LAW RESOURCE INDIA

Appeals for restraint

Posted in JUDICIAL REFORMS, JUDICIARY, JUSTICE by NNLRJ INDIA on December 1, 2010

Courts rarely follow a rule to reduce the number of appeals clogging the system even further.

M J Antony  IN THE BUSINESS STANDARD/ New Delhi December 1, 2010, 3:14 IST

Two frustrating blots on litigation that are evident to anyone who visits the courts are adjournments at the drop of a gown and endless appeals in search of perfect justice. The first problem can be cured only if judges and lawyers impose some self-discipline. Parliament has tried to control the second snag by enacting rules to cap the number of appeals. But judicial discipline often crumbles in the face of counsel’s persistence and the system is clogged by appeals. The Supreme Court has referred to this issue several times in the past, and repeated it in two judgments in recent weeks, hoping the number of appeals would be reduced by strictly following the new provisions of the Civil Procedure Code.

According to Section 100 of the code, a second appeal to the high court is permissible only if it involves “substantial questions of law”. The memorandum of appeal must precisely state the substantial question and the court is bound to formulate it before hearing the case.

However, in many cases, an appeal becomes a repetition of the same arguments, wasting the appellate court’s time and public money. The Supreme Court stated last month in the case, Municipal Committee, Hoshiarpur vs Punjab State Electricity Board, that it was the obligation of courts below “to further the clear intent of the legislature and not to frustrate it by ignoring the same”. The court cannot entertain a second appeal unless a substantial question of law is involved, since the second appeal does not lie on the ground of erroneous findings of fact based on a re-appreciation of evidence.

In this case involving inflated electricity bills, the first appellate court concurred with the fact findings of the court below. However, the high court, without framing any question of law, decided the case against the municipal committee. So the high court judgment was set aside.

The court had dealt with the problem of profusion of appeals, up the ladder of the judicial hierarchy, earlier too. In the case, Jai Singh vs Shakuntala (2002), it stated that appeals should be entertained only in rare cases. “It is only in very exceptional cases and on extreme perversity that the authority to examine the same in extenso stands permissible — it is a rarity rather than a regularity and thus it can be safely concluded that while there is no prohibition as such, the power to scrutiny can be exercised only in very exceptional circumstances and upon proper circumspection.”

In another recent case, Leela Soni vs Rajesh Goyal, the court further clarified: “No second appeal can be entertained by a high court on questions of fact, much less can it interfere in the findings of fact recorded by the lower appellate court. This is so, not only when it is possible for the high court to take a different view of the matter but also when the high court finds that conclusions on questions of fact recorded by the first appellate court are wrong.”

In another case, Mohd Saud vs Dr (Maj) Shaikh Mahfooz, there was a conflict of views between two division benches of the Orissa High Court and, therefore, the issue was decided by a full bench of that court. The full bench held that after the amendment of the relevant provisions in the code (Section 100-A with effect from July 2002), no appeal shall lie against the order or judgment passed by a single judge. The Supreme Court agreed with this view. It also remarked that the different views taken by some courts were due to bad drafting of the provisions.

“To resolve this conflict we have to adopt a purposive interpretation. The whole purpose of introducing Section 100-A was to reduce the number of appeals as the public in India was being harassed by the numerous appeals provided in the statute,” the Supreme Court declared. It gave an interpretation of the amendment to avoid a strange situation in which the new provision would defeat the purpose of the amendment itself.

According to the 54th report of the Law Commission, any rational system of administration of civil law should provide for only two appeals. The search for absolute truth, however laudable, must be reconciled with the doctrine of finality.

It might, however, seem harsh on the litigants who are dissatisfied with a bad judgment, especially since the general perception is that the quality of judges has gone down. Even the Supreme Court was compelled to remark last week that there was “something rotten” in the Allahabad High Court, a venerable institution. At the same time, many litigants would save their money and energy by not following the advice of lawyers who encourage further gambling in the courts.

http://www.business-standard.com/india/news/m-j-antony-appeals-for-restraint/416656/

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