DPC

CHANAKYA NATIONAL LAW UNIVERSITY

MEMORANDUM

OF

APPEAL

DRAFTING, PLEADING AND CONVEYANCING

ACKNOWLEDGEMENT

The present project on the topic ‘Memorandum of Appeal has been able to get its final shape ’

with the support and help of people from various quarters. My sincere thanks go to all the members without whom the study could not have come to its present state. I am proud to acknowledge gratitude to the individuals during my study and without whom the study may not be completed. I have taken this opportunity to thank those who genuinely helped me. With immense pleasure, I express my deepest sense of gratitude to Mr B.R.N Sharma, Faculty of Drafting, Pleading and Conveyancing , Chanakya National Law University for helping me in

my project. I am also thankful to the whole Chanakya National Law University family that provided me all the material that I required for the project. I have made every effort to acknowledge credits, but I apologize in advance for any omission that may have inadvertently taken place. Last but not least I would like to thank Almighty whose blessing helped me to complete the project.

Prerna Desu Sateesh th

th

4 Year, 8 Semester CNLU


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RESEARCH METHODOLOGY

Aims and objectives :

Through this project, I attempt to provide information o n the Memorandum of Appeal. Scope and Limitations :

Scope of the present project is to define, conceptualize and to analyze the “Memorandum of Appeal ”. While preparing this project, the biggest hurdle that I faced faced was summarizing the

available information and choosing points of relevancy. Objectives:

i.

To understand meaning of appeal and kinds of appeal that can be filed

ii.

To understand the rules to be followed while drafting grounds of appeal

iii.

To understand how a Memorandum of Appeal is drafted and what is to be included before it is filed with the court.

Research method

A purely doctrinal form of research has been adopted. I have collected all my information from the library and various electronic resources. Style of Writing:

This paper has largely descriptive style of writing. Wherever necessary I hav e analyzed and criticized the various aspects also. Sources of Data:

Mainly secondary sources of data such as articles, books and electronic resources have b een used to answer the various research questions.

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CONTENTS

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MEMORANDUM OF APPEAL

INTRODUCTION

MEANING OF APPEAL

Although “Appeal" has not been defined in the Code of Civil Procedure, 1908 yet any application by a party to an appellate Court, asking it to set aside or revise a decision of a subordinate Court, is an “appeal”.

The Code of Civil Procedure, 1908 provides provisions for appeals from original decrees, orders, appeals to High Court and Supreme Court, pauper appeals and appeals under other Acts. As the value of the suit determines the Court in which the suit is to be filed; similarly it also determines the forum of appeal. Where on the valuation given in the plaint in a suit instituted in the SubCourt, an appeal would be to the District Court, it is not allowed to the defendant to prefer an appeal to the High Court by giving his own valuation in the memorandum of appeal. 1

In Uptron Power Tronics v. Collector of Central Excise , Appeal was defined to be an Examination of entire Case by the higher Court of the decision of lower court competent to

“

hear . ”

Appeal has also been defined by the Court as “ Removal of a cause from an inferior court to a superior court for the purpose of testing of soundness of the decision of inferior court ”.

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NATURE OF RIGHT OF APPEAL

The doctrine ubi jus ibi remedium may permit a litigant to institute a suit independently of any statute/ but right of appeal is clearly a statutory right. A right of appeal is a substantive right; it is not mere matter of procedure. Unless a right of appeal is clearly conferred by express words of

1

AIR 1968 SC 488 Shankar Ramchandra Abhyankar vs Krishnaji Dattatreya Bapat, AIR 1970 SC 1 – para 5

2


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the statute, it does not exist. The scope of right of appeal must be determined by reference to the provisions of the statute conferring it.

Once right to appeal is granted, it has to be liberally construed and the same cannot be restricted. 3

In CIT v. Ashoka Engineering Co , it was held that “ It is true that there is no inherent right to appeal to any assessee and that it has to be spelt from the words of the statute if any, providing for appeal. But it is an equally settle proposition of law that, if there is a provision conferring a right of appeal, it should be read in a reasonable, practical and liberal manner ”.

A right of appeal is not a natural or inherent right but is a creature of a statute. It is the statute alone to which the Court must look to determine whether a right of appeal exists in a particular instance or not. Parties cannot create a right of appeal by agreement or mutual consent. The right of appeal is not a matter of procedure, but is a substantive right and can be taken away only by a subsequent enactment, if it says so expressly or by necessary intendment and not otherwise. It is for the appellant to show that the statute gives a right of appeal to him.

