Powers of High Court under the Civil Procedure Code, 1908

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Powers of High Court

The High Courts of the Indian Judiciary have been accorded some specific powers under the Civil Procedure Code with respect to certain matters, apart from the powers in the Constitution of India. They are –

1) Under Section 3, every District Court, Civil Court, and Small Causes Court is subordinate to the High Court in a state.

2) Under Section 23, where several Courts having jurisdiction are subordinate to the same Appellate Court, an application under Section 22 to transfer suits which may be instituted in more than one Court shall be made to the Appellate Court. Where such courts are subordinate to totally different proceeding Courts however to the identical tribunal, the application shall be made to the said High Court. Further, where such Courts are subordinate to different High Courts, the application shall be made the High Court within the local limits of whose jurisdiction the Court in which the suit is brought is situated.

3) Under Section 24, on the application of any of the parties and after notice to the parties and hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage-

a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or

b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and-

i. try or dispose of the same; or

ii. transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or

iii. re-transfer identical for trial or disposal to the Court from that it absolutely was withdrawn.

Where any suit or proceeding has been transferred or withdrawn such, the Court which is thereafter to try or dispose of such suit or proceeding (including the High Court), may, subject to any special directions within the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.

4) Under Section 100, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is glad that the case involves a considerable question of law. And charm might lie underneath this section from and proceeding decree passed ex parte.

Provided that nothing during this sub-section shall be deemed to require away or lessen the facility of the Court to listen to, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.

There are certain situations given as follows-

a) The scope of the exercise of the jurisdiction by the High Court in the second appeal is limited to the substantial question of law. To be a considerable question of law should be debatable, not previously settled by law of the land or a binding precedent and answer to the same will have a material bearing on the rights of parties before the Court.

b) The High Court was not justified in setting aside the concurrent finding of fact on sub-letting and nuisance without formulating any substantial question of law.

c) The High Court, in the second appeal is not justified in setting aside a mixed question of law and fact.

d) It should not interfere with the concurrent finding of fact in a routine and casual manner by substituting its subjective satisfaction in place of lower courts.

e) Where the first appellate court has assumed a jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating as substantial question of law.[1]

f) The findings of fact arrived by the courts below are binding in the second appeal.[2]

g) Conclusion about limitation is a finding of fact and is not open for interference in the second appeal.[3]

h) Once the evidence on which the courts of fact have acted was admissible and relevant, the party cannot be allowed to raise that said evidence is insufficient to justify the finding of facts in the second appeal.[4]

i) In the second appeal, interference with the factual finding is permissible only if the said finding is unreasonable.[5] Interference with factual findings recorded by the court below is permissible in cases of non-consideration of relevant proof.[6]

j) The question of fact cannot be allowed to be raised in the second appeal.[7]

k) Interference with the finding of fact is permissible if the court below ignored the weight of evidence on record altogether.[8]

l) In the case of erroneous application of the law, the second appeal is maintainable if it raises a substantial question.[9]

m) If the interpretation of the contract involves a substantial question of law, it can be examined in the second appeal.[10]

n) Where perverse findings have been recorded by the court below, the second appeal is maintainable. Further, where the factual finding is based on no evidence, the second appeal is maintainable.[11]

o) The finding of fact recorded by the first appellate court cannot be interfered with in the second appeal unless perverse.[12]

p) Finding of fact cannot be questioned in the second appeal.[13]

q) In absence of a substantial question of law on a current finding of facts, it cannot be interfered with in the second appeal.[14]

5) Under Section 100A, Notwithstanding anything contained in any Letters Patent for any High Court or in any other instrument having the force of law or in any other law for the time being in force, where an appeal from an original or appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment and decree of such single Judge.[15]

6) Under Section 103, In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal –

a. which has not been determined by the lower Appellate Court or both by the Court of the first instance and the lower Appellate Court; or

b. which has been wrongly determined by such Court or Courts reason of a decision on such question of law as is said in Section hundred.[16]

