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CODE OF CIVIL PROCEDURE, 1908
FIRST APPEAL-
1. APPEAL: MEANING
The expression "appeal" has not been defined in the Code. According to dictionary meaning, "appeal" is "the judicial examination of the decision by a higher court of the decision of an inferior court".
Stated simply, appeal is a proceeding by which the defeated partyapproaches a higher authority or court to have the decision of a lowerauthority or court reversed. In Nagendra Nath Dey v. Suresh Chandra Dey, speaking for the Judicial Committee of Privy Council, Sir Dinsha Mulla stated:
"There is no definition of appeal in the Code of Civil Procedure, but their Lordships have no doubt that any application by a party to an appellate court, asking to set aside or reverse a decision of subordinate court, is an appeal within the ordinary acceptation of the term."
An appeal is thus a removal of a cause from an inferior court to a superior court for the purpose of testing the soundness of the decision of the inferior court. It is a remedy provided by law for getting the decree of the lower court set aside. In complaint made other words, it is a higher court that the decree passed by the lower court is unsound and wrong. It is "a right of entering a superior court and invoking and interposition to redress an error of the court below".
2. ESSENTIALS
Every appeal has three basic elements:(i) A decision (usually a judgment of a court or the ruling of an administrative authority);(ii) A person aggrieved (who is often, though not necessarily, a party to the original proceeding); and(iii) A reviewing body ready and willing to entertain an appeal.
3. RIGHT OF APPEAL
A right of appeal is not a natural or inherent right. It is well-settled that an appeal is a creature of statute and there is no right of appeal unless it is given clearly and in express terms by a statute." Whereas sometimes an appeal is a matter of right, sometimes it depends upon discretion of the court to which such appeal lies. In the latter category of cases, the right is to apply to the court to grant leave to file an appeal; for instance, an appeal to the Supreme Court under Article 136 of the Constitution of India. If a particular Act does not provide a right of appeal, it cannot be declared ultra vires only on that ground. Again, the right of appeal is a substantive right and not merely a matter of procedure. It is a vested right and accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced, such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal. This vested right of appeal can be taken away only by a subsequent enactment if it so provides expressly or by necessary implication, and not otherwise.
Thus, if an appeal lies against an order passed by a Single judge of the High Court under Sections 397 and 398 of the Companies Act, 1956, to the Division Bench, the said right cannot be taken away on the ground that the High Court has not framed the necessary rules for filing such an appeal. Substitution of a new forum of appeal should not be readily inferred. The right being a creature of statute, conditions can always be imposed by the statute for the exercise of such right.
In Anant Mills Co. Ltd. v. State of Gujarat, speaking for the Supreme Court, Khanna, J. said:
"It is well-settled by several decisions of this court that the right of appeal is a creature of a statute and there is no reason why the legislature while granting the right cannot impose conditions for the exercise of such right so long as the conditions are not so onerous as to amount to unreasonable restrictions rendering the right almost illusory."
4. ONE RIGHT OF APPEAL
A single right of appeal is more or less a universal requirement. It is based on the principle that all men are fallible and judges are human beings who may commit a mistake. A Judge who has not committed an error is yet to be born. This dictum applies to all Judges from lowest to highest courts. Absence of even one right of appeal must be considered to be a glaring lacuna in a legal system governed by the Rule of Law. 19
A hierarchy of courts with appellate powers each having its own power of judicial review has of course being found to be counter-productive but the converse is equally distressing in that there is not even a single judicial review.
The Law Commission also observed, "An unqualified right of first appeal may be necessary for the satisfaction of the decretal litigant but a wide right of second appeal is more in the nature of luxury". 21
The only ground upon which a suitor ought to be allowed to bring the judgment of one court for examination before the members of another is the certainty or extreme probability. 22
Sections 96, 100, 104 and 109 of the Code of Civil Procedure confer the right of appeal on aggrieved persons in cases mentioned therein. Sections 96 to 99 and 107 read with Order 41 deal with first appeals.
5. SUIT AND APPEAL
There is a fundamental distinction between the right to file a suit and the right to file an appeal. The said distinction has been appropriately explained by Chandrachud, J. (as he then was) in the case of Ganga Bai v. Vijay Kumar in the following words:
"There is a basic distinction between the right of suit and the right of appeal. There is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute one may, at one's peril, bring a suit of one's choice. It is no answer to a suit, howsoever frivo lous the claim, that the law confers no such right to sue. A suit for its maintainability requires no authority of law and it is enough that no stat- ute bars the suit. But the position in regard to appeals is quite the opposite. The right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law."24 (emphasis supplied)
Before more than hundred years, in Zair Husain v. Khurshed Jan the High Court of Allahabad stated:
"Unless a right of appeal is clearly given by a statute, it does not exist. Whereas a litigant has independently of any statute a right to institute any suit of a civil nature in one court or another."
6. APPEAL IS CONTINUATION OF SUIT
An appeal is a continuation of a suit. A decree passed by an appellate court would be construed to be a decree passed by the Court of the first instance. An appeal is virtually a rehearing of the matter. The appellate court possesses the same powers and duties as the original court. Once again the entire proceedings are before the appellate court which can review the evidence as a whole, subject to statutory limitations, if any, and can come to its own conclusion on such evidence.
In Dayawati v. Inderjit, speaking for the Supreme Court, Hidayatullah, J. (as he then was) stated:
"An appeal has been said to be 'the right of entering a superior Court, and invoking its aid and interposition to redress the error of the Court below. The only difference between a suit and an appeal is that an appeal 'only reviews and corrects the proceedings in a cause already constituted but does not create the cause,"
Moreover, where an appeal is provided by law and is filed against a decree or order passed by a lower court, the decision of the appellate court will be the operative decision. It is obvious that when an appeal is made, the appellate authority can do one of the three things, namely:
(i) it may reverse the order under appeal;
(ii) it may modify that order, and
(iii) it may merely dismiss the appeal and thus confirm the order without any modification. In all these three cases after the appellate authority has disposed of the appeal, the operative order is the order of the appellate authority whether it has reversed the original order or modified it or confirmed it. It is the appellate decision alone which subsists and is operative and capable of enforcement.
In Garikapati Veeraya v. N. Subbiah Chaudhry", referring to various leading decisions on the subject, the Supreme Court laid down the fol. lowing principles relating to a right of appeal:
(i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.
(ii) The right of appeal is not a mere matter of procedure but is a substantive right.
(iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit.
(iv) The right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists on and from the date the lis commences and, although it may be actually exercised when the adverse judgment is pronounced, such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.
(v) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise.
7. APPEAL AND REVISION
The revisional jurisdiction of a High Court is a part and parcel of the appellate jurisdiction of the High Court. When the aid of the High Court is invoked on the revisional side it is done because it is a superior court and it can interfere for the purpose of rectifying the error of the court below. Revisional jurisdiction is one of the modes of exercising powers conferred by the statute; basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense.
