FIRST APPEAL - Practice, Procedure & Powers of Appellate Court PPT.pptx

Civil Appeal
Practice
Procedure
Powers of Appellate Court
Circumstances to remand back
Order 41
Order 43
Section 96

1. CIVIL APPEALS – PRACTICE, PROCEDURE & POWERS OF APPELLATE COURT Presented by Advocate K. SRI BHARATHI

2. INTRODUCTION An appeal is a process by which a judgment/order of a subordinate Court is challenged before its superior court. The person filing or continuing an appeal is called the appellant and the concerned court is termed as the appellate Court. A party to a case does not have any inherent right to challenge the judgment/order of a Court before its Superior Court. An 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. The expression appeal has not been defined in the Code of Civil Procedure 1908. It is an application or petition to appeal to the higher Court for consideration of the decision of appeal to the lower court. It is a proceeding for review to be carried out by a higher authority of appeal decision given by a lower one. An appeal is a creature of statute and the right to appeal is neither an inherent nor natural right. Section 96 of the Civil Procedure Code gives the right to a litigant to appeal from an original decree. Section 100 gives him the right to appeal from an appellate decree in certain cases. Section 109 gives him the right to appeal to the Supreme Court in certain cases. Section 104 gives him the right to appeal from orders as distinguished from decrees.

3. The Civil Procedure Code 1908 provides for appeals under Sections 96 to 112 to be read with Orders 41 to 45 of the Code. First Appeals [Section 96-99A and Order 41] Second Appeals [Section 100-103, 107-108 and Order 43] Orders from which appeal lies [Section 104] Powers of Appellate Courts [Section 107] Appeal to the Supreme Court [Section 109,112 and Order 45]

4. SECTION 2 (2) "Decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. SECTION 2 (9) "Judgment" means the statement given by the Judge on the grounds of a decree or order.“ SECTION 2 (14) “Order” means the formal expression of any decision of a Civil Court which is not a decree

5. BASIS FOR COMPARISON                     DECREE                     ORDER PASS A decree is given in a suit started by the introduction of a plaint. On the other hand, an order is given in a suit started by the introduction of the plaint, application or appeal. DEALS WITH A decree is worried about the substantive legitimate rights of the challenging parties. The order considers the procedural privileges or rights of the parties concerned. DEFINED IN A decree is characterized under Section 2 (2) of the Code of Civil Procedure Act, 1908. An order is characterized under Section 2 (14) of the Act. ASCERTAINMENT OF RIGHTS In a decree, the rights of the plaint and litigant are unmistakably and clearly found out. In the order, it may or may not state the rights of plaint and litigant. NUMBER There is just one decree in a suit. There can be numerous orders in a suit. TYPES A decree is generally appealable, with the exception of when it is explicitly banned by law. An order can be both appealable and non-appealable.

6. Appeal maintainable Against a decree Against preliminary decree Against the final decree Rejection of plaint under Order 7 Rule 11 C.P.C. Determination of any question within Section 144 (restitution) The original decree passed ex-parte.

7. Appellate Court's Jurisdiction Under Section 96 CPC Involves Rehearing On Questions Of Law As Well As Fact: Manjula v. Shyamsundar , (2022) 3 SCC 90 "It is settled law that an appeal is a continuation of the original proceedings. The appellate court's jurisdiction involves a rehearing of appeal on questions of law as well as fact. The first appeal is a valuable right, and, at that stage, all questions of fact and law decided by the trial court are open for reconsideration. The judgment of the appellate court must, therefore, reflect a conscious application of mind and must record the court's findings, supported by reasons for its decision in respect of all the issues, along with the contentions put forth and pressed by the parties. Needless to say, the first appellate court is required to comply with the requirements of Order 41 Rule 31 CPC and non-observance of these requirements lead to infirmity in the judgment ". the court added.

8. Who Can File an Appeal? Any party to the original proceeding or his/her legal representatives. Any person claiming under such party or a transferee of interests of such party. Any person appointed by the court as the legal guardian of a minor. Any other aggrieved person after taking leave of the court.

9. Who Cannot? A party that has relinquished its right of appeal as per an agreement that is clear and unambiguous. A party which has availed the benefits under a decree Parties with a consent decree. Consent, in this case, could be a lawful agreement or compromise, or could even be presumed from the conduct of the parties. Parties, whose factum or compromise is in dispute or hasn’t been formulated. Parties involved in petty cases. No legal representatives are entitled to file an appeal against a deceased person.

10. Section 96-100 CPC - A Person Affected By A Judgment/Decree But Not A Party To Suit, Can Prefer Appeal With The Leave Of The Court: My Palace Mutually Aided Coop. Society v. B. Mahesh, 2022 SCC OnLine SC 1170 The sine qua non for filing an appeal by a third party is that he must have been affected by reason of the judgment and decree which is sought to be impugned , the bench of CJI NV Ramana, Justices Krishna Murari and Hima Kohli observed. "Sections 96 to 100 of CPC deals with the procedure for filing appeals from original decrees. A perusal of the above provision makes it clear that the provisions are silent about the category of persons who can prefer an appeal. But it is well settled legal position that a person who is affected by a judgment but is not a party to the suit, can prefer an appeal with the leave of the Court. The sine qua non for filing an appeal by a third party is that he must have been affected by reason of the judgment and decree which is sought to be impugned.. In the light of the above, it can be safely concluded any aggrieved party can prefer an appeal with the leave of the Court"

11. Strangers Cannot File Appeal Unless They Satisfy The Court That They Are 'Aggrieved Persons’: V.N.KRISHNA MURTHY vs. RAVIKUMAR, 2020 (9) SCC 501 Mere saying that the appellants are prejudicially affected by the decree is not sufficient . It has to be demonstrated that the decree affects the legal rights of the appellants and would have adverse effect when carried out. Facts of the case clearly demonstrate that suit which has been decreed is confined only to a declaration sought in respect of an agreement to sell. Injunction was also sought only against the defendant- society or its officers or assigns. There is not even a whisper in the entire plaint or in suit proceedings about the sale deed executed in favour of the appellants by the General Power of Attorney holders or even for that matter in the judgment and decree of the Trial Court.. The appellants have thus failed to demonstrate that they are prejudicially or adversely affected by the decree in question or any of their legal rights stands jeopardized so as to bring them within the ambit of the expression 'person aggrieved' entitling them to maintain appeal against the decree"

12. SECTION 96. Appeal from original decree .— ( 1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction the Court authorized to hear appeals from the decisions of such Court. (2) An appeal may lie from an original decree passed ex parte. (3) No appeal shall lie from a decree passed by the Court with the consent of the parties. (4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject matter of the original suit does not exceed ten thousand rupees.

