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Report No. 79

11.7. Question of Law.-

So far as questions of law are concerned, there no doubt exists under the Code a right of second appeal to the High Court, against the judgment passed in appeal by a court subordinate to the High Court, if a substantial question of law is involved. We have, in an earlier Chapter, examined the rationale of second appeal under section 100 of the Code. As we have already stated1 the principle underlying such appeals is that on questions of law, the authoritative pronouncement should emanate from the High Court, whose pronouncement on such questions would be binding on all the courts in the State.

Now, most of regular second appeals are decided by single Judges and no further appeals can be filed in the High Court against such decisions in view of the express bar created by section 100A of the Code of Civil Procedure. Enunciations of principles of law2 when given by single judges in second appeals thus bind the courts in the State. It would, therefore, seem somewhat anomalous that such enunciations of law should lose their binding force if they emanate from single judges of the High Court when dealing with first appeals. Necessity of affording a right of second appeal on substantial questions of law may exist when the matter is decided by a court subordinate to the High Court, but this consideration loses its relevance where the decision sought to be appealed from is itself that of a High Court judge.

In this sense, a further appeal under the Letters Patent is anomalous, even on questions of law. There may be justification for allowing an appeal to the High Court (on law) from a judgment in first appeal passed by a subordinate court, but not when the first appeal itself is decided by a judge of the High Court. The demands of uniformity of law are amply satisfied by allowing an appeal to the High Court, and a further appeal is not needed. Of course, in all appropriate cases, where the question of law is of importance or needs an authoritative.pronouncement by a larger Bench, it would be always open to the single judgeP to refer the matter to a larger Bench. But there is no compelling reason for, permitting a second appeal in such cases.

1. Paras. 4.10 to 4.13, supra.

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

3. Compare para. 11.9, supra

11.8. It is for these reasons that we have made the recommendations on the subject,1 to which we have already made a reference.2

1. Paras. 8.9 and 8.10, supra.

2. Para. 11.3, supra.

11.9. Appeals against judgment on the original side.-

It may be mentioned that under the Letters Patent of the High Court or other instrument creating the High Court, appeals against the judgments of the single judge exercising original or writ jurisdiction lie to a Division Bench of me High Court.1 Nothing herein stated would affect the maintainability of such appeals.

1. Para. 11.1, supra.



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