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Himanshu Gupta,
CPJ College of Higher Studies and School of Law
INTRODUCTION
In India, the judiciary is said to be the 3rd pillar of democracy. It ensures that the laws are enforced properly and justice is served to each citizen of the country, but sometimes human errors like negligence, misrepresentation, etc. lead to defeating the purpose of serving justice to the citizens.
To ensure justice for parties, clauses are provided under the code of civil procedure, which allows the higher courts to reconsider the decision made by the lower court and modify or set aside them as they deem fit.
The higher courts can either hear the case through appeal or revision and keep an eye on the functioning of the lower courts. These provisions allow the party to seek remedy from the higher court and ask them to reconsider the order or decision passed by the lower court.
The right to appeal is a statutory and substantive right provided to the parties, but the right to revision is a discretionary right, but the court can exercise the revisional jurisdiction Suo moto, i.e., on their own will, unlike appellate jurisdiction, where the parties need to file a memorandum of appeal.
APPEAL
The right to appeal is a substantive and statutory right. By using the powers of appeal, the higher court gets the authority to re-examine the decision made by the lower court. It is referred to as the appellate jurisdiction of the court provided under the provisions of the Code of Civil Procedure, 1908. The court, while exercising appellate jurisdiction, can:
• Examine the decisions made by the lower court and set aside or modify the decision as it deems fit.
• Dismiss the application for appeal if the application lacks merit.
• Ask the parties to produce documents and other evidence as required during the trial. Ask the lower court to reconsider the case.
• Pass the decree that decides the case finally.
In Moti Lal v. Kartar Singh, the Supreme Court stated that the appellate court has the power to hear an appeal on both grounds of question of fact and question of law. The Supreme Court also stated that the court can only exercise revisional jurisdiction when there is a jurisdictional error made by the lower court.
TYPES OF APPEAL
1. FIRST APPEAL
The court gets the authority to hear the first appeal under Section 96 of the Code of Civil Procedure, 1908. It is a type of appeal in which a person can claim from the higher court having original jurisdiction other than the court that passed the decree. The appellate court has the power to review both facts and law. The appellate court can either reverse, modify, or confirm the order or decision according to the merits of the case.
2. SECOND APPEAL
The courts get the authority to hear the second appeal under Section 100 of the Code of Civil Procedure, 1908. The jurisdiction to hear the second appeal only lies with the high court and supreme court. A second appeal can only be made if there is a substantial question of law, and the court can also reject the appeal application if the appeal lacks a substantial question of law and is not linked to the legal question. The court checks the substantial question of law thoroughly to ensure that the appeal is not used as a tool to delay the litigation process.
3. APPEAL FROM ORDER
The provision for this appeal is provided under Order XLIII and Section 104 of the Code of Civil Procedure, 1908. This appeal is made by the parties against the orders passed by the court, but all orders passed by the court are not appealable. There are certain orders prescribed under the provisions of the Code of Civil Procedure, 1908, that can be appealed, like ex parte decree, rejection of application, orders of injunction, granting or refusing to grant leave to institute a suit, etc.
4. LETTERS PATENT APPEAL (LPA)
The provisions for letters patent appeal are provided under Section 50(1)(b) of the Arbitration and Conciliation Act, 1996. In this type of appeal, the memorandum of appeal is filed before a larger bench of the same court. The decree/ order challenges must be given by a single judge. It helps the parties to resolve the dispute in the same court and avoid the litigation process of the Supreme Court. When this appeal is filed in the High Court it is called intra-court appeal and should be filed within 90 days and if the same appeal is filed in the Supreme Court of India, it is called inter-court appeal and should be filed within 30 days. The parties need to attach the following documents with the application: -
- Certified copy of judgement and decree
- Certified copy of certificate granted by High Court
- Certified copy of the order passed by the High Court granting the certified copy
GROUNDS OF APPEAL
• The subordinate court misinterpreted the facts and evidence.
• The subordinate court did not follow the proper procedure while hearing or deciding the matter.
• The subordinate court violated the principles of natural justice while deciding the issue.
• The subordinate court did not apply the law correctly.
PROCEDURE OF APPEAL
• The parties need to file an application for a memorandum of appeal before the appellate court stating the grounds on which they want to challenge the said order or decision.
• The parties need to secure a certified copy of the judgment and decree passed by the lower court. The certified copy is needed to be attached to the application to ensure which judgment or decree is being challenged.
• The parties need to pay the proper court fees to the court. In a second appeal, the High Court will only admit the application if there is a substantial question of law; otherwise, the application will be rejected.
• The appellate court hears the arguments, re-examines the evidence, and delivers its judgment.
WHOCANAPPEAL?
• Any party aggrieved by the decree, i.e., defendant and plaintiff.
• A legal representative of the deceased parties may also appeal on his/her behalf.
REVISION
The concept of revision is narrower than the concept of appeal and is provided under the provisions of Section 115 of the Code of Civil Procedure, 1908. The right to revision is not a statutory right under the law. The right to revision is only available when there is some jurisdictional error or no appeal lies against that judgment or decree.
The authority to hear such matters lies only with the High Court. The revisional jurisdiction allows the court to ensure that the subordinate court does not exercise its power outside its jurisdiction prescribed under law.