13. Legality Of Order Setting Defendant Ex Parte Can Be Challenged In Appeal Even Without Filing Application Under Order IX Rule 13 CPC: G.N.R. Babu v. B.C. Muthappa , 2022 SCC OnLine SC 1158 “8.  This Court held that though after dismissal of an appeal under Section 96 of CPC against  ex parte  decree, application under Rule 13 of Order IX of CPC will not be maintainable , there is no bar on unsuccessful defendant adopting both the remedies simultaneously. In such a case, if the regular appeal against the decree is dismissed, obviously the application under Rule 13 of Order IX of CPC cannot proceed. The reason is that explanation to Rule 13 of Order IX of CPC lays down that where there has been an appeal against a decree passed  ex parte  and the appeal has been disposed of on any ground other than withdrawal, application for setting aside  ex parte  decree will not lie. However, in the event an application under Rule 13 of Order IX of CPC is dismissed, the defendant can prosecute the appeal against the decree as a right to prefer appeal under Section 96 cannot be taken away in absence of any express provision to the contrary in CPC. In paragraph 38 of the aforesaid decision, this Court held that when application under Rule 13 of Order IX of CPC filed by a defendant is dismissed, the defendant cannot be permitted to raise a contention as regards the correctness or otherwise of the order posting the suit for  ex parte  hearing and/or existence of a sufficient cause for non-appearance of the defendant.

14. 9.  In this case, the question is when the defendant did not avail the remedy under Rule 13 of Order IX of CPC, whether it is open for him to agitate in the regular appeal against the decree that the trial court had no justification for proceeding ex parte against the appellant. In such a case, though the appellant would not be entitled to lead evidence in appeal for making out a sufficient cause for his absence before the trial court, he can always argue on the basis of the record of the suit that either the suit summons was not served upon him or that even otherwise also, the trial court was not justified in proceeding ex parte against him. The reason is that under Section 105 of CPC when a decree is appealed from, any error, defect, or irregularity in any order affecting the decision of the case can be set forth as a ground of objection in the Memorandum of Appeal. Thus, in such a case, the appellant can always urge in an appeal against the decree that an interim or interlocutory order passed during the pendency of the suit affecting the decision of the case was illegal. Therefore, the appellant, while challenging the ex parte decree by filing an appeal, can always point out from the record of the trial court that the order passed to proceed with the suit ex parte against him was illegal. As held in the case of Bhanu Kumar Jain, only when the application made by a defendant under Rule 13 of Order IX of CPC is dismissed that such a defendant cannot agitate in the appeal against ex parte decree that the order directing that the suit shall proceed ex parte was illegal or incorrect. However, in this case, the appellant has not filed an application under Rule 13 of Order IX of CPC. Therefore, such a contention can be raised by him.”

15. A n appeal does not lie against mere "findings“: Deva Ram v. Ishwar Chand, (1995) 6 SCC 733 It is provided in  Section 96  of the C.P.C. that an appeal shall lie from every decree passed by any court exercising original jurisdiction to the court authorized to hear an appeal from the decision of such court. So also,  Section 100  also provides that an appeal shall lie to the High Court from every decree passed in appeal. Thus sine qua non in both the provisions is the “decree” and unless the decree is passed, an appeal would not lie under  Section 96  nor would it lie under  Section 100  of the Civil Procedure Code. Similarly, an appeal lies against an “order” under  Section 104  read with Order 43 Rule 1 of the Civil Procedure Code where the “orders” against which the appeal would lie have been enumerated. Unless there is an "order" as defined in  Section 2(14)  and unless that "order" falls within the list of "orders" indicated in Order 43, an appeal would not lie. Thus, an appeal does not lie against mere "findings" recorded by a court unless the findings amount to a "decree" or "order". Where a suit, is dismissed, the defendant against whom an adverse finding might have come to be recorded on some issue, has no right of appeal and he cannot question those findings before the appellate court. (See Ganga Bai v. Vijay Kumar, (1974) 2 SCC 393)

16. No Conditional Admission of an appeal under Section 96: Devi Theatre v. Vishwanath Raju, (2004) 7 SCC 337 The learned counsel for the appellant submits that appeal lies from every decree passed by any court exercising original jurisdiction. The jurisdiction of the Court in first appeal extends to examine the questions of facts as well as that of law. It is though true as pointed out by the learned counsel for the respondent that under  Order 41 Rule 11 CPC  it would be open for the court to dismiss the appeal in limine at the time of admission but even examining the matter from that point of view we find that the court while considering the question of admission of appeal filed under Section 96  CPC , may admit the appeal if considered fit for full hearing having prima facie merit. Otherwise,. if it finds that the appeal lacks merits it may be dismissed at the initial stage itself. But admission of the appeal, subject to condition of deposit of some given amount, is not envisaged in the provision as contained under  Section 96  read with  Order 41 Rule 11 CPC . The deposit of the money would obviously have no connection with the merits of the case, which alone would be basis for admitting or not admitting an appeal filed under  Section 96  CPC. Further, imposition of condition that failure to deposit the amount, would result in dismissal of the appeal compounds the infirmity in the order of conditional admission.

17. SECTION 97. Appeal from final decree where no appeal from the preliminary decree.— Where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.

18. SECTION 98. Decision where appeal heard by two or more Judges .—( 1) Where an appeal is heard by a Bench of two or more Judges, the appeal shall be decided in accordance with the opinion of such Judges or of the majority (if any) of such Judges. (2) Where there is no such majority that concurs in a judgment varying or reversing the decree appealed from, such decree shall be confirmed : Provided that where the Bench hearing the appeal is [composed of two or other even number of Judges belonging to a Court consisting of more Judges than those constituting the Bench] and the Judges composing the Bench differ in opinion on a point of law, they may state the point of law upon which they differ and the appeal shall then be heard upon that point only by one or more of the other Judges, and such point shall be decided according to the opinion of the majority (if any) of the Judges who have heard the appeal, including those who first heard it. (3) Nothing in this section shall be deemed to alter or otherwise affect any provision of the letters to patent of any High Court.

19. SECTION 99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction.— No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder [or non-joinder] of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court: [Provided that nothing in this section shall apply to non-joinder of a necessary party.]

20. SECTION 99A. No order under section 47 to be reversed or modified unless decision of the case is prejudicially affected.— Without prejudice to the generality of the provisions of section 99, no order under section 47 shall be reversed or substantially varied, on account of any error, defect or irregularity in any proceeding relating to such order, unless such error, defect, or irregularity has prejudicially affected the decision of the case.

21. APPEALS FROM ORDERS SECTION 104. Orders from which appeal lies .—( 1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:— (ff) an order under section 35A; ( ffa ) an order under section 91 or section 92 refusing leave to institute a suit of the nature referred to in section 91 or section 92, as the case may be; (g) an order under section 95; (h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree; ( i ) any order made under rules from which an appeal is expressly allowed by rules: [Provided that no appeal shall lie against any order specified in clause (ff) save on the ground that no order, or an order for the payment of a less amount, ought to have been made.] (2) No appeal shall lie from any order passed in appeal under this section.

