RIGHT TO APPEAL UNDER CIVIL PROCEDURE CODE: A CRITICAL APPRAISAL

Bhawna*

INTRODUCTION:

Appeal is not defined anywhere in the Code of Civil Procedure, 1908 but in the general sense it is the remedy provided as a right to look for justice against any decree or order passed by the lower court or High Court. It is basically a way of approaching the higher court when the party or parties are not satisfied by the decision made by the lower court. To get the decision changed or reversed, an application which is in the form of appeal is made to the higher court or to the concerned appellate authority.

Black’s Law Dictionary explains appeal as “the complaint to a superior court for an injustice done or error committed by an inferior one, whose judgment or decision the Court above is called upon to correct or reverse. It is the removal of a cause from a Court of inferior jurisdiction to one of superior jurisdiction, for the purpose of obtaining a review and retrial”. 

In the case of Smt. Dayawati and Another vs Inderjit and Others[1]the Supreme Court of India held that an appeal has been said to be ‘the right of entering a superior court and invoking its aid to redress the error of Court below.’

PROVISIONS:
Part VII of the Code of Civil Procedure, 1908 deals with the Appeals. Sections 96-112 are covered in the Part VII of the Code. Along with these sections, Order XLI- Order XLV also deals with the provisions of Appeal in the civil matters.

GROUNDS OF AN APPEAL:

·        A Decision.

·        An aggrieved party or the party who is not satisfied by the decision of the court.

·        Reviewing body ready and willing to entertain an appeal i.e. the appellate jurisdiction should be there.

 

 

 

 

WHO MAY FILE AN APPEAL?

·        Party who is adversely affected by the decision of the Court, and in case that party is dead then under Section 146 by his legal representatives.

·        Where a suit is by or against the minor, then in that case the guardian ad litem appointed by the court.[2]

·        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 concerned, is bound by the decree, provided his name is entered on the record of the suit.

·        Any other person who is adversely affected by the decree but with the leave of the court.

WHO CANNOT FILE AN APPEAL?

·        A party who waived his/her right to appeal or who has agreed not to appeal in respect to the concerned decree passed by the court.

·        Party who has been benefitted from the decree and has accepted and acknowledged the provisions, can be estopped from appealing that decree in the appellate court.

·        In the case where the decree has been passed with the consent of the parties[3], in that situation either of the party cannot approach the court for its appeal.

·        Parties involved in the petty cases.

 

RIGHT TO APPEAL

As discussed earlier, appeal is an application or it is a way of approaching either the court which is authorized to hear the appeals, High Court or the apex court i.e. Supreme Court of India. In the general sense, right to appeal means challenging previous legal decision of the court. But not everyone has the right to appeal. Right to appeal arises as soon any judgment or decree is passed by the court against the party.

It is to be noted that right to appeal is not at all a natural right nor it is an inherent right. It is wholly a statutory right. Any party can enjoy the right to

appeal only if the statute provides it. In other words, it is a right provided by the statute itself.  Right to appeal is a universal requirement because all human beings are fallible and sometimes there are chances that they may commit a mistake while passing the decree of the case. Thus, that mistake can be corrected or reviewed by the court authorized to hear the appeals in that particular matter.

In Garikapati vs. Subbiah Choudhry[4], referring to various leading decisions on the subject, the Supreme Court laid down the following 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.

  APPEALS

·        Appeals from Original Decrees (Section 96- Section 99-A)

Section 96 gives the right to appeal from the original decree. It is also known as first appeal as it is the first action against the judgment passed by the court having the original jurisdiction. First appeal is maintainable on a question of fact, or on a question of law, or on a mixed question of fact and law.

Section 96 clearly states that 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.

In addition to this, it is also mentioned that whenever the decree has been passed ex parte, appeal may lie from that decree. In an appeal against an ex parte decree, the appellant can only be heard on the merits of the case.

Section 96 in its further clauses state that when the decree has been passed with the consent of the parties, in such a case no appeal can be filed either of the party. Moreover, it states that no appeal shall lie from the decree passed by the Courts of Small Causes where the amount/value of the subject of the cognizable suit does not exceed Rs. 10,000/-

Section 97 states that when both preliminary and final decree has been passed in a particular case, in that case the party cannot file an appeal against the correction in preliminary decree when the final decree has been passed. In such a situation, the appealing party cannot raise a question about the correction in the preliminary decree when the appeal is made against the final decree.

