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Appendix A Front-page and Cover

CIVIL PROCEDURE CODE PROJECT

GROUNDS OF FIRST APPEAL AND


SECOND APPEAL

Submitted by
Yug Pratap Singh
Roll Number: 47
B.A. LL.B. (Hons.)
Batch: 2014-19

Of Law School,
Banaras Hindu University, Varanasi

In
November, 2016

Under the guidance of

Dr. G. P. Sahoo

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Appendix B Certificate

CERTIFICATE

The project entitled GROUNDS OF FIRST APPEAL AND SECOND


APPEAL" submitted to Law School, Banaras Hindu University for Civil
Procedure Code, as part of internal assessment is based on my original work
carried out under the guidance of Dr. G. P. Sahoo Sir from July to
November, 2016. The research work has not been submitted elsewhere for
award of any degree. The material borrowed from other sources and
incorporated in the thesis has been duly acknowledged. I understand that I
myself could be held responsible and accountable for plagiarism, if any,
detected later on.

Signature of the candidate


Date: 15th November, 2016

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Acknowledgement

I am using this opportunity to express my gratitude to everyone who supported me


throughout the course of this project. I am thankful for their aspiring guidance,
invaluably constructive criticism and friendly advice during the project work. I am
sincerely grateful to them for sharing their truthful and illuminating views on a
number of issues related to the project.

I express my warm thanks to Dr. G. P. Sahoo Sir for his support and guidance at
Banaras Hindu University.

I would also like to thank my coordinator Prof. Vinod Shankar Mishra and all the
people who provided me with the facilities being required and conductive
conditions for my project.

Thank you,

Yug Pratap Singh


B.A. LL.B. (Hons.)

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INDEX

Sr. No
TOPIC PG NO.

1 Introduction 5
2 Legal Provisions of Section 96 9
3 Section 96- Appeal From Original 17

Decrees- A Comprehensive Study


4 Leading Case Laws on Section 96 20
5 Second Appeal 23
6 Substantial question of law 24
7 Scope of Sec. 100 and 103 (Case 25

Laws)
8 Conclusion 30
9 Bibliography 31

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

Relevant Provisions

Following are the relevant Provisions regarding appeal and second appeal

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

Meaning of Appeal

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

Definition of Appeal

Judicial examination of the decision by a higher court of the decision of the inferior court.

Right of Appeal

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

Nature of Right of Appeal

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

Appeals from a decree

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

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Kinds of Appeal
Appeal may be classified not following two kinds.

1st Appeal
Generally, first appeal shall lie from every decree passed by any court exercising original jurisdiction to
the court authorize to hear appeal from the decisions of such court.
Forum of Appeal
First appeal lies to the District court, if the value of the subject matter of the suit is below Rs. Two lakhs,
and to the high court in all other cases.

Person who may Appeal


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

Person otherwise competent to file appeal


Following persons are also competent to file an appeal

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

Appeal against interlocutory order


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

Jurisdiction of Appellate court


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

Decisions in Appeal under section 98


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

(i) Reference to other judges where no majority


When a court consisting of more than two judges and an appeal is heard by its bench of two judges and
they differ on a point of law, they may refer that point to the other judges of the same court and then the
matter shall be decided according to the majority, including judges who refer that matter.

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

2nd Appeal

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

Grounds for Second Appeal

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

(i) Decision being contrary to law


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

(ii) Decision being contrary to the usage having force of law


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

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

(iv) Substantial error or defect in procedure


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

Interference barred in Second Appeal

(a) Finding of fact is not susceptible to interference in second appeal.


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

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

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

Effect of Subsequent change of law on second appeal


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

Restrictions or urging irrelevant grounds


According to order 41 rule 2, no ground can be urged at the hearing of the appeal which had not been set
forth in memorandum of appeal.

Raising Fresh Pleas


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

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

Dismisal of Appeal for default


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

Cases where second appeal is barred


Section 102 provides that no second appeal shall lie in the following suits

(a) Suit of a nature cognizable by court of small causes


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

(b) Suits where value does not exceed Rs. 25,0000


No second appeal, shall lie in any other suit, where the value of the subject nature of the original suit does
not exceed Rs. 2,50,000.

Powers of High Court to determine issues of fact


In second appeal the High Court may determine an issue of fact.

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

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Legal Provisions of Section 96 of Code
of Civil Procedure 1908, (C.P.C.), India
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 jurisdiction to the
Court authorized to hear appeals from the decision 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 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.]

The right to prefer an appeal from the judgment of the court of first instance is derived from the provisions
of S. 96 of the Code. This is subject to the restriction contained in sub-s. (4) Added by the Amendment
Act, 1976. An appeal shall, however, lie on a question of law even in cases referred to in sub-s. (4) Of S.
96 of the Code.

The remedy of appeal is a creation of statute and is not an inherent right of a person. If the Legislature in
its wisdom thinks in a particular case that no appeal should be provided, it cannot be held that the
legislation is bad.

By the Civil Procedure Code (Amendment) Act, 1976, the definition of the word decree has been
amended and the determination of any question under S. 47, C.P.C. has been taken out of the definition
of decree. In the circumstances, an order determining a question under S. 47, C.P.C. is no longer a
decree. Since such an order is no longer a decree under the Code as amended, no appeal lies against
the said order.

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Limitation:
An appeal shall be accompanied by a memorandum of grounds together with judgment and decree as
envisaged under Order XLI, Rule 1. The limitation begins to run from the date of the supply of the certified
copies of the judgment and decree. The time taken by the court for their supply from the date of
application till the date of supply should be excluded in computation of the period of limitation.

Even if application for certified copies of judgment and decree were separately filed, the combined period
would be excluded. Therefore, the right to file an appeal arises only from the date when the decree was
supplied. The appeal was filed as soon as decree was supplied and so appeal was not time-barred.

The State has offered no explanation of delay in filing appeal. The court condoned delay without
recording satisfaction of reasonable or satisfactory explanation for inordinate delay. Such order cannot be
sustained as condonation of delay was not proper and judicious.

