Instead Of Independently Formulating Substantial Question Of Law Arising In Appeal, Judges Often Copy Down Grounds From Pleadings: Madras High Court

A Single Bench of Justice GR Swaminathan observed that this often leads to absurdity because if the counsel's formulation of questions of law is flawed and defective, the Court record also carries the same vice. "It is somewhat embarrassing," the Judge remarked.

At the same time, the Single Bench also acknowledged that the Courts are overburdened and it may not always be possible for the Judges to proof-read everything. Thus, a 'greater responsibility' lies on the counsels, farming the tentative questions of law, to discharge this duty properly after a wholesome reading and understanding of the legal principles.

The observation was made in a civil appeal against a judgment directing the Appellant herein to compensate the Respondent for his malicious prosecution.

Whereas the appeal was dismissed holding that the Appellant had miserably failed to discharge the onus cast on him, the Court also noticed that the 'substantial questions of law' as framed by the Appellant's counsel made no sense at all.

The reason for this, the Bench observed, is that often the Courts overlook Section 100(4) of Code of Civil Procedure that require the High Court, on being satisfied that a substantial question of law is involved in any case, to formulate that question.

Instead, the Bench observed, the Judges tend to copy the questions of law that are mentioned in the pleadings in view of Section 100 (3)— the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.

"Though Section 100 (4) of CPC states that where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question, what mostly happens in practice is not in strict consonance with the statutory mandate.

Since Section 100(3) of CPC states that the appeal memorandum shall precisely state the substantial question of law involved in the appeal, once the Judge is satisfied that a case has been made out for admitting the second appeal, instead of independently formulating the substantial question of law arising in the appeal, instruction is given to the stenographer to copy down certain particular grounds from the appeal memorandum.

If the counsel's formulation is flawed and defective, the Court record also carries the same vice," Justice Swaminathan observed.

He said that though this is embarrassing, he has chosen to be frank, "more with an eye on future".

He stated that since the judicial workload is staggering, it is not fair to expect the judges to expend too much time and energy in proof-reading.

He opined that the counsels must assume "greater responsibility" and they must "deeply study" the case record.

"Their grasp of the legal principles must be thorough and accurate. The distilled understanding must be reflected in the appeal grounds. They must be properly drafted. There should not be grammatical and spelling errors. The role of stenographers and typists is equally significant," the Court said.

It concluded, "Only if all the stakeholders discharge their commitments sincerely, howlers like what we saw now can be avoided."

Case Title: M. Abubaker & Ors. v. Abdul Kareem

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