APPEAL IN CIVIL PROCEEDINGS

The exact definition of the term ‘appeal’ is hard to be found in any Indian legislation. The Black’s Law Dictionary, while construing the concept of ‘appeal’ in its most original and natural sense, explains it 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”.

An appeal is a process by which a judgment/order of a subordinate Court is challenged before another Court superior to it. It is a request to have a higher court determine whether mistakes were made by a lower court or tribunal. The higher court may affirm, vary or reverse the original decision. An appeal can be regarded as the procedure wherein a review of already decided cases takes place on the request of either party. It also functions for rectifying errors as helping in better clarification and interpretation of the law.

An appeal can be filed at various stages of a case/ proceeding, i.e., when an evidence is submitted by the parties in lieu of proving guilt or after a judgement is passed by the court or against any order passed in any matter during proceedings of a case or for any specific application of any law in a case, etc. In this article, we shall discuss in detail the various provisions relating to appeal in a civil proceedings.

CONCEPT OF APPEAL IN CIVIL SUITS

1. Appeal From Original Decrees

Section 96 of the Code of Civil Procedure gives a comprehensive provision for appeal in case of original decrees.

N.B. Original Jurisdiction, as defined by Black’s Law Dictionary, means “jurisdiction to consider a case in the first instance. Jurisdiction of court to take cognizance of a cause at its inception, try it, and pass judgment upon law and facts.” Original Decree or original judgment means a decree or judgment which has been passed by the Court after the trail of the case. It is the first decree or judgment which the Court passes. If a party is not satisfied with this first or original decree, he may prefer an appeal (subject to the provisions of law).

However, when in a case, the Court passes a decree with the consent of both the parties (consent decree), neither of such parties who have given such consent can later prefer an appeal from such decree. The appeal however maybe preferred by a person, who though not a party to the appeal, will be prejudicially affected by the decree.

2. Appeal from Appellate Decrees

Section 100 of Civil Procedure Code gives the right to appeal from an appellate decree. This is called the Second Appeal, and can be preferred subject to certain conditions only, as have been discussed below.

 N.B.  An Appellate Decree means the decree passed by an appellate Court when a first appeal was preferred before it from an original decree/order.

3. Appeals from Orders

There is a clear distinction between orders and decrees. While decree is the final adjudication of a matter by the court, orders can be the daily proceedings in the suit ,which is can be final as well as interim. However, all orders are not appealable. The CPC under Order 43 Rule 1 provides for certain orders which shall only be appealable.

4. Appeal before the High Courts

The High Court has jurisdiction to try appeals for both civil and criminal cases. The High Courts can try matters where the judgment was given by District Judges and Courts of Munsifs. In criminal cases, high courts can hear appeals from the above courts as well as Sessions and Additional Sessions, Judge. High Courts can also hear appeals from the orders of the Tribunal.

5. Appeal to Supreme Court

Section 109 of CPC gives the right of appeal to the Hon’ble Supreme Court in certain cases.

The Constitution of India, under Article 133, provides that a civil matter can be appealed in the Supreme Court if there is been a substantial question of law involved, or if there is anything is wrongly decided and needs to be decided correctly. The high court first grants a certificate to appeal to Supreme Court, within 60 days of receipt of such certificate an appeal can be made to the Supreme Court.

If a High Court refuses to grant such a Certificate, still an appeal may be filed before the Supreme Court by making a Special Leave Petition under Article 136 of the Constitution. The limitation period for such appeal is 90 days from the date of judgment or decree against which appeal is preferred.

WHO MAY APPEAL?

An appeal is filed when any party to a suit is not satisfied by any order/direction of the Court. Therefore, the first criteria for a person to file an appeal is that, he should be a party to the case. Any person, who has not been made a party, cannot prefer any appeal from any order/decision in that case. However, when any party to a case dies, his legal representatives may be substituted in his place, and at that time, such legal representatives may prefer an appeal or may maintain an appeal which has already been filed. A person, who is not a party to the suit, may also prefer an appeal from a decree/order if he is bound by or prejudicially affected by such decree/order, but only with a special leave of the appellate Court. The person filing or continuing an appeal is called the appellant and the concerned Court is termed as the appellate Court. The proper forum where an appeal may be filed, depends upon the nature of appeal. Generally an appeal is filed before a superior court as is designated under the law to be capable of hearing an appeal. Appeal can be filed only if it is specifically allowed by any law and has to be filed in the specified manner in the specified Courts.

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 by accepting and acknowledging the provisions under it, he can be estopped from questioning the legality of that decree.

FIRST APPEAL

Appeals from original decrees are known as first appeal. The expression “appeal” has not been defined in the Code of Civil Procedure. Section 96 of the Code of Civil Procedure provides that an appeal shall lie from a decree passed by any Court exercising original jurisdiction to the authorized appellate Courts, except where expressly prohibited.

From Which Cases First Appeal May be Filed?

A First Appeal is a Statutory Right given to the parties to a suit by the CPC. Section 96 says that, an appeal may be preferred from every decree passed by a Court in exercise of its Original Jurisdiction. So, when a party to any civil suit is aggrieved by the decree passed by the trial Court, he may prefer an appeal against such decree to the appropriate appellate Court. A First Appeal may be filed from a decree passed ex-parte as well.

