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Report No. 163

2.8. Clause 10 of the Amendment Bill proposing to substitute existing section 100A.-

By virtue of this amendment, the Letters Patent Appeal against the judgment and decree of a single Judge made in an appeal preferred under section 96 of the Code as well as the Letters Patent Appeal preferred against the judgment and order of a single judge in an application made under Article 226 or Article 227 of the Constitution is sought to be done away with altogether.

2.8.1. So far as the proposal to abolish the Letters Patent Appeal against the judgment and order of a learned single judge made on an application under Article 226 is concerned, there was a strong and uniform opposition against the proposal from both the members of the Bench and the Bar. Such a move would only result in adding enormously to the burden of the Supreme Court because the only remedy, then available would be to approach the Supreme Court under Article 136 of the Constitution.

2.8.2. So far as Article 227 is concerned the position is the same. However, the procedure followed by different High Courts in this behalf is not uniform. For example, in the High Court of Andhra Pradesh and probably in some other southern High Courts too, an application under Article 227 of the Constitution is treated and registered as a civil revision Petition. In such a situation, there is no question of any Letters Patent Appeal against the order made on such an application/petition.

In some other High Courts, however, an application under Article 227 is generally treated on par with an application under Article 226. Yet another distinctive practice peculiar to Allahabad High Court appears to be that by virtue of Uttar Pradesh High Court (Abolition of Letters Patent Appeal) Act, 1962, 'Letters Patent Appeal' stands abolished against the orders of single Judge made on a writ petition (a petition under Article 226 of the Constitution) preferred against the judgment and orders of tribunals and other quasi-judicial authorities.

2.8.3. The Law Commission is of the opinion that so far as the proposal to abolish Letters Patent Appeal against the judgment and order, whether interim or final of a single Judge made on an application under Article 226 or Article 227 is concerned, it is neither advisable nor desirable. Quite a few of the writ petitions disposed of by single Judges in various High Courts involve substantial stakes and have serious consequences both for the State as well as the citizens. Very often, the writ petition is an original proceeding.

At any rate, it is an original proceeding in a civil court i.e., High Court. There ought to be at least one appeal against the order made by a single Judge on applications preferred under Article 226. The proposed move is certainly not in public interest because in many cases the public interest may suffer if such a proposal is given effect to.

The Law Commission, therefore, strongly recommends against the move to abolish the Letters Patent Appeal against the judgment and orders made by a single Judge on an application made under Article 226 or Article 227, wherever it is available at present. The existing practice prevailing in various High Courts ought to be continued. In fact, by virtue of the aforementioned UP Act of 1962, a large number of appeals are being preferred in the Supreme Court against the judgment and orders of single judges made in writ petitions filed in the Allahabad High Court.

2.8.4. Now coming to the proposal to abolish the Letters Patent Appeal against the judgment and decree of a single Judge made in an appeal against the original decree (i.e., under section 96 of the Code), two strands of opinions can be said to have emerged in the various conferences and in the responses received from the various governments, organisations and individuals.

While one view is to continue the existing practice without any change, the other view is to limit this right only to substantial questions of law arising from the judgment of a single judge on the lines of section 100 of the Code. A few participants supported the proposal in its entirety. The opinion ultimately expressed by a majority of the participants/respondents is that the provision of Letters Patent Appeal against the interim/interlocutory orders made by a single Judge in such first appeals should be done away with though the letters patent appeal against the final judgment/decree should be retained in a restricted fashion.

It was suggested by some of the Hon'ble Judges of the High Court that not many Letters Patent Appeals were filed against the judgment and decrees of single Judges in first appeals and that even among those filed, a majority were dismissed at the stage of admission itself.

2.8.5. The law Commission is of the opinion that so far as the final judgment and decrees made in first appeals (appeals preferred against the judgment and decree in an original suit) are concerned, it is both advisable as well as desirable that the Letters Patent Appeal should not be abolished altogether against such judgment and decree. The suggestion to restrict the Letters Patent Appeal in such matters to substantial questions of law only on the lines of section 100 of the Code is laudable and deserves to be accepted.

This suggestion is made in view of the fact that according to the law laid down by the Supreme Court and certain High Courts, in such Letters Patent Appeals even questions of fact are open to review, though as a matter of practice, the Letters Patent court ordinarily respects the concurrent findings of fact. Be that as it may, the restriction of the Letters Patent Appeal to substantial questions of law alone would not only restrict and reduce the number of such Letters Patent Appeals but would drastically cut down the admission rate of such appeals. No such appeal should be permitted against interim/interlocutory orders.



The Code of Civil Procedure (Amendment) Bill, 1997 Back




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