INTRODUCTION

“Right of appeal is a creature of statute and is neither natural nor inherent right.”[1]

The settled position of law with regard to appeal is that appeal is not an inherent right rather a mere statutory right. In simpler terms, if a statute provides for the right to appeal, the jurisdiction of the concerned Appellate Court may be invoked for rectifying the errors committed by the lower court.

However, this gives rise to the question as to what is appeal? Appeal is not defined under the Civil Procedure Code, 1908 (hereinafter referred to as “CPC”). However, the Code does provide the valuable right of appeal and is governed by Sections 96 to 112 read with Orders 41 to 45.

Nevertheless, there are numerous Supreme Court (hereinafter referred to as “SC”) decisions which makes it amply clear as to what is appeal. Appeal may be defined as “the judicial examination of the decision by a higher court of the decision of an inferior court”.[2] Hence, it can be said that appeal is a remedy provided by a statute to the aggrieved party in order to cure any injustice caused to it by the decision of an inferior court and thereby set aside the decree passed by it.

The right of appeal is based on the sound principle that no human is infallible. Furthering this principle and the object of appeal, an Appellate Court is vested with ample powers to cure all the defects which an inferior court might have caused in a decree. Following is an analysis of the powers of appellate court as provided under CPC.

POWERS OF APPELLATE COURT

The powers of the Appellate Court in a first appeal are provided under Secs. 96 – 108 read with Rules 23 – 33 of Order 41. These powers are as follows:

1. POWER TO DECIDE A CASE FINALLY

As per Sec. 107(1)(a) read with Order 41 Rule 24, an Appellate Court has been vested with the power to dispose of a case finally. Where there is sufficient evidence on record, enabling the Appellate Court to give a judgement, it may dispose of the suit completely, notwithstanding the fact that the decision of inferior court might have been based on some ground other than that on which Appellate Court deems fit to base its decision upon. For this purpose, Appellate Court may also resettle the issues, if at all it is necessary.

As per SC, a final curtain must be drawn upon the litigation between the parties, and for this purpose, as far as practicable, a case should be decided upon the evidence on record rather than remanding it for fresh evidence, save as in exceptional circumstances.[3] As also observed by Khanna J., “If life like a dome of many coloured glass stains the white radiance of eternity, so do the doings and conflicts of mortal beings till death tramples them down.”[4] The observation of Khanna J., in simpler terms, points out that there must be an end to the lis between parties and for this purpose a case must be disposed of finally.

2. POWER TO REMAND

The expression “remand”, in ordinary sense, means to “send back”. This power is provided under Sec. 107(1)(b) read with Order 41 Rule 23 and Rule 23A. R.23 empowers the Appellate Court to send back, the case to Trial Court where the decree passed by trail court was based on a “preliminary point” and no finding was given on any other issues which were framed therein. However, another mandatory requirement for operation of this power is that the decree must have been reversed by the Appellate Court.

Rule 23A was added by the 1976 Amendment and provides Appellate Court the power to remand a case back to trial court on grounds other than that of the preliminary point, provided that the decree was reversed by the Appellate Court and a re-trial was deemed by it necessary in the interest of justice.

While passing a remand order, Appellate Court shall also send the copy of its judgment and the order directing that the trial court shall re-admit the suit, under original suit number, and proceed with determination of the suit. Further, the evidence recorded in the original trial shall be evidence during the trial of suit after such remand, subject to just exceptions.

Remand is a discretionary power of the Appellate Court, as the provision uses the expression “the appellate court may, if it thinks fit”. Further, as held by SC in V.R. Subramanyam v. B. Thayappa[5], Appellate Courts should  not normally remand the case and should make an endeavour to determine the case finally by themselves. It is only in exceptional circumstances that this power should be utilised.

Conditions for applicability of these provisions

A remand order can only be made by the Appellate Court if:[6]

1. The decree must have been reversed by the Appellate Court.

Appellate court has no power to order a remand merely on the ground that it finds the lower court’s decision unsatisfactory, or that such court did not appreciated the evidence correctly, or had acted contrary to law. The fundamental requirement is the decree must have been reversed. Appellate court can only dispose of the appeal as per the provisions of law.[7]

• Suit must be remanded only if it was decided on preliminary point.

For application of R.23, it must be established that the case was dismissed on a preliminary point by the lower court. As to what constitutes a preliminary point has been explained by the Madras High Court in the case of Malayath Veetil Raman[8]. Whenever a suit is liable to be disposed of on an issue without the need for considering any other issue in the suit, it can be said to have been decided on a preliminary point. Such preliminary point does not necessarily have to be of law, it can be of fact also. However, the test is that it should have done away with the need to consider other issues by giving a full hearing.

