Report No. 14
46. Power of remand (Amendment suggested.).-
The power of remand by an appellate Court is regulated by rules 23 and 25 of Order XLI. The power under rule 23 is a strictly limited power. A case can be remanded under that rule only when the lower Court has disposed of the case upon a preliminary point and the finding on that point is reversed in appeal. In practice, cases often arise in which a remand is necessitated for some other reason. In such cases, in order to make a remand, the Courts have resorted to their inherent power under section 151 of the Code. This is not a satisfactory position. Further, an order of remand under the inherent power of the Court is not appealable like an order under rule 23.
An attempt has been made to get over this difficulty by the High Courts of Allahabad, Andhra Pradesh and Madras by empowering the appellate Court to remand a case if it thinks it "necessary in the interest of justice" (Madras) or "where an appellate Court has reversed a decree and all questions arising in the case have not been decided" (Allahabad). The Uttar Pradesh Judicial Reforms Committee has recommended1 an amendment to rule 23 on the lines of the amendment made in Madras. We recommend an amendment of the rule empowering the appellate Court to remand a case whenever it thinks it necessary in the interests of justice.
1. Report, pp. 61-62.
47. Delay after remand (Fixing date of appearance and re-submission).-
It is well-known that a remand results in considerable delay in the disposal of the case. We are of the view that when a case is remanded for trial of a particular issue or for recording additional evidence and resubmission to the appellate Court, the latter Court should, in its order of remand fix a date by which the lower Court has to re-submit the case to the appellate Court. In cases where the time allowed is found to be inadequate by the lower Court, it should ask for an extension of time. We also recommend that whenever a case is remanded, the appellate Court should fix a date in which the parties should appear before the iower Court to receive its directions regarding the suit or proceeding.
48. Difference of opinion between Judges.-
Under section 98 of the Code, when an appeal is heard by a Bench of two or more Judges, the opinion of the majority prevails but when they are equally divided in their opinion, the decree of the lower Court is deemed to have been affirmed. The section also empowers the judges, if they differ on a question of law, to state the point of law for the decision of a third judge in such cases, after the third judge has heard the matter, the opinion of the majority prevails.
Power to refer question of fact to third Judge.- There is, however, no provision in the section for reference to a third judge in the event of there being a difference of opinion among the judges on questions of fact. It may, however, be noticed that clause 36 of the Letters Patent of the Calcutta, Madras and Bombay High Courts provides that in the event of a difference of opinion between the judges of a Division Bench on any point, such point shall be decided according to the opinion of the majority of the judges, if there shall be a majority, but if the judges should be equally divided, they shall state the point upon which they differ and the case shall then be heard on that point by one or more of the other judges and the point shall be decided according to the opinion of the majority of the judges who have heard the case, including those who first heard it.
It is true that difference of opinion on questions of fact are not very frequent; but even in the rare cases in which such differences arise, we think, it is not fair to the appellant that the decision against him should be affirmed even though the appellate Court is equally divided. We would, therefore, recommend an amendment of section 98 so as to bring it in line with clause 36 of the Letters Patent.
49. Delivery of judgments (Delays).-
We have been informed of considerable delays in the delivery of judgments in some of the lower appellate Courts as well as in certain High Courts. We believe that most of the High Courts have made rules fixing periods of time within which subordinate Courts have to deliver their judgments. If the High Courts discharge their duties of supervision effectively, the evil of such delays in the subordinate Courts can be cured by an insistence upon the observance of these rules. In regard to High Courts, our information is that in most cases judgments follow immediately after the conclusion of the hearing in the Court.
However, there are cases in which judgments have been delivered by some High Court judges about a year after the conclusion of the hearing of a case or an appeal. It is needless to state that such cases can arise only from a total want of responsibility in the judges concerned. A judgment delivered after such a length of time can never do adequate justice to the arguments advanced by Counsel on either side, however sharp the memory of the judge may be, or whatever be the length of the notes made by him of the arguments. So great is the importance of the judge delivering judgment when the arguments advanced at the hearing are fresh in his mind that in one State Supreme Court in the United States a provision has been made, that if a judgment is not delivered within a fortnight, the case should be reheard by the judge.
