The Author, Ashi Kaim is a 3rd Year, BBA.LLB student at University School of Law and Legal Studies, GGSIPU. She is currently interning with LatestLaws.com.

INTRODUCTION

In the Code of Civil Procedure, there is no concept of appeal, but their Lordships have no doubt that any request by a party to an appeal court seeking the ruling of a lower court to be set aside or overturned is an appeal beyond the ordinary acceptance of the term. Therefore, an appeal requires the removal of a case from an inferior court to a supreme court for the purpose of checking the validity of the inferior court's decision. It is a relief given by statute to have the lower court's decree set aside. It is an appeal to the higher court stating that the decree passed by the lower court is unsound and inaccurate. It is a right to enter a superior court and to invoke its support and interposition in order to resolve an error of the court below.

APPEAL FROM ORIGINAL DECREES

An appeal can be filed under the Section 96 of the CPC, which states that, unless otherwise provided for in the CPC or any other statute in effect, an appeal is based on any decree passed by a court exercising original jurisdiction before the Court of Appeal which is authorized to hear the appeal in the Court's decision.

It is clearly mentioned in Section 96 that with the consensus of the parties, no appeal lies from appeal decree passed by the Judge. An appeal can however be focused on original decrees passed ex parte, i.e. without the parties' hearing. If the sum of the subject-matter does not exceed Rs. 10,000, except on the appeal question of law, no appeal lies against the decree passed by the small court of cause. Ordinarily, an appeal can be brought either by an appeal party adversely affected by an appeal decree or by either of its representative in the interest of the appeal party.

ESSENTIALS

There are three essential elements of any appeal-

a decision (judgment of a judge or an administrative authority);
A person aggrieved (who is often, a party to the original proceeding) (iii) A reviewing agency that is willing and ready to hear appeals.

RIGHT OF APPEAL

A right to appeal is not a right which is natural or intrinsic. It is well settled that an appeal is a contractual body and there is no right to appeal until a statute offers it explicitly and expressly. Although an appeal is often a matter of right, it also relies on the decision of the court to which such an appeal rest. If a specific Act does not give a right to appeal, it can't be declared ultra vires exclusively on that ground as it is a substantive right and not just a matter of procedure. It is a

vested privilege which is unique to the litigant and remains as from and on the date on which the lis begins and while it can indeed be exercised where an adverse judgment is pronounced, the right is to be regulated by the law existing at the time of the commencement of the case or litigation and not by the law prevailing at the time of its decision or at the time of the appeal.

Right to appeal is conferred under the Code of Civil Procedure, although it does not prescribe a limitation time for filing an appeal.

However, the Limitation Act, 1963, specifies the time for filing appeals. It provides that an appeal against a decree or order can be brought before the High Court within ninety days and before any other court within thirty days of the date of the appeal against the decree or order.

GROUNDS OF AN APPEAL

An appeal under the Civil Procedure Code can be made under the following grounds:

A decision has already been made by a judicial or administrative authority.
A person is aggrieved of such decision, whether or not he is a party to the proceeding. (iii) The appeal is entertained by a reviewing body.

WHO CAN FILE AN APPEAL?

First, any party or his/her legal representatives to the original proceeding. Second, any person claiming under such party or a transferee of interests of such party. Third, any person appointed by the court as the legal guardian of a minor and, ultimately, any other aggrieved person after taking leave of the court. The ordinary rule is that an appeal can be filed only by a party to a suit adversely affected by the decree or any of its representatives in the interest However, with the leave of the court, a person who is not a party to a decree or order can prefer an appeal against such decree or order. which he is either bound or aggrieved by it or is maliciously influenced by it. The test of whether a party is an aggrieved party would be to see if he has a legitimate case that a judgment has been made that affects his rights either financially or otherwise unjustly. A judgment cannot be said to adversely impact a party unless in any future litigation it will act as res judicata against him. The content of the judgment and decree must be evaluated in order to decide whether a judgement will act as res judicata and will consequently adversely affect a party, and not the form,

Section 96(2) specifies remedies which are available to the defendant against whom an ex parte order is passed. One is to file an appeal against such a decree and another is that they can also file a motion for an ex parte decree to be set aside. The remedies are both simultaneous and can be resorted to concurrently. One should not deter the other. Section 96(3) states that a consent decree cannot be appealed against. This provision is based on the broad principle of estoppel. It presupposes that, by any lawful agreement or settlement or even by behavior, the parties to a suit may, expressly or implicitly, forfeit or abandon their right of appeal. The consideration for a consent decree concerning the agreement is that both parties gave up their right to appeal.

