Discussion on ROLE & POWER of

First Appellate Court Under

CPC, 1908
Dy. Dr. ANSHUMAN
Advocate
Patna High Court
Visiting Faculty CNLU, SJA Bihar & Jharkhand
Contact details – 9431045259; 9334525365
adv.anshuman@gmail.com
 Scope & object of Civil Appellate jurisdiction
What is appeal ?

Term appeal no where defined in CPC.

(Examination of entire Case by the higher Court of the decision of lower
court competent to hear - AIR 1968 SC 488 para – 10)
Removal of a cause from a inferior court to a superior court for the purpose
of testing of soundness of the decision of inferior court - AIR 1970 SC 1 –
para 5

What is jurisdiction ?
Term jurisdiction no where defined in CPC.
Is appeal re-hearing of entire matter by the
higher authority competent to hear.
 What is the legal status of appeal ?

Is appeal inherent in character ?

Is appeal statutory in nature ?

Can we compare between the proceedings & character of an

appeal or of a suit ?

Which is inherent and which is statutory in nature ?

Inherent Nature of suit comes from which provisions of law?

– Sec. 9 of CPC

Statutory nature of appeal comes from which provisions of law?

– Part VII [S.96 to 112 & O.41 to 45 of CPC
 What is Jurisdiction ?
Jurisdiction means the extent of power of
a court to entertain suits, appeals and
applications.
– These three terms are the beauty of Limitation Act,
1963.

Jurisdiction signify the power, authority,

competency of the court to adjudicate
the disputes presented before it.
Competency to a court & Power of adjudiction to a
court comes by the code or statute.
Various types of appeal under CPC
Appeals from Original Decree 
– Sec. 96, 97, 98, 99 & 99-A, O.41 CPC

Appeals from Appellate Decree

– Sec. 100, 100-A, 101,102, 103 & O.42 CPC

Appeals from Orders  104,105,106 & O.43

Appeals to the Supreme Court  sec. 109,112

& O.45
Appeal by Indigent persons  O.44
Power of Appellate courts  S. 107
Power of Appellate courts  S. 107
What to do ?
S. 107 (1) (a)  TO Determine the Case finally
S. 107(1) (b)  TO Remand a Case
S. 107 (1) (c)  TO Frame issues and refer
them for trail
S. 107 (1) (d)  TO take additional evidence or
to require such evidence to be taken
. 107(2)  Subject to as aforesaid the
appellate court has powers and shall perform
as nearly as may be the same duties as are
conferred by this code on courts of original
jurisdiction in respect of suit instituted therein
Power of Appellate courts  S. 107
What to do ?
Power described under Sec. 107 CPC i.e. to
Determine the Case finally or to Remand a
Case or to frame issues and refer them for trail
or to take additional evidence or to require
such evidence to be taken with aforesaid power
the appellate court has powers and shall
perform as nearly as may be the same duties
as are conferred by this code on courts of
original jurisdiction in respect of suit instituted
therein.
But this s. 107 has to be used in consonance
with O41 R30, 31 & 32 i.e.  for sufficiency of
appellate judgment
Power of Appellate courts  S. 107
What to do ?
For sufficiency of appellate judgment following
things are required  (s.107 & O41R30, 31,32
Points for determination
The decision thereon
Reasons for such decision
The final order passed i.e. to say whether
decree appeal reversed or varied or the relief to
which the appellant is entitled for
The judgment may direct that either
– For Confirming the decree
– For Varying the decree
– For Reversing the decree
 Power of Appellate courts  S. 107
What not to do?
S. 99 CPC No Decree shall be reversed
No decree shall be substantially varied or
No decree shal be remanded
in appeal on account of any
(a) Misjoinder of parties in a suit proceeding
(b) non joinder of parties in a suit proceeding
(c) Cause of action in suit proceeding
(d) any error, defect or irregularity in any
proceeding in suit
Not effecting the merit of the case or
jurisdiction of the court except non joinder of
necessary parties
 Appeal preferred against a
compromise decree
Order 43 Rule 2  Right to Challenge a non
appealable order in appeal against decree

