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Discussion on ROLE & POWER of First Appellate Court Under CPC, 1908

Discussion on ROLE & POWER of First Appellate Court Under CPC, 1908. Dy. Dr. ANSHUMAN Advocate Patna High Court Visiting Faculty CNLU, SJA Bihar & Jharkhand Contact details – 9431045259; 9334525365 adv.anshuman@gmail.com. Scope & object of Civil Appellate jurisdiction.

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Discussion on ROLE & POWER of First Appellate Court Under CPC, 1908

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  1. Discussion on ROLE & POWER of First Appellate Court Under CPC, 1908 Dy. Dr. ANSHUMAN Advocate Patna High Court Visiting Faculty CNLU, SJA Bihar & Jharkhand Contact details – 9431045259; 9334525365 adv.anshuman@gmail.com

  2. Scope & object of Civil Appellate jurisdiction What is appeal ? Term appeal no where defined in CPC. (Examination of entire Case by the higher Court of the decision of lower court competent to hear - AIR 1968 SC 488 para – 10) Removal of a cause from a inferior court to a superior court for the purpose of testing of soundness of the decision of inferior court - AIR 1970 SC 1 – para 5 What is jurisdiction ? Term jurisdiction no where defined in CPC. Is appeal re-hearing of entire matter by the higher authority competent to hear.

  3. What is the legal status of appeal ? • Is appeal inherent in character ? • Is appeal statutory in nature ? • Can we compare between the proceedings & character of an appeal or of a suit ? • Which is inherent and which is statutory in nature ? • Inherent Nature of suit comes from which provisions of law? • Sec. 9 of CPC • Statutory nature of appeal comes from which provisions of law? • Part VII [S.96 to 112 & O.41 to 45 of CPC

  4. What is Jurisdiction ? • Jurisdiction means the extent of power of a court to entertain suits, appeals and applications. • These three terms are the beauty of Limitation Act, 1963. • Jurisdiction signify the power, authority, competencyof the court to adjudicatethe disputes presented before it. • Competency to a court & Power of adjudiction to a court comes by the code or statute.

  5. Various types of appeal under CPC • Appeals from Original Decree  • Sec. 96, 97, 98, 99 & 99-A, O.41 CPC • Appeals from Appellate Decree • Sec. 100, 100-A, 101,102, 103 & O.42 CPC • Appeals from Orders  104,105,106 & O.43 • Appeals to the Supreme Court  sec. 109,112 & O.45 • Appeal by Indigent persons  O.44 • Power of Appellate courts  S. 107

  6. Power of Appellate courts  S. 107What to do ? • S. 107 (1) (a)  TO Determine the Case finally • S. 107(1) (b)  TO Remand a Case • S. 107 (1) (c)  TO Frame issues and refer them for trail • S. 107 (1) (d)  TO take additional evidence or to require such evidence to be taken • . 107(2)  Subject to as aforesaid the appellate court has powers and shall perform as nearly as may be the same duties as are conferred by this code on courts of original jurisdiction in respect of suit instituted therein

  7. Power of Appellate courts  S. 107What to do ? • Power described under Sec. 107 CPC i.e. to Determine the Case finally or to Remand a Case or to frame issues and refer them for trail or to take additional evidence or to require such evidence to be taken with aforesaid power the appellate court has powers and shall perform as nearly as may be the same duties as are conferred by this code on courts of original jurisdiction in respect of suit instituted therein. • But this s. 107 has to be used in consonance with O41 R30, 31 & 32 i.e.  for sufficiency of appellate judgment

  8. Power of Appellate courts  S. 107What to do ? • For sufficiency of appellate judgment following things are required  (s.107 & O41R30, 31,32 • Points for determination • The decision thereon • Reasons for such decision • The final order passed i.e. to say whether decree appeal reversed or varied or the relief to which the appellant is entitled for • The judgment may direct that either • For Confirming the decree • For Varying the decree • For Reversing the decree