There is, however, an essential distinction between the two. The distinction is based in the two expressions i.e. "appeal" and "revision". A right of appeal carries with it a right of rehearing on law as well as on fact, unless the statute conferring the right of appeal limits the rehearing in one way or the other. The power to hear a revision is generally given to a superior court so that it may satisfy itself that a particular case has been decided according to law. The conferment of revisional jurisdiction is to keep subordinate courts within the bounds of their authority and to make them act according to the procedure established by law. 35 Revisional jurisdictions is not wide enough to make the High Court a second court of first appeal. 36 The High Court cannot, in exercise of revisional powers, substitute its own view for the view taken by a subordinate court.
Again, an appeal is a continuation of the proceedings; in effect the entire proceedings are before the appellate authority and it has power to review the evidence subject to the statutory limitations. But in the case of a revision, whatever powers the revisional authority may or may not have, it has not the power to re-examine, review or reassess the evidence and to substitute its own findings unless the statute expressly confers on it that power. 39 That limitation is implicit in the concept of revision.
8. FIRST APPEAL AND SECOND APPEAL
A first appeal lies against a decree passed by a court exercising original jurisdiction, a second appeal lies against a decree passed by a first appellate court. Whereas a first appeal can be filed in a superior court which may or may not be a High Court, a second appeal can be filed only in the High Court. A first appeal is maintainable on a question of fact, or on a question of law, or on a mixed question of fact and law. A second appeal can be filed only on a substantial question of law. No second appeal lies if the amount does not exceed Rs 25,000. No Letters Patent Appeal is maintainable against a "judgment" rendered by a Single judge of the High Court to a Division Bench of the same either in First Appeal or in Second Appeal.
9. CONVERSION OF APPEAL INTO REVISION
If an appeal is preferred in a case in which no appeal lies, the court may treat the memorandum of appeal as a revision or vice versa." Since there is no specific provision for such conversion, the court would be justified in invoking the inherent powers under Section 151 and in passing appropriate orders as may be necessary in the interests of justice. There is no period of limitation for making an application of conversion. But while exercising this power, the court should see if the appeal or the revision, as the case may be, has been filed within the time prescribed for filing such a proceeding.
10. RIGHT OF APPEAL: MATERIAL DATE
The right of appeal is a substantive and vested right and accrues in favour of the litigant on the day the lis commences and although it may be actually exercised only after an adverse judgment is pronounced, such a right is governed by the law prevailing at the date of the institu- tion of the suit and not by the law in force at the time when the judg- ment is rendered or an appeal is preferred.50
11. SECTION 96
Section 96 of the Code confers a right of appeal. It reads as under:
96. Appeal from Original decree.-
(1) Save where otherwise expressly pro- vided in the body of this Code, or by any other law for the time being in force, an appeal shall lie from every decree passed by any court exercising original jurisdiction to the court authorized to hear appeals from the decisions of such court.
(2) An appeal may lie from an original decree passed ex parte.
(3) No appeal shall lie from a decree passed by the court with the consent of parties.
(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognisable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed [ten] thousand rupees.
12. WHO MAY APPEAL?
Section 96 of the Code recognises the right of appeal from every decree passed by any court exercising original jurisdiction. It does not refer to or enumerate the persons who may file an appeal. But before an appeal can be filed under this section, two conditions must be satisfied:
(i) The subject-matter of the appeal must be a "decree", that is, a conclusive determination of "the rights of the parties with regard to all or any of the matters in controversy in the suit", and
(ii) The party appealing must have been adversely affected by such determination.
The ordinary rule is that only a party to a suit adversely affected by the decree or any of his representatives-in-interest may file an appeal. But a person who is not a party to a decree or order may, with the leave of the court, prefer an appeal from such decree or order if he is either bound by the order or is aggrieved by it or is prejudicially affected by it.
The test whether a person is an aggrieved person is to see whether he has a genuine grievance because an order has been made which prejudicially affects his interests either pecuniary or otherwise. As has been observed in the case of Krishna v. Mohesh", "the question who may appeal is determinable by the common sense consideration that there can be no appeal where there is nothing to appeal about".
Generally speaking, a decision cannot be said to adversely affect a person unless it will operate as res judicata against him in any future suit. In order to find out whether a decision will operate as res judicata and will thus adversely affect a party, the substance of the judgment and decree, and not the form, must be considered. For this purpose the court may go behind the decree to see what really the adjudication was.
The question whether a party is or is not adversely affected by a decree is a question of fact to be determined in each case according to its particular circumstances and no rule of universal application can be laid down.
From the above general principles, the following persons are entitled to appeal under this section:
(i) A party to the suit who is aggrieved or adversely affected by the decree, or if such party is dead, his legal representatives.
(ii) A person claiming under a party to the suit or a transferee of the interests of such party, who, so far as such interest is con- cerned, is bound by the decree, provided his name is entered on the record of the suit.59
(iii) A guardian ad litem appointed by the court in a suit by or against a minor.
(iv) Any other person, with the leave of the court, if he is adversely affected by the decree.
13. APPEAL BY ONE PLAINTIFF AGAINST ANOTHER PLAINTIFF
As a general rule, one plaintiff cannot file an appeal against a co-plaintiff. But where the matter in controversy in the suit forms subject-matter of dispute between plaintiffs inter se, an appeal can be filed by one plaintiff against another plaintiff.
14. APPEAL BY ONE DEFENDANT AGAINST ANOTHER DEFENDANT
The principle which applies to filing of appeal by one plaintiff against another plaintiff equally applies to an appeal by one defendant against another defendant. It is only where the dispute is not only between the plaintiffs and the defendants but between defendants inter se and such decision adversely affects one defendant against the other that such appeal would be competent.
15. WHO CANNOT APPEAL?
If a party agrees not to appeal or waives his right to appeal, he cannot file an appeal and will be bound by an agreement if otherwise such agreement is valid. Such an agreement, however, must be clear and unambiguous. Whether a party has or has not waived his right of appeal depends upon the facts and circumstances of each case. Similarly, where a party has accepted the benefits under a decree of the court, he can be estopped from questioning the legality of the decree.
16. AGREEMENT NOT TO APPEAL
A right of appeal is a statutory right. If a statute does not confer such right, no appeal can be filed even with the consent or agreement between the parties.
But an agreement between the parties not to file an appeal is valid if it is based on lawful or legal consideration and if otherwise it is not illegal.
17. APPEAL: NOMENCLATURE NOT MATERIAL
The use of expression "appeal", "first appeal" or "second appeal" is neither material nor decisive. It is the substance and not the form which is relevant.
In Ramchandra Goverdhan Pandit v. Charity Commr.", a first appeal was filed in the High Court against an order passed by the Charity Commissioner on an application under Section 72 of the Bombay Public Trusts Act, 1950. The Supreme Court held that the appeal before the Single judge of the High Court was in substance and in reality Second Appeal and Letters Patent Appeal was not maintainable against the "judgment" by the Single judge.