Right of appeal includes right to challenge the very jurisdiction of the authority passing the order appealed against. Assessee can even challenge the jurisdiction of the assessing officer to make the order. Such a right cannot be denied on the ground that appeal lies only against order of the assessing officer and if assessing officer did not have jurisdiction to make the order, appeal too would not lie.

3

(1992) 194 ITR 645 (SC) CHANAKYA NATIONAL LAW UNIVERSITY

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KINDS OF APPEAL The Code of Civil Procedure, 1908 provides for four kinds of appeals:

1. APPEALS FROM ORIGINAL DECREES (SECTIONS 96 TO 99 AND ORDER XLI);

Appeals from original decrees may be preferred from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court on points of law as well as on facts. Appeals from original decrees is provided for in sections 96 to 99, while the form, the grounds of appeal, and other procedure including admission, interim orders and final orders are given in Order 41. They are generally called ‘First Appeals'.

2. SECOND APPEALS (SECTIONS 100 TO 103);

Second Appeals lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. Under Section 100 to the Code, an appeal may lie from an appellate decree passed ex parte. The memorandum of appeal shall precisely state the substantial question of law involved in the appeal. The High Court, if satisfied, that a substantial question of law is involved, shall formulate that question. The appeal shall be heard on question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question.

In the second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the ap peal:

a) which has not been determined by the Lower Appellate Court or both by the Court of first and the Lower Appellate Court, or b) which has been wrongly determined by such Court or Courts by reason of a decision on such question of law as is referred in Section 100 of the Code (Section 103). CHANAKYA NATIONAL LAW UNIVERSITY

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3. APPEALS FROM ORDERS UNDER SECTIONS 104 TO 106:

Appeals from Orders under Sections 104 to 106 would lie only from the following Orders on grounds of defect or irregularity of law: a) An Order under Section 35A of the Code allowing special costs; b) An Order under Section 91 or Section 92 refusing leave to institute a suit; c) An Order under Section 95 for compensation for obtaining arrest, attachment or injunction on insufficient ground; d) An Order under the Code imposing a fine or directing the detention or arrest of any person except in execution of a decree; and e) Appealable Orders as set out under Order XLIII, Rule 1.

4. APPEALS TO THE SUPREME COURT

Appeals to the Supreme Court, the highest Court of Appeal, lie in the following cases:

a) Section 109 of the Code of Civil Procedure, 1908 provides: “Subject to the provisions in Chapter IV of Part V of the Constitution and such rules as may, from time to time, be made by the Supreme Court regarding appeals from the Courts of India, and to the provisfofis hereinafter contained, an appeal shall lie to the Supreme Court from any judgement, decree or fine} order in a civil proceeding of a High Court, if the High Court certifies: a) that the case involves a substantial question o f law of general importance; and b) that in the opinion of the High Court the said question needs to be decided by the Supreme Court ”.

Order 45 of the Code of Civil Procedure, 1908 provides rules of procedure in appeals to the Supreme Court

b) Articles 132 to 135 of the Constitution deal with ordinary appeals to the Supreme Court: Clause (1) of the Article 132 of the Constitution i) Appeals in Consti tut ion al cases: provides that an appeal shall lie to the Supreme Court from any judgement, decree or CHANAKYA NATIONAL LAW UNIVERSITY

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final order of a High Court in the territory of India, whether in a civil, criminal or other proceedings, if the High Court certifies under Article 134A that me ease involves a substantial question of law as to interpretation of the Constitution

Article 133 deals with appeals to the Supreme Court from ii) Appeals in civi l cases: decisions of High Court m civil proceedings. For an appeal to the Supreme Court the conditions laid down in this article must be fulfilled. These conditions are: a) the decision appealed against must be a “judgement, decree or final order" of a High Court in the territory of India, b) such judgement, decree or final order should be given in a civil proceeding, and a certificate of the High Court to the effect that (i) the case involves a substantial question of law, and (ii) in the opinion of the High Court the said question needs to be decided by the Supreme Court.

A limited criminal appellate jurisdiction is conferred ii i) A ppeals in cri mi nal cases: upon the Supreme Court by Article 134. It is limited in the sense that the Supreme Court has been constituted a Court of criminal appeal in exceptional cases where the demand of justice requires interference by the highest Court of the land.

