Hearing of appeal under procedural law of India is in the nature of re-hearing

In Lachmeshwar v. Keshwar Lal, A.I.R. 1941 F.C. 5 is an authority for holding that the hearing of appeal under the procedural law of India is in the nature of re-hearing and therefore in moulding the relief to be granted in a case on appeal, the appellate court is entitled to take into account even facts and events which have come into existence after the decree appealed against. Consequently, the appellate court is competent to take into account legislative changes since the decision under appeal was given and its powers are not confined only to see whether the lower court’s decision was correct according to the law as it stood at the time when its decision was given. Once the decree of the High Court has been appealed against, the matter became sub judice again and thereafter this court had seisin of the whole case, though for certain purposes e.g., execution, the decree was regarded as final and the courts below retained jurisdiction in that regard. This was followed in Shyabuddinsab v. The Gadag-Betgeri Municipal Borough, [1955] 1 S.C.R. 1268 where after the judgment of the High Court and after grant of special leave by this court the legislation was passed, and it was applied by this Court. Their lordships, referring to The King v. The General Com- missioner of Income Tax, [1916] 2 K.B. 249 and Mukharjee Official Receiver v. Ramratan Kaur, [1935] L.R. 63 I.A. 47 rejected the contention that unless there are express words in the amending statute to the effect that the amendment shall apply to pending proceedings, it cannot affect the proceedings. In Dayawati v. Inderjit, [1966] 3 S.C.R. 275 it has been held that the word ‘suit’ includes an appeal from the judgment in the suit. The only difference between a suit and an appeal is that an appeal only reviews and corrects and proceedings in a cause already constituted but does not create the cause. In Mohanlal Jain v. His Highness Maharaja Shri Man Singh, [1962] 1 S.C.R. 702 it was observed that “A person is “sued” not only when the plaint is filed against him, but is “sued” also when the suit remained pending against him. The word “sued” covers the entire proceeding, in an action.” In Amerjit Kaur v. Pritam Singh, [1975] 1 S.C.R. 605 it has been held that an appeal is a reheating and in moulding relief to be granted in a case on appeal, the appellate court is entitled to take into account even facts and events which have come into existence after the passing of the decree appealed against. [Mithilesh Kumari & Anr vs Prem Behari Khare] [All SC 1989 February] 1989 AIR 1247