18. APPEAL AGAINST EX PARTE DECREE: SECTION 96(2)
As stated above, one of the remedies available to the defendant, against whom an ex parte decree is passed, is to file an appeal against such a decree under Section 96(2) of the Code, though he may also file an application to set aside ex parte decree.
Both the remedies are concurrent and can be resorted to simultane- ously. One does not debar the other. As has been rightly said:
"Where two proceedings or two remedies are provided by a statute, one of them must not be taken as operating in derogation of the other."
In an appeal against an ex parte decree, the appellate court is compe- tent to go into the question of the propriety or otherwise of the ex parte decree passed by the trial court.
19. NO APPEAL AGAINST CONSENT
DECREE: SECTION 96(3)
Section 96(3) declares that no appeal shall lie against a consent decree. This provision is based on the broad principle of estoppel. It presupposes that the parties to an action can, expressly or impliedly, waive or forgo their right of appeal by any lawful agreement or compromise or even by conduct. The consideration for the agreement involved in a consent decree is that both the sides give up their right of appeal.
Once the decree is shown to have been passed with the consent of the parties, Section 96(3) becomes operative and binds them. It creates an estoppel between the parties as a judgment on contest. Where there is a partial compromise and adjustment of a suit and a decree is passed in accordance with it, the decree to that extent is a consent decree and is not appealable. This provision, however, does not apply where the factum of compromise is in dispute or the compromise decree is challenged on the ground that such compromise had not been arrived at lawfully."
20. NO APPEAL IN PETTY CASES: SECTION 96(4)
Section 96(4) has been inserted by the Amendment Act of 1976. It bars appeals except on points of law in certain cases. Prior to 1976, Section 96 allowed a first appeal against every decree. Now, sub-section (4) bars appeals on facts from decrees passed in petty suits where the amount or value of the subject-matter of the original suit does not exceed ten thousand rupees, if the suits in which such decrees are passed are of a nature cognisable by Courts of Small Causes. The underlying object in enacting the said provision is to reduce appeals in petty cases. Such restrictions are necessary in the interests of the litigants themselves. They should not be encouraged to appeal on facts in trivial cases.
21. APPEAL AGAINST PRELIMINARY DECREE
An appeal lies against a preliminary decree. A preliminary decree is as much a final decree. In fact, a final decree is but a machinery for the implementation of a preliminary decree. Failure to appeal against a preliminary decree, hence, precludes the aggrieved party from challenging the final decree. Where an appeal is filed against a preliminary decree and is allowed and the decree is set aside, the final decree falls to the ground as ineffective since there is no preliminary decree to support the final decree.
22. NO APPEAL AGAINST FINAL DECREE WHERE NO APPEAL AGAINST PRELIMINARY DECREE
As stated above, an appeal lies against a preliminary decree since a preliminary decree is as much a decree as a final decree. A final decree may be said to be but a machinery for the implementation of the preliminary decree. In fact, a final decree owes its existence to the preliminary decree. Therefore, a failure to appeal against a preliminary decree precludes the aggrieved party from disputing its correctness or raising any objection to it in the appeal against the final decree. The whole object of enacting Section 97 is to make it clear that any party being aggrieved by a preliminary decree must appeal against that decree; and if he fails to appeal against such a decree, the correctness of such a decree cannot be challenged by way of an appeal against the final decree, which means that the preliminary decree would be taken to have been correctly passed.
23. APPEAL AGAINST JUDGMENT
The Code provides an appeal from a decree and not from a judgment. An aggrieved party, however, may file an appeal against the judgment, if a decree is not drawn up by the court. 85
24. NO APPEAL AGAINST FINDING
Section 96 of the Code enacts that an appeal shall lie from every decree passed by any court exercising original jurisdiction. So also, Section 100 allows a second appeal to the High Court from every decree passed in appeal. Likewise, an appeal lies against an order under Section 104 read with Order 43 Rule 1 of the Code. It, however, states that no appeal shall lie from other orders. Hence, an appeal lies only against a "decree" or an "order" which is expressly made appealable under the Code.
A finding recorded by a court of law may or may not amount to a "decree" or an "order". Where such a finding does not amount to a "decree" or an "order", no appeal lies against such adverse finding. Thus, where a suit is dismissed, the defendant against whom some adverse finding has been recorded on some issue has no right of appeal and he cannot question the finding by instituting an appeal.
The Explanation to Rule 22 of Order 41, as added by the Amendment Act of 1976, however, enables the respondent to file cross-objections against any finding recorded against him even though the ultimate decree may be in his favour.55
25. APPEAL AGAINST DEAD PERSON
No appeal can be instituted against a dead person. Such an appeal, therefore, can be regarded as a "stillborn" appeal. In such cases, an application can be made praying for the substitution of the legal representatives of the deceased respondent who died prior to the filing of the appeal. In that case, the appeal can be taken to have been filed on the date of the application for substitution of the legal representatives. If, by that time, the appeal is time-barred, the appellant can seek condonation of delay.
26. VALUATION IN APPEAL
For the purpose of jurisdiction of the court, the appellant has to put valuation in appeal. Such valuation may be the same for jurisdiction as well as for court fees, for instance, an appeal for recovery of money due. It may differ also, for instance, in suits for partition, pre-emption, redemption of mortgage, etc. 104
27. LIMITATION
The Code of Civil Procedure confers a right of appeal, but does not prescribe a period of limitation for filing an appeal. The Limitation Act, 1963, however, provides the period for filing appeals. It states that an appeal against a decree or order can be filed in a High Court within ninety days and in any other court within thirty days from the date of the decree or order appealed against. 114
28. CONDONATION OF DELAY: RULE 3-A
Rule 3-A has been inserted by the Amendment Act of 1976. It provides that where an appeal has been presented after the expiry of the period of limitation specified therefore, it shall be accompanied by an application that the applicant had sufficient cause for not preferring the appeal within time.
Prior to insertion of Rule 3-A, the practice was to admit such an appeal subject to the objection regarding limitation. This practice was disapproved by the Privy Council, 15 and it stressed the expediency of adopting a procedure for securing the final determination of the question as to limitation before admission of the appeal. This rule is added to give effect to the recommendation of the Privy Council.
As observed by the Supreme Court in State of M.P. v. Pradeep Kumar, the object of this provision is twofold; firstly, to inform the appellant that the delayed appeal will not be entertained unless it is accompanied by an application explaining the delay; and secondly, to communicate to the respondent that it may not be necessary for him to get ready on merits as the court has to first deal with an application for condonation of the delay as a condition precedent. The provision is, however, directory and not mandatory. If the memorandum of appeal is filed without an accompanying application for condonation of delay, the consequence is not necessarily fatal. The defect is curable.
Interpreting the provision in its proper perspective, the Court stated:
"It is true that the pristine maxim vigilantibus, non dormientibus, jura subeniunt (law assists those who are vigilant and not those who sleep over their rights). But even a vigilant litigant is prone to commit mistakes. As the aphorism "to err is human" is more a practical notion of human behaviour than an abstract philosophy, the unintentional lapse on the part of a litigant should not normally cause the doors of the judicature permanently closed before him. The effort of the court should not be one finding means to pull down the shutters of adjudicatory jurisdiction before a party who seeks justice on account of any mistake committed by him, but to see whether it is possible to entertain his grievance if it is genuine."