Right of Appeal:
The right to file an appeal is a vested right and it accrues to a party on the date of institution of the suit.
The right is governed by the law prevailing at the date of institution of the suit. So far as execution is
concerned, the right to appeal accrues to a litigant on the date of filing of the execution application. An
execution application is not a continuation of suit.

It is separate from and independent of a suit. In a matter of execution, the right of appeal is governed in
accordance with law as it is on the date of institution of filing of the execution application.

(1) The right of appeal is not a mere matter of procedure, but is a substantive right;

(2) The institution of a suit carries with it the implication that all the rights of appeal then in force are
preserved to the parties thereto till the rest of the career of the suit; and

(3) The right of appeal is a vested right and such a right to enter the superior court accrues to the litigant
and exists as on and from the date the lis commences and although it may be actually exercised when
adverse judgment is pronounced. A vested right of appeal can be taken away by a subsequent
enactment, if it is so provided expressly or by necessary intendment and not otherwise.

An appellate jurisdiction is the authority of a superior Court to review, reverse, correct or affirm the
decision of an inferior court. An appeal is considered as continuation of the original suit rather than as the
inception of a new action.

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A litigant may have a right to institute a suit unless specifically barred, but there is no right of appeal
unless conferred. For filing a suit, right is not required to be conferred by any statute whereas since the
right of appeal is the right from the statutory provision by which it is created, such a right has got to be
conferred.

It does not in here in a litigant. The right of appeal conferred or acquired has to be exercised only in the
manner prescribed. The Legislature can enact a law taking away the vested right of appeal by making a
provision to that effect or by expressing an intention to the contrary.

It is indeed axiomatic that a pre-existing right to appeal is a vested right which inheres in a party. Lis once
originated gives birth to a vested right to take the lis to its ultimate end or terminus a quo is due course of
the existing law. Principles emerging from the rulings can best be summed up as under:

(i) The legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of
proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.

(ii) The right of appeal is not a matter of procedure but is a substantive right.

(iii) The institution of the suit carries with it the implication that all rights of appeal then in force are
preserved to the parties thereto till the rest of the career of the suit.

(iv) The right of appeal is a vested right and such a right to enter the superior court accrues to the litigant
and exists as on and from the date the lis commences and although it may be actually exercised when
the adverse judgment is pronounced, such right is to be governed by the law prevailing at the date of the
institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date
of the filing of the appeal.

(v) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides
expressly or by necessary intendment and not otherwise,

(vi) When a lis commences, all rights get crystallised and no clog upon a likely appeal can be put, unless
the law was made retrospective, expressly or by implication.

A finding of fact recorded by the High Court overlooking the incontrovertible evidence which points to the
contrary and, therefore, utterly unsustainable cannot come in the way of the Supreme Court reaching a
correct conclusion on facts and the examination of the evidence by the Supreme Court cannot be
impeded by a mere submission that the Supreme Court does not interfere with finding of fact.

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Suit was decreed on findings of lower courts that the temples under public trust were not public temples.
These findings were given ignoring the fact that members of public worshipped and gave offerings at the
temples and dedication of properties was made and additional grant made to temple showing public
character of temple. Such findings were not proper.

Where the trial court arrived at a finding on appreciation of evidence that there was no evidence, that by
virtue of joint possession the family was having an income which was sufficient to purchase the property
in the name of a female member after meeting the family expenses and found that rather there was no
evidence with regard to sufficient nucleus, the same could not be reversed by the appellate court without
assigning as to how the finding so arrived by the trial court was wrong.

When the trial court based its finding on appreciation of the evidence of the witnesses and it did not
merely draw an inference to judge the probability of the case, it was not open for the appellate court to
take a different view other than the one taken by the trial Court, unless it found the view to be wholly
unacceptable because of no evidence or appreciation of evidence which was against the established
principle of law.

Although it is generally desirable that the appellate court should not appraise the oral evidence for itself,
yet S. 96 enjoins upon an appellate court to hear the appeal and arrive at its own conclusion about the
controversy in suit.

It is not bound by the finding recorded by the trial court in the same manner as a second appellate court is
bound by the findings of fact recorded by the lower appellate court. It is, therefore, incorrect to say that
the lower appellate court commits an error of law if it reassesses the oral evidence and comes to a
conclusion different from that of the trial court.

The trial court is in a better position to appreciate the oral testimony of the witnesses than the appellate
court as it has an advantage to watch the demeanour of the witnesses. However, it is open to the
appellate court to disturb that appreciation of evidence in cases where the trial court has misread the
evidence or has overlooked the glaring circumstances of the case.

The findings of the lower appellate court found to be based on conjectures and surmises than on proved
facts are vitiated in law.

Trial court granted declaration that plaintiff and heirs of her sister were owners of suit property. The
findings of trial court were based on material on record and were substantiated by weighty reasons. The
appellate court set aside the findings without even considering oral evidence and only on the basis of

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mutation entry in favour of the defendant. Mutation entry in revenue records does not create or extinguish
title and has no presumptive value on title. It is only for purpose of paying land revenue and appellate
court not reverse decree on the basis of mutation entry.

The suit laid by a Muslim for the dissolution of his marriage was decreed by the Sub-Judge. The judgment
followed by the decree were appealable under S. 96, C.P.C. The fact that by reason of the provisions of
the Dissolution of Marriages Act the Sub-Judge who exercises the powers of a Kazi did not mean that the
decision was final and unassailable. The dismissal of the appeal filed under S. 96 on such plea was set
aside and the lower appellate court was directed to dispose of the appeal on merits.

Appeal against an ex parte decree:


In an, appeal against an ex parte decree the appellant can only be heard on the merits of the case. The
appellate court cannot go into the question as to why the appellant had not appeared on the date of final
hearing before the trial court.

In Syed Mazhar Hussain v. Rafiq Hussain, it was pointed that when a specific remedy with a particular
limited period of limitation is provided, the party must avail himself of it and cannot make it a ground of
appeal under the general provision granting him a right of appeal from an ex parte decree.