22. 105. Other orders.—( 1) Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but where a decree is appealed from, any error, defect, or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal. (2) Notwithstanding anything contained in sub-section (1), where any party aggrieved by an order of remand from which an appeals lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness. 106. What Courts to hear appeals.— Where an appeal from any order is allowed it shall lie to the Court to which an appeal would lie from the decree in the suit in which such order was made, or where such order is made by a Court (not being a High Court) in the exercise of appellate jurisdiction, then to the High Court

23. 107. Powers of Appellate Court.— (1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power— (a) to determine a case finally; (b) to remand a case; (c) to frame issues and refer them for trial; (d) to take additional evidence or to require such evidence to be taken. (2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein

24. Grant of Interim Orders Attachment before Judgment – Order 38 Rule 5 Injunctions – Order 39 Rule 1 & 2 Appointment of Receivers – Order 40

25. Appellate Court to take note of Subsequent Events: DDA v. Joginder S. Monga, (2004) 2 SCC 297 The appellant being a State, it was required to act fairly and reasonably in all circumstances even in the matter of eviction of a tenant. [See M/s  Dwarkadas Marfatia and Sons vs. Board of Trustees of the Port of Bombay , AIR 1989 SC 1462]. But the respondents herein are victims of situation. Stricto sensu they cannot take advantage of the order passed by the High Court. The High Court gave them opportunities to get their deed registered. They could have refused to do so and in that event like Rajeev Gupta they were not required to deposit the amount. The parties did not contemplate that the Central Government would come out with another policy decision, which would be more beneficial to the sub-lessee. A fortuitous circumstance like the issuance of the said circular dated 28.6.1999 was not in contemplation. The appellant, therefore, cannot, keeping in view the prospective effect given to the said circular, take any benefit thereof. Furthermore, they have not filed any application to amend their writ petition. They merely have urged additional grounds. It is no doubt true that this Court can take into consideration subsequent events and mould relief accordingly but thereby it cannot substitute a new relief based on a fresh cause of action. We are, therefore, of the opinion that the interim order passed by the High Court does not come to the aid of the respondents.

26. 108. Procedure in appeals from appellate decrees and orders.— The provisions of this Part relating to appeals from original decrees shall, so far as may be, apply to appeals— (a) from appellate decrees, and (b) from orders made under this Code or under any special or local law in which a different procedure is not provided.

27. Procedure for Appeal from Original Decrees (Order XLI): The appeal shall be filed in the form prescribed, signed by the appellant, along with a true certified copy of the order.  The appeal shall contain the grounds of objection under distinct heads, and such grounds shall be numbered consecutively. If the appeal is against a decree for payment of money, the court may require the appellant to deposit the disputed amount or furnish any other security. A ground/objection that has not been mentioned in the appeal, cannot be taken up for arguments, without the permission of the court.  Similarly any point of act which was not taken up by the Appellant, in lower court, cannot be taken up in appeal and it lies only against those points which have been decided by the court rightly or wrongly.

28. Memorandum of Appeal (Order XLI, Rule 1): An appeal must be supported with a memorandum of appeal, which is a document comprising the grounds of appeal. The constituents of a valid memorandum of appeal include: The grounds for filing an appeal. Signature of the appellant or his/her pleader. The attachment of the certified copy of the original judgment. The remittance of the decretal amount or security (in case of a money decree). The appellant, with respect to this provision, is not entitled to take any grounds or objection except the ones mentioned in the memorandum. However, the court may accept such objections on its own accord, provided the opposite party is provided with adequate opportunities to contest such grounds. The memorandum of appeal must contain the grounds of objections to the decree appealed from, concisely, under distinct heads, without any arguments or narrative, and should be numbered consecutively. The court has the right to reject or amend any memorandum which it finds to be inappropriate. The court shall record the reasons for such rejection.

29. ORDER XLI APPEALS FROM ORIGINAL DECREES 1. Form of appeal What to accompany memorandum— (1) Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints on this behalf. The memorandum shall be accompanied by a copy of the Judgment. Provided that where two or more suits have been tried together and a common judgment has been delivered therefor and two or more appeals are filed against any decree covered by that judgment, whether by the same appellant or by different appellants, the Appellate Court may dispense with the filing of more than one copy of the judgment. (2) Contents of memorandum .—The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative; and such grounds shall be numbered consecutively. [(3) Where the appeal is against a decree for payment of money, the appellant shall, within such time as the Appellate Court may allow, deposit the amount disputed in the appeal or furnish such security in respect thereof as the Court may think fit.]

30. RULE 2. Grounds which may be taken in appeal.— The appellant shall not, except by leave of the Court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal; but the Appellate Court, in deciding the appeal, shall not be confined to the grounds of objections set forth in the memorandum of appeal or taken by leave of the Court under this rule: Provided that the Court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that ground.

31. RULE 3. Rejection or amendment of memorandum.— (1) Where the memorandum of appeal is not drawn up in the manner hereinbefore prescribed, it may be rejected, or be returned to the appellant for the purpose of being amended within a time to be fixed by the Court or be amended then and there. (2) Where the Court rejects any memorandum, it shall record the reasons for such rejection. (3) Where a memorandum of appeal is amended, the judge, or such officer as he appoints on this behalf, shall sign or initial the amendment.

32. RULE 3A. Application for condonation of delay.— (1) When an appeal is presented after the expiry of the period of limitation specified therefore, it shall be accompanied by an application supported by an affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period. (2) If the Court sees no reason to reject the application without the issue of a notice to the respondent, notice hereof shall be issued to the respondent and the matter shall be finally decided by the Court before it proceeds to deal with the appeal under rule 11 or rule 13, as the case may be. (3) Where an application has been made under sub-rule (1), the Court shall not make an order fact the stay of execution of the decree against which the appeal is proposed to be filed so long as the Court does not, after hearing under rule 11, decide to hear the appeal

33. RULE 4. One of several plaintiffs or defendants may obtain reversal of the whole decree where it proceeds on ground common to all.— Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favor of all the plaintiffs or defendants, as the case may be.

34. RULE 5. Stay by Appellate Court.— An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of such decree. 1 Explanation.—An order by the Appellate Court for the stay of execution of the decree shall be effective from the date of the communication of such order to the Court of first instance, but an affidavit sworn by the appellant, based on his personal knowledge, stating that an order for the stay of execution of the decree has been made by the Appellate Court shall, pending the receipt from the Appellate Court of the order for the stay of execution or any order to the contrary, be acted upon by the Court of first instance.

35. (2) Stay by Court which passed the decree.— Where an application is made for a stay of execution of an appealable decree before the expiration of the time allowed for appealing therefrom, the Court which passed the decree may on sufficient cause being shown order the execution to be stayed. (3) No order for stay of execution shall be made under sub-rule (1) or sub-rule (2) unless the Court making it is satisfied— (a) that substantial loss may result to the party applying for stay of execution unless the order is made; (b) that the application has been made without unreasonable delay; and (c) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him. (4) Subject to the provision of sub-rule (3), the Court may make an ex parte order for stay of execution pending the hearing of the application. (5) Notwithstanding anything contained in the foregoing sub-rules, where the appellant fails to make the deposit or furnish the security specified in sub-rule (3) of rule 1, the Court shall not make an order staying the execution of the decree.