There are two modes by which a criminal appeal from any “judgement, final order or sentence" in a criminal proceeding of a High Court can be brought before the Supreme Court: 1.

Without a certificate of the High Court.

2.

With a certificate of the High Court.

3.

Appeal by Special Leave.

In appeals, as a general rule, the parties to an appeal are not entitled to produce additional evidence, whether oral or documentary, but the Appellate Court has discretion to allow add itional evidence in the following circumstances: i)

When the lower Court has refused to admit evidence which ought to have been admitted:

ii)

When the party seeking to produce additional evidence establishes that he could not

produce it in its trial Court for no fault of his; CHANAKYA NATIONAL LAW UNIVERSITY

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iii)

The Appellate Court requires any document to be produced or any witness to be

examined to enable it to pronounce judgement; and iv)

For any other substantial cause.

However, in all such cases the Appellate Court shall record its reasons for admission of additional evidence. The appellate judgement must include the following essential factors: a) the points for determination; b) the decision thereon; c) the reasons for the decision; and d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled to.


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PARTICULARS OF MEMORANDUM OF APPEAL

The memorandum of appeal should begin with the name of the Court in which it is filed. After the name of the Court, number of the appeal and the year in which it is filed are given. As the number is noted by the officials of the Court, a blank space is left for it. Then follow the names and addresses of the parties to the appeal. The name of the appellant is given first and then that of the respondent. It should be indicated against the names of the parties as to what character each party had in the lower Court, i.e. whether he was a plaintiff or a defendant, or an applicant or an opposite party, as:

A.B, son of etc.

(Plaintiff) Appellant

Versus C.D., son of etc.

(Defendant) Respondent

Or

A.B., son of etc.

(Decree-holder) Appellant

Versus C.D., son of etc

(Judgement-debtor) Respondent

After the names of the parties, an introductory statement giving the particulars of the decree or order appealed from (viz., the number and date, the court which passed it and the name of the presiding officer ), should be written in some such form as:

“The above-named appellant appeals to the Court of ………………….from the decree of ……………….. Civil Judge at………………..in Suit No…………………..passed on the……………….. and sets forth the following grounds of objections to the decree appealed from, namely”. CHANAKYA NATIONAL LAW UNIVERSITY

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This may also be written in the form of a heading as:

“Appeal from the decree of………………Civil Judge of……………at………………in Suit No……………..passed on the………………."

Thereafter, the grounds of appeal be given under the heading “Grounds of Appear. The grounds of appeal are the grounds on which the decree or the order appealed from is objected to or attacked. As a general rule, in the grounds of appe al, the following points may be raised:

a) any mistake committed by the lower Court in weighing the evidence; b) any mistake in the view of law entertained by the lower Court; c) any misapplication of law to the facts of the case; d) any material irregularity committed in the trial of the case; e) any substantial error or defect or procedure; f) and the defect, error or irregularity of any inter-locutory order passed in the case, whether the same was appealable or not.

A ground taken but not pressed in the first Appellate Court cannot be revived in second appeal. A defendant can question the propriety of ex parte proceedings in an appeal from the decree. The general rule, besides being subject to Section 100 of the Code, is also subject to two conditions; a) that the mistake of the lower Court should be material i.e., it should be such as affects the decision, and b) that the objection taken must be such as arises from the pleadings and evidence in the Lower Court.

Signature

A memorandum of appeal need not be signed by the appellant himself. It may be signed by him or by high courts but if there are several appellants and they have no counsel, It must be signed by all of them It is not required to be verified. CHANAKYA NATIONAL LAW UNIVERSITY

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RULES FOR DRAFTING GROUNDS OF APPEAL:

The following rules are deducible from 0.41, R. l (2): —

1. Grounds of objection should be written distinctly and specifically. 2. They should be written concisely. 3. They must not be framed in a narrative or argumentative form. 4. Each distinct objection should be stated in a separate ground and the grounds should be numbered consecutively.

These rules are simple, but important. They must be carefully observed. Any failure to follow these rules may result in an irreparable injury, for, if any memorandum of appeal is not drawn up 4

in accordance with them, the court may reject the appeal.

: First Rule: Each gr ound of attack mu st be specif icall y and distinctl y stated No ground of appeal can be permitted in a general or vague form, such as “the judgment of the lower court is contrary to law, facts and equity”. The particular point on which the lower court has erred in law, the particular finding of fact which is wrong, and the particular view taken by the lower court which is opposed to equity must be clearly and distinctly specified. If any objection is not distinctly and specifically taken, the court may not permit it to be argued, even if the point be a very important one.

