This article has been written by Sonali Khatri. She is practicing before the High Court of Rajasthan at Jaipur Bench. She is thankful to Mr. Amit Kuri, Advocate at Rajasthan High Court who gave his inputs for this article. She can be reached at [email protected].

 

The purpose of this article is to help any such advocate who might be stuck with the drafting of a Civil First Appeal. Whether you want to prepare the draft of the appeal or reply to the appeal, this article is meant only for you. Still cannot believe? Scroll down and check it out for yourself. 

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 should I draft a Civil First Appeal?

How should facts be treated and presented while drafting the 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.

How the draft of the Appeal would be different from the draft of a Writ Petition filed before the High Court?

Some of the major differences between the draft of an appeal and draft of a writ petition are as follows: 

1. In the draft of appeal, you would have to prove either of the following: (a) That, by way of the appeal, you are challenging a decree which has been passed by the Court of original jurisdiction. OR (b) that, by way of appeal, you are challenging an order which falls within the list of the orders given under Section 104 and Order 43 Rule 1 of CPC. 

On the other hand, in the draft of writ petition, you would have to, at least, prove that there is some legal or fundamental right of the Petitioner which has been violated by the Order/Judgment which is under challenge by way of this writ petition.

2. In the appeal’s draft, you can challenge the finding of fact. However, the same cannot be done in the draft of a writ petition.
3. In the appeal’s draft, you can give your own version of how evidence ought to have been appreciated by the lower court. 

However, in writ petition’s draft, by no stretch of imagination, you can challenge the way evidence was appreciated by the lower court unless this has any bearing upon the lower court’s jurisdiction itself.

4. In appeal’s draft, you can challenge the decree of the lower court on: facts, law and evidence. However, in writing a petition’s draft, you can challenge the order or judgment on purely legal counts.
5. The scope of challenge in civil first appeal is confined to decree or order passed by the judicial authority. However, in the writ petition, the scope of challenge is extended to any order or judgment (as the case may be) passed by judicial, executive or administrative authority.

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. 

How should I draft Reply to the Civil First Appeal?

What are the possible objections by which the appeal could be dismissed at the preliminary stage itself?

The following preliminary objections can help:

1. That the appeal is not even maintainable for the stated reasons:

• The impugned decree does not satisfy the requirements of Section 96 CPC. OR
• The impugned order does not fall within the list of the orders given under Section 104 read with Order 43 Rule 1 of CPC. 

2. Even otherwise, the impugned decree or order is grounded in law and facts of the case. No infirmity, as such, exists in it.

How should the factual averments be addressed to?

The factual averments should be addressed to in light of the averments made by the Appellant. 

For instance: if the Appellant has alleged that he is not using the plot in question for commercial purposes and therefore, the court’s decree is wrong as the court has wrongly assumed that the appellant is using the plot for commercial purposes i.e. for the user not permissible. In this scenario, it is very crucial for the Respondent to address this factual aspect in his reply to prove conclusively that the Appellant is actually using the plot for commercial purposes by presenting the activity carried out on the Plot resulting to illegal user and by presenting the factum of the permissible user of the land and by portraying and highlighting the testimony of any of the witnesses who admits the commercial user of the land. 

What kind of legal arguments are likely to help the most?

Two types of legal arguments are likely to help the most:

1. The Appellant must have relied on some legal provisions (for example, “X Statute”) to justify as to why his appeal should be allowed. It is very important for you, being the Respondent, to rely on that very law (“X Statute” in this case) to say that the appeal should be dismissed. 
2. Apart from this, there might be some other legal provisions which favor your case. You should consider invoking them as well to state that the appeal should be dismissed. 

What content must be there in the reply to get the appeal dismissed?

The following content can help you get the appeal dismissed:

1. That the appeal has no backing under law. (Use preliminary objections to state this point effectively.)
2. That the Appellant desires this appeal to be allowed on the basis of wrong interpretation of law and facts.
3. That the Appellant desires this appeal to be allowed on the basis of wrong appreciation of evidence. 

What if the Civil First Appeal is filed before the High Court?

What is the ambit/ scope of the High Court’s power while deciding civil first appeal? 

The High Court, while deciding the first appeal, can look into the following things:

1. Whether the impugned decree/ order is based on correct finding of fact?
2. Whether the impugned decree/ order is based on correct finding of law?
3. Whether the impugned decree/ order is based on correct appreciation of evidence?

How is the adjudication of a civil first appeal different from that of a writ petition?

The adjudication of a civil first appeal is different from that of a writ petition for the following reasons:

1. While deciding the appeal, the Court can look into how the evidence was appreciated by the lower court. However, the same cannot be done during the adjudication of the writ petition.
2. While deciding the appeal, the court gives equal importance to the facts. However, the same does not happen during the adjudication of the writ petition.
3. While deciding the appeal, the court acts as the final court of facts. However, the same cannot be said when the Court is entertaining the writ petition.
4. While adjudicating the appeal, the High Court exercises its appellate jurisdiction. However, while adjudicating the writ petition, the High Court exercises its original jurisdiction.
5. While adjudicating the appeal, the maximum relief which the High Court can grant is this: appeal allowed or dismissed. However, while adjudicating the writ petition (if filed under Article 227 of the Constitution of India), the High Court may not only quash the impugned order, but also pass the necessary directions. 

What are the things which the High Court would definitely consider while deciding the civil first appeal?

1. If you have challenged the decree/ order on the ground that it based on an erroneous finding of fact, then the High Court would definitely do the following:
2. Look at the reasoning of the Civil Court to arrive at the aforesaid finding of fact.
3. Consider your argument against that finding of fact.
4. Re-appreciate the entire evidence in light of which it would decide whether the lower court’s finding of fact should be varied, set aside or allowed. 
5. If you have challenged the decree/ order on the ground that it based on an erroneous finding of law, then the High Court would definitely do the following:
6. Look at the reasoning of the Civil Court to arrive at the aforesaid finding of law.
7. Consider your argument against that finding of law.
8. Re-appreciate the arguments of both the sides to conclude whether the lower court’s finding of law should be varied, dismissed or allowed. 

What are the limitations on the powers of the High Court while deciding the first appeal?

The following limitations exist on the powers of the High Court while deciding the first appeal:

1. It cannot give any directions to the lower court apart from merely allowing or dismissing the appeal.
2. It cannot entertain the appeal on the ground that there has been a violation of legal or fundamental right of the Appellant.
3. It cannot decide the appeal in a cryptic manner. 
4. It cannot dispose of the appeal like summary proceedings. Rather, it is required to deal with each and every argument of both the parties, be it on law or facts. After considering these arguments and the reasoning of the lower court, it is required to give its own decision on each issue along with its own reasons.

Disclaimer

This article is based on the limited knowledge and experience of the author. It does not cover all the information which might be relevant for an advocate intending to draft a civil first appeal. The readers of this article are advised to verify the information contained in this article before proceeding to act on the basis of the information in this article. The authors shall not be responsible for any act or omission taken by the reader/s on the basis of information in this article.

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