Consentia on Business Laws and Constitutional Laws

APPEALS TO HIGH COURT

An appeal is a process by which a judgment/order of a subordinate Court is challenged before its superior court. An appeal can be filed only by a person who has been party to the case before the subordinate Court. However, at the death of such a person, his legal heirs and successors in interest may as well as file or maintain an already filed appeal in many matters. 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. 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 redressal of legal grievances involves three-tier hierarchical judicial machinery comprising the Supreme Court situated in Delhi as the highest Court of the country. The High Courts situated in various States and Union Territories constitute the second tier of this hierarchial order in the descending order. The Courts in a particular State or a Union Territory Subordinate to their respective High Courts, are the lower most rung of the hierarchy. There are certain special tribunals to adjudicate upon certain specific matters such as income tax, excise, company law and the bank recovery cases, administrative tribunals, consumer tribunals, etc. Appeals from these tribunals may lie to the High Court or the Supreme Court.

Hierarchy of Civil Courts

There is a hierarchy of Civil Courts in every state subordinate to their respective High Courts to administer civil law disputes. These civil courts are assigned a particular territory in a city or a town of the state and as well a particular pecuniary limit that is, the limit of the monetary value of the cases, which these courts may entertain.

Thus a particular civil court at a particular position in the hierarchy would be able to adjudicate civil cases only of a particular monetary value and further only from a particular territory. The Hierarchy and the nomenclature of these civil courts varies in different states.

In Chhattisgarh for instance there are very broadly following levels of civil courts.

  1. District Judge & his collateral additional District Judges
  2. Senior Civil Judge
  3. Civil Judge
  4. Small Cause courts.

Civil cases upto the monetary value of three lakhs are filed before the Civil Judges. The Civil cases having monetary value between three lakhs and twenty lakhs are filed before the District Judge or additional district Judge. The Civil cases having monetary value above twenty lakhs are filed directly in the High Court. (The monetary value differs in various high courts.)

The Small Cause Courts are established to adjudicate upon small cause matters such as guardianship and custody matters which can be adjudicated in a summary trial that is, without a protracted and extensive civil trial.

The court of Civil Judge, Senior Civil Judge and Additional District Judges on the other hand entertain regular matters requiring proper civil trial following all the rules of evidence and procedures envisaged in the civil procedure code.

First Appeal: Appeal from original decree

From the judgement and decree of the Civil courts of first instance viz. the Civil Judge, Additional District Judge and the High Court in its original jurisdiction appeal may be filed to challenge the said judgement and decree as the first appeals before various courts depending upon the subject matter of the case and its monetary value.

For example in Delhi in certain cases, the first appeal from Civil Judge may lie to the Senior Civil Judge but in some other cases it may lie directly to the higher courts. The hierarchy and forums for appeal are set by the concerned High Court from time to time in exercise of its administrative power.

Second Appeal

The decree/judgement passed by any appellate Civil Court in the first appeal can be challenged by way of a second appeal before the High Court. If the case involves substantial question of law then the second appeal can be filed even against an ex parte decree/judgement of the first appellate court.

Grounds for second appeal:

  1. A judgement/decree can be challenged in the first appeal on varied grounds both on basis of facts of the case and as well the legal interpretation of various legal provisions involved.
  2. For instance a party may raise objections as regards the territorial and pecuniary competence of a court passing the challenged judgement and decree.
  3. If there has been a failure of justice on account of such incompetence.
  4. Equally, in case all the necessary parties were not joined in the original suit, a challenge to the judgement decree of such a court can be maintained.
  5. An appeal may be as well to challenge the interpretation of law as the legal provisions applied by the subordinate court while making the judgement/decree any error, defect as irregularity in any proceeding before the subordinate court affecting the merits of the case as the jurisdiction of such a court may as well be a sustainable ground while making an appeal.
  6. The second appeal can be filed only if there exists a substantial question of law. In the case the question of law would be substantial if it is of general public importance or which directly and substantially affects rights of the parties.

