CODE OF CIVIL PROCEDURE-II

B.A. LL.B. (Hons.)

III year VIII-trimester, 2014.

RIGHT

TO

SUIT

AND

RIGHT

TO

APPEAL:

A COMPARATIVE AND CRITICAL

ANALYSIS

Submitted By:
Abhijit Dhole
I.D. No. 1950
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Table of Contents

Index of Authorities...................................................................3
Introduction............................................................................... 4
Research Methodology..............................................................5
Chapter I: Right to Appeal; An Analysis.....................................7
CHAPTER II: Right to Suit; An Analysis.....................................13
CHAPTER III: Interplay between the Right to Suit and the Right
to Appeal................................................................................. 18
CHAPTER IV: Differences between Right to Suit and Right to
Appeal..................................................................................... 27
Conclusion............................................................................... 31
Bibliography............................................................................32

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Index of Authorities
CASES:
1) Anant Mills v. State of Gujarat (1975) 2 SCC 175.
2) Chunilal v. Mehta & Sons v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314.
3) Collector of Customs, Calcutta v. East India Commercial Company AIR 1963 SC
1124.
4) Dhulabhai v. State of MP AIR 1969 SC 78.
5) Ganga Bai v. Vijay Kumar (1974) 2 SCC 393.
6) Garikapati v. Subbaiah Choudhary AIR 1957 SC 540.
7) Lakshminarayan v. Niranjan Modak AIR 1985 SC 111.
8) N.G. Dastane v. Mrs. S. Dastane AIR 1975 SC 1534.
9) Nagendra Nath v. Suresh AIR 1932 PC 165.
10) Prithvi Singh v. Dalip Kulkarni AIR 1999 Raj 201.
11) Ramankutty Guptan v. Avara (1994) 2 SCC 642.
12) S. Vanathan Mathuraja v. Ramalingam (1997) 6 SCC 143.
13) Shyam Sunder v. Shagun Chand, AIR 1967 All 214.
14) Taneja v. Bhajan Lal (1988) 3 SCC 26.
15) Union of India v. Delhi High Court Bar Assn. (2002) 4 SCC 275 (293).
16) Veerayya v. Subbaiah Chaudhry and Ors (1957) S.C.R. 488.

CONSTITUTION:
Constitution of India, 1950.

STATUTES:
Code of Civil Procedure, 1908.

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Introduction
Substantive law functions in a way that governs individuals rights as well as their liberties as
considered appropriate by the court. On the other hand, procedural law serves the purpose of
achieving these goals in a manner that is fair and is not flawed by bias or imbalance. In fact,
right to appeal as recognised in the Code of Civil Procedure (hereinafter, Code) reflects the
concern against fallibility of decision making by humans. In addition to this, significance of
formal fairness as a preferred outcome for parties approaching the legal system for resolving
their disputes is acknowledged through this provision. This is indicative of the idea that that
the injured party is desirous of satisfactory participation in the system that possibly results in
vindication of its rights and the injuring party hopeful of a fair treatment by the court system
and an opportunity to defend its case in the best way possible.1The fact that errors can be
corrected by appellate courts, legal principles need to be developed and the requirement to
connect lower courts that are geographically dispersed through a legal system that is
authoritative and unified could be among the other reasons for the existence of such a
provision.2
The researcher through the project attempts to analyse the ambit of the provision allowing
right to appeal. This is facilitated through a discussion on the nature of the right to appeal and
the process through which it is sought and granted. The understanding of this statutory right
cannot be in isolation and is in continuation of an individuals inherent right to institute a suit
in case of infringement of rights(s). Recognising the same, the paper does not restrict itself to
an analysis of right to appeal but also explains the right to suit. In doing so, the relations
between the two as well as the differences between them are brought out.

1 H.L. Dalton, Taking the Right to Appeal More Seriously, 95(1) YALE LAW JOURNAL 62,67 (November, 1985).
2Id., at 69.
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Research Methodology
Aims and objectives:
The paper is aimed at understanding the right to suit and the right to appeal. This is facilitated
through an analysis of case laws. Further, the interplay between the two has been put forth.
Scope and limitations:
The paper is limited to the extent of analysing the provisions provided in the Code of Civil
Procedure, 1908. A limited number of cases have been dealt with.
Research Questions:
The following questions have been attempted to be answered by the researcher in the paper:
1) What is the right to suit and what is the right to appeal?
2) How are the two rights similar?
3) What are the differences between the two rights?
4) What is the scope of revision, review and reference with respect to appeal?
Chapterisation:
Chapter 1: The right to Appeal; An Analysis
Chapter 2: The right to Suit; An Analysis.
Chapter 3: The interplay between right to suit and right to appeal.
Chapter 4: Difference Between Right to Suit and Right to Appeal
Sources of data:
The date relied upon includes secondary sources like books, articles and case laws.
Method of writing:
The mode of writing is analytical and descriptive.
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Mode of citation:
The NLS Citation Guide has been followed.

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Chapter I: Right to Appeal; An Analysis

Even though the definition of the term appeal cannot be found in the Code but, for our
understanding it may be referred to as the judicial examination of the decisions of the lower
court by the higher courts.3 In this process a cause is removed from the lower court and
brought before the higher court in order to facilitate an examination of the soundness of the
formers decisions. Thus, a statutory remedy that exists for ensuring setting aside a lower
courts decree is right to appeal. Put differently, it can be referred to as a complaint made
against a lower courts wrong and unsound decision before a higher court. This clarity on the
understanding of the right to appeal makes it evident that it is a statutory right having relevant
provisions ensuring the same in the Code. Thus, it requires laws express authority to be
valid. In contrast to this, a right to suit is an inherent right needing no such express
authorisation for its institution. It would be sufficient for a statute to not expressly bar
institution of such suit.
It is now clear that the right to appeal provides a procedural mechanism that facilitates
redressal of an individuals grievance against the decision of a lower court. Given that it is a
statutory right, it has also been referred to as a vested right that is, right in existence from
when lis commences. 4
The significance of right to appeal has been reflected in the 14th Report prepared by the Law
Commission. The relevant parts read stated that both the rights to appeal, that is, first appeal
to the High Court and the second appeal to the Supreme Court are necessary as well as
proper. In their present guarded and conditioned form, these are principally justifiable and
necessary as they ensure effective regulation of the courts. Finally, the Commission Report
went on to declare that such a provision acts as a source of strength for the judicial system
with the public be it instructed or uninstructed.5

3 C. K. Thakker, CIVIL PROCEDURE 260, (3rd edn., 1994).

4 Veerayya v. Subbaiah Chaudhry and Ors (1957) S.C.R. 488.
5 45th Report of the Law Commission of India, October 1971.
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An understanding of the concept can be gained from a perusal of the Blacks Law Dictionary.
Here, appeal is defined as complaint to a higher court of an error or injustice committed by
a lower court, in which the injustice or the error is sought to be corrected or reversed.6
Based on the above discussion, the elements constituting an appeal can be outlined as
follows:
1) A judgment, usually of a court or administrative authority;
2) An aggrieved party this includes within its scope a party originally party to the suit.
However, it need not exclude other third parties aggrieved by the Courts decision;
3) A body that is willing and ready (empowered by the law) to entertain an appeal and
has the characteristic of a reviewing authority. 7
The understanding of the right to appeal has been done through the following case law:
Nagendra Nath v. Suresh.8 This was decided by the Privy Council comprising single judge
Dinshah Mulla.
Facts: A receiver was appointed in this case by a court empowering him to raise loan. This
was to be done on the security of the mortgage of the properties to him that were subject
matter in a partition suit. This receiver borrowed Rs. 18000 as against these properties
mortgaged to a few co-sharers. Among them was the appellant in the case, Nagendra Nath.
Thus, apart from these sharers being mortgagees the rest were mortgagors.
Subsequently, one Madan Mohan alleged that the interest in the mortgage had been assigned
to him by Nagendra Nath. On this line he instituted a suit before the Court of Subordinate
Judge, Hooghly seeking the mortgages enforcement. This claim was upheld by the
Subordinate Judge. Following this, an appeal was filed before the High Court. Here the lower
courts decision was superseded by effecting a compromise between the parties. However, a
failure to follow the compromise decree in its entirety led Madan Mohan to once again apply
to the Subordinate Court. Through this he sought an order that would declare that the interest
in the mortgage had been assigned to him. The court dismissed the claim. Subsequently on
August 27, 1920 an application was presented to the High Court by Madan Mohan purporting
6 H.C. Black, BLACKS LAW DICTIONARY, 96 (6th edn., 1990).
7 C.K. Takwani, CIVIL PROCEDURE, 317 (2004).
8 Nagendra Nath v. Suresh AIR 1932 PC 165.
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to be an appeal. In here, he alleged that no decree had been given harmful to his assignment
of rights claim the High Court dismissed this appeal on the grounds of lacking merit as well
as irregularity. Thus, the question pertinent to the discussion and that which arose in this case
was whether that was actually an appeal made. In light of irregularity of the form, this
determination was relevant for ascertaining the calculation of the period of limitation.
Issue: The question to be determined was whether this was an instance of appeal relevant for
calculating the period of limitation given the irregularity of its form.
Reasoning in the case: the court observed that no definition of appeal appears in the Code of
Civil Procedure. However, there was no doubt in the mind of the Lordships that a party
making an application to an appellate court, seeking setting aside or revision of a subordinate
courts decision would be regarded as an appeal going by the ordinary acceptation of this
term. Further, merely because the appeal is incompetent or irregular does not make it any less
of an appeal. Based on this, the appeal of 1920 was admitted and subsequently heard
following which a decree was made.
Judgement: the appeal against the lower courts decision was allowed. This was on the
ground that even though the appeal form filled in 1920 was characterised as irregular,
admissibility and decision thereupon was rendered by the High Court previously. Further,
given the rationale that there is no strict definition of an appeal, thus a mere ground of
irregularity should not lead to its dismissal. In this case, this was not a mere attempt to appeal
but was in fact an appeal and was considered for the Limitation Act.
Here, a distinction can be necessarily drawn between right to suit and right to appeal. Unlike
in the case of former, right to appeal is not sourced from inherent right in individuals. The
right to appeal has been statutorily provided for. This is divided into two- right to first appeal
and right to second appeal. With respect to first appeal the same is enumerated in S. 96 of the
Code read with Order 42. A reading of S. 96 is indicative of the manner in which this right
has been granted by statute. For instance, the first sub-section states that appeal is allowed
under this provision unless provided for by any other statute or by a provision specified in the
Code itself.9 Even, an appeal lies from an ex parte decree. However, a limitation has been
placed on this right that is, in circumstances where a decree is passed by the court with the
consent of the parties or in circumstances where small causes court passes decree where the

9 S. 96(1), Code of Civil Procedure, 1908.

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amount is not in excess of Rupees Ten Thousand unless there is a question of law involved in
the appeal.
Under the principle of res judicata provided in S. 11 if the parties to the suit under
consideration are barred, the recourse to appeal filing from such decrees makes sense. Also, it
is essential to note that S. 2(2) of the Code provides that certain orders are to be considered as
deemed decrees. This would have the implication of allowing appeals against such orders.
Further, a reading of S. 104 in conjunction with Order 43 reveals an enumerated list
containing appealable orders.
As stated above, the second option beyond that of first appeal is that of second appeal. This
provision allows a challenge to the appellate authoritys decision itself. The same has been
provided in Order 42 read with Ss. 100-103, 107 and 108. Like first appeal, here too appeal is
allowed in cases where a specific mention of the same can be found in the statute. S. 100
provides two situation wherein right to appeal against any decision of the subordinate court
would lie to the High Court that is, when a substantial question of law is involved and when
the appellate decree was passed ex parte. With respect to the procedure to be followed in case
of first and second appeal, there seems to be no difference.
S. 109 of the Code discusses situations wherein appeal lies to the Supreme Court. It provides
that given fulfillment of the pertinent Constitutional provisions and the rules of Supreme
Court (SC), an appeal would lie to the Supreme Court when substantial question of law is
involved or when it is felt by the High Court that case involves questions which should be
referred to the Supreme Court. S. 112 goes into an explanation of the fact that the Supreme
Courts powers reflected through Art. 136 of the Constitution of India, 1950 or the rules that
are formulated by the Supreme Court with respect to procedure of presenting appeals before
it, is not restricted or curtailed by any part of the Code. The scope of appeal to the Supreme
Court can be understood through a reading of the above mentioned provisions with Order 45
and Articles 132, 133 and 134A of the Constitution. On the whole these provisions have an
enabling function, facilitating appeal to Supreme Court in situations involving substantial
questions of general importance, questions regarding constitutional interpretation or
legislative validity or when Supreme Court exercises power through Article 136 of the
Constitutional allowing appeal by special leave.
Point of law is different from substantial question of law or that of general importance.
Substantial question of law of general importance is not necessary. What is required is
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substantial question of law between the parties and not generally applying to others. This
cannot be cited as precedence because it is between parties to that suit only. Substantial
question of law is if the decision turns one way or the other on a particular view of law. If it
does not affect the decision, it cannot be substantial as between the parties. In fact, a Supreme
pronouncement in 1962, Chunilal v. Mehta & Sons v. Century Spg. & Mfg. Co. Ltd. 10 is
revenant.
Facts: in this case, the appellants were managing agents to the respondents. There was
provision in the agreement between the parties that would entitle the appellants to certain
liquidated damages if the agreement was terminated except for in accordance to the
provisions laid down. Before the expiry of the stipulated period, agreement was wrongfully
terminated by the respondent. Thus, a suit for damages was instituted. A decree of Rs.
2,34,000 was granted by the trial court. This was affirmed by the High Court in the appeal.
Subsequently, the High Court was applied to for a certificate of fitness in order for appeal.
But the same was denied on ground that question involved only question of law and not
substantial question of law as required under Art. 13(1) of the Constitution.
Decision: It observed that even though substantial question of law has not been defined in the
Code, certain observations with respect to the same can be made. Proper test would be one
that determines whether it is of general importance or whether it directly and substantially
affects the parties rights. If so, whether it is an open question in the sense that it has not been
settled by the Court? However, if it involves a mere question regarding applications of those
principles, it cannot be considered substantive question of law. The appellants were entitled to
certificate of appeal.
Further, a 1983 Supreme Court decision deals with appeal to the Supreme Court. This was in
Taneja v. Bhajan Lal.11 The case was decided by a three judge bench consisting of Justices
M.M. Dutt, J.R.S. Pathak and M.H. Kania. Here, specifically the point that appeal to the
Supreme Court is to be in strict compliance with enumeration in statute was asserted.
Facts: in this case, the appellant had filed an application before the High Court claiming that
due course of judicial proceedings was being interfered by the respondent making him guilty
of contempt of court. The High Court on a consideration of the application and documents
10 Chunilal v. Mehta & Sons v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314.
11 Taneja v. Bhajan Lal (1988) 3 SCC 26.
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supporting the same ruled that the case was unfit for arguing before it. On this ground, it
refused to exercise jurisdiction emanating from the Contempt of Courts Act. In response to
this, an appeal was filed by the appellant the maintainability of which was challenged by the
respondent. This was dismissed by the High Court on the ground that jurisdiction was
sourced in Article 215 of the Constitution and that otherwise appeal can be entertained only
when an order under S. 19(1) of the Contempt of Courts Act is made.
If power or jurisdiction has been conferred on the court to act in a specific manner, the court
has to act in that manner and not in any other manner exercise jurisdiction or power. Here, it
was decided that it incorrect to contend that no remedy lies in the form of an appeal to the
Supreme Court from an erroneous or perverse decision given by the High Court by not
exercising jurisdiction in order to punish for contempt. It was further held that when an
erroneous decision to the effect of acquitting a contemnor guilty of criminal contempt is
made by the High Court, the petitioner interested in the matter has remedy in the form of
moving the Supreme Court under Article 136 of the Constitution. It was also observed that
such a matter of contempt is relevant between the alleged contemnor and the court under
consideration. When the Court is moved by a petitioner for contempt, the only effect is of
bringing the facts relating to the constituting contempt before the court. Even after such
information is furnished, the petitioner can assist the court. However, under S. 19(1) only the
contemnor is an aggrieved party being tried for contempt of court.
Decision: the Supreme Court opined that right to appeal is sourced in a statute. Thus, on a
question deciding whether such a right exists, the only consideration is an interpretation of
the statutory provisions and should not be based on other considerations like propriety.
The appeal was dismissed as being incompetent.
The above discussion on the ambit of right to appeal has been able to establish and
substantiate that unlike the right to suit, the right to appeal is not an inherent right but is
sourced in statutes.

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CHAPTER II: Right to Suit; An Analysis

The previous chapter dealt with an understanding of the right to appeal. Related to it is the
discussion on the right to suit which was briefly introduced in the previous section. In matters
involving civil nature, a party being aggrieved by another partys action has the remedy to
approach a civil court in order to have the matter adjudicated upon. The same is initiated and
facilitated by the filing of a suit. By extension, an appeal can be filed in the appellate court if
aggrieved by this courts decision. However, the same is governed by the rules laid down in
the previous section.
It is essential to note that the dispute has to be of a civil nature happening which civil court
can be approached seeking an adjudication of the matter under consideration. This process of
initiating a suit is referred to as filing of suit. Thus, it can be understood as a terminology that
is used for describing the proceeding of civil nature, initiated by presenting a suit. In other
words, a remedy or a suit for redressal of a private wrong is referred to as a civil suit. 12 In a
more generic sense, it can be understood as a process relating to a dispute referral for the
enforcement of right to a court for seeking injury redressal or the enforcement of a right. It is
understandably the fact that the right to suit is rooted in the principle of ubi jus ibi remedium,
that is, where there is a right there is a remedy.
The objectives of instituting a suit can be enumerated as: (i) pursuing a remedy that is
afforded by the court under consideration, (ii) for redressal of injury caused and (iii)
enforcement of right. 13 S. 9 of the Code can be seen as an enabling provision that confers
upon every individual who seeks enforcement of a right of civil nature to file a suit. A reading
of the provision reveals that such a right has limitations to it enumerated by the statute. These
12 Black,supra note 8, at 1434.
13Id.
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are circumstances wherein a legislation expressly or by impliedly barred. Here, right to