First Appeal to be filed before which Court?

Generally an appeal is filed before a Court superior to the Court which passed the decree.

If a decree is passed by a Court of Civil Judge, appeal from that decree is generally filed before the Court of District Judge (or Additional District Judge) having jurisdiction.
If a decree is passed by the High Court while exercising its Original Jurisdiction, a First Appeal may be preferred before the same High Court in its Appellate Jurisdiction.

No Appeal In Petty Cases - Section 96(4) bars appeals except on points of law in cases where the value of the subject-matter of the original suit does not exceed Rs. 10,000, as cognizable by the Court of Small Causes. The underlying objective of this provision is to reduce the number of appeals in petty cases.

Procedure for filing First Appeal

For filing an appeal, the appellant shall be needing three main documents:

Memorandum of Appeal - An Appeal shall be filed in the form of a Memorandum. The memorandum shall state and specify the Decree / Judgment against which the appeal is being preferred. Thereafter, the memorandum shall deal in details with all the Grounds of Appeal on the basis of which the Appellant is preferring the first appeal. At the end of the Memorandum of Appeal, there should be a Certification given by an Advocate of the Appellant, stating that the Grounds alleged in the Memorandum are good grounds for admitting the appeal. The value of the appeal shall be same as the value of the original suit.
Certified Copies of the impugned Judgment and the Decree - The Appellant needs to obtain a Certified Copy of the Judgment and the Decree against which he is preferring the appeal. The Certified Copy of the Judgment and the Decree shall be annexed with the memorandum of appeal. However, the Court can dispense with the attachment of the Judgment, if so applied for by the appellant. But the Certified Copy of the Decree must always be enclosed along with the Memo of Appeal.
Vakalatnama - The appellant needs to file a fresh Vakalatnama, appointing his advocate to represent him for the appeal. The Vakalatnama, duly accepted by the Advocate and stamped as per requirement, shall also be filed along with the memo of appeal.

All these documents, along with required court fees, shall be filed in the Court which is authorized to hear appeals.

Power of Appellate Court hearing First Appeal

On admission of the Memorandum of Appeal, and on hearing the appellant and respondent (if required), the Appellate Court may:

Stay the execution of the original decree passed by the trial court;
Require the Appellant to deposit security for the Cost of the original suit or of the appeal, or both;
Dismiss the appeal;
Re-admit an appeal which was dismissed for default;
Re-hear the appeal on an application made by the respondent, when the appeal was first heard ex-parte;
Take additional evidence from the parties;
Remand a case to the trail court;
Vary and modify the decree passed by the trial court;
Reverse the decree passed by the trial court;
Confirm the decree passed by the trial Court;

First Appellate Court has got power to judge the correctness of findings of facts as well as of law recorded by the Trial Court.

In the case of B. V. Nagesh and Anr. v. H. V. Sreenivasa Murthy, (2010) 113 SCC 530 : AIR 2010 SCW 6184 , the Court held “The Appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. The first appeal is a valuable right of the parties and unless restricted by taw, the whole case therein is open for re-hearing both on questions of fact and law. The judgment of the Appellate Court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth and pressed by the parties for decision of the Appellate Court.”

SECOND APPEAL

Section 100 provides for a second appeal under this Code of Civil Procedure. A second appeal shall mean an appeal preferred against a decree passed in First Appeal. However, unlike a first appeal, a second appeal cannot be preferred against every decrees. Only those decrees which involve a substantial question of law can be taken into appeal.

Second Appeal to be filed before which Court?

Section 100 of the Civil Procedure Code provides that a Second Appeal shall lie to the High Court from a decree passed in the first appeal by a subordinate Court.

However, the High Court shall admit a second appeal, only when there is any substantial question of law involved, and on no other ground. An Appeal may lie from an appellate decree passed ex-parte.

A Second Appeal shall not lie in the following cases:

Where a Single Judge of a High Court has heard and decided an appeal and passed a decree, no further appeal shall lie from such appellate decree of the Single Judge of the High Court;
No Second Appeal shall lie from any decree where the subject matter of the suit was recovery of money, and the amount of money sought to be recovered was Rs. 25,000 or less.

In the case of Dudh Nath Pandey vs Suresh Chandra Bhattasaali, it was held that The High Court cannot set aside the finding of facts by the First Appellate Court.

Procedure for filing Second Appeal

After the First Appeal has been determined, and the party aggrieved by such decision of the First Appellate Court considers that there is a substantial question of law involved in the case which requires the interference of the High Court, he may prefer a Second Appeal. The procedure for filing second appeal is quite similar to that of a First Appeal. The important documents required for second appeal are:

Memorandum of Appeal - The Second Appeal shall be in the form of a Memorandum, and shall contain a brief statement of facts, the judgment and decree in the original suit and the first appeal against which the second appeal is being preferred, and the Grounds of appeal. The grounds shall specifically state the substantial question of law involved.
Certified Copies of Impugned judgment and decree - the judgment and decree against which the second appeal is preferred, shall be enclosed along with the memo of appeal.

