white black legal international law journal ISSN: 2581-8503

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Right to Suit and Right to Appeal: A Comparative and Critical Analysis

Authored By– Pratyush

PRN NO – 1182190067











Table of contents :-

Index of authorities…………………………………………………………………………..3

Research methodology……………………………………………………………………….4



Chapter i Right to appeal an analysis………………………………………………………...6

Chapter ii Right to suit an analysis………………………………………………………….10

Chapter iii Relationship between the right to suit and right to appeal ……………………...11

Chapter iv Difference between right to suit and right to appeal ………………………..…..15











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



Constitution of India, 1950.



Code of Civil Procedure, 1908.



Research Methodology

Aims and objectives:

The paper is aimed towards Understanding the right to sue and the right to appeal is the goal of the study. This is facilitated through an analysis of case laws.

Scope and limitations:

The paper is limited to the extent of analyzing the provisions provided in the Code of Civil Procedure, 1908. A limited number of cases have been used to give direction of this research paper.


Research Questions:

The researcher in the given research paper  attempted to provide answers to the following questions:


1)  An overview of  What is rights to appeal and right to appeal ?

2) What similarities do the two rights share?

3) How do the two rights differ from one another?

4) In terms of the appeal, what is the extent of revision, review, and reference?



Is right to appeal as absolute as right to suit in Indian scenario.



Chapter 1: The right to Appeal; An Analysis

Chapter 2: The right to Suit; An Analysis.

Chapter 3: The interplay between right to suit and right to appeal.

Chapter 4: Difference Between Right to Suit and Right to Appeal


Sources of data:

The date relied upon includes secondary sources like books, articles and case laws


Method of writing:

The mode of writing is analytical and descriptive


Substantive law functions to regulate the rights and freedoms of individuals as the courts deem appropriate. Procedural law, on the other hand, helps to achieve these goals fairly, without prejudice or imbalance. Indeed, the right of appeal granted in the Code of Civil Procedure (the "Law") reflects concerns about the erroneousness of human decisions. In addition, this clause recognizes the importance of formal impartiality as the desired outcome for parties looking to the legal system to resolve disputes. This indicates that victims want satisfactory participation in the system, which can lead to the defense of their rights, and that perpetrators want to be treated fairly by the court system and it indicates that you want the opportunity to defend your case in the best possible way. The fact that errors can be corrected by the Court of Appeals, the legal basis to be developed, and the need to link geographically dispersed subordinate courts through an authoritative unified legal order are further reasons for the existence of such provisions. may become.


Throughout the project, researchers will attempt to analyze the extent of the clauses that grant the right of appeal. This is facilitated by a discussion of the nature of the right of appeal and the process by which it is sought and granted. Understanding this statutory right cannot be exercised in isolation and continues the inherent right of an individual to bring an infringement action. With this in mind, the paper goes beyond the analysis of the right of appeal to explain the right of action. The relationship and differences between the two are revealed.



Chapter 1 :

Right to appeal an analysis

Even though the definition of the term appeal cannot be found in the Code but, for our understanding it may be referred to as the judicial examination of the decisions of the lower court by the higher courts.[1] In this process a cause is removed from the lower court and brought before the higher court in order to facilitate an examination of the soundness of the former’s decisions. Thus, a statutory remedy that exists for ensuring setting aside a lower court’s decree is right to appeal. Put differently, it can be referred to as a complaint made against a lower court’s wrong and unsound decision before a higher court. This clarity on the understanding of the right to appeal makes it evident that it is a statutory right having relevant provisions ensuring the same in the Code. Thus, it requires law’s express authority to be valid. In contrast to this, a right to suit is an inherent right needing no such express authorization for its institution.  


It is now clear that the right to appeal provides a procedural mechanism that facilitates redressal of an individual’s grievance against the decision of a lower court. Given that it is a statutory right, it has also been referred to as a vested right that is, right in existence from when lis commences.


