Q. Discuss the powers of an Appellate Court.
Section 107 of the Code of Civil Procedure, 1908 provides for the powers of the Appellate Court in the following manner:
“(1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power–
(a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require such evidence to be taken.
(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code on courts of original jurisdiction in respect of suits instituted therein.
In Sarju Pershad v. Raja Jwaleshwari, MANU/SC/0002/1950 : AIR 1951 SC 120: (1950) 1 SCR 781, the Supreme Court observed that, the provisions of section 107 are clearly not involved to allow a litigant who has been unsuccessful in the lower Court to patch up the weak parts of his case and fill up omission in the Court of appeal.
The Appellate Court has to bear in mind that it does not have the advantage which the Trial Court had in having the witnesses before him and of observing the manner in which they deposed in court. This certainly does not mean that when an appeal lies on facts, the Appellate Court is not competent to reverse a finding of fact arrived at by the trial judge. The rule is and it is nothing more than the rule of practice–that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, the general rule is that the Appellate Court should permit the finding of fact rendered by the Trial Court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the Trial Court or there is sufficient balance of improbably to displace its opinion as to where the erasability lies.
When Appeal Lies to the Supreme Court
Section 109 of the Code of Civil Procedure, 1908 provides for the conditions when appeal lies to the Supreme Court in the following words:
“Subject to the provisions in Chapter IV of Part V of the Constitution and such rules as may, from time to time, be made by the Supreme Court regarding appeals from the Courts of India, and to the provisions hereinafter contained, an appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court, if the High Court certifies–
(i) that the case involves a substantial question of law of general importance; and
(ii) that in the opinion of the High Court the said question needs to be decided by the Supreme Court.”
It was observed in Shiv Shakti Coop. Housing Society v. Swaraj Developers, MANU/SC/0335/2003 : (2003) 6 SCC 659: AIR 2003 SC 2434: 2003 (4) ALD 1 (SC): 2003 (4) ALT 27 (SC): 2003 (3) AWC 198 (SC): 2003 (2) BLJR 1324: 2003 (2) CTC 564: (2004) 1 GLR 38: 2003 (4) JCR 22: (2003) 3 SCR 762: 2003 (2) UJ 1102 (SC) that “appeal”, is defined in the Oxford Dictionary, Vol. 1, p. 398, as the transference of a case from an inferior to a higher court or tribunal in the hope of reversing or modifying the decision of the former. In the Law Dictionary by Sweet, the term “appeal” is defined as a proceeding taken to rectify an erroneous decision of the Court by submitting the question to a higher court or court of appeal, and it is added that the term, therefore, includes, in addition to the proceedings specifically so called, the cases stated for the opinion of the Queen’s Bench Division and the Court of Crown Cases reserved, and proceedings in error. In the Law Dictionary by Bouvier an appeal is defined as the removal of a case from a court of inferior to one of superior jurisdiction for the purpose of obtaining a review and retrial, and it is explained that in its technical sense it differs from a writ of error in this, that it subjects both the law and the facts to a review and retrial, while the latter is a common law process which involves matter of law only for re-examination; it is added, however that the term “appeal” is used in a comprehensive sense so as to include both what is described technically as an appeal and also the common law writ of error. Sub-section (2) of section 115 has remained unaltered even after the amendment by the Amendment Act. A new sub-section (3) has been added in section 115 by the Amendment Act which states that revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court.
In section 2, the expression “decree” and “order” have been defined in clauses (2) and (14) respectively. It is to be noted that it matters little that the judgment is styled as an “order”. If, in fact, it fulfils the conditions of the definition under section 2(2), it is a decree and becomes appealable. Orders that are not appealable are, generally speaking, those which are procussual, i.e., interlocutory or incidental orders regulating proceedings but not deciding any of the matters of controversy in the suit. Order XLIII deals with “appeals from orders.” These appeals lie under section 104 of the Code of Civil Procedure, 1908. The said section deals with appeals from the specific orders from which appeals can lie. Sub-section (2) of section 104 says that no appeal shall lie from an order passed in appeal under the said section. Section 104 and Order XLIII, rule 1 contain a full list of appealable orders. An Order which amounts to a decree within section 2(2) does not fall within section 104 and the only applicable section is section 96. Clauses (a) to (f) of section 104 were omitted by the Arbitration Act, 1940, section 105 relates to other orders. It, inter alia, relates to any order, i.e. to appealable as well as non-appealable orders. It is in the nature of a prohibited stipulating that save as otherwise expressly provided, no appeal shall lie from any order made by a court in exercise of original or appellate jurisdiction; but where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal. Subsection (2) deals with case of remand. This section, in fact, contemplates two things, i.e., (1) regular appeal from decree; and (2) the provision relating to grant of objection relating to interim, order. Order XLIII, rule 1 is an integral part of section 104.
A plain reading of section 115 as it stands makes it clear that the stress is on the question whether the order in favour of the party applying for revision would have given finality to suit or other proceeding. If the answer is “yes” then the revision is not maintainable. Therefore, if the impugned order is interim in nature or does not finally decides the lis, the revision will not be maintainable. The legislative intent is crystal clear. Those orders, which are interim of revision under section 115. There is marked distinction in the language of section 97(3) of the old Amendment Act and section 32(2)(i) of the new Amendment Act. While in the former, there was a clear legislative intent to save applications admitted or pending before the amendments came into force. Such an intent is significantly absent in section 32(2)(i). The amendment relates to procedures. No person has a vested right in a course of procedure. He has only the right of proceeding in the manner prescribed. If by a statutory change the mode of procedure is altered, the parties are to proceed according to the altered mode, without exception, unless there is a different stipulation