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Law Commission of India
Cite as : (1971) 1 SCC (Jour) 73
The Law Commission is at present engaged in a consideration of the question whether the right of appeal to the Supreme Court in civil matters under Article 133(1) (a) and (b) of the Constitution should be abolished. The Law Commission has prepared a note on the subject as printed below for eliciting the views of interested persons and bodies.
Replies to the note may be sent to the Joint Secretary and Legal Adviser, Law Commission, Government of India, 'A' Wing, 7th Floor, Shastri Bhavan, Dr. Rajendra Prasad Road, New Delhi-1, as early as possible.
Subject.— Appellate jurisdiction of the Supreme Court in regard to civil matters under Article 133 of the Constitution.
This note deals with a proposal regarding the appellate jurisdiction of the Supreme Court in regard to civil matters under Article 133 of the Constitution. The proposal is to repeal sub-clauses (a) and (b) of clause (1) of the article, and thereby limit this jurisdiction to cases in which the High Court certifies that the case is a fit one for appeal to the Supreme Court under sub-clause (c) , without reference to the amount or value of the subject-matter of the dispute.
2. The Government of India had in 1969 introduced a Bill in the Rajya Sabha, the object of which was to enhance the amount mentioned in sub-clause (a) from Rs. 20,000/- to Rs. 1,00,000/-. This Bill1 was passed by the Rajya Sabha on the 3rd August, 1970, but owing to the dissolution of the Lok Sabha before it could consider the Bill, the Bill lapsed. A copy of the Bill, as passed by the Rajya Sabha, is attached for reference. (Annexure A) .
3. Article 133, as is well known, was based on the provisions of Sections 109 and 110 of the Civil Procedure Code which formerly regulated appeals to the Privy Council. The important differences between the article and the sections were —
(i) the enhancement of the pecuniary limit from ten thousand rupees to "twenty thousand rupees or such other sum as may be specified in that behalf by Parliament by law";
(ii) the right of appeal, formerly restricted to decrees and final orders passed on appeal by the High Court, now made available against "any judgment, decree or final order in a civil proceeding of a High Court", thus including final orders passed by a High Court in the exercise of its revisional jurisdiction ;
(iii) the right of appeal on a certificate of fitness, which was formerly available against any order of the High Court, now restricted to final orders of the High Court.
4. The raising of the pecuniary limit to Rs. 20,000 in the Constitution was obviously made in view of the depreciation of the rupee, but it was by no means proportionate to the fall in the purchasing power of the rupee. No appreciable fall in the number of appeals to the Supreme Court could have been expected from the small increase in the pecuniary limit, because the Constitution, for the first time, conferred extensive writ jurisdiction on High Courts under Article 226. There is a right of appeal under Article 133 against any judgment or final order passed by a High Court under Article 226 if this proceeding can be classified as "a civil proceeding" ; and it is now well-settled2 that it can be so classified if it deals with civil rights conferred either by civil law or by statute.
5. The present position, therefore, as regards the appellate jurisdiction of the Supreme Court in civil matters is as follows:
(1) There is an unrestricted right of appeal to the Supreme Court where the value of the subject-matter of the dispute is not less than Rs. 20,000 or where the order of the High Court involves directly or indirectly some claim or question respecting property of that amount or value —
(a) if the judgment or the final order of the High Court is passed in exercise of its original jurisdiction (ordinary or extra-ordinary) ,
(b) if in exercise of its appellate jurisdiction, the High Court reverses the judgment or order of the Court below.
(2) Where the appellate judgment of the High Court is one of affirmance, there must also be "some substantial question of law" involved.
(3) Where the High Court certifies that the case is fit for appeal to the Supreme Court, the pecuniary limit does not apply.
Judicial decisions have made it clear that the test for grant of a certificate or fitness under sub-clause (c) of clause (1) of Article 133 (corresponding to clause (c) of old Section 109, Civil Procedure Code) is much more rigorous than the test of a "substantial question of law" required for a certificate to appeal against a judgment of affirmance under clause (2) of Article 133.3
6. In India, the conferment of a right of appeal to the highest tribunal based mainly on the value of the subject-matter in dispute has an historical origin. As early as 1726, when Mayors' Courts were functioning in the three presidency towns of Calcutta, Madras and Bombay, an appeal was provided to the King-in-Council in cases where the subject-matter of the litigation was worth more than 1000 pagodas. After the establishment of the Supreme Court of Calcutta by the Regulating Act of 1773, the Charter of the Supreme Court provided for an appeal to the King-in-Council where the subject-matter of the dispute exceeded the sum of one thousand pagodas. In Bombay, however, the pecuniary limit for appeal to the King-in-Council was fixed at 3000 Bombay rupees. In the mofussil, where the corresponding High Courts for civil litigation were the Sadar Diwani Adalats, a pecuniary limit was fixed for the purpose of appeal to the King-in-Council, but it varied from place to place.
