First Appeal Practice under CPC

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Under Order 41 of CPC


Few Points

“Courts below had exercised jurisdiction illegally or with material irregularity. There is infirmity in the concurrent finding of facts by both the courts below. The impugned judgments by both the courts below are found to be irrational or vitiated by error”.

  • It is a well settled law that the first appellate court is not always required to frame points of determination as prescribed under Order XLI Rule 31 CPC. It is submitted that it would be sufficient for the first appellate court to records its reasons based on evidence adduced by both parties and if that is done, a mere omission to frame the points of determination could not vitiate the first appellate judgment.Relied on the following cases: (i) H.K.N. Swamy vs. Ishrat Basith, (2005) 10 SCC 243, (ii) Vinod Kumar vs. Gangadhar, (2015) 1 SCC 391, (iii) B.V. Nagesh vs. H.V. Sreenivasa Murthy, (2010) 13 SCC 530, (iv) Jagannath Vs. Arulappa, (2005) 12 SCC 303, (v) Madhukar vs. Sangram, (2001) 4 SCC 756, (vi) Santosh Hazari vs. Purushottam Tiwari, (2001) 3 SCC 179.
  • Laliteshwar Prasad Singh V.. S.P. Srivastava, (2016) 0 Supreme(SC) 997: (2016) 12 Scale 902, it has been  CRP 196/2017 Page 8 of 13 held that “When the appellate court agrees with the views of the trial court on evidence, it need not restate the effect of evidence or reiterate reasons given by the trial court; expression of general agreement with reasons given by the trial court would ordinarily suffice. However, when the first appellate court reverses the findings of the trial court, it must record the findings in clear terms explaining how the reasonings of the trial court is erroneous.
  • It is always desirable for a first appellate court, which is the last court of facts to formulate the points of determination while deciding a first appeal, and it the duty of the first appellate court to see that in its judgment, the points of determination are explicitly set out, reasons are recorded thereon based on evidence so that the judgment reflects the mind of the learned first appellate court
  • No amount of evidence can be looked into if there is no pleading on record in this regard

Order 41


Form of appeal.

What to accompany memorandum. – (1) Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded:

Provided that where two or more suits have been tried together and a common judgment has been delivered therefor and two or more appeals are filed against any decree covered by that judgment, whether by the same appellant or by different appellants, the Appellate Court dispense with the filing of more than one copy of the judgment.

Contents of memorandum

The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative; and such grounds shall be numbered consecutively.

Grounds which may be taken in appeal

The appellant shall not except by leave of the Court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal, but the Appellate Court in deciding the appeal, shall not be confined to the grounds of objections set forth in the memorandum of appeal or taken by leave of the Court under this rule:
Provided that the Court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that ground.

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