Judicial Review of Discretion of the court

Scope of Intra Court Appeals
High Courts in India have powers to issue the prerogative writs under English Law. The issue of writ is considered to be a matter of discretion which is to be exercised on sound principles of law. But once the discretion has been exercised by a single Judge of the court, it is subject to an Appeal to Division Bench of High Court. Scope of this intra court appeal has been circumscribed by Supreme Court in following words:
While deciding intra court appeals against the exercise of discretion by a Single Judge, the Appellate Court would not interfere with the exercise of discretion by the Court of First Instance and substitute its own discretion, except where the discretion has been shown to have been exercised either arbitrarily, or capriciously or perversely or where the Court has ignored settled principles of law regulating grant or refusal of interlocutory injunction. Appeal against exercise of discretion is said to be an appeal on principle.’
(See Wander Ltd. v. Anton India Pvt. Ltd., 1990 (Suppl) SCC 727)
The scope of intra-court appeal was considered by Supreme Court of India (in Baddula Lakshmaiah v. Sri Anianeya Swami Temple (1996) 3 SCC 52), and it was indicated that a Letters Patent Appeal, as permitted under the Letters Patent, is normally an intra-court appeal whereunder the Letters Patent Bench, sitting as a court of Correction, corrects its own orders in exercise of the same jurisdiction as was vested in the Single Bench. Such is not an appeal against an order of a subordinate Court. In such appellate jurisdiction the High Court exercises the powers of a court of Error.

It is unfortunate that despite the above authoritative pronouncements about the scope of appeals to division bench, very often the High Court travels beyond the scope and without pointing out the error in judgement of court below, pass a fresh judgement. This manner of exercise of power is not only unjust and illegal but is also contrary to judicial discipline.

(c) Sandeep Bhalla

Advertisements

One thought on “Judicial Review of Discretion of the court

Please share your views.

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s