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Report No. 14

31. Adjournment of appeals (Chaotic conditions in certain courts).-

After the paper book is ready, the appeal is posted for hearing on the date fixed by the appellate Court. We have found, in the course of our inquiries, that in several States an appeal is rarely taken up for hearing on the date so fixed in the subordinate Courts, adjournments of appeals, on the ground of the parties not being ready or by reason of interruptions caused by the posting of a sessions case or the continuance of a civil suit, are matters of everyday occurrence.

These adjournments occur more frequently in those States where the officers presiding over the subordinate civil Courts exercise civil appellate jurisdiction and are also invested with powers to try sessions cases. What happens in such cases has been graphically described by a Judge of the Calcutta High Court in the course of a note made by him in 1953, after inspecting the civil courts a Alipore, 24 Parganas:

"In most of these appeals, I found that after service on respondents was complete and the lower court records had been received, the hearing of the appeal was adjourned sine die wholly irregular procedure. This was followed at varying intervals-the interval was more than nine months in T.A. 300 of 1950-by an order by the District Judge fixing a certain date for hearing. On the date thus fixed, the appeal was transferred to the court of an Additional Judge, or Subordinate Judge, without any regard apparently to the state of the file of the transferee court. I say this, as I found, in almost every case, that the transferee court did not take up the hearing of the appeal on the date of transfer.

Instead, the transferee court adjourned the hearing to a later date-on the ground generally that the court was otherwise engaged. Thereafter, the process of adjournment has gone on merrily. The ground of the adjournment is either that the court is engaged in Sessions, or that it is engaged in hearing a suit or some other appeal; or that the appellant or the respondent, or both parties had applied for adjournment, I am constrained to say that I did not discover any anxiety on the part of the Judges to deal with the appeals quickly. Interlocutory matters, which would perhaps not take more than a few minutes, were left unheard of for months together."

"What perturbed me most was that even when appeals and suits were remanded by the High Court for rehearing, no attention was paid to the need of quick hearing. T.A. 431 of 1945 was disposed of on the 29th April, 1947; but the High Court, in second appeal, remanded, the appeal for hearing. It was received on remand, on 18th November, 1949. It is still to be heard-there have been 26 adjournments. T.A. 182 of 1947 was received back on remand, on 12th September, 1951, and is still pending for hearing. So also T.S. 1037 of 1948 which was received back on remand, on 30th January, 1951."

"While it is very necessary to secure the best help from the lawyers for the proper decision of these cases, and for that purpose one or two adjournments may have to be given, I cannot believe that lawyers of either side would refuse their help and co-operation, if these were taken up for hearing, say, a month after they were received on remand. It seems probable that most of the Judicial Officers when repeatedly adjourning the hearing of these remanded cases, were unaware of the fact that these are old cases, which had come back on remand; and followed the path of least resistance by not taking any positive action to secure early disposal. It is very disturbing that Judges presiding over court would not know or remember such important matters as orders of remand from superior courts."

"No less disturbing to me was the discovery that it often happened that after an appeal had for sometime been before an Additional Judge, or a Subordinate Judge, it was suddenly withdrawn from his file by the District Judge and transferred to another Judge for disposal, though that other court was not in a position to take up that case, in the immediate future. As instances of this, I mention T.A.s 274, 300, 506, 717, 804 and 1206 of 1950.

I find it difficult to resist the impression that the District Judges who signed these orders of transfer, signed them without proper application of their minds to the relevant facts; and that often, though the hand that signed the order of transfer was the hand of the District Judge, the mind behind the order of transfer was the mind of the Bench Clerk. It is necessary that these orders of transfer should be not only in form, but in substance, the order of the District Judge; and he should not transfer appeals- to another court nor withdraw appeals from a transferee court, without careful consideration of the state of the files of the different courts."

32. Assignment of Judges to particular kinds of work.-

As we have stated earlier, in several States in the country, civil judicial officers of the rank of Subordinate Judges are required to do civil appellate work and sessions work in addition to trying original civil suits of higher valuation. In all these places, the greatest single cause which contributes to delay in the disposal of civil appeals and trial work is the interruption by a sessions case suddenly transferred to the Court. The obvious remedy for this state of affairs is to assign to a particular Judge or Judges exclusively the work of hearing either civil appeals or sessions cases or original suits instead of putting on their file simultaneously all these different types of work.

