Report No. 14
11. Admissions not sufficiently strict.-
The figures given in the preceding Table, showing the very small percentage of appeals in which the decrees appealed from are reversed, indubitably establish that rule 11 of Order XLI, as it is being applied, fails to serve its purpose of affording adequate protection to the respondent. Section 100 of the Code of Civil Procedure sets out the restrictive conditions under which only a Second Appeal lie Section 101 specifically provides that no Second Appeal shall lie except on the grounds mentioned in section 100.
12. The true test of admission.-
Having regard to the terms of section 100, an appeal should not be admitted merely because the appellant has shown that an arguable or a prima facie valid point of law arises in the appeal. The Court has, further, to be satisfied that the decision of the lower appellate Court on a point of law is erroneous, and that it is necessary, in order to do justice between the appellant and the respondent, that a further hearing should be given to both the parties.
In practice, however, widely divergent views prevail in regard to the precise functions of the Court in scrutinising appeals for admission. Some Judges require only "an arguable point of law" while others insist upon "a prima facie good point of law"; but the correctness or otherwise of the lower Court's finding on the alleged point of law is rarely looked into, as it should be, at the admission stage. Not infrequently, as soon as the appellant's advocate has made out what is called "an arguable point of law", or "a prima facie good point of law", the Judge shows an inclination to admit the appeal without further scrutiny in order, as it is sometimes stated, to give the appellant another chance.
This is obviously unsound. The demonstration by the appellant's counsel that a point of law has been decided and that there is an argument possible on that point would be obviously irrelevant, if the decision reached on that point is correct. When the Judges talk of the appellant being given another chance, they forget the plight of the respondent who has been subjected to the trouble and expense of fighting a litigation in two Courts and is being attempted to be dragged by the appellant into a third fight.
13. Complaints by the Bar.-
Notwithstanding the small percentage of summary dismissals in Second Appeals which, largely, are cases of decisions based on findings of fact and do not involve a point of law, it was surprising how quite a considerable section of the Bar seemed to complain that the Courts were too strict in the admission of second appeals. They seemed to proceed on the view that it was inappropriate for the Court at the hearing under Order XLI, rule 11, to enter upon the merits of the questions of law, if questions of law did arise in the appeal.
As stated already, this view is erroneous. We have also dealt above with the true scope of sections 100 and 101 of the Code. In this connection, attention may be drawn to the provision of rule 16 of Order LXI which entitles the Court, even after notice has been served upon the respondent to dismiss the appeal without hearing the respondent.
14. Delegation of powers of admission to Registrar inadvisable.-
The extent to which the duty of the Court to scrutinise appeals under rule 11 of Order XLI has been neglected is shown by the fact that in two High Courts, Allahabad and Patna, the power to admit Second Appeals has been delegated to the Registrar of the High Court. It is open to him to decide whether or not notice should issue to the respondent. He refers the case to a judge only if he is of the view that there is no substance in the appeal. Commenting on this practice which then obtained in the Patna High Court, the Civil Justice Committee observed:
"This, we consider, is a judicial function which should only be exercised by a High Court Judge or Bench."1 It is surprising that, in spite of this criticism with which we agree, the practice should have spread and been adopted by the High Court of Allahabad also. This comment also applied to the practice prevailing in the Madras High Court of leaving the admission of civil miscellaneous appeals to the Deputy Registrar.
1. Report, p. 32.
15. Circulation of papers to Judges.-
It has, indeed, been urged that the practice tends to save judicial time, inasmuch as judges need not spend any time in Court in hearing arguments in appeals which on their face deserve to be admitted. But this saving of time can be equally well effected by adopting the practice obtaining in some High Courts of circulating the papers relating to a second appeal to the judge who looks at them outside Court hours. Upon a perusal of the papers the judge either orders notice to issue to the respondent or orders the appeal to be posted for a preliminary hearing under Order XLI, rule 11.
We recommend the general adoption of this practice which has also been commended by the High Court Arrears Committee. It results in a substantial saving of judicial time and also ensures that the judicial function of admitting an appeal is performed by a trained judge and not by a ministerial officer. It is necessary not only that the scrutiny of appeals at the admission stage should be by a judge but, in our view, this task should, as far as possible, be entrusted to senior and experienced judges.