7. By an Order in Council, dated 1838, uniformity was introduced, and an appeal to the King-in-Council was permitted only where the subject-matter in dispute was at least Rs. 10,000 company rupees in value. This minimum value continued the same after the Constitution in 1861 of the High Courts (which replaced the old Supreme Courts and Sadar Diwani Adalats) , and it was incorporated in the Civil Procedure Code of 1908 notwithstanding the considerable fall in the purchasing power of the rupee since 1838. The makers of the Constitution maintained the principle of valuation, though they raised the amount to Rs. 20,000 and indicated that Parliament might raise it further to any extent by an ordinary law.
8. The main advantages of an unrestricted right of appeal to the highest Court in the country may be said to be —
(1) It ensures uniformity in interpretation of the laws, thereby avoiding the confusion which would result where the High Courts in the States give conflicting decisions.
(2) Correct determination is more likely to be obtained in the highest Court than in the lower Courts.
(3) There is always a possibility of error, and there should be a Superior Court to correct the error.
9. On the other hand, the existence of a right of appeal based on valuation is open to the following criticism —
(1) It discriminates unfairly between the rich litigant and the poor.
(2) It is well known that important questions of law do not depend on the value of the subject-matter in dispute.
(3) It promotes the leading of perjured evidence as regards valuation, and causes considerable delay in the High Court in determining valuation for the purpose of appeal. It is notorious that litigants under-value the subject-matter, for the purpose of court-fee, and then try to over-value the same for the purpose of appeal to the Supreme Court.
(4) It causes avoidable congestion in the Supreme Court, and thereby impairs the prompt discharge of its primary functions, namely, the grant of speedy relief in those cases which involve: (a) interpretation of the Constitution (Article 182) , and (b) enforcement of Fundamental Rights (Article 132) in regard to which this Court has (in the words of Chief Justice Patanjali Sastri) "been assigned the role of a sentinel on the qui vive".4
10. Uniformity in the interpretation of civil law, as indeed of all laws, throughout the country is essential. But this uniformity can always be brought about either by the High Court granting a certificate of fitness under sub-clause (c) of Article 133(1) , or by the Supreme Court granting special leave under Article 136. As regards the other two advantages also,5 the power of the Supreme Court to grant special leave under Article 136 may suffice.
11. An English Chief Justice observed6 long ago that "it is the glory and happiness of our excellent Constitution that, to prevent any injustice, no man is to be concluded by the first judgment; but that, if he apprehends himself to be aggrieved, he has another Court to which he can resort for relief". This principle will not be substantially jeopardised by the repeal of sub-clauses (a) and (b) . Ordinary civil litigation reaches a High Court either in the first appellate stage or in the second appellate stage, according to the valuation of the subject-matter of litigation. Hence, by the time the High Court disposes of the matter, the parties have had the benefit of at least one appeal on law and facts, and sometimes also a second appeal on questions of law. Even in those High Courts which have ordinary original civil jurisdiction, such as the High Courts of Calcutta, Bombay and Madras, if the original judgment is delivered by a single judge, there is always an unrestricted right of appeal to a Division Bench under the Letters Patent. It is true that if, in those High Courts, the original trial is held before a Division Bench, there will be no unrestricted right of appeal if sub-clauses (a) and (b) are repealed. But such original trials of civil suits before Division Benches are very rare indeed. However, if this aspect is considered important, a suitable provision on the subject could be made in Article 133.
12. The proposed amendment is not intended to interfere with the appeal to the Supreme Court against orders passed by the High Court, where such a right is conferred by provisions in special laws.7 That right will not be affected in any way by the present proposals.
13. It may be said that by giving a right of appeal based solely on the test of value of the subject-matter — and that too — after an appeal to the High Court — the law gives an opportunity "to put the dice into the box for another throw".8 It only leads to heavy expense and delay in litigation, and to some extent, affects the prompt discharge by the Supreme Court of its primary functions.
14. A review of the existing position in England, France, U. S. A. and a few other countries with a federal constitution has been made, and the result briefly indicated in Annexure B. The value of the subject-matter in dispute at the final appellate stage is relevant in three countries, viz., Australia, Canada and Switzerland ; in England, France, West Germany, Russia and the U. S. A., it is not.