7) Under Section 109, the High Court may allow an appeal to the Supreme Court if in its opinion the said case involves a substantial question of law of general importance and needs to be decided by the Supreme Court.[17]

8) Under Section 113, subject to such conditions and limitations as may be prescribed, any Court may state a case and refer the same for the opinion of the High Court, and the High Court, and also the court might create such order on it because it thinks match.[18]

9) Under Section 115, the High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears –

a. to have exercised a jurisdiction not vested in it by law; or

b. to have failed to exercise a jurisdiction so vested; or

c. to have acted in the exercise of its jurisdiction illegally or with material irregularity;

The High Court may make such order in the case as it thinks fit.

Provided that the Court shall not, below in this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except wherever the order, if it had been made in favor of the party applying for revision, would have finally disposed of the suit or other proceedings.[19]

10) Under Section 118, where any such High Court considers it necessary that a decree passed in the exercise of its original civil jurisdiction should be executed before the amount of the prices incurred within the suit is discovered by taxation, the Court may order that the decree shall be executed forthwith except as to so much thereof as relates to the costs; and, as to so much thereof as relates to the costs, that the decree may be executed as soon as the amount of the costs shall be ascertained by taxation.[20]

11) Under Section 119, nothing in this Code shall be deemed to authorize any person on behalf of another to address the Court in the exercise of its original civil jurisdiction, or to examine witnesses, except where the Court shall have in the exercise of the power conferred by its charter authorized him to do so, or to interfere with the power of the Court to create rules regarding the advocates, vakils, and attorneys.[21]

12) Under Section 122, High Courts not being the Court of a Judicial Commissioner may, from time to time after previous publication, make rules regulating their own procedure and the procedure of the Civil Courts subjects to their supervising, and may be such rules annul, alter or add to all or any of the rules in the First Schedule.[22]

13) Under Section 123, a committee to be called the Rule Committee shall be constituted at the town which is the usual place of sitting of each of the High Courts referred to in Section 122. Each such Committee shall consist of the following persons, namely –

a. three Judges of the High Court established at the town at which such Committee is constituted, one of whom at least has served as a District Judge or a Divisional Judge for three years;

b. two legal practitioners enrolled in that Court;

c. Judge of a Civil Court subordinate to the High Court.

The members of every of such Committee shall be appointed by the High Court, which shall also nominate one of their number to be President. Each member of any such Committee shall hold workplace for such period is also prescribed by the High Court during this behalf, and whenever any member retires, resigns, dies or ceases to reside within the State in within which the Committee was constituted or becomes incapable of acting as a member of the Committee, the said High Court may appoint another person to be a member in his position.

There shall be a secretary to each such Committee who shall be appointed by the High Court and shall receive such remuneration as may be provided in this behalf by the State Government.[23]

14) Under Section 124, every Rule Committee shall make a report to the High Court established at the town at which it is constituted on any proposal to annul, alter or boost the principle within First Schedule or to form new rules, and before creating any rules under Section 122 of the Tribunal shall take such report into consideration.[24]

15) Under Section 125, High Courts, other than the Courts specified in Section 122, may exercise the powers conferred by that section in such manner and subject to such conditions as the State Government may determine.

Provided that such tribunal could, after previous publication, make a rule extending within the local limits of its jurisdiction any rules which have been made by any other High Court.[25]

16) Under Section 129, notwithstanding anything in this Code, any High Court not being the Court of a Judicial Commissioner may make such rules not inconsistent with the Letters Patent or order or different law establishing it to control its own procedure in the exercise of its original civil jurisdiction as it shall think fit, and nothing herein contained shall have an effective effect on the validity of any such rules ineffective at the commencement of this Code.[26] According to Court interpretations, rules regulating the procedure of High Court on its original side need not be consistent with provisions of the Code of Civil Procedure, 1908.[27]

17) Under Section 130, a High Court not being a High Court to which Section 129 applies may, with the previous approval of the State Government make with respect to any matter other than procedure any rule which a High Court for a State might under Article 227 of the Constitution of India[28] make with respect to any such matter for any part of the territories under its jurisdiction which is not included within the limits of a presidency town.[29]

18) Under Section 138, the High Court may, by notification in the Official Gazette, direct with respect to any Judge specified in the notification, or falling under a description set forth therein, that evidence in cases in which an appeal is allowed shall be taken down by him in the English language and in manner prescribed.