  9. Power of Appellate courts  S. 107What not to do? • S. 99 CPC No Decree shall be reversed • No decree shall be substantially varied or • No decree shal be remanded • in appeal on account of any • (a) Misjoinder of parties in a suit proceeding • (b) non joinder of parties in a suit proceeding • (c) Cause of action in suit proceeding • (d) any error, defect or irregularity in any proceeding in suit • Not effecting the merit of the case or jurisdiction of the court except non joinder of necessary parties

  10. Appeal preferred against a compromise decree • Order 43 Rule 2  Right to Challenge a non appealable order in appeal against decree • A decree passed in suit after recording compromise or refusing to record compromise on the point that compromise should be recorded or not.

  11. AIR 2017SC 5275 Jaswant Singh Vs Prakash K. • O.43 R.1(c), O.43 R.1(d), O.9 R.9, O.9 R.13, S.141 Appeal from orders - Maintainability Restoration application filed against order of dismissal of O. 9, R. 13 application is application under O. 9, R. 9 and is 'miscellaneous proceeding' covered under S. 141 - In miscellaneous proceedings, rules of procedure in Civil Court relating to appeals or revision are applicable - Rejection of second application for restoration of original application falling under purview of R. 9 and S. 141, comes within purview of O. 43, R. 1(c) - Therefore, appeal against order of dismissal of restoration application and rejection of second application for restoration of original application - Is maintainable and appealable under O. 43, R. 1(c).

  12. Civil Appeal Vs Suit

  13. Civil Appeal Vs Suit

  14. What happens to the issues at the time of hearing of appeal ? • What happens to the issues at the time of hearing of appeal ? • Appellate Court starts hearing on every issues which alleged by the party to be wrongly framed. • O41R23 – It is the power of appellate court that the appeal may be remanded back with a direction that what issue or issues shall be tried in the case so remanded. • O41R23-A  When a case has been decided other than a preliminary issue, the decree is reversed in appeal and re-trail is considered necessary. Appellate court has same power as specified under U/O 41R23.

  15. Yes O41R25CPC – frame issue and refer the same for trial he case on the basis of the evidence available on the record • Frame issue and refer the same for trial • Frame issue and may direct to take additional evidence.

  16. Proceeding under Appeal from Orders • O43 Rule 2 – The Rules of O41 may apply appeal form orders.

  17. Think ! what is distinction between right to appeal & right of filing suit ? • Right to appeal is a statutory Right. It is neither inherent right nor a natural right. • Right to file a suit is inherent right vested in every person to bring a suit of a civil nature unless barred by statute. • An appeal is a continuation of suit. It is virtually a rehearing of the same matter by the higher court • In appeal the appellate court can do three things:- • Remand of case by appellate court under appeal – O.41R23 & 23A • Appellate court may determine case under appeal finally– {either allowing or dismissing the appeal} O41R24 • Frame issue and refer them for trial – O42R25 • Right to appeal is not mere procedural right but is a substantive right in nature.

  18. AIR 1974 SC1126 Ganga Bai Vs Bijay Kumar • In the language of apex court :-Right of suit and right of appeal - Basic distinction between. • (A) There is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute, one may, at one's peril, bring a suit of one's choice. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in regard to appeals is quite the opposite. The right of appeal inheres in no one and therefore, an appeal for its maintainability must have the clear authority of law. That explains why the right of appeal is described as a creature of statute. • (B) The provisions of Sections 96, 100, 104 (1), 105 read with Order 43, Rule 1 of the Code show that an appeal lies only as against a decree or an order passed under rules from which an appeal is expressly allowed by Order 43, Rule 1. No appeal can lie against a mere finding for the simple reason that the Code does not provide for any such appeal.

