DRAFTING OF PLEADING AND CONVEYANCING
- General Principles of Drafting and Relevant Rules
- Execution Petition
- Memorandum of Appeal and Revision
- Petition under Art. 226 and Art. 32 of the Constitution of India
- Criminal Miscellaneous Petition
- Bail Application
- Memorandum of Appeal and Revision
- Essentials of a Deed
- Sale Deed
- Mortgage Deed
- Lease Deed
- Gift Deed
- Promissory Note
- Power of Attorney
MEMORANDUM OF APPEAL AND REVISION
MEMORANDUM OF APPEAL AND REVISION
The memorandum of appeal shall set forth concisely and under distinct heads, the grounds of objection to the decree appealed form without any argument or narrative and such grounds shall be numbered consecutively. (Order XVI Rule 1 C.P.C.)The memorandum according to order XLI, Rule 1 shall be accompanied by a copy of the decree appealed from and unless the appellate court dispenses there with, of the judgment on which it is founded. The word 'copy' means a certified copy. This is a mandatory requirement, in the sense that an appeal filed without a certified copy of the decree makes the appeal incompetent. defective and [competent. But where the circumstances require it, the court has power to treat the appeal as competent and maintainable even in the absence of a copy of the decree attached. (Phool Chand V. Gopal Lal, AIR 1967 SG 1470)
MEMORANDUM OF APPEAL AND REVISION
The memorandum of appeal shall set forth concisely and under distinct heads, the grounds of objection to the decree appealed form without any argument or narrative and such grounds shall be numbered consecutively. (Order XVI Rule 1 C.P.C.)The memorandum according to order XLI, Rule 1 shall be accompanied by a copy of the decree appealed from and unless the appellate court dispenses there with, of the judgment on which it is founded. The word 'copy' means a certifieed copy. This is a mandatory requirement, in the sense that an appeal filed without a certified copy of Jhe decree makes the appeal incompetent. defective and [competent. But where the circumstances require it, the court has power to treat the appeal as competent and maintainable even in the absence of a copy of the decree attached. (Phool Chand V. Gopal Lal, AIR 1967 SG 1470)
The term 'appeal' means the judicial examination by a higher court of the decision of inferior court while the memorandum of appeal contains the grounds on which the Judicial examination is invited (Lakshmi Ratan Engineering Works, Ltd. V. Asst. Commissioner of sales Tax, AIR 1968 SC 488) An appeal in legal paralence is held to mean the removal of a cause from an inferior or subordinate to a superior tribunal or forum in order to test and scrutinise the correctness of the impugned decision. It amounts in essence and pith to a complaint to a higher forum that the decision of a subordinate tribunal is erroneous and, therefore liable to be rectified or set right.
There is a basic distinction between the right of suit and the right of appeal. There is and inherent right in every personto 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. It is no answer to a suit, however, frivolous the claim, that the law confers no such right to sue. Asuit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the positition in regard to appeal is quite the opposite. The right of appeal inheres in no one and, therefore, and appeal for its maintainability must have the clear authority of law.
That explains why the right of appeal is described a creature of statute. Under the code of civil procedure an appeal lies only as against a decree or as against an order passed under rules from which an appeal is expressly allowed by order XLIII, Rule 1. No appeal can lie against a mere finding for the simple reason that the code does not provide for any such appeal and if it is directed against a mere findlng recorded by the trial court, it is not maintainable. (Gangabai V. Vijay Kumar AIR 1974 SC 1126).
The right of appeal is not a guaranteed or a constitutional right. There is nothing whatsoever in the constitution which may even remotely vest any such inalienable right in the citizens. The right of appeal is not a fundamental right nor a constitutional one. It has been repeatedly held that the right of appeal is the mere creature of the stature. The creator that is the legislature which confers such right can equally take the same away, if necessary. It inevitably follows there form that if the whole right can be thus taken away it can equally be impaired, regulated or burdened with condition either onerous or otherwise.
Grounds of Appeal: A memorandum of appeal is meant to be a statement of the grounds upon which the appellant proposes to support the appeal. It is a notice to the court that such and such specific grounds are proposed to be urged on behalf 0 the appellant, as also a notice to the respondent that he should be ready to meet those specific grounds. The parties concerned and their legal advisers should concentrate and focus their attention on the essential feature of cases so as to facilitate speedy and consequently, cheap administration of justice. (Kapil Deo Shukla V. state of Uttar Pradesh, 1958 SC R 640)
An appeal is essentially a continuation of the original proceedings. The theory of an appeal is that the suit is continued in the court of appeal and re-heard there.
