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Report No. 14

7. High Courts-original Side

1. Original jurisdiction of the High Courts in the presidency towns.-

The three chartered High Courts of Calcutta, Madras and Bombay exercise ordinary original civil jurisdiction within the respective limits of the three presidency towns. The source of their original jurisdiction is to be found in the Indian High Courts Act of 1861 and in the Letters Patent of 1865. In addition to their ordinary original civil jurisdiction, the High Courts also exercise original jurisdiction in admiralty, matrimonial, testamentary matters and intestate succession.

In Calcutta.- In Calcutta, the local limits of the High Court's jurisdiction extend over a small but highly important part of the city which is surrounded by the Circular Road. Alipore is the judicial headquarters of the 24-Parganas district, a separate judicial district although lying within the limits of the Calcutta Municipal Corporation; while Howrah which is also a separate judicial district has a separate municipality. Thus, in Calcutta there are three different civil and criminal jurisdictions operating in different areas of the same city.

In Madras and Bombay.- In Bombay, the ordinary original civil jurisdiction of the High Court extends to Greater Bombay as defined in the Greater Bombay Laws and the Bombay High Court (Declaration of Limits) Act, 1945. In Madras also, the original jurisdiction of the High Court extends over the territorial limits of the municipal corporation of the city of Madras.

Under the Letters Patent, the three High Courts had ordinary original civil jurisdiction in all matters irrespective of value except these cognisable exclusively by the Presidency Small Cause Courts. On the criminal side, the High Courts were also the courts of session to which offenders accused of serious crimes committed within their respective territorial limits could be committed for trial.

2. Establishment of City Civil Courts.-

Inroads were made upon the ordinary original civil jurisdiction of the three High Courts with the establishment at different times of the City Civil Courts in the three presidency towns. Madras took the lead in restricting tie original jurisdiction of the High Court by the establishment at of a civil court for the city of Madras as early as 1892. The Madras City Civil Court started with jurisdiction in respect of suits or other proceedings of a civil nature not exceeding Rs. 2,500 in value. This limit was gradually raised until it reached Rs. 10,000 in 1950-51.

By Madras Act X of 1955 it has been further raised to Rs. 50,000 so that the original jurisdiction of the Madras High Court is now confined only to matters exceeding Rs. 50,000 in value. In Bombay, the city civil court for Greater Bombay came into existence with the passing of Bombay City Civil Court Act of 1948. The jurisdiction of this Court was initially Rs. 10,000 and was raised to Rs. 25,000 with effect from the 20th January, 1950. In Calcutta, the City Civil Court was established in 1957 in exercise of the powers given to the State Government under section 3 of the City Civil Court Act of 1953.

The pecuniary jurisdiction of the city civil court is limited to suits and proceedings not exceeding Rs. 10,000 in value excepting certain types of suits compendiously described as 'commercial clauses' in respect of which its jurisdiction is restricted to suits and proceedings not exceeding Rs. 5,000 in value. This Court has, however, no jurisdiction in respect of suits and proceedings relating to or arising out of mortgages or charges or lies on immovable property or suits relating to or arising out of endowments.

3. Continuance of the original side.-

A controversial question relating to administration of justice in the presidency towns is whether the original civil jurisdiction of the three High Courts should continue unrestricted as it was before the establishment of the city civil courts or whether it should be restricted, as it has been, since the establishment of these courts. views have also been expressed advocating the total abolition of this jurisdiction. These questions are closely connected with the examination of the way in which the city civil courts in the three presidency towns have functioned since their establishment.

We have given this matter our earnest attention and have elicited the opinions of leading members of the original and appellate side Bar in all the three towns of Calcutta, Madras and Bombay. The opinion amongst the legal profession has been and is sharply divided. Representatives of those who practise on the original side as also the representatives of the attorney's profession have maintained that the continuance of the original civil jurisdiction of the High Court is necessary in the interests of the high standards of judicial administration in these cities and that the trading and commercial communities who form the bulk of litigants on the original civil side of the High Courts are in favour of its retention.