15. The points for consideration are —
(i) does the existing position under Article 133 require to be changed; and
(ii) if so, is it sufficient to enhance the valuation limit from the present 20,000 rupees to one lakh rupees, as proposed in the lapsed Bill (Annexure A) ; or
(iii) is it preferable to repeal sub-clauses (a) and (b) of Article 133(1) allowing appeals under that article only on a certificate of fitness under sub-clause (c) (without prejudicing in any way the power of the Supreme Court to grant special leave under Article 136) ; or
(iv) alternatively, in place of sub-clauses (a) and (b) , should there be a provision for appeal from a judgment, decree or final order of a Division Bench of the High Court9 exercising original jurisdiction (ordinary or extraordinary, e.g., on a writ petition) irrespective of value, or when above a certain value;
(v) whichever alternative is adopted, what should be the transitional provision as regards —
(a) matters pending in the High Court by way of appeal or revision or in its original jurisdiction, and
(b) matters pending in the High Court for the issue of a certificate on the basis of pecuniary valuation; would a provision on the lines of clause 4 of the lapsed Bill10 be satisfactory?
16. It would be useful to know the extent to which each of the above alternatives is likely to reduce the number of civil appeals before the Supreme Court. Detailed and up-to-date figures are not readily available. The following figures pertaining to the years 1966 and 1967 may afford some guidance —
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1966
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|
1967
|
1. |
Civil Appeals filed under Article 133(1)(a)
and (b). . |
. . |
245 |
|
367 |
| 2. |
Civil Appeals filed under Articles 132(1)
and 133(1) (c) . . |
. . |
636 |
|
648 |
| 3. |
Civil Appeals filed under Articles 132(1)
and 133(1) (a) , (b) and (c) . . |
. . |
75
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|
86
|
| |
Total |
. . |
956
|
|
1101
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About one-third of the total number of civil appeals filed on certificates given under Article 132(1) or 133(1) were on the basis of valuation only; and it may also be mentioned that the time taken in hearing and deciding such appeals is ordinarily more than the time taken in deciding an appeal under Article 132(1) or Article 133(1) (c) .
ANNEXURE A
THE SUPREME COURT (ENHANCEMENT OF VALUATION
FOR CIVIL APPELLATE JURISDICTION)
BILL, 1970
(Bill No. XXXI-C of 1969)
(As passed by the Rajya Sabha on the 3rd August, 1970)
A Bill to enhance the amount or value of the subject-matter of dispute for purposes of civil appellate jurisdiction of the Supreme Court, and further to amend the Code of Civil Procedure, 1908.
Be it enacted by Parliament in the Twenty-first year of the Republic of India as follows:—
1. Short title and commencement.— (1) This Act may be called the Supreme Court (Enhancement of Valuation for Civil Appellate Jurisdiction) Act, 1970.
(2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.
2. Enhancement of valuation for civil appellate jurisdiction of the Supreme Court.— (1) On and from the commencement of this Act, for the purposes of an appeal to the Supreme Court under sub-clause (a) or sub-clause (b) of clause (1) of Article 133 of the Constitution; —
(a) the amount or value of the subject-matter of the dispute referred to in the said sub-clause (a) shall be not less than one lakh rupees instead of twenty thousand rupees;
(b) the judgment, decree or final order referred to in the said sub-clause (b) shall involve directly or indirectly some claim or question respecting property of the like amount or value.
(2) Save as aforesaid, the provisions of Article 133 of the Constitution shall apply in relation to any such appeal as they apply in relation to an appeal under that Article to the Supreme Court before the commencement of this Act.
3. Amendment of Act 5 of 1908.— In Section 110 of Code of the Civil Procedure, 1908, for the words "twenty thousand rupees", the words "one lakh rupees" shall be substituted.
4. Continuance of certain proceedings.— (1) Nothing in this Act shall affect any appeal under sub-clause (a) or sub-clause (b) of clause (1) of Article 133 of the Constitution, which, on the commencement of this Act, is pending before the Supreme Court, and every such appeal may be heard and disposed of by the Supreme Court as if this Act had not been passed.
(2) Without prejudice to the provisions of sub-section (1) , no appeal from any judgment, decree or final order referred to in sub-clause (a) or sub-clause (b) of clause (1) of Article 133 of the Constitution arising out of a civil proceeding pending in any Court at the commencement of this Act, shall be entertained and disposed of by the Supreme Court, unless such appeal satisfies the provisions of Section 2.
ANNEXURE B
Relevancy of valuation in appeals to the Supreme Court or other highest
Court of the country
1. Australia.— Position as regards appeals to the High Court of Australia —
(i) Valuation relevant (œ 1,500) .
(ii) Appeals also lie irrespective of valuation, where questions of status (marriage, divorce, bankruptcy, aliens, etc.) are involved.
(iii) Leave not required. But, besides the matters mentioned above, leave can be granted by the High Court, in other cases.
2. Canada.— Position as regards appeals to the Supreme Court of Canada —
(i) Valuation relevant — 10,000 Dollars.