An appeal is a continuation of a suit but this is only in a limited sense, it does not, however, mean that the rights which could be pleaded and enforced before a suit was finally adjudicated by the first court could be pleaded as of right for the first time during the pendency of the appeal. It is also true that courts do very often take notice of events that happen subsequent to the filing of suits and at times even those that have occurred during the appellate stage and permit pleadings to be amended for including a prayer for relief on the basis of such events but this is ordinarily done to avoid multiplicity of proceedings or when the original relief claimed has, by reason of change in the circumstances, become inappropriate and not when the plaintiff 's suit would by wholly displaced by the proposed amendment and a fresh suit by him would be barred by limitation. Although in cases where it would not be so barred different considerations might came into play and a different view might be possible. It cannot be, however, disputed that ordinarily an appellate court- can give effect to such rights only as had come into being before the suit had been disposed of and which the trial court was competent to dispose of (chunni Lal khusaldas Das V.K.Adhyaru, AIR 1956 SC 655,675 ). But if during dependency of the appeal it transpires that the respondent landlord has transferred the respondent landlord has transferred the property (House) which he, according to his petition required for his personal use, and the transfree had filed a suit for eviction against the tenant, the appellate court can take notice thereof and dismiss the transferor landlord's suit.
Right of appeal is not an inherent right of the subject but only exists where it is expressly conferred by statute.
Point of limitation not taken in the memorandum of appeal, being a pure ground of law, may be entertained at the hearing thereof.
Although the general rule may be that a plea once abandoned may not be raised, the right view seems to be that such fundamental issues as limitation and resjudicata are exceptions to it. Appoint of limitation is prima facie admissible even in a court of last resort.
The essential requirement of an appeal is rehearing of a grievance and merits. Under order XLI of code of civil procedure, the expressing "appeal" and "memorandum of appeal" are used to denote two distinct things. The appeal is the judicial examination, the memorandum of appeal contains the grounds on which the judicial examination is invited.
Order XLI, Rule 1 of C.P.C. deals with the form of appeal, what to accompany memorandum and contents of memorandum.
Memorandum Appeal consist of :-
(1) The formal part,
(2) The material part,
(3) The Relief,
The formal part of the memorandum of appeal contains the heading of the case. After the name of the court, the number of the appeal and the year in which it is filed ad mentioned the number is written by the official of the court for which space is left blank. There after the names and addresses of the parties are given. The name of the app~lIant is given first and then of the respondent. It is also to be noted against the name of the parties as to what character each filled in the lower court.
After the names of the parties an introductory statement giving the particulars of the decree or order against which the appeal is directed. Its number and date the court which passed it and the name of the presiding officer should be written.
It may be stated that wherever the High Court has prescribed forms of heading of appeal from decrees and orders, the same should be followed.
Material part of the memorandum consists of the grounds of appeal. A memorandum of appeal is meant to be a succinct statement of the grounds upon which the appellant proposes to support the appeal. The grounds of appeal should be carefully drafted since these grounds are the very basis of the appellant's case for raising objection and attacking the decree or order appealed. While taking the grounds of objection, the defects and errors of the decision of the lower court should be pointed out. Errors of law, f any may also be indicated. The facts and circumstances which require the decision of the lower court o be altered and make it erroneous should be specifically high lighted in the grounds of appeal. It is mportant to note that no new plea, which was not taken in the pleadings and on which no issue was ramed nor evidence was led, should be raised. An appellant cannot argue in regard to any ground of )bjection not taken in the memorandum of appeal.
It is of utmost importance that the memorandum of appeal should be drawn up in accordance with order (L1, Rule 1, C.P.C. which provides form of appeal, its presentation, documents to be filed and grounds )f objection. It these provisions are not adhered to then the memorandum of appeal may be rejected by he court as provided in order XLI, Rule 3, C.P.C.
Order XLI Rule' 1,2,3 lays down the c conlents of memorandum: -
a. Grounds of objection should be in the concise form;
b. They should be written distinctly;
c. They should not be written in argumentative or narrative form;
d. Each ground should be numbered consecutively.
The ground should be written concisely to avoid vagueness and unnecessary details. It should be briefly iescribed to ensure that nothing irrelevant is unclouded. The grounds objections constitute an important actor of appeal and should be very carefully framed.
Each ground of attack should be clearly and separately stated. There should not be any vagueness in he ground of appeal. The grounds should be specifically and distinctly stated. The particular point and he error of law, the particular point and the error of law, the particular finding of fact found to be wrong Ind the other mistakes committed by the lower court must be specifically stated.
The grounds of objection should not be framed in argumentative or narrative form. These should be distinctly and concisely stated. No argument or narration is required while taking grounds of objection.
Each ground should be numbered chronologically. Each objection should be different and not form the )art of another objection. It means that an objection taken should be complete in itself and not interdependent on another. An objection already stated in a Para should not be described subsequently n another form.
Relief : It is a general practice to mention the relief sought by the appellant though it is not mandatory to is so. Generally the relief would be to set aside the decree appealed against but if the appeal is by a defendant against a decree passed against him, it may be enough to say that the decree be set aside and the suit be dismissed.