Report No. 14
29. views of the Rankin Committee.-
The Civil Justice Committee strongly criticised the system of Letters Patent Appeals under which the High Court was obliged to entertain an appeal twice. It stated that in its opinion "the Letters Patent Appeal, that is the right to a fourth hearing, is in no degree short of absurdity. There is no guarantee whatever that a Letters Patent Case will be half so important, from any point of view, as a money decree in a Small Cause suit; and no probability that the judge who decided the second appeal will be any more careless, arbitrary or eccentric than a judge exercising Small Cause Court powers."1
In the Committee's opinion, this system was "so indefensible whether from the point of view of expedition or of cost to the State or of cost to the parties that it is almost a waste of words to denounce it".2 Two alternative methods were suggested by that Committee for getting rid of Letters Patent Appeals from a decree in second appeal. The first was to lay down a rule that no second appeal should be heard save by a Bench and the second was to provide that the second appeal would lie only if the judge hearing the second appeal should certify that the case was of such difficulty or importance that a further appeal should be allowed.
1. Report, p. 353, para. 7.
2. Report, p. 350, para. 3.
30. Action taken.-
The second method was adopted by amending clause 15 of the Letters Patent of the Calcutta, Madras and Bombay High Courts and the corresponding clause of the Letters Patent of the Allahabad and Patna High Courts by excluding the right of Letters Patent Appeal from a judgment passed by a single judge in second appeal except upon a certificate by that Judge that the case was a fit one for appeal.
31. Case for abolition.-
We are, however, of the view that even this right of appeal should be abolished and that there should be no Letters Patent Appeals from decisions of a single judge on the appellate side. There seems little justification for providing in cases of small value, a series of appeals from which spring all the evil consequences of delay in the disposal of cases. It is no exaggeration to say that a litigant who has lost will not be satisfied with the decisions of any number of Courts so long as there exists a right to appeal to a higher tribunal.
32. Case for retention.-
The argument of those who advocate the retention of the present system can be summarised in the following words of the U.P. Judicial Reforms Committee:
"Sometimes important questions of law are involved and law has to be laid down for the guidance of subordinate courts also and it is, therefore, necessary that the provision for Letters Patent Appeals should remain."1
1. Report, p. 60.
The argument has its root in the notion that a single judge cannot satisfactorily dispose of an appeal involving a question of law. Some judges including a distinguished Chief Justice and some experienced lawyers feel, first, that cases in the High Court should be heard as far as possible by a division bench of two judges instead of a single judge, because when two minds are set to work on the same matter, the possibility of a correct and balanced view being taken is always greater; and, secondly, a Bench of two judges always carried greater weight than a judge sitting singly. This view has undoubtedly great force.
But as was said by the Civil Justice Committee it is idle to shut one's eyes to the fact that not only must a large number of second appeals be heard before the single judge, but that the single judge must continue to do a great deal of work of incomparably greater importance and not less difficulty."1 That statement is truer today with the increased congestion in the High Courts and our greater need to conserve judge power.
1. Report, p. 352, para. 5.
34. Important questions to be referred to a Bench.-
However, under the rules of all the High Courts, if a judge sitting singly takes the view that a case before him is one which should be heard by a Division Bench, the case is generally directed by the Chief Justice to be heard by a Bench. This may be done by the single judge, either in the exercise of his own discretion or on the application of the appellant or the respondent, if the importance or the difficulty of the case justified such a course, notwithstanding its low valuation. Normally, the single judge will not refuse such an application, if he is satisfied that the case is of sufficient importance to be dealt with by two Judges. Thus, cases of difficulty or importance can, notwithstanding the abolition of Letters Patent Appeals, still be heard by a Bench of two judges.
35. Appealable Orders (No scope for reduction).-
Section 104 and, Order XLIII, rule 1 of the Code of Civil Procedure contain a full list of the Orders which are appealable. We have considered some suggestions made to us for the omission of some of the items from this list of appealable Orders. In Bombay, clause (w) of Order XLIII, rule 1 has been deleted by a rule of the High Court so that an order under Order XLVII, rule 4(2) granting an application for review is made non-appealable in that State. Similarly, items (g), (i) and (o) in Order XLIII have been omitted in Allahabad by an amendment of the Code.