Along with these, a Vakalatnama and the required court fees shall be given. The copies of Plaint or Written Statement or Memorandum of First Appeal may or may not be attached.

Power of Appellate Court hearing Second Appeal

An Appellate Court hearing the Second Appeal shall, just like a First Appellate Court, have the following powers:

Where the evidence on record is sufficient, the Court may determine any issue necessary for the disposal of the appeal, which has not been determined or wrongly determined by the trial court or First Appellate court;
Take additional evidences under certain circumstances;
To Remand the case back to the subordinate court for re-trial;
To frame issues and refer the case for trial;
To determine the case finally.

APPEALS FROM ORDERS

The Civil Procedure Code also makes provisions for appeals from certain interim orders passed by the Courts during the pendency of a suit or proceeding. However, the scope of such Appeals from Orders is quite limited, and only those orders, which are specifically mentioned under Section 104 and Order 43 Rule 1 of the CPC, are subject to appeal. No other order of a trial or appellate court can be appealed against. However, as per Section 104 (2), no appeal shall lie from any order made in appeal.

Procedure of Appeal from Orders

The procedure for preferring an appeal from order shall be the same as the procedure for preferring first appeal from a decree / judgment.

APPEAL TO THE SUPREME COURT

Supreme Court is the highest court of appeal and no appeal can lie for the correction of the judgment of the Supreme Court. The Constitution of India under Articles 132, 133, and 134-A deal with appeal to Supreme Court in civil proceedings. An Appeal shall, under these Articles, lie to the Supreme Court from a judgment, decree or final order passed by a High Court in a Civil Proceeding, if the High Court gives a Certificate of fitness for appeal on the grounds that:

The Case involves some substantial question of law of general importance; and
In the opinion of the High Court, such question needs to be decided by the Supreme Court.

Section 109 of the Civil Procedure Code also lays down similar provisions for preferring an appeal to the Supreme Court. It says that an appeal would lie to the Supreme Court if:

Any judgment, decree or final order has been passed by a High Court;
The case involves a substantial question of law of general importance; and
In the opinion of the High Court, such question needs to be decided by the Supreme Court.

Procedure for obtaining Certificate from High Court

For obtaining the Certificate from the High Court, the Civil Procedure Code has provided, under Order XLV, that

A petition needs to be made before the Court from whose judgment the appeal to Supreme Court is sought to be preferred;
Such petition for claiming the Certificate shall contain the grounds for appeal;
After such petition is admitted, the Court shall direct notice to be served upon the opposite party to show cause why such Certificate shall not be granted to the petitioner;
When the Certificate is granted, the applicant shall furnish to the Court such security in cash or Government Security, as the Court may direct taking into account the Cost of the respondent, and shall deposit such expenses relating to the translating, transcribing, indexing, printing, and transmitting to the Supreme Court of the whole record of the suit. Such furnishing security and deposit shall be made within 90 days from the date of the decree complained of or within 6 weeks from the date of grant of the Certificate, whichever is later.

Appeal to Supreme Court by Special Leave Petition

Special Leave Petition is a special provision provided for in the Constitution under Article 136. Under this Article, any person, if he does not get a Certificate from the High Court as aforesaid, can make an application before the Supreme Court for allowing the appeal. It is a way of applying before the Supreme Court to admit his appeal from an order of a High Court, in situations where the High Court has not granted any Certificate of fitness for appeal. Article 136 of the Constitution empowers the Supreme Court to grant a special leave or permission to appeal against any order or judgment of any other Court or Tribunal. The procedure and form for filing a Special Leave Petition will be dealt with in another Article.

DUTIES OF AN APPELLATE COURT

The appellate Court has a duty to analyze the factual position in the background of principles of law involved and then decide the appeal.
To provide cogent reasons for setting aside a judgment of an inferior Court.
To delve into the question of limitation under Section 3(1) of the Limitation Act.
To decide the appeal in compliance with the scope & powers conferred on it under Section 96 r/w O.XLI, R.31 of the Code of Civil Procedure.

The right to appeal is neither a natural right nor inherent right, it is a right guaranteed by the Indian Constitution, 1950 and various other statutes, therefore is a statutory and substantive right. And the total number of appeals a person has depends on the number of courts superior to the court giving the judgment. An appeal lies differently in different matters such as criminal matters, constitutional matters, and civil matters. It arises after the judgement is passed by the court and it is available to both parties. The right to appeal begins from the proceeding itself and ends when judgement is pronounced. The appeal can lie when the case involves a substantial question of law and the court has the responsibility to formulate the substantial question of law.

This article has been authored by Ms. Anwasha Halder, Advocate, and Ms. Paridhi Jain, a student of Punjab University, SSG Regional Centre, Hoshiarpur.

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Lawfield Associates is a nascent firm of lawyers, and is based at Kolkata, India. The firm has been developing a growing litigation practice on all kinds of civil matters before the Hon’ble High Court at Calcutta as well as various District and sub-ordinate courts and tribunals. The firm regularly conducts suits, interlocutory proceedings and connected appeals.