Friday, 31 July 2015

Good legal article on drafting of appeal

Appeal is a legal proceeding brought in superior court for the purpose of review of the decision of lower court. Appeal is a creature of statute and is governed by the same. The statute generally provides the right of appeal on questions of law or questions of fact. In case there is no statutory right to appeal, recourse is taken to the Constitutional Provisions of Art 226 by way of filing Writ Petition. In case of decision of High Court, recourse is taken through the Special Leave Petition under Art 136 to file appeal in the Supreme Court.

  1. In all appeal the decision of the lower court (decree or judgment) is challenged on certain grounds. In this write-up, an attempt is made to bring forth one aspect of the practice i.e. the pleas which are allowed in case of appeal in superior courts like High Court or Supreme Court.

  1. It is a well settled legal proposition that no new innovation is allowed at the appeal stage unless the same is raised in the lower court or tribunal. One party is thus precluded to raise any ground which he missed to raise during trial stage or lower appeal stage. The grounds generally raised at the appeal stage consist of the following:

  • The ground of new factual matrix which was not raised at the trial stage;
  • The ground of questions of law which was not raised at the lower courts;
  • The grounds of mixed questions of law and facts.

We now analyse each type of grounds and its tenability in case of appeal in the superior courts.

  1. The ground of new factual matrix which one party missed to raise at the courts or tribunals below are not entertained by any superior court. The reason of this is not very far to seek. The parties were at liberty to raise all such facts to the notice of the lower courts during trial or appeal. If the same was not raised, the party is precluded to raise the same for the first time in the writ stage or Second Appeal Stage. The writ court is not to adjudicate on facts. In case the same is entertained by a writ court, the opposite party has to give an opportunity to defend the same. If that is allowed, the writ function would be given a go by and the function is reduced to a simple trial and adjudication on facts which is not at all permitted. The Supreme Court decision in the Greater Mohali Area Development Authority Vs Manju Jain (2010) 9 SCC 157 the ratio is laid down in a very nice manner.

  1. A pure legal issue based on facts which are not in dispute can always be raised at any stage of the appeal, even at the SLP stage. In order to attract this provision, the following must be satisfied:
  • The ground should be on the point of law;
  • The facts on which the point of law is based should not be controverted at any of the earlier proceedings;
  • The point of law should go to the root of the matter in issue.

In this case, it is not only desirable but also expedient that the plea should be entertained and decided by the superior court. In the famous Privy Council case of theConnecticut Fire Insurance Co Vs Kavamgarh (1892) AC 473 (PC) the ratio is laid down as follows:

“When a question of law is raised for the first time in a court of last resort, upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is not only competent but expedient, in the interests of justice, to entertain the plea.”  

  1. The ratio is approved and followed by the Supreme Court of India in a number of cases. The person raising the plea has to establish the criteria so that the same may be entertained by the superior courts. Some of the illustrative cases are as follows:

  • VLS Finance Ltd Vs Union of India (2013) 6 SCC 278;
  • Gurucharan Singh Vs Kamla Singh (1976) 2 SCC 152;
  • National Textile Corporation Vs Naresh Kumar Badrikumar Jagad (2011) 12 SCC 695.

  1. Lastly, regarding the mixed question of law and fact, the superior courts generally are reluctant to entertain the same. One such case is the plea of limitation. The Supreme Court frowned upon the practice of raising this type of pleas at the highest court just to frustrate the entitlement of opposite parties. The case of Madras Port Trust Vs Hymanshu International (1979) 4 SCC 176is a case on the point.

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