This was also the view taken in Ganesh Das Verma v. Harish Chandra. In Rajjan Lai v. Rukmani Devi &
Other, following the decisions above mentioned, it was reiterated that in the appeal against the decree the
appellate court cannot go into the question why the appellant had not appeared on the date of final
hearing before the trial court. That is the scope of an application under Order IX, Rule 13, C.P.G. An
appeal against a decree cannot take the place of miscellaneous application for setting aside an ex parte
decree.

Appeal lies against decree and not against mere finding or judgment:
No appeal lies against a mere finding. It is significant to note that both Sections 96 and 100 of the C.P.C.
provide for an appeal against decree and not against judgment.

Who could file an appeal?


Sections 96 and 100 of the C.P.C. make provision for an appeal being preferred from every original
decree or from every decree passed in appeal respectively: none of the provisions enumerates the
person who can file an appeal. However, it is settled by a long catena of decisions that to be entitled to file
an appeal the person must be one aggrieved by the decree. Unless a person is prejudicially or adversely
affected by the decree he is not entitled to file an appeal.

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Suits for recovery of amount against guarantor and Insurance Company:
Where plaintiff-bank had sanctioned loan to first respondent (first defendant) for the purchase of boat.
Such boat had sunk in sea due to fire accident. Bank had filed suit for recovery of amount. It was only first
defendant who was entitled under law to make any claim for compensation as per terms of policy in case
of any loss or damage to property.

First defendant being policy holder was alone entitled under terms of policy to raise any dispute or make
any claim for compensation. Bank should never become party to policy. Finding of Courts below that
policy was tripartite agreement between bank, borrower and Insurance Company was wholly erroneous
and not based on sound reasoning.

Validity of appeal on death of one or the other appellant:


Where application for setting aside abatement, condonation of delay and bringing LRs on record was
filed, whereas main appeal was on file before High Court. Held, that in those circumstances order by High
Court rejecting application of LRs would result in grave injustice to the remaining appellants in denying of
their right to have adjudication on their claims on merits.

The High Court ought to have condoned the delay as prayed for, keeping in view the pendency of the
main appeals on its file, adopting a liberal and reasonable approach, which would have facilitated in
effective adjudication of the rights of parties on either side, avoiding summary rejection of the appeals in
entirety.

The judgment and decrees passed by the High Court in all these appeals were set aside and appeals
were remitted to the High Court to be restored to their original files for being disposed of afresh on merits
of the claim of both parties and in accordance with law.

New plea:
The general rule is that the appellant cannot be allowed to raise in his memorandum of appeal a new
ground; nor can he raise in his memorandum of appeal any objection which, if it had been taken in the
trial court, might have been cured by appropriate amendment.

It is true that there are certain exceptions to this rule such as question of law, question of limitation, res
judicata, etc., which can be substantiated on the facts already on the record. But a matter which though of
law depends, upon questions of fact for its determination cannot be raised for the first time in appeal.

A plea abandoned in Labour Court cannot be taken in appeal. In a suit against sale of property for family
debt the question was whether there was necessity for execution of sale deed by karta and its binding

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nature. High Court in appeal instead of deciding correctness of findings of trial court based on material on
record declined to go into question.

The reason of doing so by High Court was that there was no pleading to enable the court to go into
questions. The Supreme Court found order of High Court not proper and remanded the case.

Consent Decree:
A consent or compromise decree is not appealable, but on proper grounds it may be set aside by a
separate suit.

No appeal will lie against an order recording a compromise when the parties settled their disputes
amicably and there was no contest about the terms of the compromise. The proper remedy for an
aggrieved party is to reopen the matter in the trial court by way of review or otherwise.

The rule contained in S. 96 (3) of the Civil Procedure Code is based on the principle that a person who
gives his consent to a decree being passed against him, is later on estopped from challenging the same.
Therefore, once a decree is passed with the consent of parties and the decree ex facie shows that both
the parties had consented to it, no appeal can lie against such decree on the ground that the consent to
such decree was not free and was obtained by fraud, misrepresentation, coercion, undue influence, etc.

In order to set aside a consent decree on the ground that the consent was obtained by coercion, the
proper remedy is to file a separate suit and not an appeal or an application for review against that decree
or an application under S. 152 of the Code.

If one of the parties to the litigation asserts before the appellate court that his consent to the decree was
not free and it was obtained under coercion, the appellate court obviously cannot decide the dispute on
the material before it unless it allows both the parties to adduce additional evidence to prove that fact.

Such a procedure is not covered by Order XLI, Rule 27 which is the only provision under which additional
evidence is produced before the appellate court. Such evidence can be adduced properly in a separate
suit for that purpose.

Relief claimed in alternative and right of appeal:


If the plaint read as a whole disclosed that the plaintiff will be satisfied with either of the reliefs claimed by
him, he cannot be allowed to appeal if one of the reliefs is granted. One who gets what he wants cannot
be said to be a person aggrieved.

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On the other hand, if the plaint read as a whole gives an impression that of the alternative reliefs claimed
one is the main relief and the other one is claimed only if it is found that the main relief cannot possibly be
granted and the main relief is refused, it is open to the plaintiff to appeal and urge that on the facts and in
law he is entitled to the main relief and should have been granted that.

In such circumstances claiming alternative relief is no bar to appeal by the plaintiff. In the Madras case
the court observed: Alternative is an expression, which indicates a choice of the person and if that choice
is exercised by him, then he cannot afterwards blow hot and cold and seek for reliefs as he desires by
throwing overboard the benefits which he has secured on a full trial in the trial court. This would be
encouraging the whims and fancies of a litigant.]

Aleemuddin v. Haji Bashir Ahmad:


Section 96, C.P.C., does not in term lay down as to who can file an appeal. It does not prescribe that it is
only that person against whom a decree has been passed or against whom some relief in express terms
has been granted is alone competent to come up in appeal.

In the absence of any such limitation a party to the suit who can satisfy the appellate court that he is
aggrieved by the decree as it adversely affects his interest can file an appeal against it. In order to
determine the question as to who is an aggrieved person it is not only the precise language in which the
decree is couched but the substance of the decree and the entire circumstances of the case have to be
considered.

