CODE OF CIVIL PROCEDURE-II

B.A. LL.B. (Hons.)

III year VIII-trimester, 2014.

RIGHT TO SUIT AND RIGHT TO APPEAL:

A COMPARATIVE AND CRITICAL ANALYSIS

Submitted By:Abhijit DholeI.D. No. 1950

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Table of Contents

Index of Authorities.................................................................................................................3

Introduction................................................................................................................................4

Research Methodology...........................................................................................................5

Chapter I: Right to Appeal; An Analysis..........................................................................7

CHAPTER II: Right to Suit; An Analysis........................................................................13

CHAPTER III: Interplay between the Right to Suit and the Right to Appeal18

CHAPTER IV: Differences between Right to Suit and Right to Appeal...........27

Conclusion.................................................................................................................................31

Bibliography.............................................................................................................................32

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Index of Authorities

CASES:

1) Anant Mills v. State of Gujarat (1975) 2 SCC 175.

2) Chunilal v. Mehta & Sons v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314.

3) Collector of Customs, Calcutta v. East India Commercial Company AIR 1963 SC

1124.

4) Dhulabhai v. State of MP AIR 1969 SC 78.

5) Ganga Bai v. Vijay Kumar (1974) 2 SCC 393.

6) Garikapati v. Subbaiah Choudhary AIR 1957 SC 540.

7) Lakshminarayan v. Niranjan Modak AIR 1985 SC 111.

8) N.G. Dastane v. Mrs. S. Dastane AIR 1975 SC 1534.

9) Nagendra Nath v. Suresh AIR 1932 PC 165.

10) Prithvi Singh v. Dalip Kulkarni AIR 1999 Raj 201.

11) Ramankutty Guptan v. Avara (1994) 2 SCC 642.

12) S. Vanathan Mathuraja v. Ramalingam (1997) 6 SCC 143.

13) Shyam Sunder v. Shagun Chand, AIR 1967 All 214.

14) Taneja v. Bhajan Lal (1988) 3 SCC 26.

15) Union of India v. Delhi High Court Bar Assn. (2002) 4 SCC 275 (293).

16) Veerayya v. Subbaiah Chaudhry and Ors (1957) S.C.R. 488.

CONSTITUTION:

Constitution of India, 1950.

STATUTES:

Code of Civil Procedure, 1908.

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Introduction

Substantive law functions in a way that governs individuals’ rights as well as their liberties as

considered appropriate by the court. On the other hand, procedural law serves the purpose of

achieving these goals in a manner that is fair and is not flawed by bias or imbalance. In fact,

right to appeal as recognised in the Code of Civil Procedure (hereinafter, “Code”) reflects the

concern against fallibility of decision making by humans. In addition to this, significance of

formal fairness as a preferred outcome for parties approaching the legal system for resolving

their disputes is acknowledged through this provision. This is indicative of the idea that that

the injured party is desirous of satisfactory participation in the system that possibly results in

vindication of its rights and the injuring party hopeful of a fair treatment by the court system

and an opportunity to defend its case in the best way possible.1The fact that errors can be

corrected by appellate courts, legal principles need to be developed and the requirement to

connect lower courts that are geographically dispersed through a legal system that is

authoritative and unified could be among the other reasons for the existence of such a

provision.2

The researcher through the project attempts to analyse the ambit of the provision allowing

right to appeal. This is facilitated through a discussion on the nature of the right to appeal and

the process through which it is sought and granted. The understanding of this statutory right

cannot be in isolation and is in continuation of an individual’s inherent right to institute a suit

in case of infringement of rights(s). Recognising the same, the paper does not restrict itself to

an analysis of right to appeal but also explains the right to suit. In doing so, the relations

between the two as well as the differences between them are brought out.

1 H.L. Dalton, Taking the Right to Appeal More Seriously, 95(1) YALE LAW JOURNAL 62,67 (November, 1985).2Id., at 69.

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Research Methodology

Aims and objectives:

The paper is aimed at understanding the right to suit and the right to appeal. This is facilitated

through an analysis of case laws. Further, the interplay between the two has been put forth.

Scope and limitations:

The paper is limited to the extent of analysing the provisions provided in the Code of Civil

Procedure, 1908. A limited number of cases have been dealt with.

Research Questions:

The following questions have been attempted to be answered by the researcher in the paper:

1) What is the right to suit and what is the right to appeal?

2) How are the two rights similar?

3) What are the differences between the two rights?

4) What is the scope of revision, review and reference with respect to appeal?

Chapterisation:

Chapter 1: The right to Appeal; An Analysis

Chapter 2: The right to Suit; An Analysis.

Chapter 3: The interplay between right to suit and right to appeal.

Chapter 4: Difference Between Right to Suit and Right to Appeal

Sources of data:

The date relied upon includes secondary sources like books, articles and case laws.

Method of writing:

The mode of writing is analytical and descriptive.

Mode of citation:

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The NLS Citation Guide has been followed.

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Chapter I: Right to Appeal; An Analysis

Even though the definition of the term appeal cannot be found in the Code but, for our

understanding it may be referred to as the judicial examination of the decisions of the lower

court by the higher courts.3 In this process a cause is removed from the lower court and

brought before the higher court in order to facilitate an examination of the soundness of the

former’s decisions. Thus, a statutory remedy that exists for ensuring setting aside a lower

court’s decree is right to appeal. Put differently, it can be referred to as a complaint made

against a lower court’s wrong and unsound decision before a higher court. This clarity on the

understanding of the right to appeal makes it evident that it is a statutory right having relevant

provisions ensuring the same in the Code. Thus, it requires law’s express authority to be

valid. In contrast to this, a right to suit is an inherent right needing no such express

authorisation for its institution. It would be sufficient for a statute to not expressly bar

institution of such suit.

It is now clear that the right to appeal provides a procedural mechanism that facilitates

redressal of an individual’s grievance against the decision of a lower court. Given that it is a

statutory right, it has also been referred to as a vested right that is, right in existence from

when lis commences. 4

The significance of right to appeal has been reflected in the 14th Report prepared by the Law

Commission. The relevant parts read stated that both the rights to appeal, that is, first appeal

to the High Court and the second appeal to the Supreme Court are necessary as well as

proper. In their present guarded and conditioned form, these are principally justifiable and

necessary as they ensure effective regulation of the courts. Finally, the Commission Report

went on to declare that such a provision acts as a source of strength for the judicial system

with the public be it instructed or uninstructed.5

An understanding of the concept can be gained from a perusal of the Black’s Law Dictionary.