29. STAY OF PROCEEDINGS: RULES 5-8
Rule 5 provides for stay of an execution of a decree or an order. After an appeal has been filed, the appellate court may order stay of proceedings under the decree or the execution of such decree. But mere filing of an appeal does not suspend the operation of a decree. Stay may be granted if sufficient grounds are established, 120
The object underlying Rule 5 is to safeguard the interests of both, the decree-holder and the judgment-debtor. It is the right of the decree- holder to reap the fruits of his decree. Similarly, it is the right of the judgment-debtor not merely to get barren success in case his appeal is allowed by the appellate court. This rule thus strikes a just and reason- able balance between these two opposing rights.
The following conditions must, therefore, be satisfied before stay is granted by the court :
(a) The application has been made without unreasonable delay;
(b) Substantial loss will result to the applicant unless such order is made; and
(c) Security for the due performance of the decree or order has been given by the applicant.
The court may also make an ex parte order for stay of execution pending the hearing of the application if the above conditions are satisfied.
Rule 3 - A (3) however, lays down that the court shall not grant stay of the execution of a decree against which an appeal is proposed to be filed so long as the court does not, after hearing under Rule 11, decide to hear the appeal on merits.
In case of money decree, sub-rule (3) of Rule 1 as inserted by the Amendment Act, 1976 provides for the deposit of the decretal amount or for the furnishing of security. This provision has been made for the benefit of the decree-holder and with a view to lessen his hardship. Deposit of the decretal amount, however, is not a condition precedent for the presentation of an appeal.122
Sub-rule (5) of Rule 5 as added in 1976 mandates that no stay of execution of a decree shall be granted unless the deposit is made or security is furnished.
Explanation to Rule 5(1) clarifies that the order of stay becomes effective from the date of communication to the court of first instance and not prior thereto.
Where an order has been made for the execution of a decree from which an appeal is pending, on sufficient cause being shown by the appellant, the court which passed the decree shall take security from the decree-holder for the restitution of any property which may be or has been taken in execution and for due performance of the decree or order of the appellate court. If such an application is made to the appellate court, it may direct the trial court to take such security.
Where an order for sale of immovable property in execution of a decree has been passed and the appeal has been pending against such decree, on an application being made by the judgment-debtor, the court must stay the sale of immovable property on giving security or other- wise as it thinks fit.
30. SUMMARY DISMISSAL: RULES 11-11-A
Rule 11 deals with the power of the appellate court to dismiss an appeal summarily. This rule refers to a stage after the memorandum of appeal has been filed and the appeal has been registered under Rule 9. Rule 11 embodies a general principle that whenever an appeal is preferred, the appellate court is entitled, after hearing the appellant or his advocate, to reject the appeal summarily if prima facie there is no substance in it.
The discretion, however, must be exercised judiciously and not arbitrarily. Such power should be used very sparingly and only in exceptional cases. When an appeal raises triable issues, it should not be summarily dismissed.
Where the appellate court which dismisses an appeal summarily is other than a High Court, it must record reasons for doing so. However, in matters involving construction of documents, even a High Court should record reasons.
The same principle applies to Second Appeals, Letters Patent Appeals arising out of First Appeals since in such appeal (LPA), all questions of fact and law are open to challenge.
Again, when the first appellate court affirms the findings of the trial court, it is its duty to record reasons in brief for doing so. It is all the more necessary in a case where such court is a final court of finding of fact and where the judgment of the trial court is based on appreciation of oral and documentary evidence which is seriously challenged by the contesting party.
But once an appeal is admitted, the court cannot dismiss it on technical grounds or without hearing the appellant. Similarly, an appeal cannot be admitted partly. It can be admitted or dismissed wholly. If the appellant or his pleader does not appear when the appeal is called on for hearing, the court may dismiss it for default. The word may shows that the court has discretion in the matter and is not bound to dismiss the appeal for default of appearance. The court may adjourn the hearing of the appeal to a future date or even admit it. Where an appeal is dismissed for default, it may be restored if it is proved that the appellant was prevented by any sufficient cause from appearing when the appeal was called on for hearing.
31. ABATEMENT OF APPEAL
The provisions relating to abatement of suits apply to appeals also.
32. DOCTRINE OF MERGER
Where an appeal is provided against a decree passed by the trial court and such appeal is preferred, it is the decree of the appellate court which is operative in law, which can be enforced.
The doctrine of merger is based on the principle that there cannot be, at one and the same time, more than one operative decree governing the same subject-matter. Hence, as soon as an appeal is decided by an appellate court, the decree of the trial court ceases to have existence in the eyes of the law and is superseded by a decree by an appellate court. In other words, the decree passed by the trial court merges with the decree of the appellate court.
33. PROCEDURE AT HEARING: RULES 16-21
(a) Right to begin: Rule 16
The appellant has a right to begin. 139 After hearing the appellant in support of the appeal, if the court finds no substance in the appeal, it may dismiss the appeal at once without calling upon the respondent to reply. But if the appellate court does not dismiss the appeal at once, it will hear the respondent against the appeal and the appellant shall then be entitled to reply. 140
(b) Dismissal for default and restoration: Rules 17-19
If the appellant does not appear when the appeal is called on for hearing, the court may dismiss the appeal in default. The court, however, cannot dismiss it on merits.
Where the appeal has been dismissed for default or for non-payment of process fees, the appellant may apply to the appellate court for the restoration of the appeal. On sufficient cause being shown, the appellate court shall restore the appeal on such terms as to costs or otherwise as it thinks fit. The court may require the counsel to go on for hearing after restoration and may refuse to restore the matter for further adjournment. Appearance of a party or his advocate and prayer for recalling of an order of dismissal for default may be a good ground for restoring a matter but it cannot be said to be a good ground for restoration of the matter for hearing in future. In other words, "a matter may be restored for hearing and not for adjournment".
(c) Ex parte hearing and rehearing: Rules 17, 21
Where the appellant appears and the respondent does not appear when the appeal is called on for hearing, the appeal shall be heard ex parte 146 If the judgment is pronounced against the respondent, he may apply to the appellate court for rehearing of the appeal. If he satisfies the court that the notice of appeal was not duly served upon him or that he was prevented by sufficient cause from appearing when the appeal was called on for hearing, the court shall rehear the appeal on such terms as to costs or otherwise as it thinks fit. However, ordinarily, no ex parte decree should be passed by a court except on reliable evidence.
(d) Addition of respondent: Rule 20
Where it appears to the appellate court at the hearing of the appeal that any person who was a party to the suit in the trial court but who has not been made a party to the appeal is interested in the result of the appeal, the court may adjourn the hearing of the appeal and direct that such person be joined as a respondent. 149 Such addition of a respondent cannot be ordered after the expiry of the period of limitation for appeal, unless the reasons are recorded for doing so. The Court can also make an order as to costs.