36. Mere Filing Of Appeal Would Not Operate As A Stay Of Decree SANJIV KUMAR SINGH Vs. THE STATE OF BIHAR & ORS, 2023 LiveLaw (SC) 63 Order 41 Rule 5 - Unless the appeal is listed and there is an interim order, the mere filing of the appeal would not operate as a stay.

37. RULE 6. Security in case of order for execution of decree appealed from.— (1) Where an order is made for the execution of a decree from which an appeal is pending, the Court which passed the decree shall, on sufficient cause being shown by the appellant, require security to be taken for the restitution of any property which may be or has been taken in execution of the decree or for the payment of the value of such property and for the due performance of the decree or order of the Appellate Court, or the Appellate Court may for like cause direct the Court which passed the decree to take such security. (2) Where an order has been made for the sale of immovable property in execution of a decree, and an appeal is pending from such decree, the sale shall, on the application of the judgment-debtor to the Court which made the order, be stayed on such terms as to giving security or otherwise as the Court thinks fit until the appeal is disposed of

38. RULE 8. Exercise of power in appeal from order made in execution of decree.— The powers conferred by rules 5 and 6 shall be exercisable where an appeal may be or has been preferred not from the decree but from an order made in execution of such decree.

39. Procedure on admission of appeal RULE 9. Registry of memorandum of appeal RULE 10. Appellate Court may require appellant to furnish security for costs RULE 11. Power to dismiss appeal without sending notice to Lower Court RULE 11A. Time within which hearing under rule 11 should be concluded RULE 12. Day for hearing appeal. RULE 14. Publication and service of notice of day for hearing appeal

40. Procedure on hearing 16. Right to begin.— (1) On the day fixed, or on any other day to which the hearing may be adjourned, the appellant shall be heard in support of the appeal. (2) The Court shall then, if it does not dismiss the appeal at once, hear the respondent against the appeal, and in such case, the appellant shall be entitled to reply. 17. Dismissal of appeal for appellants’ default .—(1) Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed. Explanation.—Nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits. (2) Hearing appeal ex parte.—Where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte.

41. Prabodh Choudhury Das v. Mahamaya Das, (2020) 18 SCC 701; 2020 (1) CTC 237 “8. Explanation to sub­rule (1) of Rule 17 was added by Act 104 of 1976. Prior to 1976 conflicting views were expressed by different High Courts in the country as to the purport and meaning of sub­ rule (1) of Rule 17 of  Order 41 of CPC . Therefore, the explanation was introduced w.e.f 01.02.1977 , to clarify the law by making an express provision that where the appellant does not appear, the Court has no power to dismiss the appeal on merits. Thus, Order 41 Rule 17(1) read with its explanation makes it explicit that the Court cannot dismiss the appeal on merits where the appellant remains absent on the date fixed for hearing. In other words, if the appellant does not appear, the Court may if it deems fit dismiss the appeal for default of appearance but it does not have the power to dismiss the appeal on merits.”  

42. Appeal Can't Be Dismissed On Merits If Appellant Fails To Appear; To Be Dismissed For Non-Prosecution: BENNY DSOUZA vs. MELWIN DSOUZA, 2023 LiveLaw (SC) 1032 The Supreme Court stated that if the appellant does not appear when the appeal is called for a hearing, then the same can be dismissed for non-prosecution and not on merits. These findings were in the context of an explanation provided in  Order XLI Rule 17 of the Civil Procedure Code, 1908 . This order entitles the Court to dismiss an appeal if, on the day fixed for hearing, the appellant does not appear. Its explanation reads as follows: “ Explanation. - Nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits .” The Bench of Justices  BV Nagarathna and Justice Ujjal Bhuyan , interpreting the same, opined: “ The Explanation categorically states that if the appellant does not appear when the appeal is called for hearing, it can only be dismissed for non-prosecution and not on merits .”

43. RULE 19. Re-admission of appeal dismissed for default RULE 20. Power to adjourn hearing and direct persons appearing interested to be made respondents RULE 21. Re-hearing on application of respondent against whom ex parte decree made Where an appeal is heard ex parte and judgment is pronounced against the respondent, he may apply to the Appellate Court to re-hear the appeal; and, if he satisfies the Court that the notice was not duly served or that he was prevented by sufficient cause from appearing when the appeal was called on for hearing, the Court shall re-hear the appeal on such terms as to costs or otherwise as it thinks fit to impose upon him

44. Cross Objection (Section 41 and Order 41 Rule 22): Cross objection is like an appeal. It has all the trappings of an appeal. It is filed in the form of a memorandum and the provisions of Rule 1 of Order 41 of the Code, so far as these relate to the form and contents of the memorandum of appeal apply to cross-objection as well. Court fee is payable on cross-objection like that on the memorandum of appeal. Provisions relating to appeals by indigent persons also apply to cross-objection. Even where the appeal is withdrawn or is dismissed for default, cross-objection may nevertheless be heard and determined. Respondent even though he has not appealed may support the decree on any other ground but if wants to modify it, he has to file a cross-objection to the decree which objections he could have taken earlier by filing an appeal. Time for filing objection which is in the nature of appeal is extended by one month after service of notice on him of the day fixed for hearing the appeal. This time could also be extended by the court like in appeal. Cross-objection is nothing but an appeal, a cross-appeal at that. It may be that the respondent wanted to give quietus to the whole litigation by his accepting the judgment and decree or order even if it was partly against his interest. When, however, the other party challenged the same by filing an appeal statute gave the respondent a second chance to file an appeal by way of cross-objection if he still felt aggrieved by the judgment and decree or order.

45. RULE 22. Upon hearing respondent may object to decree as if he had preferred separate appeal.— ( 1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree [but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour ; and may also take any cross-objection] to the decree which he could have taken by way of appeal provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow. Explanation. —A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent

46. (2) Form of objection and provisions applicable thereto.— Such cross-objection shall be in the form of a memorandum, and the provisions of rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto. (3) **** (4) Where, in any case in which any respondent has under this rule filed a memorandum of the objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit. (5) The provisions relating to appeals by indigent persons shall, so far as they can be made applicable, apply to an objection under this rule.

47. Cross Objections Have All Trappings Of Regular Appeal ; Must Be Considered In Full: Dheeraj Singh v. Greater Noida Industrial Development Authority, 2023 SCC OnLine SC 768 “In cases where the opposing party files a first appeal against part or whole of the original decree, and the respondent in the said first appeal, due to part or whole of the decree being in their favour , abstains from filing an appeal at the first instance, in such cases, to ensure that the respondent is also given a fair chance to be heard, he is given the right to file his cross objections within the appeal already so instituted by the other party, against not only the contentions raised by the other party, but also against part or whole of the decree passed by the court of first instance. In a similar circumstance, where the other party in the first instance has preferred an appeal, apart from the remedy of cross objections, the respondent can also file a cross appeal within the limitation period so prescribed, which in essence is a separate appeal in itself, challenging part or whole of the original decree, independent of the appeal filed by the other party. The respondent also has the right to fully support the original decree passed by the lower court in full. While cross objections, unlike a regular appeal, are filed within an already existing appeal, however, as per Order 41 Rule 22 of the CPC, cross objections have all the trappings of a regular appeal, and therefore, must be considered in full by the court adjudicating upon the same .”