A decree passed in suit after recording

compromise or refusing to record compromise
on the point that compromise should be
recorded or not.
AIR 2017SC 5275 Jaswant Singh Vs Prakash K.
O.43 R.1(c), O.43 R.1(d), O.9 R.9, O.9 R.13, S.141
Appeal from orders - Maintainability Restoration
application filed against order of dismissal of O.
9, R. 13 application is application under O. 9, R. 9
and is 'miscellaneous proceeding' covered under
S. 141 - In miscellaneous proceedings, rules of
procedure in Civil Court relating to appeals or
revision are applicable - Rejection of second
application for restoration of original application
falling under purview of R. 9 and S. 141, comes
within purview of O. 43, R. 1(c) - Therefore,
appeal against order of dismissal of restoration
application and rejection of second application for
restoration of original application - Is
maintainable and appealable under O. 43, R. 1(c).
 Civil Appeal Vs Suit
Memo of Appeal Contents of Preparation of Plaint  contents
Appeal, Grounds in appeal 41R1,2 of Plaint  O6 & 7

Rejection/ Amendment/ Return of Return  O7R10; Rejection 

Memo  O41R3 O7R11; Amendment  O6R16,17&18

Stay at appellate Stage – O41R5, 6 Stay in Suit  Section 10

Limitation in filing Appeal  O41R3A Limitation in suit S. 3 no provision

& Section 5 of the limitation act for condonation

One of several plaintiff or defendant In suit  this concept has embedded

may obtained reversal of whole in Order 2
decree – O41R4
Registration of Memo of Appeal  Registration of Plaint  Order 4
O41Rule 9 not in use even today

Effect of appearance & non Effect of appearance & non

appearance in appeal  O41R11+17 appearance  O9

Service of notice in appeal  O41R14 Service of notice in suit  Order 5

 Civil Appeal Vs Suit
Right to begin in appeal  Right to begin in suit  Order
O41R16 18Rule 1

Ex-parte Hearing in appealO41R17(2 Ex-parte hearing  O9R11, setting

Re-admission of appeal  O41R18+ aside ex-parte – O9R13
Re-hearing ex-parte – O41R21
Addition of any person as respondent Addition of parties to suit  O1R10
in memo of Appeal O41R20

Concept of cross objection + separate Concept of Counter Claim  O8R6A

appeal  O41R22 to 6-G

Power of appellate court  Remand Power of original court  Order 5

O41R23 & 23-A; Determination 
41R24; Frame issue and remand
before trail court to decide  O41R25
Production of Additional evidence – Production of additional evidence –
O41Rule 27 & 29 Order 18R17

Judgment & Decree  O41R 30, 31 & Judgment & Decree  Order 20
32
 What happens to the issues at the time of
hearing of appeal ?
What happens to the issues at the time of hearing of
appeal ?

Appellate Court starts hearing on every issues which

alleged by the party to be wrongly framed.

O41R23 – It is the power of appellate court that the

appeal may be remanded back with a direction that
what issue or issues shall be tried in the case so
remanded.

O41R23-A  When a case has been decided other than

a preliminary issue, the decree is reversed in appeal
and re-trail is considered necessary. Appellate court
has same power as specified under U/O 41R23.
Yes O41R25CPC – frame issue and
refer the same for trial he case on
the basis of the evidence available on
the record

Frame issue and refer the same for

trial

Frame issue and may direct to take

additional evidence.
 Proceeding under Appeal from
Orders
O43 Rule 2 – The Rules of O41 may
apply appeal form orders.
Think ! what is distinction between right to appeal & right
of filing suit ?
Right to appeal is a statutory Right. It is neither inherent right nor
a natural right.

Right to file a suit is inherent right vested in every person to bring

a suit of a civil nature unless barred by statute.

An appeal is a continuation of suit. It is virtually a rehearing of the

same matter by the higher court

In appeal the appellate court can do three things:-

– Remand of case by appellate court under appeal – O.41R23 &
23A

– Appellate court may determine case under appeal finally–

{either allowing or dismissing the appeal} O41R24

– Frame issue and refer them for trial – O42R25

Right to appeal is not mere procedural right but is a substantive

right in nature.
 AIR 1974 SC1126
Ganga Bai Vs Bijay Kumar
In the language of apex court :-Right of suit and right of
appeal - Basic distinction between.

