CODE OF CIVIL

PROCEDURE
ASSIGNMENT

TITLE: Powers and Duties of Appellate Court.

Submitted to: Submitted by:

Dr. Karan Jawanda Amanpreet Kaur
Roll no. 274/15
BA.LLB(H) 8th sem.
Section-B
Examination roll no. 13013

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 ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my

teacher, Dr. Karan Jawanda, who gave me the golden
opportunity to do this wonderful project on the topic, Powers
and Duties of the Appellate Court, which also helped me in
doing a lot of Research and I came to know about so many new
things. I am really thankful to her.

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 TABLE OF CONTENTS

S NO. TITLE PAGE NO.

1 Introduction 4

2 Sec 107 4-8

3 Order XLI, Rule 23 8-9

4 Order XLI, Rule 23A 9

5 Order XLI, Rule 24 9

6 Order XLI, Rule 25 9

7 Order XLI, Rule 26 9-10

8 Order XLI, Rule 26A 10

9 Order XLI, Rule 27 10

10 Order XLI, Rule 28 10-11

11 Order XLI, Rule 29 11

12 Order XLI, Rule 33 11-13

13 Webliography 14

14 Bibliography 14

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 POWERS OF APPELLATE COURT

An appellate court wherein an appeal of first instance lies

having this prominent stature of entertaining such an appeal must have
certain powers and duties which stands in consonance to its position.
The same have been provided under the Code of Civil Procedure, 1908
in case of civil cases. The power of an appellate court ranges from
powers such as power to decide a case finally which can be seemed as
an obvious power. Other powers such as power to remand, power to
frame issues and refer them for trail, power to take additional evidence
and power to modify a decree are few such powers which the appellate
court adheres while entertaining an appeal.

 SECTION 107: (1) Subject to such conditions and limitations as

may be prescribed, an Appellate Court shall have power
(a) To determine a case finally;
(b) To remand a case;
(c) To frame issues and refer them for trial;

(d) To take additional evidence or to require such evidence to be taken.

(2) Subject as aforesaid, the Appellate Court shall have the same powers
and shall perform as nearly as may be the same duties as are conferred
and imposed by this Code on courts of original jurisdiction in respect of
suits instituted therein.

The provisions of S. 107 as elucidated by Order XLI,

Rule 27, are clearly not intended to allow a litigant who has been
unsuccessful in the lower court to patch up the weak parts of his case
and fill up omissions in the court of appeal. Under Rule 27, cl. (1) (b), it
is only where the appellate court ‘requires’ it, that is, finds it needful that
additional evidence can be admitted. It may be required to enable the
court to pronounce judgment, or for any other substantial cause, but in
either case it must be the court that requires it. The legitimate occasion

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for the exercise of this discretion is not whenever before the appeal is
heard a party applies to adduce fresh evidence but when on examining
the evidence as it stands, some inherent lacuna or defect becomes
apparent.

It is, however, a rule of practice that when there is conflict of oral

evidence of the parties on any matter in issue and the decision hinges
upon the credibility of the witnesses, then unless there is some special
feature about the evidence of a particular witness which has escaped the
trial judge’s notice or there is a sufficient balance of improbability to
displace his opinion as to where the credibility lies, the appellate court
should not interfere with the finding of the trial judge on a question of
fact. It would not detract from the value to be attached to a trial judge’s
finding of fact that the judge does not expressly base his conclusion
upon the impressions he gathers from the demeanour of witnesses.

The appellate court has to bear in mind that it has not

the advantage which the trial judge had in having the witnesses before
him and of observing the manner in which they deposed in court. This
certainly does not mean that when an appeal lies on facts, the appellate
court is not competent to reverse a finding of fact arrived at by the trial
judge. The rule is—and it is nothing more than a rule of practice—that
when there is conflict of oral evidence of the parties on any matter in
issue and the decision hinges upon the credibility of the witnesses, then
unless there is some special feature about the evidence of a particular
witness which has escaped the trial judge’s notice or there is a sufficient
balance of improbability to displace his opinion as to where the
credibility lies, the appellate court should not interfere with the finding
of the trial “judge on a question of fact.