WHO CANNOT FILE AN APPEAL?

A party that has given up its right to appeal in compliance with an arrangement which is explicit and unambiguous.
A party who has benefited from the incentives derived from a decree.

(iii)Parties with a consent decree.

Parties whose evidence or compromises are or have not been expressed in a dispute.
Parties involved in trivial instances.
There shall be no legal representatives allowed file an appeal against a deceased individual.

CHARACTERISTICS OF AN APPEAL

The right to appeal is not implicit and must therefore be established by the statue in express terms. Thus, these rights vary from the rights found in the act of filing cases. It is a right of substance and not a procedural one. The rights under this provision accrue from the day of the institution of the suit. Such privileges will not be declared invalid, except by a statue (either expressly or by implication). The discretion of the appellate authority is conclusive.

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 and 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.

FORM OF APPEAL: RULES

In order for an appeal to be validly filed, all the provisions of the Memorandum of Appeal have to be met. Rule 2 prohibits the appellant from applying for any reasons of objection not set out in the memorandum of appeal, but only with the leave of the court. The underlying intent of this provision is to notify the respondent of the case which he is expected to meet at the hearing of the appeal. If the memorandum of appeal is not in suitable form, the court may refuse it or return it to the appellant for the purpose of being amended. Rule 4 states that where a decree proceeds on a ground common to all the plaintiffs or defendants, each of the plaintiffs or defendants may appeal against the whole decree, and the court may reverse or vary the decree in favor of all the plaintiffs or defendants.

CONDONATION OF DELAY

The Amendment Act of 1976 Inserted Rule 3 A. It specifies that if an appeal has been filed after the expiry of the restriction date specified for that reason, it must be followed by a submission to the effect that the applicant has reasonable reasons for failure to lodge an appeal within the time limit. The purpose of this clause is twofold: first, to notify the appellant that the delayed appeal may not be sustained until the delayed appeal is followed by an application justifying the delay; and secondly, to inform the respondent that it might not be appropriate for the appellant to be prepared on the merits, as the court must first deal with an application for condonation of the delay as a precedent condition. However, the clause is a directory and not compulsory.

STAY OF PROCEEDINGS

RULES 5¬8 Rule 5 provides for stay of an execution of a decree or an order. The appeal court may order the stay of proceedings under the decree or the enforcement of such a decree after an appeal has been lodged. But the implementation of a decree is not interrupted by the mere filing of an appeal. If appropriate grounds are identified, the stay can be granted.

The purpose underlying Rule 5 is to secure the interests of both the issuer of the order and the debtor of the judgment. Therefore, the following conditions must be met before the stay is issued by the court:

The application was submitted without undue delay;
The claimant incur significant damages until such an order is made
Security has been provided by the applicant for the due performance of the declaration or order. If the aforementioned conditions are met, the court can also make an ex parte order for a stay of execution pending the hearing of the appeal.

SUMMARY DISMISSAL

Rule 11 deals with the trial court's right to summarily deny an appeal. This provision applies to the phase following the submission of the memorandum of appeal and the filing of the appeal in compliance with Rule 9. Rule 11 embodies the basic principle that if an appeal is preferred, the appeal court, after hearing the appellant or his counsel, is free to refuse the appeal summarily if there is no merit in the appeal prima facie. Nevertheless, discretion must be exercised judiciously and not arbitrarily. Such control can be used only in rare situations and rather sparingly.

DOCTRINE OF MERGER

The doctrine of merger theory is based on the principle that there should not be more than one operating decree governing the same subject matter at the same time. Therefore, the decree of the trial court ceases to exist under the context of the statute as soon as an appeal is resolved by an appeal court, which is superseded by a decree by an appeal court. The decree passed by the trial court, in other words, merges with the appeal court's decree.

CROSS OBJECTIONS

Order 41 Rule 22 is a special provision which allows the respondent who has not appealed against the decree to object to the decree by filing cross-objections in the appeal filed by the other party. However, the respondent's filing of cross- objections is discretionary and voluntary. The provision is permissive and encouraging and not mandatory or peremptory. An appeal by a respondent in which the plaintiff has little involvement should not be viewed as a cross-objection. The challenge is brought by the appellant against the respondent, and the cross-objection by the respondent against the appellant would be an objection. Cross appeals can be filed on the following grounds by the respondent-

if he could have filed an appeal against any part of the decree
if he is aggrieved by a finding in the judgment, even though the decree is in his favor because of some other finding.

The terms of Order 41 Rule 22 allow for the right to file cross-appeals only where an appeal is filed and even when the appeal is accepted by the court of appeal and a notice is issued to the respondent. Only after an appeal is accepted and the court orders notice to be given to the respondent should the process of filing cross-objections begin.