Following are the instances of preliminary point:

1. Of law – Suit not maintainable; Barred by limitation; Res judicata; Cause of action not disclosed, etc
2. Of fact – Application of estoppel against plaintiff; Plea taken at hearing is different from pleadings, etc.

However, with the insertion of Rule 23A, this requirement is relaxed and the Appellate Court has the power to order remand even on grounds otherwise than that of preliminary point, provided it is considered necessary in the interest of justice. The provision was inserted with a view to widen the powers of the Appellate Court as there were many cases which necessitated the order of remand in the interest of justice, but could not have been ordered due to non-availability of provisions to that effect.

Effect of remand

Prior to 1976, there were contradicting decisions on the issue whether the Appellate Court could invoke its inherent powers to order remand on grounds other than that which is mentioned in Rule 23. However, after the insertion of Rule 23A by the 1976 Amendment, the position is amply settled that Appellate Court has the power to remand case on ground other than that of the preliminary point, provided a re-trial is necessary in the opinion of such court.

The remand order reverses the decree of trial court by reopening the case for trial. However, it is pertinent to note that such a retrial will only be done of the issues which were not decided by the Appellate Court. Any matter which is decided by the Appellate Court during the hearing of appeal is not open for re-trail. It must also be noted that where an order of remand is made, only those findings are said to have been set aside which were reversed by the Superior Court, while rest of the findings are still good in law.

Further, as provided by Order 43 Rule 1(u), order of remand is made an appealable order and the party aggrieved by such an order may take the recourse of appeal. However, as per Sec. 105(2), if such aggrieved party does not choose to appeal against the order of remand, it is barred from challenging its correctness in any subsequent proceeding.[9]  Further, the court to which such case is sent back has to duty to re-try such case in accordance with the order of remand and has no authority to circumvent it.[10]

Furthermore, as per Rule 26A, while passing the order of remand, Appellate Court is also required to fix a date upon which the persons who were the party to the suit are required to be present before the trial court for the purpose of receiving further directions in the matter.

As discussed above also, power to remand is an exceptional power, and therefore, it must always be supported with reasons. Such reasons must be recorded, as the omission to do so results in miscarriage of justice.[11]

Order of Remand by Supreme Court

The provision relating to remand uses the expression “Appellate Court”. Appellate court in this context means the court which has the power to hear an appeal. The provision nowhere specifies that an order of remand cannot be passed by the SC. Hence, while exercising the appellate jurisdiction, SC also has the power to send back the case to the High Court. Further, in the case of Shantilal v. Gujrat Electricity Board[12], SC had remanded certain matters to the HC. However, the HC refused to entertain the matters. SC held that HC was bound to re-try those matters.

3. POWER TO REFER CASE FOR TRIAL BY FRAMING ISSUES

This power is prescribed under Sec. 107(1)(c) read with Order 41 Rules 25-26. The Appellate Court has the power to frame issues and refer the case for trial to the lower court, if in its opinion, lower court has omitted to do any of the following acts, which were essential for a just decision on merits of the case –

1. Omission in framing of any issue;
2. Omission in trying any issue;
3. Omission in determination of any question of fact.

Once such an order is passed, lower court is duty bound to try those issues within the particular time as may be fixed by Appellate Court and shall thereupon return the additional evidence recorded along with the findings thereon, which shall as per Rule 26, form part of the record of the original suit and the party aggrieved by such finding, may object to it before the Appellate Court, within the time fixed by it. After hearing such an objection Appellate Court will then proceed with the appeal. However, such hearing of appeal, thereafter, will not be confined only to such further findings.[13] 

4. POWER TO TAKE ADDITIONAL EVIDENCE

It is dealt with under Sec. 107(1)(d) read with Order 41 Rules 27 – 29. As per the general rule laid down in Rule 27(1), parties have no right vested with the parties to produce additional evidence in an appeal. However, the Code also provides an exception to this general rule under Sec. 107(1)(d), which provides that an Appellate Court has the power to take additional evidence provided that the provisions of Rule 27 are complied with. Following are those circumstance–

1. Where the evidence which ought to have been admitted, was refused to be so admitted by the lower court.
2. Where there is a discovery of new evidence which even after due diligence could not have been produced by the party during the original trial or was not within their knowledge.
3. Where such additional evidence is required by the Appellate Court itself, either for–
   1. pronouncing judgment; or
   2. substantial cause.

Further, it has been held that the above mentioned grounds refer to three different scenarios, and for the application of Rule 27, it will be sufficient that any one of them is satisfied. ^[14] Further, the expression “substantial cause” must necessarily mean that there is a substantial cause for which the Appellate Court “requires” such additional evidence.^[15]

Additional evidence, therefore, in this sense does not mean “extra evidence” than that which was already on record enabling parties to produce more evidence which they ought to have presented during the original trial, rather means only those evidence which the court requires and which satisfies the criteria laid down in the said provisions.

