Rules on Appeal Revision Review & Power of Appellate Court

Question: Discuss Appeal, and revision as mentioned in the Code of Civil Procedure, 1908

Answer:

What is Appeal?

Any aggrieved party can file an appeal against the order of a lower court for the dismissal, amendment or judicial review of the order before a higher court.

1. Appeal should be filed in the form of memorandum. (order 41, rule 1)

2. Every appeal shall be signed by the appellant or his advocate (order 41, rule 1)

3. A copy of the decree or order shall be submitted with each memorandum (order 41, rule 1)

4. The appellant shall not, except by leave of the Court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal; but the Appellate Court, in deciding the appeal, shall not be confined to the grounds of objection set forth in the memorandum of appeal or taken by leave of the Court under this rule. (Order 41, rule 2)

5. If there is no provision of appeal in law, no appeal can be filed.

Appeal may be filed:

1. Against the original decree (ss. 96-99)

2. Appeal from order (ss. 104-106, order -43)

Who can file an appeal:

1. Any person or his legal representative aggrieved by the decree

2. Any interested person with the leave of the court

3. In case of minor, his legal representative

When shall an appeal not lie:

✓Against a compromise decree (section 96(1))

✓Against a decree of the Small Cause Court

✓ Against a decree under section 9 of the Specific Performance Act

If no appeal is made from the preliminary decree:

According to section 97 of the Code of Civil Procedure, if no appeal is made against the preliminary decree, appeal shall not lie against the final decree.

Powers of the Appellate Court:

According to section 107 of the Code of Civil Procedure, the appellate court has the power to:

(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.

Adjournment in appeal:

According to rule 12A of order 41-

✓The Appellate Court shall not grant more than three adjournments for hearing of an appeal at the instance of either party to the appeal, and 

✓any adjournment granted to a party beyond the aforesaid limit shall make such party liable to pay such cost which shall not be less than two hundred taka and more than one thousand taka to the other party as the Court may deem appropriate and determine,

✓ non-compliance with which, by the appellant shall render the appeal liable to be

dismissed and, by the respondent shall render the appeal liable to be disposed of ex parte.

✓An appeal dismissed or disposed of ex parte under sub-rule (1) shall not be revived for hearing unless the party, for whose non-compliance the appeal was dismissed or disposed of ex parte, makes, within thirty days of such dismissal or ex parte disposal, an application to the court for such revival; and upon such application being made, the Court shall award such cost as shall not be less than two hundred taka and more than one thousand taka as it may deem appropriate and determine.

Hearing of appeal:

According to rule 16-22 of order 41:

✓On the day fixed, or on any other day to which the hearing may be adjourned, the appellant shall be heard in support of the appeal

✓Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed.

✓Where the defendant is absent, the court may decide ex parte

✓Upon hearing, respondent may object to decree as if he had preferred separate appeal.

Remedy for the appellant

If an appeal is dismissed, the remedy is provided in rule 19 and 19A of order 41.

✓Where an appeal is dismissed under rule 11, subrule (2), or rule 15A or rule 17 or rule 18, the appellant may apply to the Appellant Court for the re-admission of the appeal, and, where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the Court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit.

✓Notwithstanding anything contained in rule 19 or any other law, the Court may, in order to avoid delay and expedite disposal, directly re-admit without requiring the appellant to adduce evidence to satisfy it about sufficient causes as required under rule 19

✓the appeal under this rule shall not be readmitted unless an application, supported by affidavit, praying for such re-admission is made to the Court within thirty days of the date on which the appeal is dismissed for default:

✓Provided further that no appeal shall be re-admitted more than once under this rule.

Remedy for the respondent:

✓Where an appeal is heard ex parte and judgment is pronounced against the respondent, he may apply to the Appellate Court to re-hear the appeal (rule 21, order 41)

✓Notwithstanding anything contained in rule 21 or any other law, the Court may, in order to avoid delay and expedite disposal, directly re-hear an appeal which is heard ex parte, without requiring the respondent to adduce evidence to satisfy it about sufficient causes as required under rule 21, but requiring him to pay such cost not exceeding three thousand taka as it may deem appropriate and determine(rule 21A, order 41)

What is Revision?

Revision means the amendment of the judicial remedy by the Higher Court in a decree or order issued by the lower court. Section 115 of the Civil Procedure Code deals with the provisions relating to revision.

Who shall apply for revision?

Any aggrieved party by the decree or order.

Where to file a revision?

Revision is to be filed before a higher court.