Here, appeal is defined as “complaint to a higher court of an error or injustice committed by

a lower court, in which the injustice or the error is sought to be corrected or reversed.”6

Based on the above discussion, the elements constituting an appeal can be outlined as

3 C. K. Thakker, CIVIL PROCEDURE 260, (3rd edn., 1994).4 Veerayya v. Subbaiah Chaudhry and Ors (1957) S.C.R. 488. 5 45th Report of the Law Commission of India, October 1971.6 H.C. Black, BLACK’S LAW DICTIONARY, 96 (6th edn., 1990).

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follows:

1) A judgment, usually of a court or administrative authority;

2) An aggrieved party – this includes within its scope a party originally party to the suit.

However, it need not exclude other third parties aggrieved by the Court’s decision;

3) A body that is willing and ready (empowered by the law) to entertain an appeal and

has the characteristic of a reviewing authority. 7

The understanding of the right to appeal has been done through the following case law:

Nagendra Nath v. Suresh.8 This was decided by the Privy Council comprising single judge

Dinshah Mulla.

Facts: A receiver was appointed in this case by a court empowering him to raise loan. This

was to be done on the security of the mortgage of the properties to him that were subject

matter in a partition suit. This receiver borrowed Rs. 18000 as against these properties

mortgaged to a few co-sharers. Among them was the appellant in the case, Nagendra Nath.

Thus, apart from these sharers being mortgagees the rest were mortgagors.

Subsequently, one Madan Mohan alleged that the interest in the mortgage had been assigned

to him by Nagendra Nath. On this line he instituted a suit before the Court of Subordinate

Judge, Hooghly seeking the mortgage’s enforcement. This claim was upheld by the

Subordinate Judge. Following this, an appeal was filed before the High Court. Here the lower

court’s decision was superseded by effecting a compromise between the parties. However, a

failure to follow the compromise decree in its entirety led Madan Mohan to once again apply

to the Subordinate Court. Through this he sought an order that would declare that the interest

in the mortgage had been assigned to him. The court dismissed the claim. Subsequently on

August 27, 1920 an application was presented to the High Court by Madan Mohan purporting

to be an appeal. In here, he alleged that no decree had been given harmful to his assignment

of rights claim the High Court dismissed this appeal on the grounds of lacking merit as well

as irregularity. Thus, the question pertinent to the discussion and that which arose in this case

was whether that was actually an appeal made. In light of irregularity of the form, this

determination was relevant for ascertaining the calculation of the period of limitation.

Issue: The question to be determined was whether this was an instance of appeal relevant for

7 C.K. Takwani, CIVIL PROCEDURE, 317 (2004).8 Nagendra Nath v. Suresh AIR 1932 PC 165.

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calculating the period of limitation given the irregularity of its form.

Reasoning in the case: the court observed that no definition of appeal appears in the Code of

Civil Procedure. However, there was no doubt in the mind of the Lordships that a party

making an application to an appellate court, seeking setting aside or revision of a subordinate

court’s decision would be regarded as an appeal going by the ordinary acceptation of this

term. Further, merely because the appeal is incompetent or irregular does not make it any less

of an appeal. Based on this, the appeal of 1920 was admitted and subsequently heard

following which a decree was made.

Judgement: the appeal against the lower court’s decision was allowed. This was on the

ground that even though the appeal form filled in 1920 was characterised as irregular,

admissibility and decision thereupon was rendered by the High Court previously. Further,

given the rationale that there is no strict definition of an appeal, thus a mere ground of

irregularity should not lead to its dismissal. In this case, this was not a mere attempt to appeal

but was in fact an appeal and was considered for the Limitation Act.

Here, a distinction can be necessarily drawn between right to suit and right to appeal. Unlike

in the case of former, right to appeal is not sourced from inherent right in individuals. The

right to appeal has been statutorily provided for. This is divided into two- right to first appeal

and right to second appeal. With respect to first appeal the same is enumerated in S. 96 of the

Code read with Order 42. A reading of S. 96 is indicative of the manner in which this right

has been granted by statute. For instance, the first sub-section states that appeal is allowed

under this provision unless provided for by any other statute or by a provision specified in the

Code itself.9 Even, an appeal lies from an ex parte decree. However, a limitation has been

placed on this right that is, in circumstances where a decree is passed by the court with the

consent of the parties or in circumstances where small causes court passes decree where the

amount is not in excess of Rupees Ten Thousand unless there is a question of law involved in

the appeal.

Under the principle of res judicata provided in S. 11 if the parties to the suit under

consideration are barred, the recourse to appeal filing from such decrees makes sense. Also, it

is essential to note that S. 2(2) of the Code provides that certain orders are to be considered as

deemed decrees. This would have the implication of allowing appeals against such orders.

Further, a reading of S. 104 in conjunction with Order 43 reveals an enumerated list

9 S. 96(1), Code of Civil Procedure, 1908.

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containing appealable orders.

As stated above, the second option beyond that of first appeal is that of second appeal. This

provision allows a challenge to the appellate authority’s decision itself. The same has been

provided in Order 42 read with Ss. 100-103, 107 and 108. Like first appeal, here too appeal is

allowed in cases where a specific mention of the same can be found in the statute. S. 100

provides two situation wherein right to appeal against any decision of the subordinate court

would lie to the High Court that is, when a substantial question of law is involved and when

the appellate decree was passed ex parte. With respect to the procedure to be followed in case

of first and second appeal, there seems to be no difference.

S. 109 of the Code discusses situations wherein appeal lies to the Supreme Court. It provides

that given fulfillment of the pertinent Constitutional provisions and the rules of Supreme

Court (SC), an appeal would lie to the Supreme Court when substantial question of law is

involved or when it is felt by the High Court that case involves questions which should be

referred to the Supreme Court. S. 112 goes into an explanation of the fact that the Supreme

Court’s powers reflected through Art. 136 of the Constitution of India, 1950 or the rules that

are formulated by the Supreme Court with respect to procedure of presenting appeals before

it, is not restricted or curtailed by any part of the Code. The scope of appeal to the Supreme

Court can be understood through a reading of the above mentioned provisions with Order 45

and Articles 132, 133 and 134A of the Constitution. On the whole these provisions have an

enabling function, facilitating appeal to Supreme Court in situations involving substantial

questions of general importance, questions regarding constitutional interpretation or

legislative validity or when Supreme Court exercises power through Article 136 of the

Constitutional allowing appeal by special leave.

Point of law is different from substantial question of law or that of general importance.

Substantial question of law of general importance is not necessary. What is required is

substantial question of law between the parties and not generally applying to others. This

cannot be cited as precedence because it is between parties to that suit only. Substantial

question of law is if the decision turns one way or the other on a particular view of law. If it

does not affect the decision, it cannot be substantial as between the parties. In fact, a Supreme

pronouncement in 1962, Chunilal v. Mehta & Sons v. Century Spg. & Mfg. Co. Ltd.10 is

revenant.