Second Rule: Th e grou nd should be drawn up concisely :

The ground should be drawn up concisely without any unnecessary detail and in brief language.

Third rule: Th e grou nds of objection shou ld contain n o narr ative or ar gument :

Facts of the case, or facts constituting an objection should not be narrated, but the objection itself should be distinctly and concisely formulated, and set out in the memorandum. To say that “the defendant had received full consideration for the bond in suit" and that "the defendant’s story 4

O.41, Rule 3 CHANAKYA NATIONAL LAW UNIVERSITY

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that he received only Rs.200 out of Rs.400 is false", is to narrate facts, and not to set up a ground of objection.

A memorandum of appeal, more like a writ petition and unlike a plaint, is directed to challenge the correctness and validity of the view taken by the inferior court and as such is bound to refer to law and cannot be confined to a bare recital of facts and must, therefore, give reasons as well. But only points raised need be indicated in distinct concise paragraphs and not arguments or narrative elaborating those points.

Fourth Rule: Each di sti nct obj ection shou ld be stated separately and onl y once:

The same objection should not be stated in different forms or language at more than one place nor should one objection be covered by another. In other words, the objection would be mutually exclusive, and should not, overlap each other.

Second Appeals : An amendment to section 100 C.P.C. by Central Act 104 of 1976 lays down

that the High Court shall admit a second appeal only if it is satisfied that a substantial question of law arises for decision. In view of this provision it is desirable to formulate one or a few substantial questions of law immediately after the grounds of appeal. It is, however, not a correct practice to do away with “grounds of appeal” and to describe the grounds themselves as “substantial question of law”. Specification of grounds of law may be stated in addition, only for the convenience of the court. The latter should moreover be still more precise and concise, than grounds of appeal, and should be formulated in the form of questions, each question starting with the word “whether”.

Relief: Though it is nowhere expressly provided in the Code that the relief sought by an appeal

should be stated in the memorandum of appeal, and though the absence of a prayer for relief does not appear to be fatal, and the court is bound to exercise its powers under section 107, C.P.C. and to give to the appellant such relief as it thinks proper, yet it is the established practice, which is a very proper practice, to mention in the memorandum the relief sought by the appeal. It is not, however, necessary to claim the relief with the same precision and details as in the plaint.


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Signature : A memorandum of appeal need not be signed by the appellant himself. It may be

signed by him or by his pleader but if there are several appellants and they have no pleader, it must be signed by all of them. It is not required to be verified.

FORM OF APPEAL

Order XLI, Rule 1-Form of appeal what to accompany memorandum: 1. Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the judgment.

Provided that where two or more suits have been tried together and a common judgment has been delivered thereof and two or more appeals are filed against any decree covered by that judgment, whether by the same appellant or by different appellants, the Appellate Court may dispense with the filing of more than one copy of the judgment.

2. Contents of memorandum- The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative; and such grounds shall be numbered consecutively.

3. Where the appeal is against a decree for payment of money, the appellant shall, within such time as the Appellate Court may allow, deposit, the amount disputed in the appeal or furnish such security in respect thereof as the Court may think fit.

Order XLI Rule 3 Rejection of amendment of memorandum:

1. Where the memorandum of appeal is not drawn up in the manner herein before prescribed it may be rejected, or be returned to the appellant, for the purpose of being amended within a time to be fixed by the Court or be amended then and there. 2. Where the Court rejects any memorandum, it shall record the reasons for such rejection. 3. Where a memorandum of appeal is amended, the Judge or such officer as he appoints in this behalf, shall sign or initial the amendment.


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DRAFT OF MEMORANDUM OF APPEAL TO THE HIGH COURT

IN THE HIGH COURT OF JUDICATURE AT KARNATAKA CIVIL APPELLATE JURISDICTION REGULAR CIVIL APPEAL NO……………..