approach a civil court is not available.
Further, in every situation where a right has been infringed, civil courts will take cognizance
of the same, except wherein a civil court has imposed a bar on the hearing of the suit. Thus,
the norm is that civil courts have jurisdiction to try all suits of civil nature and thus, a
presumption is to be made favouring the existence of such a right and also remedy in a
democratic setting that is governed by rule of law and thus, assumption is to be made in
favour of jurisdiction of civil courts.14
A case that re-asserts the provision of S. 9 that is, courts have the jurisdiction to try all civil
nature suits subject to the provisions therein contained, and except for cases in which
congnizance is expressly or impliedly barred by a legislation was Muthuraja v.
Ramakingam.15 Thus, on the infringement of a legal right, a suit lies unless against such
entertainment of civil suit there is a bar.
When a legal right is infringed, a suit would lie unless there is a bar against entertainment of
such civil suit and the civil courts would tame cognizance of it. Thus, the norm is for courts
to exercise jurisdictions to try all civil nature suits except when cognizance has been excluded
by legislation either expressly or impliedly.
Here, it was held that rule of construction is that presumption is to be made in favour of
existence of legal right and remedy in democratic setting that is governed by rule of law.
Thus, exception is reflected in exclusion. When a claim as to exclusion of jurisdiction of
court is to be made, the court needs to construe the relevant provisions very strictly to decide
upon the matter.
Thus, in cases where an express bar to exercise of jurisdiction exists, examining the scheme
of the legislation under consideration is relevant in order to determine the adequacy and
sufficiency of the remedies provided. However, this is not decisive for sustaining the Civil
Courts jurisdiction. The court was of the opinion that in instances wherein no express
exclusion has been provided for, examining the remedies and scheme of the legislation in
order to determine the intendment is required and the resultant finding to the inquiry will be
14 S. Vanathan Mathuraja v. Ramalingam (1997) 6 SCC 143.
15 S. Vanathan Mathuraja v. Ramalingam (1997) 6 SCC 143.
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considered decisive. In case the latter is the concern, a special right or liability needs to have
been created by the statute and provision of remedies in order to determine these rights or
liabilities and also laying down question about the same rights/liabilities to be determined by
the Tribunal that has been constituted and also questions regarding remedies normally
associated with such actions in civil court or that which has been prescribed by the statutes or
not requiring examination.
The following discussion is in continuance of the previous one in terms of determining
exceptions to the right to suit through case law.
One such case that came before the Supreme Court in 1969 was:
Dhulabhai v. State of MP16
The case was decided upon by 5 judge bench comprising Justices Hidayatullah, R.S.
Bachawat, C.A. Vaidyalingam, K.S. Hegde and A.N. Grover. In this case, the main question
that came for determination was the civil courts jurisdiction in entertaining the case. This
case that came before the Supreme Court was by way of appeals by certificate against the
High Court of Madhya Pradesh decision. The facts of the case have been discussed below.
Facts: the appellants in this case were tobacco dealers in Ujjain. The business encompassed
purchase and selling of the tobacco for purposes of eating, preparing beedis and smoking.
From the state within as well as imports from outside the state facilitated the acquiring of the
tobacco. Under S. 3 of the Madhya Bharat Sales Tax Act which came into force on May 1,
1950 required dealers whose previous year business, with respect to supplies or sales of
goods was in excess in case of manufacturer or importer of rupees 5,000 and in all other cases
Rupees 12, 000 to pay tax with respect to such sales or supplies from the date of
commencement of the Act that is, May 1, 1950. S. 5 of this Act clarified that the tax under
consideration was a single point tax and the government was empowered to specify the actual
rate through notification. The Act merely had maximum and minimum rates specified.
Pursuing this, on the following dates of April 30, 1950, May 22, 1950, October 24, 1953 and
January 21, 1954 notifications were issued by the government. These had the effect of
imposing varied rates of tax on tobacco at the point of import on the importer. However, this
tax was not applicable in the State of Madhya Pradesh for the purchase or sale of the similar
kind tobacco. The authorities collected tax for different quarters and in varying amount from
16 Dhulabhai v. State of MP AIR 1969 SC 78.
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the appellants. Subsequently, the appellants took recourse to constitutional prohibition

contained in Article 301 and non-saving by Article 304(a) of the Constitution to claim
illegality in collection of tax, serving notices under S. 80 of the Code and instituting suits
seeking refund of the collected tax.
Issues: the following were identified as constituting issues:
S. 17 of the Madhya Bharat Sales Tax Act was relevant to the determination of rights. The
provision states that certain proceedings are barred. Apart from the instances that are
provided here, assessments made or orders that are passed under this Act or the rules that are
made by the assessing authority or commissioner or appellate authority can neither be
questioned in court nor would any appeal or application for revision lie against such order or
assessment. Exceptions to this are Ss. 11 and 12 of this Act.17
On this pint it was contested by the State that even though the provisions of the Act may be
unconstitutional, by virtue of S. 17 of the Act bringing a suit by the appellants was barred.
Thus, the two issues on which the decision had to be reached were- (i) whether the civil court
had the jurisdiction to try the suit and (ii) whether the provisions of the Act under
consideration were violative of Article 301 of the Constitution.
Previous decisions of the Supreme Court had answered the questions pertaining to civil
courts ouster of jurisdiction by any other statute or law differently. Given, the difficulty
arising out of the previous rulings, the case was referred by the divisional bench to a
constitutional bench. In order to determine the correct position of law, previous rulings were
looked into by the bench.
Decision:
After a detailed analysis of precedents and otherwise, the Supreme Court laid down the
following seven principles with regards the ouster of the jurisdiction of civil courts by special
statute(s):1) If by virtue of the statute the orders of the special tribunals are given finality, the
jurisdiction of the civil court can be concluded to be excluded. However, the remedy
provided for be adequate in the sense that it would be what the court would have normally
17
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done in the suit. Further, those instances are not ruled out by statute where there has been
non-compliance with the provisions of the Act under consideration or if the tribunal has
failed to act in conformity with the judicial procedure fundamental principles.
2) In case of express bar to the jurisdiction, analysing the Acts scheme in order to determine
adequacy of sufficiency of the provided remedies though relevant cannot be decisive for
the purpose of sustaining civil courts jurisdiction. Only when no express exclusion exists
with regards such an examination of remedies and the Acts scheme, finding out the
intendment becomes requisite and resultant conclusion to the enquiry can be decisive. In
case the latter is the concern, a special right or liability needs to have been created by the
statute and provision of remedies in order to determine these rights or liabilities and also
laying down question about the same rights/liabilities to be determined by the Tribunal
that has been constituted and also questions regarding remedies normally associated with
such actions in civil court or that which has been prescribed by the statutes or not
requiring examination.
3) The Tribunals constituted by the Act cannot go into question about the ultra vires of the
provisions of the Act. In fact, such a challenge cannot be brought before the High Court
too on reference or revision from the Tribunals decision.
4) A suit can be considered open in cases where the impugned provision had already been
declared unconstitutional or if such a challenge of constitutionality is made. The writ of
certiorari which is allowed may direct the refunding when the claim is within the time
limit prescribed by the Limitation Act. However, this is not a compulsory remedy for the
replacement of a suit.
5) Where no machinery is provided for in the Act for refunding of tax that is collected
against constitutional limits or collected illegally, a suit lies.
6) It is for the authorities to determine the correctness of assessment apart from the
constitutionality of the same. It is not for a civil court to look into such questions and
when authorities orders are declared to be final or if the Act contains a particular
prohibition. However, in either of the enumerated instance, scheme of the Act should be
analysed as this is a relevant enquiry.
7) Unless conditions discussed above are applicable, civil courts jurisdiction should not be
readily inferred to be excluded.

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Judgement: the court held that rather than principle 2, principles 3 and 4 were applicable. The
provisions under consideration were held to be violative of Article 301 of the Constitution.
Further, the same were not saved by Article 304 exceptions. Accordingly, the appeals were
allowed.