The significance of right to appeal has been reflected in the 14th Report prepared by the Law Commission. The relevant parts read stated that both the rights to appeal, that is, first appeal to the High Court and the second appeal to the Supreme Court are necessary as well as proper. Finally, the Commission Report went on to declare that such a provision acts as a source of strength for the judicial system with the public be it instructed or uninstructed.[2]


Based on the above discussion, the elements constituting an appeal can be outlined as follows:

  1. A judgment, usually of a court or administrative authority;
  2. An aggrieved party – this includes within its scope a party originally party to the suit. However, it need not exclude other third parties aggrieved by the Court’s decision;
  3. A body that is willing and ready (empowered by the law) to entertain an appeal and has the characteristic of a reviewing authority. [3]

The overview of the right to appeal can be detailed through the following case law given :

Nagendra Nath v. Suresh.[4]


Issue: The question to be determined was whether this was an instance of appeal relevant for calculating the period of limitation given the irregularity of its form.


Case Reasoning - The court ruled that the Code of Civil Procedure does not contain a definition of appeal. But the lord had no doubt that the party submitting the application to the Court of Appeal would seek the lower court to withdraw or reconsider it.


decision would be regarded as an appeal going by the ordinary acceptation of this term.

Judgement: the appeal against the lower court’s decision was allowed. This was on the ground that even though the appeal form filled in 1920 was characterized as irregular, admissibility and decision thereupon was rendered by the High Court previously. Further, given the rationale that there is no strict definition of an appeal, thus a mere ground of irregularity should not lead to its dismissal. In this case, this was not a mere attempt to appeal but was in fact an appeal and was considered for the Limitation Act. 


A difference can be given between right to suit and right to appeal. Unlike as per the previous case, right to appeal is not sourced from inherent right in individuals. The right to appeal has been statutorily provided for. Two types as one is right to first appeal and the another one is right to second appeal it is enumerated in the sec 96 of the Code which can be read with Order 42. A reading of under sec  96 of the code it  is suggestive of that manner that in which this right has been granted. For instance, the first sub-section states that appeal is allowed under this provision unless provided for by any other statute or by a provision specified in the Code itself.[5]


However, a limitation has been placed on this right that is, in circumstances where a decree is passed by the court with the consent of the parties or in circumstances where small causes court passes decree where the amount is not in excess of Rupees Ten Thousand unless there is a question of law involved in the appeal.


According to the res judicata principle laid down in sec 11, legal action against such an order is reasonable if the parties to the legal dispute in question are statutory barred. Also, it is essential to note that S. 2(2) of the Code provides that certain orders are to be considered as deemed decrees. This could have the consequence of allowing appeals against such orders.  a overview reading of sec 104 in conjunction with Order 43 can say that an enumerated list containing appealable orders.  As stated above, provisions of the second option beyond that of first appeal is that of second appeal. This provision allows a challenge to the appellate authority’s decision itself. The same has been provided in Order 42 read with Ss. 100-103, 107 and 108. Like first appeal, here too appeal is allowed in cases where a specific mention of the same can be found in the statute. S. 100 provides two situation wherein right to appeal against any decision of the subordinate court would lie to the High Court that is, when a substantial question of law is involved and when the appellate decree was passed ex parte. With respect to the procedure to be followed in case of first and second appeal, there seems to be no difference.

S. 109 is all about the appeal that lies to the Supreme Court. It provides that given fulfillment of the pertinent Constitutional provisions and the rules of Supreme Court (SC), an appeal would lie to the Supreme Court when substantial question of law is involved or when it is felt by the High Court that case involves questions which should be referred to the Supreme Court. S. 112 goes into an explanation of the fact that the Supreme Court’s powers reflected through Art. 136 of the Constitution of India, 1950 or the rules that are formulated by the Supreme Court with respect to procedure of presenting appeals before it, is not restricted or curtailed by any part of the Code. The scope of appeal to the Supreme Court can be understood through a reading of the above mentioned provisions with Order 45 and Articles 132, 133 and 134A of the Constitution. Supreme Court in situations involving such substantial questions of general standing, questions regarding constitutional interpretation or legislative legitimacy or when Supreme Court exercises power through Article 136 of the Constitutional allowing appeal by special leave.