Further, it must be noted that, following the rule of prudence, anytime when such additional evidence is taken, the opposite party is given an opportunity to raise any objection or rebut the same.[16]

Rules 28 and 29 provides for modes of taking such evidence. As per these Rules, Appellate Court may take additional evidence, either –

1. On its own; or
2. Cause it to be recorded by any court subordinate to it.

Further, Appellate Court, while taking additional evidence is statutorily bound to record reasons for such an order.[17] Failure to do so is a grave irregularity, and is against the interest of justice.

5. POWER TO MODIFY DECREE

As per Order 41 Rule 33, Appellate Court has also been vested with the power to pass any decree or order as the circumstances of a particular case may require. Such an order must be of a nature that it ought to have been passed by the lower court in those circumstances. Appellate Court has the power to not only pass such order between “appellant and respondent” but also as between “one respondent and the other” in order to do complete justice. Similar to other powers, this is also a discretionary power and must be exercised only when following conditions are fulfilled –

1. Parties must be same, both before court hearing the appeal as well as the court where suit was originally filed. Their capacity must also be same.
2. The question which is raised in the appeal must be due to the judgement of the lower court.[18] 

Further, the expression “as the case may require” makes this power wide enough to meet the “ends of justice”.[19]

6. OTHER POWERS

As per Sec 107(2), in addition to above-mentioned powers, Appellate Court is also vested with all the powers which were vested with court which heard the original suit. The principle behind this provision is that appeal is a continuation of the suit.

CONCLUSION

An appeal is not an inherent right, but once provided by a statute, it is all that is required by an aggrieved party to complain about the decision of a lower court, and for the higher court to correct any error caused by a lower court.

Once the right to file an appeal is established, it gives birth to a plethora of powers vested with the Appellate Court for curing all the defects which might have been caused by the lower courts judgement. The two principles which govern this right and power are

1. That no human is infallible and if the judge is a human, errors are bound to happen; and
2. That the act of court shall cause no injustice to any person.

Under the provisions of CPC, there are ample powers vested with the higher courts for curing all the defects of a lower court through an appeal. Using these powers, an appellate court can pass nearly any order which it considers necessary for meeting the “ends of justice”. These powers range from remand to modifying the original decree, ensuring that no harm is caused to any party to suit due to the act of lower court.

However, these powers are not to be exercised arbitrarily rather judiciously by following the limitations imposed upon them by the provisions of law itself.

REFERENCES

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[1] Anant Mills Co. Ltd. v. State of Gujrat, (1975) 2 SCC 175.

[2] Nagendra Nath Dubey v. Suresh Chandra Dey, (1931-32) 59 IA 283; James Joseph v. State of Kerala, (2010) 9 SCC 642.

[3] Sant Narain v. Rama Krishna Mission, (1974) 2 SCC 730 at p. 737.

[4] Per Khanna J. in Bechan Pandey v. Dulhin Janki Devi, (1976) 2 SCC 286 at p. 299.

[5] V.R. Subramanyam v. B. Thayappa, AIR 1966 SC 1034. 

[6] Mohd. Akbar Khan v. Motai, AIR 1948 PC 36.

[7] Sunder Singh v. Narain Singh, 1969 SCD 900. 

[8] Malayath Veetil Raman v. C. Krishnan Nambudripad, AIR 1922Mad 505 at p. 508 (FB).

[9] Mahendra Manilal Nanavati v. Sushila Mahendra Nanavati, AIR 1965 SC 364.

[10] Nain Singh v. Koonwarjee, (1970) 1 SCC 732.

[11] Vallabhbhai Kanjibhai Thakkar v. Taraben Kantilal Shah, 1995 SCC OnLine Guj 278.

[12] Shantilal v. Gujrat Electricity Board, (1971) 3 SCC 643; See also, CWT v. Alluminium Corpn. Ltd., (1973) 3 SCC 643.   

[13] Gogula Gurumurthy v. Kurimeti Ayyappa, (1975) 4 SCC 458.

[14] K.R. Mohan Reddy v. Net Work Inc., (2007) 14 SCC 257. 

[15] Mahavir Singh v. Naresh Chandra, (2001) 1 SCC 309.

[16] State of Madras v. P. Ranganathan, AIR 1975 Mad 292. 

[17] R. 27(2).

[18] Mahant Dhangir v. Madan Mohan, 1987 Supp SCC 528 at pp. 534-35.

[19] Rameshwar Prasad v. Shambehari Lal, AIR 1963 SC 1901.