M J Antony: Diehard litigation

OUT OF COURT

Repeated appeals lead to colossal delay in the administration of justice in civil cases.

One of the frustrating hurdles in reaching a final settlement of a legal dispute is the ladder of appeals provided by law up to the Supreme Court. Resourceful clients with the help of shrewd lawyers can prolong the life of a litigation by decades exercising the right of appeal. In fact, this is no natural or inherent right but it is given by statutes. Some time ago, the Civil Procedure Code was amended to limit the number of appeals. After the amendment of Section 100, appellate courts would not entertain a second appeal unless it raises 'substantial questions of law'. But this phrase is a bit too vague, to the delight of the legal profession. So there is a new set of appeals to the Supreme Court over whether there were substantial questions of law before the court which heard the second appeal.

In recent weeks, the Supreme Court has found a few cases in which the high courts had allowed second appeals though there was no substantial question of law involved. In Boodireddy vs Arigela Laxmi, the Supreme Court observed: "In spite of several decisions of this court highlighting the requirement of formulating the substantial question of law, if any, before adjudicating the second appeal, time and again, it has come to our notice that the mandatory requirement is not being followed." It sent back the case to the high court to formulate the substantial questions of law and then decide the appeal. The same was the order in another case decided last week, in Ciddagunta vs Namakari.

The consequence of lax application of the rule was explained in Gurdev Kaur vs Kaki last year. The Supreme Court said: "Indiscriminate and frequent interference under Section 100 of the code in cases which are totally devoid of any substantial question of law is not only against the legislative intention but is also the main cause of the huge pendency of second appeals in the high courts, leading to colossal delay in the administration of justice in civil cases in the country." Parliament did not want a second appeal to become a third trial on facts or one more dice in the gamble. In Mst Sugani vs Rameshwar, the court said that the high court tended to confuse questions of law and facts.

It is true that the trial court might have done gross injustice or misapplied the law. The lower judiciary might not be quite competent and other factors might have vitiated its judgment. Still, the Supreme Court insists that the rule set in the code must be followed. Search for 'absolute truth' or 'pure justice' must yield to the doctrine of finality, according to the Supreme Court.

What is a substantial question of law? Several attempts have been made by the Supreme Court since the dawn of the Constitution to define it. The earliest was in 1951, in Rimmalapudi vs Noony. The effort continues even now. In the Century Spg & Mfg case (1962) the Supreme Court said the question must be of general importance, directly affecting the rights of the parties and not earlier decided by the appellate courts. Last week's judgment in Boodireddy case apparently leaned on a dictionary and said 'substantial' meant "having substance, essential, real, or sound worth, important or considerable".

But it all depends upon the judges who apply these imprecise definitions to the facts of the case. The litigants could be dismayed by the fortuitous consequences. English judge-turned novelist A P Herbert wrote in his autobiography about the oddity of appeals, comparing the justice system with the field of medicine. He wrote: "Our surprise would be great if after removal of our appendix by a local surgeon we were taken before a district town surgeon, who ordered our appendix to be replaced, and our surprise would give place to stupefaction if we were then referred to a distinguished surgeon in the state capital who would ask that our appendix should be extracted again, and finally, if a board of distinguished surgeons in London ordered the appendix to be replaced. Yet such a succession of operation is what our law provides."

There is another well-known illustration of the fate of one who starts the gamble called litigation. One can lose a case while having more judges in one's favour. For instance, you win before the district judge, also win unanimously before a three-judge bench in the high court, but lose 1: 2 in the Supreme Court. Five judges on your side, but the case lost. The Supreme Court is right because it is the final court, not because it is infallible. Recognising this reality, the court said in the Gurdev Kaur case: "Even litigants have to be protected against too persistent a pursuit of their goal of perfectly satisfactory justice."