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Report No. 79

Chapter 4

Appellate Jurisdiction under The Code of Civil Procedure

I. Present Scheme and History

4.1. Scope of the Chapter.-

A major part of the judicial business of the High Courts is constituted by appellate and revisional work. This work is of various types-first appeals (civil), second appeals (civil), appeals under special Acts, civil revisions and references, criminal appeals and revisions and the like, in this Chapter, we are concerned1 with appellate jurisdiction under the Code of Civil Procedure, 1908.

1. For Letters Patent Appeals, see Chapter 11, infra.

4.2. Remedy of appeal.-

The cost of litigation could very well be reduced and justice made speedier it the remedy of appeal were to be dispensed with altogether, but it is generally agreed that this is not possible. Giving a stamp of finality to the decisions of the trial court may seem to some to be an easy solution to the problem of congestion in courts, but it should not be overlooked that to every litigant his case is very important. There is, therefore, noting surprising in the attempts made by many of them to exhaust all their remedies in the various courts in the judicial hierarchy before calling a halt to the course of litigation.

4.3. Rationale of the system.-

The rationale of the system of civil appeals in Indian law has been considered at length in two Reports of the Law Commission1, where the history of the relevant statutory provisions has also been dealt with. A brief description of the present scheme would be useful.

1. Law Commission of India, 54th Report (Code of Civil Procedure) and 58th Report (Structure and Jurisdiction of the Higher Judiciary).

4.4. Scheme of civil appeals.-

The Indian procedural law has provided for appeals in civil suits according to a pattern now well known. The Code of Civil Procedure, 1908, provides for first appeal1 against the decree of the trial court, for second appeal on specified grounds against the decree or the first appellate court,2 for appeal against certain orders passed under the Code,3 and for revision4 on specified grounds.

The court in which first appeals have to be filed depends on the provisions of the Civil Courts Act in force in each State5 including (as regards decrees passed by a City Civil Court), the City Civil Court Act in force in some areas.6 Second appeals, and petitions for revision under the Code of Civil Procedure, are to be filed only in the High Court. In addition, appeals and petitions for revision to the High Court are provided for by some Special Acts7 while certain Local Acts vest revisional powers in the District Court.

1. Section 96, Code of Civil Procedure, 1908.

2. Section 100, Code of Civil Procedure, 1908.

3. Order 43, Code of Civil Procedure, 1908.

4. Section 115, Code of Civil Procedure, 1908.

5. See para. 8.2, infra.

6. See para. 8.11, infra.

7. Section 25, Provincial Small Causes Courts Act, 1887 section 75(1), Proviso, Provincial Insolvency Act, 1920; see Chapter 2, supra.

4.5. Two opportunities on facts.-

As has been pointed out in the Law Commission's 54th Report on the Code of Civil Procedure,1 the scheme of the Code, ever since 1859, has been to give a party to suit at least two opportunities of hearing on facts-one by the trial court and another by the appellate court. The right of a litigant to take his cause before a second appellate court on a question of law has also been recognised in our country.

1. 54th Report, para. 1J.16A.

4.6. Appeals to Supreme Court in civil cases.-

Against certain decisions of the High Courts there is a right of appeal to the Supreme Court.1 By a constitutional amendment,2 certain limitations have been introduced on this right. These limitations had their genesis in two Reports of the Law Commission, forwarded on a reference made by the Government of India.3-4-5

The position now is that apart from an appeal with special leave under Article 136 of the Constitution, and apart from the right of appeal in a case involving questions of interpretation of the Constitution, a litigant in a civil proceeding can appeal to the Supreme Court against any final decision of the High Court only if the High Court certifies that "the case involves a substantial question of law of general importance which in the opinion of the High Court needs to be decided by the Supreme Court".5

1. For history of appeal to the Supreme Court, see 44th and 45th Reports of the Law Commission.

2. Constitution (30th Amendment) Act, 1972.

3. Law Commission of India, 44th Report (Appellate Jurisdiction of the Supreme Court in Civil matters) (August 31, 1971).

4. Law Commission of India, 45th Report (Civil appeals to the Supreme Court on a certificate of fitness) (October, 1971).

5. Article 133 of the Constitution; cf. section 109, Code of Civil Procedure.

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