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    Thursday, 7 May 2015

    Appeal and its kinds under CPC

    1. Introduction

    Appeal has not been defined in Civil Procedure Code. It is, in fact, that complaint, which is made to some superior court against decision of subordinate court. Basic object of appeal is to test soundness of decision of lower court. Appeal may be filed against original decree, or against decree passed in appeal.

    2. Relevant Provisions
    Following are the relevant Provisions regarding appeal and second appeal

    (i) Section 96, 97, 98, 99, of CPC for 1st Appeal
    (ii) Section 100, 101, 102, 103 of CPC for 2nd appeal
    (iii) Cross Reference
    (a) Section 17, 18 of West Pakistan Civil court ordinance II of 1962
    (b) Order 41, 42 of CPC

    3. Meaning of Appeal
    Appeal means removal of a cause from inferior to a superior court for the purpose of a testing soundness of decision of an inferior court”.

    4. Definition of Appeal
    Judicial examination of the decision by a higher court of the decision of the inferior court”.

    5. Right of Appeal
    Every person has given right of appeal against decree. However, right of appeal is not an inherent right. Rather it can only be availed where it is expressly granted by law. Appeal lies against a decree and not against a judgment.

    6. Nature of Right of Appeal
    Rights of appeal are substantive right and they are not mere matters of procedure. Right of appeal is governed by the law prevailing at the date of the suit and not by law that prevails at the date fo the decision or at the date of filling of the appeal.

    7. Appeals from a decree
    An appeal lies under section 96 CPC only from a decree because the decree marks the stage at which the jurisdiction of the court which the appeal is made begins. As such unless a decree is drawn up, no appeal lies from a mere finding, but if the finding amount to a decree, an appeal would lie.

    8. Kinds of Appeal

    Appeal may be classified not following two kinds.

    1st Appeal

    Generally, first appeal shall lie from every decree passed by any court exercising original jurisdiction to the court authorize to hear appeal from the decisions of such court.

    (8.1) Forum of Appeal
    First appeal lies to the District court, if the value of the subject matter of the suit is below Rs. Two lakhs, and to the high court in all other cases.

    (8.2) Person who may Appeal
    Only such persons, who are party to the suit, or who are adversely affected by the decree may appeal; Stranger to suit or proceedings is not prohibited by CPC 1908 from filling an appeal against an order whereby he was aggrieved.

    (8.3) Person otherwise competent to file appeal
    Following persons are also competent to file an appeal

    (i) legal representatives of the party after such persons have been impleaded as party,
    (ii) Transferee of the interest of party,
    (iii) Any person claiming under a party
    (iv) Any person represented by a party
    (v) A benamidar on behalf of a real owner,
    (vi) A guardian on behalf of a minor
    (vii) Government (Federal or Provincial)

    (8.4) Appeal against interlocutory order
    An appellate court does not have the benefit of the evidence which has to be recorded in the suit under appeal and as it does not have such benefit, it cannot give a conclusive finding on any issue which turns on evidence and it should also not given such a finding because if it did so, it would prejudice the trial court’s appreciation of evidence.

    (8.5) Jurisdiction of Appellate court
    The appellate court has got the jurisdiction to adjudicate upon a matter only if there is either an appeal pending or cross-objections field by the respondents. The court could not suo motu interfere with the judgment of the trial judge which was subject to its appellate jurisdiction. Any order so passed is without jurisdiction and hence a nullity. The objection on this ground can be taken at any time and in any proceedings.

    (8.6) Decisions in Appeal under section 98
    All decisions in an appeal shall be made by the majority and if no majority is established which necessary to alter or reverse the decree appealed from, then the decree shall stand confirmed. It is the right of the first appellate court to come to a conclusion different from that of trial court on re-appraisal of evidence.

    (i) Reference to other judges where no majority
    When a court consisting of more than two judges and an appeal is heard by its bench of two judges and they differ on a point of law, they may refer that point to the other judges of the same court and then the matter shall be decided according to the majority, including judges who refer that matter.

    (8.7) Effect of irregularity under section 99
    Decision which is correct on merits, and within the jurisdiction of the court making it, should not be set-up by an appeal, merely on the grounds of technical or immaterial defects i.e mis-joinder of parties etc.

    2nd Appeal

    Generally, Second appeal lies to the High Court, from every decree passed in an appeal, by a court subordinate to lie High Court. It lies only on grounds mentioned in section 100 CPC but not on question of fact.