IN THE MATTER OF: A.B.C. Company Ltd. a company incorporated under the provisions of the Companies Act and having its registered office at M.G Road, Bangalore

………..Appellant

Versus

XYZ company Ltd., a company incorporated under the Companies Act and having its registered office at Indiranagar, Bangalore)

………....Respondents

May it please the Hon’ble Chief Justice of the High Court of Karnataka and his Lordship's companion Justices, The appellant-company MOST RESPECTFULLY SHOWETH: 1. That the appellant herein is a company duly registered under the provisions of the Companies Act and the registered office of the appellant is at M.G Road, Bangalore and the company is engaged in the business of manufacturing. 2. That the respondents who are also doing business of selling goods manufactured by the appellants and other manufacturers approached the appellant for purchasing from the appellant-company the aforesaid manufactured goods. An agreement was reached between the parties which was reducing into writing. The appellant supplied goods worth Rs. 15 lacs over a period of 9 months to the respondents. A statement of account regarding the goods so supplied is annexed hereto and marked as ANNEXURE A-1. 3. That the respondents have made a total payment of Rs. 6 lacs on different dates. The statement of the said payments made by the respondents is appended and is marked as ANNEXURE A-2. CHANAKYA NATIONAL LAW UNIVERSITY

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4. That the remaining amount has not been paid by the respondent despite repeated demands and issuance of a legal notice by the appellant through advocate. 5. That the appellant filed a suit for recovery of the aforesaid balance amount of Rs. 9 lacs together with interest at the rate of 12% per annum and the cost of the suit. The suit was filed on 12/03/2014 in the court of the teamed District Judge. 6. That upon being summoned by the said court the respondents appeared through counsel and filed their written statement to which appellant-plaintiff also filed replication (rejoinder). 7. That the parties led evidence. After hearing the counsel for the parties the learned District th

Judge has by his judgement and decree passed on 7 day of May 2004 dismissed the appellant's suit on the ground that the evidence led by the parties does not establish the claim of the appellant-plaintiff. Copies of the judgement and decree of the court below are annexed hereto and are marked as ANNEXURE A-3 AND A-4, respectively.

Aggrieved by the aforesaid judgement and decree of the court below dismissing the suit of the plamttff this appeal is hereby filed on the following, amongst other,

GROUNDS A. That the judgement and decree under appeal are erroneous both on facts as well as law. B. That the learned trial court has failed to properly appreciate the evidence, and has fallen into error in not finding that the preponderance of probability was in favour of the plaintiff-appellant C. That there was sufficient evidence led by the plaintiff to prove the issues raised in the suit and the defendant-respondent has failed to effectively rebut the plaintiffs evidence, more particularly the documentary evidence.

8. That the valuation of this appeal for the purposes of payment of court-fee is fixed at Rs 38,000 and the requisite court fee in the form of stamps is appended to this memorandum of appeal. 9. That this appeal is being filed within the prescribed period of limitation, the judgement th

and decree under appeal having been passed on 7 day of May 2004. CHANAKYA NATIONAL LAW UNIVERSITY

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In the above facts and circumstances the appellant prays that this appeal be allowed, the judgement and decree under appeal be set aside and the decree prayed for by the appellant in his suit before the court below be passed together with up-to-date interest and costs of b oth courts.

APPELLANT

VERIFICATION th

Verified at Bangalore on this, the 28 day of May 2004 that the contents of the above appeal are correct to the best of my knowledge and belief.

APPELLANT THROUGH (…………………….. )


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DRAFT OF MEMORANDUM OF SECOND APPEAL

IN THE HIGH COURT OF JUDICATURE AT PATNA (CIVIL APPELLATE JURISDICTION) S.A. NO………….OF 2010 In the matter of second appeal under Section 100 of the Code of civil Procedure. AND In the matter of : 1.

Daya Shankar Pandey, S/o late Sukhdeo Pandey.

2.

Sanjay Kumar Pandey @ Abhinu Kumar Pandey.

3.

Alok Pandey. Both sons of Daya Shankar Pandey, resident of village Bhediharwa, P.S. Sikarpur, District West Champaran. ….PLAINTIFFS/RESPONDENTS/APPELLANTS Versus

1.

Rajdeo Yadav, S/o Parikha Yadav, resident of village Bhediharwa, P.S. Sikarpur, District West Champaran. ST

….DEFENDANT/APPELLANT/RESPONDENT 1 SET 2.

Binod Kumar Pandey, S/o Paras Pandey, resident of village Bhediharwa, P.S. Sikarpur, District West Champaran. ND

…DEFENDANTS/RESPONDENTS/RESPONDENTS 2 SET 3.

Asharfi Yadav.

4.

