M J Antony: Clogging the system
Despite SC guidelines, high courts open doors to litigants who gamble on appeals
Despite the Supreme Court guidelines, high courts open doors to litigants who gamble on appeals.
This is a court of law, young man, not a court of justice!” a senior counsel comforted a novice who lost his case. What litigants expect from the courts is justice, but very often what they get is a judgement according to law, which is often called an ass. One who lost one’s case can appeal to the higher court, but it is a gamble again. The search for perfect justice must stop somewhere. This was the objective of the 1976 Amendment to the Civil Procedure Code. According to the Code, a second appeal is allowed only if the case raises “substantial questions of law”. Findings of fact and evidence must stop at the earlier stage.
However, the Supreme Court has found in a number of recent cases, that the high courts in the country are not following this rule strictly in Section 100 of the Civil Procedure Code. Therefore, in one of the cases (Koppisetty Vankat vs Pamarti Venkayamma), it went onto emphasise that the courts below must act according to the rule not only to reduce arrears in the courts, but also for the benefit of the litigants.
“This court is compelled to interfere in a large number of cases decided by the high courts under Section 100,” the judgement stressed. “Eventually this court has to set aside these judgements of the high courts and remit them to the respective high courts for deciding them de novo, after formulating the substantial question of law. Unfortunately, several years are lost in the process. Litigants find it extremely expensive and time-consuming. This is one of the main reasons for the delay in the administration of justice in civil matters.”
The problem of repeated appeals was studied by the Law Commission in its 54th Report, submitted to the government in 1973. According to the Report, any rational system of administration of civil law should recognise that litigation should have two hearings on facts, one by the trial court and one by the court of appeal. The search for absolute truth, however laudable, must in the very nature of things, be put under some reasonable restraint. The search for truth has to be reconciled with the doctrine of finality. It gives certainty to the law. Though it may be harsh on the litigants, it is pragmatic.
The Supreme Court has supported the view of the Law Commission. It said: “Even the litigants have to be protected against too persistent a pursuit of their goal of perfectly satisfactory justice. An unqualified right of first appeal may be necessary for the satisfaction of the defeated litigant; but a wide right of second appeal is more in the nature of a luxury.”
The primary cause of the accumulation of arrears of second appeals, according to the Supreme Court, is the laxity with which second appeals are admitted without a scrutiny. Parliament never wanted the second appeal to become a third trial on facts or “one more dice in the gamble”. Some judges in the high courts might think that there was gross misappreciation of evidence in a particular case leading to miscarriage of justice in the court below. But even then, the Supreme Court is against allowing another appeal unless there is a substantial question of law involved. “We would like to reiterate that justice has to be administered in accordance with the law.” It might sound unkind, but individual litigants are made to sacrifice on the altar of law-making.
This is not the first time the Supreme Court has cautioned the high courts on hearing second appeals without formulating the question of law. In several recent decisions, it has chided high courts for taking a decision without weighing the importance of the legal issue involved. The question must be ‘substantial’, meaning essential, real or of sound worth, according to the judgement in Santosh Hazari vs Purushottam Tiwari (2001). The question should not be technical or academic or of no consequence. However, it need not be a question of general importance, as in several other similar provisions of law. The memorandum of appeal should clearly state the nature of the question of law and the high courts should diligently examine it.
Despite these clear guidelines, lawyers who lose their cases routinely advise their clients to file appeals, as it is good for their business. It is for their clients to restrain themselves and save money and harassment of more litigation and the courts to see through the litigative strategies which clog the system.