The object of Rule 20 is to protect parties to the suit who have not been made respondents in the appeal from being prejudiced by modifications being made behind their back in the decree under appeal. Over and above Rule 20, the appellate court has inherent power to add a party respondent or to transpose a party from one category to another.
34. CROSS-OBJECTIONS: RULE 22
(a) General
Order 41 Rule 22 is a special provision permitting the respondent who has not filed an appeal against the decree to object to the said decree by filing cross-objections in the appeal filed by the opposite party. Filing of cross-objections by the respondent, however, is optional and voluntary. The provision is permissive and enabling and not peremptory or obligatory. Where the suit is partly decided in favour of the plaintiff and partly in favour of the defendant and the aggrieved party (either the plaintiff or the defendant) files an appeal, the opposite party may adopt any of the following courses:
(i) He may prefer an appeal from that part of the decree which is against him. Thus, there may be two appeals against the same decree; one by the plaintiff and the other by the defendant. They are known as "cross-appeals". Both these appeals will be disposed of together.
(ii) He may not file an appeal against the part of the decree passed against him but may take objection against that part. Such objections are called "cross-objections".
(iii) Without filing a cross-appeal or cross-objection, he may supportthe decree
(a) on the grounds decided in his favour by the trial court; or
(b) even on the grounds decided against him.
(b) Meaning
The expression "cross-objection" has not been defined in the Code. Stated simply, cross-objections are filed by the respondent against the appellant in an appeal filed by the appellant against the respondent.
(c) Nature
The expression "cross-objection" expresses the intention of the legislature that it can be directed by the respondent against the appellant. One cannot treat an objection by a respondent in which the appellant has no interest as a cross-objection. The appeal is by the appellant against a respondent, the cross-objection must be an objection by a respondent against the appellant. A cross-objection is like cross-appeal. It has thus all the trappings of an appeal. The mere distinction between the two lies in the fact that whereas cross-objections form part of the same record, cross-appeals are two distinct and independent proceedings.
(d) Who may file cross-objections?
Cross-objections can be filed by the respondent (1) if he could have filed an appeal against any part of the decree, or
(2) if he is aggrieved by a finding in the judgment, even though the decree is in his favour. Cross-appeals and cross-objections provide two different remedies for the same purpose since the cross-objections can be filed on the points on which that party could have preferred a cross-appeal. The right to file cross-objections is substantive in nature and not merely procedural.
(e) Against whom cross-objections may be filedOrdinarily, cross-objections may be filed only against the appellant. In exceptional cases, however, one respondent may file cross-objections against the other respondents; for instance, when the appeal by some of the parties cannot effectively be disposed of without opening the matter as between the respondents inter se; or in a case where the objections are common as against the appellant and co-respondent.
Thus, where the relief sought against the appellant in cross-objections is intermixed with the relief granted to the other respondents in such a way that the relief against the appellant cannot be granted without the question being reopened between the objecting respondent and other respondents, cross-objections by one respondent against the other respondents may be allowed.
The principle that no decision can be made against a person who is not a party to the proceedings applies to cross-objections also. Hence, cross-objections cannot be allowed against a person who is not a party to the appeal.
(f) When cross-objections may be filed?The provisions of Order 41 Rule 22 contemplates right to file cross-objections only when an appeal is filed and also when such appeal is admitted by the appellate court and notice is issued on the respondent,
A stage of filing cross-objections arises only when an appeal is admitted and the court directs notice to be issued to the respondent. No cross- objections, hence, can be filed if no appeal is filed by the appellant or an appeal is filed but has not been admitted. Mere posting of preliminary hearing of an appeal is not enough. Similarly, prior to service of notice of hearing of appeal by the court, no cross-objections would lie. That, however, does not make cross-objections suffer from legal infirmity.
(g) Ambit and scopeWhere the respondent has filed cross-objections, even if the original appeal is withdrawn or dismissed for default, they will be heard and decided on merits. Where an appeal is withdrawn or dismissed for default and the cross-objections are decided on merits, restoration of appeal and rehearing will not automatically warrant rehearing of cross-objections.
But where the appeal is dismissed as time-barred, or has abated, or is held to be not maintainable12, the cross-objections cannot be heard on merits as they are contingent and dependent upon the hearing of the appeal.
(h) Cross-appeal whether may be treated as cross-objectionsAn appeal filed beyond the period of limitation may be treated as cross- objections under Order 41 Rule 22. A cross-appeal may be treated as cross-objection only if such appeal is filed after the other appeal and not if it is filed before that appeal.(i) Form- Cross-objections shall be in the form of a memorandum of appeal and they should be served on the party affected thereby or his pleader. A respondent can file cross-objections as an indigent person.1%
(j) Limitation
Cross-objections can be filed within one month from the date of service on the respondent or his pleader of the notice of the date fixed for hearing of the appeal. The appellate court may, at its discretion, extend the period within which cross-objections can be filed. The discretion, however, must be exercised judicially and on sufficient cause for delay being shown and is open to review by the superior court.
(k) Cross-objection against finding: Explanation to Rule 22(1)
Explanation to sub-rule (1) of Rule 22 of Order 41, as added by the Amendment Act, 1976 permits respondent to file cross-objection not only against decree but also against finding not amounting to decree. The position, however, as regards filing of appeal has remained as it was before the amendment.179After the amendment in Rule 22 now, a party to a suit who has succeeded and whose favour, a decree is passed by the court cannot file an appeal against any "finding" recorded against him, but if the other side prefers an appeal against the decree, he may file cross-objection against the "finding" of the lower court notwithstanding that the ultimate decision or decree may be partly or wholly in his favour.
(L) Withdrawal or dismissal of appeal
Once the respondent files cross-objections, even if the appeal is with- drawn or dismissed for default, cross-objections will be heard and decided on merits. 180
(m) Procedure at hearing
The appeal and the cross-objections should be heard together and they should be disposed of by a common judgment incorporating the decisions on both; the appeal as well as the cross-objections.
(n) Court-fee
Cross-objection is like an appeal. Court fee is, therefore, payable on cross-objection like that on memorandum of appeal.
(o) Cross-objection by indigent respondent
Provisions relating to appeal by indigent persons also apply to cross- objections. An indigent respondent, hence, may file cross-objections as an indigent person.183
(p) Omission to file cross-objections
A party in whose favour a decree has been passed has a substantive and valuable right which should not be lightly interfered with. As an ordinary rule, therefore, in the absence of a cross-appeal or cross-objection by a respondent, the appellate court has no power to disturb the decree of the lower court so far as it is in favour of the appellant. This is, however, subject to the provisions of Order 41 Rule 33 of the Code.
(q) Disposal of appeal and cross-objections
The court should decide and dispose of appeal and cross-objections together by one judgment and such decision should be incorporated in one decree. This approach seeks to avoid contradictory and inconsistent decisions on the same questions in one and the same suits
(r) Principles
The following principles govern cross-objections:
(1) An appeal is a substantive right. It is a creation of the statute. The right to appeal does not exist unless it is specifically conferred.