Vyas Yadav, both sons of Parikha Yadav, resident of village Bhediharwa, P.S. Sikarpur, District West Champaran. RD

..DEFENDANTS/RESPONDENTS/RESPONDENTS 3 SET


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Being aggrieved by and dissatisfied with the order and judgment passed by Shri Umesh Chandra Shrivastava, nd learned 2 Additional District and Sessions Judge, West Chaparan, Bettiah passed in Title Appeal No. 82 of 1991 dated 2.5.2009 whereby and where under the learned Additional District and sessions Judge, West Champaran, Bettiah set aside the judgment and order of T.S. No. st 80/1985 passed by learned 1 Additional Munsif, Bettiah and also dismissed the cross appeal filed by the appellants, the appellants begs to prefer this appeal on amongst others the following G R O U N D S :(I)

For that the judgment and order of reversion is contrary to oral and documentary evidence available on the record.

(II)

For that the appellate court while setting aside the judgment of the trial Court i.e. T.S. No. 80/1985 has misconstrued the recital of the mortgage deed Exhibit-C and instead of accepting the instrument as mortgage by additional sale under Section 58 of the Transfer of Property Act misread the instrument as instrument of sale.

(III)

For that sale with condition to repurchase is one of the mode of mortgage and recognized under the Transfer of Property Act and reading the Exhibit-C otherwise is misconstruction of the mortgage deed.

(IV)

For that the appellate court misconstrued the judgment reported in AIR 1962 Patna page 53 in construing the mortgage deed.

(V)

For that the appellate Court failed to appreciate the elementary principle of law that the document has to be read as a whole and not in isolation in as much as the appellate Court considering the totality of the facts and circumstances and the tenor of Exhibit-C illegally construed the same as absolute sale deed.

(VI)

For that Exhibit-C on the face of it is a mortgage with additional sale and any other construction is illegal and against the provisions of law.

(VII)

For that the learned Trial Court has rightly construed the document as a mortgage deed and as such decreed the suit but the appellate court misconstrued the documents.


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(VIII) For that the appellate court wrongly arrived at a finding that the mortgager has no jurisdiction to execute sale deed. (IX)

For that the judgment of the appellate court is only an opinion and not based on appreciation of materials on record.

(X)

For that the appellate court has not assigned its reason for setting aside the finding of the trial court.

(XI)

For that the conclusion drawn by the appellate court is unsupported by any reason, the reference of the submission of the appellant cannot be recorded as appreciation of rival submission of the parties and consideration of the material including evidence on record which is sine qua non of ad judicatory process particularly where the finding is reverse in appeal.

(XII)

For that the appellate court arrived at a wrong conclusion that the plaintiff has no right of redemption of mortgage.

(XIII) For that the instant second appeal involved the following substantial question of law. (a) Whether the appellants purchaser for value consideration from the mortgager is entitled to redemption of mortgage on payment of the mortgage amount ? (b) Whether Exhibit-C is a mortgage deed or absolute sale deed ? (c) Whether the appellate court can casually reverse the well considered finding of the trial court without recording reason for setting aside the finding of the trial court ? (d) Whether conclusion after quoting the submission of one of the party can be construed as consideration of materials on record and whether the appellate court is justified in setting aside the judgment and order of the trial court ? (e) Whether the mortgager loses his right to transfer the mortgage property during the subsistence of mortgage? (f) Whether the plaintiff purchaser for value consideration from the mortgager is entitled to redemption of mortgage and transfer of the mortgage property within the meaning of Section 58 of the Transfer of Property Act in the nature of mortgage of conditional sale ? (g) Whether seller under section 58 (c) of the Transfer of Property Act includes the transferee for value consideration and assignee and if so whether the appellant CHANAKYA NATIONAL LAW UNIVERSITY

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being the transferee from the sale mortgager (seller for the purpose of mortgage by conditional sale) is a seller for the purpose of transfer from the buyer (mortgagee under the mortgage by conditional sale)? (h) Whether tenor of the instrument will decide the nature of the document and whether for construction of the instrument the entire document is relevant or part thereof? (i) Whether the appellate court was justified in ignoring the legal implication of Section 12 of the Moneylender Act? (XIV) For that the judgment and order under appeal is otherwise unsustainable on fact and law and fit to be set aside. It is, therefore, prayed that your lordships may graciously be pleased to admit this appeal issue notice to the Respondents to show cause as to why not this appeal be allowed and the judgment nd

and order passed by Shri Umesh Chandra Shrivastava, learned 2

Additional District and Sessions Judge, West Chaparan, Bettiah passed in Title Appeal No. 82 of 1991 dated 2.5.2009 be not set aside and after hearing the parties be pleased to set aside the order and judgment dated 2.5.2009. A N D/O R Pass such other order (s) as your lordships may deem fit and proper. And for this, the appellants shall ever pray.


