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Report No. 14

16. Civil Appellate Procedure

1. We shall now address ourselves to the question of appellate procedure and suggest reforms in the procedure which, should, in our view, lead to a more expeditious disposal of appeals and lesser expense.

2. Limitation (Time for obtaining copy of decree and judgment).-

Under the Limitation Act, thirty days are allowed for filing an appeal to the district Court from the date of the decree or order of the subordinate Court (Article 152), and ninety days for an appeal to the High Court (Article 156). In our Report on the Indian Limitation Act, we have recommended the adoption of a uniform period of limitation of thirty days for all civil appeals.

Under Parts II and III of the Limitation Act, the appellant is entitled to the exclusion of the time requisite for obtaining copies of the decrees and judgments of the lower Court for computing the period of limitation. Difficulties arise in the case of appeals under special enactments to which Parts II and III of the Limitation Act do not apply; but, nevertheless, Order XLI requires the appellant to file with his memorandum of appeal copies of the judgment and decree of the lower Court.

The Madras High Court has amended rule 1 of Order XLI so as to permit an individual to file an appeal in such cases without copies of the decree or judgment of the lower Court. In our Report on the Limitation Act, we have recommended that Parts II and III of the Limitation Act be made applicable to proceedings under any enactment. If that recommendation is accepted, the Madras amendment would be redundant. In the meanwhile, we would suggest that the other High Courts should make an amendment similar to the Madras amendment in Order XLI, rule 1.

3. Disposal of petitions under section 5 of Limitation Act.-

In cases where a memorandum of appeal is accompanied by a petition seeking condonation of delay under section 5 of the Limitation Act, the High Courts, at one time, used to admit the appeal subject to objections as to its maintainability being raised at the time of hearing. Sometimes such reservation is made so that the point of limitation survives and is debated upon at the hearing of the appeal. This practice was disapproved by the Privy Council in two cases.1 In the first case, Sir Lawrence Jenkins delivering the judgment of the Judicial Committee sought "to impress on the Courts in India the urgent expediency of adopting *** a procedure which will secure at the stage of admission, the final determination (after due notice to all parties) of any question of limitation affecting the competence of the appeal".2

Following this advice, the High Courts of Andhra Pradesh, Bombay and Madras have made appropriate amendments to the rules. We recommend that similar amendments be made in their rules by the other High Courts, so as to provide that, if the appellate Court thinks it to condone the delay under section 6 of the Limitation Act, it should, before admitting the appeal, give notice to the respondent and hear his objections, if any, to the condonation of the delay in filing the appeal.

1. Krishnasami v. Ramaswami, ILR 41 Mad 412 and Sundera B. v. Collector of Belgaum, ILR 43 Born 376.

2. ILR 41 Mad 412 (417).

4. Memorandum of appeals (Copy of decree accompanying memorandum of appeals).-

Under Order XLI, rule 1, an appeal has to be preferred by presenting a memorandum of appeal which is to be accompanied by a copy of the decree appealed from and unless the appellate Court dispenses with it also a copy of the judgment on which the decree is founded; both these requirements are very necessary, yet, occasionally, they put the parties to some extra expense which is capable of being avoided.

It sometimes happens that a partition decree contains a number of allotment papers and insistence on the filing of copies of the allotment papers is likely to put the appellant to heavy expense in obtaining copies. The Patna High Court has provided in its rules that in appeals from final decrees in partition suits containing allotment papers, the appellate Court may accept copies of the decree containing only a portion of the said papers. This seems to us to be a modification of the general rule worthy of adoption by other High Courts.

5. Copy of judgment accompanying memorandum of appeal.-

The requirement that a memorandum of appeal should be accompanied by a copy of the judgment of the lower Court also occasions extra expense when two or three suits or appeals have been disposed of by a single judgment. In such cases, although the decrees are different, the judgment on which they are founded is the same; yet, the appellant having preferred more than one appeal is put to the expense of filing more than one certified copy of the same judgment.

Thus, in a case in Madras, when three decrees were based on a common judgment, the appellant had to file three copies of the judgment running into 68 pages of stamp papers. The Punjab High Court has met this difficulty by providing in its rules that when more cases than one are disposed of by a single judgment, the appellate Court may dispense with the necessity of filing more than one copy of the judgment of the Court below. We recommend that a similar provision be made by the other High Courts.

6. Appeals' Memorandum to state relief claimed.-

A detail which concerns the contents of a memorandum of appeal may be referred to at this stage. AlthOugh the memorandum is required to set forth the grounds of objection to the decree of the Court below, notwithstanding the provision in Order XLI, rule 35 that an appellate decree shall contain a clear specification of the relief granted, the appellant is nowhere required to state the relief which he seeks in his memorandum of appeal. This is in contrast with the provision in Order VII, rule 7 which requires a plaint to specifically state the relief claimed. It is, sometimes, a matter of difficulty in an appeal to know precisely what relief the appellant seeks, particularly when the appeal is against only a part of the decree.