In Shyam Sundar Sarma v. Pannalal Jaiswal, the Supreme Court laid the differences between appeal and revision in civil cases. The main difference laid was that appeal is a statutory right provided to the parties whereas revision is a discretionary remedy available to the parties. The Supreme Court also said that the revisional jurisdiction should only be exercised when it is very necessary as it will affect the finality of the decision and the litigation process won’t end.
SCOPE
• The subordinate court exercised jurisdiction that was not vested in it under the law.
• The subordinate court failed to exercise jurisdiction vested in it under the law.
• The subordinate court exercised the jurisdiction illegally/with material irregularities.
GROUNDSOFREVISION
• The subordinate court passed an order against which an appeal doesn’t lie.
• The subordinate court exercised jurisdiction outside its prescribed authority.
• The subordinate court did not follow the correct procedure while deciding the matter.
PROCEDURE
• FILING THE REVISION PETITION
The parties need to file the revision petition before the High Court and prove that the lower court made jurisdictional errors while deciding the matter.
• HIGH COURT’S POWER
The High Court has the power to:
- Make an inquiry
- Ask for records and evidence.
- Pass any order as it deems fit.
• LIMITATION OF REVISIONAL POWERS
- The high court cannot exercise revisional jurisdiction against interlocutory orders, i.e., the orders passed during the pendency of suit.
- The revisional jurisdiction can only be exercised when there are no appeals available against the order or decision of the lower court.
LANDMARKCASES
In Pyarchand and Ors. v. Dungar Singh, the judgment provided clarity on the appeal process, highlighting that appeals are generally concerned with the merits of the case, allowing a higher court to reassess both facts and legal principles applied by the lower court.
In contrast, the court noted that revisions are limited to errors of jurisdiction or procedural irregularities, not assessing the merits of the case. The Supreme Court emphasized that a revisional jurisdiction should only be invoked in cases where there is a clear miscarriage of justice or an abuse of power by the lower court.
In D.L.F. Housing and Construction Co. (P) Ltd v. Sarup Singh, the Supreme Court stated that the provisions provided under Section 155 of the Code of Civil Procedure cannot be used to challenge the interlocutory order until and unless that order directly affects the judgement of the court or leads to a jurisdictional error. This case restricted the use of Section 115 Code of Civil Procedure for revising interlocutory orders.
In C.L. Basra v. Pearey Lal Basra and Anr., The Supreme Court emphasized that appeals allow for a complete re-evaluation of the facts and law as applied by the lower court. In this case, the appellate court had the jurisdiction to reassess the findings made by the trial court. The Supreme Court reiterated that the right to appeal is a statutory right and is generally available against final orders or decrees.
The judgment highlighted that revisions are limited to correcting errors of jurisdiction or significant procedural irregularities. The court noted that a revisional jurisdiction does not permit a full reconsideration of the merits of the case. The Supreme Court stressed that the purpose of revision is to ensure that justice is served without delving into the merits of the original case.
In The Managing Director (MIG) Hindustan Aeronautics Ltd. v. Ajit Prasad Tarway, the Supreme Court held that if any court while deciding any matter makes an error relating to the question of law and the question of fact. It will not amount to jurisdictional error. The revisional jurisdiction provided under Section 115 of the Code of Civil Procedure should only be exercised when the lower court has decided the case going outside its jurisdiction or without jurisdiction. If there are errors in the facts of the case then the revisional jurisdiction cannot be exercised.
In Bhanu Kumar Jain v. Archana Kumar, the Supreme Court stated that ‘When an ex parte decree is passed, the defendant (apart from filing a review petition and a suit for setting aside the ex parte decree on the ground of fraud) has two clear options, one, to file an appeal and another to file an application for setting aside the order in terms of Order IX Rule 13 of the Code. He can take recourse to both the proceedings simultaneously but in the event the appeal is dismissed as a result whereof the ex parte decree passed by the trial court merges with the order passed by the appellate court, having regard to the explanation appended to Order IX Rule 13 of the Code a petition under Order IX Rule 13 would not be maintainable.
The case emphasized the importance of understanding the procedural nuances of appeal and revision under the CPC, reinforcing the need for parties to be aware of their rights and the appropriate legal recourse available to them in civil disputes.
CONCLUSION
The provisions of the Code of Civil Procedure, 1908, provide the provisions for ensuring justice to the parties and allow them to appeal or review the order passed by the lower court.
The main difference between appeal and revision lies in their scope. Appeal gives the dissatisfied party(s) a wider scope and allows them to challenge the order on both factual and legal grounds, whereas revision is a narrower concept and only allows the party to file a revision petition in cases where jurisdictional error of any kind has arisen.
These provisions also allow the higher court to keep a judicial oversight on the actions and functioning of the subordinate courts and rectify the errors made by them. It also helps in protecting the rights of litigants and ensuring transparency in the judicial system.
REFERENCES
●https://testbook.com/key-differences/difference-between-appeal-and-revision#:~:text=Gr ounds%20for%20filing%3A%20An%20appeal,be%20filed%20at%20any%20time.
SCC 344
(2) 368
1973 SC 76
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