Having carefully examined the list of items in section 104 and Order XLIII, rule 1, we are unable to recommend the omission of any of the items in it. Section 104(2) provides for only one appeal in these cases and a second appeal is barred. It appears to us to be unnecessary to curtail the right of appeal against such orders any further.
36. District Appellate Benches (Not desirable).-
At this stage, we might consider a proposal for strengthening the lower appellate Courts by constituting district appellate benches and providing that appeals at the district level should be heard by a Bench of two judges with no further right of appeal and that in case of a disagreement between the judges the case should be referred to the High Court.
The proposal to constitute district appellate benches has been put forward and considered from time to time. It appears to have been proposed in Bengal but was not accepted there. It seems to have been actually worked out in the Punjab in the eighties of the last century, but was abandoned later because it was found unsuitable. The Civil Justice Committee recommended the constitution of district appellate benches. The views of the State Governments on its proposals, however, differed greatly. The main objections to the proposal were:-
(1) that it will be uneconomic;
(2) that it disturbed the original courts and involved the appointment of extra Judges; and
(3) that from the point of view of a final decision on a point of law, a Court of the character proposed would be unsuitable. There would be differing decisions in the same State by different district benches.
In consequence of these views, the proposal was not put into practice. Later, in 1947, the question of the constitution of these Benches was fully considered by the High Court of Allahabad. While pointing out the various difficulties likely to arise in the working of the proposal, it seems to have supported it mainly on the ground that, in its opinion, two Judges were more likely to reach a correct decision in a case than a single Judge. The idea was, however, not put into practice in Uttar Pradesh. Recently, the idea was again put forward at the time of the amendments to the Criminal and Civil Procedure Codes in 1955 and 1956, but did not meet with acceptance.
In the opinion elicited by us, the idea has received very little support. The fundamental notion underlying the idea is that appeals at the district level would be more satisfactorily disposed of by a bench of two Judges than under the present system. We do not agree with this view. The District Judges are senior and experienced officers and there is no reason to believe that singly they are not capable of dealing with appeals before them with reasonable efficiency. If these officers are not competent to deal singly with these appeals, two of them put together in a Bench will not, in our view, achieve better results.
The acceptance of the proposal will also involve the cost of additional Judges. It will also involve practical difficulties in the constitution of the benches in different centres. If such appellate benches are to be the final Courts of appeal on questions of law, we have to face the contingency of conflicts of opinion between appellate benches within the same State or even within the same district, which would be difficult to resolve. The Judges constituting the Bench may disagree and in such a case an appeal to the High Court will be necessary. On the whole, and after having given our best consideration to it, we are not prepared to recommend the constitution of appellate benches at the district level.
37. Summary of recommendations.-
Our conclusions can be summarised as follows:-
(1) The appellate jurisdiction of District Judge should immediately be raised to Rs. 10,000. Such legislation should have retrospective effect and apply to suits instituted prior to the legislation.
(2) The cadre of District Judges should be strengthened for the purpose of dealing with this increase of work.
(3) Legislation should be undertaken to transfer all First Appeals below Rs. 10,000 from the judgments of Courts other than District Courts now pending in the High Courts to the District Courts for disposal.
(4) For the convenience of parties a sufficient number of District Judges should be posted at the seat of the High Court to dispose of the transferred appeals in which records are ready and in which counsel have been briefed. Their number should be sufficient, to enable such transferred appeals to be disposed of within one year.
(5) Section 102 of the Code of Civil Procedure should be amended so as to raise the non-appealable limit to Rs. 2,000.
(6) Even in Suits not of a small cause nature where the value is below Rs. 2,000, and no right to immoveable property is involved, there should be no second appeal.
(7) Letters Patent Appeals from the judgments of a Single Judge exercising appellate jurisdiction should be abolished.
(8) It is not desirable to curtail the existing right of appeal in the case of appealable orders.
(9) It is not possible to introduce the system of "leap-frog" appeals in India.
(10) The constitution of District Appellate Benches is not desirable.