Therefore, no cross objections can be brought where no appeal has been filed by the appellant or an appeal has been filed but has not been accepted.

POWERS OF APPELLATE COURT

Power to decide a case finally- Section 107(l)(a) and Rule 24 of Order 41 enable the appellate court to dispose of a case finally. Where the proof on record is adequate to allow the appellate court to pronounce a decision, the case may eventually be decided, notwithstanding that the judgment of the court of appellate court occurred solely on some other basis than that on which the appellate court continues.
Power of remand- Section 107(1)(b), Rule 23 of Order 41 of the Code states that if the trial court has decided the case on a preliminary point without documenting findings on other issues and if the court of appeal reverses the decree thus passed, it may send the case back to the court of appellate court to decide other issues and reach a decision. An appellate court can order the lower court to reconsider and retry the case by passing an order of remand
Power to frame issues and refer them for trial- Section 107 (1)(c), Rules 25 and 26 provides that where the lower court has omitted to frame any issue or to try any issue or to determine any question of fact, which is crucial to the just decision of the case upon merits, the appellate court can frame issues and refer them for trial to the lower court and direct that court to take the additional evidence required.
Power to take additional evidence- Section 107(1)(d), Rules 27 29, as a general rule, an appeal shall be decided by the court of appellate court on the facts adduced by the parties before the court of appeal and no further evidence shall be accepted for the purposes of the appeal. The fundamental principle of admission of additional evidence is that it should be sufficient for the person demanding admission of additional evidence to prove that such additional evidence may not have been admitted as evidence at first instance with the best efforts. There should be an opportunity for the party affected by the admission of additional facts to contradict such additional evidence. The additional evidence must be relevant for the determination of the issue.
Power to modify decree- Rule 33 of Order 41 allows an appellate court to make whatever decision it deems fit, not only between the appellant and the respondent but also between two respondents. 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 any other such relief to the respondents as the case may require.

SECOND APPEAL

Section 100 of the Code as amended by the Amendment Act of 1976 declares that an appeal shall lie to the High Court from every decree passed in appeal by any court subordinate to the High Court if the High Court is satisfied that the case involves a substantial question of law. Such appeal lies also against an appellate decree passed ex parte. The appellant has to precisely state in the memorandum of appeal the substantial question of law involved in the appeal. Where the High Court is satisfied that a substantial question of law is involved in the case, it shall formulate such question.

It, however, permits the respondent (opposite party) to argue at the hearing of the appeal that the question formulated by the court as a substantial question of law does not involve such question. 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. Thus, it should be argued that where a question is legitimately arguable, or where there is space for a contrary interpretation, or where an alternate view is similarly probable, or where it is not finally resolved, or where there is no uncertainty, the question can be said to be a 'substantial question of law.' The following questions are some the examples of substantial questions of law:

A question of law on which there is dispute of judicial opinion;
Recording finding without any evidence on record;
Non consideration of relevant or admissible evidence;
Considering irrelevant or inadmissible evidence;
Misconstruction of evidence or documents;
A question on admissibility of evidence;
Placing burden of proof on a wrong party;

CHARACTERISTICS OF SECOND APPEAL

A second appeal lies in the High Court and such an appeal is maintainable only on a substantial question of law alone. A second appeal can also lie against an ex parte decree. No appeal cart be filed on a question of fact, question of law, or mixed question of fact and law. There is no second appeal in a money decree, where the amount does not exceed twenty-five thousand rupees. The High Court should formulate a substantial question of law while admitting an appeal. In certain circumstances, a High Court can also decide an issue of fact.

POWER OF HIGH COURT TO DECIDE ISSUE OF FACT

Section 103 provides that although no second appeal lies on a question of fact when such appeal is before the High Court and the evidence is sufficient, the Court may decide any issue of fact necessary for the disposal of the appeal. 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

SECTIONS 104 to 108 and Order 43 provides for appeals against orders. They state that certain orders are appealable and other orders are not appealable. But it is possible to attack such orders in an appeal against the final decree. These sections also provide the forum for an appeal. Order can be defined as "the formal expression of any decision of a civil court which is not a decree" Therefore, an adjudication by a court that does not come under a "decree" is an "order". An appeal of an order can be filed within ninety days before the High Court and within thirty days from the date of the order, before another court. SECTION 106 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.

Some of the instances of appealable orders are-

An order awarding compensatory costs in respect of false or vexatious claims or defence.
An order refusing leave to institute a suit against public nuisance.