Point of law is different from question of. Substantial question of law of general position is not necessary. What is required is substantial question of law between the parties and not generally applying to others. This cannot be cited as precedence because it is between parties to that suit only. Substantial question of law is if the decision turns one way or the other on a particular view of law. If it does not affect the decision, it cannot be substantial as between the parties. As in the case of Chunilal v. Mehta & Sons v. Century Spg. & Mfg. Co. Ltd.


Judgement: substantial question of law has not been defined in the Code, Proper test would be one that determines whether it is of general importance or whether it directly and substantially affects the parties’ rights. If so, whether it is an open question in the sense that it has not been settled by the Court? However, if it involves a mere question regarding applications of those principles, it cannot be considered substantive question of law. The appellants were entitled to certificate of appeal.   


As in Taneja v. Bhajan Lal.[6]

 Where this case was decided by a three judge bench consisting of Justices M.M. Dutt, J.R.S. Pathak and M.H. Kania. Here, specifically the point that appeal to the Supreme Court is to be in strict compliance with enumeration in statute was asserted.


Judgement: The Supreme Court stated that right to appeal is found in a statute. Thus, on a question deciding whether such a right exists, the only consideration is an interpretation of the statutory provisions and should not be based on other considerations like propriety. 


The appeal was dismissed as being incompetent.


The above discussion on the ambit of right to appeal has been able to establish and substantiate that unlike the right to suit, the right to appeal is not an inherent right but is sourced in statutes.


Chapter ii:

Right to suit an analysis

Based on previous discussion now we are going to relate to it the discussion on the right to suit which was briefly introduced in the previous section. In matters involving civil nature, a party being aggrieved by another party’s action has the remedy to approach a civil court in order to have the matter adjudicated upon. The same is initiated and facilitated by the filing of a suit. By extension, an appeal can be filed in the appellate court if aggrieved by this court’s decision. However, the same is governed by the rules laid down in the previous section.  This process of initiating a suit is referred to as filing of suit. Thus, it can be understood as a terminology that is used for describing the proceeding of civil nature, initiated by presenting a suit. It makes sense because the right to sue is based on the ubi jus ibi remedium concept, which states that where there is a right, there is a remedy.


The objectives of instituting a suit can be enumerated as: (i) pursuing a remedy that is afforded by the court under consideration, (ii) for redressal of injury caused and (iii) enforcement of right. [7] S. 9 of the Code can be seen as an enabling provision that confers upon every individual who seeks enforcement of a right of civil nature to file a suit. These are circumstances wherein a legislation expressly or by impliedly barred. Here, right to approach a civil court is not available.


Further, in every situation where a right has been infringed, civil courts will take cognizance of the same, except wherein a civil court has imposed a bar on the hearing of the suit. Therefore, civil courts generally have jurisdiction over all claims of a civil nature, and therefore presumptions in favor of the existence of such rights and remedies within a democratic framework should be accepted. It is governed by rule of law and thus, assumption is to be made in favor of jurisdiction of civil courts.[8]


A case that re-asserts the provision of S. 9 that is, courts have the jurisdiction to try all civil nature suits subject to the provisions therein contained, and except for cases in which cognizance is expressly or impliedly barred by a legislation was Muthuraja v. Ramakingam.[9] Thus, on the infringement of a legal right, a suit lies unless against such entertainment of civil suit there is a bar.  Here, it was held that rule of construction is that presumption is to be made in favor of existence of legal right and remedy in democratic setting that is governed by rule of law. Thus, exception is reflected in exclusion.