  19. APPEAL FROM ORIGINAL DECREE – S.96 to 99A & Order XLI • An appeal shall lie from every decree passed by any court exercising original jurisdiction of the court before the court authorised to here appeal • Appeal may be filed from an ex-parte decree • Remedies against Ex-partee decree – • 1. By way of filing Misc. application U/O 9R13 then Misc. appeal U/O 43 Rule 1 • 2. By way of filing review • 3. By way of filing fresh suit • 4. By way of filing appeal U/S 96 of CPC -------- 2004(1)PLJR • Bar in filing appeal • Decree passed by the consent of the parties • Decree passed by small clauses court having value Rs10,000/- (except on question of law)

  20. Appeal Against the Preliminary & Final Decree – • An appeal shall lie against the preliminary decree • An appeal shall lie against the final decree also • But when no appeal filed against the preliminary decree and final decree came then the party aggrieved shall be precluded from disputing the correctness of Preliminary judgment & decree, in any appeal which may be preferred from the final decree.

  21. On what grounds the appeal shall not reversed, substantially varied & remanded ? • On account of any misjoinder or non-joinder of parties (Sec.99 & O1R9&13) • On account of any Cause of action. (sec.99 & O2R3) • On account of any error, defect or irregularity in any proceeding in a suit, not effecting the merits of a case or the jurisdiction of the court. (S.99) • One exception to this is non-joinder of a necessary parties (Sec.99 & O1R9&13)

  22. Appeals from Orders  104,105,106 & O.43 • Order (U/S 35-A –) Imposing Compensatory cost in respect of false or vexatious claim of defence • Order (U/S 91 & 92) – Refusal by the court to grant leave to institute a Suit against Public Nuisances or Suit relating to breach of trust • Order (U/S 95 –) Compensation to defendant for obtaining arrest, attachment or injunction on insufficient grounds by plaintiff • Order passed by the court (U/O 16 R10, 12, 17 & 21) relating to Summoning & attendance of witness • Order passed by the court (U/O 26 R 17) relating to Attendance & examination of witness before Commission • Order imposing a fine or directing arrest or detention in civil prison (except such order made in O. 21CPC) • Order passed by the Court U/O 38 R 1 & 4 – (Arrest & attachment before Judgement • Order passed by the court U/O 39 R 2A – (Disobedience or breach of Injunction)

  23. Appeals from Orders  104,105,106 & O.43 • Order 43 CPC • Order passed U/O 7 R10 – Return of plaint - O 43 R 1(a) • Order passed U/O 9 R 9 – Order rejecting an application to set aside the dismissal of a suit for default – O43 R1(c) • Order passed U/O 9 R13 – Order rejecting the an application to set aside an ex-parte decree – O43 R1(d) • Order passed U/O 11 R 21 – Order dismissing a suit or striking out defence for non compliance with an order for discovery – O43R1(f) • Order passed U/O 21R34 – Order objecting to the draft of a document or an endorsement on a negotiable instrument – O43 R1(i) • Order passed U/O 21 R72 – Order setting aside a sale • Order passed U/O 21 R 92 – Order refusing to set aside sale – O43R1(j)

  24. Appeals from Orders  104,105,106 & O.43 • Order passed U/O 21 R 106(1) – Order rejecting an application to set aside orders passed ex-parte in execution proceeding – O43 R1(ja) • Order passed U/O 22 R9 – Order refusing to set aside the abatement or dismissal of a suit – O43 R 1(k) • Order passed U/O 22 R 10 – Order giving or refusing to give leave to continue a suit by or against assignee – O43 R1(l) • Order passed U/O 25 R 2 – order rejecting an application setting aside the dismissal of suit for non furnishing the security for cost – O43R1(n) • Order passed U/O 33 R 5 & 7 – order rejecting an application for permission to sue as an indigent person - O.43 R1(na) • Order passed U/O 35 R3,4 or 6 –Order passed in inter pleader suit – O43R1(p)