10 Chunilal v. Mehta & Sons v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314.

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Facts: in this case, the appellants were managing agents to the respondents. There was

provision in the agreement between the parties that would entitle the appellants to certain

liquidated damages if the agreement was terminated except for in accordance to the

provisions laid down. Before the expiry of the stipulated period, agreement was wrongfully

terminated by the respondent. Thus, a suit for damages was instituted. A decree of Rs.

2,34,000 was granted by the trial court. This was affirmed by the High Court in the appeal.

Subsequently, the High Court was applied to for a certificate of fitness in order for appeal.

But the same was denied on ground that question involved only question of law and not

substantial question of law as required under Art. 13(1) of the Constitution.

Decision: It observed that even though substantial question of law has not been defined in the

Code, certain observations with respect to the same can be made. Proper test would be one

that determines whether it is of general importance or whether it directly and substantially

affects the parties’ rights. If so, whether it is an open question in the sense that it has not been

settled by the Court? However, if it involves a mere question regarding applications of those

principles, it cannot be considered substantive question of law. The appellants were entitled

to certificate of appeal.

Further, a 1983 Supreme Court decision deals with appeal to the Supreme Court. This was in

Taneja v. Bhajan Lal.11 The case was decided by a three judge bench consisting of Justices

M.M. Dutt, J.R.S. Pathak and M.H. Kania. Here, specifically the point that appeal to the

Supreme Court is to be in strict compliance with enumeration in statute was asserted.

Facts: in this case, the appellant had filed an application before the High Court claiming that

due course of judicial proceedings was being interfered by the respondent making him guilty

of contempt of court. The High Court on a consideration of the application and documents

supporting the same ruled that the case was unfit for arguing before it. On this ground, it

refused to exercise jurisdiction emanating from the Contempt of Courts Act. In response to

this, an appeal was filed by the appellant the maintainability of which was challenged by the

respondent. This was dismissed by the High Court on the ground that jurisdiction was

sourced in Article 215 of the Constitution and that otherwise appeal can be entertained only

when an order under S. 19(1) of the Contempt of Courts Act is made.

If power or jurisdiction has been conferred on the court to act in a specific manner, the court

has to act in that manner and not in any other manner exercise jurisdiction or power. Here, it 11 Taneja v. Bhajan Lal (1988) 3 SCC 26.

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was decided that it incorrect to contend that no remedy lies in the form of an appeal to the

Supreme Court from an erroneous or perverse decision given by the High Court by not

exercising jurisdiction in order to punish for contempt. It was further held that when an

erroneous decision to the effect of acquitting a contemnor guilty of criminal contempt is

made by the High Court, the petitioner interested in the matter has remedy in the form of

moving the Supreme Court under Article 136 of the Constitution. It was also observed that

such a matter of contempt is relevant between the alleged contemnor and the court under

consideration. When the Court is moved by a petitioner for contempt, the only effect is of

bringing the facts relating to the constituting contempt before the court. Even after such

information is furnished, the petitioner can assist the court. However, under S. 19(1) only the

contemnor is an aggrieved party being tried for contempt of court.

Decision: the Supreme Court opined that right to appeal is sourced in a statute. Thus, on a

question deciding whether such a right exists, the only consideration is an interpretation of

the statutory provisions and should not be based on other considerations like propriety.

The appeal was dismissed as being incompetent.

The above discussion on the ambit of right to appeal has been able to establish and

substantiate that unlike the right to suit, the right to appeal is not an inherent right but is

sourced in statutes.

CHAPTER II: Right to Suit; An Analysis

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The previous chapter dealt with an understanding of the right to appeal. Related to it is the

discussion on the right to suit which was briefly introduced in the previous section. In matters

involving civil nature, a party being aggrieved by another party’s action has the remedy to

approach a civil court in order to have the matter adjudicated upon. The same is initiated and

facilitated by the filing of a suit. By extension, an appeal can be filed in the appellate court if

aggrieved by this court’s decision. However, the same is governed by the rules laid down in

the previous section.

It is essential to note that the dispute has to be of a civil nature happening which civil court

can be approached seeking an adjudication of the matter under consideration. This process of

initiating a suit is referred to as filing of suit. Thus, it can be understood as a terminology that

is used for describing the proceeding of civil nature, initiated by presenting a suit. In other

words, a remedy or a suit for redressal of a private wrong is referred to as a civil suit. 12 In a

more generic sense, it can be understood as a process relating to a dispute referral for the

enforcement of right to a court for seeking injury redressal or the enforcement of a right. It is

understandably the fact that the right to suit is rooted in the principle of ubi jus ibi remedium,

that is, where there is a right there is a remedy.

The objectives of instituting a suit can be enumerated as: (i) pursuing a remedy that is

afforded by the court under consideration, (ii) for redressal of injury caused and (iii)

enforcement of right. 13 S. 9 of the Code can be seen as an enabling provision that confers

upon every individual who seeks enforcement of a right of civil nature to file a suit. A

reading of the provision reveals that such a right has limitations to it enumerated by the

statute. These are circumstances wherein a legislation expressly or by impliedly barred. Here,

right to approach a civil court is not available.

Further, in every situation where a right has been infringed, civil courts will take cognizance

of the same, except wherein a civil court has imposed a bar on the hearing of the suit. Thus,

the norm is that civil courts have jurisdiction to try all suits of civil nature and thus, a

presumption is to be made favouring the existence of such a right and also remedy in a

democratic setting that is governed by rule of law and thus, assumption is to be made in

favour of jurisdiction of civil courts.14

A case that re-asserts the provision of S. 9 that is, courts have the jurisdiction to try all civil 12 Black,supra note 8, at 1434.13Id.14 S. Vanathan Mathuraja v. Ramalingam (1997) 6 SCC 143.

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nature suits subject to the provisions therein contained, and except for cases in which

congnizance is expressly or impliedly barred by a legislation was Muthuraja v.

Ramakingam.15 Thus, on the infringement of a legal right, a suit lies unless against such

entertainment of civil suit there is a bar.

When a legal right is infringed, a suit would lie unless there is a bar against entertainment of

such civil suit and the civil courts would tame cognizance of it. Thus, the norm is for courts

to exercise jurisdictions to try all civil nature suits except when cognizance has been excluded

by legislation either expressly or impliedly.

Here, it was held that rule of construction is that presumption is to be made in favour of

existence of legal right and remedy in democratic setting that is governed by rule of law.

Thus, exception is reflected in exclusion. When a claim as to exclusion of jurisdiction of

court is to be made, the court needs to construe the relevant provisions very strictly to decide

upon the matter.

