Powers of Appellate Court

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Powers of appellate court:

According to S. 107 C.P.C an appellate court shall have powers:-

  1. To determine a case finally.
  2. To remand a case.
  3. To frame issues and refer them for trial.
  4. To take additional evidence or require such evidence to be taken.

Subject as aforesaid, the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on courts of original jurisdiction in respects of suits instituted therein.

To determine a case finally:-

The appellate court in terms of clause “a”of sub-section 1 of S. 107 C.P.C r/w O.41, R.24 determine a case finally if there is sufficient evidence available on the record. Where evidence on the record is sufficient to enable the court to pronounce judgment, and appellate court has resettled the issues, it need not remand the case to the lower court merely for the purpose of obtaining a finding on such issues, which the appellate court may determine itself. However, the court will not act u/r. 24 to declare a right not set up before the lower court. The Apex court has also held that although a point may not have been put in issue in the lower court, yet if the parties have produced evidence on such matter, the appellate court may in appeal act u/r. 24 and record a finding on the basis of the evidence already on record.

 To remand a case:

u/r 23, O.41, an appellate court can remand a case if the lower court has disposed of the same on a preliminary point. In order that a case be remanded in terms of rule 23, it is necessary that

  1. The entire suit must have been disposed of by the trial court.
  2. The disposal should have been on a preliminary point.
  3. The decree should have been reversed by the appellate court.

Remand u/r. 23-A

Under the provision of rule 23-A remand may be ordered where the trial was not proper or where issues were not framed and evidence consequently was wrongly excluded or where the court has neither discussed facts nor given reasons for its conclusion. Remand u/r 23-A is appealable by virtue of O.41 R. 1 as amended by Lahore High Court.

 To frame issues and refer them for trial:

Where the lower court has disposed of the suit not on a preliminary point, but at the same time has omitted to try any material issue of fact, rule 23 will be inapplicable, but the court may remit issues for a finding u/r. 25 keeping the case on its file. Where the court feels that a particular issue should be framed and tried or that certain findings of facts are necessary of the proper disposal of appeal and that further evidence should be taken on these points, an order should be made u/r. 25, instead of remanding the whole case. In terms of rule 25, the case is sent back to the trial court for recording its finding on a issue and not for the trial and disposal of the same. After recording findings on all issues remitted, the trial court is to return the evidence together with its finding to the appellate court for the disposal of the appeal in accordance with rule. 26.

  1. To take additional evidence or require such evidence to be taken.

An appeal is a re-hearing and the parties are not entitled as of right to produce additional evidence unless permitted by the provision of O.41 Rule 27. Additional evidence can be recorded u/r 27 at any state in exceptional circumstances provided the condition specified have been complied with. Apart from this provision, appellate court has no other power to record fresh evidence.

In accordance with rule 27, additional evidence can be allowed only where:

  1. The trial court has improperly refused to admit the evidence which ought to have been admitted.
  2. The appellate requires such document or witness and cannot pronounce judgment without such additional evidence.
  3. The appellate court requires such evidence of any other substantial cause.

Sub-section 2:

The powers and duties referred to in sub-section 2 are such as are provided by the Code and not by any other enactment. As an appeal is continuation of original cause, it is, therefore, implied that an appellate court can pass any order which the trial court could have passed, including incidental orders. In addition to the powers enumerated in sub-section (1), the appellate court has in general all the powers and duties of the trial court. The court can pass all such interlocutory orders as are necessary. It can also add parties and rectify errors of the lower court.

Powers u/o. 41, R. 33:

Under O.41 R.33 appellate court appellate court can pass any decree or order which ought to have been passed and make such further or other decree or order, as the case may require in accordance with the principles of justice, equity and good conscience. Appellate court in the interest of justice and in the exceptional circumstances allows appropriate relief to non-appealing parties and even in relation to determinations not appeal against.

 

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