Though ordinarily the most convenient course for the judges would be to deliver a judgment straightway at the close of the hearing, there would be certain cases in which judgments need to be reserved; but it is obvious that judgment should follow the conclusion of the hearing within a reasonable time which in most cases should not exceed a fortnight. The time for the delivery of a judgment by a High Court judge can hardly appropriately form the subject of a rule of the Court; but the matter is certainly capable of being regulated by a watchful Chief Justice. The Civil Justice Committee has deprecated the practice of reserving judgments in very emphatic terms:-
"As a general rule there is little reason why judgments should not be delivered at the close of the arguments. It should be the exception and not the rule to reserve judgment. It militates very strongly against reasonable expedition on the part of Judges if the more cases they try the greater the number of treatises they have to compile during the week-end. This is an unnecessary burden to the judge. To the Bar nothing can be less encouraging than to know that the ultimate decision will be taken by the judge after writing several other judgments setting out and discussing the facts and law of other cases."
"The result is too apt to be that the case is determined 'on the paper book' and with too little attention to the arguments which are represented only by the pale reflection of the judge's note-book. The practice of constantly reserving judgment is not only disadvantageous; it is feeble. It gives an impression that the court cannot grasp facts or does not know its law or cannot state in a reasonable clear form what it knows. As members of the legal profession have to be able to present and discuss cases, the spectacle of a judge who will rarely undertake to give judgment at the time is peculiarly unimpressive."1
1. Report, p. 281, para. 5.
50. The practice of not sitting in Courts during working hours in order to consider and dictate judgments, or taking a working day off for that purpose which prevails in certain High Courts involves, in our opinion, an unjustified waste of judicial time. If care is taken to deliver judgment as far as possible immediately after the conclusion of the arguments, a few judgments would be reserved and these can be prepared by the judges over the week-end.1
51. Reading out reserved judgments unnecessary.-
The practice of reading out reserved judgments in open Court also leads, in our view, to a considerable waste of judicial time. It has been sought to be defended on the ground that, after all, the proportion of reserved judgments is very small and that reading them out in Court adds to the dignity of the Court. We are unable to agree. The Court's prestige and the respect in which it is held by the lawyers and the public must depend on more substantial attributes of the judiciary than a sonorous or pompous reading of the judgment in the Court.
In the former Nagpur High Court, a practice used to be followed of making available to the parties reserved judgments, in draft, two or three days before they were signed, for the perusal of the Counselwith a view to enabling them to make their submissions as to any error or consequential orders. We do not approve of this practice. It is liable to result in reopening discussion on a number of matters argued at the hearing.
The most satisfactory manner of dealing with reserved judgments would, we think, be to read out only the operative part thereof and hand them down, copies being made available to Counsel for their perusal. We understand that this is the practice followed by most subordinate Courts and also in the Privy Council and there is no reason why it should not be followed by the superior Courts. The Evershed Committee has also favoured this practice in the generality of cases.1
1. Report, pp. 201 and 202, paras. 600 and 601.
52. Summary of recommendations. Our recommendations on Civil Appellate Procedure may be summarised as follows:?
1. In appeals under special enactments to which Parts II and III of the Limitation Act do not apply, an appellant may be permitted to file an appeal without copies of the decree or judgment of the lower Court. Order XLI, rule 1 may be amended as has been done in Madras for this purpose.
2. Rules should be made to provide that before an appellate Court condones delay under section 5 of the Limitation Act, it gives notice to the parties and decides the petition only after hearing them.
3. 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 papers. A rule similar to the one made by the Patna High Court may be framed in all the States.
4. When an appeal is filed against several decrees, which have been disposed of by a common judgment, the appellate Court may be empowered to dispense with the requirement of filing of more than one copy of the judgment of the lower Court.
5. Every appellant should be required to state, in his memorandum of appeal, the precise form of the order which he proposes to ask the appellate Court to make.
6. The subordinate appellate Courts should apply the provisions of Order XLI, rule 11 to appeals in their Courts.
7. When a subordinate appellate Court dismisses an appeal under Order XLI, rule 11, it should deliver a brief judgment setting out its conclusions.
8. Second Appeals should be scrutinised with greater strictness at the stage of admission.
9. A second appeal should be admitted, not on the ground that it raises a question of law, but, only if the appellate Court feels that the decision of the subordinate Court on the point of law is erroneous.
10. The power of admitting appeals (particularly second appeals) should not be delegated to the Registrar or the Deputy Registrar.
11. The practice of circulating the papers relating to a second appeal to a Judge outside the Court hours for the purpose of enabling him to determine whether it should be admitted (as set out in para. 15, ante) may be generally adopted.