CHAPTER III: Interplay between the Right to Suit

and the Right to Appeal
The previous discussion has established the fact that the difference between right to suit and
right to appeal is that while the former is an inherent right, the latter is a statutory right. This
chapter seeks to analyse the right to appeal as a continuation of the right to suit. With regards
appeal, the right to do so accumulates from the point of instituting the suit. Contrary to this is
the opinion that such a right accrues only at the stage when decree is given. This is based on
the reasoning that only in this case the aggrieved party would seek moving to the higher court
for redressal of the wrong. There seems to be credence to the point that right to appeal as
provided by the statute becomes effective from the point of filing suit as then the parties can
be assumed to be aware of this right at that very point itself. Further, they would have the
knowledge that the aggrieved party would have the right as per the relevant provision(s) to
appeal against the same.
That appeal can be regarded as a continuation of suit has been discussed in many cases, one
such being Lakshminarayan v. Niranjan Modak.18 This was decided by 2 judge bench of the
Supreme Court consisting of Justices R.S. Pathak and Chinappa Reddy.
Facts: In this case, the appellants were the owners of the house property that was under
consideration before the Court. The case was filed eviction suit against tenants from the
property situate in West Bengal. This eviction was sought on the basis that arrears of rent had
not been paid by the tenants and also the building was old and needed demolition to make
18Lakshminarayan v. Niranjan Modak AIR 1985 SC 111.
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way for new buildings on the land. The trial court ruled in favour of the appellants on both
counts. An appeal was filed by the tenants before the first appellate court. While the appeal
was pending, extending the application of the West Bengal Premises Tenancy Act, 1956 to
Mermari was affirmed by the government of West Bengal. Mermari was the place where the
property was situated. Given that the first appeal was dismissed, a second appeal was filed
before the High Court. Here, appeal was allowed and trial court decree was set aside and
dismissal of the suit ordered. Subsequently, the Supreme Court dismissed the appeal filed
before it by the landlord against the decision of the High Court.
Reasoning: it was mandated by S. 13(1) of the Tenancy Act that apart from certain grounds
enumerated by the Act, no decree or order shall be made by a court for the recovery of
possession in a suit against the tenant by a landlords suit. Further, S. 13(6) states that no such
proceeding or suit can be made on the grounds provided in S. 13(1), except those mentioned
in clauses (j) and (k) can be filed by the landlord unless a months notice has been given to
the tenant and expiring with a month of tenancy. Since, procedure had not be followed by the
landlords , the appeal was dismissed by the appellate court.
Among other things, the question that came up for determination before the court was which
decree would be applicable within the purview of S.13 (1) which makes reference to decree.
The Supreme Court was of the opinion that decree here would refer to one that finally
disposed of the suit. When a suit is decreed by a trial court and an appeal is sought against it,
this appeal is basically a continuation of the suit. Once the appellant court modifies, reverses
or affirms the decree based on merits, in law it is said that the trial decree merged in the
appellate decree.
Decision: the appeal was dismissed in this case. Since, the appeal was in continuation to the
suit, the appellants contention that suit was filed before the application of Tenancy Act was
extended to Memari and thus, Transfer of Property Act must be resorted to did not stand in
light of the relevant scrutiny.
Yet another principle is relevant in this regard. This one entails that in an appeal only those
issues can be argued that were previously framed and also argued in the original suit. Further,
no new relief can be prayed for in appeal from that which had been sought in the first
instance.19The judge in the appellate court is merely concerned with giving a second hearing
19 D.F. Mulla, CODE OF CIVIL PROCEDURE (16th edn., 2002).
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to the matter. In doing so, it ensures that based on the facts and arguments that were discussed
by the parties, a determination whether lower court decision was erroneous or not would be
made and if there was any mistake, the decree would be set aside.
A case that discusses the principle laid above is Prithvi Singh v. Dalip Kulkarni.20 This case
that was decided by a single judge in the Rajasthan High Court by Justice Arun Madan. In
this case, the appellant had agreed to sell his shares in the company to the respondent. The
payment was to be made in part during the transaction and at a later stage the balance was to
be paid. However, the plaintiff argued that MoU between the parties under consideration
required the respondent to undertake certain liabilities. This clause was claimed to have been
not complied with and on this basis it was contended that the lower court had made an error
with regards appreciation of evidence. This was the ground on which appeal was preferred.
Responding to this, the other party claimed that it was the plaintiff who had committed this
breach. In the High Court, that is, at the stage of appeal this submission was made by the
respondent who then sought a dismissal of the plaint claiming misjoinder of parties.
The high Court however, rejected this on the basis that such an objection was being raised by
the respondent for the first time and no such objection was mentioned in the written
statement. Further, the same was not argued at the trial stage. Thus, given this inherent defect
the respondent was not permitted to argue the suit being defective.
Decision: while allowing the appeal the High Court held that specific performance was
maintainable. However, at the stage of the appellate court only those arguments could be
heard that at the trial stage had been framed as well as argued.
The point discussed in this case, is a general rule. However, there could be exceptional
circumstances wherein the rule could be disregarded. One such instance could be when it is
alleged by the party that insufficient evidence was considered by the court. In such a case, a
re-examination of the law as well as facts can be undertaken by the higher court. A case on
this point is N.G. Dastane v. Mrs. S. Dastane.21 The Supreme Court three judge bench
comprising Justices Chandrachud, P.K. Goswami and N.L. Untwalia gave the decision. This

20Prithvi Singh v. Dalip Kulkarni AIR 1999 Raj 201.

