hands of the High Courts in respect of questions which are really questions of fact. Questions of law are the only questions which ought to be dealt with in second appeal.

The role of the High Court, as we conceive it, is not that of correcting errors of fact in matters which come before it. Its proper role is of maintaining and re-establishing uniformity in matters of law, and re┬Čintroducing certainty, where necessary, and of keeping the content of the law intelligible and accessible by means of a binding precedent. This is our approach, and consistently with this approach, we are recommending an amendment of section 100 which will permit second appeals only on substantial questions of law. We have dealt with the broad features of our approach in the relevant chapter, where we consider the question of amending section 100.


1B.18. Analogous to the topic of second appeals is that of revisional jurisdiction of the High Court under section 115 of the Code. Controversies galore have, from time to time, arisen as to the exact scope of this jurisdiction; and it is well-known that some of the expressions which occur in the section1, such as "case decided", "material irregularity" and the like, have offered a fertile field for the exercise of legal ingenuity. But these expressions have also been the cause of considerable delay in the administration of justice, and of avoidable suffering to litigants.

1. Section 115.

1B.19. As Rangnekar, J. observed2 with reference to section 115-

"Here a professional lawyer is sorely perplexed and bewildered by the conflict of judicial decisions as to what is the meaning of the expression "case which has been decided" in section 115, C.P.C. and what is the meaning of clause (c) in that section when it is said that the Court has acted in the exercise of its jurisdiction "illegally or with material irregularity", and one can only express a pious hope that the legislature may step in and say precisely what it means and fix the limits of revisional jurisdiction of the High Courts, in a manner intelligible even to a layman."

The first two clauses (a) and (b) of section 115 do not present any difficulty; it is the last clause that does.

1. Bai Chandan v. Chhotal, AIR 1932 Bom 584 (586).

1B.20. We have, after careful consideration, come to the conclusion that revisional jurisdiction exists solely for the purpose of correcting manifest and serious injustice; and the correction of such injustice is amply taken care of by the powers of High Courts under section 227 of the Constitution. Any other matters decided by lower courts-even though the decision may appear to be erroneous should not be taken to the High Court in revision. On this principle, we are recommending the deletion of section 115.

The Code of Civil Procedure, 1908 Back

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