(2) A cross-objection is like an appeal. It has all the trappings of an appeal. It is filed in the form of a memorandum and the provi- sions of Rule 1 of Order 41 of the Code, so far as these relate to the form and contents of the memorandum of an appeal, apply to a cross-objection as well.
(3) Court fee is payable on a cross-objection like that on the memo- randum of an appeal. Provisions relating to appeals by indigent persons also apply to cross-objections.
(4) Even where an appeal is withdrawn or is dismissed for default, a cross-objection may nevertheless be heard and determined.
(5) A respondent even though he has not appealed may support the decree on any other ground but if he wants to modify it, he has to file a cross-objection to the decree which objection he could have taken earlier by filing an appeal. The time for filing an objection which is in the nature of an appeal is extended by one month after service of notice on him of the day fixed for hearing the appeal. This time can also be extended by the Court like in an appeal.
(6) A cross-objection is nothing but an appeal, a cross-appeal at that. It may be that the respondent wanted to give quietus to the whole litigation by his accepting the judgment and decree or order even if it was partly against his interest. When, however, the other party challenges the same by filing an appeal, the statute gives the respondent a second chance to file an appeal by way of a cross-objection if he still feels aggrieved by the judgment and decree or order.
35. POWERS OF APPELLATE COURT: SECTION 107, RULES 23-29, 33
Sections 96-108 and Rules 23 to 33 of Order 41 enumerate the powers of an appellate court while hearing first appeals. They may be summarised thus:
(a) Power to decide a case finally: Section 107(1)(a), Rule 24
Section 107(1)(a) and Rule 24 of Order 41 enable the appellate court dispose of a case finally. Where the evidence on record is sufficient enable the appellate court to pronounce judgment, it may finally determine the case notwithstanding that the judgment of the trial court proceeded wholly upon some ground other than that on which appellate court proceeds. The general rule is that a case should, as possible, be disposed of on the evidence on record and should be remanded for fresh evidence, except in rare cases, by drawing final curtain on the litigation between the parties
(b) Power to remand: Section 107(1)(b), Rules 23-23-A
(i) Meaning- Remand means to send back.
(ii) Nature- Rule 23 of Order 41 of the Code enacts that where the trial court has decided the suit on a preliminary point without recording findings on other issues and the appellate court reverses the decree so passed, it may send back the case to the trial court to decide other issues and determine the suit. This is called remand.
Rule 23-A as inserted by the Amendment Act, 1976 enables the appel- late court to remand a case where the lower court has decided it on merits but the appellate court considers such remand in the interest of justice.
(iii) Scope- By passing an order of remand, an appellate court directs the lower court to reopen and retry the case. On remand, the trial court will remit the suit under its original number in the register of civil suits and will proceed to determine it as per the directions issued by the appellate court.
(iv) Conditions
The appellate court has power to remand a case either under Rule 23 or under Rule 23 - A A remand cannot be ordered lightly. It can be ordered only if the following conditions are satisfied.
(1) The suit must have been disposed of by the trial court on a preliminary point.-Before the court can exercise the power of remand under Rule 23, it is necessary to show that the lower court has disposed of the suit on a preliminary point.
A point can be said to be a preliminary point, if it is such that the decision thereon in a particular way is sufficient to dispose of the whole suit, without the necessity for a decision on the other points in the case. Such preliminary point may be one of fact or of law, but the decision thereon must have avoided the necessity for a full hearing of the suit.
Thus, where the lower court dismisses the suit as being not maintainable, or barred by limitation; or res judicata; or as disclosing no cause of action; it does so on a preliminary point of law. On the other hand, where the lower court dismisses the suit on the ground that the plaintiff is estopped from proving his case; or that it was motivated; or that the plea raised at the hearing was different from that raised in the plaint, it does so on a preliminary point of fact.
(2) The decree under appeal must have been reversed.-No remand can be ordered by the appellate court under this rule unless the decision of the lower court on the preliminary point is reversed in appeal.196
Where such is not the case, the appellate court cannot order remand simply because the judgment of the lower court is not satisfactory; or that the lower court has misconceived or misread the evidence; or has ignored the important evidence; or has acted contrary to law; or that the materials on which the conclusion is reached are scanty; and the appel- late court must decide the appeal in accordance with law. 197
(3) Other grounds.-Rule 23-A of Order 41, as inserted by the Amendment Act of 1976, empowers the appellate court to remand a case even when the lower court has disposed of the case otherwise than on a preliminary point and the remand is considered necessary by the appellate court in the interests of justice.
The primary object of Rule 23-A is to widen the powers of the appellate court to remand a case in the interests of justice. Even before the insertion of new Rule 23-A, it was held that an order of remand can be passed, if it is necessary to do so in the interests of justice. But it was also held that the power of remand must be regulated by the provisions of Rules 23 and 25 of Order 41 and that inherent powers under Section 151 of the Code cannot be exercised by the appellate court to order remand. 200 The power of remand was, thus, strictly a limited power and yet in practice, many cases arose wherein remand was necessitated for some reasons other than those mentioned in Rules 23 and 25. The Law Commission 201, therefore, recommended an amendment of the rule empowering the appellate court to remand a case whenever it thinks it is necessary in the interests of justice. The said recommendation has been accepted and Rule 23-A has accordingly been added.
(v) Effect
An order of remand reverses the decision of the lower court and reopens the case for retrial by the lower court except in regard to the matters decided by the appellate court.
An order of remand is appealable. If the party aggrieved by an order of remand does not appeal there from, he cannot subsequently question its correctness under the inherent powers of the court under Section 151 of the Code, Similarly, the court to which the case is remanded is also bound by it and cannot go behind the order of remand. While remanding the case, the appellate court shall fix a date for the appearance of the parties before the lower court so as to receive its directions regarding the suit or proceeding pending in the lower court. It thus nullifies the order passed by the trial court. It must, however be noted that when an appellate court remands a case setting aside findings of the lower court, only those findings can be said to have been set aside and not all the findings recorded by the trial court.
(vii) Conclusions
The appellate court should not exercise the power of remand very lightly. As far as possible it should dispose of the appeal finally unless remand is imperative. 211 The correctness of an order of remand if not questioned at the time when it was made by filing an appeal, never- theless can be challenged later on in an appeal arising out of the final judgment and decree,
(viii) Appeal
An order passed under Rule 23 or 23-A of Order 41 is appealable,
(c) Power to frame and refer them for trial: Section 107(1)(c) Rules 25-26-
(i) Scope
Where the lower court has omitted (i) to frame any issue; or (ii) to try any issue; or (iii) to determine any question of fact, which is essential to the right decision of the suit upon merits, the appellate court may frame issues and refer them for trial to the lower court and shall direct that court to take the additional evidence required. The lower court shall try such issues and shall return the evidence and the findings within the time fixed by the appellate court.