(A) There is an inherent right in every person to bring a suit of a

civil nature and unless the suit is barred by statute, one may, at
one's peril, bring a suit of one's choice. A suit for its
maintainability requires no authority of law and it is enough that
no statute bars the suit. But the position in regard to appeals is
quite the opposite. The right of appeal inheres in no one and
therefore, an appeal for its maintainability must have the clear
authority of law. That explains why the right of appeal is described
as a creature of statute.

(B) The provisions of Sections 96, 100, 104 (1), 105 read with
Order 43, Rule 1 of the Code show that an appeal lies only as
against a decree or an order passed under rules from which an
appeal is expressly allowed by Order 43, Rule 1. No appeal can lie
against a mere finding for the simple reason that the Code does
not provide for any such appeal.
APPEAL FROM ORIGINAL DECREE – S.96 to 99A & Order XLI
An appeal shall lie from every decree passed by any court
exercising original jurisdiction of the court before the court
authorised to here appeal

Appeal may be filed from an ex-parte decree

Remedies against Ex-partee decree –

1. By way of filing Misc. application U/O 9R13 then Misc. appeal
U/O 43 Rule 1
2. By way of filing review
3. By way of filing fresh suit
4. By way of filing appeal U/S 96 of CPC
-------- 2004(1)PLJR

Bar in filing appeal

– Decree passed by the consent of the parties
– Decree passed by small clauses court having value Rs10,000/-
(except on question of law)
Appeal Against the Preliminary & Final
Decree –
An appeal shall lie against the preliminary decree

An appeal shall lie against the final decree also

But when no appeal filed against the preliminary

decree and final decree came then the party
aggrieved shall be precluded from disputing the
correctness of Preliminary judgment & decree, in any
appeal which may be preferred from the final decree.
 On what grounds the appeal shall
not reversed, substantially varied &
remanded ?
On account of any misjoinder or non-joinder of parties
(Sec.99 & O1R9&13)
On account of any Cause of action. (sec.99 & O2R3)

On account of any error, defect or irregularity in any proceeding in

a suit, not effecting the merits of a case or the jurisdiction of the
court. (S.99)

One exception to this is non-joinder of a necessary parties

(Sec.99 & O1R9&13)
 Appeals from Orders  104,105,106 & O.43
Order (U/S 35-A –) Imposing Compensatory cost in respect of
false or vexatious claim of defence

Order (U/S 91 & 92) – Refusal by the court to grant leave to

institute a Suit against Public Nuisances or Suit relating to
breach of trust

Order (U/S 95 –) Compensation to defendant for obtaining arrest,

attachment or injunction on insufficient grounds by plaintiff
– Order passed by the court (U/O 16 R10, 12, 17 & 21) relating to
Summoning & attendance of witness
– Order passed by the court (U/O 26 R 17) relating to Attendance &
examination of witness before Commission

Order imposing a fine or directing arrest or detention in civil prison

(except such order made in O. 21CPC)
– Order passed by the Court U/O 38 R 1 & 4 – (Arrest & attachment
before Judgement
– Order passed by the court U/O 39 R 2A – (Disobedience or breach of
Injunction)
 Appeals from Orders  104,105,106 & O.43
– Order 43 CPC
Order passed U/O 7 R10 – Return of plaint - O 43 R 1(a)

• Order passed U/O 9 R 9 – Order rejecting an application to set

aside the dismissal of a suit for default – O43 R1(c)

• Order passed U/O 9 R13 – Order rejecting the an application

to set aside an ex-parte decree – O43 R1(d)

• Order passed U/O 11 R 21 – Order dismissing a suit or striking

out defence for non compliance with an order for discovery
– O43R1(f)

• Order passed U/O 21R34 – Order objecting to the draft of a

document or an endorsement on a negotiable instrument –
O43 R1(i)

• Order passed U/O 21 R72 – Order setting aside a sale

• Order passed U/O 21 R 92 – Order refusing to set aside sale –

O43R1(j)
 Appeals from Orders  104,105,106 & O.43
• Order passed U/O 21 R 106(1) – Order rejecting an application to
set aside orders passed ex-parte in execution proceeding – O43
R1(ja)