Thus, in cases where an express bar to exercise of jurisdiction exists, examining the scheme of the legislation under consideration is relevant in order to determine the adequacy and sufficiency of the remedies provided. However, this is not decisive for sustaining the Civil Court’s jurisdiction. The court has determined that legal remedies and legislative schemes must be considered and determined where no express exclusion is provided. The intendment is required and the resultant finding to the inquiry will be considered decisive. In case the latter is the concern, a special right or liability needs to have been created by the statute and provision of remedies in order to determine these rights or liabilities and also laying down question about the same rights/liabilities to be determined by the Tribunal that has been constituted and also questions regarding remedies normally associated with such actions in civil court or that which has been prescribed by the statutes or not requiring examination.

Chapter iii:

Interplay between the Right to suit and the Right to appeal.

The previous discussion has established the fact that the difference between right to suit and right to appeal is that while the former is an inherent right, the latter is a statutory right. This chapter seeks to analyses the right to appeal as a continuation of the right to suit. With regards appeal, the right to do so accumulates from the point of instituting the suit. This is based on the reasoning that only in this case the aggrieved party would seek moving to the higher court for redressal of the wrong. There seems to be credence to the point that right to appeal as provided by the statute becomes effective from the point of filing suit as then the parties can be assumed to be aware of this right at that very point itself. As in Lakshminarayan v. Niranjan Modak. The Decision: the appeal was dismissed in this case. Since, the appeal was in continuation to the suit, the appellant’s contention that suit was filed before the application of Tenancy Act was extended to Memari and thus, Transfer of Property Act must be resorted to did not stand in light of the relevant scrutiny.

Yet another principle is relevant in this regard. This one state that only problems that were previously framed and raised in the original lawsuit may be raised in an appeal. Further, no new relief can be prayed for in appeal from that which had been sought in the first instance.[10]The judge in the appellate court is merely concerned with giving a second hearing to the matter. In doing so, it ensures that based on the facts and arguments that were discussed by the parties, a determination whether lower court decision was erroneous or not would be made and if there was any mistake, the decree would be set aside. A case on the point is  the case of  N.G. Dastane v. Mrs. S. Dastane.

Decision: the Supreme Court held that evidence had not been properly appreciated by the High Court and thus proceeded to re-appreciate the same itself. The appeal of the wife was dismissed holding that even though she meted our husband with cruelty the same had been condoned by her husband.

Yet another interplay between the two rights viz. The right to suit and the right to appeal is seen in the predominance of the appellate court’s decree over that of the lower court’s decree.


 In fact an appellate court’s decision replaces the one given by the lower court regardless of what the decree given by the former entails. 


It has been established that an appeal is a continuation of a suit. A related point is that both the rights constitute the same process. In this, an appeal is regarded as forming part of the suit for the purpose of approaching questions relating to what provisions from different statutes are to be applied to parties under consideration. The following cases discussed the point being asserted. When it is stated that law is applicable to pending suits it is deemed to include application to appeals too and thus by extension to second appeals as well.  


An important case that came to be decided by the Apex Court was Garikapati v. Subbaiah Choudhary.[11]


Issue: the court had to determine whether right to appeal accrues on the parties at the time of institution of suit and continues unless an express provision in the statute takes it away or the right comes to vest only once a decision in the suit being heard.


Decision: in order to reach a conclusion on the issue, evolution of cases in this regard were analyzed and the following principles governing the right to appeal were enumerated:

  1. Pursuing remedy, suit, followed by appeal and second appeal are part of a series of the same proceedings. An intrinsic unity connects all these and together should be considered as constituting one legal proceeding.
  2. The right to appeal is a matter of substantive right and not a mere procedural consideration.
  3. Right to suit has an implication that rights to appeal which are in force then remain preserved.
  4. Since, right to appeal is not an inherent but vested right, such a right to move the superior court is triggered from the date the suit commences. Even though the party may exercise it only at the pronouncement of unfavorable judgement, this right is governed by law that is in existence at the date when suit is filed
  5. Such a right of appeal can be excluded only through an amendment. There too such exclusion must be provided either expressly or by necessary intendment only.

