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Report No. 79

10.2. Basic principles.-

This aspect has a vital connection with two basic principles of our constitutional and legal system, and its interest therefore transcends the boundaries of mere procedural law. It is a basic principle of our legal system that precedent is a source of law. This postulates that there shall be a superior court with jurisdiction to determine questions of law, whose determination shall find a place in the law reports of the country. Then, it is also a postulate of the rule of law that if the law has been clearly laid down by such a superior court, and the decision of a subordinate court when exercising appellate jurisdiction is in clear violation of the law pronounced by the superior court, the power of the superior court of the State to correct that decision should be recognised.

10.3. Implicit assumption of section 100.-

These may be said to constitute the implicit assumptions underlying the right of appeal to the High Court from appellate decrees, provided by section 100 of the Code of Civil Procedure, 1908. These are also the implicit assumptions underlying the negative provision in section 101 of the same Code, to the effect that no second appeal shall lie except on the grounds mentioned in section 100.

10.4. Second appeal under amended Code.-

Section 100 of the Code, as amended in 1976, allows a second appeal only if the High Court is satisfied that the case involves a substantial question of law. The limitation flowing from this provision may be emphasised.



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