21N.G. Dastane v. Mrs. S. Dastane AIR 1975 SC 1534.
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case related to divorce, where the husband petitioned seeking annulment of marriage. This
was on ground of unsoundness of mind. Further, judicial separation was also sought on the
basis of cruelty meted onto him. The court noted that three children were born to the couple.
While the court dismissed the contention of unsoundness of mind, guilt of cruelty was
established. Thus, a decree for judicial separation was granted. Both the parties feeling
aggrieved sought an appeal against the decision before the District Court. While the
husbands appeal was dimissed, the wifes appeal was allowed. Further, even when the
husbands appeal to the High Court was dismissed, he preferred an appeal to the Supreme
Court which was allowed.
Here, the Supreme Court observed that it is not for the appellate court to explore or reappreciate the evidence. In fact S. 100 provides that High Court jurisdiction in second appeal
is limited to the extent of deciding upon questions of law or substantial errors or defects in
procedure or substantial questions of law that might affect decision on merits. However, in
this case, the High Court re-examined the evidence and concluded that the lower court did not
interpret law as applying to cruelty in the circumstances under consideration. On this point
the Supreme Court held that when a High Court goes beyond the mandate to determine issue
of fact, the power to do so is subject to the restrictions that are applicable on any court of fact.
The mere fact that the High Court is the one determining the question of fact from the
evidence should not mean a wider conferral of powers upon it.
Decision: the Supreme Court held that evidence had not been properly appreciated by the
High Court and thus proceeded to re-appreciate the same itself. The appeal of the wife was
dismissed holding that even though she meted our husband with cruelty the same had been
condoned by her husband. Further, the subsequent conduct could not be referred as
amounting to a revival of the cause of action as it had originally stood.
Yet another interplay between the two rights viz. The right to suit and the right to appeal is
seen in the predominance of the appellate courts decree over that of the lower courts decree.
A case that discussed the principle is Collector of Customs, Calcutta v. East India
Commercial Company.22 This was heard in the Supreme Court by Justices Wanchoo,
Venkatrama Aiyyar, Bhuvaneshwar Sinha, Gajendragadkar and Rajagopala Ayyangar.
22Collector of Customs, Calcutta v. East India Commercial Company AIR 1963 SC 1124.
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Facts: in this case, the respondent was in the business of importing oil. The collector of
customs had confiscated a part of his shipment and also imposed a penalty under the ambit of
the Sea Customs Act. The Central Board of Revenue which was authority that heard such
appeal confirmed the Collectors decision and dismissed the appeal in the case. Subsequently,
an appeal was filed before the High Court by the respondent under Article 226 of the
Constitution. Since, the jurisdiction of the High Court did not include within itself the Central
Board the issue framed sought to determine whether writ could be passed against the Board
and whether such a writ could be against original authority. The reasoning behind such an
argument was that given the appellate court merely reaffirmed the Collectors decision here,
the original decision was the one which was applicable. This contention was accepted by the
High Court.
However, this decision was overturned by the Supreme Court. The Court opined that when
the respondents appeal was originally dismissed by the Board, the Collectors decision was
merged with the appellate authoritys decision. Thus, decision of issuing writ against
Collector was held to be incorrect because of the above discussion and also because HC
lacked territorial jurisdiction to issue such a writ.
Decision: even though the lower court is to be approached for the execution of a decree by an
appellate authority, the appellate authoritys order merges with the original decree which will
subsist and also become an operative order. Thus, the appeal was allowed by the Supreme
Court reversing the High Court decision. Thus, it was clarified that a continuation of the suit
is an appeal. Further, regardless of whether the original decree against which the appeal was
preferred is upheld, overturned or modified, appellate authoritys decree would subsist and be
enforceable.
Thus, even though appeal and suits have different procedures, are filed in varied courts, they
remain to constitute the same process. In fact an appellate courts decision replaces the one
given by the lower court regardless of what the decree given by the former entails.
It has been established that an appeal is a continuation of a suit. A related point is that both
the rights constitute the same process. In this, an appeal is regarded as forming part of the suit
for the purpose of approaching questions relating to what provisions from different statutes
are to be applied to parties under consideration. The following cases discussed the point being
asserted.

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The first case on this point sought to be discussed is Shyam Sunder v. Shagun Chand23 which
was heard before the Allahabad High Court by two judge bench comprising Justices Mukerji,
V. Oak and Takru.
Facts: in this case, a suit for ejection was filed by the plaintiff against the defendants. They
were sought to be evicted on grounds of arrears of rent as well as personal necessity of the
plaintiffs. To this the defendants claimed that plaintiff had refused to accept rent wrongfully
and the need for personal reasons had not actual basis. The trial court decreed the suit for the
recovery of arrears of rent to an extent only. Thus, appeal was preferred against the decree by
defendants. The defendants argued in the second appeal that UP Control of Rent and Eviction
Act had become applicable in the meanwhile to the defendants. The issue to be determined by
the High Court was whether the Act which had come into force only after the institution of
suit could be applicable to the defendants facilitating their protection under it. The court held
that the Act under consideration had no provision ensuring retrospective applicability. But,
the Act did apply to suits pending before the courts on the date it became enforceable.
Issue: thus given the context, the point to be determined was whether the concept of suit was
inclusive of second appeal against the decision.
Decision: the court after an analysis of various case laws held that legal remedies that the
parties were seeking by way of first and second appeal formed part of one proceeding. It
further was of the opinion that hearing an appeal required a process which was similar to rehearing a case. Further, the Court of Appeal had almost similar power as that of the court of
first instance empowering it to perform the same functions as the latter under S. 107 of the
Code.
Here, the court ruled against the eviction holding that suit includes first and second appeals
which are provided against the original decree by the law. A clarification to the effect that an
Act cannot be retrospectively applicable to a suit and that appeal was governed by the law
applicable at the time of filing the suit. When it is stated that law is applicable to pending
suits it is deemed to include application to appeals too and thus by extension to second
appeals as well.

23 Shyam Sunder v. Shagun Chand, AIR 1967 All 214.

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Yet another case that decided upon the relevance of this principle came before the Supreme
Court in Ramankutty Guptan v. Avara.24 The bench consisted of Justices K. Ramaswamy and
B.L. Hanasaria.
Facts: in this case, the respondent who in a contract of sale was the buyer was given
possession of some property by virtue of that contract. When the vendor in the contract
refused to execute a sale deed, the buyer moved the court seeking specific relief. The suit was
dismissed by the trial court. This was reversed by the appellate court granting specified time
to facilitate payment of balance. The appellant in the meanwhile filed a petition under S. 28
of the Specific Relief Act. This provision allows seller to apply in the same suit in order to
have the decree rescinded in situations of payment default. However, the respondent argued
that the court in which the application was made was the same as that in the original suit. But,
the statute was concluded to be applicable to the same suit but where it continued in the
appellate court. Here, reference was made to S. 37 of the Code which provides that courts
which passed decree for matter relating to execution of the same shall be deemed to include
the court of first instance in a situation where the decree was passed by the appellate court.
Thus, interpretation of suit would include this as well.
Decision: In such instances, decree that is passed by an appellate court should be understood
to mean a decree that is passed by a first instance court. Thus, seen this way, an appeal can be
regarded as a continuation of the suit. In this case, when the suit for specific performance was
dismissed at the trial stage but decreed by the appellate court, it should be regarded as being
the same suit. This is because the lower courts decree will be merged with the appellate
courts decision. Even when the appellate court passes the decree, execution must be obtained
from the lower court.
Here, the appeal was dismissed by the court holding that the price involved in the contract for
sale had been paid by the buyer.
From the above discussion it is established that for the purpose of legislation, suit is
interpreted to incorporate an appeal and second appeal too. Thus, the assertion that law
remains the same from the date of instituting the suit, by extension applies not merely to a
suit but also first and second appeals which form part of the same process. The point being