  25. Appeals from Orders  104,105,106 & O.43 • Order passed U/O 38 R 2 & 3 – order passed under provisions relating to arrest and attachment before judgement – O43 R 1(q) • Order passed U/O 39 R 1, 2, 2-A, 4, or 10 – Order passed in temporary injunction and interlocutory orders – O 43 R 1 (r) • Order passed U/O 40 R 1 or 4 – Order passed relating to appointment of receivers – O. 43 R 1(s) • Order passed U/O 41 R 19 & 21 – Order passed procedure in appeal –O43 R1(t) • Order passed U/O 41 R 23 or 23-A – Order passed remanding the case – O.43 R 1(u) • Order passed U/O 47 R 4 – Order granting to an application for review – O.43 R1(w)

  26. What shall be the mode of procedure before appellate forum either in cases of appeal from original decree or in cases of appeal from order ? • Procedure in Appeal – Both Appeals from Original Decree & Appeals from Orders – O. 41 & 43 • Scope of O41 CPC – This provisions deal with the procedures at appellate stages either in Appeal from original decree.

  27. What are the matters which can be discussed in Order 41 stage? • How memo of appeal can be prepared ? • What to accompany Memorandum of appeal? • What shall be contents of Memo of Appeal? • How, What & when rejection, return or amendment of memo of appeal be made? • Has the appellate forum power of condoning delay in filing appeal? • Power of appellate court in granting stay of proceedings and of execution, dismissal ? • Can the appellate court made re-admission of an appeal? • Power of Re-hearing on application? • Power of remand of an appeal? • Power of appellate court to frame issues ? • Power of production of additional evidence at appellate stage • Power of court of appeal

  28. Memorandum of Appeal – Memo of appeal • Every appeal shall be preferred in the form of a memorandum • In every memo of appeal the ground of objection to the decree appealed without any argument or narrative • Every memo of appeal shall be signed by the appellant or his pleader, accompanied by a copy of the judgement Points for discussion? • 1. Who shall sign in case appeal preferred on behalf of minor? • 2. Who may file appeal only the party or some other person ? AIR1999SC1341 • 3. Are appeal & Memo of appeal same ? AIR1968SC488 • 4. Can one appeal preferred from two suits tried & disposed of to gather by a common judgment? • Power to condone delay given in O41R3-A CPC. Can application filed under this provision maintainable ? How it differs from Application U/S 5 of limitation Act, 1963?

  29. Memorandum of Appeal – Memo of appeal • Every appeal shall be preferred in the form of a memorandum • In every memo of appeal the ground of objection to the decree appealed without any argument or narrative • Every memo of appeal shall be signed by the appellant or his pleader, accompanied by a copy of the judgement Points for discussion? • After amendment of 2002 can memo of appeal be accepted without decree under challenge? • Res-judicate shall operate from the decision of appellate court – AIR 1995 SC 2001 – final decision based on for want of jurisdiction, bar on the point of limitation or defecfully constituted 74 PATNA 1 Full Bench – • AIR 1974 Pat 1 Full Bench  Civil P.C. (5 of 1908), S.11, S.96 - Suit dismissed - Adverse finding against defendant - Not appealable when it does not operate as res judicata. • Brief Note :- (A) Whether a party against whom a finding is recorded has got a right of appeal even though the ultimate decision may be in his favour ? Yes, provided the finding can operate as res judicata in a subsequent suit or proceeding.

  30. Points for discussion – Rejection of Memo • Rejection of Memo of appeal +Amendment of memo of appeal + Return of memo of appeal  Described in O41 Rule 3 CPC • When memo is not drawn up in the prescribed manner it may be rejected • When memo is not drawn up in the prescribed manner it be returned to the appellant for the purpose of being amended within a time fixed by the court. • When memo is not drawn up in the prescribed manner it may be amended then and there • When the court rejects any memo it shall record the reason for rejection- AIR 1971 SC 442 & AIR 1974 Pat 1 FB • When the memo is amended, the said officer shall sign or initial on the amendment.

