Decoded: The Appeal Process under CPC
Appeals under The Code of Civil Procedure:
Introduction
The Code of Civil Procedure (CPC) is a body of procedural laws that govern the conduct of civil litigation. Under the CPC, a party dissatisfied with a decision of a lower court has the right to appeal to a higher court.
The appeal is an important mechanism for ensuring the fair administration of justice in Pakistan. This article will examine the appeal process under the CPC, including the types of appeals, the grounds for appeal, and the procedure for filing an appeal. The article will also provide examples and case laws to illustrate the principles discussed. An appeal is a complaint filed before the superior court against the decree of the lower court with allegations that the applicant has not been treated in accordance with the law. An appeal may be filed against the original decree or against the decree passed in appeal.
Relevant Provisions:
(i) Sections 96,97,98,09 of C.P.C. for the First appeal :
(ii) Sections 100,101,102, 103 of C.P.C. for second appeal
Cross Reference:
i) Section 17 and 18 of West Pakistan Civil Courts Ordinance II of 1962.ii) Orders 41 and 42 of C.P.C.
Meaning of Appeal:
Definition of Appeal:
Bases of Law of appeal:
The law of appeal is based on the following maxim Interest republican sit finis litium. it is the duty of the state and its functionaries to ensure the redress of grievances and the minimization of litigation.
Right of Appeal:
Appeal lies against a decree and not against a judgment. It is not to be assumed that there is a right of appeal in every matter which comes under consideration of a court; such right must be given by statute, or by some authority equivalent to a statute. No right of appeal can be given except by express words. Section 96 C.P.C in express words gives a right of appeal from every decree passed by any court exercising original jurisdiction to the court authorized to hear appeals from the decision of such court.
Nature of Right Of Appeal:
The right of appeal is a substantive right and it is not a mere matter of procedure. The right of appeal is governed by the law prevailing at the date of the suit and not by law that prevails at the date of the decision or at the date of filing of the appeal. Appeal was a statutory right, which would only be exercised if the statute had provided so as a matter of right. Under S.96, C.P.C. an appeal lay against all decrees passed by a court in the exercise of original civil jurisdiction, except consent decree, and decree passed in a suit filed under S.9 of the Specific Relief Act, 1877 and a final decree, the preliminary decree of which was not challenged.
An appeal is a Continuation of Suit:
The appeal is a continuation of the suit and the whole case of parties stands reopened before the appellate forum. it was observed in the following cases:
An appeal is the continuation of proceedings wherein entire proceedings are again opened for consideration by the Appellate Court. Powers of Appellate Court mentioned under section 107, C.P.C. are co-extensive with the powers and obligations conferred upon the Courts of original jurisdiction in respect of suits. [2022 SCMR 933 Supreme Court]
Appellate Court, being a final court on facts, has to reappraise the entire oral and documentary evidence adduced by the parties issue-wise, and to record its independent findings on the question of facts and law raised by the parties. [2023 CLC 115]
Appellate Court has been given full authority to examine each and every interim order as well as all proceedings conducted by the Trial Court as an appeal is a continuation of the suit. [2021 YLR 1445 ]
Kinds of Appeals
The CPC provides for two types of appeals: first appeals and second appeals.
First Appeal
An appeal shall lie from every decree passed by any court exercising original jurisdiction to the court, authorized to hear an appeal from the decisions of such court. A first appeal is an appeal filed against a judgment or decree of a trial court. The appeal must be filed within 30 days of the date of the judgment or decree. The appeal is heard by a higher court, which may confirm, reverse, or modify the decision of the trial court.
(i) Forum of Appeal:
If the value of the subject matter of the suit is below Rs two hundred thousand, then the appeal Shall be to the District Court and to the High Court in all other cases. Where the Civil Judge passed a decree of pecuniary value in excess of Rs.2.5 million first appeal there against would lie before the High Court. All decrees of Civil Judge not exceeding the pecuniary value of Rs.2.5 million would be heard by a District Judge. [2016 PLD 97]
(ii) Person Who May Appeal:
- (a) Party to the Suit: Such persons who are party to the suit, adversely affected by the decree may appeal.
- (b) Stranger to a Suit: A stranger to a suit is not prohibited by CPC from filing an appeal against an order whereby he was aggrieved. When a party to suit is adversely affected by judgment and decree passed in any civil suit, therefore, an appeal can be preferred by that party. Stranger to suit, in circumstances, can also prefer an appeal.
(iii) Appeal From Preliminary Decree:
- (a) Meaning: A preliminary decree is one which declares the rights and obligations of parties, during the continuance of a suit, and leaves further matters to be determined in further proceedings.
- (b) Principle of Section 97: If a preliminary decree is passed by a court, then the party aggrieved by it has to appeal against it within a specified period, otherwise he will not be able to challenge it.
(iv) Jurisdiction:
The appellate court has got the jurisdiction to adjudicate upon a matter only if there is an appeal pending. The objection on this ground can be taken at any time and in any proceedings.