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CERTIFICATE

I, hereby certify that the ground set forth above are good grounds for Second Appeal.

As per my knowledge the matter out of which the appeal arises has not come before this Hon’ble Court earlier.

I further certify that no notice either to the Attorney General of India or to the Advocate General of Bihar is necessary to be served under order XXVIIA Rule 1 of the Civil Procedure Code.

Advocate


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DRAFT OF MEMORANDUM OF APPEAL TO THE HIGH COURT

IN THE HIGH COURT OF JUDICATURE AT PATNA (CIVIL APPELLATE JURISDICTION) F. A. NO. …………OF 2010 In the matter of

memorandum of appeal

under Section 96 of the Code of Civil Procedure. AND In the matter of : Ranjit Mahto, S/o late Soman Mahto, resident of village and P.O. Tepari, Anchal Bandara, P.S. Piar, District Muzaffarpur. ….PLAINTIFF/APPELLANT VERSUS 1.

Birendra Kumar, S/o Late Subalal Mahto.

2.

Mahendra Kumar, S/o late Subalal Mahto.

3.

Rabindra Kumar, S/o late Subalal Mahto.

4.

Surendra Kumar, S/o late Subalal Mahto.

5.

Mostt. Sandhya Devi, widow of Late Subalal Mahto. All residents of village Tepari, P.O. Tepari, P.S. Piar, District Muzaffarpur.

6.

Smt. Jyotsna Kumar, Daughter of late Subalal Mahto and wife of Sri Vishwanath Prasad, resident of village Madanpur, Shi Nagar, P.S. Chak Mahsi, P.O. Karuwa, via Pusa, District Samastipur.

7.

Raghunandan Mahto, S/o late Soman Mahto.

8.

Ram Swaroop Mahto, S/o late Soman Mahto,


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Resident of village and P.O. tepari, Anchal, Bandara, P.S. Piar, District Muzaffarpur. …

DEFENDANTS/RESPONDENTS. Suit valued at Rs. 4,00,000/Appeal valued at Rs. 4,00,000/Being aggrieved by and dissatisfied with the judgment and order dated 29.1.2010 passed in Partition Suit No. 44 of 2003 by Shri Raj Kumar, the learned Sub Judge-V, Muzaffarpur

the appellant

begs to prefer this

memorandum of appeal on amongst others the following G R O U N D S:(A)

For that the trial court committed manifest error of law while framing the issue and deciding the same.

(B)

For that the learned Sub Judge misconstrued the fact and law while formulating the issue for adjudication of the lis.

(C)

For that the learned court below has not appreciated the pleading of the parties in its proper perspective while framing the issues and deciding the same.

(D)

For that the learned Sub Judge has ignored the well settled proposition of law pertaining to Hindu Joint family.

(E)

For that the presumption as to jointness was given a complete go bye by the learned Sub Judge while deciding the suit.

(F)

For that the learned court below wrongly shifting the onus of proving the factum of ‘No partition’ instead of fixing responsibility to prove partition.

(G)

For that jointness in the family is the Rule of Hindu joint family and he who asserts partition is under obligation to discharge onus and prove the factum of partition but the learned Sub Judge ignored this basic principle of jointness while deciding the partition suit.

(H)

For that the learned Sub Judge has wrongly proceeded while deciding the issue no. 7 on the point of jointness that no cheat of paper have been filed by the plaintiff to so


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that the suit properties are not partitioned. The very approach of the learned trial court is perverse and against the basic rule of evidence that negative cannot be proved by positive evidence. In the facts and circumstances of this case the learned court below should have appreciated that the defendant no. 1 to 7 have pleaded prior partition and as such it was their solemn duty to prove partition instead of calling upon the plaintiff to prove non-existence of partition. (I)

For that the learned court below has misconstrued the fact and law while relying upon Exbt.-‘A” and Exbt.-‘B’ precisely the two documents on which the evidence have heavily relied in support of partition.

(J)

For that the learned court below failed to appreciate that there cannot be two partition if Exbt.-‘A’ is the memorandum of partition then there was no occasion for further memorandum of partition Exbt.-‘B’.

(K)

For that it is well settled principle of law that there cannot be twice partition if there was partition between the parties there was no occasion for another partition. From the pleading of the defendants the learned court below ought to have rejected their case of prior partition.

