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Report No. 79

III. Second Appeals

4.10. Rationale of second appeal.-

We are also not in favour of doing away altogether with the right of second appeal in civil cases on a substantial question of law, as provided by section 100 of the Code of Civil Procedure. The reason for that is that, in our view, there should be uniformity of decisions on questions of law in a State.1 If the findings of the courts subordinate to the High Court when deciding a firs appeal were to have a finality on a question of law, the inevitable effect of that would be that we shall be confronted with situation wherein, on identical question of law, the different courts in the State would be taking different-and sometimes diametrically opposite-views.

This, in our opinion, is wholly undesirable and should not be countenanced. To have uniformity of decisions on a question of law in the same State, we consider it proper that for questions of law the final court of appeal within the State should be the highest court of the State. It also needs to be emphasised that a finding of fact is of importance only to the parties to the case, as it is those parties who are affected by that finding. As against that, a finding on a question of law is of importance not only to the parties to the case but also to a large number of other persons in whose cases; that question of law would arise.

A finding on a question of law is, therefore, of general importance and it is for that reason also that it becomes imperative to ensure that the approaches to the highest court in the State to secure authoritative pronouncements on questions of law should not be barred. We shall have occasion to refer to this aspect later.2

1. See also paras. 10.2 and 10.3, infra.

2. Para. 10.6, infra.

4.11. Appeal limited to substantial question of law.-

At the same time, it was realised that allowing appeal on a simple question of law had given rise to some loopholes for filing all kinds of appeals by stretching the connotation of the word? "question of law" in section 100. It was therefore, thought proper to restrict the right of second appeal under section 100 of the Code of Civil Procedure to an appeal on a substantial question of law. We find no compelling ground to make any further curtailment of the right of second appeal as contemplated by section 100.

4.12. 54th Report.-

Would be useful in this context to refer to what was said by the Law Commission in its 54th Report.1 The Commission observed:

"1J.74. Since we are retaining the right of second appeal with the above modification, the query may be raised why the litigant who, before coming to the High Court, has had one right of an appeal before a subordinate court, should have the right of two appeals on questions of law. In other words, why a multiplicity of appeals should be allowed. Now, it is to be remembered that in any legal system which recognises the binding force of precedent, the status and calibre of the final appellate court on questions of law is vital. This consideration over-balances the consideration of multiplicity of appeals.

It is obvious that the numerous subordinate courts in the districts cannot be final arbiters on questions of law. If the law is to be uniformly interpreted and applied, questions of law must be decided by the highest court in the State whose decisions are binding on all subordinate courts. If the right of second appeal is so abridged as to remove questions of law from the High Court, it would create a situation wherein a number of subordinate courts will decide differently questions of law, and their decisions will stand. Such a situation would be unsatisfactory.

1J.75. The subordinate appellate courts functioning in the districts are not superior courts of record, and their interpretations of law are not binding on other courts. In fact, ordinarily, subordinate courts in one district are not even aware of the pronouncements of other courts in other district (except when a point of law is declared by the High Court in appeal). It is section 100 which enables the High Court to function as the author, distributor and clearing house of pronouncements of law for the benefit of all subordinate courts. The interpretation of the law by the High Court is (subject to the law declared by the Supreme Court) binding on all subordinate courts. It is, therefore, essential for uniformity that every error of law, raising a substantial question is promptly rectified by the High Court by a correct pronouncement of the law."

4.13. Letters Patent Appeals.-

We may also make it clear that our observations regarding right of second appeal on a substantial question of law1 relate only to those cases where first appeals are decided by courts subordinate to the High Courts. So far as first appeals decided by the High Courts are concerned, even when those decisions are given by single judges, we are not, as would be indicated elsewhere,2 in favour of grant of a right of second appeal to a Division Bench of the High Court. The reason for that is that the decision of the court of first appeal in such cases would be given by the High Court itself.

1. Para. 4.12, supra.

2. Chapter 11, infra.

4.14. Measures to expedite hearing.-

We now proceed to consider to what extent improvements in the process of decision of the appeal are possible in order to achieve expedition in hearing without impairing the essence of the remedy or principles of fair play and natural justice.

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