A person aggrieved by a decree has a right of appeal although the decree in specific term may not have
been passed against him or even where the suit has been dismissed as against him and in order to judge
whether he is an aggrieved person not only the judgment but the pleadings have also been taken into
consideration.

Distinction between an appeal and revision:


There is an essential distinction between an appeal and revision. An appeal is a continuation of the
proceedings; in effect the entire proceedings are before the appellate authority and it has power to review
the evidence subject to the statutory limitation prescribed. But in the case of a revision, whatever powers
the revisional authority may or may not have it has not power to review the evidence unless the statute
expressly confers on it that power.

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Section 96 - Appeal from Original
Decrees - A Comprehensive Study
This article basically focuses on appeal from original decrees made under Section 96 of the Code of Civil
Procedure. The First part of the Project Report deals with introduction as to what is meant by appeal and
especially appeal from original decrees. The second Part of the Project Report deals with the nature and
scope of the Section. The third part of the Project Repot deals with the leading case laws on right to
appeal and Doctrine of Merger and lastly, the conclusion of the article.

The expression appeal has not been defined in the Code of Civil Procedure 1908. It is an application or
petition to appeal higher Court for are consideration of the decision of appeal lower court. 1 It is appeal
proceeding for review to be carried out by appeal higher authority of appeal decision given by appeal
lower one.2 An appeal is appeal creation of statute and right to appeal is neither an inherent nor natural
right.

Appeal person aggrieved by appeal decree is not entitled as or right to appeal from decree. The right to
appeal must be given by statute. Section 9 confers on appeal litigant, independently of any statute,
appeal right to institute appeal suit of civil nature in appeal court of law. So he has appeal right to apply for
execution of appeal decree passed in his favour, but he has no right to appeal from appeal decree or
order made against him, unless the right is clearly conferred by statute. Section 96 of the Code gives
appeal right to litigant to appeal from an original decree. Section 100 gives him appeal right to appeal
from an appellate decree in certain cases. Section 109 gives him right to appeal to the Supreme Court in
certain cases. Section 104 gives him right to appeal from orders as distinguished from decrees.

Section 96 of Code of Civil Procedure

Appeal from Original decrees

Appeal is provided under Section 96 of the CPC, which says that except as provided in CPC or any other
law for timbering in force, an appeal shall lie from any decree passed by court exercising Original
Jurisdiction to appeal Court authorized to hear the appeal from the decision of the Court i.e.

Section 96 makes it clear that no appeal lies from appeal decree passed by the Court with the consent of
the parties. However, an appeal may lie from original decrees which are passed ex-parte i.e. without
hearing of the parties. No appeal lies against the decree passed by small cause court, if the value of the
subject-matter does not exceed Rs. 10,000 except on appeal question of law. Ordinarily, only appeal party
to the suit adversely affected by appeal decree or any of his representatives in interest may file an appeal.
However, appeal person who is not appeal party to the decree or order may prefer an appeal with leave of

1 Chamber Section 20th Century Dictionary, 1997, property 59


2 Sita Ram V. State of U.P. AIR 1979 SC 745

17
the court, if he is bound or otherwise prejudicially affected by such decree or odder, as in such an
eventuality he may be said to be an aggrieved person. 3

Right to Appeal: A Statutory and Substantive Right

Right to appeal is statutory and substantive right. It is not merely appeal procedural right. Statutory right
means must be conferred by statute unless it provides there wont be any right to appeal. While right to
institute a suit is not conferred by law. The right is inherent. But right to appeal has to be conferred by
appeal statute. Where statute provides for right to appeal, it may constitute appeal machinery where shall
the appeal lie. While the same isnt true for right to sue. A civil suit has to be filed subject to condition of
jurisdiction. An appeal is appeal substantive right. Right to appeal cant be taken retros0pectively because
general rule of specific interpretation. Substantive law operates prospectively unless an express statute
provides so.

When does right to appeal to appeal accrue to any person?

As soon as judgment is pronounced against party, right to appeal arises. Right to appeal doesnt arise
when adverse decision is given, but on the day suit is instituted i.e. proceedings commenced, right to
appeal get conferred. Thus, it can be said the Right to appeal is appeal substantive right vested in parties
from the date suit instituted. The right to appeal can be waived by a party under a legal and valid
agreement, and if a party has accepted the benefits under the decree, he is stopped from challenging its
legality. The right to appeal also stands destroyed if the court to which appeal lies is abolished altogether
without any forum being substituted in its place

The Court hearing the appeal, has the power to implead a person as respondent who has not been so
impleaded where it appears to the court that he may be a person and interested in the result of the
appeal.4

Appeal from final decree when no appeal from preliminary decrees

In cases where preliminary and final decree are required to be passed, and if a party aggrieved by
preliminary decree does not prefer an appeal, he cannot be permitted to raise disputes about correctness
of such decree in any appeal against final decree.

An appeal is a constitution of proceedings. The appellate court can re-examine questions of fact and law
and May even re-appreciate evidence. The powers of the first appellate court are co-extensive with those
of the civil court of original jurisdiction. However, there may be certain self-imposed restraints in the
exercise of such powers. However they are discretionary and Do not fetter jurisdiction of the courts.
Unlike revision or review where limited grounds of interference are available, the appellate proceedings
offer a much wider scope in deciding about correctness of the judgments of the courts below. First appeal
3 State of Punjab v. Amar Singh AIR 1974 SC 994
4 Order XLI, right to appeal 20(1), Code of Civil Procedure 1908.

18
may be filed on a question of fact or on a question of law or on a mixed question of fact and law may arise
in a case.5 In determining the appellate forum, the value of the subject matter of the suit is material and
not the claim in appeal.6

The judgment of the appellate court should state the points for determination, the decision thereon, the
reasons for the decision, and the relief to which the appellant is entitled. The appellate court should state
its own reasons; thus it is not enough to say in the judgment, I concur with the decision of the Munsiff has
given on each point. If this is done, the judgment will be set aside by the High court in second appeal.
After the judgment is pronounced, the decree will be drawn up.