Thus, in cases where an express bar to exercise of jurisdiction exists, examining the scheme

of the legislation under consideration is relevant in order to determine the adequacy and

sufficiency of the remedies provided. However, this is not decisive for sustaining the Civil

Court’s jurisdiction. The court was of the opinion that in instances wherein no express

exclusion has been provided for, examining the remedies and scheme of the legislation in

order to determine the intendment is required and the resultant finding to the inquiry will be

considered decisive. In case the latter is the concern, a special right or liability needs to have

been created by the statute and provision of remedies in order to determine these rights or

liabilities and also laying down question about the same rights/liabilities to be determined by

the Tribunal that has been constituted and also questions regarding remedies normally

associated with such actions in civil court or that which has been prescribed by the statutes or

not requiring examination.

The following discussion is in continuance of the previous one in terms of determining

exceptions to the right to suit through case law.

One such case that came before the Supreme Court in 1969 was:

Dhulabhai v. State of MP16

15 S. Vanathan Mathuraja v. Ramalingam (1997) 6 SCC 143. 16 Dhulabhai v. State of MP AIR 1969 SC 78.

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The case was decided upon by 5 judge bench comprising Justices Hidayatullah, R.S.

Bachawat, C.A. Vaidyalingam, K.S. Hegde and A.N. Grover. In this case, the main question

that came for determination was the civil court’s jurisdiction in entertaining the case. This

case that came before the Supreme Court was by way of appeals by certificate against the

High Court of Madhya Pradesh decision. The facts of the case have been discussed below.

Facts: the appellants in this case were tobacco dealers in Ujjain. The business encompassed

purchase and selling of the tobacco for purposes of eating, preparing beedis and smoking.

From the state within as well as imports from outside the state facilitated the acquiring of the

tobacco. Under S. 3 of the Madhya Bharat Sales Tax Act which came into force on May 1,

1950 required dealers whose previous year business, with respect to supplies or sales of

goods was in excess in case of manufacturer or importer of rupees 5,000 and in all other cases

Rupees 12, 000 to pay tax with respect to such sales or supplies from the date of

commencement of the Act that is, May 1, 1950. S. 5 of this Act clarified that the tax under

consideration was a single point tax and the government was empowered to specify the actual

rate through notification. The Act merely had maximum and minimum rates specified.

Pursuing this, on the following dates of April 30, 1950, May 22, 1950, October 24, 1953 and

January 21, 1954 notifications were issued by the government. These had the effect of

imposing varied rates of tax on tobacco at the point of import on the importer. However, this

tax was not applicable in the State of Madhya Pradesh for the purchase or sale of the similar

kind tobacco. The authorities collected tax for different quarters and in varying amount from

the appellants. Subsequently, the appellants took recourse to constitutional prohibition

contained in Article 301 and non-saving by Article 304(a) of the Constitution to claim

illegality in collection of tax, serving notices under S. 80 of the Code and instituting suits

seeking refund of the collected tax.

Issues: the following were identified as constituting issues:

S. 17 of the Madhya Bharat Sales Tax Act was relevant to the determination of rights. The

provision states that certain proceedings are barred. Apart from the instances that are

provided here, assessments made or orders that are passed under this Act or the rules that are

made by the assessing authority or commissioner or appellate authority can neither be

questioned in court nor would any appeal or application for revision lie against such order or

assessment. Exceptions to this are Ss. 11 and 12 of this Act.17

17

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On this pint it was contested by the State that even though the provisions of the Act may be

unconstitutional, by virtue of S. 17 of the Act bringing a suit by the appellants was barred.

Thus, the two issues on which the decision had to be reached were- (i) whether the civil court

had the jurisdiction to try the suit and (ii) whether the provisions of the Act under

consideration were violative of Article 301 of the Constitution.

Previous decisions of the Supreme Court had answered the questions pertaining to civil

courts’ ouster of jurisdiction by any other statute or law differently. Given, the difficulty

arising out of the previous rulings, the case was referred by the divisional bench to a

constitutional bench. In order to determine the correct position of law, previous rulings were

looked into by the bench.

Decision:

After a detailed analysis of precedents and otherwise, the Supreme Court laid down the

following seven principles with regards the ouster of the jurisdiction of civil courts by special

statute(s):-

1) If by virtue of the statute the orders of the special tribunals are given finality, the

jurisdiction of the civil court can be concluded to be excluded. However, the remedy

provided for be adequate in the sense that it would be what the court would have normally

done in the suit. Further, those instances are not ruled out by statute where there has been

non-compliance with the provisions of the Act under consideration or if the tribunal has

failed to act in conformity with the judicial procedure fundamental principles.

2) In case of express bar to the jurisdiction, analysing the Act’s scheme in order to determine

adequacy of sufficiency of the provided remedies though relevant cannot be decisive for

the purpose of sustaining civil court’s jurisdiction. Only when no express exclusion exists

with regards such an examination of remedies and the Act’s scheme, finding out the

intendment becomes requisite and resultant conclusion to the enquiry can be decisive. In

case the latter is the concern, a special right or liability needs to have been created by the

statute and provision of remedies in order to determine these rights or liabilities and also

laying down question about the same rights/liabilities to be determined by the Tribunal

that has been constituted and also questions regarding remedies normally associated with

such actions in civil court or that which has been prescribed by the statutes or not

requiring examination.

3) The Tribunals constituted by the Act cannot go into question about the ultra vires of the

provisions of the Act. In fact, such a challenge cannot be brought before the High Court

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too on reference or revision from the Tribunals’ decision.

4) A suit can be considered open in cases where the impugned provision had already been

declared unconstitutional or if such a challenge of constitutionality is made. The writ of

certiorari which is allowed may direct the refunding when the claim is within the time

limit prescribed by the Limitation Act. However, this is not a compulsory remedy for the

replacement of a suit.

5) Where no machinery is provided for in the Act for refunding of tax that is collected

against constitutional limits or collected illegally, a suit lies.

6) It is for the authorities to determine the correctness of assessment apart from the

constitutionality of the same. It is not for a civil court to look into such questions and

when authorities’ orders are declared to be final or if the Act contains a particular

prohibition. However, in either of the enumerated instance, scheme of the Act should be

analysed as this is a relevant enquiry.

7) Unless conditions discussed above are applicable, civil courts jurisdiction should not be

readily inferred to be excluded.

Judgement: the court held that rather than principle 2, principles 3 and 4 were applicable. The

provisions under consideration were held to be violative of Article 301 of the Constitution.

Further, the same were not saved by Article 304 exceptions. Accordingly, the appeals were

allowed.