  31. Rejection of Suit O7R11 Not disclosing Cause of action Defect of suit value Defect of court fee If suit barred by any law Plaint not filed in duplicate Plaintiff not complied provision of O.7R9 Amendment of pleadings in O.6R16,17&18cpc Rejection of Memo of appeal O41R3 CPC When memo not prepared in prescribed manner as prescribed in O41 R1 & 2 No special provisions for amendment of memo of appeal When the points of decision shall not operate as res judicate then no need of any appeal AIR 1974 Pat 1 FB Compare the rejection of suit with Rejection of Memo

  32. Power of considering additional grounds by appellate court • Whether the appellant has power to raise additional grounds which he has not taken in the memo of appeal – AIR 1994 SC 1513 – i.e. only with the permission of the court when the said additional ground is of question of law • Leave of the court to raise new points – court has discretion to decide the appeal either on the grounds taken or any other ground but after providing sufficient opportunity on that ground. – O41R2 • The power given under O41R2 CPC to the appellate court does not extent to the making out a new case for either party and to grant relief on that basis.  AIR 1960 SC 213

  33. What shall be effect on change of decree in case only one plaintiff or defendant may appeal from the whole decree? • Where there are more plaintiff or more defendants and only one plaintiff or defendant preferred appeal from the whole decree, then the appellate court may vary the decree in favour of all the plaintiffs or defendants as the case may be. • O41R4CPC • AIR 1964 SC 1425; AIR 1977 SC 789; AIR 1975 SC 733’ AIR 1997 SC 3479; AIR 2003 SC 1754

  34. Power of Stay by appellate court • Filing appeal shall not operate as stay of proceeding under decree or order appealed • Filing appeal shall not operate as stay of execution of a decree • It is the power of the appellate court that it may for sufficient cause order stay of execution of such decree Sufficient Cause means :- • (a) that substantial loss may result to the party applying for stay or execution unless the order is made; • (b) that the application has been made without unreasonable delay; and • (c) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him.

  35. Power of stay by court which passed decree • Stay by Court which passed the decree. • Where an application is made for stay of execution of an appealable decree before the expiration of the time allowed for appealing there from, the Court which passed the decree may on sufficient cause being shown order the execution to be stayed. Which are • (a) that substantial loss may result to the party applying for stay or execution unless the order is made; • (b) that the application has been made without unreasonable delay; and • (c) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him.

  36. Important judgments on Stay • INDIA1967-AIR(SC)-0-761 PUSHPAWATIBAI DECEASED AND AFTER HER HER LEGAL REPRESENTATIVES – Constitutional Bench • 1967-AIR(SC)-0-1386 MULRAJ VS. MURTI RAGHUNATHLL MAHARAJ • 1975-AIR(SC)-0-824 / 1975-SCC-4-628 ROSHANLAL KUTHALIA VS. R B MOHAN SINGH OBEROI • 1982-SCC-3-199 MEHTA TEJA SINGH AND COMPANY VS. GRINDLAYS BANK LIMITED • 1981-AIR(SC)-0-1201 JETHABHAI KHATAU AND COMPANY VS. LUXMI NARAYAN COTTON MILLS LIMITED • 1982-SCC-3-484MOOL CHAND YADAV VS. RAZA BULAND SUGAR COMPANY LTD RAMPUR • 1991-AIR(SC)-0-68 DILIP KUMAR CHAURASIYA VS. RAMESH CHANDRA SAHU BHAIJI • 2004-SCALE-10-345 ATMA RAM PROPERTIES P LTD VS. FEDERAL MOTORS P LTD • 2006-Scale-12-649 G L VIJAIN VS. K SHANKAR • 2008-SCC-3-299 PRADEEP KUMAR VS. HAJARI LAL