No Appeal

No appeal can be filed against a decree/judgement which has been passed by the court with the consent of the parties. Again, no appeal can be filed, except on a question of law, from a decree in any suit of the courts of small causes, when the value of the subject matter of the suit is less than RS. 3000/-.

Procedure of filing an appeal

The appeal has to be preferred in the form of a memorandum signed by the appellant or his advocate. The memorandum is required to set forth, concisely and distinctly the grounds of objection to the decree and judgement challenged in the appeal. These grounds have to be numbered consecutively. The memorandum of appeal has to be accompanied by a copy of the decree and the judgment appealed from.

In case the appeal is made against a decree for payment of money, the appellant is required to deposit the amount disputed. In the appeal with the amount appellate court or otherwise has to furnish security in respect of such amount. The appellate court may as well require the appellant to provide security for the costs of the appeal or the original suit or both before calling the other party to appear or after words at the application of such party.

  • Stay: An appeal itself does not operate as the stay of proceedings undue the decree/judgement appealed from and the execution of a decree is not stayed merely because an appeal is filed in the appellate court. However, the appellate court can, if there is a sufficient cause to do so, order stay of execution of such decree. The stay can be granted the court which passed the decree if an application is made for the stay of execution of such a decree before expiration of the time allowed for filing an appeal against it and if such application discloses sufficient cause for seeking the stay.

The probability or certainty of a substantial loss to the party seeking stay constitutes a sufficient cause if the said party has made the application for stay without unreasonable delay and if the party has given security guarantying due performance of the decree against which stay is sought.

  • Review Petition: A person aggrieved of a decree of a court may instead of filing an appeal seek review of the decree and judgement from the same court, which has made it. A Review can be sought in cases where no appeal is allowed from the original decree/judgement.

The procedure for making an application for review is similar to that of making an appeal. If it appears to the court that there is no sufficient ground for a review it can reject the application. But where the court opines that the application for review should be granted, it could grant the same and review its judgement after giving notice to the opposite party and enabling him to appear before it and submit its objections against the review.

An order of the court rejecting the review application is not appealable but an order granting such an application is appealable. The order or decree finally passed after a review is also appealable.

  • Revision Petition: The High Court in exercise of its revisionary powers can call for the record of any case which has been decided by any of its subordinate courts in which no appeal lies thereto if it appears that the subordinate court has:-
  1. exercised a Jurisdiction not vested in it by law
  2. failed to exercise a jurisdiction vested in it by law
  3. acted in the exercise of its Jurisdiction illegally or with material irregularity.

The High Court in exercise of its revisionary powers can make any orders, as it thinks fit. But the High Court cannot vary or reverse any order deciding an issue unless such order is unjust or has a material and decisive bearing in the case of party applying for revision.

Second Appeal under the Code of Civil Procedure, 1908 : Scope

The Supreme Court, speaking through Justice BS Chauhan, has in Municipal Committee, Hoshiarpur v. Punjab State Electricity Board, examined the scope of S. 100 and 103 of the Code of Civil Procedure, 1908 and the law relating to Second Appeals against decrees. The Supreme Court has examined various judicial precedents on the subject and held as under;

Second Appeal: Sections 100 & 103 of CPC

These provisions provide for the conditions precedent for entertaining a Second Appeal and the specific manner of its disposal. Section 100 CPC reads as follows:

Concluding remarks: While having provisions of appeal prescribed in the Code of Civil Procedure we must know about its use and benefits. The Apex court has considered writ jurisdictions (Article- 32 and Article- 226) as a fundamental right of the citizen. The right to appeal provides a person/litigant an extra opportunity to find the way of justice.

Bibliography

  1. Code of Civil Procedure, 1908.
  2. The Constitution of India, 1950.
  3. Basu D.D. Indian Constitutional Law, (3rd 2011) Kamal House Kolkata.
  4. Seervai H.M. Constitutional Law of India, (4th 2005) Universal Law Publishing Company Pvt. Ltd. New Delhi.
  5. Jain M.P. Indian Constitutional Law, (6th 2011) Lexis Nexis Butterworths Wadhwa, Nagpur.
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