TABLE OF CONTENTS:
- Procedure for appeal
- Appeal and memorandum of appeal
- Revision and Appeal
Introduction:- “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 a 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, Shiv Shakti Coop. Housing Society v. Swaraj Developers, (2003) 6 SCC 659. The term “appeal” is one of clear and definite meaning. If it is so, that meaning shall be given effect to irrespective of the consequences of such construction. If, on the other hand, the meaning of “appeal” is ambiguous, the interpretation that advances the object and purpose of the legislation, shall be accepted. “Appeal” is a term that carries a wide range of connotations with it and appellate jurisdiction can be exercised in a variety of forms. It is not necessary that the exercise of appellate jurisdiction will always involve re-agitation of entire matrix of facts and law. It is not possible to hold that appeal shall mean only a challenge to a decree or order where the entire matrix of law and fact can be re-agitated with respect to the impugned order/decree, Snehadeep Structures (P) Ltd. v. Maharashtra Small-Scale Industries Development Corpn. Ltd., (2010) 3 SCC 34: (2010) 1 SCC (Civ) 603. 10. 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.
Broadly speaking, an appeal is a proceeding taken to rectify an erroneous decision of a court by submitting the question to a higher court, State of Gujarat v. Salimbhai Abdulgaffar Shaikh, (2003) 8 SCC 50. An appeal is a proceeding where an higher forum reconsiders the decision of a lower forum, on questions of fact and questions of law, with jurisdiction to confirm, reverse, modify the decision or remand the matter to the lower forum for fresh decision in terms of its directions. The word “appeal” is not defined either under the Kerala Forest Act, 1961 or under CPC. (Paras 19(i) and 10), James Joseph v. State of Kerala, (2010) 9 SCC 642: (2010) 3 SCC (Civ) 894. The word “appeal” must be construed in its plain and natural sense without the insertion of qualifying words, such as are intended to be introduced by the contention raised before the court. Two reasons were given for this, in the circumstances of the case: (1) The Legislature introducing the provision contemplated that industrial peace should not be disturbed so long as the matter was pending in the court of appeal irrespective of the fact whether such appeal was competent in law; (2) It is for the court to decide the validity or competency and not for the parties, Raja Kulkarni v. State of Bombay, AIR 1954 SC 73: 1954 SCR 384: (1954) 1 LLJ 1: 1954 Cri LJ 351.
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, Bolin Chetia v. Jogadish Bhuyan, (2005) 6 SCC 81. It is a continuation and rehearing of the suit. Appeal court is therefore entitled to take into account even facts and events which came into existence after passing of decree appealed against. Hence, if a new enactment comes into force during pendency of the appeal, appellate court can mould the relief by applying the new enactment, Dilip v. Mohd. Azizul Haq, (2000) 3 SCC 607.
An appeal is the right of entering a superior court invoking its aid and interposition to redress an error of the court below. The central idea behind filing of an appeal revolves round the right as contradistinguished from the procedure laid down therefor. A right of appeal under the Code is statutory. Such right of appeal is also conferred under the letters patent of the High Court or the statutes creating the High Court, Kamla Devi v. Kushal Kanwar, (2006) 13 SCC 295. 8. 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 a decision and proceedings of the inferior court or tribunal and entirely subjecting the facts as well as the law, to a review and a retrial. 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 latter. 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 the administration of justice. The seekers of justice and society would lose faith in both. Moreover, 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. Also, the appeal does not cease to be an appeal though irregular or incompetent, Tirupati Balaji Developers (P) Ltd. v. State of Bihar, (2004) 5 SCC 1.
Procedure for appeal — Appeal “is the right of entering a superior court and invoking its aid and interposition to redress the error of the court below.” An appeal is one “in which the question is, whether the order of the court from which the appeal is brought was right on the materials which that court had before it”, (Ponnamma v. Arumogam, 1905 AC 390). A right of appeal, where it exists, is a matter of substance and not of procedure, (Colonial Sugar Refining Co. v. Irving, 1905 AC 369 and Newman v. Klausner, (1922) 1 KB 228). Of course, procedure is within the Court’s power but where it pares down prejudicially the very right, carving the kernel out, it violates the provision creating the right. Appeal is a remedial right and if the remedy is reduced to a husk by procedural excess, the right became a casualty, Sita Ram v. State of U.P., (1979) 2 SCC 656, 672: 1979 SCC (Cri) 576: AIR 1979 SC 745: 1979 Cri LJ 659.
Appeal and memorandum of appeal — In Wharton’s Law Lexicon, the word “appeal” is defined as the judicial examination of the decision by a higher court of the decision of an inferior court. The appeal is the judicial examination, the memorandum of appeal contains the grounds on which the judicial examination is invited, Lakshmiratan Engg. Works Ltd. v. CST, AIR 1968 SC 488: (1968) 1 SCR 505: 21 STC 154.
Revision and Appeal:- Where both the expressions “appeal” and “revision” are employed in the statute, the latter expression is meant to convey the idea of a much narrower jurisdiction than that conveyed by the former, Sri Raja Lakshmi Dyeing Works v. Rangaswamy Chettiar, (1980) 4 SCC 259. An appeal is a continuation of a suit or proceedings wherein the entire proceedings are again left open for consideration by the Appellate Authorities which has the power to review the entire evidence subject, of course, to the prescribed statutory limitations. But in the case of revision whatever powers the revisional authority may have, it has no power to reassess and reappreciate the evidence unless the statute expressly confers on it that power. That limitation is implicit in the concept of revision, Lachhman Dass v. Santokh Singh, (1995) 4 SCC 201.
Review means re-examination or reconsideration. Basic philosophy inherent in it is the universal acceptance of human fallibility, S. Nagaraj v. State of Karnataka, 1993 Supp (4) SCC 595. 2. A judgement may be open to review if there is a mistake or error apparent on the face of the record. Review jurisdiction is not an appellate jurisdiction where the error of law can be corrected. An erroneous decision can be corrected by the higher forum. A review is by no means an appeal in disguise, Joginder Pal Kapoor v. R.L. Plantation (P) Ltd., (2006) 3 ICC 776 (Cal).
- Manick Chandra Nandy v. Debdas Nandy, (1986) 1 SCC 512 : AIR 1986 SC 446
- Lily Thomas v. Union of India, (2000) 6 SCC 224
- Board of Control for Cricket in India v. Netaji Cricket Club, AIR 2005 SC 592.
- Yunus Ali v. Khursheed Akram, (2008) 7 SCC 293
- Neelakantan v. Mallika Begum, AIR 2002 SC 827
- State of Kerala v. K.M. Charia Abdulla and Co., AIR 1965 SC 1585
- Johri Singh v. Sukh Pal Singh, (1989) 4 SCC 403
- Manick Chandra Nandy v. Debdas Nandy, AIR 1986 SC 446
- S.S. Khanna v. F.J. Dillon, AIR 1964 SC 497
- Sankar Das v. Paradeep Phosphates Ltd., (2009) 108 CLT 533.