By Y.Srinivasa Rao, Civil Judge (Sr.Div.)., Tirupati, Andhra Pradesh.
Appeals from original decrees:—
Appellate court’s judgment:- While disposing of Appeal, the appellate court’s judgment has to show that it was applying its mind to the case, there has to be a serious effort to analyse the various points involved. See. B.K.Sri Harsa versus M/s. BHEL, AIR 2008 SC 1267.
Additional evidence: – To adduce additional evidence, an Appellate court can accord permission only after recording a specific finding on the aspects mentioned in Order 41 Rule 27, CPC, as was held in the case of Sajja Malleswara Rao versus Sajja Nageswara Rao & Ors.
Appellate Court:- Under Order 41, Rule 33 of CPC, the duty of the appellate Court is to take note of the subsequent changes in law brought during pendency of appeal and mould the relief in exercise of its power under Order 41 R. 33 of Civil Procedure Code,1908 as was pointed out in the case of Nallamothu Siva Yogeswari versus State of Andhra Pradesh. Further, it is to be noted that Appellate jurisdiction does not attract in relation to an order passed on consent of parties, according the ratio laid down in Shaik Rahamathunnisa Begum’s case.
In Chapala Chinnabbayi versus N.Anasuyamma, 2006 (1) ALD 669, it was held that in second appeal, High Court can permit additional evidence in exceptional circumstances.
An appeal, which is once admitted, cannot be disposed of on merits when neither the appellant nor his counsel is present. It can only be dismissed for default. See. Secretary, Dept. of Horticulture etc. Vs. Raghu Raj, AIR 2009 SC 514. See. Order 42 CPC.
An order refusing to reject the plaint is in the category of a preliminary judgment and it is appeallable as was held in Dr. L.Rama Chandran versus K.Ramesh, AIR 2015 Madras 281. Further, an order rejecting plaint is only a ‘deemed decree’ and agaisnt it a CMA is maintainable, as was held in Ragam Yellaiah Vs. Chinta Shankaraiah, 2003 (3) ALD 105. See. Order 42 CPC.
Order 47 — Review
An error apparent on the face of record:- It was observed in Pulugoru Gopal Reddy Versus M.R.O, Tirupathi (Urban) Mandal, Tirupathi & Anr., 2014 (3) ALD 414 (DB), even if the Division Bench went beyond its powers in a writ appeal, it would be as erroneous decision and not an error apparent on the face of record and cannot be rectified through review jurisdiction in view of Order 47 Rule 1 of Civil Procedure Code,1908.
If the omission of the counsel to cite a case-law is not a ground for review:- The omission of the counsel to cite an authority of law does not amount to an error apparent on the face of the record so as to furnish a ground of review. – Doka Samuel v. Dr. Jacob, (1997) 4 SCC 478.
Possibility of two interpretations:- Possibility of two interpretations of a provision of law is no ground of review. See. B. Sharma Rao v. H.Q. Assistant, 1997 AIHC 911 (Kant).
If an amendment of an Act which was brought out with retrospective effect:- a review would lie if a judgment was rendered erroneously on account of an amendment of an Act which was brought out with retrospective effect. – Raja Shatrunjit v. Mohd. Azmat, (1971) 2 SCC 200.