Report No. 14
15. Civil Appeals
1. Appeals, Scope of Existing law relating to.-
The Indian legal system knows of three procedures by which a litigant can obtain relief against decrees or orders passed by a Court. He has a remedy by way of appeal, revision or review. We are, in this chapter, concerned only with the right of appeal.
2. Right of appeal conditioned by value.-
The right of appeal in civil proceedings is primarily conditioned by the value set upon the subject matter in dispute in the suit for the purpose of jurisdiction. As we have seen, almost the entire volume of original civil litigation is disposed of by judicial officers of the class of Subordinate Judges or Senior Civil Judges, and Munsifs or Junior Civil Judges. The limits of their pecuniary jurisdiction are defined by the respective Civil Courts Acts. These limits are not uniform.
In the case of Munsifs or Junior Civil Judges, their pecuniary jurisdiction varies from Rs. 10,000 in Bombay and Madhya Pradesh to Rs. 1,000 in Punjab and Orissa. Above these limits, the Subordinate Judges or Senior Civil Judges exercise unlimited pecuniary jurisdiction in all States, except a few. All suits above the pecuniary limits of the Munsifs or Junior Civil Judge's jurisdiction, which are generally assumed to be more important, are triable exclusively by the Subordinate or Senior Civil Judge.
3. First Appeals to District Court and the High Court (Appeals to the Supreme Court).-
From the decrees passed by the Courts in these suits, the law provides a first appeal to the district court or the High Court on questions of facts as well as laws.1 There is a further right of appeal to the Supreme Court under Article 333 of the Constitution and section 109 of the Civil Procedure Code from a decree passed in appeal by a High Court, subject to certain conditions.
1. Within defined pecuniary limits, appeals lie to the District Judges from decisions of the Subordinate Tribunals.
4. No right of appeal in small cause suits.-
Small and simple suits for money or movable property and the like fall within the jurisdiction of the Courts of small causes or regular Courts exercising the powers of a Court of small causes. These cases are tried summarily according to the small cause Court procedure, and there is no right of appeal from decrees passed in such suits but only a right to invoke the High Court's revisional jurisdiction.1 If cases of this description are tried according to the regular procedure by Courts not invested with powers of a small causes Court, only one appeal is allowed on facts and law to the district appellate Courts and no further appeal lies to the High Court, unless the value of the subject matter in dispute exceeds Rs. 1,000.
1. In U.P. revisions lie to the District Judge.
5. Right for second appeal.-
There is a large volume of cases which may either be (a) of a small cause nature, but the value of the subject matter of which is above Rs. 1,000 and below the upper limit of the Munsifs or Junior Civil Judge's jurisdiction as denied by the local Civil Courts Acts or (b) of a nature which, under the law for the time being in force, are excepted from the cognizance of Courts of small causes.
In such cases, there is a first appeal to the district appellate Court on facts and law and a second appeal to the High Court on a point or points of law only. The findings of the lower appellate Court, whether of affirmance or of reversal, on issues of fact are conclusive and cannot ordinarily be re-opened in the High Court.1 A second appeal will lie on any of the following grounds, namely; "(a) the decision being contrary to law or to some usage having the force of law; (b) the decision having failed to determine some material issue of law or usage having the force of law; (c) a substantial error or defect in the procedure provided by the Code or by any other law for the time being in force, which may possibly have produced an error or defect in the decision of the case upon the merits."
1. Except in Kerala.
6. Letters Patent Appeals.-
Finally, we have the system of Letters Patent appeals under clause 15 of the Letters Patent of the Calcutta, Madras and Bombay High Courts and clause 10 of the Letters Patent of the High Courts of Allahabad and Patna. These appeals lie to the High Court from judgments of a single Judge (a) in the exercise of its original jurisdiction, (b) in the exercise of its appellate jurisdiction in a first appeal, or (c) in the exercise of its appellate jurisdiction in a second appeal, provided the Judge who passed the judgment certified that the case is a fit one for appeal.
7. Miscellaneous appeals.-
There are also miscellaneous appeals arising out of orders of an interlocutory nature in pending suits, appeals from orders in execution, and the like. Section 104 and Order XLIII, rule 1 of the Civil Procedure Code contain an exhaustive list of appealable orders of this type. Section 104(2), however, contemplates only one appeal against such orders and a second appeal is barred. But the section makes an exception in the case of other orders against which appeals are allowed by other express provisions of the Code or by any other law. For instance, orders passed under sections 47, 144, 145 etc. are treated as decrees and are subject to first and second appeals. The provisions of section 104(2), however, do not take away the general right of appeal to the Supreme Court given by section 109.
