Appeals under Civil Procedure Code, 1908 in India

1. 0
Appeals in the Code of Civil Procedure, 1908
Submitted to:
Ms. Archana Aggarwal
Faculty-in-charge
Course: Code of Civil Procedure
Course Code: LAW314
Submitted by:
Kunal Basu
Enrol. No: A3256113116
Course: LL.B
Batch: 2013-2016
Date of Submission: Mar. 2, 2015

2. 1
Table of Contents
Introducing Appeals in the Civil Procedure Code, 1908 ...........................................................2
Procedure for Appeals under CPC, 1908...................................................................................2
What is a Substantial Question of Law?....................................................................................4
Can the High Court in second appeal interfere with the judgment of the first appellate court
on the ground that the first appellate court had not come to close grips with the reasoning of
the trial court? ............................................................................................................................5
Classifying Substantial & non-Substantial Issues......................................................................6
Limitations on Second Appeal...................................................................................................7
Powers of Appellate Courts .......................................................................................................7
S. 107 (1)(a), Order 41, Rules 24 & 33: Determine a case finally........................................................8
S. 107(1)(b), Order XLI, Rule 23: Remand a case ................................................................................8
S. 107(1) (c), Order XLI, Rules 25 & 26: Frame issues and refer them for trial...................................8
Rule 28-29 & order XLI: Taking additional evidence...........................................................................9
My Viewpoint..........................................................................................................................10
Citations...................................................................................................................................10

3. 2
Introducing Appeals in the Civil Procedure Code, 1908
The expression ‘appeal’ has not been defined in the Code of Civil Procedure (CPC),
1908. It is an application or petition to a higher Court for reconsideration of the decision of a
lower court. An appeal is a creature of statute and right to it is neither an inherent nor natural
right. S. 9 confer on a litigant, independently of any statute, the right to appeal a suit of civil
nature in a court of law. However, he has no right to appeal from appeal decree or order made
against him, unless the right is clearly conferred by statute. Under S. 96 CPC a litigant may
appeal against an original decree. S. 100 give a litigant the right to appeal from an appellate
decree in certain cases. S. 109 give him the right to appeal to the Supreme Court in certain
cases. S. 104 give him right to appeal from orders as distinguished from decrees.
In Tirupati Balaji v. State of Bihar1
, the SC held that “Appeal implies……a superior
forum shall have jurisdiction to reverse, confirm, annul or kodify the decree or order of the
forum appealed against…..” Likewise, the Gujarat HC in Bhil Kanji Bhagwan v. Bhil Karsan
Bijal2
, held that “Appeal is a n application……for reconsideration of the decision of a lower
authority…..” In Kaleidoscope India Pvt. Ltd. v. Phoolan Devi3
, the Trial Court judge
prohibited the exhibition of a film both in India and abroad. The Sessions Judge permitted the
exhibition of film in abroad. Subsequently, a party who moved in appeal did not have locus
standi. It was reversed by the division bench of Delhi HC on the ground of absent locus
standi. In State of Bombay v. Supreme General Films and Exchange4
, it was held that right to
appeal cannot be taken away, if available on the date of institution of suit and subsequently
law passed taking away right to appeal. In Delhi Cloth & General Mills v. I T Commissioner 5
it was held that where right to appeal was created subsequently, appeal shall not be available
to a litigant if the suit were instituted prior to such creation of enabling law.
Procedure for Appeals under CPC, 1908
S. 96-112 and Orders XLI-XLV deal with various categories of appeals as shown
below:
 From original decrees: First appeal – S. 96-99A, 107 & Order XLI and
Second Appeal: S. 100-103, 107, 108 & Order XLII
 Appeals from orders: S. 104-108 & Order XLIII
 Appeals by indigent persons: Order XLIV
 Appeals to Supreme Court: S. 109, 112 & Order XLV
S. 96 allow that an appeal shall lie from a court of original jurisdiction to an appellate court.
However, first appeals must be against a decree and the appellant must have been adversely
affected by such decree, held by SC in in Lucknow Development Authority v Krishna Gopal
1
AIR 2004 SC 2351
2
2003, 3 GLR 2080
3
AIR 1995 Delhi 316
4
AIR 1960 SC 980
5
AIR 1927 PC 242