(v) Appeals From Orders:
An appeal lies under section 96 only from a decree, and not from a mere finding. However section 104, CPC deals with appeals from orders. Where an order was passed with the direction to draw a decree sheet then appeal was competent under S.96, C.P.C. and where the decree sheet had not been drawn then the appeal would lie under S.104 & O.XLIII, R.1, C.P.C.
(vi) Appeals From Ex-Parte Decree:
An appeal may lie under section 96 C P C from an original decree passed ex-parte. To get an ex parte decree set aside defendant had two remedies; either by way of filing an application under O.IX, R.13, C.P.C. or by filing an appeal under S.96, C.P.C.
(vii) Appeals From Consent Decree:
According to section 96, no appeal lies from a consent decree. A decree passed by the court with the consent of parties. Such decree was not appealable on merits, however, where a party either disputed the very fact that an order was passed by consent or contested the validity of a consent order, R. (1) (m) of O. XLIII, C.P.C. allowed a challenge to such an order.
(viii) Appeals From a Decree:
An appeal would lie from every decree passed by a Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such a Court. An appeal lies under section 96, CPC only from a decree because the decree marks the stage at which the jurisdiction of the Court which has tried the matter ends and the jurisdiction of the Court to which the appeal is made begins. As such unless a decree is drawn up, no appeal lies from a mere finding, but if the finding amounts to a decree, an appeal would lie.
Grounds for Appeal
The CPC provides for several grounds for appeal, including:
Errors of Law
A party may appeal on the ground that the trial court made an error of law. For example, if the trial court misinterpreted a legal provision or failed to apply a relevant legal principle, the party may appeal on the grounds of an error of law.
Example of Error of Law
Suppose a trial court held that a contract was invalid because it was not signed by both parties. However, the law only required the contract to be signed by one party. In this case, the aggrieved party may file a first appeal on the grounds of an error of law. The appellant can argue that the trial court misinterpreted the law and therefore its decision was erroneous.
Errors of Fact
A party may appeal on the ground that the trial court made an error of fact. For example, if the trial court made a finding of fact that was not supported by the evidence, the party may appeal on the grounds of error of fact.
Example of Error of Fact
Suppose a trial court held that a car accident was caused by the negligence of the plaintiff. However, the plaintiff presented evidence that the accident was caused by the defendant's negligence. In this case, the aggrieved party may file a first appeal on the grounds of error of fact. The appellant can argue that the trial court made a finding of fact that was not supported by the evidence.
Inadequate Assessment of Evidence
A party may appeal on the ground that the trial court did not adequately assess the evidence. For example, if the trial court did not consider important evidence or relied on irrelevant evidence, the party may appeal on the grounds of inadequate assessment of the evidence.
Example of Inadequate Assessment of Evidence
Suppose a trial court did not consider important evidence presented by the plaintiff. In this case, the aggrieved party may file a first appeal on the grounds of inadequate assessment of evidence. The appellant can argue that the trial court did not adequately consider the evidence and therefore its decision was flawed.
Procedural Irregularities
A party may appeal on the ground that the trial court did not follow the proper procedures. For example, if the trial court did not give the party a fair opportunity to present its case or if the trial court violated the rules of natural justice, the party may appeal on the grounds of procedural irregularities. However, No decree shall be reversed or substantially varied nor shall be reversed or substantially varied nor shall any case be remanded in appeal on account of any misjoinder or parties or causes of action or any error defect, or irregularity in any proceedings in the suit not affecting the merits of the case or the jurisdiction of the Court. It is the duty of an appellate court to correct the errors of the lower court and if an appellate court fails to correct the errors of such court, it will only prolong frivolous litigation.
Example of Procedural Irregularities
Suppose a trial court did not give the plaintiff a fair opportunity to present its case. In this case, the aggrieved party may file a first appeal on the grounds of procedural irregularities. The appellant can argue that the trial court violated the rules of natural justice and therefore its decision was unfair.
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Second Appeal
A second appeal is an appeal filed against a decision of a first appellate court. A second appeal can be filed only on the question of law or on the question of misreading or nonreading of evidence or when the decision of courts below was contrary to law or usage having force of law; or when some material issue of law had not been decided and when there was a substantial error or procedural defect which had resulted in the erroneous or defective decision. The appeal must be filed within 90 days of the date of the decision of the first appellate court. The second appeal is heard by the High Court, which may only decide questions of law arising out of the decision of the first appellate court.
(i) Scope of Second appeal:
Scope of interference in second appeal is narrower and restricted, which can only be invoked where some gross illegality appears to have been committed by the Courts below or evidence was not perused in its true perspective. However Concurrent findings of fact are open to attack if the same are not supported by any evidence or otherwise are unreasonable or perverse. The right, to file a Second Appeal provided under S. 100 of C.P.C, could be set into motion only when the decision impugned was contrary to law; or there was failure to determine some material issue of law, or there was a substantial error or defect in the procedure provided by the Code or law.