A contrary view has been expressed by some of the advocates on the appellate side and those practising in the subordinate courts in whose opinion the original side is "an anachronism which has outlived its usefulness and should therefore be abolished in its entirety."1

1. Report of the Judicial Reforms Committee for the State of West Bengal, p. 8.

4. The case for abolition (Uniformity of expense).-

The arguments of persons who are opposed to the retention of the original side may be summed up thus:-

The administration of justice in the presidency towns as well as in the mofussil should follow a uniform pattern. There is no reason why a litigant in Calcutta, Madras or Bombay should have the privilege of having his cases decided by a High Court Judge when the same privilege is denied to a litigant in the mofussil. Further, the nature of litigation both in the cities and the mofussil is generally the same. There is, for instance, no difference between a suit on a mortgage or on a promissory note instituted in a mofussil court and a like one filed in the High Court.

This is an additional reason for bringing the system of administration of justice in the presidency towns on a par with that prevailing in the mofussil. It was also stated that the High Court should only be a court of appeal and that the time of its highly paid judges should not be consumed in hearing original cases some of which would be of a small value and of an unimportant nature. The costs of litigation on the original side where the dual system of attorney and counsel is compulsory were said to be very heavy and beyond the capacity of the average litigant. A complaint was also made against the "complex and archaic procedure"' which is followed on the original side.1

1. It must be stated, however, that this complaint was directed only as the Rules of the Calcutta High Court. The rules of practice and procedure on the original side in both the Bombay and Madras High Courts have been revised and simplified from time to time and no comment was directed against them.

5. views of the Trevor Harries Committee.-

The question whether the original side of the Calcutta High Court should be retained was referred for consideration to the Judicial Reforms Committee for the State of West Bengal. That Committee reached the conclusion "after giving the matter the fullest consideration" "that the Original Side of this Court should not be abolished in its entirety. We are convinced that there is a genuine demand for it particularly in the commercial community and its abolition would be a real loss to the litigant public of Calcutta."1

1. Report, p. 15.

6. No reasons for abolition.-

We have examined all the arguments for and against the retention of the original civil jurisdiction of the three High Courts and we do not feel that satisfactory reasons have been shown for its complete abolition. We are conscious that the judicial power of the High Courts need not and should not be spent over cases which though not technically be small cause claims yet are in fact petty cases; we agree that for the disposal of such simpler cases of a low valuation, a cheaper tribunal is both necessary and desirable.

But that principle has already been accepted by the establishment of the City Civil Courts in Calcutta, Madras and Bombay. But the argument that the administration of justice in the three presidency towns should be placed on a par with the system in the mofussil by a total abolition of the High Court's original civil jurisdiction seems to us to demand uniformity at the expense of efficiency where it is really needed and where the litigant has persistently expressed himself in favour of its maintenance.

It is argued with a great deal of emphasis that there is scarcely any difference between a suit, for instance, based on a promissory note or on a mortgage filed in the High Court and a similar suit filed in the court of subordinate judge in the district. Why then, it is asked, should the litigant in the mofussil not have the same privilege of having his case decided by the High Court? Alternatively, it is questioned, why should the litigant in Calcutta, Madras and Bombay have the advantage of a cheaper tribunal which his opposite number in the mofussil has not?

7. The value of the original side (Levelling down undesirable).-

These arguments overlook the basic fact which has been conceded even by the opponents of the continuance of the original civil jurisdiction of the High Courts in the presidency towns that the administration of justice on the original side of that court is far more efficient than that in the corresponding courts in the mofussil. This is only natural as the tribunal in bringing its mind to bear upon the disputes in the cities is far better equipped and better trained than any tribunal in the mofussil. What then is the justification for depriving the litigants of this efficient system and the efficient tribunal, the benefit of which they have enjoyed for over a century?