4. 3
Lahoti6
. The only limitation is that under S. 96(2) an ex-parte appellant can be heard only on
the merits of the case, as held in Raijan Lal v. Rukhmani Devi7
. S. 96(3) provides that no
appeal shall lie against a decree passed with the consent of parties. Limitations include decree
passed without consent of litigants, no order recording compromise and where the appellant
had no locus standi. However, in Aleemuddin v. Haji Bashir Ahmad8
, the SC extended the
definition of the right to appeal even to persons who were ‘aggrieved by a decree’ even
though the said decree may not have been passed against him. S. 96(4) restricts appeals from
Small Causes courts to a minimum monetary value of Rs. 10,000, except for questions of
law.
S. 100 was amended in 1976 imposing drastic restriction on the High Court's
jurisdiction in entertaining a second appeal. Even prior to the 1976 amendment, the first
appellate court was treated as the final court of facts by the Privy Council. Under S. 100, an
appeal to the High Court can lie only if it involves substantial question of law, including an
ex-parte decree. However, the HC reserves the right to hear other substantive questions of
law that may be raised in such proceeding. It is thus clear that the power of HCs is restricted
by other provisions of the CPC, notably with regard to the restriction of hearing such appeals
on law and NOT in fact. In Durga Choudhrain v. Jawahir Singh Choudhri, the Privy Council
held thus:
There is no jurisdiction to entertain a second appeal on the ground of an
erroneous finding of fact, however gross or inexcusable the error may seem to
be.
The above was reiterated by Subba Rao, J. in Sinha Ramanuja Jeer v. Ranga Ramanuja
Jeer9
. Thus first and second appeals differ widely in their individual scopes. Appellants are
also not permitted to set up a new case or raise unevidenced issues, as upheld by the Privy
Council in Wali Mohd. V. Mohd. Baksh10
. In Deity Pattabhiramaswamy v. S. Hanymayya11
,
Subba Rao, J. examined the reasons for evolving the practice and strongly criticized the
practice of the High Courts in disposing of second appeals without any substantial question of
law involved, observing:
…..notwithstanding such clear and authoritative pronouncements on the scope
of the provisions of Section 100, Civil Procedure Code, some learned Judges
of the High Courts are disposing of second appeals as if they were first
appeals. This introduces, apart from the fact that the High Court assumes and
exercises a jurisdiction which it does not possess, a gambling element in the
litigation and confusion in the mind of the litigant public.
6
AIR 2008 SC 399
7
1979 All LJ 1237
8
1977 All 683
9
AIR 1961 SC 1720 at p. 1730
10
AIR 1930 PC 91
11
AIR 1959 SC 57

5. 4
In Dudh Nath Pandey v. Suresh Chandra Bhattasali12
the Supreme Court held that the
High Court cannot set aside findings of fact of the first appellate court and come to a different
conclusion on reappraisal of evidence while exercising jurisdiction under S. 100 CPC. In
Annapoorani Ammal v. G. Thangapalam13
, the Supreme Court held that a perusal of S. 100
clearly indicates that the High Court had the jurisdiction to interfere only when a substantial
question of law is involved and even then it is expected that such a question shall be so
framed although the court is not bound by that question as the proviso indicates. In Kashibai
v. Parwatibai14
, the Supreme Court observed as under:
"……….. the High Court seems to have ignored these (S. 100) provisions and
proposed to reappreciate the evidence and interfere with the findings of fact
without even formulating any question of law. It has been the consistent view
of this Court that there is no jurisdiction to entertain a second appeal on the
ground of erroneous finding of fact, based on appreciation of the relevant
evidence."
In Dnyanoba Bhaurao Shemade v. Maroti Bhaurao Marnor15
it was held that the question
whether a finding of fact is against the weight of evidence does not project a question of law,
much less a substantial question of law.
What is a Substantial Question of Law?
The test to determine whether a question was a substantial question of law or not, was
laid down by a Constitution Bench of the SC in Chunilal V. Mehta and Sons Ltd. v. Century
Spg. and Mfg. Co. Ltd.16
while determining the said expression occurring in Article 133(1) of
the Constitution of India. The Supreme Court laid down the test as follows17
:
The proper test for determining whether a question of law raised in the case is
substantial would, in our opinion, be whether it is of general public importance
or whether it directly and substantially affects the rights of the parties and if so
whether it is either an open question in the sense that it is not finally settled by
this Court or by the Privy Council or by the Federal Court or is not free from
difficulty or calls for discussion of alternative views. If the question is settled
by the highest court or the general principles to be applied in determining the
question are well settled and there is a mere question of applying those
principles or that the plea raised is palpably absurd, the question would not be
a substantial question of law."
In MSV. Raja v. Seeni Thevar18
it was held by the Supreme Court that the formulation of a
substantial question of law may be inferred from the kind of questions actually considered
12
(1989) 3 SCC 287 at p. 292
13
(1995) 6 SCC 213
14
1995 SCC (6) 213, JT 1995 (7) 48
15
1962 Supp (3) SCR 549
16
1962 Supp (3) SCR 549
17
(2001) 6 SCC 652
18
(2001) 6 SCC 652