48. Saurav Jain v. A.B.P. Design, 2021 SCC OnLine SC 552 Order XLI Rule 22 CPC was amended by the CPC Amendment (Act 104 of 1976), with effect from 1 February 1977. The effect of the amendment was considered in Banarsi & Ors. v. Ram Phal , 2003 (9) SCC 606 where this Court held that after the 1976 amendment, the respondent could file cross-objections against the ‘findings’ of the lower court, while previously cross-objections could only be filed when the decree of the lower court was partly against the respondent. Justice R.C Lahoti (as the learned Chief Justice then was), speaking for the two-judge bench observed: “10-. […] There may be three situations: ( i ) The impugned decree is partly in favor of the appellant and partly in favor of the respondent. (ii) The decree is entirely in favour of the respondent though an issue has been decided against the respondent. (iii) The decree is entirely in favor of the respondent and all the issues have also been answered in favor of the respondent but there is a finding in the judgment which goes against the respondent.

49. 11. In the type of case ( i ) it was necessary for the respondent to file an appeal or take cross-objection against that part of the decree which is against him if he seeks to get rid of the same though that part of the decree which is in his favor he is entitled to support without taking any cross-objection. The law remains so post-amendment too. In the types of cases (ii) and (iii) preamendment CPC did not entitle nor permit the respondent to take any cross-objection as he was not the person aggrieved by the decree. Under the amended CPC, read in the light of the explanation, though it is still not necessary for the respondent to take any cross-objection laying challenge to any finding adverse to him as the decree is entirely in his favor and he may support the decree without cross objection; the amendment made in the text of sub-rule (1), read with the explanation newly inserted, gives him a right to take cross-objection to a finding recorded against him either while answering an issue or while dealing with an issue. The advantage of preferring such cross-objection is spelled out by subrule (4). In spite of the original appeal having been withdrawn or dismissed for default the cross-objection taken to any finding by the respondent shall still be available to be adjudicated upon on merits which remedy was not available to the respondent under the unamended CPC. In the pre-amendment era, the withdrawal or dismissal for default of the original appeal disabled the respondent to question the correctness or otherwise of any finding recorded against the respondent.”

50. It is apparent from the amended provisions of Order XLI Rule 22 CPC and the above authorities that there are two changes that were brought by the 1976 amendment. First, the scope of filing a cross-objection was enhanced substantively to include objections against the ‘findings’ of the lower court; second, different forms of raising cross-objections were recognized. The amendment sought to introduce different forms of cross-objection for assailing the findings and decrees since the amendment separates the phrase “but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favor” from “may also take any cross-objection to the decree” with a semicolon. Therefore, the two parts of the sentence must be read disjunctively. Only when a part of the decree has been assailed by the respondent, should a memorandum of cross-objection be filed. Otherwise, it is sufficient to raise a challenge to an adverse finding of the court of first instance before the appellate court without a cross objection.

51. C ross objection is the exercise of right of appeal: Banarsi v. Ram Phal, (2003) 9 SCC 606 Any respondent though he may not have filed an appeal from any part of the decree may still support the decree to the extent to which it is already in his favour by laying challenge to a finding recorded in the impugned judgment against him. Where a plaintiff seeks a decree against the defendant on grounds (A) and (B), any one of the two grounds being enough to entitle the plaintiff to a decree and the Court has passed a decree on ground (A) deciding it for the plaintiff while ground (B) has been decided against the plaintiff, in an appeal preferred by the defendant, in spite of the finding on ground (A) being reversed the plaintiff as a respondent can still seek to support the decree by challenging finding on ground (B) and persuade the appellate court to form an opinion that in spite of the finding on ground (A) being reversed to the benefit of defendant-appellant the decree could still be sustained by reversing the finding on ground (B) though the plaintiff-respondent has neither preferred an appeal of his own nor taken any cross objection. A right to file cross objection is the exercise of right to appeal though in a different form.

52. It was observed in  Sahadu Gangaram Bhagade v. Special Deputy Collector . Ahmednagar and Anr., [1971] 1 SCR 146 that the right given to a respondent in an appeal to file cross objection is a right given to the same extent as is a right of appeal to lay challenge to the impugned decree if he can be said to be aggrieved thereby. Taking any cross objection is the exercise of right of appeal and takes the place of cross-appeal though the form differs. Thus it is clear that just as an appeal is preferred by a person aggrieved by the decree so also a cross objection is preferred by one who can be said to be aggrieved by the decree. A party who has fully succeeded in the suit can and needs to neither prefer an appeal nor take any cross objection though certain finding may be against him. Appeal and cross-objection - both are filed against decree and not against judgment and certainly not against any finding recorded in a judgment. This was well-settled position of law under the unamended  CPC .

53. RULE 23. Remand of case by Appellate Court.— Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, which directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.

54. RULE 23A. Remand in other cases .— Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23. RULE 24. Where evidence on record sufficient Appellate Court may determine case finally.— Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgement, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds.

55. Appellate Court Can't Remand Suit For De Novo Trial Merely Because A Particular Evidence Has Not Been Adduced: Sirajudheen v. Zeenath , 2023 SCC OnLine SC 196 The Supreme Court held that High Courts ought not to remand a matter for trial  de novo  without recording any explanation as to on what ground the decree was being reversed by it. The Court further observed that a de novo trial cannot be ordered merely because a particular evidence has not been adduced. If one party has not produced evidence, then adverse inference can be drawn against them, but that is not a ground to remand the matter for a fresh trial. "...merely because a particular evidence which ought to have been adduced but had not been adduced, the Appellate Court cannot adopt the soft course of remanding the matter" A Bench comprising  Justice Dinesh Maheshwari and Justice Sudhanshu Dhulia  set aside an order of Kerala High Court, whereby it had remanded a matter for trial  de novo  without adverting to the findings of the Trial Court and without specifying how the findings recorded by the Trial Court was unjustified. Necessary requirement for remand under Rule 23A is that the decree is reversed in appeal and a re-trial is considered necessary - the reversal has to be based on cogent reasons and for that matter, adverting to and dealing with the reasons that had prevailed with the Trial Court remains a sine qua non

56. Remand Order Prolongs & Delays Litigation: Supreme Court Explains Scope Of Appellate Court's Power To Remand: Arvind Kumar Jaiswal v. Devendra Prasad Jaiswal Varun, 2023 SCC OnLine SC 146 An order of remand prolongs and delays the litigation and hence, should not be passed unless the appellate court finds that a re-trial is required, or the evidence on record is not sufficient to dispose of the matter for reasons like lack of adequate opportunity of leading evidence to a party, where there had been no real trial of the dispute or there is no complete or effectual adjudication of the proceedings, and the party complaining has suffered material prejudice on that account. Where evidence has already been adduced and a decision can be rendered on appreciation of such evidence, an order of remand should not be passed remitting the matter to the lower court, even if the lower court has omitted to frame the issue(s) and/or has failed to determine any question of fact, which, in the opinion of the appellate court, is essential. The first appellate court, if required, can also direct the trial court to record evidence and findings on a particular aspect/issue in terms of Rule 25 to Order XLI, which then can be taken on record for deciding the case by the appellate court.