• Order passed U/O 22 R9 – Order refusing to set aside the

abatement or dismissal of a suit – O43 R 1(k)

• Order passed U/O 22 R 10 – Order giving or refusing to give leave

to continue a suit by or against assignee – O43 R1(l)

Order passed U/O 25 R 2 – order rejecting an application setting

aside the dismissal of suit for non furnishing the security for cost
– O43R1(n)

Order passed U/O 33 R 5 & 7 – order rejecting an application for

permission to sue as an indigent person - O.43 R1(na)

Order passed U/O 35 R3,4 or 6 – Order passed in inter pleader

suit – O43R1(p)
 Appeals from Orders  104,105,106 & O.43
Order passed U/O 38 R 2 & 3 – order passed under provisions
relating to arrest and attachment before judgement – O43 R 1(q)

Order passed U/O 39 R 1, 2, 2-A, 4, or 10 – Order passed in

temporary injunction and interlocutory orders – O 43 R 1 (r)

Order passed U/O 40 R 1 or 4 – Order passed relating to

appointment of receivers – O. 43 R 1(s)

Order passed U/O 41 R 19 & 21 – Order passed procedure in

appeal –O43 R1(t)

Order passed U/O 41 R 23 or 23-A – Order passed remanding the

case – O.43 R 1(u)

Order passed U/O 47 R 4 – Order granting to an application for

review – O.43 R1(w)
What shall be the mode of procedure
before appellate forum either in cases
of appeal from original decree or in
cases of appeal from order ?

Procedure in Appeal – Both Appeals

from Original Decree & Appeals from
Orders – O. 41 & 43
Scope of O41 CPC – This provisions deal
with the procedures at appellate stages
either in Appeal from original decree.
 What are the matters which can be
discussed in Order 41 stage?
How memo of appeal can be prepared ?
What to accompany Memorandum of appeal?
What shall be contents of Memo of Appeal?
How, What & when rejection, return or amendment of memo of
appeal be made?
Has the appellate forum power of condoning delay in filing appeal?
Power of appellate court in granting stay of proceedings and of
execution, dismissal ?
Can the appellate court made re-admission of an appeal?
Power of Re-hearing on application?
Power of remand of an appeal?
Power of appellate court to frame issues ?
Power of production of additional evidence at appellate stage
Power of court of appeal
 Memorandum of Appeal – Memo of appeal
Every appeal shall be preferred in the form of a memorandum
In every memo of appeal the ground of objection to the decree
appealed without any argument or narrative
Every memo of appeal shall be signed by the appellant or his
pleader, accompanied by a copy of the judgement
Points for discussion?
1. Who shall sign in case appeal preferred on behalf of minor?
2. Who may file appeal only the party or some other person ?
AIR1999SC1341
3. Are appeal & Memo of appeal same ? AIR1968SC488
4. Can one appeal preferred from two suits tried & disposed of to
gather by a common judgment?
Power to condone delay given in O41R3-A CPC. Can application
filed under this provision maintainable ? How it differs from
Application U/S 5 of limitation Act, 1963?
 Memorandum of Appeal – Memo of appeal
Every appeal shall be preferred in the form of a memorandum
In every memo of appeal the ground of objection to the decree
appealed without any argument or narrative
Every memo of appeal shall be signed by the appellant or his
pleader, accompanied by a copy of the judgement
Points for discussion?
After amendment of 2002 can memo of appeal be accepted
without decree under challenge?
Res-judicate shall operate from the decision of appellate court –
AIR 1995 SC 2001 – final decision based on for want of
jurisdiction, bar on the point of limitation or defecfully constituted
74 PATNA 1 Full Bench –
AIR 1974 Pat 1 Full Bench  Civil P.C. (5 of 1908), S.11,
S.96 - Suit dismissed - Adverse finding against defendant -
Not appealable when it does not operate as res judicata.
Brief Note :- (A) Whether a party against whom a finding is
recorded has got a right of appeal even though the ultimate
decision may be in his favour ? Yes, provided the finding can
operate as res judicata in a subsequent suit or proceeding.
 Points for discussion – Rejection of Memo
Rejection of Memo of appeal +Amendment of memo of appeal +
Return of memo of appeal  Described in O41 Rule 3 CPC

When memo is not drawn up in the prescribed manner it may be

rejected

When memo is not drawn up in the prescribed manner it be

returned to the appellant for the purpose of being amended
within a time fixed by the court.