Who can appeal?

1. Any party to the suit, who is adversely affected by the decree or the transferee of interest of such party
has been adversely affected by the decree provided his name was entered into record of suit.

2. An auction purchaser from an order in execution of a decree to set aside the same on the grounds of
fraud.

3. Any person who is bound by the decree and decree would operate res judicata against him.

Kaleidoscope India Pvt. Ltd. v. Phoolan Devi AIR 1995 Delhi 316

In this case, the Trial Court judge prohibited the exhibition of film both in India and abroad. Session Judge
permitted the exhibition of film in abroad. Subsequently, a party who moved in appeal did not have locus
standi. It was reversed by division bench saying that its not proper on the part of judge as he entertained
the suit on which party has no locus standi.7

5 Manik Chandra Nandy v. Debdas nandy & Others AIR 1986 SC 446
6 Gopal Krishna v. Meenakshi AIR 1967 SC 155
7 V.R.Manohar and W.W.Chitley, The AIR Manual, pg. No. 192

19
Leading Case Laws on Section 96

1. Sadhu Singh v. Dharam Dev 1981 SCC 510

In this case, in Punjab there used to appeal right of preemption and in Muslim Personal Law, if appeal
person wants to sell immovable property, he must ask the person who have adjoining property.

In 1973, an Act was passed, Punjab Peremption Repeal Act, 1973 by which peremptory right was
abolished. Provision: No Court shall pass appeal decree in any preemption suit. In this case, decree has
already been passed by Court of Original jurisdiction and matter was pending in appeal.

The issue before the Court was that: Whether the appellate Court can pass appeal decree?

It was held that the lower Courts decree would get merged into appellate Courts decree. Where decree is
drawn on appellate order and once act passed, no peremptory right. In this proceeding the appellate
Court is deprived of power to pass appeal decree.

Conflicting situation when legislation is passed

There may be two situations:

(i) A right to appeal exist on the date of institution of suit and subsequent law passed taking right to
appeal.

(ii) No right to appeal on the date of institution of suit but subsequently law passed granting right to
appeal.

2. State of Bombay v. Supreme General Films and Exchange AIR 1960 SC 980

In this case it was held that right to appeal cannot be taken away, if available on the date of institution of
suit and subsequently law passed taking away right to appeal.

3. Delhi Cloth & General Mills v. I T Commissioner AIR 1927 PC 242

20
Where right to appeal is created subsequently shall not be available to a litigant if the suit was instituted
prior to such creation.

4. Veeraya v. Subbia Choudhry AIR 1957 SC 540

Right to appeal get vested on the date suit is instituted. A new right to appeal gets created cant be
availed by the parties to a proceeding which commenced earlier during the creation of new rights.

Case Laws on Doctrine Of Merger

Ram Chandra Abhyankar v. Krishnaji Dalladarya AIR 1970 SC 1

In this case Supreme Court laid down three conditions for the application of Doctrine of Merger:

(i) the supereior jurisdiction should be appeallte or revisional in nature

(ii) jurisdiction should have been excercised after the issuance of notice.

(iii) After a full hearing in presence of both the parties i.e. on lu the part where the superior courts order
goes into detail of issue, to that extent only inferior courts order gets merged.

It will depend on the nature of jurisdiction exercised, the content and subject matter of challenged capable
of being laid down. The superior court should be capable of being reversal or modifying or affirming the
order put in issue before it.

In writ jurisdiction, the jurisdiction is not appellate or revisional but it is a collateral challenged on the
principle of natural justice.

5. Kuna Ahymed v. State of Kerala AIR 2000 SC 2608

Kerala legislation passed the Act, kereala Private Forest Act, 1971 whereby appeal forest tribunal was
constituted. It was to determine whether any private forest is to be vested in government or not? On
behalf of the [petitioners, they raised appeal dispute about 1020 acres of forest land. The tribunal held in
favour of petitioners.

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Kerala Government appeal against the decision of Forest Tribunal before Kerala High Court. The Kerala
High Court dismissed the appeal by detailed order. No provision for further appeal in the act, so Kerala
Government filed appeal SPECIAL LEAVE PETITION under article 136 before the a SC, which was
dismissed. Subsequently the Act was amended and appeal new Section 8c was introduced providing for
review of order of High Court. Consequently appeal revision petition was filed before Kerala High Court
for review its earlier order in appeal.

Appeal preliminary decree was taken on behalf the petitioner that Kerala High Courts order get merged
with Supreme Courts order whereby SC had dismissed the SPECIAL LEAVE PETITION on merits i.e.
there doesnt exist an order of High Court which can be reviewed.

This objection was dismissed by Kerala High Court. Appellant went to Supreme Court against the
preliminary decree.

The issue before the Court was that- where a SPECIAL LEAVE PETITION is filed and dismissed, whether
there is appeal ground for the application of Doctrine of Merger?

Justice Lahoti. Observed in detail: What the stage of SPECIAL LEAVE PETITION?

When Special Leave Petition is heard by SC, it is only leave for admission for appeal. The court doesnt
exercise appellate jurisdiction, but just discretionary jurisdiction to admit or deny the appeal.

"Where the SPECIAL LEAVE PETITION is dismissed by appeal brief or cryptic order or reasoned order
must be taken into consideration. Therefore, while dismissing SPECIAL LEAVE PETITION, Supreme
Court is giving appeal detailed judgment and pronouncing certain principles of law, those provisions are
binding on lower court by virtue of Article 141. But, where dismissal SPECIAL LEAVE PETITION is appeal
brief order, then there is no law.

22
Second Appeal

Section 100 -

(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being
in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court
subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of
law.
(2) An appeal may lie under this section from an appellate decree passed ex parte.
(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial
question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall
formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of
the appeal, be allowed to argue that the case does not involve such question:
Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court
to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by
it, if it is satisfied that the case involves such question.