The duty of the appellate court in estimating the

value of oral testimony is to see whether the evidence taken as a whole
can reasonably justify the conclusion which the trial court arrived at or
whether there is an element of improbability arising from proved
circumstances which, in the opinion of the court, outweighs such
finding. In an appeal against a trial court decree, when the appellate
court considers an issue turning on oral evidence, it must bear in mind
that it does not enjoy the advantage which the trial court had in having
the witnesses before it and of observing the manner in which they gave
their testimony.

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 When there is a conflict of oral evidence on any
matter in issue and its resolution turns upon the credibility of the
witnesses, the general rule is that the appellate court should permit the
findings of fact rendered by the trial court to prevail unless it clearly
appears that some special feature about the evidence of a particular
witness has escaped the notice of the trial court or there is sufficient
balance of improbability to displace its opinion as to where the
credibility lies.

In this connection, reference may usefully be made to

 W.C. Macdonald v. Fred Latimer1, where the Privy Council laid

down that when there is a direct conflict between the oral evidence
of the parties, and there is no documentary evidence that clearly
affirms one view or contradicts the other, and there is no sufficient
balance of improbability to displace the trial court’s finding as to
the truth of the oral evidence, the appellate court can interfere only
on a very clear proof of mistake by the trial court.
 Watt v. Thomas2, it was observed: “it is a cogent circumstance that
a Judge of first instance, when estimating the value of verbal
testimony, has the advantage (which is denied to courts of appeal)
of having the witnesses before him and observing the manner in
which their evidence is given.” This was adverted to with approval
by the Privy Council in Sara Veeraswamy v. Talluri Narayya,
(deceased) and found favour with the Supreme Court in Sarju
Pershad v. Raja Jwaleshwari Pratap Narain Singh.

It seemed to their lordships of the Supreme Court that this approach

should be placed in the forefront in considering whether the High Court
proceeded correctly in the evaluation of the evidence before it when
deciding to reverse the findings of the trial court. The principle is one of
practice and governs the weight to be given to a Ending of fact by the
trial court. There is, of course, no doubt that as a matter of law if the
appraisal of the evidence by the trial court suffers from a material
irregularity or is based on inadmissible evidence or on a misreading of
the evidence or on conjectures and surmises the appellate court is
entitled to interfere with the finding of fact.

A somewhat restricted view has been taken by the Allahabad High Court
in the cases discussed below.
1 https://www.casemine.com/judgement/in/56b4961c607dba348f016b7d
2
[1947] AC 484, 1947 SC (HL) 45
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No doubt, the conclusion of the trial court which has an advantage of
hearing the oral evidence and watching the demeanour of witnesses and
has, therefore, a better opportunity of appreciating the oral evidence
should not be lightly disturbed by the first appellate court.

But this rule is nothing more than a rule of practice and by invoking this
rule of practice the High Court in second appeal cannot interfere with
the conclusions of the firs£ appellate court when they are fully supported
by relevant and admissible material on record. A perusal of the judgment
of Sarju Pershad Ramdeo Sahu v. Jwaleshwari3, makes it clear that
what was observed by the Supreme Court was that the rule was nothing
more than a rule of practice.

The legal position in the matter of reappraisal of

evidence by the appellate court under S. 107, C.P.C. is that the findings
of the first appellate court should be sustainable on admissible evidence
on the record, and it is not necessary that judgment of the first appellate
court should come into close quarters with that of the trial court. It was
observed in Chandra Shekhar’s case that the finding of the trial court
on a question of fact arrived at by appreciation of evidence can be
reversed by the lower court in reappraisal of the evidence.

Thus where in the suit for possession of a land, there

being no documentary evidence as to the title of the parties to the suit
land, the trial court after appreciating the evidence upheld the credibility
of the plaintiff’s witnesses and decreed the suit, and in appeal the lower
appellate court on appraisal of the evidence reversed the finding of the
trial court as to the credibility of plaintiff’s witnesses, the reversal was
legal and proper.

Where the decision of the lower appellate court is based

upon a consideration of the material on record, the appellate court is not
required to meet each and every reason advanced by the trial court; and
as such interference in appeal is unwarranted. Although it is generally
desirable that the appellate court should not appraise the oral evidence
for itself, yet S. 96 enjoins upon an appellate court to hear the appeal and
to arrive at its own conclusion about the controversy in suit. It is not
bound by the findings recorded by the trial court in the same manner as a
second appellate court is bound by the findings of fact recorded by a
lower appellate court.