When memo is not drawn up in the prescribed manner it may be

amended then and there

When the court rejects any memo it shall record the reason for
rejection- AIR 1971 SC 442 & AIR 1974 Pat 1 FB

When the memo is amended, the said officer shall sign or initial on
the amendment.
Compare the rejection of suit with
Rejection of Memo
Rejection of Suit
O7R11
Not disclosing Cause of
action
Defect of suit value
Defect of court fee
If suit barred by any law
Plaint not filed in duplicate
Plaintiff not complied
provision of O.7R9
Amendment of pleadings in
O.6R16,17&18cpc
Rejection of Memo of
appeal
O41R3 CPC
When memo not prepared
in prescribed manner as
prescribed in O41 R1 & 2
No special provisions for
amendment of memo of
appeal
When the points of
decision shall not operate
as res judicate then no
need of any appeal
AIR 1974 Pat 1 FB
 Power of considering additional grounds by
appellate court
Whether the appellant has power to raise additional grounds which
he has not taken in the memo of appeal – AIR 1994 SC 1513 – i.e.
only with the permission of the court when the said additional
ground is of question of law

Leave of the court to raise new points – court has discretion to

decide the appeal either on the grounds taken or any other ground
but after providing sufficient opportunity on that ground. – O41R2

The power given under O41R2 CPC to the appellate court does not
extent to the making out a new case for either party and to grant
relief on that basis.  AIR 1960 SC 213
 What shall be effect on change of
decree in case only one plaintiff or
defendant may appeal from the
whole decree?
Where there are more plaintiff or more
defendants and only one plaintiff or defendant
preferred appeal from the whole decree, then
the appellate court may vary the decree in
favour of all the plaintiffs or defendants as the
case may be.
O41R4CPC
AIR 1964 SC 1425; AIR 1977 SC 789; AIR 1975 SC 733’
AIR 1997 SC 3479; AIR 2003 SC 1754
 Power of Stay by appellate court
Filing appeal shall not operate as stay of proceeding under decree
or order appealed

Filing appeal shall not operate as stay of execution of a decree

It is the power of the appellate court that it may for sufficient

cause order stay of execution of such decree

Sufficient Cause means :-

(a) that substantial loss may result to the party applying for stay
or execution unless the order is made;

(b) that the application has been made without unreasonable

delay; and

(c) that security has been given by the applicant for the due
performance of such decree or order as may ultimately be binding
upon him.
 Power of stay by court which
passed decree
Stay by Court which passed the decree.
Where an application is made for stay of execution of
an appealable decree before the expiration of the time
allowed for appealing there from, the Court which
passed the decree may on sufficient cause being
shown order the execution to be stayed. Which are
(a) that substantial loss may result to the party
applying for stay or execution unless the order is
made;
(b) that the application has been made without
unreasonable delay; and
(c) that security has been given by the applicant for
the due performance of such decree or order as may
ultimately be binding upon him.
 Important judgments on Stay
INDIA1967-AIR(SC)-0-761 PUSHPAWATIBAI DECEASED AND
AFTER HER HER LEGAL REPRESENTATIVES – Constitutional Bench
1967-AIR(SC)-0-1386 MULRAJ VS. MURTI RAGHUNATHLL
MAHARAJ
1975-AIR(SC)-0-824 / 1975-SCC-4-628 ROSHANLAL KUTHALIA
VS. R B MOHAN SINGH OBEROI
1982-SCC-3-199 MEHTA TEJA SINGH AND COMPANY VS.
GRINDLAYS BANK LIMITED
1981-AIR(SC)-0-1201 JETHABHAI KHATAU AND COMPANY VS.
LUXMI NARAYAN COTTON MILLS LIMITED
1982-SCC-3-484MOOL CHAND YADAV VS. RAZA BULAND SUGAR
COMPANY LTD RAMPUR
1991-AIR(SC)-0-68 DILIP KUMAR CHAURASIYA VS. RAMESH
CHANDRA SAHU BHAIJI
2004-SCALE-10-345 ATMA RAM PROPERTIES P LTD VS. FEDERAL
MOTORS P LTD
2006-Scale-12-649 G L VIJAIN VS. K SHANKAR
2008-SCC-3-299 PRADEEP KUMAR VS. HAJARI LAL
 Rulings on O41R5 CPC
Rulings :-
AIR 1956 Pat 271 BANKIM CHANDRA VS. CHANDI PRASAD