Section 100A - No further appeal in certain cases Notwithstanding anything contained in any Letters
Patent for any High Court or in any other instrument having the force of law or in any other law for the
time being in force, where any appeal from an appellate decree or order is heard and decided by a single
Judge of a High Court, no further appeal shall lie from the judgment, decision or order or such single
Judge in such appeal or from any decree passed in such appeal.

Section 101 - Second appeal on no other grounds No second appeal shall lie except on the ground
mentioned in section 100.

Section 102 - No second appeal in certain suits No second appeal shall lie 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 three thousand rupees.

Section 103 - Power of High Court to determine issues of fact In any second appeal, the High Court
may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the
appeal,
(a) which has not been determined by the lower Appellate Court or both by the Court of first instance and
the lower Appellate Court, or
(b) which has been wrongly determined by such Court or Courts reason of a decision on such question of
law as is referred to in section 100.

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Substantial question of law

The expression substantial question of law has not been defined anywhere in the code. However, SC
interpreted it in the case of Sir Chuni Lal Mehta & Sons Ltd vs Century Spg & Mfg Co Ltd (AIR 1962
SC 1314) as follows

"The proper test for determining whether a question of law raised in the case is substantial would, in our
opinion, be whether it is of general public importance or whether it directly and substantially affects the
rights of the parties and if so whether it is either an open question in the sense that it is not finally settled
by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or call for
discussion of alternative views. If the question is settled by the highest court or the general principles to
be applied in determining the question are well settled and there is a mere question of applying those
principles or that the plea raised is palpably absurd the question would not be a substantial question of
law."

To be "substantial" a question of law must be debatable, not previously settled by law of the land or a
binding precedent, and must have a material bearing on the decision of the case, if answered either way,
insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case"
there must be first a foundation for it laid in the pleadings and the question should emerge from the
sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of
law for a just and proper decision of the case. An entirely new point raised for the first time before the
High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore,
depend on the facts and circumstance of each case whether a question of law his a substantial one and
involved in the case or not, the paramount overall consideration being the need for striking a judicious
balance between the indispensable obligation to do justice at all stages and impelling necessity of
avoiding prolongation in the life of any lis.

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Scope of Sec. 100 and 103 (Case Laws)
The Supreme Court, speaking through Justice B.S. 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;

In Kondiba Dagadu Kadam v. Savitribai Sopan Gujar & Ors., AIR 1999 SC 2213, this Court held
as under:- "It has to be kept in mind that the right of appeal is neither a natural nor an inherent
right attached to the litigation. Being a substantive statutory right it has to be regulated in
accordance with law in force at the relevant time. The conditions mentioned in the section must
be strictly fulfilled before an appeal can be maintained and no Court has the power to add to or
enlarge those grounds. The appeal cannot be decided on merit on merely equitable grounds."

Further, there can be no quarrel that the right of appeal/revision cannot be absolute and the legislature
can impose conditions for maintaining the same. In Vijay Prakash D. Mehta & Jawahar D. Mehta v.
Collector of Customs (Preventive), Bombay, AIR 1988 SC 2010, this Court held as under :-

"Right to appeal is neither an absolute right nor an ingredient of natural justice, the principles of which
must be followed in all judicial or quasi- judicial adjudications. The right to appeal is a statutory right and it
can be circumscribed by the conditions in the grant ..............The purpose of the Section is to act in
terrorem to make the people comply with the provisions of law."

A similar view has been reiterated by this Court in Anant Mills Co. Ltd. v. State of Gujarat, AIR1975 SC
1234; and Shyam Kishore & Ors. v. Municipal Corporation of Delhi & Anr., AIR 1992 SC 2279. A
Constitution Bench of this court in Nandlal & Anr. v. State of Haryana, AIR 1980 SC 2097, held that the
"right of appeal is a creature of statute and there is no reason why the legislature, while granting the right,
cannot impose conditions for the exercise of such right so long as the conditions are not so onerous as to
amount to unreasonable restrictions rendering the right almost illusory".

In Gujarat Agro Industries Co. Ltd. v. Municipal Corporation of the City of Ahmedabad & Ors.,
(1999) 4 SCC 468, this Court held that the right of appeal though statutory, can be
conditional/qualified and such a law cannot be held to be violative of Article 14 of the Constitution.
An appeal cannot be filed unless so provided for under the statute and when a law authorises
filing of an appeal, it can impose conditions as well.

Thus, it is evident from the above that the right to appeal is a creation of Statute and it cannot be created
by acquiescence of the parties or by the order of the Court. Jurisdiction cannot be conferred by mere
acceptance, acquiescence, consent or by any other means as it can be conferred only by the legislature
and conferring a Court or Authority with jurisdiction, is a legislative function. Thus, being a substantive
statutory right, it has to be regulated in accordance with the law in force, ensuring full compliance of the

25
conditions mentioned in the provision that creates it. Therefore, the Court has no power to enlarge the
scope of those grounds mentioned in the statutory provisions. A second appeal cannot be decided merely
on equitable grounds as it lies only on a substantial question of law, which is something distinct from a
substantial question of fact. The Court cannot entertain a second appeal unless a substantial question of
law is involved, as the second appeal does not lie on the ground of erroneous findings of fact based on an
appreciation of the relevant evidence. The existence of a substantial question of law is a condition
precedent for entertaining the second appeal, on failure to do so, the judgment cannot be maintained. The
existence of a substantial question of law is a sine-qua-non for the exercise of jurisdiction under the
provisions of Section 100 C.P.C. It is the obligation on the Court to further the clear intent of the
Legislature and not to frustrate it by ignoring the same. (Vide: Santosh Hazari v. Purshottam Tiwari (dead)
by Lrs., AIR 2001 SC 965; Sarjas Rai & Ors. v. Bakshi Inderjeet Singh, (2005) 1 SCC 598; Manicka
Poosali (Deceased by L.Rs.) & Ors. v. Anjalai Ammal & Anr., AIR 2005 SC 1777; Mst. Sugani v.
Rameshwar Das & Anr., AIR 2006 SC 2172;Hero Vinoth (Minor) v. Seshammal, AIR 2006 SC 2234; P.
Chandrasekharan & Ors. v. S. Kanakarajan & Ors., (2007) 5 SCC 669; Kashmir Singh v. Harnam Singh &
Anr., AIR 2008 SC 1749; V. Ramaswamy v. Ramachandran & Anr., (2009) 14 SCC 216; and Bhag Singh
v. Jaskirat Singh & Ors., (2010) 2 SCC 250).