(ii) No limitation as to nature of the question involved.
(iii) Leave not required. But, in cases not covered by (i) above, leave can be granted by the Supreme Court of Canada or the Provincial Court of Appeal.
3. England.— Position as regards appeals to the House of Lords —
(i) Valuation not relevant.
(ii) No limitation as to nature of the question involved in general, except for 'leapfrog' appeals, etc.
(iii) Appeal is only by leave of the Court of Appeal or the House of Lords.
4. France.— Position regarding appeals to the Court of Cessation —
(i) Valuation not directly provided for. But it may be noted that appeals to the first Appellate Court from the trial court (Court of grand instance) are ordinarily allowed only if valued at a certain amount, roughly, 200 U. S. Dollars.
(ii) Appeal limited to question of law.
(iii) Leave not required.
5. West Germany.— Position regarding appeals to the Supreme Federal Court —
(i) Valuation not relevant.
(ii) But the scope of appeal is limited indirectly, because the function of the Supreme Federal Court is "to preserve the uniformity of application of federal law", and, apparently, the appellate jurisdiction will be confined to cases involved such questions.
(iii) Leave not required.
6. Russia.— Position regarding appeals to the U. S. S. R. Supreme Court —
(i) Valuation not relevant. But it should be noted that a private party has no right of appeal to the U. S. S. R. Supreme Court.
(ii) The jurisdiction of the Supreme Court is indefinite. Motion for review can be filed on the ground of "a particularly essential violation of the laws in force or a plain violation of the interests of the workers' and peasants' State and the toiling masses".
7. Switzerland.— Position regarding appeals to the Federal Tribunal —
(i) Valuation relevant (8,000 Swiss francs) .
(ii) No express limitation as to the nature of the question involved could be discovered. But this seems to be implicit in the Tribunal's function of ensuring uniform application of federal law. Apparently, its appellate jurisdiction will be confined to cases involving such application.
(iii) Leave not required.
8. U. S. A. — (a) Position regarding appeals or certiorari to the Supreme Court of the U. S. A.—
(i) Valuation not relevant.
(ii) The question involved must be what can be roughly described as a "federal" one.
(iii) Leave not required. But review is discretionary in many cases.
Appellate cases may be taken to the Court by two routes, appeal and certiorari, depending on the nature of the case. The avenue of appeal, (which replaced the older writ of error) , is reserved principally for cases from state Courts in which the highest Court of the state has held a state statute valid under the federal Constitution. Other cases from the highest Courts of the States — decisions holding State statutes unconstitutional, construing federal statutes, or involving federal privileges and immunities like full faith and credit to judgments of sister States — must take the avenue of certiorari. Jurisdiction under appeal is obligatory, while jurisdiction under certiorari is discretionary with the Supreme Court.
(b) Position regarding appeal to the highest Court of the State in the U.S.A.
There is wide variation in detail in the provisions governing the right to further review, by the higher Appellate Court, of the determination made by the lower Appellate Court. Seldom is such further review a matter of right in all cases. Illustrative is a provision in one State giving such right of further review where the lower Appellate Court has reversed the judgment of the Trial Court, or where the affirmance of the judgment has been by a divided Court; in all other cases review may be had only by permission, granted either by the lower or the higher Appellate Court.
- The Supreme Court (Enhancement of Valuation for Civil Appellate Jurisdiction) Bill, 1970.
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- Narayan Row v. Ishwar Lal, (1966) 1 SCR 190: AIR 1965 SC 1818; Ramesh v. Gendalal, (1966) . 3 SCR 198: AIR 1966 SC 1445, 1448; Arbind Kumar v. Nand Krishore, (1968) 3 SCR 322: AIR 1968 SC 1227.
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- See Mulla' Civil Procedure Code (1965) , Vol 1, page 467.
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- State of Madras v. V. G. Rau, 1952 SCR 597, 665: AIR 1952 SC 196, 199.
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- Para 8 above.
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- King v. Chancellor, Masters and Scholars of the University of Cambridge, (1723) 93 ER 698, 702-703, (Sir John Pratt, C.J.) .
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- E. g.-(a) Section 56, Indian Divorce Act, 1869; (b) Section 45-N, Banking Regulation Act, 1949; (c) Section 116-A, Representation of the Peoples Act, 1951; (d) Section 29, Wealth Tax Act, 1957; (e) Section 28, Gift Tax Act, 1958; (f) Section 38, Advocates Act, 1961; (g) Section 83, Income Tax Act, 1961, etc.
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- Ambrose Bierce, quoted by Carpentier, Counsel on Appeal, page 145.
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- Order of a Judicial Commissioner's Court with a single Judge.
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- Annexure A.
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