The courts having revisional powers are:

1. The District Judge

2. The High Court Division

Conditions as to revision:

1. A lower court has passed the order or decree

2. not appealable

3. there is an error in important question of law occasioning failure of justice.

When revision is to be filed before the High Court Division:

According to section 115(1)-

The High Court Division may, on the application of any party aggrieved, call for the record of any suit or proceedings, in which a decree or an order has been passed by a Court of District Judge or Additional District Judge, or a decree has been passed by a Court of Joint District Judge, Senior Assistant Judge or Assistant Judge, from which no appeal lies; and if such Court appears to have committed any error of law resulting in an error in such decree or order occasioning failure of justice, the High Court Division may, revise such decree or order and, make such order in the suit or proceedings, as it thinks fit.

When revision is to be filed before the District Judge:

According to section 115(2)-

The Court of District Judge may, on the application of any party aggrieved, call for the record of any suit or proceeding, in which an order has been passed by a Court of Joint District Judge, Senior Assistant Judge or Assistant Judge, from which no appeals lies; and if such Court appears to have committed any error of law resulting in an error in such order occasioning failure of justice, the Court of District Judge may, revise such order and, make such order as it thinks fit.

What is Second revision?

According to section 115(4) a second revision can be filed against the order of the District Judge or Additional District Judge before the High Court Division.

Question: Can an appeal be filed against the order of the appellate court? If so, when? Discuss with relevant provisions.

Answer:

Generally, in civil cases, a second appeal cannot be filed against the decision of the appellate court. This is because the provision for filing a second appeal has been canceled from the Civil Procedure Code. However, appeals can be filed against certain decisions of the appellate court. For example, if the appellate court does not approve the application for re-appeal under Rule 19 of Order 41, and if the Court of Appeal does not approve the application for re-appeal hearing under Rule 21, an appeal can be filed against that order.

Question: In which case a review can be filed? Discuss.

Answer:

ln which cases a review can be filed:

Generally review means to reconsider or judicial review of an order by the same court. Section 114 of the Civil Procedure Code and Order 46 discuss the provisions relating to reviews. As per Rule 3 of Order 46, the appeal application form will also be used for review application.

When an application for review can be made:

According to order 47, rule 1 of the Code of civil Procedure-

Any person considering himself aggrieved may apply for review of judgment where-

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred

(b) by a decree or order from which no appeal is allowed, or

(c) by a decision on a reference from a Court of Small Causes.

Question: Appeal is the continuation of the original suit-discuss briefly. Discuss the powers and functions of the appellate court. Do you think that appeal lies against every decree?

Answer:

Appeal is the continuation of the original suit-

The case is the proceeding for final decision of the court to resolve the dispute between the plaintiff and the defendant on a matter of judgment. When a court gives judgment, it is final for the court, but if a person is aggrieved by a decision of the trial court, he can appeal to the higher court. Then the decision given in the appeal is the final decision of the case. In fact, this is why it is said that appeal is the continuation of the original case. In the case of Azad v. Mostafizur Rahman, 16 BLC (AD), the Appellate Division said that the appeal is a continuation of the original case. The Court of Appeal, like the trial Court, may exercise all powers. Like the trial court, the appellate court can dispose of both legal and factual questions.

From this discussion we can say that the appeal is a continuation of the original case. The decision of the lower court is not the final decision or conclusion of any case. If an appeal is made against it, the decision of the appellate court is final. Even the decision of the appellate court on appeal is sent back to the judicial court for enforcement, as the decision of the appellate court has to be issued as a judgment of the trial court. Thus appeal is the continuation of the original case.

Powers of the Appellate Court:

According to section 107 of the Code of Civil Procedure, the powers of the appellate court is-

(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.

Court may conclusively determine the suit:

According to rule 24 of order 41 of the Code of Civil Procedure:

Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment 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.

To remand to the lower court by the appellate court:

According to section 107, the appellate court has the jurisdiction to remand the case.

According to rule 23 of order 41-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 thinks 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 decree the appeal is preferred, with 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.

Where the appellate court can frame issue and send those for trial:

According to rule 25 of order 41-

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 with its findings thereon and the reasons therefor.

Where the appellate court can take additional evidence:

According to rule 27 of order 41-

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

(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 Count 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.

Procedure of taking additional evidence:

According to rule 28 of order 41-taking additional evidence:

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

When shall an appeal not lie:

✓Against a compromise decree (section 96(1))

✓Against a decree of the Small Cause Court

✓Against a decree under section 9 of the Specific Performance Act

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