6. 5
and decided by the High Court in second appeal, even though the substantial questions of law
were not specifically and separately formulated. The observations made by the Court in this
regard are as follows:
We are unable to accept the argument of the learned Senior Counsel for the
appellants that the impugned judgment cannot be sustained as no substantial
question of law was formulated as required under S. 100 CPC. In para 22 of
the judgment the High Court has dealt with substantial questions of law.
Whether a finding recorded by both the courts below with no evidence to
support it was itself considered as a substantial question of law by the High
Court. It is further stated that the other questions considered and dealt with by
the learned Judge were also substantial questions of law. Having regard to the
questions that were considered and decided by the High Court, it cannot be
said that substantial questions of law did not arise for consideration and they
were not formulated. Maybe, substantial questions of law were not specifically
and separately formulated. In this view, we do not find any merit in the
argument of the learned counsel in this regard.
Can the High Court in second appeal interfere with the judgment
of the first appellate court on the ground that the first appellate
court had not come to close grips with the reasoning of the trial
court?
This issue was answered in the negative by the Supreme Court in V. Ramachandra
Ayyar v. Ramalingam Chettiar19
In this case, the Supreme Court distinguished the Privy
Council's decision in Rani Hemanta Kumari Debi v. Maharaja Jagadindra Nath Roy
Bahadur20
wherein the Privy Council observed that it is better that the appellate court
whenever it reverses the judgment of the lower court, comes into close quarters with the
judgment of the lower court and meets the reasoning therein. This decision was distinguished
on the ground that the said observations were made in an appeal from the judgment of a High
Court rendered in first appeal. In S.V.R. Mudaliar v. Rajabu F. Buhari21
a two-Judge Bench
followed the Privy Council decision in Rani Hemanta Kumari Debi case without noticing
Ramachandra Ayyar case. In Arumugham v. Sundarambal22
, the Supreme Court overruled
S.V.R. Mudaliar case and affirmed Ramachandra Ayyar case and held that it is open to the
first appellate court to consider the evidence adduced by the parties and give its own reasons
for accepting the evidence on one side or rejecting the evidence on the other side. It was held
that it was not permissible for the second appellate court to interfere with such findings of the
first appellate court only on the ground that the first appellate court had not come to grips
with the reasoning given by the trial court. The above discussion leads to the following
conclusions:
19
16 MLJ 272 : 10 CWN 630 (PC)
20
(1995) 4 SCC 15
21
(1999) 4 SCC 350
22
AIR 1999 SC 2216

7. 6
 S. 100 impliedly declares that the first appellate court is the final court of facts and the
High Court has no jurisdiction to interfere with the finding of facts reached by the
first appellate court, however gross the error may seem to be.
 The High Court is not a second court of first appeal under Section 100 CPC.
 Since an appeal is a creature of a statute, the High Court should satisfy itself about the
presence of the substantial question of law before admitting the second appeal. S. 100
do not provide an absolute and automatic right of appeal.
 A question of law, to be substantial, must satisfy the test laid down by the Supreme
Court in Chunilal Mehta case.
 If a second appeal is allowed without framing a substantial question of law, the same
is liable to be set aside straight away without remanding back to the High Court since
an appellant in a second appeal cannot take advantage of his own wrong by not
fulfilling the mandatory requirement laid down in sub-section (3) of S. 100.
 In view of sub-section (4) of S. 100 substantial question or questions of law must be
expressly and specifically formulated by the High Court and the contrary view taken
in M.S.V. Raja case is not correct.
 It is not permissible for the High Court to interfere with findings of the first appellate
court only on the ground that the first appellate court had not come to close grips with
the reasoning given by the trial court.
Classifying Substantial & non-Substantial Issues
Since S. 100 is critical to the process of appeals in HCs, it would be useful to classify
some instances of substantial questions of law as follows:
 Construction of document
 Perverse finding of fact
 Interpretation of contract
 Jurisdiction of originating court
 Conflict of judicial opinion
 Admissibility of evidence
Similarly, NOT substantial questions are as follows:
 Mere appreciation of facts and documents (Kondiba Dagadu Kadam v. Savitribai
Sopangujar & Ors.23
)
 Purely academic, the answer to which would have no bearing on any actual right or
liberty or if leads to no solution (CIT v. Anusuya Devi24
)
23
AIR 1999 SC 2213
24
AIR 1968 SC 779

