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Report No. 136

2.7. Binding effect of High Court judgment. -

It is true that a provision mandating that the pronouncement of a High Court on questions of law shall bind courts and authorities within the State is not found in the Constitution. But it is settled beyond doubt that the pronouncements of a High Court have the same authority within the State as those of the Supreme Court have throughout India. This follows from a number of judicial decisions that have affirmed and reaffirmed the principle mentioned above.

In fact, it is because of the existence of such a principle and it is against the background of such a principle that section 100 of the Code of Civil Procedure, 1908 formulates the right of second appeal to the High Court in terms of phraseology which focuses itself upon the involvement of a question of law. But for this emphasis on a question of law, an emphasis which the Law Commission of India had an opportunity of dealing with in its report on the Code1 this aspect could have escaped attention. But today, it cannot escape attention.2

1. Law Commission of India, 54th Report (Code of Civil Procedure, 1908), Chapter 1-J particularly, para. 1-J.58 and 14.59.

2. Cf. para. 2.9, infra.

This emphasis, as found in section 100 of the Code of Civil Procedure, was more specifically formulated in the recommendation of the Law Commission which has ultimately found its place in the section as amended in 1976. The Law Commission made the following observations as to the rationale underlying the right of second appeal:

"1.J.58. The rationale behind allowing a second appeal on a question of law is, that there ought to be some tribunal having a jurisdiction that will enable it to maintain, and where necessary, re-establish uniformity throughout the State on important legal issues, so that within the area of the State, the law, in so far as it is not enacted law, should be laid down, or capable of being laid down, by one court whose rulings will be binding on all courts, tribunals and authorities within the area over which it has jurisdiction. This is implicit in any legal system where the higher courts have authority to make binding decisions on question of law.

1.J.59. When a case involves a substantial point of law, the general interest of society in the predictability of the law clearly necessitates a system of appeals from courts of first instance to a central appeal court".

As has been observed:

"The real justification for appeals on questions of this sort is not so much that the law laid down by the appeal court is likely to be superior to that laid down by a lower court, as that there should be a final rule laid down which binds all future courts and so facilitates the prediction of the law. In such a case the individual litigants are sacrificed, with some justification, on the altar of law-making, and must find such consolation as they can in the monument of a leading case".

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