(ii) Effect
Such evidence and findings shall form part of the record in the suit, and either party may file in the appellate court a memorandum of objec- tions to any such finding of the lower court within a time fixed by the appellate court. The appellate court should, thereafter, hear the whole appeal and the hearing should not be confined to the points on which the findings were called for.
(iii) Rules 23, 23-A, 25: Distinction
The points of distinction between Rules 23, 23-A and Rule 25 are as under:(1) While after remand under Rules 23 or 23-A, the whole case goes back for decision to the lower court (except on the point on which the appellate court has reversed the finding of the lower court), under Rule 25 the case is retained in the file of the appellate court and only issues are remitted to the lower court for trial and findings thereon.
(2) An order of remand under Rules 23, 23-A is a final order which cannot be reconsidered by the court which passed it except on review, while an order under Rule 25 is an interlocutory order which is open to be reconsidered by the court which has passed it.
(3) Whereas an order under Rules 23, 23-A is appealable, an order under Rule 25 is not appealable.
(d) Power to take additional evidence: Section 107(1)(d) Rules 27-29
(1) General
As a general rule, the appellate court shall decide an appeal on the evidence led by the parties before the trial court and should not admit additional evidence for the purpose of disposal of an appeal.27 Sub-rule (1) of Rule 27 also reads thus, "The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate court."
Section 107(1)(d) however, is an exception to the general rule, and empowers an appellate court to take additional evidence or require such evidence to be taken subject to the conditions laid down in Rule 27 of Order 41.
(ii) Meaning
The term "additional evidence" does not mean evidence over and above the evidence led by the party in the lower court. Such a view would be introducing an additional condition not contemplated by the Code. There should be no distinction between a party who has led some evidence and a party who has not led evidence at all. All that is required is that the conditions laid down in the Code for leading of additional evidence must be fulfilled.
(iii) Object
The basic principle of admission of additional evidence is that the per- son seeking the admission of additional evidence should be able to establish that with the best efforts such additional evidence could not have been adduced at the first instance. Secondly, the party affected by the admission of additional evidence should have an opportunity to rebut such additional evidence. Thirdly, the additional evidence must be relevant for the determination of the issue.
(iv) Nature and scope
When a party is unable to produce the evidence in the trial court under the circumstances mentioned in the Code, he should be allowed to pro- duce the same in an appellate court. The power is discretionary and should be exercised on sound judicial principles and in the interests of justice.
(v) Circumstances
Rule 27 enumerates the circumstances in which the appellate court may admit additional evidence, whether oral or documentary, in appeal. They are as under:
(1) Where the lower court has improperly refused to admit evidence which ought to have been admitted; or
(2) Where such additional evidence was not within the knowledge of the party or could not, after exercise of due diligence, be produced by him at the time when the lower court passed the decree; or
(3) Where the appellate court itself requires such evidence either (a) to enable it to pronounce judgment; or (b) for any other substantial cause.
(vi) Recording of reasons
Whenever the appellate court admits additional evidence, it should record reasons for doing it. The underlying object of this provision is to keep a clear record of what weighed with the appellate court in allowing the additional evidence to be produced.246 As observed by their Lordships of the Privy Council, "It is a salutary provision, which operates as a check against a too easy reception of evidence at a late stage of the litigation, and the statement of the reasons may inspire confidence and disarm objection."
Again, where a further appeal lies from the decision of the appellate court, recording of reasons is necessary so as to enable the higher court to decide whether the discretion under the rule has been judicially exercised by the court below. The omission to record reasons, there- fore, must be treated as a serious defect. The provision, however, is directory and not mandatory, and failure to record reasons does not make the evidence inadmissible if the reception of such evidence is otherwise justified under the rule.
(vii) Mode of taking additional evidence
Rules 28 and 29 lay down the mode of taking additional evidence when the appellate court admits additional evidence in appeal. The appellate court may take the evidence itself or direct the lower court from whose decree the appeal is preferred or any other subordinate court to take it. Where the appellate court directs the lower court to record evidence, it should retain the appeal on its file and dispose it of on receipt of the additional evidence.
(e) Power to modify decree: Rule 33
(i) General
Rule 33 of Order 41 empowers an appellate court to make whatever order it thinks fit, not only as between the appellant and the respondent but also as between one respondent and another respondent. It empowers an appellate court not only to give or refuse relief to the appellant by allowing or dismissing the appeal, but also to give such other relief to any of the respondents as the case may require.
(ii) Illustrations
(i) A claims a sum of money as due to him from X or Y, and in a suit against both obtains a decree against X. X appeals and A and Y are respondents. The appellate court decides in favour of X. It has power to pass a decree against Y.
(ii) A claims a sum of money as due to him from X or Y. The suit is decreed partly against X and partly against Y. X appeals but Y does not. The appellate court can discharge X making Y liable for the whole amount.
(iii) ObjectThe underlying object of Rule 33 is to enable the appellate court to do full and complete justice between the parties. It is true that the power of the appellate court is discretionary. But it is a proper exercise of judicial discretion to determine all questions in order to render full justice to the parties. The court should not refuse to exercise the discretion on mere technicalities. No hard and fast rule can be laid down as to the circumstances in which the power of Rule 33 may or may not be exercised and each case must depend on its own facts.
(iv) Rules 22, 33: Distinction
Generally, cross-objections under Rule 22 of Order 41 can be directed only against the appellant and only in exceptional cases can they be filed by one respondent against the other respondent. The provisions of Rule 33 dealing with the power of the appellate court to grant relief to parties to a suit who have not appealed or filed cross objections, on the other hand, enable the court to make any order as the case may require to meet the ends of justice not only between the appellant and respondent but also between a respondent and co-respondent.
(v) Conditions
The language of Rule 33 is very wide. The following requirements, however, must be satisfied before it can be invoked:
(1) The parties before the lower court must also be there before the appellate court; and
(2) The question raised must have properly arisen out of the judgment of the lower court. If these conditions are fulfilled, the appellate court can consider any objection against any part of the judgment or decree of the lower court. It may be urged by any party to the appeal.
(vi) Ambit and scope
The sweep of power under Rule 33 is wide enough to determine any question not only between the appellant and the respondent but also between the respondent and co-respondents. The appellate court can pass any decree or order which ought to have been passed in the facts and circumstances of the case. The words "as the case may require" used in Rule 33 enable the appellate court to pass any order or decree to meet the ends of justice. The only constraint on the power of the court is that the parties before the lower court should also be there before the appellate court.
(vii) Limitations
Though Rule 33 is expressed in very wide terms, it has to be applied with care and caution and to cases where interference in favour of the appellant necessitates interference also with a decree which has by acceptance or acquiescence become final so as to enable the court to adjust the rights of the parties. The rule does not confer unrestricted right to reopen decrees which have become final merely because the appellate court does not agree with the opinion of the trial court. Nor the appellate court will interfere with finding of fact. Again, the discretionary power cannot be exercised to nullify the effect of the abatement of appeal.
