M J Antony: Appeals without substance

OUT OF COURT

Despite the SC's chastisements, high courts continue to admit second appeals, clogging the system.

Two things that get on the nerves of a litigant are recurrent adjournments by the courts and interminable appeals up to the Supreme Court. One appeal is a right, but in practice, half-a-dozen appeals are possible. A lawyer will advise a losing client to take another gamble in the next highest court in the judicial pyramid. Some of them do succeed, as a shrewd lawyer might meet an unsuspecting judge there. It was to reduce the steps in the judicial ladder that an amendment was made in the Civil Procedure Code in 1976. According to it, the high courts should not accept a second appeal in a case unless a "substantial question of law" was specifically stated.

However, the rule is broken by the high courts very often, either under pressure from counsel or for other reasons. In the past year alone, there were about 50 full-scale judgments of the Supreme Court in which the apex court dealt with the second appeal syndrome and criticised various high courts for hearing them even when there were no substantial questions of law involved. The trend continues to clog the legal system, despite repeated chastisement of the high courts by the Supreme Court.

The latest in the series is Kashmir Singh vs Harnam Singh, an appeal against the judgment of the Punjab & Haryana high court. The main argument against the high court decision was that it had heard the second appeal in the dispute without drafting the substantial questions. This requirement is now mandatory according to Section 100 of the code. The Supreme Court found that the high court had not followed this rule. Therefore, the Supreme Court remitted the matter to the high court for reconsideration of the case after formulating the 'substantial question of law'.

Disapproving of the action of the high court, the judgment said: "It has been noted time and again that without insisting for a statement of the substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the high courts have been issuing notices and generally deciding second appeals without adhering to the procedure prescribed under Section 100 of the code. The conditions must be strictly fulfilled. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the high court in exercise of the powers under this section. Further, a substantial question of law has to be distinguished from a substantial question of fact."

The phrase 'substantial question of law' cannot be precisely defined but the Supreme Court has made several attempts in the past decade. One of the earliest attempts was in the case of Century Spg & Mfg Co Ltd. The court said that the proper test for determining whether a question of law is substantial is to see whether it is of general importance or whether it directly or substantially affects the rights of the parties, and if so, whether it is either an open question in the sense that it is not finally settled by the final court or is not free from difficulty or calls for discussion of alternative views. The high court cannot investigate the grounds on which the findings were arrived at by the trial court. It can, however, interfere when it is found that the conclusions drawn by the lower appellate court were wrong, being contrary to the provisions of law or their interpretation by the apex court. It can also step in if the lower court had based its decision on inadmissible evidence or ignored material evidence.

It is quite likely that the court below might have made a serious error, as the judiciary at the lower levels also suffers from a paucity of competent incumbents. However, that is no reason for the high court to intervene and start the procedure from square one. In Gurdev Kaur vs Kaki (2006), the Supreme Court remarked that indiscriminate and frequent second appeals led to accumulation of arrears in the high courts. "The legislature never wanted a second appeal to become a third trial on facts or one more dice in the gamble," it had said.

Another jurisprudential reason for restricting the number of appeals is that the quest for absolute truth must end somewhere. The 54th report of the Law Commission, on the basis of which the 1976 amendment was introduced, said as much. The pursuit of pure justice must be reconciled with the doctrine of finality. In one judgment, the Supreme Court said that "even litigants have to be protected against too persistent a pursuit of their goal of perfectly satisfactory justice." The number of second appeals indicates that the high courts have reasons of their own to keep the hopes of the litigants at unattainable levels.