 

·        Appeals from appellate decrees (Section 100- Section 103)

Section 100 deals with the provision of the second appeal. Under the scope of section 100, it states that under this provision, appeal shall lie only to the High Court and not in any other court.  An appeal in the High Court shall lie from the decree passed in appeal by any court subordinate to the High Court. It is to be noted that appeal will only be entertained by the High Court only if the satisfies the court that a substantial question of law is involved in such an appeal. Apart from this, an appeal may also lie where the appellate decree has been passed ex parte.
The main stress under this section has been given on the words ‘substantial question of law’. The Law Commission in its Fifty fourth Report reviewed the position and recommended that the right of second appeal should be confined to cases where substantial question of law is involved. The appropriate test to decide if the question of law challenged in the case is substantial would be if it is of general public interest or if it concerns the interests of the parties explicitly and significantly and, if not, if it is still an open question in the sense that it is not ultimately decided by that court or by the Privy Council or by the Federal Court.

It has been held by the Supreme Court in the case of Panchugopal Barua v. Umesh Chandra Goswami[5] that for exercising the jurisdiction in second appeal the existence of substantial question of law is sine qua non.

In the further clauses of the above mentioned section, it states that the memorandum of appeal must precisely state the substantial question of law and if the High Court is satisfied in regard to the same, it shall formulate that question of law. The other party (Respondent) under clause (5) of the Section 100 has been given the permission to argue at the hearing of the appeal, that the case does not involve the substantial question of law as formulated by the court.
It is specifically mentioned in the Section 101 that appeal can lie only on the grounds mentioned in the Section 100. Except that no other second appeal has to be entertained by the High Court. Section 102 clearly states that no second appeal shall lie in the High Court, where the subject matter of the original suit is for recovery of money not more than Rs. 25,000/-

Though the ‘substantial question of law’ is the main ingredient of the second appeal but there are some situations where the High Court has the power to determine on the issue of fact. This is only allowed in two conditions. 

Firstly, if such issue has not been determined either by the trial court or by the appellate court or by both and,
Secondly if the issue has been wrongly decided by such court by reason of its decisions on a substantial question of law. This provision empowers a High Court to decide even an issue of fact in certain circumstances.

 

·        Appeals from Orders (Section 104 – Section 106)

Sections 104 to 106 deal with the provision of appeal from orders. Order can be defined as the formal expression of the decision of a civil court which is not a decree. Section 104 states that appeal could be place only in the following orders and not from any other order. They are:

§  An order under Section 35- A. An order awarding compensatory costs in respect of false or vexatious claims or defences.

§  An order refusing leave to institute a suit of the nature referred to in Section 91 (public nuisance) or Section 92 (public charities).

§  An order under Section 95, states about the compensation for obtaining arrest, attachment or injunction on sufficient grounds.

§  Orders under the code that deals with imposing a fine or directing the arrest and detention in the civil prison of any person except in execution of a decree.

Further it is mentioned that no appeal can be filed from any order passed except above mentioned orders.

Section 106 tells about the jurisdiction of the court where an appeal form an order can be file. It states that appeals against orders in cases in which they are appealable shall be brought before the court to where an appeal would lie from the original suit, and then to the High Court.

 

·        Appeals to the Supreme Court (Section 109 – Section 112)

Appeal in the Supreme Court can only be filed if the court considers the case to be appropriate or fit for an appeal in the Apex Court or if the Supreme Court itself grants the special leave to the petition (SLP). With regard to the civil matters, general provisions to the appeal in the Supreme Court are laid down in the Article 132, 133 and 134A and the provision of special leave has been mentioned in the Article 136 of the Indian Constitution.

 

 

 

Section 109 states that an appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court, if the High Court certifies that –

Ø  That the case involves a substantial question of law of general importance and

Ø  That in the opinion of the High Court the said question needs to be decided by the Supreme Court.

An appeal in Supreme Court lies against the decree, decision or final order passed by the High Court only and not by the court subordinate to the High Court. In addition to this, if the Supreme Court has a reason to believe that the case is concerned with the substantial question of law of general significance, an appeal shall lie in the Court. The substantive question of law must be such that it will influence a significant number of people or a number of cases concerning the same matter.

POWERS OF APPELLATE COURT

The powers of the appellate court have been mentioned in the Section 107 of the Code of Civil Procedure, 1908. According to this section, the appellate court confers the following rights:

Ø  To determine a case finally – The foremost power of the appellate court is to decide the case finally. The general rule of clause (1) sub clause (a) is that the appellate court should pronounce the judgment and the evidence on record is sufficient in that matter. Supreme Court in Kausalya Devi Bogra v. Land Acquisition Officer[6]held that a case should be disposed of on evidence on record and should not be remanded on fresh evidence except in rare cases.

