What are the powers of the appellate Court?

Question: What are the powers of the appellate Court? [BIHAR J 2011]

Find the answer to the mains question only on Legal Bites. [What are the powers of the appellate Court?]

Answer

Provisions for duties and powers of the first appellate court have been made under Section 107 of CPC, 1908. According to Section 107(1), subject to such conditions and limitations as may be prescribed, an appellate court shall have power –

1. To determine a case finally;
2. To remand a case;
3. To frame issues and refer them for trial; and
4. To take additional evidence or to require such evidence to be taken.

According to Section 107(2), of the Code, 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.

i. Final determination of a case – Appellate court has powers to determine a case finally where evidence on record is sufficient. According to Order XLI, Rule 24, if the evidence on record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may re-settle the issues and proceed to determine the suit finally. In this respect, the Appellate Court may proceed on grounds different from those on which the trial court proceeded.

ii. Remand of a case – The term “remand” means to send back. The appellate has the power to remand a case to the trial court. Where the trial court passed a decree court from which the appeal is preferred before the Appellate Court the case may be remanded by the Appellate Court to the Trial Court under certain circumstances.

Provisions for remand have been made under Order XLI, Rule 23 and 23-A of the Code. According to which, where an appeal has been preferred from a decree passed by the trial court, the Appellate Court may, under the provisions of Section 107(1)(b) of the Code, remand it to the trial court. The case is remanded by the Appellate Court to the trial court which passed the decree from which the appeal has been preferred.

Circumstances when the case may be remanded.-Circumstances, when the case may be remanded, are as follows

1. The suit has been disposed of on a preliminary point;
2. The decree appealed against has been reversed; and
3. Other grounds.

iii. Framing of issues and referring them for trial- As per provisions of Order XLI, Rules 25 and 26, the Appellate Court may frame issues and refer them for trial to the court passing the decree when:-

1. The court passing the decree has omitted to frame any issue; or
2. The court passing the decree has omitted to try any issue; or
3. The court passing the decree has omitted to determine any question of fact, which appears to be essential to the right decision of the suit on merits.

Where the Appellate Court frames issues and refers them for trial, it shall fix a date for the appearance of the parties before the court passes the decree.

iv. Production of additional evidence in Appellate Court- As per provision of Order XLI, Rules 27 to 29 of C.P.C., 1908, generally the parties to an appeal are not entitled to produce additional evidence in the Appellate Court. The Appellate Court decides an appeal on the evidence led by the parties before the trial court. But in certain circumstances, the Appellate Court may allow such additional evidence or document to be produced.

The party who was unable to produce evidence in the trial court should be permitted to produce it in the Appellate Court. The Appellate Court may allow such evidence or document to be produced or witnesses to be examined under the following circumstances

1. Where the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted; or
2. Where the party seeking to produce additional evidence established that even after exercise of due diligence, such evidence could not be produced by him at the time of passing of decree appealed against; or
3. Where the Appellate Court itself requires any document to be produced or any witness to be examined to enable it to pronounce the judgment or for any other substantial cause.

Production of the document in the Court– Sub-rule (1) Rule 14 of Order VII, C.P.C. mandates that where a plaintiff sues upon a document in his possession or power, he shall produce the same in Court when the plaint is presented and he shall deliver the said document or a copy to be filed with the plaint. The said provision does not speak of original documents.

Further, the said provision is applicable only at the time of presentation of the plaint. Sub-rule (2) of Rule 14 Order VII, C.P.C. provides that where the plaintiff relies on any other document/documents, whether in his possession or power or not, as evidence in support of his claim, he shall enter such documents in a list to be added or annexed to the plaint.

Order VII, Rule 18, C.P.C. provides that a document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint and, which is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit. The procedure under Order VII, Rule 9, C.P.C. also does not provide rejection of the plaint if the original documents are not filed by the plaintiff.

The order-sheet of Title Suit No. 453 of 2012 discloses that upon presentation of the plaint, the suit was instituted and it was fixed for hearing on the point of admission and the Court is of the opinion that, subject to specific provisions in the Code, after a suit has been instituted, it can only be dismissed or decreed by pronouncing a judgment and the plaint cannot be rejected either under Order VII, Rule 11, C.P.C. or under Order VII, Rule 14, C.P.C. on the ground that the plaintiff has failed to file original documents relating to the suit.

The Court is also of the opinion that the impugned order dated 20.3.2013 suffers from a serious infirmity in law and accordingly, it is set aside. Lal Yashwardham Nath Shahdeo Lal Kumar Nath Shahdeo v. Smt. Rupa Shahdeo and others,[2016 (158) AIC, 323 (Jhar H.C.)]

v. Passing or modifying any decree or making of any order- As per Order XLJ, Rule 33 of C.P.C., 1908, the Appellate Court has power in respect of the following cases:-

1. To pass any decree which ought to have been passed or modify it to make any order which ought to have been made; and
2. To pass further other order or decree, as the case may require.

---

Important Mains Questions Series for Judiciary, APO & University Exams

1. CPC Mains Questions Series: Important Questions Part – I of X
2. CPC Mains Questions Series: Important Questions Part – II of X
3. CPC Mains Questions Series: Important Questions Part – III of X
4. CPC Mains Questions Series: Important Questions Part – IV of X
5. CPC Mains Questions Series: Important Questions Part – V of X
6. CPC Mains Questions Series: Important Questions Part – VI of X
7. CPC Mains Questions Series: Important Questions Part – VII of
8. CPC Mains Questions Series: Important Questions Part – VIII of X
9. CPC Mains Questions Series: Important Questions Part – IX of X
10. CPC Mains Questions Series: Important Questions Part – X of X