This completes the picture of the structure of our appellate system.
8. Curtailment of right of appeal.-
Since the early seventies, the Indian legal system has met with the criticism that it permits a multiplicity of appeals causing enormous delays and costs. A case commenced in a subordinate Court is generally taken in appeal to a district appellate Court and thence to the High Court, and again by leave to a Division Bench of the same High Court. It may eventually be taken to the Supreme Court, if the nature of the case permits. There may thus b.- and there, not infrequently, ar.- cases where the same matter may be given three or four or even five hearings and the party ultimately losing becomes liable to pay the costs of all these separate hearings.
Even the party emerging as the ultimate victor may find that he has achieved only a pyrrhic victory, for his unrecoverable costs may exceed the value of the judgment he has obtained. Except in those cases in which the law allows no appeal, a litigant today has no means of estimating beforehand the ultimate costs of the litigation, because he can never know where his case will end.
9. Total abolition of appeals not possible.-
The cost of litigation could undoubtedly be minimised and justice made speedier, if appeals could be dispensed with altogether by giving finality to the decisions of the trial Court, care being taken to make these Courts very efficient. But the total abolition of the right of appeal is a course which cannot be contemplated. For, as the Committee on Supreme Court practice and procedure in England observed: "The legal system of every civilized country recognizes that Judges are fallible and provides machinery for appeal in some form or another. The right of appeal is too ingrained in our legal system to be capable of being uprooted in to.
The problem must be approached on the basis that it would be palpably wrong to leave the defeated litigant entirely without remedy in all cases, even in those where the judgment against him is demonstrably wrong, or to deny him altogether the chance of appealing from a decision which leaves him smarting under a sense of injustice.1" The question before us, therefore, is whether, and how far, the right of appeal can be curtailed,with a view to making justice speedier and reducing the litigant's costs.
1. Final Report of the Committee on Supreme Court Practice and Procedure in England, p. 158, para. 473.
10. History of proposals for curtailment of appeals.-
The view that there should ordinarily be only one appeal in civil cases, fallowed by a revisions on the ground of failure or miscarriage of justice, has been propounded in India from very early times. In 1872, Sir James Stephen, summing up the view of the Judges of the Calcutta High Court, said that the whole system of appeals in civil cases was radically faulty and the number of appeals ought to be greatly reduced and the inferior Courts strengthened.
One of the Judges, Sir Barnes Peacock, wanted to abolish second appeals altogether and went to the extreme length of pointing out that it would be cheaper to Government to pay the full amount of the appellant's demand with costs of both parties and to give each a bonus for terminating the litigation than to support the establishment of the High Court for hearing such second appeals. Since 1873, the Government of India has, from time to time, made various proposals for changes in the law of procedure relating to appeals, the most prominent of them being a partial restriction of the right of second appeals.
It is unnecessary to enter into a detailed discussion of those proposals or to refer to the various comments collected thereon by the Government of India. The principal opposition to these proposals, however, came from the Calcutta High Court which strongly objected to making the right of appeal dependent on the value of the subject-matter on the ground that important questions may be raised even in cases of small value. A further objection was that the deficiency in the knowledge of law and the strength of character of subordinate Courts necessitated a preservation of the liberty of the second appeal.1
1. For fuller details of the proposals of the Government of India and the opinions of the Calcutta High Court from time to time see Chapter 21 of the Civil Justice Committee's Report, p. 334 and the following pages.
In a Bill introduced in 1901 for the revision of the Code of Civil Procedure, it was proposed that no second appeal should lie in suits of a small cause nature of a value under Rs. 1,000, unless the decree involved directly some claim or question respecting property exceeding such value and also that, in other cases no second appeal should lies unless the value of the suit was over Rs. 100. This Bill was withdrawn after opinion had been invited on it.
Finally, in 1907 while introducing the Bill which became the Code of Civil Procedure of 1908 Sir Erle Richards, speaking of the litigant's right to a second appeal, referred to the "strong feeling among the public that it would be an injustice to deprive them of the right of obtaining a decision of the highest tribunals".1 He hoped that a time would come when, by the improvement of the lower courts, this feeling would subside but that for the time being it was wise to leave matters alone. Thus, in 1908, when the present Civil Procedure Code was enacted, the position remained practically the same as it was in the seventies.
1. Op. Cit., p. 341.