16. High Court to state point of law at time of admission.-
We may suggest a further course which may be useful in all cases in which an appeal is admitted after the preliminary hearing under Order XLI, rule 11. The High Court might well specify in such cases the point or points of law which arise for determination in the appeal. It may in its discretion even go further and order that the appellant should be heard only on the point or points pf law stated by the judge admitting the appeal.
Admission on certain points only.- There appears to be a conflict of decisions on the question as to whether appeals, particularly second appeals, can be admitted on certain grounds only. However, this difficulty can be met by an amendment of the law. In our view, a statutory requirement, providing that the judge admitting the appeal should state the point or points of law which arise for consideration in the second appeal, will ensure a stricter and better scrutiny at the stage of admission.
17. Papers accompanying memorandum of second appeal.-
In view of the more rigid scrutiny at the admission stage which we are recommending, it may be useful to provide, as has been done by the High Courts of Calcutta, Madras, Bombay, Allahabad and the Punjab, that where a second appeal is filed, certified copies of the judgments of both the Courts below should accompany the memorandum of appeal. The High Courts of Madras and Andhra Pradesh have gone further and have directed that if the appellant seeks to raise, in his appeal, any question of the construction of a document, a true translation of the document should accompany the memorandum of appeal. The adoption of these rules will ensure that at the hearing at the admission stage, the High Court has before it all materials necessary for a proper scrutiny of the appeal.
18. Short judgments when admission refused.-
We have been informed that, sometimes, when a High Court dismisses an appeal summarily, fairly long judgments referring to a number of decided cases are written running sometimes into as many as ten pages. It is obvious that an elaborate judgment is altogether inappropriate in cases of such summary dismissals. All that is needed is a very brief statement of the reasons which have led to the dismissal.
We believe that the measures advocated by us will go far to prevent the admission of appeals which, after a lapse of some years and after considerable expenditure to all the parties, are eventually dismissed. It may also happen that these measures taken at the admission stage of second appeals may act as a deterrent against the filing of frivolous second appeals.
19. Delays in issuing notice.-
If the appeal is not dismissed summarily, the next stage is the issue of notice to the respondent. Delays frequently occur at this stage. As has been stated by the Judicial Reforms Committee for the State of West Bengal: "Constant adjournments have to be given for the filing of addresses to which notices should be sent and talabana to cover the cost of such notices. Frequently adjournment after adjournment is given merely to enable the acting advocate to furnish an address or two and to file a few rupees as talabana."1
1. Report, p. 32.
20. Memorandum of appeal to state address for service.-
In our view, this difficulty can be easily met by providing that the appellant shall, in the memorandum of appeal, state the address for service of notices and other proceedings both on himself and the respondent. Rules of many of the High Courts provide for the parties filing their addresses in Court for the purpose of proceedings. We are recommending in another place that both the plaintiff and the defendant shall be required to file their addresses in Court. The appellant can, in his memorandum of appeal, state the address of the appointment as furnished in the Court below.
21. Dispensing with service on persons set ex-parte.-
In case of parties who have not appeared in the Court below and who have not filed any address for service, provision may be made, as has been done in certain High Courts, empowering the Courts to dispense with service of notice of appeal on the respondents who have not appeared in the lower Court by an amendment of Order LXI, rule 14.
22. Process fees to be paid with appeal memorandum (Refund of process fee in case of summary dismissal) (Process forms to be filled by appellant) (Dismissal for non-prosecution) (Service by registered post).-
As regards delays arising from the non-payment of process fees we would suggest the framing of rules by the High Court requiring the memorandum of appeal to be accompanied by the requisite process fees for service of notice on the respondent. This has been done by the Madras High Court. It may be provided that, unless such fees are paid, the memorandum would be liable to be rejected. It may be that, if the appeal happens to be dismissed summarily, the appellant would have paid the process fees unnecessarily. A provision may, therefore, be made for a refund of the process fees to the appellant in such cases.
As to the appellant being required to pay the process fee a second time, the first notice not having been served on the respondent, provision may be made enabling the Court, in the event of non-payment by the appellant of such process fees as required to dismiss the appeal for want of prosecution as has been done by some High Courts. We would also suggest, as we have done in the case of plaints elsewhere, that the rules should require the memorandum of appeal to be accompanied by process forms duly filled in. It might be advisable to permit service of notice by registered post in the first instance as is done in Andhra Pradesh and Madras, where notices are ordinarily issued within three days.