AIR 1962 Pat 37 MOTIRAM ROSHANLAL COAL CO P LTD VS.

DISTRICT COMMITTEE

AIR 1972 PAT 499 RAMGULAM CHOUDHARY VS. NAWIN

CHOUDHARY

AIR 1973 PAT 335 MANAGING COMMITTEE ADARS UNCHH

VIDYALAYA VS. PRESIDENT BOARD OF SECONDARY EDUCATION

AIR 1974 PAT 37 ABDUL RAZAK VS. ABDUL HALIM

BLJ 1980 (1) 303 KALI PRASAD BAJPAYEE VS. BHAGWAT PRASAD

1990 BLJ (1) 165 ABDUL GHANI VS. MOHD HADI HUSSAIN

2005-PLJR-3-467 / 2005-BLJR-2-1593 PRABHUNATH SAHU ALIAS

PRABHUNATH SAH VS. NAGINA SINGH
APPEAL FROM ORIGINAL DECREE – S.96 to 99A & Order XLI
What grounds are to be taken in Memo of appeal ? – O.41R2
– The appellate court shall confine the grounds of objection taken in the
memo only but on the other grounds also.
– Court shall provide opportunity to the party who are going to be
affected by the order of appeal.

An Appeal can be filed by the heirs & legal representative of the party to
the suit who died after passing the J & D. – S. 146

No appeal shall lie from a decree passed by the court with the consent of
parties
– Exception to this provision
The alleged consent was given by the lawyer and not by the
parties
When Consent order was passed without order or recording the
compromise
Where appellant was not party to the consent decree and decree
affects him prejudicially.
Appeal shall lie only on the point of the question of law
– When a decree passed by court of small causes.
– When the value of subject matter of the suit is Rs10,000/- or less
 Term additional Evidence used in CPC at
O.41Rule 27 CPC
Order 41 of the CPC deals with procedure relating to appeal
from original decree.
Order 42 ( appeal from appellate decree) also runs
according to O.41
Order 43 (appeal from orders) also runs according to O.41

Hence it can be said that the provision relating to Addition

evidence is applicable to all matters relating to Appeal from
original decree, appeal from appellate decree & appeal from
orders.

Dr. Anshuman(9431045259
 What O 41R 27 says?
This provisions deals with the methods relating to production of
additional evidence in Appellate Court.
(1) The parties to an appeal shall not be entitled to produce
additional evidence, whether oral or documentary, in the Appellate
Court.
Proviso Clause  But if- (a) the Court from whose decree the
appeal is preferred has refused to admit evidence which ought to
have been admitted,
[(aa). the party seeking to produce additional evidence,
establishes that notwithstanding the exercise of due diligence,
such evidence was not within, his knowledge or could not, after
the exercise of due diligence, be produced by him at the time
when the decree appealed against was passed, 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 Court 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.

Dr. Anshuman(9431045259
 Analysis O41 Rule 27
This section is divided into two parts O41R27(1) & O41R27(2).

R27(1) further divided into two parts. The main part and Proviso part. The
main part impose bar/ negation. The second part is basically subject to
discussion here.

Main part  Parties to the appeal shall not be entitled to produce

additional evidence  whether oral or documentary in the appellate court

Second Part  The proviso clause is divided into three situations

I  The parties to the suit has requested to the trial court to take
additional evidence but the trial court has refused to admit evidence and
deliver the judgement without taking into consideration about the
evidence the parties wanted to produce at later stage of the suit. The
language of the section clearly states that :-

Situation I  (a) the Court from whose decree the appeal is preferred has
refused to admit evidence which ought to have been admitted.
i.e. Appellate court is of the view that the refused evidence ought to be
admitted.

the appellate court may allow such evidence or document to be produced

or witness to be examined.