If this were done, a particular judge would be free for a fortnight or for a whole month to devote himself exclusively to one type of work and interruptions by sessions cases or other work entitled to priority could be avoided. If at any station, the number of pending civil appeals is large enough to occupy the entire time of an officer for, say, a continuous period of three months or more, the Government can, in consultation with the High Court, post an officer to that station exclusively for the disposal of such appeals.

We understand that in Bombay, the hearing of civil appeals is seldom interfered with by sessions cases or original suits. The reason is that all ordinary original civil work in that State is done exclusively by the Civil Judges of the Senior and Junior Division. The Civil Judges of the Senior Division in Bombay are not, as in other States, invested with civil appellate powers or with the powers of an Assistant Sessions Judge. All appeals, civil and criminal, and all sessions cases are heard by District Judges and Assistant Judges who are generally additional Sessions Judges. The distribution of this work amongst his colleagues is made by the District Judge well in advance of the probable dates of hearing.

Ordinarily, according to the instructions of the High Court, the distribution of civil and criminal work is made in such a way that, in any given month, a particular officer will hear and dispose of only civil appeals while another officer may, at the same time, deal with sessions cases and criminal appeals. The sessions cases which the Sessions Judge does not wish to try himself are made over to the Additional or Assistant Sessions Judge as soon as the committal papers are received and the dates of trial are left to be fixed by the trial Judge himself. We are of the view that this method under which only one type of work is assigned to officers in rotation for periods of time will avoid the great delays which have occurred in .the disposal of civil appellate work in certain States.

33. Posting of appeals in subordinate courts.-

We would also suggest that in subordinate Courts as soon as the respondent has entered his appearance, the Court should ascertain from the advocates of both parties the amount of time the appeal is likely to take and post the appeal preemptorily to a date on which the Court can find the time to take it up and which would suit the advocates. The adoption of the method will avoid the necessity of adjournments on the ground of the advocates being otherwise engaged or not being ready.

34. Fixed dates unsuitable for the High Court (Continuous list system recommended).-

With regard to the hearing of civil appeals in the High Court, it appears to us that the system of giving fixed days for the hearing results in interruptions and delays, if an appeal fixed for a particular date is not reached on that date by reason of prior work having taken longer time than expected. Under this system appeals are adjourned to another date which may well be after a number of months. Apart from the delay in such cases, the time spent by advocates and, perhaps, the Judges in the perusal of the papers is wasted.

We would, wherever such a system prevails, recommend the adoption of a system under which, a continuous list of ready cases according to the order of their institution is maintained. The daily list for hearing is drawn from this continuous list and the hearing of appeals proceeds from day to day in the order in which they appear in the list if in any particular appeal, counsel from outside has to appear, a fixed date can be ordered. In fixing such dates or in granting adjournments for other reasons, the time which will be needed for the hearing of the appeals must not be lost sight of.

35. Reading of papers by Judges before hearing.-

We shall next deal with the questions whether reading of the papers beforehand, at any rate, the judgment and the memorandum of appeal-will result in a saving of time in the hearing of the appeal and, if so, whether the adoption of such a practice is desirable.

Divergent views.- There has been a wide cleavage of opinion on the desirability of the judgment, the memorandum of appeal and some other papers being looked into by the judges before the hearing. A strong view against such a practice has been expressed not only by several members of the Bar but also by some experienced judges. It was said that this practice was bad for a Judge, as he would come to the Court with fixed ideas from which it would be difficult, and even impossible, to dislodge him.

It was not right, it was urged, that any case should be approached by a judge with pre-conceived ideas. On the other hand it was said that acquainting himself with the facts of the case and the points arising therein from a perusal of the judgment and other papers should not ordinarily result in the judge forming any view of the case. What is essential in a judge is that he should approach the case with an open mind, but an open mind need not necessarily be a blank mind.

We think that we are entitled to assume that a person filling the office of an appellate judge will be a man of experience accustomed to approach the differing points of view which may be taken in regard to a case with detachment and that he would not be disposed to form a premature view of the correctness or otherwise of any of these points of view. Can it be that the mind of a Judge will be gripped by the point of view which gets impressed upon his mind first? If such were the mental equipment of the Judge, he would never be able to get away from the point of view put to him by the appellant's counsel which always would be listened to by him first.