Where a Judge is prevented by any sufficient reason from complying with such a direction, he shall record the reason and cause the evidence to be taken down in writing from his dictation in open Court.[30]


[References]

[1] Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, AIR 1999 SC 2213

[2] Smt. Bismillah Begum (dead) by LRs v. Rahmatullah Khan (dead) by Les, AIR 1998 SC 970

[3] Smt. Saraswati Devi v. Krishnaram Baldeo Bank Limited, AIR 1998 MP 73

[4] Ramanuja Naidu v. Kanniah Naidu, JT 1996(3) SC 164

[5] Sadhu Mehar v. Rajkumar Patel, AIR 1994 Ori 26

[6] Nalini v. Padmanabhan Krishnan, AIR 1994 Ker 14

[7] Prabhu Dayal v. Suwa Lal, AIR 1994 Raj 149              

[8] Ajab Singh v. Shital Puri, AIR 1993 All 138: 1993 All LJ 548

[9] Ratanlal Bansilal v. Kishorilal Goenka, AIR 1993 Cal 144: 1993(1) Cal HN 307: 1993 (1) Cal LJ 193

[10] Smt. Vidya Wati through her LRs. v. Hans Raj through his L.Rs., AIR 1993 Del 187: 1993 Rajdhani LR 274

[11] Ratanlal Bansilal v. Kishorilal Goenka, AIR 1993 Cal 144: 1993 (1) Cal HN 307: 1993 (1) Cal LJ 193

[12] Padmashree S.N. Swamy v. Smt. Gowramma, AIR 1993 Kant 208: 1992 (3) Kant LJ 244: 1993 (2) APLJ 18

[13] Ramaswamy Kalingaryar v. Mathayan Padayachi, AIR 1992 SC 115

[14] Kehar Singh v. Yash Pal, AIR 1990 SC 2212

[15] S. 100A, CIVIL PROCEDURE CODE, 1908

[16] S. 103, CIVIL PROCEDURE CODE, 1908

[17] S. 109, CIVIL PROCEDURE CODE, 1908

[18] S. 113, CIVIL PROCEDURE CODE, 1908

[19] S. 115, CIVIL PROCEDURE CODE, 1908

[20] S. 118, CIVIL PROCEDURE CODE, 1908

[21] S. 119, CIVIL PROCEDURE CODE, 1908

[22] S. 122, CIVIL PROCEDURE CODE, 1908

[23] S. 123, CIVIL PROCEDURE CODE, 1908

[24] S. 124, CIVIL PROCEDURE CODE, 1908

[25] S. 125, CIVIL PROCEDURE CODE, 1908

[26] S. 129, CIVIL PROCEDURE CODE, 1908

[27] Tridium India Telecom Ltd. v. Motorola Inc., AIR 2005 SC 514

[28] A. 227, CONSTITUTION OF INDIA – “Power of superintendence over all courts by the High Court. –

(1) Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.

(2) Without prejudice to the generality of the foregoing provision, the High Court may—

      (a) call for returns from such courts;

      (b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and

      (c) prescribe forms in which books, entries, and accounts shall be kept by the officers of any such courts.

(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates, and pleaders practicing therein:

Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor.

(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces.”

[29] S. 130, CIVIL PROCEDURE CODE, 1908

[30] S. 138, CIVIL PROCEDURE CODE, 1908