Short notes on the Powers of the Appellate Court

Order 41 Rule 32 and 33 C.P.C. deals with the powers of the appellate court. The appellate court has got general powers to confirm, vary or reverse any or all the findings of the trial court.

The appellate court is vested with wide powers to pass any decree or order in the interest of justice. Order 41 Rule 33 is considered to be in three parts as held in AIR 1993 S.C. 2054.

The first part confers wide powers upon the appellate court to pass any decree or order. The second part provides that this wide power can be exercised albeit the appeal is only on a party of the decree and the order can be in favour of all parties even if those parties did not file appeal or cross objection.

The third part confers power on the appellate court to pass orders in respect of all or any of the decrees [if there are more than one decree] even if no appeal is filed against such decrees.

If the trial court did not grant a relief which was claimed, the appellate court is entitled to grant such a relief. However, the wide powers conferred by Rule 33 can be exercised by the appellate court only when the appellate court concludes that the appellant shall succeed on merits [vide AIR 1979 Gowahati 7],

Important interlocutory proceedings arise in appeals. Invariably, the question of staying the operation of the decree of the trail arises before an appellate court.

Order 41 Rule 5 empowers the appellate court to stay the execution of the trial court’s decree. Rule 5(4) empowers the appellate court to grant stay ex parte also.

Stay can be granted only when three conditions are satisfied, namely, (A) there shall be substantial loss if the stay is not granted, (B) application for stay must be made without unreasonable delay and (C) security should be furnished for the execution for the decree.

The stay if granted, is deemed to have been vacated when the appeal is disposed of vide AIR 1978 H.P. 28. In AIR 1978 Goa 44 it was pointed out that when the order of the trial court prima facie appears to be without jurisdiction, the appellate court can grant stay even if irreparable loss is not made out. It may be noticed that there cannot be an oral application for stay AIR 1985 S.C. 61.

Another important power vested with an appellate court is in respect of additional evidence envisaged by Order 41 Rule 27 C.P.C. Ordinarily no evidence, oral or documentary, can be produced before the appellate court.

However, there are exceptions to this general rule. If the trial court had refused to admit evidence which ought to have been admitted, the appellate court may admit such evidence. If the party who is tendering additional evidence would not procure the evidence during the trial despite his best efforts, the appellate court may permit him to tender evidence in the appeal.

If the party seeking to let in additional evidence was not aware about that piece of evidence at the time of the trial, the appellate court may permit him to let in additional evidence. The appellate court may also permit a party to produce a document or to examine a witness if the appellate court considers it necessary for the pronouncements of an explicit judgment. Whenever, the appellate court intends to allow additional evidence oral or documentary, it should record its reasons.

It was held in [1992] 2 CCC 523 by the Allhabad High Court that if the appellate court admits additional evidence, the appellate court shall allow opportunity to the opposite party to rebut the same. In AIR 1993 P&H 106 a defendant denied execution of a pronote.

After the closure of the plaintiff’s side, the defendant let in evidence on his side. The defendant examined the hand­writing expert to disprove the signature on the pronote.

The appellant/plaintiff did not try to rebut the expert’s evidence by examining an expert. In the appeal, the plaintiff wanted to examine a hand-writing expert and sought the permission of the court.

As the plaintiff was aware that the onus to prove execution rests upon him, he could have examined hand-writing expert in rebuttal. The appellate court rejected the application of the appellant/plaintiff to permit him to examine the hand-writing expert.

While admitting additional evidence, the appellate court may follow the guideline prescribed by AIR 1974 PAT 364 wherein it was pointed out that a document which is not necessary to enable the court to pronounce the judgment cannot be admitted in additional evidence.

Further, it is now settled law that additional evidence cannot be permitted to fill up a lacuna vide AIR 1985 Cal. 233.