The special leave was allowed,  The court came to the conclusion that applicable law to the suit was not retrospective in nature and thus, plaintiff had the right to appeal as vested on the date of instituting suit.


Various decisions over time have accepted that appeal is indeed a continuation of a suit. In brief, the procedures for filing both are different thus these rights are not the same, right to suit is inherent while right to appeal is a statutory right and no variation of arguments can take place when arguing the case in the higher court which had originated in the lower court, but the appellate court is at liberty to analyze the entire case noting the manner of its trial in order to rectify errors if any. Based on these, it can be concluded that appeal is a continuation of suit. 


Chapter IV:

Difference between the Right to suit and the Right to appeal

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

  • Nature of the right, i.e. whether statutory or inherent
  • Procedure involved, i.e. suit filed in the court of first instance of an appeal preferred in a higher court can be filled for challenging the decision of the lower court.

An analysis of relevant case laws on this will clear the concept to be discussed further  the case is of  Ganga Bai v. Vijay Kumar decided by Justices Y. V. Chandrachud and Hameedullah Beg.


Decision: The court emphasized the distinction between the right to sue and the right to appeal in this case. Former in an inherent right vested in every individual and is not determines by factors like frivolity of the claim. With respect to appeals, the position is quite the opposite. Such a right is not inherent in any individual and for preferring such an appeal, the same should have the authorization from law. An appeal can be favored against every decree that is passed by a court that exercises original jurisdiction under  [S. 96(1)] and that second appeals is allowed from the same in case when the court was appellate authority below the High Court [S.100]. Further certain specified orders only can be appealed against as enumerated in S. 104(1). Thus, only as against decrees or against order that is passed under rules from which an appeal is allowed by Order 43, Rule 1 expressly does appeal lie. It was held that no appeal lies against a mere finding as the Code is silent on the same, not providing for it.The preliminary decree did not aggrieve them but the cause of grievance was the court’s finding that the property needed to be sold. The Supreme Court while not allowing the appeal set aside the High Court decision permitting the concerned amendment to the memorandum as there were no grounds that could authorize the appeal. The right to appeal which is a legislative creation cannot be a matter of conferral either by the judiciary or any other authority.


The assertion made in the previous case was re-established in a 1975 Supreme Court decision of Anant Mills v. State of Gujarat.[12] This was decided by Justice Khanna.


Decision: it was held by the Supreme Court that the provision was a mere regulation and did not create a bar on appeal as such. The above condition does not violate Article 14 of the Constitution, as the right to appeal is not a right inherent in every individual. Since the appeal is made by law, it cannot be appealed without such a provision. Further, the Court ruled that legislature should not be restricted from imposing conditions on this right and without any special reasons there exist no Constitutional or legal bar to permit grant of such appeals. Right to suit is unconditional with no fetters imposed on it. Since it is not granted unless provided for by the legislature, the body has power to impose conditions on the same. Procedurally, many differences can be recognized which gives the impression that an appeal is not a natural continuation of suit as the latter need not result in an appeal. If the provisions governing appeal are not satisfied, a suit will not result in appeal.


It is also essential to note that even though there exists a right to suit, the plaintiff cannot demand that the suit be decided upon only by a civil court or that some specific procedural law that would also be applicable to appeal he may be entitled to govern the dispute as no such right exists.[13] Hence, manner governing the adjudication of the suit is governed by laws that have been specified and merely because the Code provides for procedures that the dispute is dealt with in the way discussed in previous chapters.


If the right to appeal does not exist, the other options available before the aggrieved party is to seek review or revision of the decision. Even though these two remedies are not referred to as appeal but in essence they can be characterized so. But even here certain conditions can be considered to have been imposed upon the maintainability of the same. A revision petition is provided for in as per the provision of Sec 115 can be used for the case that can only be made before High Court. There can be other remedies as well. Therefore, in the case of a unilateral judgment, in addition to giving priority to appeals, the same may be overturned as provided for in Rule 9 of the Code. However, in some cases, remedies may not be readily available. For example, in a settlement judgment, if the rules are followed, there is no appeal.