57. Shivakumar v. Sharanabasappa , (2021) 11 SCC 277; 2020 (4) CTC 321 WHETHER REMAND WAS CALLED FOR “25.2. Rule 23A came to be inserted in  Order XLI CPC  by way  of the Code of Civil Procedure  (Amendment) Act, 1976. Prior to this amendment, it was generally accepted by the Courts that although under Rule 23, an order of remand could be made only on reversal of a decree disposing of suit on a preliminary point, the Appellate Court has the inherent power of remanding a case where it was considered necessary to do so in the interest of justice. Some of the High Courts had made similar provisions by way of their respective amendments. Insertion of Rule 23A in Order XLI by the  Amending Act  of 1976 makes it explicit that even when the suit has been disposed of otherwise than on a preliminary point and the decree is reversed in appeal, the Appellate Court shall have the power of remand, if a re-trial is considered necessary. "25.3. A comprehension of the scheme of the provisions for remand as contained in Rules 23 and 23A of Order XLI is not complete without reference to the provision contained in Rule 24 of Order XLI that enables the Appellate Court to dispose of a case finally without a remand if the evidence on record is sufficient; notwithstanding that the Appellate Court proceeds on a ground entirely different from that on which the Trial Court had proceeded.”

58. “25.4. A conjoint reading of Rules 23, 23A, and 24 of Order XLI brings forth the scope as also contours of the powers of remand that when the available evidence is sufficient to dispose of the matter, the proper course for an Appellate Court is to follow the mandate of Rule 24 of  Order XLI CPC  and to determine the suit finally. It is only in such cases where the decree in the challenge is reversed in appeal and a re-trial is considered necessary that the Appellate Court shall adopt the course of remanding the case. It remains trite that an order of remand is not to be passed in a routine manner because an unwarranted order of remand merely elongates the life of the litigation without serving the cause of justice. An order of remand only on the ground that the points touching the appreciation of evidence were not dealt with by the Trial Court may not be considered proper in a given case because the First Appellate Court itself is possessed of jurisdiction to enter into facts and appreciate the evidence. There could, of course, be several eventualities that may justify an order of remand or where remand would be rather necessary depending on the facts and the given set of circumstances of a case.”

59. Shivashankara v. H.P. Vedavyasa Char,  2023 LiveLaw (SC) 26 1 , 2023 SCC OnLine SC 358 There can be no doubt with respect to the settled position that the Court to which the case is remanded has to comply with the order of remand and acting contrary to the order of remand is contrary to law. In other words, an order of remand has to be followed in its true spirit. (Para 7)

60. RULE 25. Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from.— Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor within such time as may be fixed by the Appellate Court or extended by it from time to time. RULE 26. Findings and evidence to be put on record. Objections to findings .—(1) Such evidence and findings shall form part of the record in the suit; and either party may, within a time to be fixed by the Appellate Court, present a memorandum of objections to any finding. (2) Determination of appeal.—After the expiration of the period so fixed for presenting such memorandum the Appellate Court shall proceed to determine the appeal. 1 RULE 26A. Order of remand to mention date of next hearing.

61. RULE 27. Production of additional evidence in Appellate Court.— (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if — (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or 1 (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission. RULE 28. Mode of taking additional evidence RULE 29. Points to be defined and recorded

62. Corporation of Madras and another Vs. M.Parthasarathy and others, 2018 (9) SCC 445;  2018 (8) MLJ 208 (SC) “15) First, it took into consideration the additional piece of evidence while deciding the appeals on merits without affording any opportunity to the appellants herein (who were respondents in the first appeals) to file any rebuttal evidence to counter the additional evidence adduced by the respondents (appellants before the first Appellate Court). This caused prejudice to the appellants herein because they suffered the adverse order from the Appellate Court on the basis of additional evidence adduced by the respondents for the first time in an appeal against them. 16) The second error was of a procedure in which the first Appellate Court failed to resort to disposing of the appeals. This also involved a question of jurisdiction.

63. 17) Having allowed the CMP No.1559/1993 and, in our opinion rightly, the first Appellate Court had two options, first it could have either set aside the entire judgment/decree of the Trial Court by taking recourse to the provisions of Order 41 Rule 23A of the Code and remanded the case to the Trial Court for retrial in the suits so as to enable the parties to adduce oral evidence to prove the additional evidence in accordance with law or second, it had the option to invoke powers under Order 41 Rule 25 of the Code by retaining the appeals to itself and remitting the case to the Trial Court for limited trial on particular issues arising in the case in the light of additional evidence which was taken on record and invite findings of the Trial Court on such limited issues to enable the first Appellate Court to decide the appeals on merits. 18) The first Appellate Court failed to take note of both the above-mentioned provisions and proceeded to allow it wrongly. 21) In the light of the foregoing discussion and having regard to the totality of the facts of the case and to enable the parties to have full and fair trial, we consider it proper to take recourse to the powers under Order 41 Rule 23A of the Code and accordingly set aside the judgment and decree of the first Appellate Court to the extent it allows the respondents’ appeals on merit but at the same time uphold that part of the order which has allowed CMP No.1559/1993 filed by the plaintiffs for adducing additional evidence and remand the cases to the Trial Court for retrial of all the four civil suits on merits afresh.”

64. A.N.S. Murugan v. M. Sivananda Mudaliar , 2020 SCC OnLine Mad 8415; 2020 (5) CTC 194, followed M.Parthasarathy (Supra ) “13. This Court is in agreement with the appellant. As pointed out by the Learned Counsel for the appellant, the 1st Appellate Court has committed a grave error by admitting the additional document without proof . The Lower Appellate Court has failed to follow the procedure contemplated under  Order 41 Rule 28 of C.P.C . while admitting the additional evidence. 14. In this case, the 1st Appellate Court has failed to give the opportunity to the appellant herein to contest the admissibility and relevancy of the document produced as additional evidence.  15. In this case also the 1st Appellate Court has failed to follow the mandate contemplated under  Order 41 Rule 28 C.P.C . Further had relied heavily upon the additional document to base his findings. Therefore, the judgment and decree of the Lower Appellate Court which is impugned in the Second Appeal is liable to be set aside. Accordingly, the Second Appeal is Allowed. The judgment and decree passed by the trial Court in A.S.No.13 of 2006 is set aside. The matter is remanded back to the 1st Appellate Court to rehear the appeal afresh along with I.A., filed for receiving additional documents. If the Lower Appellate Court is of the opinion that there is a reasonable ground to receive the additional evidence, the Learned Judge shall follow the mode of taking additional evidence and act in accordance with the law”

65. True Test Is Whether Appellate Court Can Pronounce Judgment Without Considering Additional Evidence Sought To Be Adduced: Sanjay Kumar Singh v. State of Jharkhand, (2022) 7 SCC 247 The court observed that an application seeking to adduce additional evidence can be allowed where (1) the additional evidence sought to be adduced removes the cloud of doubt over the case and (2) the evidence has a direct and (3) important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record.