(L)

For that the learned court below in the totality of the facts situation ought to have rejected the contention of the defendant about partition on account of the fact pleaded in the written statement as to two different dates of partition namely 19.5.1975 and 19.6.1980.

(M)

For that the learned court below failed to appreciate the basic issue involved in the partition suit.

(N)

For that the learned court below while considering issue no. 7 in paragraph no. 7 and 8 has misconstrued the evidence and the document.

(O)

For that the learned court below on misconstruction of fact and law particularly the law relating to admissibility of the evidence wrongly decided the issue that there is no unity of title and possession between the parties.

(P)

For that in the totality of the facts and circumstances the learned court below ought to have admitted the factum of jointness and ought to have rejected the case of the defendant as to pre-partition.


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(Q)

For that in the totality of the facts and circumstances the learned court below has wrongly decided the suit on the basis of misconstruction of the issue as to unity of title and possession.

(R)

For that the court below has ignored the admitted factual possession of jointness between the parties in as much as on the record the plaintiff and defendant no. 8 have admitted the jointness in all respect.

(S)

For that it is well settled that separate living of the party cannot be construed as partition by metes and bound. Undisputedly there was no case of partition and reunion of plaintiff and defendant no. 8 and once it is admitted that there is no subsequent reunion the learned court below ought to have accepted the version of the plaintiff and the defendant no. 8 that there was no partition and their unity of title and possession among the parties as to suit property.

(T)

For that the court below ought to have admitted the case of the plaintiff/appellant of jointness of the four sons of Soman Mahto who died in 1967.

(U)

For that undisputedly all the parties belongs to the family of Suman Mahto and they derived their right, title and interest as the heirs and successor of Soman Mahto.

(V)

For that it is not in dispute that Subelal Mahto died in 1972 in the state of jointness and as such plaintiff and defendants were in jointness up to 1972.

(W)

For that the entire land of Soman Mahto is still in the name of Suman Mahto which falsify the factum of partition.

(X)

For that till date neither survey proceeding nor consolidation proceeding has attend finality acknowledging factum of partition between the parties.

(Y)

For that the learned court below proceeded on wrong premises of fact and law and consequently decided the suit erroneously

on the basis of misconstruction of

pleadings, facts, evidence and law. (Z)

For that in any view of the matter the judgment and order under appeal is unsustainable on fact and law and it is fit to be set aside.

(AA) For that the appellant has not filed any appeal anytime earlier against the judgment and order dated 29.1.2010 passed by Shri Raj Kumar, learned Sub Judge-V, Muzaffarpur in Partition Suit No. 44/2003.


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It is, therefore, prayed that your lordships may graciously be pleased to admit this appeal, call for the records of the court below issue notice to the Respondents and after the cause being shown and after hearing the counsel for the parties set aside the judgment and order dated 29.1.2010 passed by Shri Raj Kumar, learned Sub Judge-V, Muzaffarpur in Partition Suit No. 44/2003., A N D/O R Pass such other order or orders as your lordships may deem fit and proper. And for this, the appellant shall ever pray.


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CONCLUSION

Appeal is a mechanism provided by the law to challenge order of lower authorities before higher authority. Though drafting is more akin to art then science, certain basic provisions of law relating to appeals do act as rules that guide drafting of appeals.

There is no inherent right of appeal. Except where right of appeal is specifically granted, appeal cannot be filed. Absence of necessary redressal mechanism by way of appeal may, in appropriate circumstance, be reason to hold a piece of legislation as oppressive; however, right of appeal cannot be read into a legislation.

While drafting a memorandum of appeal, all the rules should be followed carefully in order to ensure that there is no technical error in the appeal. Even if there is an error or irregularity in appeal memo, appeal cannot be dismissed on that ground and appellant has to be given an 5

opportunity to rectify the defect.

As appeal proceedings are continuation of assessment proceedings, assessee can in appeal for the first time make a claim, which was not raised even before the assessing officer, if the facts relevant are on record. Appellant has a right to make alternative claim or raise an alternative plea in appeal. Even if such alternative ground is not taken in appeal memo or before lower authorities, the appellate authority has jurisdiction to entertain an alternative plea raised during hearing of the appeal.

5

O. A. O. K. Rm. Arunachalam Chettiar And Another v. CIT (1962) 45 ITR 407 (Mad) CHANAKYA NATIONAL LAW UNIVERSITY

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DPC

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