Definition of appeal

The word ‘appeal’ is not defined even in the CPC and in ordinary parlance would mean “call to higher tribunal for deliverance from decisions of the lower”. In Chappan v. Moidin Kutti 1899 22 Mad 68[(1899) ILR 22 Mad 68 (FB)] the Madras High Court after referring to the meaning of word ‘appeal’ in various dictionaries observed that the appeal has been held to mean “the removal of a cause from an inferior to a superior court for the purpose of testing the soundness of the decision of the inferior court.” The Supreme Court in Garikapatti Veeraya Vs. N. Subbiah Choudhury, observed that the suit, appeal and second appeal were to be regarded as one legal proceeding. It laid down certain principles, all of which may not be quite relevant for the present case before me, but I am tempted to quote the same. These are :-(para 23).

“From the decisions cited above the following principles clearly emerge:- (i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding. (ii) The right of appeal is not a mere matter of procedure but is a substantive right. (iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit. (iv) The right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal. (v) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise.”

 

The Supreme in Triupati Balaji Developers (P) Ltd., v. State of Bihar reported in AIR 2004 SCW 2522, considered the jurisdiction of the appellate authority. In Paragraph 11, the Supreme Court held as follows:

11. The very conferral of appellate jurisdiction carries with it certain consequences, Conferral of a principal substantive jurisdiction carries with it, as a necessary concomitant of that power, the power to exercise such other incidental and ancillary powers without which the conferral of the principal power shall be rendered redundant. As held by their Lordships of the Privy Council in Nagendra Nath Dey v. Suresh Chandra Dey and Ors. AIR 1939 PC 165 (Sir Dinshah Mull a speaking for the Bench of five), an appeal is an application by a party to an appellate Court asking it to set aside or reverse a decision of a subordinate Court. The appeal does not cease to be an appeal though irregular or incompetent. Placing on record his opinion, Subramania Ayyar, J. as a member of the Full Bench (of five judges) in Chappan v. Moidin Kutti ILR (1899) Mad 68 stated inter alia that appeal is “the removal of a cause or a suit from an inferior to a superior judge or court for re-examination of review”. According to Wharton’s Law Lexicon such removal of a cause or suit is for the purpose of testing the soundness of the decision of the inferior court, in consonance with this particular meaning of appeal, “appellate jurisdiction” means “the power of a superior court to review the decision of an inferior court.” “Here the two things which are required to constitute appellate jurisdiction, are the existence of the relation of superior and inferior court and the power on the part of the former to review decision of the latter. This has been well put by story: “The essential criterion of “appellate jurisdiction” is, that it revises and corrects the proceedings in a cause already instituted and does not create that cause. In reference to judicial tribunals an appellate jurisdiction, therefore, necessary implies that the subject-matter has been already instituted and acted upon, by some other court, whose judgment or proceedings are to be reversed,” (Section 1761, Commentaries on the Constitution of the United States)….

However, it made general observations with respect to the powers of an appellate forum qua the subordinate forum as follows:-

9. In a unified hierarchical judicial system which India has accepted under its Constitution, vertically the Supreme Court is placed over the High Courts. The very fact that the Constitution confers an appellate power on the Supreme Court over the High Courts, certain consequences naturally flow and follow. Appeal implies in its natural and ordinary meaning the removal of a cause from any inferior court or tribunal to a superior one for the purpose of testing the soundness of decision and proceedings of the inferior court or tribunal. The superior forum shall have jurisdiction to reverse, confirm, annul or modify the decree or order of the forum appealed against and in the event of a remand the lower forum shall have to rehear the matter and comply with such directions as may accompany the order of remand. The appellate jurisdiction inherently carries with it a power to issue corrective directions binding on the forum below and failure on the part of the latter to carry out such directions or show disrespect to or to question the propriety of such directions would – it is obvious -be destructive of the hierarchical system in administration of justice. The seekers of justice and the society would lose faith in both.

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11. The very conferral of appellate jurisdiction carries with it certain consequences. Conferral of a principal substantive jurisdiction carries with it, as a necessary concomitant of that power, the power to exercise such other incidental and ancillary powers without which the conferral of the principal power shall be rendered redundant. As held by their Lordships of the Privy Council in AIR 1932 165 (Privy Council) (Sir Dinshaw Mulla speaking for the Bench of five), an appeal is an application by a party to an appellate court asking it to set aside or revise a decision of a subordinate court. The appeal does not cease to be an appeal though irregular or incompetent. Placing on record his opinion, Subramania Ayyar, J. as a member of the Full Bench (of five Judges) in Chappan v. Moidin Kutti [ ILR (1899) 22 Mad 68 : 8 MLJ 231] (at ILR p. 80) stated inter alia that appeal is “the removal of a cause or a suit from an inferior to a superior judge or court for re-examination or review”. According to Wharton’s Law Lexicon such removal of a cause or suit is for the purpose of testing the soundness of the decision of the inferior court. In consonance with this particular meaning of appeal, “appellate jurisdiction” means “the power of a superior court to review the decision of an inferior court”. “Here the two things which are required to constitute appellate jurisdiction, are the existence of the relation of superior and inferior court and the power on the part of the former to review decisions of the latter. This has been well put by Story: “The essential criterion of appellate jurisdiction is, that it revises and corrects the proceedings in a cause already instituted and does not create that cause. In reference to judicial tribunals an appellate jurisdiction, therefore, necessarily implies that the subject-matter has been already instituted and acted upon, by some other court, whose judgment or proceedings are to be revised,’ (Section 1761, Commentaries on the Constitution of the United States).”

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30. The very existence of appellate jurisdiction obliges the lower jurisdiction to render all of its assistance to the higher jurisdiction to enable the exercise of appellate jurisdiction fully and effectively. The lower forum may be called upon to certify its record of case and proceedings to the superior forum. The superior forum may stand in need of some information which being in the possession or knowledge of the subordinate forum, shall have to be made available only by it. The superior forum may issue a stay order or restraint order or may suspend, expedite or regulate the proceedings in the subordinate forum. During or at the end of exercise of the appellate jurisdiction any direction made by the higher forum shall have to be complied with by the lower forum, otherwise the hierarchy becomes meaningless.

The Apex Court in Bolin Chetia v. Jogadish Bhuyan, (2005) 6 SCC 81 : (AIR 2005 SC 1872) in paragraph 9 has held as under :-

“The word appeal is not found defined either in the Act or in the Code of Civil Procedure, 1908 (hereinafter “the Code” for short). In its natural and ordinary meaning, an appeal is a remedy by which a cause determined by an inferior forum is subjected before a superior forum for the purpose of testing the correctness of the decision given by the inferior forum. The right of appeal is a substantive and valuable right of any appellant who is normally a person aggrieved by the impugned decision….”

In Shankar Ramchandra Abhyankar Vs. Krishnaji Dattatreya Bapat, , the Supreme Court pointed out that the appeal is the right of entering the superior court and invoking its aid and interposition to redress the error or the Court below. There are two important postulates of constituting the appellate jurisdiction: (i) the existence of the relation of superior and inferior Court; and (ii) the power in the former to review decisions of the later. Such jurisdiction is capable of being exercised in a variety of forms. An appeal is a process of civil law origin and removes a cause, entirely subjecting the facts as well as the law, to a review and a retrial.