12. The Code should be amended so as to cast an obligation on the High Court, when admitting a second appeal, to specify the point or points of law that arise.
13. The High Court should be empowered to admit a second appeal on specified points only.
14. A memorandum of second appeal should be accompanied by judgments of both the trial Court and the lower appellate Court and, if any question of the construction of a document is raised in it, a true translation thereof.
15. Long judgments are out of place when appeals are dismissed summarily.
16. The memorandum of appeal should contain the address for service filed by the respondent in the Court below.
17. Order XLI, rule 14 of the Code of Civil Procedure should be amended so as to empower the appellate Court to dispense with service of notice on respondents who have not appeared in the lower Court.
18. The memorandum of appeal should be accompanied by the requisite process fee and the process form duly filled in by the appellant.
19. In the event of summary dismissal of the appeal, the appellant should be entitled to a refund of the process fee.
20. Notice of appeal should be sent in the first instance by registered post.
21. The Courts should be empowered to dismiss an appeal for non-prosecution, in the event of non-payment of process fees or for failure to take steps to have the paper books prepared.
22. The respondent should be required to enter an appearance, in the event of his desiring to contest the appeal, within a stated period of the service of the notice of appeal on him.
23. The form of summons in an appeal should be amended, as has been done in Madras, to apprise the respondent of the need for his entering an appearance.
24. The respondent should be required to furnish, in the memorandum, or appearance, his address for service in the appellate Court.
25. The High Court might consider the advisability of framing a rule on the lines of the Allahabad rule referred to in para 24 ante.
26. The preparation of paper books should not be entrusted to the government press and private printing may be allowed.
27. The methods of preparation of paper books set out in para. 26 ante may usefully be adopted.
28. Whenever possible, cyclostyling may be permitted instead of printing.
29. In taxing the costs of an appeal the appellate Court should be vigilant and disallow the costs of including unnecessary papers in the paper book.
30. In appeals valued over Rs. 20,000 all papers should be translated into English and a sufficient number of paper books should be prepared including paper books needed for use in the Supreme Court.
31. The rule of the Allahabad High Court imposing a special charge on an appellant whose paper book is prepared out of turn should be deleted.
32. In subordinate appellate Courts a particular judge or judges should be assigned exclusively to the task of hearing appeals for stated periods of time.
33. Whenever the number of appeals pending in a station is sufficient to occupy the entire time of an officer for a period of three months or more, an officer may be posted exclusively for their disposal.
34. In subordinate appellate Courts, as soon as the respondent has entered an appearance, the Court should ascertain the time required for its hearing, consult the convenience of both the advocates and post the appeal peremptorily for hearing on a date when it can be taken up.
35. Fixed dates should not be given for the hearing of appeals in High Court except when counsel from outside have to appear. In all other cases, a continuous list of ready cases should be prepared and cases taken from that list day after day.
36. Judges should read at least the memorandum of appeal and the judgment of the Court below outside the Court hours before the hearing of an appeal.
37. It is unnecessary to shorten the hours of work for this purpose as judicial officers have to put in certain amount of work at their residence outside the regular working hours.
38. The powers of a single judge should be raised in all the High Courts so as to enable them to hear and dispose of finally all first appeals and miscellaneous appeals valued below Rs. 10,000 and also all second appeals.
39. Order XLVI, rule 27, Code of Civil Procedure, should be amended to enable a party to an appeal to adduce additional evidence if he could not, with due diligence, have produced it in the lower Court.
40. Order XLI, rules 23 and 25, Code of Civil Procedure should be amended to enable an appellate Court to remand a case whenever it considers it "necessary in the interests of justice."
41. When a case is remanded, the appellate Court should, in its order of remand, fix a date by which the lower Court has to resubmit the case.
42. In such cases, the appellate Court should also fix a date on which the parties have to appear before the lower Court to receive its directions.
43. Section 98 of the Civil Procedure Code should be amended on the lines of Clause 36 of the Letters Patent (of Calcutta, Madras and Bombay) to enable the judges to refer any point .on which they differ to a third judge.
44. Judgments should as far as possible be delivered immediately on the conclusion of the hearing.
45. Judges should not retire to their chambers or take working day off in order to write reserved judgments.
46. The practice of reading out reserved judgments in open Court should be discontinued in order to save time.
47. It is not desirable to place the draft judgment on the table before signature, as this is likely to lead to a reopening of the case.
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