POWERS AND DUTIES OF APPELLATE COURT UNDER CIVIL PROCEDURE CODE, 1908

INTRODUCTION

An Appellate Court in which a first-instance appellate has this influential standing of accepting such an appeal must have certain powers and duties following its position. An appeal court’s power varies from powers such as the power to ultimately resolve a case that might seem like an obvious power. Certain powers such as the power to remand, the power to frame and refer issues for trial, the power to take additional evidence, and the power to alter a decision are some of those rights that the court of appeal adheres to when hearing an appeal.

Whenever power exists, responsibility comes with it. There are also some duties entrusted to the Court of Appeal. This article explores the concept of powers of the appellate court along with the corresponding duties conferred to the court.

POWERS OF APPELLATE COURT

Under Civil Procedure Code, 1908, the provisions which enumerate the powers of an appellate court while hearing first appeals. Sections 96-108 and Rules 23 to 33 of Order 41 of the Code conferred these powers. They may be giving a brief statement thus:

• POWER TO DECIDE A CASE FINALLY

Section 107(1) (a) and Rule 24 of Order 41 facilitate the appellate court to set out of a case finally. Where the proof on record is adequate to enable the appellate court to pronounce judgment, it may finally conclude the case despite that the judgment of the trial court has proceeded completely upon a ground other than with the intention of on which the appellate court proceeds.

• POWER TO REMAND

Section 107 (1) (b), Rules 23-23A of the Code concerns about the power to remand, here remand means to send back. Rule 23 of Order 41 of the Code Confers that if the court of the trial has a case on a preliminary point without documenting findings on other issues and the court of appeal reverses the decision thus passed, it may refer the case back to the court of the trial to decide on additional matters and to conclude the case. This is called a remand.

There have to be precedent conditions to be followed to be able to allow such a remand. Initially, the trial court must have disposed of the claim, which on a preliminary point means a lower court. Furthermore, the decision under appeal must have been overturned and, lastly, some other justification must have occurred which has broadened its scope under Rule XXIII, which states that the appeal court may revoke a case even if the case has been disposed of by the lower court other than on a preliminary point and where the preservation is deemed of utmost importance in acting in the interests of the court.

• POWER TO ISSUES AND PASS ON THEM FOR TRIAL

Section 107(1)(c), Rules 25-26 concerns about this power. This is considered very necessary in cases where abstinence has been exercised by the lower court in performing its functions of framing any issue or attempting any matter or deciding some question of fact that is needed to be decided to dispose of the suit on merit. In all these circumstances, the court of appeal has the authority to frame issues for the lower court and may also fix a certain time limit whilst referring them for the trail. It is provided in section 107(1) (c) above.

• POWER TO TAKE ADDITIONAL EVIDENCE

It is conferred under section 107(1)(d), Rules 27-29. It is an appellate court’s power to take further evidence. Anything else, what we call it a general law is that such an appeal must be decided by the appellate court on the testimony provided by the lower court parties. Nevertheless, this exemption as provided for in Section 107(1) (d) has three requirements to be met by the parties presenting such additional evidence in the court of appeal which is, first, that the person demanding such admission of additional evidence should be able to demonstrate the reason why he was unable to produce it at first. Another condition is that the party concerned should have an opportunity to refute such additional evidence by admitting additional evidence. Third, empirical information must be important to solving the problem.

In this case,¹ section 107 is an exemption to the general principle and empowers the court to take additional evidence or require such evidence to be taken subject to the circumstances laid down in Rule 27 of Order 41.

In Pramod Kumari v. Om Prakash, ² where the lower court has refused to take certain evidence on the ground of its late production, such rejection cannot be said to be unjustified and the appellate court should not interfere with the discretion of the lower court and admit such evidence.

• POWER TO MODIFY DECREE

Under the provision of the Code, Rule 33 of Order 41 entitles an appellate court to render whatever order it thinks fit, not only as between the appellant and the respondent however also as connecting one respondent and another respondent. An appellate court’s right to change a decision is very relevant. This power is an authoritative but discretionary force. This is very clear that if the verdict is overturned in an appellate, the appeal court passes the order on the same overturned verdict. The same rules and procedures are dealt with in compliance with Rule XXXIII. The jurisprudential strategy behind this law is to allow the appeal court to take the whole issue into its own hands and to administer complete justice.