It is also fair to the respondent that he should be made aware of the order which the appellant seeks from the appellate Court. In England, following the recommendations of the Evershed Committee, it is now provided in Order LVIII, rule 3 of the rules of the Supreme Court that a notice of appeal shall state "the precise form of the order which the appellant proposes to ask the Court of Appeal to make." The circular orders of the Madhya Pradesh High Court provide that the appellant should specify in his memorandum of appeal the relief sought by him. In our view, Order XLI rule 1 requires to be amended so as to cast a duty upon every appellant to state in his memorandum of appeal the precise form of the order the appellant proposes to ask the appellate court to make.

7. Admission of Appeals.-

If the memorandum of appeal is in order and is not rejected or returned by the Court under rule 3 of Order XLI, the next stage in an appeal is that of admission. The power to admit or to dismiss an appeal is conferred by rule 11 of Order XLI. The appeals can in the first instance, be posted for preliminary hearing of the appellant's counsel under that rule. The rule is not limited in its application to Second Appeals. First Appeals to the district Court and the High Court can also be posted for admission under Order XLI, rule 11.

8. Scrutiny of appeals at admission stage by District Courts.-

In certain States, like Madras for instance, First Appeals in the district appellate Court are straightaway admitted and notice issued to the respondent. In Bombay, Madhya Pradesh and some other States, on the other hand, appeals from decrees in simple suits for money or movables are generally set down for admission and notice to the respondent is not issued, until the appellant's counsel is heard. It appears that this practice has led in the States of Bombay and Madhya Pradesh to a number of frivolous appeals being rejected summarily.

It is, therefore, necessary that Order XLI, rule 11 should be applied to first appeals filed in the district Courts. This will have the effect of weeding out appeals which, on the face of them, are frivolous and have been brought merely for the purpose of delay. We recommend the adoption of the practice followed in Bombay and Madhya Pradesh and some other States.

9. District Courts to write short judgment (When summarily dismissing under order XLI, rule 11).-

The question, whether a district appellate Court, dismissing an appeal summarily under Order XLI, rule 11, is bound to write a judgment under rule 31 of Order XLI, has occasioned a difference of opinion between the High Courts. The Patna High Court has held1 that the writing of such a judgment is not necessary. In the opinion of Mulla,2 in the absence of High Court Rules and circulars to the contrary, that view is correct.

The Bombay High Court has, however, directed that when a subordinate appellate Court dismisses an appeal under Order XLI, rule 11 of the Code of Civil Procedure, a brief statement of the grounds should be recorded and a formal decree drawn up. As the findings of the first appellate Court on questions of fact are final, and as it is necessary for the High Court in the second appeal to be made aware of these findings, in our view, a brief judgment should be delivered by all subordinate appellate Courts when dismissing appeals under Order XLI, rule 11.

1. Makhu Sahu v. Kanta Prasad Sahu, 13 Pat 540.

2. Civil Procedure Code, 12th Edn., p. 1198.

10. Admission of Second Appeals.-

A very wide scope for the proper use of Order XLI, rule 11 exists in the admission of second appeals by the High Court. The rule has been enacted to enable the Court to dismiss second appeals in cases of decisions based on findings of fact, which do not disclose a point of law such as is required by section 100. The rule gives power to the Court to dismiss an appeal in limine without notice to the respondent after hearing the appellant's pleader and sending for the record, if necessary, in such cases.

An examination of the figures, however, shows that the real purpose of the rule has not, in practice, been served. A very large number of second appeals admitted by the High Courts are dismissed after a full hearing and the inference is irresistible that, if the provisions of Order XLI, rule 11 had been properly worked, and the Court's mind applied at that initial stage to ascertain whether the requirements of section 100 were satisfied, a large percentage of the appeals which are finally dismissed after considerable expense has been incurred by the litigant and after delaying the final disposal of the proceedings for a long time, would never have been admitted.

he Table below shows the number of institutions, the summary dismissals, dismissals for default, disposal after a full hearing and the percentage of the decrees confirmed in these appeals for the year 1954.

Comparative Table Showing The Number of Second Appeals Against Decrees Instituted and Disposed of Summarily or In Default and After Full Hearing Together With Percentage of Decrees Confirmed and Reversed To The Total Number of Appeals Disposed of After Full Hearing In The High Courts of The Carious States In The Years 1954.

Name of the State

Instituted

Summarily dismissed

Dismissed for default

Decided after full hearing

Percentage of decrees confirmed

Percentage of decree reversed

Remarks

Andhra

482

113

Nil

384

92

5

This Table does not give the percentage of decrees modified or reversed in appeals

Assam

111

24

2

92

62

32.6

Bihar

1881

544

300

489

69.1

14.7

Bombay

1375

628

1

381

64.56

22.57

Madhya Pradesh

842

394

..

644

67.3

15.7

Madras

1710

70

Nil

1800

77

12

Mysore

688

232

90

335

58.2

33.4

Orissa

318

182

Nil

686

75

20

Punjab

1198

408

Nil

825

63051

11.88

Rajasthan

671

93

160

211

63

18

Travancore-Cochin

892

150

30

963

65.76

16.11

Uttar Pradesh

2719

721

..

1095

83.1

12

Wesr Bengal

1430

447

93

1139

66

11.8



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