(ii) Forum of Appeal:
A second appeal shall lie only to the High Court.
(iii) Cases Where Second Appeal is Barred:
- (a) Suit of Nature Cognizable by Courts of Small Causes: A suit the value of which does not exceed twenty-five thousand is a suit of a nature cognizable by courts of small causes.
- (b) Suits Where Value Does Not Exceed Two Hundred Fifty Thousand: No second appeal! shall lie, where the value of the subject nature of the original suit does not exceed 2,50,000.
(iv) Grounds for Second Appeal:
- (a) Decision Contrary to Law: A decision contrary to law is open to interference in a second appeal and the decree may be amended to bring it in conformity with legal requirements.
- (b) Defect in Procedure: Where there is a defect in the decision of the case upon merits, it can be ground for a second appeal.
- (c) Usage Having the Force of Law: Usage having the force of law by the lower court is a good ground for a second appeal.
- (d) Decision Being Contrary Having the Force of Law: It means a local or family usage that is different from the general law. A usage having the force of law should be ancient, invariable, and reasonable.
(v) New Plea in Second Appeal:
The parties cannot raise a new plea of law that is different from the case set up by them in the courts below.
(vi) Power of High Court to Determine Issues of Fact:
In the second appeal, the High Court may determine an issue of fact, necessary for the disposal of the case wrongly determined by the lower appellate court by reason of any defect.
Procedure for Filing an Appeal
The CPC provides for a specific procedure for filing an appeal. The procedure is as follows:
Drafting of Appeal
The first step in filing an appeal is to draft the appeal. The appeal must be drafted in accordance with the rules of the court in which the appeal is being filed. The appeal must state the grounds for appeal and the relief sought by the appellant.
Filing of Appeal
The next step is to file the appeal in the appropriate court. The appeal must be filed within the prescribed time limit. The appellant must pay the necessary court fee at the time of filing the appeal.
Service of Notice
Once the appeal is filed, the court will issue a notice to the respondent. The notice will inform the respondent of the appeal and the grounds on which it is being filed.
Response of the Respondent
The respondent may file a response to the appeal within the prescribed time limit. The response must address the grounds of appeal and may also raise additional grounds in support of the decision of the trial court.
Hearing of the Appeal
The hearing of the appeal is a crucial stage in the appeal process. The court will hear arguments from both parties and examine the evidence presented before making a decision. The following are some important aspects of the hearing of the appeal:
Oral Arguments
During the hearing of the appeal, both parties will have the opportunity to make oral arguments in support of their positions. The parties may rely on legal precedents and case law to support their arguments. The court may also ask questions of the parties to clarify certain points.
Examination of Evidence
The court will also examine the evidence presented by both parties during the hearing of the appeal. The court will evaluate the credibility and relevance of the evidence and determine its weight in the case.
Judgment
After hearing arguments and examining the evidence, the court will deliver its judgment. The judgment will either confirm, reverse, or modify the decision of the trial court, depending on the merits of the appeal.
Difference Between First and Second Appeal:
(ii) Grounds of Filing: In the first appeal, no specific ground is mentioned for filing. Whereas a second appeal can be filed on specific grounds for filing.
(iii) As to Scope: The scope of the first appeal is wider. Whereas the scope of the second appeal is narrow.
(iv) As to Procedure: The procedure of the first appeal is prescribed in Order 41 of the Civil Procedure Code while the procedure of the second appeal is prescribed in Order 42 of the Civil Procedure Code.
(v) Irregularities in Procedure: The first appellate court cannot reverse a decree on grounds of irregularity in the proceedings. The second appellate court may set aside a decree if such defect is substantial enough to have possibly affected the decision of the case upon merits
(vi) As to Subject: The first appeal lies in the question of facts and law. Whereas the second appeal lies on the question of law and the mixed question of law and fact.
(vii) Bar of Appeal: Bar against the first appeal has been provided under Section 96 of the Civil Procedure Code. Whereas a bar against the second appeal has been provided under Section 102 of the Civil Procedure Code.
(viii) Lying against: The first appeal lies against the original decree. Whereas the second appeal lies against the appellate decree.
Conclusion
The appeal process is an important mechanism for ensuring the fair administration of justice in Pakistan. Under the CPC, a party dissatisfied with a decision of a lower court has the right to appeal to a higher court. The appeal may be filed on the grounds of error of law or fact, inadequate assessment of evidence, or procedural irregularities. The appeal must be filed within the prescribed time limit and must be accompanied by the necessary court fee. The hearing of the appeal is a crucial stage in the appeal process and involves oral arguments, examination of evidence, and delivery of judgment. The appeal process is supported by legal precedent and case law, which helps ensure consistency and predictability in the administration of justice. The question of whether the appeal is competent or not can only be decided by the court hearing the appeal. The appeal lies against a decree and not against judgment. The right of appeal is a creation of a statute.
Q. What is an appeal? Discuss the difference between the first and second appeals against the Decree. Also, state the grounds on which the second appeal against the decree is competent.