As the power under this rule is in derogation of the general principle that a party cannot avoid a decree against him without filing an appeal or objection, it must be exercised with care and caution. The Rule does not confer an unrestricted right to reopen decrees which have become final merely because the appellate court does not agree with the opinion of the court appealed from. While exercising powers under this Rule the court should not lose sight of other provisions of the Code itself nor the provisions of other laws, viz. the law of limitation or the law of court fees, etc.
Moreover, such power cannot be exercised without issuing notice and affording an opportunity to the party likely to be affected. The expression "which ought to have been passed" means "which ought in law to have been passed" Such a power is to be exercised in exceptional cases when its non-exercise will lead to difficulties in the adjustment of rights of the various parties,
(viii) Conclusions
It is submitted that the following observations of Shah, J. (as he then was) in Nirmala Bala Ghose v. Balai Chand Ghose, lay down correct law on the point and, therefore, are worth quoting:
"The rule is undoubtedly expressed in terms which are wide, but it has to be applied with discretion, and to cases where interference in favour of the appellant necessitates interference also with a decree which has by acceptance or acquiescence become final so as to enable the Court to adjust the rights of the parties. Where in an appeal the Court reaches a conclusion which is inconsistent with the opinion of the Court appealed from and in adjusting the right claimed by the appellant it is necessary to grant relief to a person who has not appealed, the power conferred by Order 41 Rule 33 may properly be invoked. The rule however does not confer an unrestricted right to reopen decrees which have become final merely because the appellate court does not agree with the opinion of the Court appealed from.
(f) Other powers: Section 107(2)
Section 107(2) of the Code enacts that over and above the aforesaid powers, an appellate court has the same powers as an original court. This provision is based on the general principle that an appeal is a continuation of a suit and therefore, an appellate court can do, while the appeal is pending, what the original court could have done while the suit is pending.
Thus, an appellate court is empowered to reappreciate the evidence, to add, transpose or substitute the parties, to permit the withdrawal of proceedings, to return a plaint or memorandum of appeal for presentation to the proper court, to allow amendments in pleadings, to take notice of subsequent events, to take into consideration a change in law and to apply the existing or changed law, to order restitution, to enlarge time for doing certain acts, etc.
36. DUTIES OF APPELLATE COURT
It should not, however, be forgotten that the powers of an appellate court are not absolute or uncontrolled. The Code also imposes certain duties on appellate courts and the court has to decide appeals keeping in mind these duties. These duties are as follows:
(a) Duty to decide appeal finally
It is the duty of the appellate court to decide an appeal in accordance with law after considering the evidence as a whole. The judgment of the appellate court must clearly show that it has applied its judicial mind to the evidence as a whole.274
(b) Duty not to interfere with decree for technical errors
Section 99 of the Code enacts that a decree which is otherwise correct on merits and is within the jurisdiction of the court should not be upset merely for technical and immaterial defects. The underlying object of Section 99 is "to prevent technicalities from overcoming the ends of jus- tice, and from operating as a means of circuitry of litigation". 275
As observed by the Supreme Court, 27% "When a case has been tried by a Court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it has resulted in failure of justice."
(c) Duty to reappreciate evidence
As seen above, an appeal is a continuation of a suit. Inasmuch as an appeal is a rehearing of the matter, the appellate court can reappreciate the entire evidence, oral as well as documentary, and can arrive at its own conclusion. At the same time, however, the appellate court will bear in mind a finding recorded by the trial court on oral evidence. It should not forget that the trial court had the advantage and opportunity of watching the demeanour of witnesses and, hence, the trial court's conclusions should not normally be disturbed. No doubt, the appellate court has the same powers as the original court, but they have to be exercised with proper care, caution and circumspection. When a find- ing of fact has been arrived at by the trial court by mainly appreciating oral evidence, it should not be lightly disturbed unless the approach of the trial court in appraisal of evidence is materially erroneous, contrary to well-established principles or perverse.
In T.D. Gopalan v. Hindu Religious & Charitable Endowments, the Supreme Court observed, "We apprehend that the uniform practice in the matter of appreciation of evidence has been that if the trial court has given cogent and detailed reasons for not accepting the testimony of a witness, the appellate court in all fairness to it ought to deal with those reasons before proceeding to form a contrary opinion about accepting the testimony which has been rejected by the trial court."
Three requisites should normally be present before an appellate court reverses a finding of fact recorded by the trial court:
(i) it applied its mind to reasons given by the trial court;
(ii) it had no advantage of seeing and hearing the witnesses; and
(iii) it records cogent and convincing reasons for disagreement with the trial court.
(d) Duty to record reasons
Again, though an appellate court has power to dismiss an appeal summarily, such power should be exercised sparingly and in exceptional cases and, that too, after recording reasons. If such appellate court is other than a High Court, requirement of recording of reasons is mandatory. But in case of a High Court also, it is appropriate if it passes a speaking order when dismissing an appeal in limine.
Rule 31, however, enjoins an appellate court to record reasons in sup- port of its judgment. The judgment must be self-contained with reasons in support of the findings arrived at by the court. It must discuss the evidence in the light of points for determination and come to its own conclusion.
(e) Other duties
An appellate court should not dismiss an appeal in limine raising triable issues. An appeal can be admitted or dismissed as a whole. It cannot be admitted partly. Once the appeal is admitted, it cannot be dismissed on technical grounds. An appellate court cannot grant stay against the execution of a decree if an appeal is time-barred. Normally, it should not grant stay against a money decree. When other matters involving a common question or identical points are pending, a summary dismissal of an appeal is not justified. Similarly, when two cognate appeals are filed against the same judgment, both the appeals should be taken up for hearing and decided together, Where an appeal on a similar question or point of law is pending in a superior court, a subordinate court should not proceed to decide the point, but should wait till the question is decided by the higher court. In first appeal, all questions (questions of fact as also of law) are open. The judgment of the first appellate court must, therefore, be supported on findings on all issues raised in the appeal. If the appellate court agrees with the conclusions of the trial court, it need not restate evidence discussed by the first court and "general agreement" with such findings would be sufficient. But such agreement should not be a device or camouflage for shirking the duty cast on the appellate court. 302 Where an appeal is heard by a Bench of two or more judges, it must be decided in accordance with their opinion or of the majority of such judges. Where there is no majority concurring in a judgment varying or reversing the decree, the decree shall be confirmed. Where two or other even number of judges composing the Bench differ on a point of law, they must state the point and the appeal shall then be heard by one or more of other judges and decided according to the opinion of the majority. The object of enacting this provision is that on a question of fact when there is a difference of opinion, the view expressed by the trial court in the absence of a majority opinion should be confirmed. Where the sanctioned strength of judges is there but only two judges are available who differ from each other and refer the matter to the third judge, the appeal should wait till the arrival of the third judge. It cannot be contended that in such an eventuality the order impugned in the appeal should be confirmed.
An appellate court has to accept a statement of fact as to what transpired at hearing or recorded in the judgment of the court below as true, final and conclusive. If a litigant feels aggrieved by such fact or statement, proper course for him is not to make a complaint before the appellate court but to approach the same court, to call the attention of the same judge who recorded it and to have it deleted or corrected.
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