Reference can be made under S. 113 of the Code. If it is brought to the notice of the court by the defendant or the court itself recognizes it that a question of law is needed to be answered for complete adjudication over all disputes, it can be referred under Sec 113.It can be used when the act, ordinance or regulation is invalid or ultra vires of the constitution. It the Supreme Court’s or the high court’s decision is there on the matter, no need to refer it and the court can simply follow it and need not make the reference. Till the HC gives its finding, the case is stayed. Or in other case, the lower court can go on with the suit and the decree shall be executed or not executed subject to the finding of the HC.[14] Order 46 corresponding to 113: rule 1- proviso to 113 gives certain conditions, rule 1 gives different condition that is, and there should be a doubt in the mind of the court i.e. point of law is in doubt.[15] 


Section 114 and Order 47 pertain to review. However, if an appeal has already been made, review is not allowed. The other conditions which have been enumerated also need to be fulfilled. Instances in which such review could be permitted were evidence not available, or there was an obvious error or mistake. This is clear from the face of the record and the pleas need not be appreciated among other things. When there is an appeal, a review petition can be filed if the appeal is not preferred. Review is limited to one point, appeal can be fixed at anything; Detailed. Then why is the review petition selected? This is because while the court fees for appeals will be determined on claims in the plaintiffs, there is a fixed court fee of review. Reviews can be decided quickly, within 2-3 months. If both the review and the appeal are filed, if the review petition is heard and dismissed, the appeal can also be heard. When the appeal is decided the review petition is automatically moved because the latter is in the High Court and it decides on more points.



As established through discussion, the right of suit is linked to the right of appeal. To this effect, there are similarities and differences between the two which have been highlighted in the paper. For example, the distinct difference is that the right to sue is a natural right and the right to appeal is a statutory right. There are also some procedural aspects related to both that can be compared.


When an appeal is made against the decree of a lower court, it is treated as a continuation of the trial and the decision of the lower court is merged with that of the appellate court, even if it is reversed, amended. has been or has been retained. Ultimately it is the decision of the Appellate Court which is considered good in law.


Some differences mark the two concepts. For example, while a suit is filed against the other party for relief in dispute, an appeal can be understood as a complaint against the decision of the lower court. Further, the right of appeal can arise only when the right of suit exists. However, the opposite may not be the case. Thus, an appeal is made available by law to the aggrieved person subject to fulfillment of certain conditions.




  • C. K. Thakker, Civil Procedure,
  • C.K. Takwani, Civil Procedure,
  • G.P. Singh, Principles of Statutory Interpretation,
  • H.C. Black, Black’s Law Dictionary,


  • A. Gordon, Note and Comment on the Right to Appeal, XXV (1) Oregon Law Review (December 1945).
  • H.L. Dalton, Taking the Right to Appeal More Seriously, 95(1) Yale Law Journal (November, 1985).


  • 45th Report of the Law Commission of India, October 1971.




[1] C. K. Thakker, Civil Procedure 260,

[2] 45th Report of the Law Commission of India, October 1971.

[3] C.K. Takwani, Civil Procedure,

[4] Nagendra Nath v. Suresh AIR 1932 PC 165.

[5] S. 96(1), Code of Civil Procedure, 1908.

[6] Taneja v. Bhajan Lal (1988) 3 SCC 26.


[8] S. Vanathan Mathuraja v. Ramalingam (1997) 6 SCC 143.

[9] S. Vanathan Mathuraja v. Ramalingam (1997) 6 SCC 143.

[10] D.F. Mulla, Code of Civil Procedure

[11] Garikapati v. Subbaiah Choudhary AIR 1957 SC 540.

[12] Anant Mills v. State of Gujarat (1975) 2 SCC 175.

[13] Union of India v. Delhi High Court Bar Assn. (2002) 4 SCC 275 (293).


[15] Order 46, Code of Civil Procedure, 1908.


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