  37. Rulings on O41R5 CPC Rulings :- • AIR 1956 Pat 271 BANKIM CHANDRA VS. CHANDI PRASAD • AIR 1962 Pat 37 MOTIRAM ROSHANLAL COAL CO P LTD VS. DISTRICT COMMITTEE • AIR 1972 PAT 499 RAMGULAM CHOUDHARY VS. NAWIN CHOUDHARY • AIR 1973 PAT 335 MANAGING COMMITTEE ADARS UNCHH VIDYALAYA VS. PRESIDENT BOARD OF SECONDARY EDUCATION • AIR 1974 PAT 37 ABDUL RAZAK VS. ABDUL HALIM • BLJ 1980 (1) 303 KALI PRASAD BAJPAYEE VS. BHAGWAT PRASAD • 1990 BLJ (1) 165 ABDUL GHANI VS. MOHD HADI HUSSAIN • 2005-PLJR-3-467 / 2005-BLJR-2-1593 PRABHUNATH SAHU ALIAS PRABHUNATH SAH VS. NAGINA SINGH

  38. APPEAL FROM ORIGINAL DECREE – S.96 to 99A & Order XLI • What grounds are to be taken in Memo of appeal ? – O.41R2 • The appellate court shall confine the grounds of objection taken in the memo only but on the other grounds also. • Court shall provide opportunity to the party who are going to be affected by the order of appeal. • An Appeal can be filed by the heirs & legal representative of the party to the suit who died after passing the J & D. – S. 146 • No appeal shall lie from a decree passed by the court with the consent of parties • Exception to this provision • The alleged consent was given by the lawyer and not by the parties • When Consent order was passed without order or recording the compromise • Where appellant was not party to the consent decree and decree affects him prejudicially. • Appeal shall lie only on the point of the question of law • When a decree passed by court of small causes. • When the value of subject matter of the suit is Rs10,000/- or less

  39. Term additional Evidence used in CPC at O.41Rule 27 CPC • Order 41 of the CPC deals with procedure relating to appeal from original decree. • Order 42 ( appeal from appellate decree) also runs according to O.41 • Order 43 (appeal from orders) also runs according to O.41 • Hence it can be said that the provision relating to Addition evidence is applicable to all matters relating to Appeal from original decree, appeal from appellate decree & appeal from orders. Dr. Anshuman(9431045259

  40. What O 41R 27 says? • This provisions deals with the methods relating to production of additional evidence in Appellate Court. • (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. • Proviso Clause  But if- (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, • [(aa). the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within, his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or • (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced or witness to be examined. • (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission. Dr. Anshuman(9431045259

  41. Analysis O41 Rule 27 • This section is divided into two parts O41R27(1) & O41R27(2). • R27(1) further divided into two parts. The main part and Proviso part. The main part impose bar/ negation. The second part is basically subject to discussion here. • Main part  Parties to the appeal shall not be entitled to produce additional evidence  whether oral or documentary in the appellate court • Second Part  The proviso clause is divided into three situations • I  The parties to the suit has requested to the trial court to take additional evidence but the trial court has refused to admit evidence and deliver the judgement without taking into consideration about the evidence the parties wanted to produce at later stage of the suit. The language of the section clearly states that :- • Situation I  (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted. • i.e. Appellate court is of the view that the refused evidence ought to be admitted. • the appellate court may allow such evidence or document to be produced or witness to be examined. Dr. Anshuman(9431045259

  42. Analysis O41 Rule 27 • Situation II  (aa). the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within, his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or • Under this provision the law maker has created duty on the party who seek to produce the additional evidence must establish • to the appellate court that even after due diligence such document was not within his knowledge, could not be produced before the trial court • the appellate court may allow such evidence or document to be produced or witness to be examined. Dr. Anshuman(9431045259

  43. Analysis O41 Rule 27 • Situation III  (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced or witness to be examined. • Under this provision the law maker has created duty on the Appellate Court who requires any additional evidence (i.e. any documents to be produced or any witness to be examined) to make him able to • 1. pronounce judgement • 2. Any other substantial cause • the appellate court may allow such evidence or document to be produced or witness to be examined. Dr. Anshuman(9431045259