In Mahant Dhangir v. Madan Mohan, ³ the court should not refuse to exercise discretion on mere technicalities.

LIMITATIONS

The rule does not confer unrestricted right to reopen decrees which have become final merely because the appellate court does not agree with the opinion of the trial court. Nor the appellate court will interfere with the finding of fact. The discretionary power cannot be exercised to nullify the effect of the abatement of appeal.

• OTHER POWERS

Under section 107(2) of the Code enacts that over and above the aforementioned powers, an appellate court has identical powers as an original court. This proviso is based on the general rule that an appeal is a persistence of a suit and therefore, an appellate court can do, while the appeal is pending, what the original court could have done while the suit is in the course of.

Thus, an appellate court is empowered to re-appreciate the evidence, to add, transpose or substitute the parties, to permit to withdraw of proceedings, to return a plaint or memorandum of appeal for presentation to the proper court.

DUTIES OF THE APPELLATE COURT

1. DUTY TO DECIDE APPEAL FINALLY

In dealing with the duty to eventually determine the appeal, it is very clear that because the court has taken an appeal to be heard and determined, the court must give its decision based on such an appeal and the important thing to make a judgment is to apply a judge’s judicial mind.

2. DUTY NOT INTERFERE WITH DECREE FOR TECHNICAL ERRORS

The substance of section 99 provides that “a decision which is otherwise correct and based on facts should not be disturbed for technical reasons, so it is the responsibility of the appeal court not to intervene with a decision for technical mistakes, to avoid undermining the ends of justice and acting as a way of litigation circuitry.”

3. DUTY TO REAPPRECIATE EVIDENCE

The appellate court ‘s obligation to re-appreciate facts ensures that when an appellate court hears an appellate with almost the same powers as the original court, along with certain extra powers, Upon due care and caution, the court may re-appreciate such evidence as it held in a case where a finding of fact was reached by the court of The trial should not be slightly disturbed, primarily by appreciating oral evidence, unless the approach of the trial court to the assessment of evidence is significantly incorrect, contrary to well-established or perverse principles.

Three essentials should normally be present before an appellate court reserves a finding of fact recorded by the trial court:⁴

• It applied its mind to reasons given by the trial court;
• It had no advantage of seeing and hearing the witnesses; and
• It records cogent and convincing reasons for disagreement with the trial court.

4. DUTY TO RECORD REASONS

One of the appellate court’s essential responsibilities is the obligation to record reasons. All other courts of appeal other than a High Court have the obligation to document reasons for their decision, even if it is appreciable to do so. Although Rule XXXI specifies that there must be explanations for an appeal court’s decision and such decision, endorsed by reasons, the court’s conclusions must be eventually decided and concluded.

Where the High Court (as Appellate Court) finds trial court judgment to be unsatisfactory and sets aside the judgment, it ought to carefully examine facts and law and give cogent reasons for setting aside such judgment.⁵

Thusly, all these earlier in this paper-mentioned points and conclusions are the appellate court’s powers and responsibilities, which they are entrusted with for the overriding reason that justice needs are met.

SOURCES:

1. Venkataraman v. A. Seetharama Reddy, AIR 1963 SC 1526.
2. (1980)1 SCC 412.
3. 1987 SCC 528.
4. Madhusudan Das v. Narayanibai, (1983)1 SC 1716.
5. M. Narayana Gowada v. Shanthamma, (2011)15 SCC 476.

BOOKS REFERRED:

1. K. Takwani: Civil Procedure Code, 1908, (8th edition, reprint 2019), Eastern Book Company.

This blog is written by Akriti Sharma, Banasthali University

Some of her blogs-

• INTRODUCTION TO INDIAN EVIDENCE LAW
• INDIAN EVIDENCE AMENDMENT BILL, 2016
• BURDEN OF PROOF (Section 101-114)
• INHERENT POWERS OF THE COURT

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