3
https://indiankanoon.org/doc/454120/
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 The trial court is in a better position to appreciate the oral
testimony of the witnesses than the appellate court as it has an advantage
to watch the demeanour of the witnesses. However, it is open to the
appellate court to disturb that appreciation of evidence in cases where
the trial court has misread the evidence or has overlooked the glaring
circumstances of the case. When in the order of the trial court it has been
recorded that the order has been passed by consent of parties, the
appellate court cannot go into the question of correctness of such
recording in the order. It is well-settled principle that the parties by
consent cannot override a provision of a statute.

It is the duty on the part of the Court to satisfy that

the compromise order satisfies the statutory requirements and such
consent order is not opposed to any law, inasmuch as the court cannot
direct to do a thing which is contrary to law. The trial court set aside the
dismissal passed in departmental proceeding on finding that proper
opportunity of hearing was not given in departmental proceedings and
unauthorised absence from duty having been regularised charge of
misconduct does not survive. Lower appellate court said nothing about
finding opportunity of hearing but confirmed finding that charge of
misconduct did not survive. The other finding stood confirms. But lower
appellate court cannot remand the case to punishing authority. High
Court dismissed the second appeal summarily without a adverting to
inconsistent judgment. Supreme Court held it improper, set aside the
order of High Court and upheld the judgment and decree of trial court
setting aside dismissal.4

ORDER XLI

 Rule 23- "Remand of case by Appellate Court"

Where the Court from whose decree an appeal is preferred has disposed
of the suit upon a preliminary point and the decree is reversed in appeal,
the Appellate court may, if it fit, by order remand the case, and may
further direct what issue or issues shall be tried in the case so remanded,
and shall send a copy of its judgment and order to the Court from whose

4
http://www.shareyouressays.com/knowledge/legal-provisions-of-section-107-
of-code-of-civil-procedure-1908-c-p-c-india-powers-of-appellate-court/114345
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decree the appeal is preferred. ,which directions to re-admit the suit
under its original number in the register of civil suits, and proceed to
determine the suit; and the evidence (if any) recorded during the original
trial shall, subject to all just exceptions, be evidence during the trial after
remand.

 Rule 23A -"Remand in other Cases"

Where the Court from whose decree an appeal is preferred has disposed
of the case otherwise than on a preliminary point, and the decree is
reversed in appeal and a re-trial is considered necessary, the Appellate
Court shall have the same powers as it has under rule 23.

 Rule 24-"Where evidence on record sufficient Appellate Court

may determine case finally"

Where the evidence upon the record is sufficient to enable the Appellate
Court to pronounce judgement, the Appellate Court may, after resettling
the issues, if necessary, finally determine the suit, notwithstanding that
the judgement of the Court from whose decree the appeal is preferred
has proceeded wholly upon some ground other than that on which the
Appellate Court proceeds.

 Rule 25- "Where Appellate Court may frame issues and refer
them for trial to Court whose decree appealed from"

Where the Court from whose decree the appeal is preferred has omitted
to frame or try any issue, or to determine any question of fact, which
appears to the Appellate Court essential to the right decision of the suit
upon the merits the Appellate Court may, if necessary, frame issues, and
refer the same for trial to the Court from whose decree the appeal is
preferred, and in such case shall direct such Court to take the additional
evidence required;

and such Court shall proceed to try such issues, and shall return the
evidence to the Appellate Court together its findings thereon and the
reasons therefor within such time as may be fixed by the Appellate
Court or extended by it from time to time.

 Rule 26- "Findings and evidence to be put on record.

Objections to finding"

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(1) Such evidence and findings shall form part of the record in the suit;
and either party may, within a time to be fixed by the Appellate Court,
present a memorandum of objections to any finding.

(2) Determination of appeal- After the expiration of the period so, fixed
for presenting such memorandum the Appellate Court shall proceed to
determine the appeal.

 Rule 26A-"Order of remand to mention date of next hearing"

Where the Appellate Court remands a case under rule 23 or rule 23A, or
frames issues and refers them for trial under rule 25, it shall fix a date
for the appearance of the parties before the Court from whose decree the
appeal was preferred for the purpose of receiving the direction of that
Court as to further proceedings in the suit.

 Rule 27-"Production of additional 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. But if-

(a) the Court from whose decree the appeal is preferred has refused to
admit evidence which ought to have been admitted, or

(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 if due diligence, be
produced by him at the time when the decree appealed against was or)

(b) the Appellate Court requires any document to be produced or any

witness to be examined to enable it to pronounce judgement, 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.