8. 7
 If question has already been decided ina higher court or Privy Council, its mere wrong
application to facts (Kondiba Dagadu Kadam v. Savitribai Sopangujar & Ors.)
 Concurrent findings of fact by lower courts (Hari Singh v. Kanhaiya Lal25
)
 A question that arises incidentally or collaterally without bearing on the final outcome
(State Bank of India v. SN Goyal26
)
Limitations on Second Appeal
In order to minimize delay in finality of decisions, S. 100-A provides that no further
appeal would lie against the decision of a single judge in second appeal. Thus further appeal
to a Division Bench of a HC against the decision of a single judge in appeals is barred under
S. 96, 100 & 104 of CPC. Likewise, S. 102 raises the minimum monetary value of a suit to
Rs. 25,000 (Jagdish Chandra v. Arvind Singh27
). S. 103 empowers a HC to determine issues
of fact, either not determined by the lower appellate court and/or the court of first appeal or
wrongly determined by such courts, upheld by SC in Municipal Committee, Hoshiarpur v.
Punjab State Electricity Board28
.
In sum, the following are essential to constitute appellate jurisdiction:
 The existence of the relation of superior and inferior court and
 Power of the superior court to review the decision of the inferior (Shiv Shakti v.
Swaraj Developers29
).
In Jagdish Singh v. Madhury Devi30
, the SC held that an appeal is a continuation of suit.
While an appellate court can reappraise, appreciate and review the entire evidence, oral and
documentary, it is expected to bear in mind findings recorded by trial courts on the basis of
evidence. Further, in Arundhati v. Iramna31
, the SC held that when triable issue is involved in
an appeal, the first appellate court must examine facts and law and order accordingly (also
Waheed Khan v. Gyani Bai32
). Mere upholding the judgment of a trial court defeats the very
purpose of appeal.
Powers of Appellate Courts
S. 107 and Rules 23-33 of Order XLI deal with the power of an appellate court while
hearing appeals from original decree. Subject to such conditions and limitations as may be
prescribed, an appellate court has the power to determine a case finally, remand a case, frame
issues and refer them for trial and take additional evidence, or require such evidence to be
taken, as discussed in the succeeding paragraphs.
25
AIR 1999 SC 3325
26
AIR 2008 SC 2594
27
AIR 20903, All 1129
28
(2010) 13 SCC 216
29
AIR 2003 SC 2434
30
AIR 2008 SC 2296
31
(2008) 3 SCC 181
32
AIR 2005 MP 232

9. 8
S. 107 (1)(a), Order 41, Rules 24 & 33: Determine a case finally
However, this is a general rule and an order of remand should be made only in rare
and exceptional circumstances (Sunder Singh v. Narain Singh33
). Further, this rules does not
enable the appellate court to declare a right in favor of one party where no issue has been
framed on the point and the right has not been set up in the lower court (Official Trustee v.
Krishna34
). However, where both parties have adduced evidence on a point raised in appeal,
the court can record a finding under this rule even though no issue has been framed on it
(Bhairab Chandra v. Ranadhir Chandra35
). Whether the evidence on record is sufficient or
not to decide the matter finally depends upon the facts of each case (Sardar Begum v. Jagdish
Chand Bhandari36
).
S. 107(1)(b), Order XLI, Rule 23: Remand a case
This means to send back a case for another round of litigation to the lower court if it
has disposed of the suit upon a preliminary point and the decree is reversed in appeal. A point
is said to be a preliminary one if the decision thereon disposes of the whole suit and there is
no need to determine other points, e.g. a suit barred by limitation where the plaintiff is
estopped from proving his case. However, Rule 23 restrains an appellate court from
remanding a case because the judgment of the lower court is not satisfactory unless there is
reason to believe that the lower court had erred in misreading or ignoring evidence or
evidence was not conclusive (Sundar Singh v. Narain Singh37
). Further, under Rule 23-A the
appellate court can take cognizance of events subsequent to the trial court’s verdict provided:
 Such event is brought promptly to the court’s notice;
 Such notice should be consistent with rules of procedure of the court and
allow the respondents to explain the events
 Subsequent events must have a material bearing on the right to relief of
any party;
S. 107(1) (c), Order XLI, Rules 25 & 26: Frame issues and refer them
for trial
The appellate court has the power to frame issues where the lower court has omitted
to frame an issue, try an issue or determine any question of fact that may be essential to the
right decision of the suit upon its merits. Upon receiving such an order, it is incumbent upon
the lower court to try the suit again and return it to the appellate court.
33
AIR 1966 SC 1977
34
(1886) ILR 12 Cal 239
35
(1988) 1 SCC 383
36
AIR 1967 Del 61
37
1969 SCD 900