Are we out, in the name of uniformity, to lower the standards of our administration of justice? This demand for a levelling down, as it were, .so as to downgrade the litigant in the city to the level of the litigant in the mofussil is the more surprising in view of litigants in the city repeatedly expressing willingness to pay any additional costs that they may have to bear by reason of the continuation of the prevailing system. If financial and other conditions permit, we would feel justified in giving the litigant in the mofussil a better deal by giving him a more efficient system and a more efficient tribunal. The case, if any, should be a levelling up and not for a levelling down of judicial efficiency.

8. Higher cost justified.-

The higher cost involved in the payment of the higher remuneration to High Court Judges to deal with disputes which are being dealt with in the mofussil by lower paid subordinate judges can be justified on two grounds. We have noticed elsewhere the surplus revenue which States make out of the Administration of Justice. In view of this surplus, the reason for economy in the remuneration of judges does not appear to us to have much substance. It has further to be remembered that the manner in which an efficient High Court Judge deals with a money claim or commercial cause or any other suit, always provides a useful model which both the judiciary and the Bar in the mofussil can copy with advantage. It would be detrimental to the sound administration of justice to destroy such models as now exist in the three presidency towns.

9. Complexity of commercial litigation.-

The High Court in the exercise of its original civil jurisdiction does not ordinarily deal with suits on simple promotes or mortgages executed by village agriculturists and written by indigenous village bond writers or suits for declaratory and consequential relief or possession of agricultural land or houses as in the mofussil. A very large proportion of the work particularly in Calcutta and Bombay comes under the compendious term "commercial causes". These are claims for money arising out of the daily transactions of merchants, bankers, traders, large business and financial houses, and corporations.

They relate to the construction of mercantile and technical documents drafted by trained attorneys, to the export and import of merchandise, to contracts of affreightment and carriage of goods by land, contracts of insurance, banking, agency, mercantile usage, infringement of trade marks and like matters. In the Calcutta High Court, 3,686 and 3,535 suits were filed on the original side respectively in 1955 and 1956. They were of the following classes:

ature of Suit



Suits for money or movable property including commercial suit.



Suits for immovable property.



Suit for specific relief.



Mortgage suits.



Testamentary suits.



Matrimonial suits.



Admiralty suits.



Other suits.





* Includes 4 suits under the Hindu Marriage Act.

**. Includes 21 suits under the Hindu Marriage Act.

These figures indicate that a substantial volume of litigation on the original side arises out of commercial causes. The administration reports of the Madras and Bombay High Courts do not give a similar classification of original suits but we were informed by witnesses that a majority of suits on the original side in those places was of a commercial nature. It cannot be controverted that the trained advocates and attorneys who practise on the original side and the Judges presiding on the original side constitute a most efficient system for quick and satisfactory disposal of the highly intricate litigation arising in these large industrial and commercial cities.

10. Limitation of the city civil court.-

It might be argued that even if these be the facts, it is not necessary that the High Court should try such cases. They can be dealt with satisfactorily by a sufficient number of the judges of the city civil court recruited from members of the Bar practising exclusively on the original side and having experience of that class of work. This is true only upto a point and its acceptance is implicit in the creation of the city civil court with a limited jurisdiction. It is difficult to recruit suitable members of the Bar to be judges of the city civil court.

In Madras, the principal judge of the city civil court is a senior district judge while all the other judges are members of the State Judicial Service. In Calcutta also, the newly established city civil court has judges all of whom are district judges. Only in Bombay, a fairly large proportion of the judges of the city civil court is from members of the Bar. The rest are senior district judges.

The pay of a judge of the city civil court in Bombay is, however, higher than that of a district judge. The principal judge is paid Rs. 2,500 per month and other judges Rs. 2,000 per month with the additional privilege that in the case of the principal judge the age of superannuation is extended to sixty years. Even so, there have been instances in Bombay of city civil court judges having resigned and resumed practice on the original side after serving for a few years.

The difficulties experienced in recruiting suitable members of the Bar to the High Court Bench in Calcutta and Bombay in particular have been brought to our notice and referred to by us elsewhere. The problem of finding the right type of judges for dealing with cases of the type described above will become more acute if the original civil jurisdiction of the three High Courts is abolished and transferred to the city civil courts.

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