Report No. 54
Chapter 1J
Appeals-First and Section Appeals
Introductory
1J.1. Part 7 of the Code, sections 96 to 112, deal with appeals. With certain exceptions of a minor character, one appeal on facts as well as on law is allowed as a general rule, and a further appeal, on questions of law and on certain other questions is also allowed. In the case of first appeal the forum of appeals is left to be dealt with b the Civil Courts Act of each State. The second appeal lies always to the High Court. The Code mainly creates the right of appeal, dealts with the jurisdiction of the Appellate Court, and provides for appellate procedure. The right of appeal is dealt with in a body of the Code (Part 7), and the powers and procedure of the appellate courts are dealt with in the Order.
Sections 96(1)
1J.2. We are recommending1the insertion of a provision to the effect that (With certain exceptions) a court must decide all issues, eve if the suit can be disposed of on a preliminary point. Where. in conformity with such provision the court decides all issues, and the decree is in favour of a person but the finding on some of the issues is adverse to hi, he cannot, as the law stands at present, appeal against the adverse to him, he cannot, as the law stands at present, appeal against the adverse finding (i.e. the finding on the issue decided against him), and the findings is not res judicate at least according to the view usually taken. This position has now to be changed.
1. See discussion relating to Order 14, rule 2.
Recommendation
1J.3. We recommend, therefore, that the following Explanation should be inserted below section 96(1)-
"Explanation-A party aggrieved by a finding of a court incorporated in a decree may appeal from the decree in so far as it relates to that finding, notwithstanding that by reason of the finding of the Court on any issue with is sufficient for decision of the such, the decree, wholly or in part, is in favour of that party".
Section 96A(New)
1J.4. Appeal in petty cases was the subject-matter of question1 in our Questionnaire, as follows:
"7. There is a suggestion that from the judgements of lowest courts of first instance an appeal on facts should be excluded in petty cases, say, cases of a nature triable buy a court of small Causes from the point of view of subject-mater, where the amount or value of the subject-matter of the dispute in the court of first instance and still in disputer on appeal was and is not more than three thousand rupees (or such tother sum as may be considered proper), and the decree or order does not involve directly or value, exceeding three thousand rupees (or such other sum as may be considered proper).
The proposal is that in these petty cases, the first appeal should be allowed only if the appeal court certifies that a question of law is involved, and the issue of such certificate should be decided either in chambers or in open court as the appeal court may think proper.
What are your views in the matter? Would you agree with the suggestion?".
1. Question 72.
1J.5. The majority of the replies on the question are opposed to the suggested restriction, but a minority favour it. After giving due weight to the views received, we have come to the conclusion that no first appeal should lie in any suit of the nature cognizable by courts of Small Causes, when the amount or value of the subject-matter of the suit does not exceed three thousand rupees, except on a question of law. Our object in making this recommendation is to reduce appeals on facts in petty cases. In our opinion, some such restrictions are necessary in the interests of litigants themselves. They should not be encouraged to appeal on facts in petty cases of the nature mentioned above.
Recommendation
1J.6. Accordingly, we recommend that the following sub-section should be inserted in section 96
"(4) No appeal shall lie in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the suit does not exceed three thousands rupees, except on a question of law".
Section 99
1J.7. Section 99, which, inter alia, saves irregularity in respect of misjoinder of parties or causes of action, does not apply to non-joinder. In the earlier Report,1 the Commission examined the question whether "non-joinder" should be added in the section, as in Order 1, rule 9. It, however, considered it unnecessary to do so, as-
(a) non-joinder of an essential party should be regarded as a fatal detect, and
(b) non-joinder of a proper, party would not, even now, entail variation, etc., of a decree.
1. 27th Report, note on section 99.
1J.8. We agree that the correct legal position is as was stated in the above Report.
1J.9. As was stated in a Madras case,1 objections as to non-joinder, if taken at the earliest opportunity under Order 1, rule 13, fall under two classes:
"1. If it is absolutely necessary to have the absent party, he ought to be added unless the plaintiff refuses to add him when the suit should be dismissed. If the trial Court erroneously proceeds with the suit, without following either of these courses, the objection can be repeated in appeal, when again it may be disposed of only in the above said two ways. The present appeal falls under this heading.
2. If it is not a case of imperative necessity but only a matter of convenience or expediency, either the absent party may be added or the suit may be tried without him (Order 1, rule 9). In such a case, the objection, if repeated in appeal, may be dealt with similarly."
1. Shanmuga v. Subbaya, AIR 1922 Mad 317 (320) (Ramesam J.).
1J.10. In a later Madras case,1 non-joinder of an essential party was, on the facts of the case, regarded as going to the jurisdiction of the Court, and the suit was dismissed. The earlier Madras case was not, however, cited,2 and the dismissal was ordered even though the objection to non-joinder had not been taken in the trial court. This was because it was found that the suit could not effectively proceed in the absence of the parties who were not joined.
1. Amirchand Nagindas v. Raoji Bhai, AIR 1930 Mad 714 (718).
2. Shanmuga v. Subbayya, AIR 1922 Mad 317 (supra).1.
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