Comment on Memorandum of Appeal

Mr. Atul Purushottam Borkar & Ors ……………….Appellant

v.

Mrs. Kumudini Ravindra Amrute ………………..Respondent

Whether contains of Memorandum of Appeal in the case book are as per the provision of
CPC?

 Answer: The right to appeal is a statutory right. It is discussed under Section 96 to 99-A
(we are dealing only with first appeal for this case book) and Order-XLI (The Order) of
the CPC. As per section 96 unless it is expressly provided all decree passed by a court
exercising their original jurisdictions are appealable. However it is important to note that
sections are only substantial part of right to appeal and procedural aspects of it is given
under Order-XLI. If this procedural requirement are not followed than right to appeal
can be taken back as held by the Apex court in Anant Mills v. State of Gujrat, 1975 2
SCC 175.
 The procedure aspect as mentioned earlier is covered under Order-XLI. This order
contain aspect related to Memorandum of Appeal, Contains and form of it, evidence how
to be recorded, power of court while hearing appeal, decision from appeal etc. But since
scope of case book is limited to memorandum of appeal the research will try to restrict
comments only on basis of Rule 1 to 4 of the Order.
 Memorandum of Appeal is different from Appeal, as Appeal is judicial process where
memorandum of appeal is a written document containing grounds of objection to the
decision of lower court.
 As per Rule 1 of the Order, the memorandum of appeal should be according the form of
the Appeal (Which is given in Appendix-G, No.1) and must be signed by the appellant
or his pleader. The memorandum of appeal is present at Page No. 1 to 3, of the case
book.
 Observing on the First Para it can be said that the form given in the Appendix is strictly
followed. The memorandum consist date of the judgment, parties name, court name, suit
no., and grounds of the objection and therefore it is in right format.
 Further, it has been signed by the advocate for appellant at Page no.3 of the case book. In
plaint party’s verification is necessary but in appeal verification of advocate is enough
therefore this requirement is also met.
 As per Rule- 1 (2), memorandum must contain grounds of objection without any
arguments or narratives. Each ground must be specifically stated under separate heading.
After observing grounds as raised in Paragraph No. (a) to (e), it can be said that this
requirement is completed. The memorandum consist only point of objection on the
decision made by the court. It is in different paragraphs. And argument has not been
made in it.
 It is necessary that in Memorandum all grounds objection is taken up by the appellant
otherwise court may consider it under Constructive Res Judicata and not allow appellant
to claim relief on based of it, unless it is later allowed by the court (Rule- 2, Order-
XLI). In the given case book the advocate for appellant after considering all the
documents, facts and most importantly the judgment of the court has raised all such
objections.
 The memorandum of the appeal must be presented with a certified copy of the judgment
[Rule- 1 (2)]. In the case book the copy of the judgment has been provided at Page no.
206 to 223 thus this requirement is fulfilled.
 The memorandum of the judgment need to be filled at the authority at the court from
which original decision is passed within 30 days of the judgment as prescribed by the
art.116 of the Limitation Act. The judgment has been passed by the Small Causes Court
on 29.11.2012 and appeal has been made on 7.01.2012(See, Page 3, Section below
Prayer Contain Date). The reason for the delay as per appellant is, the certified copy has
been delivered to him on 17.12.2012 and therefore, he is within limitation period. But this
should have been raised in an application on affidavit as per Rule-3 of Order XLI, thus
condo-nation of delay is not in proper format in the given case book.
 As per decision of the Apex court in, Ramnarian v. State Trading Corporation (Air
1963 SC 1901) there should be valuation of the appeal in the memorandum for
 determining the jurisdiction of the court. Under section 98 of CPC, suits from Small
Causes Courts which is for the sum below than Rs. 10,000 are not appealable. Therefore,
it would have been better if the appellant has put cost of the suit in memo of appeal but in
case book it can be seen no such statement has been made.
 Therefore, as per the researcher the memorandum of the appeal is partially correct as the
application for condolence of delay has not been filled in proper format along with the
memorandum of the appeal. Thus, memorandum of appeal suffers from certain flaws and
court may be rejected or returned by the court under Rule 3 of the Order. However,
generally court will not reject it as there was a genuine reason for it but technically court
has power to do it. But at the same time non delivery of judgment on time make appellant
case strong but he should have submitted separate application for it.