Dr. Anshuman(9431045259
 Analysis O41 Rule 27
Situation II  (aa). the party seeking to produce additional
evidence, establishes that notwithstanding the exercise of due
diligence, such evidence was not within, his knowledge or could
not, after the exercise of due diligence, be produced by him at the
time when the decree appealed against was passed, or

Under this provision the law maker has created duty on the party
who seek to produce the additional evidence must establish

to the appellate court that even after due diligence such

document was not within his knowledge, could not be produced
before the trial court

the appellate court may allow such evidence or document to be

produced or witness to be examined.

Dr. Anshuman(9431045259
 Analysis O41 Rule 27
Situation III  (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 Court may allow such evidence or document to be
produced or witness to be examined.

Under this provision the law maker has created duty on the
Appellate Court who requires any additional evidence (i.e. any
documents to be produced or any witness to be examined) to
make him able to
1. pronounce judgement
2. Any other substantial cause

the appellate court may allow such evidence or document to be

produced or witness to be examined.

Dr. Anshuman(9431045259
Basis Principles for admission of additional evidence
Based on following important judgements 1. AIR 1975 SC 479, 2.
AIR 1997 SC 3243, 3. AIR 1987 SC 294, 4.(1994) 4 SCC, 5.AIR
2001 SC 134, 6. AIR 2004 SC 3685, 6.AIR 2005 SC 996 & 7. AIR
2006 SC 1864
1. The parties seeking the admission of additional evidence should
be able to establish that such additional evidence could not have
be adduced at the first instance with the best efforts.
2. The party affected by admission of additional evidence should
have an opportunity to rebut it.
3. The additional evidence must be relevant for determination of
the issue.
4. The court from whose decree the appeal is preferred has
refused to admit evidence which ought to have been admitted.
5. The party seeking to produce additional evidence must show
that even after due diligence he failed to produce either due to
lack of knowledge or exercise of due diligence.

Dr. Anshuman(9431045259
Basis Principles for admission of additional evidence
Based on following important judgements
8. 2017(3) BLJ SC 89 J.Balaji Singh Vs Diwakar Cole & ors
Once First Appellate court allowed application U/O41Rule 27 and
took on record additional evidence, it rightly set aside the
judgment and decree of trial court giving liberty the parties to lead
evidence in support of their case which in trun enable the trial
court to decide civil suit a fresh on merit in the light of entire
evidence.

9. 2018(3) BLJ SC 19 : Sri Y.P. Sudhanva Reddy &anr. Vs Chairman

& M.D., Karnataka Milk Federation
Production of additional evidence – First appellate court has
jurisdiction under this order to allow parties to file additional
evidence if such explanation is given as to why document could
not be filed in suit and why they are filed in appeal.

Dr. Anshuman(9431045259
Basis Principles for admission of additional evidence
Based on following important judgements
10. 2017(2) BLJ SC 62 Satish Kumar Gupta Vs state of Haryana &
ors
Production of additional evidence – parameter – neither trial court
has refused to receive evidence nor it could be said that evidence
sought to be adduced was not available despite exercise of due
diligence nor ti could be held to necessary to pronounce judgment
– Additional evidence can not be permitted to fill-in lacuna or to
patch up weak point in case – there was no grund of remand in
such circumastances.