Ø  To remand a case –In general sense, remand back means to send back. According to clause (1) sub clause (b) the appellate court can send back the case to the lower court either for the re-trial or for reopening of the case. But there are some conditions precedents to be met with so that such a remand can be made. Firstly, the suit must have been disposed of by the trial court that means a lower court on a preliminary point. Secondly, the decree under appeal must have been reversed and thirdly, any other reason must exist, which has been widened its horizon by virtue of rule XXIII which says that the appellate court can remand a case even when lower court has disposed off the case otherwise than on a preliminary point and wherein the remand is considered of paramount importance for serving the interests of justice.

Ø  To frame issues and refer them for trial–This is the third power of the appellate court is to frame issues other than those framed by the trial court. But here the requirement is to refer them for trial. Consequently, the respondent would have the opportunity to adduce evidence in this regard. (VishwanathaAchari v. Kanakasabhapathy[7])

Ø  To take additional evidence or to require such evidence to be taken– It is the general rule that the appellate court has to decide the case based on the evidences given and proved by the parties in the lower/trial court. But there comes a situation when additional evidence has to be produced in the appellate court. For that production, three conditions have to be fulfilled by the parties. They are: firstly, that the person’s seeking such an admission of additional evidence should be able to establish the reason as to why he could not produce it at first instance. Other condition is that 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 determination of the issue.

Ø  Power to modify decree – This is the last and important power of the appellate court. Under Order 41 Rule 33 of the code, it entitles the appellate court to render whatever order it thinks fit. This power is a genuine power but discretionary power of the court. If the verdict is overturned in the appellate court, the appeal court passes the order on the same overturned verdict.

 

DUTIES OF AN APPELLATE COURT

Ø  Duty to decide appeal finally – Since the court has taken the appeal to be heard and to be decided, it is obvious that the court will be giving the judgment based on the appeal and most importantly while pronouncing the judgment, they will apply the judicial mind.

Ø  Duty not to interfere with decree for technical errors - The substance of Section 99 provides that “a decision which is otherwise correct and based on facts should not be disturbed for technical reasons, so it is the responsibility of the appeal court not to intervene with a decision for technical mistakes, to avoid undermining the ends of justice and acting as a way of litigation circuitry.”

Ø  Duty to re-appreciate the evidence – When an appellate court hears an appeal bearing the same powers as that of original court jurisdiction along with some extra powers, it is the duty of the court to re-appreciate the evidence with due care and caution.

Ø  Duty to record reasons - All other appellate courts other than a High Court have duty to record reason for its decision while it is even appreciable to do so. While Rule XXXI provides that there must be reasons in support of a judgment of an appellate court and such judgment, supported by reasons must be finally determining and concluding arriving at the findings of the court.

 

MEMORANDUM OF APPEAL

The memorandum of appeal is a document which contains the grounds of appeal. A memorandum of appeal would support any appeal under these conditions. The components of a valid memorandum of appeal shall include:

·        the grounds for filing an appeal,

·        the appellant's signature,

·        the attachment of a signed copy of the original judgment

·        the remittance of the decree or protection amount (money decree).

The appellant is not entitled to consider any grounds or claims other than those stated to in the memorandum. The court can, however, consider such complaints on its own accord, providing that the opposing party has sufficient opportunity to appeal such grounds. The court is free to refuse or change any memorandum it deems to be unreasonable. The court will have to document the basis for such a denial.

 

CONCLUSION

Thus, it can be concluded by saying that appeals are statutory right of the aggrieved party against the decision of either the court having the appellate jurisdiction or High Court. However, right to appeal is neither a natural right nor an inherent right. One can exercise this right only if the statute grants the permission for the same. Otherwise, one cannot go to the courts of law for making the amendment in the judgment passed by the court. The Code of Civil Procedure, 1908 deals with both substantive and procedural aspect relating to the appeals.

 

 

* Student of B.A.LL.B , Punjabi University , Patiala

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[1] 1966 AIR 1423

[2] Order 32 Rule 5

[3] Section 96(3)

[4] AIR 1975 SC 540

[5] AIR 1998 SC 1041

[6] (1984) 2 SCC 324

[7] (2005) 6 SCC 56