 Rule 28 -"Mode of taking additional evidence"

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Wherever additional evidence is allowed to be produced, the Appellate
Court may either take such evidence, or direct the Court from whose
decree the appeal is preferred, or any other subordinate Court, to take
such evidence and to send it when taken to the Appellate Court.

 Rule 29-"Points to be defined and recorded"

Where additional evidence is directed or allowed to be taken, the

Appellate Court shall specify the points to which the evidence is to be
confined and record on its proceedings the points so specified.

Order of remand:
Matter was remitted to High Court as High Court had assumed wider
field of jurisdiction than one which had been permitted by Supreme
Court and entering into examining whole controversy afresh as if all
contentions of all parties were open before it. Held, that view of High
Court could not be countenanced.

Appellate powers to remand not inhibited by acts or omissions of

parties:
In a suit for possession on the basis of grant of occupancy rights, issue of
effect of earlier grant in favour of the tenant on the subsequent grant in
favour of plaintiff/purchaser from Inamdar was neither addressed to by
any of the Courts below nor had a decision been rendered on the same.
Held, that as the issue of effect and the identity of the land under the two
grants were vital to the just decision of the case, hence, appellate Court
was empowered to remand the whole suit for retrial.

Finality of remand:
Where matter was finally decided in order of remand, the same could not
be subsequently re-agitated before Court to which matter was remanded
nor before Court where appeal was filed against order passed on remand.
Court to which matter was remanded had to act within order of remand.
Held, that once finality was reached, order could not be re-opened.5

 Rule 33 “The appellate court shall have power to pass any decree
and make any order which ought to have been passed or made and
to pass or make such decree or order as the case may require and

5http://www.shareyouressays.com/knowledge/legal-provisions-of-order-xli-of-code-of-civil-
procedure-1908-c-p-c-india-different-stages-of-appeal/114319
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 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,
and may, 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 decree, although an appeal may not have been
filed against such decrees.

Rule 33 of Order XLI, CPC. is in three parts. The first part confers on
the appellate court very wide powers to pass such orders in appeal as the
case may require. The second part contemplates that this wide power
will be exercised by the appellate 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. The third part is where there
have been decrees in cross-suits or where two or more decrees are
passed in one suit, this power is directed to be exercised in respect of all
or any of the decrees, although an appeal may not have been filed
against such decrees.

Where no cause of action is established against one of the defendants,

the appellate court could exercise the power under Order XLI, Rule 33
to set aside the decree passed against such defendant by the trial court.

This rule empowers to appellate court in exceptional circumstances to

pass such decree or order as ought to have been passed even if such
decree would be in favour of parties who have not filed any appeal. This
power is discretionary.

The general principle is that the appellate court must not vary or reverse
a decree/order in favour of a party who has not preferred any appeal.
Order XLI, Rule 33 forms an exception to this general rule.

There was dispute between two court auction purchasers. It is not

improper to set aside decree of redemption in favour of appellant even
though not appealed against by respondent where the court held that the
appellant was not puisne mortgagee to avoid anomalous or absurd result.

In case of dismissal of servant the trial gave findings that proper

opportunity of hearing was not given in departmental proceedings and
unauthorised absence having been regularised charge of misconduct

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disappeared. The lower appellate court confirmed the finding of not
survival of the charge of misconduct but said nothing about the finding
of lack of opportunity of hearing.

The finding about lack of proper opportunity of hearing stood

confirmed. The lower appellate court remanded the case to punishing
authority and High Court summarily dismissed the second appeal
without adverting to inconsistent judgment. The Supreme Court quashed
the order of High Court and restored the judgment and decree passed by
trial court setting aside dismissal.

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 WEBLIOGRAPHY

1. http://www.shareyouressays.com/knowledge/legal-provisions-of-
order-xli-of-code-of-civil-procedure-1908-c-p-c-india-different-
stages-of-appeal/114319
2. https://lawtimesjournal.in/powers-duties-appellate-court/
3. https://www.writinglaw.com/order-41-of-cpc/
4. https://mynation.net/docs/1753-2004/

BIBLIOGRAPHY

1. Takwani C.K, Civil Procedure with Limitation Act, 1963, Eighth

Ed.,2017, Eastern Book Company, New Delhi.

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