DPC

CHANAKYA NATIONAL LAW UNIVERSITY

MEMORANDUM OF APPEAL

DRAFTING, PLEADING AND CONVEYANCING

SUBMITTED BY: PRERNA DESU SATEESH

4th Year (8th Semester)

ROLL NO: 439

SUBMITTED TO: MR B.R.N SHARMA

(FACULTY FOR DRAFTING, PLEADING AND CONVEYANCING)

CHANAKYA NATIONAL LAW UNIVERSITY II | P a g e

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

4th

Year, 8th

Semester

CNLU

III | P a g e

RESEARCH METHODOLOGY

Aims and objectives:

Through this project, I attempt to provide information on 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 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 have analyzed and

criticized the various aspects also.

Sources of Data:

Mainly secondary sources of data such as articles, books and electronic resources have been used

to answer the various research questions.

IV | P a g e

CONTENTS

1. ACKNOWLEDGEMENT II

2. RESEARCH METHODOLOGY III

3. INTRODUCTION 1

4. KINDS OF APPEAL 3

5. PARTICULARS OF MEMORANDUM OF APPEAL 7

6. RULES FOR DRAFTING GROUNDS OF APPEAL 9

7. MODEL DRAFTS OF MEMORANDUM OF APPEAL 12

8. CONCLUSION 25

BIBLIOGRAPHY 26


CHANAKYA NATIONAL LAW UNIVERSITY 1 | P a g e

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 Sub-

Court, 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.

In Uptron Power Tronics v. Collector of Central Excise1, 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”.2

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

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



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.

In CIT v. Ashoka Engineering Co3, 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)



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 appeal:

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).



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 of 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:

i) Appeals in Constitutional cases: Clause (1) of the Article 132 of the Constitution

provides that an appeal shall lie to the Supreme Court from any judgement, decree or



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

ii) Appeals in civil cases: Article 133 deals with appeals to the Supreme Court from

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.

iii) Appeals in criminal cases: A limited criminal appellate jurisdiction is conferred

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 additional

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;



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.



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”.



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 appeal, 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.



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

in accordance with them, the court may reject the appeal.4

First Rule: Each ground of attack must be specifically and distinctly 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: The ground should be drawn up concisely:

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

Third rule: The grounds of objection should contain no narrative or argument:

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



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 distinct objection should be stated separately and only 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.



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.



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.



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

Judge has by his judgement and decree passed on 7th

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

and decree under appeal having been passed on 7th

day of May 2004.



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 both courts.

APPELLANT

VERIFICATION

Verified at Bangalore on this, the 28th

day of May 2004 that the contents of the above appeal are

correct to the best of my knowledge and belief.

APPELLANT

THROUGH

(…………………….. )



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.

A N D

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.

….DEFENDANT/APPELLANT/RESPONDENT 1ST

SET

2. Binod Kumar Pandey, S/o Paras Pandey, resident of village Bhediharwa, P.S.

Sikarpur, District West Champaran.

…DEFENDANTS/RESPONDENTS/RESPONDENTS 2ND

SET

3. Asharfi Yadav.

4. Vyas Yadav, both sons of Parikha Yadav, resident of village Bhediharwa, P.S.

Sikarpur, District West Champaran.

..DEFENDANTS/RESPONDENTS/RESPONDENTS 3RD

SET



Being aggrieved by and dissatisfied with the order and

judgment passed by Shri Umesh Chandra Shrivastava,

learned 2nd

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.

80/1985 passed by learned 1st 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.



(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



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

and order passed by Shri Umesh Chandra Shrivastava, learned 2nd

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.



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



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.

A N D

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,



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



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.



(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.



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.



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

opportunity to rectify the defect.5

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)



BIBLIOGRAPHY

BOOKS REFERRED:

1. Bindra, N.S., “Pleadings and Practices”, Part 2, 9th

ed. 2010, Universal Law Publishing

Company, Delhi.

2. Agarwal, M.C. and Mogha, G.C., “Law of Pleadings in India”, 17th

ed. 2009, Eastern

Law House, New Delhi.

3. Manohar, Murli, “Art of Conveyancing and Pleading”, 2nd

ed. 2004, Eastern Book

Company, Lucknow

DPC

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