CHAPTER III: Interplay between the Right to Suit and the Right to Appeal

The previous discussion has established the fact that the difference between right to suit and

right to appeal is that while the former is an inherent right, the latter is a statutory right. This

chapter seeks to analyse the right to appeal as a continuation of the right to suit. With regards

appeal, the right to do so accumulates from the point of instituting the suit. Contrary to this is

the opinion that such a right accrues only at the stage when decree is given. This is based on

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the reasoning that only in this case the aggrieved party would seek moving to the higher court

for redressal of the wrong. There seems to be credence to the point that right to appeal as

provided by the statute becomes effective from the point of filing suit as then the parties can

be assumed to be aware of this right at that very point itself. Further, they would have the

knowledge that the aggrieved party would have the right as per the relevant provision(s) to

appeal against the same.

That appeal can be regarded as a continuation of suit has been discussed in many cases, one

such being Lakshminarayan v. Niranjan Modak.18 This was decided by 2 judge bench of the

Supreme Court consisting of Justices R.S. Pathak and Chinappa Reddy.

Facts: In this case, the appellants were the owners of the house property that was under

consideration before the Court. The case was filed eviction suit against tenants from the

property situate in West Bengal. This eviction was sought on the basis that arrears of rent had

not been paid by the tenants and also the building was old and needed demolition to make

way for new buildings on the land. The trial court ruled in favour of the appellants on both

counts. An appeal was filed by the tenants before the first appellate court. While the appeal

was pending, extending the application of the West Bengal Premises Tenancy Act, 1956 to

Mermari was affirmed by the government of West Bengal. Mermari was the place where the

property was situated. Given that the first appeal was dismissed, a second appeal was filed

before the High Court. Here, appeal was allowed and trial court decree was set aside and

dismissal of the suit ordered. Subsequently, the Supreme Court dismissed the appeal filed

before it by the landlord against the decision of the High Court.

Reasoning: it was mandated by S. 13(1) of the Tenancy Act that apart from certain grounds

enumerated by the Act, no decree or order shall be made by a court for the recovery of

possession in a suit against the tenant by a landlord’s suit. Further, S. 13(6) states that no such

proceeding or suit can be made on the grounds provided in S. 13(1), except those mentioned

in clauses (j) and (k) can be filed by the landlord unless a month’s notice has been given to

the tenant and expiring with a month of tenancy. Since, procedure had not be followed by the

landlords , the appeal was dismissed by the appellate court.

Among other things, the question that came up for determination before the court was which

decree would be applicable within the purview of S.13 (1) which makes reference to decree.

18Lakshminarayan v. Niranjan Modak AIR 1985 SC 111.

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The Supreme Court was of the opinion that decree here would refer to one that finally

disposed of the suit. When a suit is decreed by a trial court and an appeal is sought against it,

this appeal is basically a continuation of the suit. Once the appellant court modifies, reverses

or affirms the decree based on merits, in law it is said that the trial decree merged in the

appellate decree.

Decision: the appeal was dismissed in this case. Since, the appeal was in continuation to the

suit, the appellant’s contention that suit was filed before the application of Tenancy Act was

extended to Memari and thus, Transfer of Property Act must be resorted to did not stand in

light of the relevant scrutiny.

Yet another principle is relevant in this regard. This one entails that in an appeal only those

issues can be argued that were previously framed and also argued in the original suit. Further,

no new relief can be prayed for in appeal from that which had been sought in the first

instance.19The judge in the appellate court is merely concerned with giving a second hearing

to the matter. In doing so, it ensures that based on the facts and arguments that were

discussed by the parties, a determination whether lower court decision was erroneous or not

would be made and if there was any mistake, the decree would be set aside.

A case that discusses the principle laid above is Prithvi Singh v. Dalip Kulkarni.20 This case

that was decided by a single judge in the Rajasthan High Court by Justice Arun Madan. In

this case, the appellant had agreed to sell his shares in the company to the respondent. The

payment was to be made in part during the transaction and at a later stage the balance was to

be paid. However, the plaintiff argued that MoU between the parties under consideration

required the respondent to undertake certain liabilities. This clause was claimed to have been

not complied with and on this basis it was contended that the lower court had made an error

with regards appreciation of evidence. This was the ground on which appeal was preferred.

Responding to this, the other party claimed that it was the plaintiff who had committed this

breach. In the High Court, that is, at the stage of appeal this submission was made by the

respondent who then sought a dismissal of the plaint claiming misjoinder of parties.

The high Court however, rejected this on the basis that such an objection was being raised by

the respondent for the first time and no such objection was mentioned in the written

19 D.F. Mulla, CODE OF CIVIL PROCEDURE (16th edn., 2002).20Prithvi Singh v. Dalip Kulkarni AIR 1999 Raj 201.

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statement. Further, the same was not argued at the trial stage. Thus, given this inherent defect

the respondent was not permitted to argue the suit being defective.

Decision: while allowing the appeal the High Court held that specific performance was

maintainable. However, at the stage of the appellate court only those arguments could be

heard that at the trial stage had been framed as well as argued.

The point discussed in this case, is a general rule. However, there could be exceptional

circumstances wherein the rule could be disregarded. One such instance could be when it is

alleged by the party that insufficient evidence was considered by the court. In such a case, a

re-examination of the law as well as facts can be undertaken by the higher court. A case on

this point is N.G. Dastane v. Mrs. S. Dastane.21 The Supreme Court three judge bench

comprising Justices Chandrachud, P.K. Goswami and N.L. Untwalia gave the decision. This

case related to divorce, where the husband petitioned seeking annulment of marriage. This

was on ground of unsoundness of mind. Further, judicial separation was also sought on the

basis of cruelty meted onto him. The court noted that three children were born to the couple.

While the court dismissed the contention of unsoundness of mind, guilt of cruelty was

established. Thus, a decree for judicial separation was granted. Both the parties feeling

aggrieved sought an appeal against the decision before the District Court. While the

husband’s appeal was dimissed, the wife’s appeal was allowed. Further, even when the

husband’s appeal to the High Court was dismissed, he preferred an appeal to the Supreme

Court which was allowed.

Here, the Supreme Court observed that it is not for the appellate court to explore or re-

appreciate the evidence. In fact S. 100 provides that High Court jurisdiction in second appeal

is limited to the extent of deciding upon questions of law or substantial errors or defects in

procedure or substantial questions of law that might affect decision on merits. However, in

this case, the High Court re-examined the evidence and concluded that the lower court did not

interpret law as applying to cruelty in the circumstances under consideration. On this point

the Supreme Court held that when a High Court goes beyond the mandate to determine issue

of fact, the power to do so is subject to the restrictions that are applicable on any court of fact.

The mere fact that the High Court is the one determining the question of fact from the

evidence should not mean a wider conferral of powers upon it.

21N.G. Dastane v. Mrs. S. Dastane AIR 1975 SC 1534.

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Decision: the Supreme Court held that evidence had not been properly appreciated by the

High Court and thus proceeded to re-appreciate the same itself. The appeal of the wife was

dismissed holding that even though she meted our husband with cruelty the same had been

condoned by her husband. Further, the subsequent conduct could not be referred as

amounting to a revival of the cause of action as it had originally stood.