66. "Admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial caus e", the bench comprising Justices MR Shah and BV Nagarathna observed.

67. The true test, therefore is, whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced. (Para 4) Summary : High Court dismissed an application for additional evidence filed by the appellant to bring on record certain sale deeds and certified copy of the judgments and awards passed in other land acquisition cases, which he con -tended, were relevant for the purpose of determining the fair market value -Allowed - It was a case of awarding of fair compensation to the land owner whose land has been acquired for public purpose - There was no other material available on record to arrive at a fair market value of the acquired land. Therefore, in the facts and circumstances of the case, the High Court ought to have allowed the application for additional evidence.

68. In  Gopal Krushna Panda v. Utkal Grameen Bank, 2019 SCC OnLine Ori 34 , the issue of whether the appellate court can take into account the application filed under Order 41 Rule 27 CPC for admitting additional evidence before hearing the appeal was taken into consideration. The Court cited an earlier ruling in  Sankar Pradhan v. Premananda Pradhan (dead) and Others, (2015) , in which it was stated that under clause (1)(b) of Rule 27, additional evidence can only be admitted where the appellate court “requires” it (i.e., finds it necessary).  The court noted that the application for additional evidence can be taken into consideration at the time of the hearing on the appeal. The court must make the request, regardless of whether it is necessary for the court to be able to issue a judgment or for any other substantial cause.  Wherever the Court follows this procedure, Rule 27(2) requires it to record its reasonings.

69. Saradhammal v. Sankaralingam , 2020 SCC OnLine Mad 5460; 2021 (1) CTC 830 “18 (b). The Trial Court has admitted Ex-B.6 as an additional document after hearing both sides. It has given cogent reasons for admitting it in evidence. Ex.B.6 is the suit register extract of the previous proceedings in respect of the suit property. Being a record of the Court, even without marking it, the Court is empowered to call for the Court records and take judicial notice of the content. There is no procedural error or illegality found in marking the additional document in the appeal exercising the power under Order 41 Rule 27 of C.P.C.”

70. Judgment in appeal RULE 30. Judgment when and where pronounced RULE 31. Contents, date and signature of judgment.— The judgment of the Appellate Court shall be in writing and shall state— (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled, and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein RULE 32. What judgment may direct

71. VIMALA VS. GNANESWARAN & ORS, 2020 (5) CTC 549 “19. In Sathosh Hazari Vs. Purushotham Tiwari (deceased) by LRs 2001 3 SCC 179, the Hon'ble Supreme Court in Paragraph No.15 has held as follows: '' The appellate Court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of 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 . ............... While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding . This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it.''

72. “ 20. The said principles are reiterated in Madhukar and Others Vs. Sangram and Others (2001) 4 SCC 756 and also in Laliteshwar Prasad Singh and Other Vs.S.P.Srivastava (dead) through Legal Representatives (2017) 2 SCC 415. 21. From the aforesaid decisions, it is clear that the Court of First Appeal must record its finding only after dealing with all issues of law as well as the facts and with the evidence, oral as well as documentary, led by parties. It is also clear that the First Appellate Court must give reasons in respect of its findings , but in this case, as stated above, the First Appellate Court failed to consider the evidence on record and therefore, the Judgment and Decree of the First Appellate Court are set aside and the matter is remitted back to the First Appellate Court for fresh consideration, on the line of the aforesaid decisions of the Hon'ble Supreme Court. Accordingly, these substantial questions of law are answered.”

73. RULE 33. Power of Court of Appeal.— The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection [and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees]: [Provided that the Appellate Court shall not make any order under section 35A in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.] Illustration A claims a sum of money as due to him from X or Y, and in a suit against both obtains a decree against X. X, appeals and A and Y are respondents. The Appellate Court decides in favour of X. It has power to pass a decree against Y. RULE 34. Dissent to be recorded

74. Decree in appeal RULE 35. Date and contents of decree Judge dissenting from judgment need not sign decree.— Provided that where there are more Judges than one and there is a difference of opinion among them, it shall not be necessary for any Judge dissenting from the judgment of the Court to sign the decree. RULE 36. Copies of judgment and decree to be furnished to parties .—Certified copies of the judgment and decree in appeal shall be furnished to the parties on application to the Appellate Court and at their expense. RULE 37. Certified copy of decree to be sent to Court whose decree appealed from

75. Appeals from Orders (Order XLIII) and Sec 104 to 108: Order has been defined as “the formal expression of any decision of a civil court which is not a decree” Thus an adjudication of a court which does not fall within the decree, is an order. An appeal can be filed only against those orders which are made appealable. Appeals from orders could be placed with respect to the following pronouncements on the grounds of any defect or irregularity in law: Any orders under Section 35A of the Code allowing special costs, and orders under Section 91 or 92 refusing leave to institute a suit of the kind referred to in Section 91 or Section 92. Any orders under Section 95, which involve the compensation for obtaining attachment or injunction on insufficient grounds. Orders under the code which deal with the imposition of fine, direction of detention, or arrest of any person except in execution of a decree. Appealable orders as prescribed under Order 43, Rule 1. However, appeals cannot be filed based on any order enlisted in clause (a) and from any order passed in appeal under Section 100.

76. APPEALS FROM ORDERS 1. Appeal from orders.— An appeal shall lie from the following orders under the provisions of section 104, namely: — (a) an order under rule 10 of Order VII returning a plaint to be presented to the proper Court [except where the procedure specified in rule 10A of Order VII has been followed]; * * * * * (c) an order under rule 9 of order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit; (d) an order under rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte; * * * * * (f) an order under rule 21 of Order XI; * * * * * ( i )an order under rule 34 of Order XXI on an objection to the draft of a document or of an endorsement; (j) an order under rule 72 or rule 92 of Order XXI setting aside or refusing to set aside a sale;

77. [ja) an order rejecting an application made under sub-rule (1) of rule 106 of Order XXI, provided that an order on the original application, that is to say, the application referred to in sub-rule (1) of rule 105 of that Order is appealable;] (k) an order under rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit; (l) an order under rule 10 of Order XXII giving or refusing to give leave; 2* * * * * (n) an order under rule 2 of Order XXV rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit; [( na ) an order under rule 5 or rule 7 of Order XXXIII rejecting an application for permission to sue as an indigent person;]