23. Respondent to enter appearance (Forms of summons to be amended).-
Under the procedure laid down in the Code, no obligation is laid on the respondent after a notice of appeal is served on him to enter an appearance or to take' any other steps to defend the appeal, unless he desires to prefer a memorandum of cross-objections under rule 22 of Order XLI. He is not bound to inform, either the Court or the appellant, of his intention to contest the appeal and can come forward on the very date of the hearing to support the judgment of the lower Court and he may do so even on grounds decided against him in that Court.
We are of the view that such a position encourages irresponsibility on the part of the respondent. If an appeal is uncontested and is to be heard ex parte, it may not be necessary to put the appellant to the expense of preparing a paper book or, in any case, a large number of copies thereof. Further, the appeal can be dealt with expeditiously without its being made to wait to take its turn in the regular list. It is, therefore, desirable that a provision should be made for enabling the Court to be informed at an early stage whether the respondent intends to contest the appeal or not.
This can be achieved by the enactment of a rule similar to that found in Order LXI-A, rule 3 of the Civil Procedure Code as amended by the Madras High Court which provides that a respondent intending to appear and defend the appeal has to enter an appearance in the appellate Court by filing a memorandum of appearance within a specified period. Form VI-A has been inserted in Appendix G of the Civil Procedure Code by the Madras High Court to ensure that proper notice of the necessity of entering an appearance is given to the respondent. Rule 4 of Order XLI-A also casts upon the respondent a duty to furnish, in the memorandum of appearance, his address for service. We would recommend the adoption of similar rules by the other High Courts.
24. Allahabad Rule.-
After the respondent has entered his appearance, the next stage which arises for consideration is the preparation of the paper books in the appeal. The Allahabad High Court has framed a rule providing that the respondents to a first appeal valued at less than Rs. 20,000 who have not filed cross-objections may, on receipt of a notice to enter an appearance, move for the summary determination of the appeal, without the preparation of a paper book on the ground that the appeal is frivolous or vexatious or that it is capable of being disposed of on a preliminary ground.
The application of this rule would result in the disposal of certain appeals on the ground of limitation, want of competency of the appeal and the like without the delay and expense resulting from the preparation of paper books. We have not been able to gather whether this rule has been largely availed of and has served a useful purpose. We would leave it to the consideration of the High Courts whether such a rule could be usefully made.
25. Preparation of paper books (Delays in preparation).-
As to the preparation of paper books, one does not find uniformity in the rules of the various High Courts. This question has to be approached from two points of view: first, the time taken in their preparation which, naturally, causes delay in the disposal of the appeal and second, the cost of its preparation. As the files of the High Courts stand at present, the preparation of paper books has not been the cause of delay in the disposal of appeals. Even if the printing of the record has taken a year or more, the first appeal is not any nearer reaching a hearing.
In fact, one High Court has discontinued printing the records of first appeals for the somewhat startling reason that it has no space for storing paper books even in appeals which are ready for hearing. The question, therefore, of delays which occur in the preparation of these books in the course of printing or otherwise can occasion concern only after the present accumulated arrears of first appeals are well on the way to being cleared.
26. Private printing (Reduction of printing) (Methods of reducing costs and delays).-
As to the question of the costs of the preparation of paper books, many High Courts have dispensed with translation and printing in cases below Rs. 20,000 as they would not ordinarily be taken to the Supreme Court. As the printing of paper books in Government Presses has been known to cause considerable delay, we think that in all cases which are not likely to be taken to the Supreme Court, the printing of the record should be reduced to the minimum, and whatever printing is necessary, should be permitted to be done in private presses.
In regard to these appeals, we would comment the practice followed in the Bombay High Court in the preparation of paper books in appeals before that Court. In that State, only the memorandum of appeal and the judgment of the lower Court are required to be printed. These are generally printed at the Government printing press. The evidence and other proceedings are typed in the district court and are sent to the High Court in book form.