Yet another interplay between the two rights viz. The right to suit and the right to appeal is

seen in the predominance of the appellate court’s decree over that of the lower court’s decree.

A case that discussed the principle is Collector of Customs, Calcutta v. East India

Commercial Company.22 This was heard in the Supreme Court by Justices Wanchoo,

Venkatrama Aiyyar, Bhuvaneshwar Sinha, Gajendragadkar and Rajagopala Ayyangar.

Facts: in this case, the respondent was in the business of importing oil. The collector of

customs had confiscated a part of his shipment and also imposed a penalty under the ambit of

the Sea Customs Act. The Central Board of Revenue which was authority that heard such

appeal confirmed the Collector’s decision and dismissed the appeal in the case. Subsequently,

an appeal was filed before the High Court by the respondent under Article 226 of the

Constitution. Since, the jurisdiction of the High Court did not include within itself the Central

Board the issue framed sought to determine whether writ could be passed against the Board

and whether such a writ could be against original authority. The reasoning behind such an

argument was that given the appellate court merely reaffirmed the Collector’s decision here,

the original decision was the one which was applicable. This contention was accepted by the

High Court.

However, this decision was overturned by the Supreme Court. The Court opined that when

the respondent’s appeal was originally dismissed by the Board, the Collector’s decision was

merged with the appellate authority’s decision. Thus, decision of issuing writ against

Collector was held to be incorrect because of the above discussion and also because HC

lacked territorial jurisdiction to issue such a writ.

Decision: even though the lower court is to be approached for the execution of a decree by an

appellate authority, the appellate authority’s order merges with the original decree which will

subsist and also become an operative order. Thus, the appeal was allowed by the Supreme

Court reversing the High Court decision. Thus, it was clarified that a continuation of the suit

22Collector of Customs, Calcutta v. East India Commercial Company AIR 1963 SC 1124.

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is an appeal. Further, regardless of whether the original decree against which the appeal was

preferred is upheld, overturned or modified, appellate authority’s decree would subsist and be

enforceable.

Thus, even though appeal and suits have different procedures, are filed in varied courts, they

remain to constitute the same process. In fact an appellate court’s decision replaces the one

given by the lower court regardless of what the decree given by the former entails.

It has been established that an appeal is a continuation of a suit. A related point is that both

the rights constitute the same process. In this, an appeal is regarded as forming part of the suit

for the purpose of approaching questions relating to what provisions from different statutes

are to be applied to parties under consideration. The following cases discussed the point

being asserted.

The first case on this point sought to be discussed is Shyam Sunder v. Shagun Chand23 which

was heard before the Allahabad High Court by two judge bench comprising Justices Mukerji,

V. Oak and Takru.

Facts: in this case, a suit for ejection was filed by the plaintiff against the defendants. They

were sought to be evicted on grounds of arrears of rent as well as personal necessity of the

plaintiffs. To this the defendants claimed that plaintiff had refused to accept rent wrongfully

and the need for personal reasons had not actual basis. The trial court decreed the suit for the

recovery of arrears of rent to an extent only. Thus, appeal was preferred against the decree by

defendants. The defendants argued in the second appeal that UP Control of Rent and Eviction

Act had become applicable in the meanwhile to the defendants. The issue to be determined by

the High Court was whether the Act which had come into force only after the institution of

suit could be applicable to the defendants facilitating their protection under it. The court held

that the Act under consideration had no provision ensuring retrospective applicability. But,

the Act did apply to suits pending before the courts on the date it became enforceable.

Issue: thus given the context, the point to be determined was whether the concept of suit was

inclusive of second appeal against the decision.

Decision: the court after an analysis of various case laws held that legal remedies that the

parties were seeking by way of first and second appeal formed part of one proceeding. It

further was of the opinion that hearing an appeal required a process which was similar to re-

23 Shyam Sunder v. Shagun Chand, AIR 1967 All 214.

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hearing a case. Further, the Court of Appeal had almost similar power as that of the court of

first instance empowering it to perform the same functions as the latter under S. 107 of the

Code.

Here, the court ruled against the eviction holding that suit includes first and second appeals

which are provided against the original decree by the law. A clarification to the effect that an

Act cannot be retrospectively applicable to a suit and that appeal was governed by the law

applicable at the time of filing the suit. When it is stated that law is applicable to pending

suits it is deemed to include application to appeals too and thus by extension to second

appeals as well.

Yet another case that decided upon the relevance of this principle came before the Supreme

Court in Ramankutty Guptan v. Avara.24 The bench consisted of Justices K. Ramaswamy and

B.L. Hanasaria.

Facts: in this case, the respondent who in a contract of sale was the buyer was given

possession of some property by virtue of that contract. When the vendor in the contract

refused to execute a sale deed, the buyer moved the court seeking specific relief. The suit was

dismissed by the trial court. This was reversed by the appellate court granting specified time

to facilitate payment of balance. The appellant in the meanwhile filed a petition under S. 28

of the Specific Relief Act. This provision allows seller to apply in the same suit in order to

have the decree rescinded in situations of payment default. However, the respondent argued

that the court in which the application was made was the same as that in the original suit. But,

the statute was concluded to be applicable to the same suit but where it continued in the

appellate court. Here, reference was made to S. 37 of the Code which provides that courts

which passed decree for matter relating to execution of the same shall be deemed to include

the court of first instance in a situation where the decree was passed by the appellate court.

Thus, interpretation of suit would include this as well.

Decision: In such instances, decree that is passed by an appellate court should be understood

to mean a decree that is passed by a first instance court. Thus, seen this way, an appeal can be

regarded as a continuation of the suit. In this case, when the suit for specific performance was

dismissed at the trial stage but decreed by the appellate court, it should be regarded as being

the same suit. This is because the lower court’s decree will be merged with the appellate

court’s decision. Even when the appellate court passes the decree, execution must be obtained 24 Ramankutty Guptan v. Avara (1994) 2 SCC 642.

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from the lower court.

Here, the appeal was dismissed by the court holding that the price involved in the contract for

sale had been paid by the buyer.

From the above discussion it is established that for the purpose of legislation, suit is

interpreted to incorporate an appeal and second appeal too. Thus, the assertion that law

remains the same from the date of instituting the suit, by extension applies not merely to a

suit but also first and second appeals which form part of the same process. The point being

made, the following discussion seeks to capture the proposition that law remains the same

through the suit.