24 Ramankutty Guptan v. Avara (1994) 2 SCC 642.

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made, the following discussion seeks to capture the proposition that law remains the same
through the suit.
Related to the claim of right to appeal not being an inherent right but a statutory right is that
no person can claim right to procedure. This has been established through case laws as well. 25
Unlike a suit, an appeal that cannot be assured in every case once recognised becomes a
substantive and is not merely a matter of procedure. For a conclusion to be reached that
legislation alters a law which is applicable to a litigation claim, a clear legislative intention
needs to be there that can be concluded from the reading of the amendment itself. 26 Even if an
amendment affecting law governing appeals take place, the parties under consideration will
continue to be governed by the law that was applicable at the time of instituting the suit
unless the amendment is retrospectively applicable.
An important case that came to be decided in 1975 by the Apex Court was Garikapati v.
Subbaiah Choudhary.27
Facts: Here, in 1949 a suit was filed in the now known state of Andhra Pradesh. The trial
court dismissed the plaintiffs case. The High Court of Andhra Pradesh which accepted the
transfer of suit to it and reversed the trial court decree came to be established only in the
period following the dismissal of the suit. Further, a special leave from this High Court
sought by the defendant was refused. Subsequently, appeal to the Supreme Court was sought
through special leave. The same was granted. Here, it was argued by the petitioner that right
to appeal to the Federal Court was acquired at the time the suit was filed in 1949. The
Supreme Court had now had replaced the Federal Court and thus right to appeal to the former
was vested in him.
Issue: the court had to determine whether right to appeal accrues on the parties at the time of
institution of suit and continues unless an express provision in the statute takes it away or the
right comes to vest only once a decision in the suit being heard.

25 Union of India v. Delhi High Court Bar Assn. (2002) 4 SCC 275 (293).
26 G.P. Singh, PRINCIPLES OF STATUTORY INTERPRETATION, 479, (7th edn., 2004).
27 Garikapati v. Subbaiah Choudhary AIR 1957 SC 540.
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Decision: in order to reach a conclusion on the issue, evolution of cases in this regard were
analysed and the following principles governing the right to appeal were enumerated:
A. Pursuing remedy, suit, followed by appeal and second appeal are part of a series of the
same proceedings. An intrinsic unity connects all these and together should be
considered as constituting one legal proceeding.
B. The right to appeal is a matter of substantive right and not a mere procedural
consideration.
C. Right to suit has an implication that rights to appeal which are in force then remain
preserved.
D. Since, right to appeal is not an inherent but vested right, such a right to move the
superior court is triggered from the date the suit commences. Even though the party
may exercise it only at the pronouncement of unfavourable judgement, this right is
governed by law that is in existence at the date when suit is filed. It is not the law
prevailing at the time of decision or for that matter on the date of preferring an appeal
that is applicable.
E. Such a right of appeal can be excluded only through an amendment. There too such
exclusion must be provided either expressly or by necessary intendment only.
Here, the special leave was allowed with a view to correct the error of the High Court. The
court came to the conclusion that applicable law to the suit was not retrospective in nature
and thus, plaintiff had the right to appeal as vested on the date of instituting suit.
The above discussion makes it apparent that decisions over time have acknowledged that
appeal is indeed a continuation of a suit. In brief, the procedures for filing both are different
thus these rights are not the same, right to suit is inherent while right to appeal is a statutory
right and no variation of arguments can take place when arguing the case in the higher court
which had originated in the lower court, but the appellate court is at liberty to analyse the
entire case noting the manner of its trial in order to rectify errors if any. Based on these, it can
be concluded that appeal is a continuation of suit.

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CHAPTER IV: Differences between Right to Suit

and Right to Appeal
The earlier chapters have already provided with a basic insight into the points of difference
between a right to sue and a right to appeal. The earlier discussions have highlighted the
difference on the grounds of:

Nature of the right, i.e. whether statutory or inherent

Procedure involved, i.e. suit filed in the court of first instance of an appeal preferred
in a higher court challenging the decision of the lower court.

The scope of the chapter is limited to the extent of understanding the differences in detail
through an analysis of relevant case laws on this.
One such case is Ganga Bai v. Vijay Kumar28 decided by the Supreme Court in 1974 by
Justices Y. V. Chandrachud and Hameedullah Beg.
Facts: the subject matter of contention in this case was a property that had been mortgaged in
favour of the defendant and his first son. Subsequently, with the birth of the second son a
28 Ganga Bai v. Vijay Kumar (1974) 2 SCC 393.
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share in the property was acquired by him too. Later, execution of a deed of partition
happened with the effect of assigning the property in the two sons. The mortgage was sought
to be redeemed by the plaintiff, the mortgagee in this case. On this point it was ruled that the
same was not binding on the defendants as debt was for immoral purpose. Here the defendant
headed the joint family of which the two sons were members. A preliminary decree ordered
the selling of the property to the extent of fathers interest in the same. It was further held by
the court that partition was fraudulent. Against this decision, both the parties preferred an
appeal to the High Court. While this was pending, the preliminary decree became final. This
led the defendants to seek leave allowing amendment of memorandum of appeal to the extent
that it challenged the preliminary decree. Further, withdrawal of appeal by the plaintiff was
sought. The amendment was allowed by the High Court and further time was granted to
facilitate payment of court fees. The case of the plaintiff was also dismissed by the court
holding that defendants had the right to redeem the mortgage as the partition was declared as
genuine. But, this was sought to be challenged on the ground that appeal was directed against
a finding and not a decree.
Decision: here, the court reiterated the difference between right to suit and right to appeal.
Former in an inherent right vested in every individual and is not determines by factors like
frivolity of the claim. This suit does not require any authority from law and it is sufficient if
there is not statute barring the same. With respect to appeals, the position is quite the
opposite. Such a right is not inherent in any individual and for preferring such an appeal, the
same should have the authorization from law. Thus, describing it as a creature of the statute
makes sense. Further, it was held by the court that an appeal can be preferred against every
decree that is passed by a court that exercises original jurisdiction [S. 96(1)] and that second
appeals is allowed from the same in case when the court was appellate authority below the
High Court [S.100]. Further certain specified orders only can be appealed against as
enumerated in S. 104(1). Thus, only as against decrees or against order that is passed under
rules from which an appeal is allowed by Order 43, Rule 1 expressly does appeal lie. It was
held that no appeal lies against a mere finding as the Code is silent on the same, not providing
for it.
The court held that, at any time the amount could have been deposited by the defendants. The
preliminary decree did not aggrieve them but the cause of grievance was the courts finding
that the property needed to be sold. The Supreme Court while not allowing the appeal set
aside the High Court decision permitting the concerned amendment to the memorandum as
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there were no grounds that could authorise the appeal. The right to appeal which is a
legislative creation cannot be a matter of conferral either by the judiciary or any other
authority.
The assertion made in the previous case was re-established in a 1975 Supreme Court decision
of Anant Mills v. State of Gujarat.29 This was decided by Justice Khanna.
Facts: here, various provisions of the Bombay Provincial Municipal Corporation Act, 1949
was under challenge as to Constitutional validity. Certain sections were struck down as being
void by the High Court to the extent they stated that while an appeal was under consideration
no warrant for collection of taxes could be issued. The Court held that provision made a
distinction which had no possible nexus with the object behind the provision with respect to
appeal. This was differentiating between those who beforehand deposited tax amount as to be
assessed by the Commissioner and those who did not do so. Based on this, the provision was
struck down.
However, the Supreme Court was not convinced by the decision of the High Court. It
observed that no appeal was allowed to be heard if requisite amount had not been deposited
with the collector by virtue of S. 406(2). However, if the judge was of the opinion that such a
requirement caused hardship to the appellant, he could exercise jurisdiction under the proviso
to the section to dispense with this or put conditions.
Decision: it was held by the Supreme Court that the provision was a mere regulation and did
not create a bar on appeal as such. The conditions discussed above were not in violation of
Article 14 of the Constitution as right to appeal is not an inherent right vested with every
individual. Since appeal is created by a statute, in the absence of such a provision, appeal
cannot be filed. Further, the Court ruled that legislature should not be restricted from
imposing conditions on this right and without any special reasons there exist no
Constitutional or legal bar to permit grant of such appeals.
There seems to be a particular rationale behind such decisions. Right to suit is unconditional
with no fetters imposed on it. The right to appeal is provided for in statute. Since it is not
granted unless provided for by the legislature, the body has power to impose conditions on
the same. Procedurally, many differences can be recognised which gives the impression that