In Mahindra & Mahindra Ltd. v. Union of India & Anr., AIR 1979 SC 798, this Court observed:

"..... It is not every question of law that could be permitted to be raised in the second appeal. The
parameters within which a new legal plea could be permitted to be raised, are specifically stated in Sub-
section (5) of Section 100. Under the proviso, the Court should be `satisfied' that the case involves a
substantial question of law and not a mere question of law. The reason for permitting the substantial
question of law to be raised, should be recorded by the Court. It is implicit therefrom that on compliance of
the above, the opposite party should be afforded a fair or proper opportunity to meet the same. It is not
any legal plea that would be alleged at a stage of second appeal. It should be a substantial question of
law. The reasons for permitting the plea to be raised should also be recorded."

In Madamanchi Ramappa & Anr. v. Muthaluru Bojjappa, AIR 1963 SC 1633, this Court observed:

".........Therefore, whenever this Court is satisfied that in dealing with a second appeal, the High Court
has, either unwittingly and in a casual manner, or deliberately as in this case, contravened the limits
prescribed by Section 100, it becomes the duty of this Court to intervene and give effect to the said
provisions. It may be that in some cases, the High Court dealing with the second appeal is inclined to take
the view that what it regards to be justice or equity of the case has not been served by the findings of fact
recorded by courts of fact; but on such occasions it is necessary to remember that what is administered in
courts is justice according to law and considerations of fair play and equity however important they may
be, must yield to clear and express provisions of the law. If in reaching its decisions in second appeals,
the High Court contravenes the express provisions of Section 100, it would inevitably introduce in such
decisions an element of disconcerting unpredictability which is usually associated with gambling; and that
is a reproach which judicial process must constantly and scrupulously endeavour to avoid."

26
In Jai Singh v. Shakuntala, AIR 2002 SC 1428, this Court held as under:

"....it is only in very exceptional cases and on extreme perversity that the authority to examine the same in
extenso stands permissible - it is a rarity rather than a regularity and thus it can be safely concluded that
while there is no prohibition as such, but the power to scrutiny can only be had in very exceptional
circumstances and upon proper circumspection."

While dealing with the issue, this Court in Leela Soni & Ors. v. Rajesh Goyal & Ors., (2001) 7
SCC 494, observed as under:
There can be no doubt that the jurisdiction of the High Court under Section 100 of the Code of
Civil Procedure (CPC) is confined to the framing of substantial questions of law involved in
the second appeal and to decide the same. Section 101 CPC provides that no second appeal
shall lie except on the grounds mentioned in Section 100 CPC. Thus it is clear that no second
appeal can be entertained by the High Court on questions of fact, much less can it interfere in the
findings of fact recorded by the lower appellate court. This is so, not only when it is possible for
the High Court to take a different view of the matter but also when the High Court finds that
conclusions on questions of fact recorded by the first appellate court are erroneous.

The section, noted above, authorises the High Court to determine any issue which is necessary
for the disposal of the second appeal provided the evidence on record is sufficient, in any of the
following two situations: (1) when that issue has not been determined both by the trial court as
well as the lower appellate court or by the lower appellate court; or (2) when both the trial court as
well as the appellate court or the lower appellate court have wrongly determined any issue on a
substantial question of law which can properly be the subject-matter of second appeal under
Section 100 CPC."

In Jadu Gopal Chakravarty v. Pannalal Bhowmick & Ors., AIR 1978 SC 1329, the question arose
as to whether the compromise decree had been obtained by fraud. This Court held that though it
is a question of fact, but because none of the courts below had pointedly addressed the question
of whether the compromise in the case was obtained by perpetrating fraud on the court, the High
Court was justified in exercising its powers under Section 103 C.P.C. to go into the question. (See
also Achintya Kumar Saha v. M/s Nanee Printers & Ors., AIR 2004 SC 1591)

In Shri Bhagwan Sharma v. Smt. Bani Ghosh, AIR 1993 SC 398, this Court held that in case the
High Court exercises its jurisdiction under Section 103 C.P.C., in view of the fact that the findings
of fact recorded by the courts below stood vitiated on account of non-consideration of additional
evidence of a vital nature, the Court may itself finally decide the case in accordance with Section
103(b) C.P.C. and the Court must hear the parties fully with reference to the entire evidence on
record with relevance to the question after giving notice to all the parties. The Court further held
as under: ".....The grounds which may be available in support of a plea that the finding of fact by
the court below is vitiated in law, does not by itself lead to the further conclusion that a contrary

27
finding has to be finally arrived at on the disputed issue. On a re-appraisal of the entire evidence
the ultimate conclusion may go in favour of either party and it cannot be pre-judged, as has been
done in the impugned judgment..".

In Kulwant Kaur & Ors. v. Gurdial Singh Mann (dead) by LRs. & Ors., AIR 2001 SC 1273, this
Court observed as under : "Admittedly, Section 100 has introduced a definite restriction on to the
exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to
record that the Code of Civil Procedure (Amendment) Act, 1976 introduced such an embargo for
such definite objectives and since we are not required to further probe on that score, we are not
detailing out, but the fact remains that while it is true that in a second appeal a finding of fact,
even if erroneous, will generally not be disturbed but where it is found that the findings stand
vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an
element of perversity involved therein, the High Court in our view will be within its jurisdiction to
deal with the issue. This is, however, only in the event such a fact is brought to light by the High
Court explicitly and the judgment should also be categorical as to the issue of perversity vis-`-vis
the concept of justice. Needless to say however, that perversity itself is a substantial question
worth adjudication -- what is required is a categorical finding on the part of the High Court as to
perversity.