Related to the claim of right to appeal not being an inherent right but a statutory right is that

no person can claim right to procedure. This has been established through case laws as well.25

Unlike a suit, an appeal that cannot be assured in every case once recognised becomes a

substantive and is not merely a matter of procedure. For a conclusion to be reached that

legislation alters a law which is applicable to a litigation claim, a clear legislative intention

needs to be there that can be concluded from the reading of the amendment itself.26 Even if an

amendment affecting law governing appeals take place, the parties under consideration will

continue to be governed by the law that was applicable at the time of instituting the suit

unless the amendment is retrospectively applicable.

An important case that came to be decided in 1975 by the Apex Court was Garikapati v.

Subbaiah Choudhary.27

Facts: Here, in 1949 a suit was filed in the now known state of Andhra Pradesh. The trial

court dismissed the plaintiff’s case. The High Court of Andhra Pradesh which accepted the

transfer of suit to it and reversed the trial court decree came to be established only in the

period following the dismissal of the suit. Further, a special leave from this High Court

sought by the defendant was refused. Subsequently, appeal to the Supreme Court was sought

through special leave. The same was granted. Here, it was argued by the petitioner that right

to appeal to the Federal Court was acquired at the time the suit was filed in 1949. The

Supreme Court had now had replaced the Federal Court and thus right to appeal to the former

was vested in him.

25 Union of India v. Delhi High Court Bar Assn. (2002) 4 SCC 275 (293). 26 G.P. Singh, PRINCIPLES OF STATUTORY INTERPRETATION, 479, (7th edn., 2004).27 Garikapati v. Subbaiah Choudhary AIR 1957 SC 540.

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Issue: the court had to determine whether right to appeal accrues on the parties at the time of

institution of suit and continues unless an express provision in the statute takes it away or the

right comes to vest only once a decision in the suit being heard.

Decision: in order to reach a conclusion on the issue, evolution of cases in this regard were

analysed and the following principles governing the right to appeal were enumerated:

A. Pursuing remedy, suit, followed by appeal and second appeal are part of a series of

the same proceedings. An intrinsic unity connects all these and together should be

considered as constituting one legal proceeding.

B. The right to appeal is a matter of substantive right and not a mere procedural

consideration.

C. Right to suit has an implication that rights to appeal which are in force then remain

preserved.

D. Since, right to appeal is not an inherent but vested right, such a right to move the

superior court is triggered from the date the suit commences. Even though the party

may exercise it only at the pronouncement of unfavourable judgement, this right is

governed by law that is in existence at the date when suit is filed. It is not the law

prevailing at the time of decision or for that matter on the date of preferring an appeal

that is applicable.

E. Such a right of appeal can be excluded only through an amendment. There too such

exclusion must be provided either expressly or by necessary intendment only.

Here, the special leave was allowed with a view to correct the error of the High Court. The

court came to the conclusion that applicable law to the suit was not retrospective in nature

and thus, plaintiff had the right to appeal as vested on the date of instituting suit.

The above discussion makes it apparent that decisions over time have acknowledged that

appeal is indeed a continuation of a suit. In brief, the procedures for filing both are different

thus these rights are not the same, right to suit is inherent while right to appeal is a statutory

right and no variation of arguments can take place when arguing the case in the higher court

which had originated in the lower court, but the appellate court is at liberty to analyse the

entire case noting the manner of its trial in order to rectify errors if any. Based on these, it can

be concluded that appeal is a continuation of suit.

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CHAPTER IV: Differences between Right to Suit and Right to Appeal

The earlier chapters have already provided with a basic insight into the points of difference

between a right to sue and a right to appeal. The earlier discussions have highlighted the

difference on the grounds of:

Nature of the right, i.e. whether statutory or inherent

Procedure involved, i.e. suit filed in the court of first instance of an appeal preferred

in a higher court challenging the decision of the lower court.

The scope of the chapter is limited to the extent of understanding the differences in detail

through an analysis of relevant case laws on this.

One such case is Ganga Bai v. Vijay Kumar28 decided by the Supreme Court in 1974 by

Justices Y. V. Chandrachud and Hameedullah Beg.

28 Ganga Bai v. Vijay Kumar (1974) 2 SCC 393.

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Facts: the subject matter of contention in this case was a property that had been mortgaged in

favour of the defendant and his first son. Subsequently, with the birth of the second son a

share in the property was acquired by him too. Later, execution of a deed of partition

happened with the effect of assigning the property in the two sons. The mortgage was sought

to be redeemed by the plaintiff, the mortgagee in this case. On this point it was ruled that the

same was not binding on the defendants as debt was for immoral purpose. Here the defendant

headed the joint family of which the two sons were members. A preliminary decree ordered

the selling of the property to the extent of father’s interest in the same. It was further held by

the court that partition was fraudulent. Against this decision, both the parties preferred an

appeal to the High Court. While this was pending, the preliminary decree became final. This

led the defendants to seek leave allowing amendment of memorandum of appeal to the extent

that it challenged the preliminary decree. Further, withdrawal of appeal by the plaintiff was

sought. The amendment was allowed by the High Court and further time was granted to

facilitate payment of court fees. The case of the plaintiff was also dismissed by the court

holding that defendants had the right to redeem the mortgage as the partition was declared as

genuine. But, this was sought to be challenged on the ground that appeal was directed against

a finding and not a decree.

Decision: here, the court reiterated the difference between right to suit and right to appeal.

Former in an inherent right vested in every individual and is not determines by factors like

frivolity of the claim. This suit does not require any authority from law and it is sufficient if

there is not statute barring the same. With respect to appeals, the position is quite the

opposite. Such a right is not inherent in any individual and for preferring such an appeal, the

same should have the authorization from law. Thus, describing it as a creature of the statute

makes sense. Further, it was held by the court that an appeal can be preferred against every

decree that is passed by a court that exercises original jurisdiction [S. 96(1)] and that second

appeals is allowed from the same in case when the court was appellate authority below the

High Court [S.100]. Further certain specified orders only can be appealed against as

enumerated in S. 104(1). Thus, only as against decrees or against order that is passed under

rules from which an appeal is allowed by Order 43, Rule 1 expressly does appeal lie. It was

held that no appeal lies against a mere finding as the Code is silent on the same, not providing

for it.

The court held that, at any time the amount could have been deposited by the defendants. The

preliminary decree did not aggrieve them but the cause of grievance was the court’s finding

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that the property needed to be sold. The Supreme Court while not allowing the appeal set

aside the High Court decision permitting the concerned amendment to the memorandum as

there were no grounds that could authorise the appeal. The right to appeal which is a

legislative creation cannot be a matter of conferral either by the judiciary or any other

authority.

The assertion made in the previous case was re-established in a 1975 Supreme Court decision

of Anant Mills v. State of Gujarat.29 This was decided by Justice Khanna.

