M J Antony: Finality to litigation

OUT OF COURT

The Supreme Court has asked high courts not to entertain repeated appeals in the same case.

Litigation is often described as a gamble, and a resourceful client is often tempted to try his luck at every level of the pyramid of courts. He hopes that his clever lawyer would meet a careless judge at some point and give him what he wants. This leads to filing a number of appeals, burdening the legal system. In two judgements in recent days, the Supreme Court criticised the high courts which fall into this trap and prolong undesirable lawsuits.

Normally, one appeal is the norm. In exceptional cases, two are possible. In order to limit the number of appeals, Section 100 of the Civil Procedure Code was amended in 1976. According to the new law, the appellate courts would not entertain a second appeal unless the case raises substantial questions of law. Even then, the appellate courts should not go into the facts of the case already decided by the courts below. However, the high courts in the two cases before the Supreme Court did exactly that, prompting it to correct the procedure.

The first case, Gurdev Kaur vs Kaki, dealt with a will over which the heirs were disputing. Two courts below had gone into the genuineness of the will and had arrived at a certain finding. However, the Punjab and Haryana High Court, on a second appeal, went over the facts once again and reached a different conclusion. This necessitated a final appeal to the Supreme Court.

The judgement 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."

It further noted that the primary cause of the accumulation of arrears of second appeals in the high courts is the laxity with which second appeals were admitted without serious scrutiny of the provisions of the code. At the time of admission of appeals, it is the bounden duty of the high courts to formulate the substantial questions of law involved in the case. "The legislature never wanted a second appeal to become a third trial on facts or one more dice in the gamble," the Supreme Court said.

It may be true that the courts of first instances might have done gross injustice or misapplied the law. Therefore, the high court should intervene and do justice. This is all the more so as the lower judiciary might not be quite competent or other factors might have interfered in the course of justice. However, the Supreme Court insists that the courts must follow the code strictly and apply the law as stated in the code. They cannot chase pure justice in every case; they should act as courts of law. There is indeed a difference between law and justice.

The 54th report of the Law Commission, upon which the 1976 amendment was made, clarified this point. A search for "absolute truth" in the administration of justice, however laudable, must in the very nature of things be put under some reasonable restraint. In other words, a search for truth has to be reconciled with the doctrine of finality. In judicial hierarchy, finality is absolutely important because that gives certainty to law. Even in the interest of the litigants themselves, finality in law is desirable, according to the Law Commission. In the words of the Supreme Court, "even litigants have to be protected against too persistent a pursuit of their goal of perfectly satisfactory justice."

The Supreme Court pointed out that even in the early 19th century, Lord Hastings had dealt with the problem of second appeals and remarked that though the idea of securing justice by double and treble checks was most laudable, it was a utopian idea. It would in fact result in general injustice by withholding redress and cause general injustice by perpetuating litigation.

Another bench of the Supreme Court, in Mst Sugani vs Rameshwar Das, reiterated the point last week. This was a case of specific performance of a contract of sale. The first appellate court had examined the questions of fact in great detail. However, the Allahabad High Court dealt with them again and took another view. The Supreme Court allowed the appeal and made several observations against the conduct of certain high courts.

The judgement emphasised that the amendment was made to minimise litigation, to give the litigant a fair trial, to expedite the disposal of civil suits and to ensure fair deal to the poor sections of the community. The high courts have been deciding second appeals without stating what were the substantial questions of law which were involved. Moreover, the high courts tend to confuse questions of law and facts in several cases. The severe remarks from the Supreme Court in two consecutive decisions should come as an eye-opener for the judiciary.