Report No. 14
11. Retention favoured by the commercial community.-
One important fact needs also to be remembered that t e litigant public in Calcutta and Bombay is in favour of the retention of the High Courts' original civil jurisdiction because it has greater confidence in the High Courts. The Trevor Harries Committee in West Bengal had before it the views of all the Chambers of Commerce in Calcutta. The representatives of some of them also appeared before the Committee and made it clear that all the associations except one desired the continuance of the High Court's jurisdiction for various reasons. The Committee said:
"We have tried to consider this question of the continuance or abolition of the Original Side purely from the point of view of the litigant public and we have not allowed our minds to be influenced by the probable effect of our views on the interests of the various classes of Advocates and Attorneys and Solicitors. Practitioners are servants of the litigant public and their interests must be subordinate to the interests of the litigants. We have approached the question from the point of view of efficiency, expedition and expense and having given the matter our most careful consideration were of opinion that the Original Side of the Calcutta High Court should not be abolished but should continue to function and have exclusive jurisdiction over particular classes of cases."1
1. Report, p. 12.
In Bombay also, the opinion of the commercial community has generally been in favour of the retention by the High Court of its original civil jurisdiction. A leading member of the Bombay Bar stated:
"It cannot be disputed that the confidence which the public has in the High Court-I believe it will long continue-cannot be inspired by Judges whose tenure is not the tenure of the High Court Judge."
Another very senior member of the Bar in Bombay stated that the litigation on the original side was mostly commercial litigation and that the city civil court had been established in spite of the opposition of the Chambers of Commerce of Bombay. The litigants' confidence in the original side of the High Court is reflected in the very small number of original side appeals from decrees passed by a single Judge on the original side. It is probable that the appeals brought from an inferior court to which the original jurisdiction of the High Court may be transferred in toto would considerably exceed the appellate work that now arises out of the same category of cases disposed of on the original side. If that happens, a cheaper tribunal would by no means be a measure of economy either for the litigant or for the State.
12. Extension of original jurisdiction (Desirable but not practicable).-
It might be suggested in this connection that confidence in the justice administered by the High Court is not restricted to the litigant in the presidency towns and that even litigants outside these towns share such confidence. Why then on principle, should not the areas of the State outside the three presidency towns be included in the High Court's original jurisdiction, at least in respect of cases exceeding a certain valuation, say Rs. 20,000? If such a measure were within the bounds of practical possibility, it would certainly be a change which we would favour. But it needs little thought to envisage the practical difficulties involved in such a proposal.
Apart from an increase in the work in the High Courts, which requires additional judges, the hardship and inconvenience in bringing to the High Courts, original suits from distant mofussil areas would far outweigh the advantages of the original side and defeat the principle of justice being brought as near the litigant as possible. It would also mean to the mofussil litigant the heavy costs of travel from his town to the seat of the High Court and of bringing his witnesses and possibly his legal advisers also. It would, therefore, be neither prudent nor practicable to thrust upon the mofussil litigant the luxury of having his original cases decided by the High Court.
13. Original side litigation costly (Costs not excessive).-
A further argument advanced in support of the abolition of the original jurisdiction is that the system obtaining on the original side is expensive and that the cost of litigation on the original side far exceeds the cost in the courts of the districts or in the city civil courts. It should be remembered that in the city civil courts and other subordinate courts ad valorem court fees are payable whereas on the original side of the three High Courts no such fees were payable until very recently.
The ad valorem scale of court fees was introduced on the original side of the Madras High Court from 1950 and in Bombay also ad valorem court fees became payable on the original side soon after the establishment of the city civil court. So far, therefore, as the payment of court-fees are concerned, the High Court and the other courts have been brought on the same level. The Calcutta High Court still retains a low scale of court-fees on the original side.
There is, however, no clear evidence which can lead us to a definite conclusion that the costs which a litigant has to incur on the original side are generally higher than those incurred by a litigant in the same class of suit or proceeding in the district court or in the city civil court. In fact, we were told by witnesses having experience of the original side work both in Bombay and Madras that the twin objectives of making litigation cheaper and of ensuring greater dispatch with which the city civil courts had been created had by no means been achieved and that on the contrary while the costs had not diminished, long delays occurred in the disposal of cases in the city civil courts.
14. The dual system.-
The attack against the original side on the ground of excessive costs arises mainly from the existence of the dual system which requires the employment of two sets of lawyers, namely, the advocate and the attorney. We have dealt with the question of disproportionate costs which the dual system is alleged to involve in the Chapter on the Bar. We do not wish to repeat here what has been stated there. Dealing with this charge the All India Bar Committee stated in its report:
"There is a good deal of controversy as to whether the costs on the Original Side of the High Courts are really heavier than the costs actually incurred on the Appellate Side or in the District Courts The costs charged by the Advocates on the Appellate Side or by the Advocates or Pleaders in the District or other Subordinate Courts have no reasonable relation whatever to the costs calculated on the basis of the Court-Fees Act. In Harries Committee's Report is given an instance where in a suit pending before a District Judge the costs allowed amounted to Rs. 3,900 whereas it transpired in the case that the actual costs of the litigation of the plaintiffs were over Rs. 72,000.
