Here is your short essay on Appeals

Civil appeals are governed by Order 41 of C.P.C. while Order 43 deals with appeals from appealable orders.

Order 42 deals with second appeals. The subordinate courts, that is, courts subordinate to the High Court do not have Revisional Jurisdiction. Section 107 C.P.C. prescribes the powers of an appellate court.

An appellate court (i) can decide the case finally, (ii) can remand the case, (iii) can frame issue or additional issues and refer them for trial and (iv)also can take additional evidence.

Just as suits, appeals also should be heard and then decided by the court. In other words, the respondent also makes appearance in the court whom before whom the appeal is being heard.

An exception to this general rule is Order 41 Rule 11 C.P.C. Rule 11 envisages that the court may hear the appellant alone without notice to the respondent.

However, the appellate court shall receive the record from the trial court before it hears only the appellant. When the court decides to hear the appellant alone, the appeal may be dismissed if the appellant is absent and if the appeal is dismissed after hearing the appellant alone, a judgment should be written by the appeal court.

An appeal cannot be dismissed by way of summary disposal without giving reasons for the dismissal.

However, detailed reasons need not be furnished when an appeal is disposed of under Order 41 Rule 11, but a very brief order stating the reasons why the appeal is dismissed would suffice.

But Order 41 Rule 11-A provides an embargo that such disposal of an appeal summarily can be resorted to by the court within sixty days from the date of the presentation of the memorandum of the appeal.

If the appeal is not disposed of under Order 41 Rule 11 C.P.C., notice shall be given to the opposite side and time shall be fixed to hear appeals. Andhra Pradesh High Court has issued a circular on 14-8-1992 that appeals shall not be dismissed in limini at Order 41 Rule 11 stage and that brief reasons should be recorded when appeals are disposed of under Order 41 Rule 11 C.P.C. It may be pointed out that this circular is in consonance with Order 41 Rule 11(4) C.P.C.

Order 41 Rule 20 empowers the appellate court to direct the appellant to add any party to the suit as a respondent if the court considers that such a person is interested in the result of the appeal.

This power can be exercised by the appellate court even after the completion of the appeal time. A cross objections is cross appeal laid by the respondent in the appeal.

Cross objections arise only when an appeal is filed. Cross objection should be filed within thirty days after the notice of the appeal.

The peculiarity of cross objections is that the cross objections continue to be on record even if the main appeal is withdrawn or dismissed for default.

The appellate court may remand a case either when the lower court disposed of the case on a preliminary issue and appellate court reversed the finding or when the appellate court finds it necessary in the interest of justice when it reversed or sets aside the decree passed by the lower court.

The appellate court may direct the lower court as to what issues should be tried by the lower court after remand. After 1976 amendment and the incorporation of Order 41 Rule 26 A C.P.C. now the position is such that when the appellate court remands a case to the trial court, the appellate court should fix a date for the parties to appear before the lower court.

This proposition is highly appreciable, but not free from administrative difficulties, as the entire file is to be sent back to the lower Court, with fair typed copy (as corrected by the Appellate Judge) which may not synchromise with the date fixed.

When the appellate court reverses the Judgment and decree of the trial court, the appellate court may remand the case when it considers that retrial is necessary.

Remands are ordered when the appellate court concludes that the Judgment and decree of the trial court is reversed or set aside. However, the C.P.C. does not provide for retrial on fresh evidence.

It was held in AIR 1977 Cal. 3 that mere insufficieny of evidence is no ground for allowing a party to adduce further evidence on remand, since if there is insufficiency of evidence on the part of any party to prove his case, such a party would suffer.

It was explicitly pointed out in 1972 Revenue Law Reporters 219 that when full opportunity had been given to a party by the trial court to adduce evidence, appellate court cannot remand the case. The Jammu and Kashmir High Court held in AIR 1982 NOC.

292 that when there is absence of evidence and absence of finding of fact necessary for the decision, remand can be ordered. Order 41 Rule 24 contemplates the disposal of the appeal on merits by the appellate court in case sufficient evidence is available before the appellate court.

The appellate court may recast the issues if necessary. If the trial court did not frame or did not try an issue, the appellate court may cast such an issue and remand the case for further evidence and finding on such additional issue [Order 41 Rule 25]. If the appellate court remands the case for settling additional issue, for recording evidence and for a finding on the additional issue, the trial court shall record evidence, hear arguments, give a finding on that issue and submit the record to the appellate court.

Even in such cases it was held in AIR 1987 Del. 206 that if sufficient evidence already exists, appellate court can decide such additional issue without referring it to the trial court for its finding.

Order 41 Rule 30 C.P.C. envisages that appeal judgment shall be pronounced in open court, by reading points for determination, decision thereof and the final order. It is also envisaged that as soon as appeal judgment is pronounced, copy of the judgment should be made available immediately to the parties for perusal. The appellate court may rely on any part of the record of the trial court or the appellate court in pronouncing judgment. In practice, when appeal judgments are pronounced, if the appeal fails, the judge merely declares that the appeal is dismissed with or without costs, as the case may be. If the judgment of the trial court is reversed, or modified, the judge reads the operative portion of the appeal judgment as is done in the case of trial judgment.

Order 41 Rule 31 C.P.C. explains the matters to be contained in appeal judgment. An appeal judgment shall contain points for determination, the decision, the reasons for the decision and the relief, where the decree of the trial court is reversed or varied.

In the State of Andhra Pradesh, if the High Court empowers a judge to dictate judgments to the stenographer in open court, the judgment can be dictated in the open court itself.

If a judgment is so dictated in the open court, after its transcription is made ready, after corrections are carried out the judge shall sign the same. On the other hand, if the judgment is already dictated and is not pronounced in the open court, the judge should sign and date the judgment when it is pronounced.