After these books are received, a combined paper book is prepared in the High Court which comprises the proceedings of the case, the memorandum of appeal or cross-objections, if any, the judgment of the lower Court, the evidence recorded in the case and the exhibits, if any. Typing involves less cost than printing and we think that the method followed in Bombay is less expensive and more expeditious on account of the division of work in the preparation of the paper book between the district Court and the High Court. We, therefore, consider this method suitable for general adoption.
A further saving in costs and time may be brought about if judgments are printed locally under the supervision of the subordinate Courts. This is done in Madras where copies of judgments are printed locally at approved presses. This practice may be generally adopted. In West Bengal, the responsibility for preparing the paper book in second appeal and furnishing a copy thereof to the respondent is cast on the appellant. Such a practice together with the grant of a power to the Court to dismiss the appeal for non-prosecution in case of default may also be adopted elsewhere.
Cyclostyling.-One may go further and recommend that judgments and the memorandum of appeal may, instead of being printed, be cyclostyled as it will cost less than printing.
The Evershed Committee in England has recommended that:
"the Rules of the Supreme Court should be amended so as to render printing no longer permissive, except by leave in special circumstances."1
1. Final Report of the Committee on Supreme Court Practice and Procedure, p. 263, para. 758.
27. Reduction in size of paper book (Costs to be disallowed in taxation).-
A somewhat important question affecting the costs of paper books needs mention. Not infrequently, a party or parties insist on unnecessary parts of the record being included in the paper book and the administrative officer who has supervision over its preparation has no other course open to him but to permit them to be printed, sometimes, making a reservation that they were so permitted subject to the question of costs.
At the hearing, the question of costs incurred by the unnecessary inclusion of certain parts of the record at the instance of a party or some parties is rarely considered. If the appellate courts made it a practice to deal with this question when awarding costs of the appeal and took care to punish the party who has insisted upon the inclusion of these unnecessary documents by either refusing to award him the costs to that extent or making him pay those costs, the costs unnecessarily incurred will not be payable by the losing party and, perhaps, parties will be deterred from insisting on unnecessary parts of the record being included in the paper book.
28. Appeals over Rs. 20,000.-
We may next turn to the preparation of paper books in appeals of the value of Rs. 20,000 and more, which, by reason of their valuation, are likely to go to the Supreme Court. Rule 2 of Order XV of the Supreme Court Rules provides that where the record has been printed for the purpose of the appeals in the High Court concerned, and a sufficient number of copies of the printed record are available for the purpose of the Supreme Court appeal, no fresh printing of the record shall be necessary except for such additional papers as may be required.
Under this rule, therefore, if a sufficient number of paper books is prepared in the High Court and is available for the purpose of the Supreme Court appeal, such paper books can be used in the Supreme Court. But when such printed copies are not available or when additional printing is required, we understand, that the form in which the Supreme Court rules require such printing to be done adds considerably to the cost of printing. It appears that printing of the record in the form prescribed by the Supreme Court costs about Rs. 12 per page, whereas according to the High Court forms the cost would be much less.
29. Uniform printing in English.-
We suggest that the printing of paper books in these appeals should be made compulsory throughout the country in the English language, subject to what has been stated in the chapter on 'Language' and that the paper books should be printed in a uniform manner so that they could be used in the High Courts as well as in the Supreme Court in cases where the matters do reach the Supreme Court. The number of paper books printed in these appeals should also be sufficient for use in the Supreme Court, in the event of the appeals being taken to the Supreme Court.
30. Allahabad rule or out of turn printing to be deleted.-
We may here refer to a somewhat curious rule (rule 44 of the Rules of Court, 1952, Vol. I) of the Allahabad High Court which provides that, if translation and printing of papers in an appeal is done out of turn under the special orders of the Chief Justice, the party in whose favour the order is made has to pay an additional sum amounting to 50 per cent., of the cost of the paper books.
This extra 50 per cent. is not charged for payment of any overtime to the press or for any other similar reason. This extra payment appears to us to be a penalty levied on a party whose case is expedited. We do not see any reason or principle which can support this rule. If, in the interests of justice, a particular appeal merits speedy disposal and paper books have, therefore, to be printed out of turn; it seems hardly fair that the party whose appeal deserves priority should be mulcted in costs. This rule should, in our opinion, be deleted.