Dr. Anshuman(9431045259
 What Statute Says about Order
41 Rule 33
Order 41 Rule 33 reals with the Power of Court of Appeal 
The Appellate Court shall have power
First  to pass any decree and make any order which ought to have been
passed or made and to pass or-make such further or other decree or
order as the case may require, and
Second  this power may be exercised by the Court notwithstanding that
the appeal is as to part only of the decree and may be exercised in favour
of all or any of the respondents or parties, although such respondents or
parties, may not have filed any appeal or objection
Third  Where there have been decrees in cross-suits or where two or
more decrees are passed in one suit, be exercised in respect of all or any
of the decrees, although an appeal may not have been filed against such
decrees
Proviso further  That the Appellate Court shall not make any order under
Section 35A, in pursuance of any objection on which the Court from
whose decree the appeal is preferred has omitted or refused to make such
order.
 What Statute Says about Order
41 Rule 33
The object of this rule is to enable the appellate court to do
complete justice between the parties
1994(1) BLJ 425
AIR 1951 Pat 291 , relevant is page293
1995 Suppl. (4) SCC 463
AIR 1988 SC 54 (relevant 58)  The power under order 41
Rule 33 is much wider enough to determine any question
not only between the parties to appeal but also between the
respondent and correspondent.
AIR 2005 SC 1891
AIR 1978 SC 725  No hard and fast rule cant be laid down
as to the circumstances under which the power under this
rule may or may not be exercised and each case must
depend in its own facts.
 What Statute Says about Order
41 Rule 33
Whether the discretionary power as given under
O41Rule 33 of CPC can be exercised to nullify
the effect of the abatement so far as the
deceased appellant is concerned – AIR 1963 SC
1901 (this judgment has reversed the AIR 1963
Cal 289) followed in AIR 1981 Pat 199.

Where one of the respondent files an

independent appeal and subsequently withdraws
the same, he cannot invoke the discretionary
power under the rule in his favour. AIR 1966 Pat
151 (relevant pg. 154).
 Important & Latest Rulings on O41Rule 33 CPC
Appeal before High Court parties agreed
for consideration of material and deliver
verdict instead of remanding matter to
trail Court – Subsequently, parties can
not turn and say no that no concessions
were given.
AIR 2003 SC 2418 :: Roop Kumar Vs
Mohan Thedami
 Misc. & review Jurisdiction Jurisdiction

Section 141 of CPC  It talks about Misc. Proceeedings The

proceedings provided in this case in regard to suits shall be
followed, as far as it can be made applicable in a proceedings in
any court of civil jurisdiction
Explaination --. IN this section, the expression “:proceeding”
incudes proceedings u/o IX but does not include any proceedings
under art. 226 of the Constitutionof India
In Order 41 all basis matters laid down in order IX has also there
so it may apply in order 41 also. Particularily in
O41R17(1) – Dismissal of appeal
O41R17(2) – Hearing appeal ex-parte
Remedy against dismissal under O41Rule 17(1) – Misc. Case 
Order 41 Rule 19 – Re admission of appeal
Remedy against ex-party under Order 41Rule 17(2) – Misc. Case
 Order 41Rule 21 Re hearing of appeal
 REVIEW of a Judgment
AIR 1963 SC 1909 – 5 Judges Bench of S.C. on the point of review
(A) Civil P.C. (5 of 1908), O.41, R.1, O.3, R.4 - APPEAL - ADVOCATE -
APPOINTMENT - Appeal - Memorandum - Signing of, by appellant or his
pleader - Is mandatory - But it is a procedural provision - Non compliance
does not entail automatic rejection of appeal without giving opportunity to
rectify defect.
(C) Civil P.C. (5 of 1908), O.41, R.1 - APPEAL - EVICTION - TENANCY -
Appeal - Memorandum - Defect in signing - Rejection of appeal - Eviction
suit against tenant and a committee to whom it was sub-let - Suit decreed
- Appeal filed by tenant and committee - Memo of appeal showing that
committee was represented by the tenant as its former President -
Vakalatnama filed was signed by tenant as individual only - Objection of
improper presentation not raised by landlord or registry - Plea of improper
presentation raised only when deletion of name of tenant was sought on
his death by (Committee) sub-tenant and substitution of words 'former
President' by working President was sought - Rejection of substitution on
ground of improper appeal without an opportunity to rectify defect was
wrong - Moreover committee was represented by counsel of tenant in trial
Court - Appeal was filed by same counsel - Vakalatnama granted by sub-
tenant (Committee) in favour of said counsel in trial Court was sufficient
authorization. (Paras 18, 19, 20)
AIR 2006 SC 370 Uday Shankar Tiryar Vs Ram Keshwar Pd. Singh