10. 9
Rule 28-29 & order XLI: Taking additional evidence
At the same time, an appellate court should not admit additional evidence; instead
adhere to the evidence adduced before the trial court (Municipal Corporation of Greater
Bombay v. Lala Pancham38
). Therefore this power should be exercised on sound judicial
principles and in the interest of justice (Jaipur Development Authority v. Kailashwati39
).
However, additional evidence does not imply evidence over and above that produced by the
parties in the lower court. Such evidence may be admitted under the following circumstances:
 Where the lower court refused to admit relevant evidence (Rule 27(1)(a))
or
 When the party was not able to produce evidence or was not aware that it
existed or
 Evidence is required to pronounce any judgment or for any other
substantial issue (Rule 27(1)(b)). In Mahabir Singh v. Naresh Chandra40
,
the SC defined such situation as one in which the appellate court “….finds
itself unable to pronounce judgment owing to a lacuna or defect in the
evidence as it stands. Similarly, in K. Venkatramiah v. A. Setharama
Reddy41
the SC ordered liberal view of such evidence to determine a
substantial issue.
However, Rule 27(2) & Order XLI provide that courts shall record reasons for
admitting additional evidence. Failure to do so while not being actionable would be treated as
a serious defect. Rule 28-29 & Order XLI enable the appellate court, the lower court from
where the appeal was preferred or any other subordinate court to gather such evidence in
behalf of the appellate court. In Gill & Co. v. Bimla Kumari Jolly, the SC held that the
discretion given to appellate courts to receive and admit additional evidence is not arbitrary
but a judicial one circumscribed by the limitations specified in Rule 27 itself. In Parsotim
Thakur v. Lal Mohar Thakur42
, the Privy Council had held that:
The provisions of S. 107 as elucidated by Order XLI, Rule 27 are clearly not
intended to allow a litigant who has been unsuccessful in the lower court to
patch up the weak pans of the case and fill up omissions in the Court of
Appeal…………..additional evidence can be admitted and it must be the
Court that requires it.”
In Shivajirao Nilangekar Patil v. Dr. Mahesh Madhav Gosavi & Ors.43
The plaintiff
sought to admit certain reports published in India Today, sundry other magazines and
some affidavits. The SC’s observed that there was no ground for such evidence to
have been collected before the petition was filed.
38
AIR 1965 SC 1008
39
AIR 1997 SC 3243
40
AIR 2001 SC 134
41
AIR 1963 SC 1526
42
AIR 1931 PC 143
43
AIR 1987 SC 294

11. 10
My Viewpoint
The first impression that a law student like me obtains from the complexities of the
civil appeals system enshrined in the CPC is one that perhaps has an overmuch of layers of
appeals. Multiple layers not only enhance the cost of litigation, particularly for the indigent,
but also cause substantial delays in final decisions for which India has gained dubious repute.
They may also introduce irrelevant evidence that may breed more injustice than justice since
courts are hard pressed for time and adequate number of judges. Therefor there appears to be
an urgent need to closely scrutinize cases in court registries before admission, punish often
frivolous litigation and establish a separate stream for dealing with cases in appeal.
Citations
e-Court: The Civil Procedure Code, 1908 extracted on Feb 27, 2015 from
ecourts.gov.in/sites/.../The%20Code%20of%20Civil%20Procedure_0_0.pdf
Mulla, DN Sir: The Code of Civil Procedure (Abridged), Lexis Nexis, 16th
ed. (2014)