  44. Basis Principles for admission of additional evidence • Based on following important judgements 1. AIR 1975 SC 479, 2. AIR 1997 SC 3243, 3. AIR 1987 SC 294, 4.(1994) 4 SCC, 5.AIR 2001 SC 134, 6. AIR 2004 SC 3685, 6.AIR 2005 SC 996 & 7. AIR 2006 SC 1864 • 1. The parties seeking the admission of additional evidence should be able to establish that such additional evidence could not have be adduced at the first instance with the best efforts. • 2. The party affected by admission of additional evidence should have an opportunity to rebut it. • 3. The additional evidence must be relevant for determination of the issue. • 4. The court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted. • 5. The party seeking to produce additional evidence must show that even after due diligence he failed to produce either due to lack of knowledge or exercise of due diligence. Dr. Anshuman(9431045259

  45. Basis Principles for admission of additional evidence • Based on following important judgements • 8. 2017(3) BLJ SC 89 J.Balaji Singh Vs Diwakar Cole & ors • Once First Appellate court allowed application U/O41Rule 27 and took on record additional evidence, it rightly set aside the judgment and decree of trial court giving liberty the parties to lead evidence in support of their case which in trun enable the trial court to decide civil suit a fresh on merit in the light of entire evidence. • 9. 2018(3) BLJ SC 19 : Sri Y.P. Sudhanva Reddy &anr. Vs Chairman & M.D., Karnataka Milk Federation • Production of additional evidence – First appellate court has jurisdiction under this order to allow parties to file additional evidence if such explanation is given as to why document could not be filed in suit and why they are filed in appeal. Dr. Anshuman(9431045259

  46. Basis Principles for admission of additional evidence • Based on following important judgements • 10. 2017(2) BLJ SC 62 Satish Kumar Gupta Vs state of Haryana & ors • Production of additional evidence – parameter – neither trial court has refused to receive evidence nor it could be said that evidence sought to be adduced was not available despite exercise of due diligence nor ti could be held to necessary to pronounce judgment – Additional evidence can not be permitted to fill-in lacuna or to patch up weak point in case – there was no grund of remand in such circumastances. Dr. Anshuman(9431045259

  47. What Statute Says about Order 41 Rule 33 • Order 41 Rule 33 reals with the Power of Court of Appeal  • The Appellate Court shall have power • First  to pass any decree and make any order which ought to have been passed or made and to pass or-make such further or other decree or order as the case may require, and • Second  this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties, may not have filed any appeal or objection • Third  Where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees • Proviso further  That the Appellate Court shall not make any order under Section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.

  48. What Statute Says about Order 41 Rule 33 • The object of this rule is to enable the appellate court to do complete justice between the parties • 1994(1) BLJ 425 • AIR 1951 Pat 291 , relevant is page293 • 1995 Suppl. (4) SCC 463 • AIR 1988 SC 54 (relevant 58)  The power under order 41 Rule 33 is much wider enough to determine any question not only between the parties to appeal but also between the respondent and correspondent. • AIR 2005 SC 1891 • AIR 1978 SC 725  No hard and fast rule cant be laid down as to the circumstances under which the power under this rule may or may not be exercised and each case must depend in its own facts.

  49. What Statute Says about Order 41 Rule 33 • Whether the discretionary power as given under O41Rule 33 of CPC can be exercised to nullify the effect of the abatement so far as the deceased appellant is concerned – AIR 1963 SC 1901 (this judgment has reversed the AIR 1963 Cal 289) followed in AIR 1981 Pat 199. • Where one of the respondent files an independent appeal and subsequently withdraws the same, he cannot invoke the discretionary power under the rule in his favour. AIR 1966 Pat 151 (relevant pg. 154).

  50. Important & Latest Rulings on O41Rule 33 CPC • Appeal before High Court parties agreed for consideration of material and deliver verdict instead of remanding matter to trail Court – Subsequently, parties can not turn and say no that no concessions were given. • AIR 2003 SC 2418 :: Roop Kumar Vs Mohan Thedami

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