On the Original Side there is a system of taxation and it is known how much the client had to pay the Solicitor, whereas on the Appellate Side and in the Subordinate Courts, there is no scale of fee fixed by the court which the client has to pay to the Advocate or Pleader. It cannot therefore be said with any amount of certainty that the costs of a litigant an the Original Side are in excess of the costs which a litigant in the District Court actually incurs. In any case, if the costs are heavy by reason of the dual system, then the remedy lies in minimising the costs and not in putting an end to the system itself1.
1. Report, p. 31, para. 78.
The same view was expressed by the Trevor Harries Committee as regards the Original Side of the Calcutta High Court:
"It is said that the cost of litigation on the Original Side far exceeds that in the district courts. Costs on the Original Side are subject to strict taxation and no Attorney or Solicitor can recover from his client any sum greater than the costs allowed on taxation. In the mofussil and indeed on the Appellate Side of the Court the costs of litigation are very different from the costs allowed under orders of this Court. It is admitted on all hands that the costs allowed to litigants in the mofussil and on the Appellate Side of this Court bear no relation whatsoever to the actual costs incurred. It is, therefore extremely difficult to say with certainty what the costs of a suit in the mofussil or the costs of an appeal on the Appellate Side of this Court really are. The costs allowed by the rules of this Court form a very small percentage of the costs actually incurred and for which the parties are liable."1
1. Report, pp. 10-11.
The costs are said to be excessive because of the double set of legal practitioners required on the original side. So far, however, as the attorney is concerned, elaborate rules have been made for the taxation of costs not only between party and party but also between attorney and client whereas on the appellate side or in the district and subordinate courts no rules exist for the taxation of costs between advocate and client. In the case of a dispute between the attorney and the client as regards the former's costs, the attorney's bill is laid for taxation before the Taxing Master and the attorney can recover from the client only such costs as are allowed by the Taxing Master according to the rules made by the High Court in that behalf.
The High Courts have made rules reducing the costs from time to time. In the Rules of the Calcutta High Court, there is a provision for taxation of a reduced scale in mortgage suits in which the total sum due towards principal does not exceed Rs. 4,000 and in suits for partition of property not, exceeding Rs. 20,000 in value. The Rules of the Bombay High Court go a step further and provide for quantification of costs in various kinds of suits and proceedings instead of costs being calculated on items of work done by the attorney. Similarly in the taxation of costs between party and party, the costs of attendance of Counsel in all matters where attorneys have a right of audience are not allowed unless the Judge certified that it was a fit case for employment of Counsel.
Rule 89 of Chapter VI of the Bombay High Court, Original Side Rules contains a long list of matters disposed of by a chamber judge in which attorneys can be heard and costs of Counsel in attendance are not allowed as between party and party. In Madras, with the levy of uniform ad valorem court fees in the High Court as well as in the city civil court and the non-existence of the dual system, it makes little deference to the litigant in the matter of costs whether the suit is dealt with in the city civil court or on the original side of the High Court.
15. Costs not excessive.-
We are not, therefore, inclined to accept the view that the abolition of the original side is justified on the ground of excessive costs. As a matter of fact, with the establishment of the city civil courts in Bombay and Madras, matter involving Rs. 25,000 and Rs. 50,000 or less have been taken away from the original side of the High Courts. As we have stated earlier, whether the creation of such courts has conferred any benefit upon the litigant or not is a matter on which there is a considerable difference of opinion. But as the All India Bar Committee has pointed out the point to be noted is that the cases that now remain in the Bombay High Court and also in the Madras High Court are of a very substantial value and the parties to these suits can well afford to pay for the efficient service they prefer to have.
16. Archaic procedure (Original side to be retained).-
As stated earlier, the difficulty of archaic procedural rules and the resulting delay in the costs was brought to our notice in regard to the original side of the Calcutta High Court. That is not a matter of fundamental importance. The High Court at Calcutta can take steps to revise its rules so that the clumsy and dilatory procedures may be removed as has been done in Madras and Bombay. We are, therefore, of the opinion that the original side of the Calcutta, Bombay and Madras High Courts should not be abolished but should be retained.
17. City civil courts.-
We have incidentally referred to the city civil courts in the three presidency towns while dealing with the original civil jurisdiction of the High Courts. We are satisfied that for the disposal of cases not exceeding Rs. 10,000 in value, a court of this type is desirable and necessary. Whatever be the criticism against such courts, their creation is now a fait accompli and it will be a retrograde step to abolish them altogether. There is, however, a strong current of opinion against the sudden increase in the jurisdiction of the city civil courts in recent years-from Rs. 10,000 to Rs. 25,000 in Bombay and to Rs, 50,000 in Madras. In Calcutta, the court has come into existence only since February 1957 with a very limited jurisdiction and it is too early to judge the results of its working. We shall, however, examine the working of these courts in Madras and Bombay since the increase in their jurisdiction.
