Right of Appeal against the Judgment / Decree of the Lower Court

After the pronouncement of judgment of the lower court the party against whom the judgment in the case is passed has a legal right to file an appeal against the said judgment in the next higher court / first appellate court competent to hear and dispose of the appeal. The law has given two rights of appeal

1. i) First Appeal
2. ii) Second Appeal

First appeal lies  before the judge of the District Court ,and second appeal lies before the High Court (The Provincial Court). The first appeal against the judgment of the lower court can be filed within a period prescribed by law. However, time spent or consumed in acquiring the certified copy of judgment is excluded.       

Limitation for filing the Regular First Appeal

If an appeal is not preferred within the period of limitation prescribed by law, the same can be filed after the above said period. An application under the provisions of Limitation Act has to be filed along with the appeal for condonation of delay in filing the appeal after the period of limitation.

Requisites of Filing an Appeal

Following is the requisite needed for filing an appeal / first appeal

1. i) Memorandum of Appeal

The facts of the case and grounds of appeal narrated against the fault committed by the Trial Court in passing the judgment against the party.

1. ii) Affixation of Court Fee on the Appeal if Required

iii)        Certified Copy of the Judgment of the Lower Court

1. iv) Copy of Documents necessary to support the Contents of the Appeal which were ignored and not considered by the Trial Court, resulting in passing the impugned Judgment against law and facts on record of the Lower Court.

Jurisdiction of the Appellate Court after Entrustment of Appeal

After the appeal is entrusted to the Appellate Court for hearing, the court can stay or suspend the operation of the judgment passed by the Trial Court till the final disposal of the appeal in hand, on the application of the appellant.  The Appellate Court also calls for the record of the case from the Trial Court for disposal of the said appeal.

Issuance of Process / Notice etc. to the Opposite Party by the Appellate Court for his Appearance in the Case

The court, after filing of the appeal issues notice, postal service, courier service and service through process server authorized in this behalf to obtain presence of the opposite party in the court, in the case.  This process is issued by the court under the provisions of Civil Procedure Court. If the opposite party does not appear in the court after issuance of above process, the court repeats the same service for quite some times. If the court is satisfied that the opposite party is avoiding to appear in the court in response to the above process the court resorts to substituted service as per law.

Substituted Service for Appearance of the Opposite Party

This is the service in which the court orders affixture of notice by the process server on the and outside the premises of the respondent or affixture at some conspicuous place in the same locality where respondent has his residence so as to give information to him that a case is pending in the court against him if he does not appear, the court shall proceed against him ex-party if this service also failed to force the respondent to put his appearance in the court in the case, the court adopts last and final process for his appearance.

Service of Respondent through Proclamation

Proclamation means publication of notice / information in some regular newspaper recognized by law informing the respondent that he or she should appear in the case pending in such court on such date otherwise ex-party proceedings shall be taken against him or her. If the respondent does not appear despite proclamation he is proceeded ex-party, with the result that right of such party to defend his case is closed and then the case proceeds ex-party against the opposite party.

Difficulties and Problems and Delays which are faced by the Appellant 

During the preliminary stage of the case in which the service of the respondent is required more difficulties and problems can arise. Un-necessary delay occurs due to negative attitude of the respondent to remain absent from the court willfully despite issuance of process for service. It is petty and deplorable that the court issues process of service one after the other at the expense of the appellant to acquire presence of the opposite party in the case but due to his mala-fide negative attitude and delaitory tactics the processes issued by the court failed completely as a result of which both money and time of the appellant are wasted for no fault of his, without any penalty or damage to the respondent. After completion of entire process when respondent is proceeded ex-party due to his non-appearance, he simply come to court with an application praying therein to the court to set aside ex-party proceedings against him giving simple reasons that he was not aware of the case pending in the court or takes plea that he was not served according to law. The law becomes helpless and has to set aside ex-party proceedings against him as the wish and whim of the law and equity is that the case should be decided on merit on the basis of this consideration of law supported by Judgments of Apex Courts (High courts and Supreme Court), the court also become helpless, has no other option except to set aside the ex-party proceedings against him permitting him to participate in the appeal pending before the court for decision on merit.

Mala-fide and delaitory tactics only prolong the case un-necessary which is painful and troublesome, wastage of time and monitory sources, tantamount to depriving the appellant to  get decision on the appeal in time or within the target time, the appellant has assessed and calculated for himself.

After appearance of opposite the party, the Appellate Court fixes the appeal for final arguments by the counsels of the parties. After hearing the arguments of the counsels of the parties, the court fixes the appeal for final decision and judgment.

Judgment of the First Appellate Court 

The first Appellate Court, after going through the record of the Trial Court considering the evidence both ocular and documentary of the parties passes a final judgment in the appeal.