36. Practice prevalent at present (No untoward consequences).-

The practice of the Judges reading the papers beforehand so as to know the facts of the case has prevailed for a number of years in many of our Courts and also in Courts in other countries. As we have pointed out in another chapter, in the United States the practice of submitting written briefs obtains in the Supreme Court of the United States and in the State Appellate Courts. We had the practice of filing a statement of the case in the Privy Council and the same practice has been continued in the Supreme Court.

The Judges have in those statements of cases, the points of view of both parties with the arguments in support presented to them. The practice of looking at the judgments and other papers has also prevailed in several High Courts. Notwithstanding the wide prevalence of this practice, it has not been suggested that the Judges of these Courts do not approach the hearing of appeals with an open mind. Indeed, a Judge would not possess the most essential quality of a Judge, if he were not able to keep an open mind to the very last minute of the hearing of a case or an appeal.

37. views of the Evershed Committee.-

The question received careful consideration at the hands of the Evershed Committee before whom two main objections against the practice were urged. In the first place it was contended, as before us, that "there would be a real risk of the members of the Court forming a pre mature view of the case, so that they would come to the hearing with their minds already to some extent biased one way or the other".1 The second objection was that if the Court read all the papers beforehand it would rob counsel of the advantage of commenting on the evidence during the process of reading it to the court.2

1. Final Report of the Committee on Supreme Court Practice and Procedure, p. 196, para. 585.

2. Ibid, p. 197, para. 586.

The Committee took the view that neither of the two objections was a round one. Dealing with the first objection they said: "there is little substance in this objection and that it does less than justice to the capacity for impartiality of the members of the Court of Appeal. We would point out that at the present time the members of the Court of Appeal will in many instances have read in the law reports or legal periodicals of the proceedings in the Court below. We think that most Judges, reading the papers in a case to themselves for the first time, would be likely to concentrate in the main on trying to ascertain what the case was all about, rather than endeavouring to form even tentative views at that stage as to what the correct solution might be.

In so far as any member of the Court were to form even a tentative view on the merits of the case, this might be not wholly without advantage- for it would enable the Court in the early stages of the hearing to focus the attention of counsel on that part of the case which was felt to be decisive, thereby concentrating the argument on that which was really material."1.

1. Ibid, pp. 196 and 197, para. 585.

Dealing with the second objection, the answer of the Committee was that it that objection was a good one: "it is more important that justice should be done than that counsel should win their cases. It may well be that the members of the Court would more easily be able to evaluate the evidence impartially if they read it to themselves as one continuous whole, rather than by having it read to them, as at present, with the interpolation of a tendentious commentary by counsel".1

It will be observed that the Committee expressed themselves in favour not only of the appellate Judges reading the judgment and the notice of appeal but also the evidence in the appeal. The Committee recommended that it would be helpful if, in all cases, the member of the Court of Appeal were to read beforehand the notice or notices and also the judgment of the judge below or such part of it as was relevant to the appeal. As to the other papers, they left it to the discretion of the Court of Appeal to select appropriate cases in which they could be read with advantage.

So impressed were the Committee with the saving of time which would result from the introduction of this practice that they did not shrink from making a recommendation for shortening the hours of sitting to enable the Judges to read the papers "since we are satisfied that, if in appropriate cases the papers can be read beforehand, even with reduced hours of sitting the Court of Appeal would be able to get through a greater volume of work than is possible at present."2

1. Ibid, p. 197, para. 586.

2. Final Report of the Committee on Supreme Court Practice and Procedure, p. 198, para. 590.

38. Actual experience of working in India.-

More important, however, is the actual experience of the working of this practice in the High Courts of Madras and Bombay and in the Supreme Court. We were informed that in these Courts, papers both in civil and criminal appeals are circulated to the Judges and that in most cases judgments and some other papers are looked into by the Judges before the hearing. We did not hear it suggested in the course of the evidence taken by us that the adoption of this practice in any of these Courts had led even to an impression among members of the Bar that the Judges approached the hearing of the appeals with any preconceived ideas.

39. Usage-Obstacle to change.-

It appears to us that in this matter, as in many other matters, those of us who have become accustomed to a particular practice come to regard it as necessary to the impartial administration of justice and are afraid of a change.

40. Effect-Increase in rate of disposals.-

The further question as to whether the adoption of this practice will result in the saving of time is answered, we think, by the rate of disposal of appeals in the Madras and the Bombay High Courts which is much higher than in the other High Courts. In England, at the instance of the Evershed Committee, the Court of Appeal "tried the experiment, in the case of a substantial appeal from a Special Commissioner, of reading the documents beforehand and that a considerable saving of time at the hearing resulted."1

1. Ibid, p. 196, para. 584.

41. Questioning by Judges.-

It has been said that acquaintance with the facts of a case from the judgment and the papers would lead to questions by the Court tending to disturb counsel's presentation of his case and eventually lengthen the hearing. The habit of putting questions in the course of arguments flows from the temperament of the Judge and a questioning Judge would probably ask as many, if not more, questions, if he had not read the papers beforehand.

42. Recommendation (Judges to read papers in advance).-

We, therefore, have no hesitation in recommending that papers relating to an appeal should be circulated to the Judges beforehand so that they can come prepared in a certain measure before the hearing of the appeal. We do not recommend that the working hours of the Courts should be curtailed to enable the Judges to read the papers. We think that Judges should be able to cope with the work of reading the papers without such curtailment as has happened in Madras and Bombay. The notion which once prevailed that a Judge's duties were confined to working only during Court hours is long outmoded and the High Court judiciary as well as the subordinate judiciary has to devote a certain amount of time to its work at home in order to be able efficiently to discharge its duties.

43. The powers of a single judge (Enhancement recommended).-

We have already noted the wide variations in the powers of a single judge in the different High Courts. We have also expressed the view that the enlargement of the powers of a single judge will, without detriment to the administration of justice, result in a saving of judge power and quicken the rate of disposal of appeals in the High Courts. We are of the opinion that the rules of the High Courts should be amended so as to confer upon a single judge power to hear and dispose of some of the cases which, at present, are being placed before a division Bench, always reserving the power to the single judge to refer a case to a Bench in cases of exceptional difficulty or importance.

In view of the abolition of Letters Patent Appeals, which we have recommended, no question arises of the number of these appeals being increased by reason of the widening of the powers of the single judge. We, therefore, recommend that the powers of a single judge of a High Court should be increased in regard to civil matters so as to enable him to dispose of all first appeals and miscellaneous appeals in the High Court up to the value of Its. 10,000 and all second appeals.

44. Powers of the appellate Court.-

The question of the powers of the appellate Court may next be considered. Section 107 of the Code of Civil Procedure empowers the appellate Court:-

(a) to determine a case finally;

(b) to remand a case;

(c) to frame issues and refer them for retrial; and

(d) to take additional evidence or to require such evidence to be taken.

These powers are regulated by section 99 of the Code which provides that no decree is to be reversed or modified for an error or irregularity not affecting the merit of the case or the jurisdiction of the Court.

45. Power to take additional evidence.-

We shall, in the first instance, deal with the powers of an appellate Court to take additional evidence under Order XLI, rule 27. This provision has been, repeatedly considered by the Privy Council and the law as to the reception of evidence not produced before the trial Court is now settled. Under sub-rule (1)(b) "it is only where the appellate court 'requires' it (i.e.., finds it needful) that additional evidence can be admitted." It may be required to enable the Court to pronounce judgment or for any other substantial cause, but in either case it must be the Court that requires it. This is the plain grammatical reading of the sub-clause. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applied to adduce fresh evidence, but "when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent."1

1. Parsotim Thakur v. Cal Mohan Thakur, ILR 510 Pat 654 (668) (PC).

Amendment of Order XLI, rule 27.- Thus, the right to adduce additional evidence in the appellate Court is strictly limited. A party, who has discovered new evidence of high probative value which he could not, with due diligence, have produced in the lower Court will be unable to produce it in the appellate Court as a matter of right. It is true that Order XLVII, rule 1, gives a right of review in such cases but that right cannot be availed of in an appeal.

The High Courts of Madras, Allahabad, Patna, Orissa and Andhra Pradesh have amended Order XLI, rule 27, so as to permit a party to an appeal to adduce additional evidence if he satisfied the appellate Court that he could not, in spite of due diligence, produce such evidence at the time of the original hearing or that it was not within his knowledge at that time. We are not aware of this amendment having resulted in an increase in the number of applications to receive additional evidence, or of its otherwise having been abused. In our view, it makes a very necessary improvement in the appellate procedure and we recommend its general adoption by a suitable amendment to the Code.

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