78. (p) orders in interpleader-suits under rule 3, rule 4 or rule 6 of Order XXXV; (q) an order under rule 2, rule 3 or rule 6 of order (XXVIII); (r) an order under rule 1, rule 2 1 [rule 2A], rule 4 or rule 10 of Order XXXIX; (s) an order under rule 1, or rule 4 of Order XL; (t) an order of refusal under rule 19 of Order XLI to re-admit, or under rule 21 of Order XLI to re-hear, an appeal; (u) an order under rule 23 1 [or rule 23A] of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court; 2* * * * * (w) an order under rule 4 of Order XLVII granting an application for review

79. Revision Petition Under S.115 CPC Not Maintainable Against Refusal To Set Aside Ex-Parte Decree Under Order IX Rule 13: Koushik Mutually Aided Coop. Housing Society v. Ameena Begum, 2023 SCC OnLine SC 1662 The Supreme Court recently held that a Civil Revision Petition under Section 115 of the Code of Civil Procedure, 1908 (CPC) is not maintainable against the dismissal of an application filed under Order IX Rule 13 of the CPC to set aside an ex-parte decree “ When there is an express provision available under the CPC or any statute under which an appeal is maintainable, by-passing the same, a Revision Petition cannot be filed. It is needless to observe that in the absence of an appellate remedy, a revision may be maintainable”  the bench of  Justice BV Nagarathna  and  Justice Ujjal Bhuyan   stated.

80. Ramachandran v. Balakrishnan, 2020 SCC OnLine Mad 28040; 2020 (6) CTC 843 “13.  There seems to be a total flaw in the procedure adopted by the Courts below. Unfortunately, the learned Trial Judge viz., The II nd  Additional Sub Judge, Villupuram, disposed of an application under Section 5 of the Limitation Act, as if it is an Application under Order 9 Rule 13 of the Code of Civil Procedure . Knowingly or unknowingly, the petitioners also preferred an Appeal against the said order before the District Court instead of a Revision, before this Court. Even before the Appellate Court, the question regarding the maintainability of the Appeal was not raised. The Appeal was argued and the learned Principal District Judge also disposed of the Appeal, as if it is one against an order made in an Application under Order 9 Rule 13, though the learned Principal District Judge had considered the reasons for the delay in the course of the order. The manner in which the proceedings have been conducted shows that neither the lawyers nor the Presiding Officers have bestowed any attention to the scope of the proceedings before them.”

81. “14.   It is fundamental principal of law that an order passed in a Section 5 Application is not an appellable order but a revisable order . Therefore, the very appeal before the learned Principal District Judge was not maintainable. Unfortunately, both the learned Principal District Judge and the counsel for the respondents overlooked the fact that what was decided by the Trial Court was an application under Section 5 of the Limitation Act, though it has been stated that it is an application under Order 9 Rule 13 of the Code of Civil Procedure in the fair order of the Trial Court. If I am to reject this revision on the ground that the Appeal before the Appellate Court itself was not maintainable, it will cause severe prejudice to the petitioners as the mistake was that of the Court and not the petitioners. Since this Revision has been filed under Article 227 of the Constitution of India, I treat this revision as one filed against the order of the Trial Court made in IA No. 39 of 2013 and proceed to dispose it on merits.”

82. 1A. Right to challenge non-appealable orders in appeal against decrees.— (1) Where any order is made under this Code against a party and thereupon any judgment is pronounced against such party and a decree is drawn up, such party may, in an appeal against the decree, contend that such order should not have been made and the judgment should not have been pronounced. (2) In an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should, or should not, have been recorded.] 2. Procedure.—The rules of Order XLI shall apply, so far as may be, to appeals from orders

83. Challenging compromise decree under O43 R1-A Maintainable: Vipan Aggarwal v. Raman Gandotra , (2023) 10 SCC 529 This Court in a judgment reported in ‘ Banwari Lal V. Chando Devi (Smt.) (Through LRS.) & Anr.’ (1993) 1 SCC 581 held the question as to whether an aggrieved person against the compromise decree has a right to file an application before the Court which granted the decree or an appeal in terms of Order 43 Rule 1A of the Code of Civil Procedure, 1908 (for short, ‘the CPC’). It was held as under:- “13. When the amending Act introduced a proviso along with an explanation to Rule 3 of Order 23 saying that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, "the Court shall decide the question", the Court before which a petition of compromise is filed and which has recorded such compromise, has to decide the question whether an adjustment or satisfaction had been arrived at on basis of any lawful agreement. To make the enquiry in respect of validity of the agreement or the compromise more comprehensive, the explanation to the proviso says that an agreement or compromise "which is void or voidable under the Indian Contract Act..." shall not be deemed to be lawful within the meaning of the said Rule.

84. In view of the proviso read with the explanation, a Court which had entertained the petition of compromise has to examine whether the compromise was void or voidable under the Indian Contract Act. Even Rule 1(m) of Order 43 has been deleted under which an appeal was maintainable against an order recording a compromise. As such a party challenging a compromise can file a petition under proviso to Rule 3 of Order 23, or an appeal under Section 96(1) of the Code, in which he can now question the validity of the compromise in view of Rule 1-A of Order 43 of the Code.” The appellants had thus the right to avail either the remedy of appeal in terms of Order 43 Rule 1A CPC or by way of an application before the court granting decree. Therefore, the application filed by the appellants before the Court which granted the decree cannot be said to be without jurisdiction.

85. RULES OF THE HIGH COURT MADRAS – APPELLATE SIDE RULES, 1965 APPEALS AGAINST ORIGINAL DECREES OF SUBORDINATE COURTS O. 4 R. 14 .- Every memorandum of appeal from an original decree of a subordinate court shall be accompanied by – (1) as many clear authenticated copies on plain paper of the memorandum of appeal as there are respondents to be served, together with another such copy for the Court record; (2) the particulars for service of notices on the respondents set out in Form No. 2 of the Schedule to these rules; (3) the fees prescribed for service of such notices on the respondents; (4) such other papers as are referred to in 41Order XLI of Order XLI-A of the Code.

86. Amendment Applications Not To Be Rejected Merely For Delay: Life Insurance Corporation vs Sanjeev Builders Private Limited | 2022 LiveLaw (SC) 729 A delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision. (Para 70) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side - The prayer for amendment is to be allowed ( i ) if the amendment is required for effective and proper adjudication of the controversy between the parties, and (ii) to avoid multiplicity of proceedings, provided (a) the amendment does not result in injustice to the other side, (b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and (c) the amendment does not raise a time-barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations)

87. A prayer for amendment is generally required to be allowed unless ( i ) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration, (ii) the amendment changes the nature of the suit, (iii) the prayer for amendment is malafide, or (iv) by the amendment, the other side loses a valid defence - In dealing with a prayer for amendment of pleadings, the court should avoid a hyper technical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs. (Para 70)

88. Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed. - Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation - Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint - Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed - Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed.

89. THANK YOU!