The requirements stand specified in Section 103 and nothing short of it will bring it within the ambit of
Section 100 since the issue of perversity will also come within the ambit of substantial question of law as
noticed above. The legality of finding of fact cannot but be termed to be a question of law. We reiterate
however, that there must be a definite finding to that effect in the judgment of the High Court so as to
make it evident that Section 100 of the Code stands complied with." (Emphasis added)

Powers under Section 103 C.P.C. can be exercised by the High Court only if the core issue
involved in the case is not decided by the trial court or the appellate court and the relevant
material is available on record to adjudicate upon the said issue. (See: Haryana State Electronics
Development Corporation Ltd. & Ors. v. Seema Sharma & Ors., (2009) 7 SCC 311)

Before powers under Section 103 C.P.C. can be exercised by the High Court in a second appeal,
the following conditions must be fulfilled:

(i) Determination of an issue must be necessary for the disposal of appeal;

(ii) The evidence on record must be sufficient to decide such issue; and

(iii) (a) Such issue should not have been determined either by the trial court, or by the appellate court or
by both; or

(b) such issue should have been wrongly determined either by trial court, or by the appellate court, or
by both by reason of a decision on substantial question of law.

If the above conditions are not fulfilled, the High Court cannot exercise its powers under Section 103
CPC.

28
Thus, it is evident that Section 103 C.P.C. is not an exception to Section 100 C.P.C. nor is it meant to
supplant it, rather it is to serve the same purpose. Even while pressing Section 103 C.P.C. in service, the
High Court has to record a finding that it had to exercise such power, because it found that finding(s) of
fact recorded by the court(s) below stood vitiated because of perversity. More so, such power can be
exercised only in exceptional circumstances and with circumspection, where the core question involved in
the case has not been decided by the court(s) below.

There is no prohibition on entertaining a second appeal even on a question of fact provided the
Court is satisfied that the findings of fact recorded by the courts below stood vitiated by non-
consideration of relevant evidence or by showing an erroneous approach to the matter i.e. that
the findings of fact are found to be perverse. But the High Court cannot interfere with the
concurrent findings of fact in a routine and casual manner by substituting its subjective
satisfaction in place of that of the lower courts. (Vide: Jagdish Singh v. Natthu Singh, AIR 1992
SC 1604; Karnataka Board of Wakf v. Anjuman- E-Ismail Madris-Un-Niswan, AIR 1999 SC 3067;
and Dinesh Kumar v. Yusuf Ali, AIR 2010 SC 2679).

If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into


consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the
vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the
eyes of law. If the findings of the Court are based on no evidence or evidence which is thoroughly
unreliable or evidence that suffers from the vice of procedural irregularity or the findings are such
that no reasonable person would have arrived at those findings, then the findings may be said to
be perverse. Further if the findings are either ipse dixit of the Court or based on conjecture and
surmises, the judgment suffers from the additional infirmity of non-application of mind and thus,
stands vitiated. (Vide: Bharatha Matha & Anr. v. R. Vijaya Renganathan & Ors., AIR 2010 SC
2685)

In view of above, the law on the issue can be summarised to the effect that a second appeal lies
only on a substantial question of law and it is necessary to formulate a substantial question of law
before the second appeal is decided.

The issue of perversity itself is a substantial question of law and, therefore, Section 103 C.P.C. can be
held to be supplementary to Section 100 C.P.C., and does not supplant it altogether. Reading it otherwise,
would render the provisions of Section 100 C.P.C. redundant. It is only an issue that involves a substantial
question of law, that can be adjudicated upon by the High Court itself instead of remanding the case to
the court below, provided there is sufficient evidence on record to adjudicate upon the said issue and
other conditions mentioned therein stand fulfilled. Thus, the object of the Section is to avoid remand and
adjudicate the issue if the finding(s) of fact recorded by the court(s) below are found to be perverse. The
court is under an obligation to give notice to all the parties concerned for adjudication of the said issue
and decide the same after giving them full opportunity of hearing.

29
Conclusion

The expression appeal has not been defined in the Code of Civil Procedure 1908. It is an application or
petition to appeal higher Court for are consideration of the decision of appeal lower court. It is appeal
proceeding for review to be carried out by appeal higher authority of appeal decision given by appeal
lower one. In appeal is appeal creature of statute and right to appeal is neither an inherent nor natural
right.

Appeal person aggrieved by appeal decree is not entitled as or right to appeal from decree. The right to
appeal must be given by statute. Section 9 confers on appeal litigant, independently of any statute,
appeal right to institute appeal suit of civil nature in appeal court of law. So he has appeal right to apply for
execution of appeal decree passed in his favour, but he has no right to appeal from appeal decree or
order made against him, unless the right is clearly conferred by statute. Section 96 of the Code gives
appeal right to litigant to appeal from an original decree. Section 100 gives him appeal right to appeal
from an appellate decree in certain cases. Section 109 gives him right to appeal to the Supreme Court in
certain cases. Section 104 gives him right to appeal from orders as distinguished from decrees.

As soon as judgment is pronounced against party, right to appeal arises. Right to appeal doesnt arise
when adverse decision is given, but on the day suit is instituted i.e. proceedings commenced, right to
appeal get conferred. Thus, it can be said the Right to appeal is appeal substantive right vested in parties
from the date suit is instituted.

To conclude that appeal is a substantive right, and it is a matter inter parties. The question as to whether
the appeal is competent or not can only be decided by the court hearing the appeal. Appeal may be filed
against original or appellate decree passed by a court subordinate to High Court. Appeal only lies against
a decree and not against Judgment. The right of appeal is a creation of statute.

30
Bibliography

Internet Resources:

Google Books
www.studymode.com
www.meritnation.com

References & Further Readings


http://thelawstudy.blogspot.in/2015/05/appeal-and-its-kinds-under-
cpc.html

www.legalserviceindia.com/article/l63-Appeals.html

www.legalblog.in/2011/08/scope-ambit-of-first-appeal-law.html

www.academia.edu/6004824/Vijeth_CPC_Appeals_under_Civil_P
rocedure

31