Shridhar Prabhu, Advocate, Bengaluru
Karnataka High Court, in a landmark judgement delivered on 05th April, 2023, in the case of Thirakavva and Ors. vs. Ratnavva and Ors. (2023/KHC-D/4225), has given some incalculably worth suggestions to all stakeholders, including the legislature and the judiciary, on remedying the reduction of pendency of cases, particularly the Regular First Appeals (RFAs).
Justice Anant Ramanath Hegde, who authored this milestone judgement, has flagged the pendency of nearly twenty thousand RFAs pending (as on 24 March, 2023) before the Karnataka High Court and suggested conferring unlimited pecuniary jurisdiction on the District Judges to decide all first appeals originating from the Civil Judges. The present pecuniary limit fixed in 2007, allows the District Judges to decide the first appeals with suit value between INR 5,00,001 and Rs. 10 Lakhs. Interestingly, the Junior Civil Judges can decide suits up to the valuation of 5 lakhs but Senior Civil Judges have unlimited pecuniary jurisdiction on the original side. Pointing out this anomaly, the judgement suggests that instead of burdening the High Court with RFAs, the first appeals should be decided at the district levels, ensuring justice at the litigants’ doorstep. The judgement further suggests that litigants must be made to approach the High Court only at the stage of Regular Second Appeals (RSAs), which are admitted only if substantial questions of law are involved.
The amendments
Recently, the legislature took cognizance of this judgement and amended the Karnataka Civil Courts Act, 1964 and the High Courts Act, 1961. If amendment Bills translate into law, the pecuniary jurisdiction of the Civil Judges is enhanced from INR 5 lakhs to INR 15 lakhs and all appeals from the Senior Civil Judges will be decided by District Judges. A Single Judge of High Court will decide the first appeals against the orders of the City Civil Courts and all Regular Second Appeals (RSAs) against the District Court judgements will be heard by a Division Bench of the High Court. The Bills are passed by both houses of the legislature and understandably pending assent of the Governor.
These amendments, in principle, are highly appreciable and will go a long way in addressing the daunting challenge of pendency in the High Courts. Yet, some of the issues may need a deeper deliberation.
The concerns
First off, both amendments made to the laws are by way of substitution, conferring retrospective effect. As per section 4, the Civil Courts Amendment Bill takes effect retrospectively from 28.08.2007 and High Court Amendment Bill arguably takes effect from the date when the parent Act came into force since no specific date of effect is assigned in the BIll. The Apex Court in the case of Shamrao V. Parulekar Vs. District Magistrate, has held that in case of amendments by substitution, the altered words take effect as if they were written into the earlier Act with the same pen and ink and the old words get scored out as if they never existed. This has been reiterated even in the recent judgement of Income Tax Officer versus Vikram Sujitkumar Bhatia.
In effect, there will be a largescale transfer of cases from the High Court to the District Courts. All pending and pard-heard RFAs originating from all District Courts will have to be transferred to the District Courts. All RFAs against the City Civil Court judgements pending before the Division Benches will get transferred to a Single Judge. This sudden shift in the jurisdiction, that too take retroactive effect, will cause an avoidable confusion within all stakeholders. The litigants will face an avoidable hassle of having to make alternative arrangements for their representation. Alongside, the transfer of all RSAs, pending before a Single Judge to a Division Bench, worsens the pendency situation rather than curing it.
Alarming pendency of cases needs an urgent intervention, no doubt. But, changing the course of litigation retroactively, may arguably, lead to chaos that cure. Financial and allied aspects also needs to be factored before devising resolutions.
It is no doubt true that number of District Courts are more than the High Court benches assigned to decide appeal matters. However, a comparative analysis of the experience and expertise of the higher judiciary in deciding the complicated cases reaching in appeal also must be factored.
Relegation of all first appeals to the District Court may no doubt reduce the initial burden on the High Court. But if the same cases reach back the Division Benches as Second Appeals, the workload may get enhanced. The judicial time of two senior judges may need to be invested in large number of second appeals that may originate from the District Courts.
Bengaluru vs others
Since April, 1980, with the coming into force of the Bangalore City Civil Courts Act, 1979, the litigants of City Civil Courts of Bengaluru lost the second appeal remedy permanently. While all other litigants have two tier remedy – Regular Appeal and Regular Second Appeal, the Bengaluru litigants must be content with only Regular First Appeal before the High Court. While the cases originated by other litigants get adjudicated by four judges, the Bengaluru litigants will get adjudication attention of only two judges. This selective negation of a second appeal remedy and judicial attention of two judges to the Bengaluru litigants is an issue to be deliberated by all stakeholders.
Both Writ Petition and Appeal are available against the orders passed by several tribunals and quasi-judicial forums, the orders passed by the City Civil Judges can be challenged only by way of an RFA. Many tribunals are now officiated by the former or sitting judicial officers at the level of District Judges or even High Courts. When their orders can be challenged by all litigants on writ side at two levels, whether negating the same remedy for civil cases is justified, also needs to be considered.
Conclusion
The legislature ought to have conducted a pre legislative consultation with all stakeholders, particularly, the judiciary, litigants and advocates before introducing the bills. Before backdating such drastic changes, the legislature, at least, ought to have consulted the High Court, which would have enabled to discuss the vital aspects on the administrative side.
The legislature does not seem to have factored the complications resulting from the retrospective effect, which was never suggested in the Thirakavva judgement. The pendency of the second appeals in the High Court and associated challenges emanating from assigning them to Division benches may also be factored. Finally, arguable discrimination in providing only one appeal remedy to the City Civil Court cases needs attention of all stakeholders.
Daksha Legal 