An appeal is hearing of the matter already heard and decided by the court of competent Jurisdiction by higher judiciary. When any party to the suit is satisfied that the verdict passed by the court is unjustified or where the party is of the opinion that no proper remedy is given due to any mistake of the court; it can file an appeal with the superior judiciary. However appeal cannot be claimed as a matter of substantive right because it is a statutory right and can be claimed only when statute expressly provide it.
RELEVANT PROVISIONS:
Section 96 through 103 and Section 107 of the Code of Civil Procedure, 1908
Cross Reference:
Section 17 and 18 of the West Pakistan Civil Courts Ordinance 1962;
Order XLI and Order XLII of the Code of Civil Procedure 1908
INTERPRETATION OF THE TERM “APPEAL”:
Court held under PLD 1981 SC 790 that an appeal is a complaint made to a superior court against the decision of a subordinate court with the object of getting such order set aside or revised.
The term Appeal is defined under Black’s Law Dictionary, 7th edn in following words, “To seek review (from a lower court’s decision) by a higher court”
AIM OF RIGHT OF APPEAL:
The object of the right of appeal is to give forum of relief to the party aggrieved of the decision of the court of law if it is suffered from any illegality, irregularity or misreading or non-reading of evidence and also for correction of error of judgment. Appeal gives the party right to put forward its point with more lucidity and comprehension.
RIGHT OF APPEAL AS PROVIDED UNDER CODE OF CIVIL PROCEDURE, 1908:
The Code of Civil Procedure, 1908 recognizes the right of appeal of the litigants against orders and decrees. Under this Code a party can file appeal in thrice; the appeals are named as;
First appeal;
Second appeal; and
Third appeal.
FIRST APPEAL AS PROVIDED UNDER THE CODE OF CIVIL PROCEDURE, 1908:
Section 96 through 99 deals with the right of first appeal.
Section 96:
Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any court exercising original jurisdiction to the court authorized to hear appeals from the decision of such Court.
An appeal may lie from an original decree passed ex parte.
No appeal shall lie from a decree passed by the court with consent of the parties.
IMPORTANT FACTS RELATING TO FIRST APPEAL:
Appeals can only e filed against a decree passed by the court of original jurisdiction;
The court expressly given power to hear the appeal from the decision of such subordinate court;
Forum of appeal is to be determined accordance to the value of the suit as mentioned in the plaint.
RULE OF FILING OF FIRST APPEAL ON PRELIMINARY DECREE:
Section 97 of the Code provides that failure to appeal from a preliminary decree within the prescribed period of the limitation precludes a party from challenging it in an appeal against the decree.
RULE OF MAKING DECISION IN APPEAL:
Section 98 laid down the rule of decision making in appeal;
Where the court is presided over by two or more judges; majority opinion shall form as decision of the court.
Where appeal is heard by two Judges only and the decision of both of them is in contrast to each other; it means; they have not taken a unanimous decision; the matter in question shall be referred to other Judges of the same court than the majority decision shall prevail.
SECOND APPEAL AS PROVIDED UNDER THE CODE OF CIVIL PROCEDURE, 1908:
Section 100 ordains power to hear appeal from appellate forum to the High Court. But second appeal cannot be filed on every decision. It is only when the verdict of the lower court falls within any of the following ground, the appeal may lie;
Decision is contrary of law;
Decision is contrary to usage having force of law;
Decision has failed to determine some material issue of law or usage having the force of law;
There is substantial error or defect in proceedings.
Decision is contrary to law:
Where the court acts in contrary to law, it acts without Jurisdiction and the order to that extent is nullity. Following are guiding principles to determine legality of order;
The case is decided on the basis of evidence;
Discretion is exercised judiciously;
Court has not failed in inferring from the fact on the record;
Court has act within Jurisdiction.
CIRCUMSTANCES WHERE SECOND APPEAL IS BARRED:
Section 102 barred second appeal in following cases;
Where the suit is cognizable by the court of small causes; and
Where the value of the suit does not exceed to 250000 rupees.
DIFFERENCE BETWEEN THE FIRST AND SECOND APPEAL:
First appeal shall lie with the court authorized to hear appeal from the court of original jurisdiction whereas second appeal lies to the High Court against the order of the appellate court.
In order to file first appeal the litigants don’t have to find out any specific ground where second appeal lies where case falls any of the ground mentioned in the Section 100 of the code.
On filing first appeal case is considered to be re-opened whereas in second appeal question of fact can’t be re determined.
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