INTERNATIONAL JOURNAL OF ADVANCED LEGAL RESEARCH

Module 6
How to draft Civil Miscellaneous first and second Appeals

The expression ‘appeal’ has nowhere been defined in the Code of Civil Procedure,
1908. An appeal, according to Black’s Law Dictionary is “The complaint to a
superior court of an injustice done or error committed by an inferior one, whose
judgment or decision the court above is called upon to correct or reverse. The
removal of a cause from a court of inferior to one of superior jurisdiction, for the
purpose of obtaining a review and retrial.”

What is the law on Civil First Appeals?

What are the Relevant Legal Provisions applicable in the case of Civil First Appeal?

The following legal provisions relate to Civil First Appeal:

1. Section 96 read with Order 41 Rule 31 of the Code of Civil Procedure,

1908 [hereinafter, “CPC”].
2. Sections 97-99A, 104 to 108 of CPC.
3. Order 43 and 44 of the CPC.

In Which Type of Cases, a civil first appeal can be filed?

None of the above legal provisions clearly answer this question. However, it would be
correct to inform about the following:

1. That the right to appeal exists from every decree passed by any court of
original jurisdiction (as per Section 96 of the CPC).
2. That the right to appeal exists against certain orders. The list of these
orders is given under Section 104 and Order 43 Rule 1 of CPC.

If you are planning to file a civil first appeal against an order, then check that the
order does find mention in Section 104 read with Order 43 Rule 1 of CPC.
How to draft a Civil First Appeal?

The answer to this question would depend upon this, “On what grounds are you
challenging the decree?” If you think that the lower court, while passing the decree,
failed to appreciate the facts properly, then you should definitely give a lot of
importance to facts while drafting the appeal.

Suppose, for deciding the case, the learned Judge placed heavy reliance on ‘X’
finding of fact. However, you have a problem with this finding. So you can stress on
the following in your draft:

“That the learned Civil Court has passed the impugned judgment on the basis of X.
However, it is humbly submitted that the aforesaid finding of fact is not correct for
the following reasons:

1.

2.

3. .”

This is one of the ways to deal with the facts.

What kind of legal arguments may be used in the draft?

There are various ways to challenge the decree of the civil court. Some of the possible
legal arguments are as follows:

1. That the Civil Court was not competent to pass the aforesaid decree in
terms that it has been passed.
2. That the Civil Court, by passing the impugned decree, has caused
discrimination against the Appellant and the same is not justified under
law.
3. That the Civil Court, by passing the impugned decree, has upheld the act of
the Respondent although the same was without jurisdiction.
 4. That the Civil Court, by passing the impugned decree, has upheld the
unauthorized and illegal act of the Respondent.
5. That the Civil Court, by passing the impugned decree, has acted in
contravention of the relevant statute and rules.

What content must be there in the appeal to get it allowed?

The following elements can help you get your appeal allowed:

1. By stating that the lower court’s findings on law, fact and evidence are
absolutely erroneous and perverse. However, these statements are not
enough. These statements, coupled with strong reasoning, would definitely
help in getting the appeal allowed. The line of reasoning cannot be stated
here as it would vary from case to case.

For example: if you think that the impugned decree is based on an erroneous finding
of fact, then you should not only submit your own point of view in relation to that fact
but also evidence to strengthen that finding. Ensure that the submitted evidence is
strong enough to come to the conclusion which you want the court to come to. In
essence, strong and convincing pieces of evidence if you are challenging the finding
of fact in civil court.

2. By stating that the lower court has acted without jurisdiction.

3. By stating that a serious illegality would be perpetuated if the appeal is not
allowed.

Second Appeal:

The second appeal has been defined under Section 100 of Code of Civil Procedure
which reads as:

“100. Second appeal:

(1)Save as otherwise expressly provided in the body of this Code or by any other law
for the time being in force, an appeal shall lie to the High Court from every decree
passed in appeal by any Court subordinate to the High Court, if the High Court is
satisfied that the case involves a substantial question of law.