(iii)An order rejecting an application to set aside the dismissal of a suit for default.

An order rejecting an application to set aside an ex parte decree.
An order dismissing a suit or striking out defense for non- compliance with an order for discovery.
An order granting or refusing to grant interim injunction.
An order refusing to restore an appeal dismissed for default of appearance by appellant.
An order refusing to rehear an appeal heard ex parte.
An order of remand.
An order granting an application for review

OTHER ORDERS

Section 105 enacts that every order whether appealable or not, except an order of remand, can be attacked in an appeal from the final decree on the ground that there is an error, defect or irregularity in the order and that such error, defect or irregularity affects the decision of the case. The principle underlying Section 105 is that when an interlocutory order is appealable, the party against whom such order is made is not bound to prefer an appeal against it. There is no such law which compels a party to appeal from every interlocutory order by which he may feel affected. Section 105 makes it clear that an order appealable under Section 104 may be questioned under this section in an appeal from the decree in the suit, even though no appeal has been preferred against the interlocutory order.

ORDER WITH SUITS BY INDIGENT PERSONS.

Order 44 deals with appeals made by indigent persons. Any person entitled to file an appeal who is unable to pay the court fee needed for the memorandum of appeal must file an appeal followed by a memorandum of appeal and then the Court may permit him to appeal as an indigent person. The present situation is that, on all the grounds applicable to an ordinary citizen, an indigent person can also file an appeal. Also, an indigent individual can file cross-objections.

Rule 3 states that if the appellant has been permitted to sue in the trial court as an indigent party, no further investigation is required if the appellant files an affidavit claiming that he has not ceased to be an indigent person since the date of the appeal of the decree. . Where the appellant is said to have been an indigent person after the date of the decree of appeal, the appellant's inquiry shall be carried out by the appellate court or, on its request, by the officer of that court. The question to be considered by the court at the point of hearing an appeal is whether the applicant is an indigent citizen.

The appeal will be allowed, if he is indigent, and the memorandum of appeal will be registered. If he is not indigent, the appeal would be denied. The period of limitation for presenting an application for leave to appeal as an indigent person is sixty days (High Court) and to other courts it is thirty days. The limitation starts from the date the decree is appealed from.

GENERAL APPEALS TO THE SUPREME COURT

General appeals to the Supreme Court are laid down under provisions of Articles 132, 133 and 134A of the Constitution of India with regard to civil matters. 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—

The case involves a substantial question of law of general importance; and
In the opinion of the High Court the said question needs to be decided by the Supreme Court.

CONDITIONS

Under Section 109 of the Code, an appeal would lie to the Supreme Court only if the following conditions are satisfied-

Judgment, decree or final order- An appeal lies before the Supreme Court only against the High Court's decision, decree or final order. A verdict, decision or final ruling to which an appeal can be brought before the Supreme Court must be one aimed at bringing the dispute between the parties to an end. In respect of an interlocutory order, no certificate can be granted. The test whether the order is final or not will not depend on whether the controversy is finally over, but whether the controversy raised before the High Court is finally over or not.
Substantial question of law of general importance- If the High Court certifies that the dispute concerns a substantial question of law of general significance, an appeal will fall to the Supreme Court. The substantive question of law must be such that the general public, aside from the parties to the case, should be involved in the Supreme Court's resolution of the question, i.e. that it will influence a significant number of people or a number of cases concerning the same matter.
Need to be decided by Supreme Court- The High Court must take the view that the Supreme Court has to decide such a matter. There has to be a necessity for a Supreme Court ruling on the subject, and the need could be seen to exist where, for example, two viewpoints on the issue are available and the High Court takes one view of the views referred to. Such a necessity may also be said to occur where another High Court has held a different opinion.

APPEALS UNDER CONSTITUTION

Article 136 of the Constitution confers on the Supreme Court very broad and plenary powers to issue special leave to appeal against any verdict, decree, opinion, sentence or order (final or interlocutory) passed down by any court or tribunal. Section 112 of the Code preserves the powers bestowed by the Constitution on the Supreme Court and declares that those powers will not be impaired by anything in the Code of Civil Procedure.

CASES

Kaleidoscope India Pvt. Ltd. v. Phoolan Devi AIR 1995 Delhi 316

In this case, the Judge of the Trial Court banned the screening of films both in India and abroad. The Session Judge allowed the film to be shown abroad. A party which moved in appeal subsequently did not have locus standi. It was overturned by the division bench stating that as he entertained the suit in which party had no locus standi, it is not reasonable on the part of the judge.