Facts: here, various provisions of the Bombay Provincial Municipal Corporation Act, 1949

was under challenge as to Constitutional validity. Certain sections were struck down as being

void by the High Court to the extent they stated that while an appeal was under consideration

no warrant for collection of taxes could be issued. The Court held that provision made a

distinction which had no possible nexus with the object behind the provision with respect to

appeal. This was differentiating between those who beforehand deposited tax amount as to be

assessed by the Commissioner and those who did not do so. Based on this, the provision was

struck down.

However, the Supreme Court was not convinced by the decision of the High Court. It

observed that no appeal was allowed to be heard if requisite amount had not been deposited

with the collector by virtue of S. 406(2). However, if the judge was of the opinion that such a

requirement caused hardship to the appellant, he could exercise jurisdiction under the proviso

to the section to dispense with this or put conditions.

Decision : it was held by the Supreme Court that the provision was a mere regulation and did

not create a bar on appeal as such. The conditions discussed above were not in violation of

Article 14 of the Constitution as right to appeal is not an inherent right vested with every

individual. Since appeal is created by a statute, in the absence of such a provision, appeal

cannot be filed. Further, the Court ruled that legislature should not be restricted from

imposing conditions on this right and without any special reasons there exist no

Constitutional or legal bar to permit grant of such appeals.

There seems to be a particular rationale behind such decisions. Right to suit is unconditional

with no fetters imposed on it. The right to appeal is provided for in statute. Since it is not

granted unless provided for by the legislature, the body has power to impose conditions on

29 Anant Mills v. State of Gujarat (1975) 2 SCC 175.

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the same. Procedurally, many differences can be recognised which gives the impression that

an appeal is not a natural continuation of suit as the latter need not result in an appeal. If the

provisions governing appeal are not satisfied, a suit will not result in appeal.

It is also essential to note that even though there exists a right to suit, the plaintiff cannot

demand that the suit be decided upon only by a civil court or that some specific procedural

law that would also be applicable to appeal he may be entitled to govern the dispute as no

such right exists.30 Hence, manner governing the adjudication of the suit is governed by laws

that have been specified and merely because the Code provides for procedures that the

dispute is dealt with in the way discussed in previous chapters.

If the right to appeal does not exist, the other options available before the aggrieved party is

to seek review or revision of the decision. Even though these two remedies are not referred to

as appeal but in essence they can be characterised so. But even here certain conditions can be

considered to have been imposed upon the maintainability of the same. A revision petition is

provided for in S. 115 of the Code, for instance can only be made before a High Court. There

can be other remedies as well. Like, in case of ex parte decree, in addition to preferring an

appeal, the same can be set aside as provided for in Order 9 of the Code. But, in certain cases

remedies may not be readily available. For example, in a compromise decree once the rules

are adhered to there would not lay any appeals.31

Reference can be made under S. 113 of the Code. If it is brought to the notice of the court by

the defendant or the court itself recognizes it that a question of law is needed to be answered

for complete adjudication over all disputes, it can be referred under Sec 113.It can be used

when the act, ordinance or regulation is invalid or ultra vires of the constitution. It the

Supreme Court’s or the high court’s decision is there on the matter, no need to refer it and the

court can simply follow it and need not make the reference. Till the HC gives its finding, the

case is stayed. Or in other case, the lower court can go on with the suit and the decree shall be

executed or not executed subject to the finding of the HC.32 Order 46 corresponding to 113:

rule 1- proviso to 113 gives certain conditions, rule 1 gives different condition that is, and

there should be a doubt in the mind of the court. Here, point of law has to be in doubt.33

S. 114 and Order 47 deals with review. However, if appeal has already been preferred, review

30 Union of India v. Delhi High Court Bar Assn. (2002) 4 SCC 275 (293).31

32

33 Order 46, Code of Civil Procedure, 1908.

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is not allowed. Other conditions that are enumerated need to be fulfilled too. Instances

wherein such review may be allowed, evidence was not available, or there was an apparent

error or mistake. This is evident from the face of record and does not require appreciation of

pleadings among other things. When appeal is there, review petition can be preferred if

appeal is not preferred. Review is limited to a point, appeal anything can be corrected;

comprehensive. Why then is review petition chosen? This is because court fees for appeal

will be determined on claims in plaint, review has a fixed court fees. Review can be quickly

decided within 2-3 months. Review is before the same court and the same judge in HC. If

both review and appeal are filed, if review petition is heard and dismissed then appeal can

still be heard. Review petition automatically goes when appeal is decided as the latter is in a

higher court and it decides on more points.

Conclusion

As has been established through the discussion, right to suit is interlinked with right to

appeal. To this effect, there are similarities as well as differences between the two that have

been highlighted in the paper. For instance, one stark difference is that right to suit is an

inherent right while right to appeal is a statutory right.

There are also certain procedural aspects with respect to the two that are comparable. When

an appeal is preferred against a trial court decree, it is regarded as continuation of the suit and

the lower court decision gets merged with that of the appellate court regardless of whether the

same is overturned, modified or upheld. Ultimately it is the decree of the appellate court that

is considered good in law.

Certain differences mark the two concepts. For instance, while the suit is instituted seeking

relief in a dispute against the other party, appeal can be understood as grievance against the

decision of the lower court essentially. Further, the right to appeal can arise only when there

exists a right to suit. However, the opposite may not be the case. Thus, appeal is made

available to the aggrieved person by statute upon fulfillment of certain conditions.

Lord Hobhouse while passing the Privy Council Appeal Act, 1874 summed up the scope and

meaning of right to appeal. Here while remarking on the limit that should be placed on

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appealing, he remarked that the commonwealth interest lies in putting an end to law suits.

There exists no unlimited right to get private affairs settled at the cost of time and money of

the public. Further, the duty of the State is discharged when reasonable attention in terms of

skill and honesty are provided for to ensure meritorious decisions, avoidance of erroneous

orders among others. Since, litigation has limited put to it by all laws, limits on the power of

appealing have been made here.”34

Bibliography

Books

C. K. Thakker, CIVIL PROCEDURE 260, (3rd edn., 1994).

C.K. Takwani, CIVIL PROCEDURE, 317 (2004).

D.F. Mulla, CODE OF CIVIL PROCEDURE (16th edn., 2002).

G.P. Singh, PRINCIPLES OF STATUTORY INTERPRETATION, 479, (7th edn., 2004).

H.C. Black, BLACK’S LAW DICTIONARY, 96 (6th edn., 1990).

Articles

A. Gordon, Note and Comment on the Right to Appeal, XXV (1) OREGON LAW

REVIEW (December 1945).

H.L. Dalton, Taking the Right to Appeal More Seriously, 95(1) YALE LAW JOURNAL

(November, 1985).

Miscellaneous

45th Report of the Law Commission of India, October 1971.

3445th report of the Law Commission of India, October 1971: The minutes of Lord Hobhouse’s comments while passing of the Privy Council Appeal Act, 1874.

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