29 Anant Mills v. State of Gujarat (1975) 2 SCC 175.

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an appeal is not a natural continuation of suit as the latter need not result in an appeal. If the
provisions governing appeal are not satisfied, a suit will not result in appeal.
It is also essential to note that even though there exists a right to suit, the plaintiff cannot
demand that the suit be decided upon only by a civil court or that some specific procedural
law that would also be applicable to appeal he may be entitled to govern the dispute as no
such right exists.30 Hence, manner governing the adjudication of the suit is governed by laws
that have been specified and merely because the Code provides for procedures that the
dispute is dealt with in the way discussed in previous chapters.
If the right to appeal does not exist, the other options available before the aggrieved party is
to seek review or revision of the decision. Even though these two remedies are not referred to
as appeal but in essence they can be characterised so. But even here certain conditions can be
considered to have been imposed upon the maintainability of the same. A revision petition is
provided for in S. 115 of the Code, for instance can only be made before a High Court. There
can be other remedies as well. Like, in case of ex parte decree, in addition to preferring an
appeal, the same can be set aside as provided for in Order 9 of the Code. But, in certain cases
remedies may not be readily available. For example, in a compromise decree once the rules
are adhered to there would not lay any appeals.31
Reference can be made under S. 113 of the Code. If it is brought to the notice of the court by
the defendant or the court itself recognizes it that a question of law is needed to be answered
for complete adjudication over all disputes, it can be referred under Sec 113.It can be used
when the act, ordinance or regulation is invalid or ultra vires of the constitution. It the
Supreme Courts or the high courts decision is there on the matter, no need to refer it and the
court can simply follow it and need not make the reference. Till the HC gives its finding, the
case is stayed. Or in other case, the lower court can go on with the suit and the decree shall be
executed or not executed subject to the finding of the HC. 32 Order 46 corresponding to 113:

30 Union of India v. Delhi High Court Bar Assn. (2002) 4 SCC 275 (293).
31
32
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rule 1- proviso to 113 gives certain conditions, rule 1 gives different condition that is, and
there should be a doubt in the mind of the court. Here, point of law has to be in doubt.33
S. 114 and Order 47 deals with review. However, if appeal has already been preferred, review
is not allowed. Other conditions that are enumerated need to be fulfilled too. Instances
wherein such review may be allowed, evidence was not available, or there was an apparent
error or mistake. This is evident from the face of record and does not require appreciation of
pleadings among other things. When appeal is there, review petition can be preferred if
appeal is not preferred. Review is limited to a point, appeal anything can be corrected;
comprehensive. Why then is review petition chosen? This is because court fees for appeal
will be determined on claims in plaint, review has a fixed court fees. Review can be quickly
decided within 2-3 months. Review is before the same court and the same judge in HC. If
both review and appeal are filed, if review petition is heard and dismissed then appeal can
still be heard. Review petition automatically goes when appeal is decided as the latter is in a
higher court and it decides on more points.

Conclusion
As has been established through the discussion, right to suit is interlinked with right to
appeal. To this effect, there are similarities as well as differences between the two that have
been highlighted in the paper. For instance, one stark difference is that right to suit is an
inherent right while right to appeal is a statutory right.
There are also certain procedural aspects with respect to the two that are comparable. When
an appeal is preferred against a trial court decree, it is regarded as continuation of the suit and
the lower court decision gets merged with that of the appellate court regardless of whether the
same is overturned, modified or upheld. Ultimately it is the decree of the appellate court that
is considered good in law.
Certain differences mark the two concepts. For instance, while the suit is instituted seeking
relief in a dispute against the other party, appeal can be understood as grievance against the
decision of the lower court essentially. Further, the right to appeal can arise only when there
33 Order 46, Code of Civil Procedure, 1908.
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exists a right to suit. However, the opposite may not be the case. Thus, appeal is made
available to the aggrieved person by statute upon fulfillment of certain conditions.
Lord Hobhouse while passing the Privy Council Appeal Act, 1874 summed up the scope and
meaning of right to appeal. Here while remarking on the limit that should be placed on
appealing, he remarked that the commonwealth interest lies in putting an end to law suits.
There exists no unlimited right to get private affairs settled at the cost of time and money of
the public. Further, the duty of the State is discharged when reasonable attention in terms of
skill and honesty are provided for to ensure meritorious decisions, avoidance of erroneous
orders among others. Since, litigation has limited put to it by all laws, limits on the power of
appealing have been made here.34

Bibliography
Books

C. K. Thakker, CIVIL PROCEDURE 260, (3rd edn., 1994).

C.K. Takwani, CIVIL PROCEDURE, 317 (2004).
D.F. Mulla, CODE OF CIVIL PROCEDURE (16th edn., 2002).
G.P. Singh, PRINCIPLES OF STATUTORY INTERPRETATION, 479, (7th edn., 2004).
H.C. Black, BLACKS LAW DICTIONARY, 96 (6th edn., 1990).

Articles

A. Gordon, Note and Comment on the Right to Appeal, XXV (1) OREGON LAW

REVIEW (December 1945).

H.L. Dalton, Taking the Right to Appeal More Seriously, 95(1) YALE LAW JOURNAL
(November, 1985).

Miscellaneous
3445th report of the Law Commission of India, October 1971: The minutes of Lord Hobhouses comments
while passing of the Privy Council Appeal Act, 1874.
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45th Report of the Law Commission of India, October 1971.

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