Ram Chandra Abhyankar v. Krishnaji Dalladarya AIR 1970 SC 1

In this case, the Supreme Court established three requirements for the application of the Merger Doctrine:

The superlative jurisdiction should be appellate or revisional in nature
Jurisdiction should have been exercised after notice had been given.
After a complete hearing in the presence of both sides, i.e. on the point where the order of the superior court goes through the detail of the issue, only the order of the inferior court is combined to that degree.

It would depend on the extent of the authority exercised, the substance of the challenge and the subject matter capable of being established. The superior court should be able to reverse or alter or affirm the order that has been put in question before it. The power is not appealed or revisional of written jurisdiction, but it is a collateral disputed on the principle of natural justice.

R.V. Dev v. Chief Secretary, Govt. of Kerala (2007) 5 SCC 698

In the subsequent case, the Court ruled that 'Order 33 of the Code of Civil Procedure deals with cases brought against indigent persons, while Order 44 deals with appeals brought against indigent persons. When an application is filed by a person who is said to be indigent, it is important to take into account those considerations to determine whether that person is indigent under the context of the clause. An individual who is entitled to sue as an indigent person is responsible for paying the court fee that he would have paid if he were not allowed to sue in that capacity if he failed in the courtroom or simply without a trial. The payment of court fines, as shown by the policy, is merely postponed. It is not totally cleaned clean.

In H. Siddiqui (dead) by LRs v. A. Ramalingam, AIR 2011 SC 1492, the apex court held as under “It must be evident from the judgment of the appellate court that the court has properly appreciated the facts/evidence, applied its mind and decided the case considering the material on record. Being the final court of fact, the first appellate court must not record a mere general expression of concurrence with the trial court judgment rather it must give reasons for its decision on each point independently to that of the trial court. Thus, the entire evidence should be done after formulating the points for consideration in terms of the said provisions and the court must proceed in adherence to the requirements of the said statutory. ”

State of West Bengal & Ors. v. Kamal Sengupta & Anr. (2008) 8 SCC 612

The Supreme Court held that a review on the basis of discovery of fresh and important matter or facts could be taken into account if the same is of such a type that the judgment under review would have been altered if it had been generated earlier, and the Court must be sure that the party adducing the new ground did not have the same information even after due diligence had been exercised. The evident mistake denotes an error that is apparent per se from the case record and does not require either the evidence or the legal situation to be investigated, examined and elucidated in detail. In the event that the mistake is not self-evident and that its identification involves a lengthy debate and thought process, it cannot be viewed as an obvious error on the face of the record for the purpose of analysis.

Garikapati Veeraya v. Subbiah Chaudhary

In the current case, it was held that there appeared to be a pre-existing right of appeal to the Supreme Court, and the old statute that established such a right still continued to exist. It interpreted the protection of this right while acknowledging the shift from the Federal Court to the Supreme Court of its judicial machinery. The introduction of the old laws, however, is subject to the laws of the Constitution.

Chunnilal v. Mehta v. Century Spining and Manufacturing Co. Ltd., AIR 1962 SC 1314

The facts of this case are that the respondent corporation dismissed the appellants as managing agents well before the expiry of the contractual term. The appellants filed a complaint seeking damages in the Bombay High Court. In favor of the respondent corporation, the H.C agreed. By special leave, the Appellants have moved to SC. The concern was whether the creation of a title document that forms the basis of the parties' rights poses a question of law and does the interpretation of that document pose a substantial question of law? In an earlier Bombay case, it was argued that no significant question of law would occur simply because an inference was to be made from a complex decree. Also, in Nagpur case, it was held that if it is relevant between the parties and the case turns on that, a substantial question of law exists. SC disagreed with both of these views and agreed with that of the High Court of Madras (R. Subba Rao v. N. Veeraja) and established following principles of a substantial question of law-

A) It impacts the interests of the parties explicitly and significantly. It need not be a topic of general significance.

It is an open question, not finally resolved by this Court, or there is a doubt as to the legal theory at hand, whether it calls for alternate opinions to be discussed.
Whether the matter is Either well decided, or if the general principles are well settled, and only its application persists, or if the plea put out is qualitatively unreasonable, that is Not a serious question of law.

Koppi Setty v. Ratnam. V. Pamarti Venka 2009 RLR 27 (NSC)

Section 100 was amended by the 1973 Recommendation of the Law Commission, which compelled it to formulate a substantial question of law. For the satisfaction of the failed litigant, an unqualified right of first appeal might be necessary, but the broad right of 2nd appeal is more a privilege. High courts now only have cases where there is a substantial question of law and those matters have been specifically formulated in the Memo of Appeal.

Picture Source :

Ashi Kaim