(2) An appeal may lie under this section from an appellate decree passed ex parte.

(3)In an appeal under this section, the memorandum of appeal shall precisely state
the substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law is involved in
any case, it shall formulate that question.

(5) The appeal shall be heard on the question so formulated and the respondent shall,
at the hearing of the appeal, be allowed to argue that the case does not involve such
question: Provided that nothing in this subsection shall be deemed to take away or
abridge the power of the Court to hear, for reasons to be recorded, the appeal on any
other substantial question of law, not formulated by it, if it is satisfied that the case
involves such question.”

The procedural right of the second appeal is conferred by this section on either of the
parties to a civil suit who has been adversely affected by the decree passed by a civil
court. The second appeal lies to the High Court only if the court is satisfied that it
involves a substantial question of law.

On what grounds does a Second Appeal lie?

Section 101 reads as “Second appeal on no other grounds— No second appeal shall
lie except on the ground mentioned in section 100.” therefore, it specifically bars the
second appeal on any other ground mentioned in Section 100. The grounds on which
a Second Appeal shall lie are:
(i) that the appeal should involve a substantial question of law that may either be
presented by the party in a memorandum of appeal or the court may itself formulate
such question;

(ii) that the second appeal may be brought forth where the decree was passed ex parte;

Scope of the Second Appeal

The Second appeal can be exercised only when the case falls under these categories-

(a ) Question of fact.

(b) Question of law should be substantial.

Substantial Question of Law:

A Second Appeal can only be entertained if it involves a substantial question of law.

The expression is not defined in the Code, however, the Supreme Court in Sir
Chunilal V. Mehta And Sons, Ltd. vs The Century Spinning And Manufacturing
Co., Ltd. laid down that “The proper test for determining whether a question of law
raised in the case is substantial would, in our opinion, be whether it is of general
public importance or whether it directly and substantially affects the rights of the
parties and if so whether it is either an open question in the sense that it is not finally
settled by this Court or by the Privy Council or by the Federal Court or is not free
from difficulty or call for discussion of alternative views.”

Question of fact:

The general rule is that the High Court shall only entertain matters involving a
substantial question of law but Section 103 serves a supplementary to this.

Section 103 states: “Power of High Court to determine issues of fact— In any second
appeal, the High Court may, if the evidence on the record is sufficient, determine any
issue necessary for the disposal of the appeal,—
(a) which has not been determined by the lower Appellate Court or both by the Court
of the first instance and the lower Appellate Court, or

(b) which has been wrongly determined by such Court or Courts reason of a decision
on such question of law as is referred to in section 100.”

The particular section talks of two situations when a question of fact can be dealt with
by the court in a second appeal. Firstly, when a necessary issue has not been
determined by either the Lower Court or the Court of the first instance. Secondly,
when the necessary issue has been wrongly determined by the Courts on the
substantial question of law which can properly be the subject matter of the second
appeal under Section 100.

The decree/ judgment passed by any appellate Civil Court in the first appeal can be
challenged by way of a second appeal before the High Court. If the case involves a
substantial question of law . The second appeal can be filed even against an exparte
decree/ judgment of the first appellate court.

Grounds

• A judgment / decree can be challenged in the first appeal on varied grounds

both on basis of facts of the case and as well the legal interpretation of various
legal provisions involved.
• For instance a party may raise objections as regards the territorial and
pecuniary competence of a court passing the challenged judgment and decree.
• If there has been a failure of justice on account of such incompetence.
• Equally, in case all the necessary parties were not joined in the original suit, a
challenge to the judgment decree of such a court can be maintained.
• An appeal may be as well to challenge the interpretation of law as the legal
provisions applied by the subordinate court while making the judgment /
decree any error, defect as irregularity in any proceeding before the
subordinate court affecting the merits of the case as the jurisdiction of such a
court may as well be a sustainable ground while making an appeal.
• The second appeal can be filed only if there exists a substantial question of
law. In the case the question of law would be substantial if it is of general
public importance or which directly and substantially affects rights of the
parties.