In Madras, it was strongly pressed upon us that the increase in the city civil court's jurisdiction had not resulted either in the reduction of costs to the litigant or in the quicker disposal of suits; that on the contrary, while costs had not been reduced, long delays had occurred in the disposal of cases in that court. It was said that the only benefit which the court had conferred was upon the State by enabling it to effect a saving in the remuneration of the judiciary. So far as costs are concerned, court-fees at uniform ad valorem rates are now payable in the High Court as well as in the city civil court.
The dual system which in Calcutta and Bombay is held responsible for the alleged higher costs on the original side does not prevail in Madras. With the sudden increase in the jurisdiction of the city civil court from Rs. 10,000 to Rs. 50,000, the bulk of the original side work was taken away from the High Court and transferred to the city civil court with the result that the lawyers who were till then practising exclusively on the original side had moved to the latter. This they could do with ease because in Madras (as in Bombay) the city civil court is located in the premises of the High Court itself.
Even so, as described to us by a senior advocate on the original side, not only were there long delays and unmethodical work in the city civil court but the progress even of the work in respect of which the High Court still retained its original jurisdiction had considerably slowed down. When the jurisdiction of the city civil court was Rs. 10,000, it was presided over by one or two judges; but their number was increased to about eight judges when the jurisdiction was raised to Rs, 50,000. What happens on any day before a judge of the city civil court has thus been described to us:
"There is a huge pile of papers there and about 35 or 40 suits are posted for final disposal. They are all called on, and sometimes the learned Judge gives a fresh date and adjourns about 20 of them. Then he keeps 9 or 10 of them in the hope that he will be able to finish them off in the day but at about 4 or 5 o'clock he finds that he could not finish them and (the parties in) those which are not finished are relieved and asked to come again and invariably it happens in each court that there will be four, five or even six part-heard cases every day."
19. As regards the original side of the High Court, a senior practitioner explained that as, in addition to the original suits above Rs. 50,000, the High Court has to deal with matters arising under the Banking Companies Act, the Insolvency Act, guardianship matters, liquidation matters and the like, the lawyers practising on the original side have to keep moving between that court and the city civil court. It was said that "the very object of attempting to save the time of the High Court has been defeated". The Bar, we were told, had made a representation to Government against the sudden increase in the city civil court's jurisdiction but Government's reply was not encouraging. The Bar was told that it was more a matter of sentiment than anything else and that the view of the Government was that, litigants in Madras should not have the privilege of having their cases decided by the High Court, which the mofussal litigants did not have.
In Bombay, the principal judge of the city civil court placed before us some elaborately worked-out statistics to show that the delays in his court were due mainly to the insufficient number of Judges. The contrary view was, however, expressed by representatives of the original side Bar who pressed for a restoration of the High Court's original jurisdiction in matters exceeding Rs. 10,000 in value. The court started in 1948 with four judges. The number was increased to six in 1951 after the jurisdiction was raised to Rs. 25,000 and from 1955 onwards nine judges are working in that court. In spite of this increase, according to the evidence of the.principal judge, heavy arrears had accumulated at the end of 1956.
The principal judge did not state that the delay was due to the original side procedure which is followed in the city civil court. On the contrary, his view was that procedure led to expedition. His main complaint, however, was that all though there had been a sudden rise in the number of institutions since 1951, there had been no corresponding increase in the number of judges. The principal judge gave us figures which are furnished in the accompanying Table (Table I) showing the average disposal of ordinary civil suits per day. However, the accompanying comparative Table (Table II) seems to indicate that shortage of judges may not be the only reason for the delay in the city civil court.
The proportion of uncontested and contested cases to the total number of suits disposed of in the city civil court and in the High Court must be specially noted. Normally, only three judges sit on the original side to dispose of not only all ordinary civil suits but all other proceedings arising on the original side including company matters, land acquisition references and testamentary and matrimonial suits. The suits in the High Court which would be of more than Rs. 25,000 in value are likely to be more strenuously contested. A comparison of the two Tables will show, however, that the increase in the jurisdiction of the city civil court has not led to quicker disposal of cases but has, on the contrary, caused greater delays.
Although the city civil court follows the original side procedure, the dual system is not compulsory in that court. The principal judge explained to us that only about thirty per cent of the work in the city civil court was done by the members of the original side Bar. Thirty per cent of the work was attended to by practitioners who had migrated from the small cause court and another thirty per cent by practitioners who were displaced persons.
He also admitted that judges of the city civil court experienced difficulty in controlling counsel with the same degree of firmness as the High Court and that if the evidence or the arguments were sought to be restricted, criticisms were levelled against the judges that they tried to browbeat the witnesses or that they wanted a compromise of the case. Whatever be the reasons, from the evidence available to us, we are led to the conclusion that the increase in the jurisdiction of the city civil court from Rs. 10,000 to Rs. 25,000 has not resulted in either the cheapening of litigation or in quicker disposal.