    (9.1) Grounds for Second Appeal
    It is settled proposition of law that second will lie where judgment is uncertain in its meaning and finding is vague and inconclusive or where reasons are not given at all. Following are the grounds where second appeal is competent and not otherwise.

    (i) Decision being contrary to law
    A decision contrary to law is open to interference in second appeal, and the decree may be amended to bring it in conformity with legal requirements.

    (ii) Decision being contrary to the usage having force of law
    The expression usage having the force of law means a local or family usage, which is distinguished from general law. A usage having the force of law should be ancient, invariable, certain and reasonable.

    (iii) Decision having failed to determine some material issue of law or usage having the force of law
    The failure to determine, some material issue of law or usage having the force of law, by the lower court, is a good ground for second appeal.

    (iv) Substantial error or defect in procedure
    Where there is a substantial error or defect in procedure, provided by CPC or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon merits, it can be a ground for second appeal.

    (9.2) Interference barred in Second Appeal

    (a) Finding of fact is not susceptible to interference in second appeal.
    (b) Plea not raised wither in written statement or even in appeal below, could not be taken up in second appeal by the High Court.
    (c) Delivery of possession is a question of fact and cannot be interfered with in second appeal.
    (d) Findings of fact by first appellate court cannot be challenged in second appeal, particularly when no erroneous approach to the case or findings of fact is shown to have been made by first appellate court.
    (e) The question of adverse possession may not necessarily of a document, particularly revenue record, is a question of law.
    (f) Concurrent findings of fact by two lower court cannot be challenged in second appeal ever if it is erroneous or a different conclusion is possible.
    (g) Where lower courts arrived at a finding of a fact after thoroughly perusing, assessing and appreciating evidence the point cannot be reopened in second appeal.

    (9.3) Allowing Revision to be treated as second appeal
    The High Court has allowed the revision to be treated as second appeal. The only point in issue is from what date this revision should be treated to be converted into a second appeal.

    (a) from the date a misconceived civil revision petition was instituted
    (b) from the date is request was made for its conversion or
    (c) from the date it was allowed to be converted and registered as a second appeal

    (9.4) Effect of Subsequent change of law on second appeal
    If , according to law in force at the time of the filing of a suit, the ultimate decision of such an action was open to appeal or to second appeal, the right to prefer an appeal there from is not affected by subsequent change of law abolishing the appeal of modifying its form, unless it is so provided expressly in the enacting statue or followed by necessary implication from its terms.

    (9.5) Restrictions or urging irrelevant grounds
    According to order 41 rule 2, no ground can be urged at the hearing of the appeal which had not been set forth in memorandum of appeal.

    (9.6) Raising Fresh Pleas
    Parties are bound by case, which arises on their pleadings which have been inquired into by trial court. A plea which should have been taken in trial court but was not taken, cannot be raised for first time in second appeal.

    It is for the parties to take up necessary pleas and have necessary issues framed in the trial court. If they do not so, they cannot ask the appellate court to remand case for recasting of issue and retrial on new pleas.

    (9.7) Dismisal of Appeal for default
    Through second appeal may lie from an appeal decree passed ex-parte, no second appeal lies from an order dismissing an appeal for default, on the ground that such an order is not a decree.

    (9.8) Cases where second appeal is barred
    Section 102 provides that no second appeal shall lie in the following suits

    (a) Suit of a nature cognizable by court of small causes
    A suit the value of which does not exceed Rs.25000 is a suit of a nature cognizable by courts of small causes. It may be tried either by small cause court or by a civil court, and in that case second appeal is barred by section 102 of CPC.

    (b) Suits where value does not exceed Rs. 25,0000
    NO second appeal, shall lie in any other suit, where the value of the subject nature of the original suit does not exceed Rs. 2,50000.

    (9.9) Powers of High Court to determine issues of fact
    IN second appeal the High Court may determine an issue of fact.

    (i) where there is sufficient evidence, on the record, for determining issue of fact, necessary for the disposal the lower appellate court.
    (ii) An issue of fact, necessary for the disposal of the case, has been wrongly determined by the lower appellate court by reasons of any omission, error or defect as referred in section 100(I)(b) of CPC.

    Conclusion
    To conclude that appeal is a substantive right, and it is a matter inter parties. The question as to whether the appeal is competent or not can only be decided by the court hearing the appeal. Appeal may be filed against original or appellate decree passed by a court subordinate to High Court. Appeal only lies against a decree and not against Judgment. The right of appeal is a creation of statute. 
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    Item Reviewed: Appeal and its kinds under CPC Rating: 5 Reviewed By: Usman Ali
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