24 Sep 2010

What is an 'appeal'? Supreme Court explains

The right to challenge the legality or validity of an order passed by a court or a tribunal before a higher forum is traditionally understood to be an appeal.  Under common law appeal is a right conferred by a statute and does not exist unless so provided. Once provided, appeal is a matter of right (as compared to a petition) to the appellant so long as the relief claimed is within the four corners of the appellate provision. In a recent decision [James Joseph v. State of Kerala] the Supreme Court has culled out the the principles relating to appeals and explained them broadly in six bullets.

The Bench inter alia explained as under;
16. We may therefore formulate the following principles with reference to appeals :
(i) An appeal is a proceeding where an higher forum reconsiders the decision of a lower forum, on questions of fact and questions of law, with jurisdiction to confirm, reverse, modify the decision or remand the matter to the lower forum for fresh decision in terms of its directions.
(ii) The appellate jurisdiction can be limited or regulated by the legislature and its extent has to be decided with reference to the language employed by the statute conferring the appellate jurisdiction. 
(iii) The width of jurisdiction or the limitations on jurisdiction with reference to an appeal, does not depend on whether the appeal is a first appeal or a second appeal, but depends upon the limitations, if any, placed by the statute conferring the right of appeal.
(iv) If the Legislature’s intention is to limit the jurisdiction in an appeal, it may indicate such limits in the provision providing for appeal. Alternatively, it may expressly or impliedly incorporate the provisions of section 100 of the Code, into the provision for appeals.
(v) Generally statutory provisions for appeals against original orders or decrees (that is, first appeals) will not have any limitations and therefore rehearing on both law and fact is contemplated; and statutory provisions for appeals against appellate orders (that is, second appeals) will be restricted to questions of law. But such restriction is not on account of any legal principle that all second appeals should always be with reference to questions of law, but would depend upon the wording of the statute placing the restrictions upon the scope of second appeal.
(vi) Where the statute does not place any limitations or restrictions in regard to the scope and width of the appeal, it shall be construed that the appeal provides a right of rehearing on law as well as facts. If the Legislature enacts a self contained provision for second appeals, without any limitation upon the scope of the second appeal and excludes the possibility of reading the provision of section 100 of the Code, into such provision, then, it will not be permissible to read the limitations of section 100 of the Code into the special provision.

No comments: