# the first appellate court to give its decision

- **Citation:** C.L. No. 31/VIId-103
- **Court:** Allahabad High Court
- **Decided:** 1986-01-13
- **Case number:** C.L. No. 31/VIId-103
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-first-appellate-court-to-give-its-decision-163229
- **Pages:** 2

## Text

181
C.L. No. 31/VIId-103 dated 25th February, 1974
Appellate courts should avoid remanding of cases to the trial courts and try to
dispose of the appeals finally on merits. In this connection, attention is drawn to the
following observations of the Supreme Court in two cases:-
1.
A first appeal is a re-hearing and if the parties have led all the evidence
that they desire, it is the duty of the first appellate court to give its own
conclusions upon the evidence before it. If a trial court does not decide
according to the evidence led upon those pleadings it is for the appellate
court to reverse the finding and give its own findings; again, if an issue
has been decided by the trial court in a very perfunctory manner, it is for
the first appellate court to give its decision.
2.
But power to order re-trial after remand where there has already been a
trial on evidence before the court of first instance connot be exercised
merely because the appellate court is of the view that the parties, who
could lead better evidence in the court of first instance, have failed to do
so. A trial de-novo, after setting aside a final order passed by a court of
first instance, may, therefore, be made in exceptional circumstances,
where there has been no real trial of the proceeding, or where allowing the
order to stand would result in abuse of the process of the court.
Compliance of provisions mentioned under O. XLI Rule 9 of CPC
C. L. No.63/2007Admin(G): Dated: 13.12.2007

The new Rule 9 of Chapter XLI of C.P.C. Provides that the Court from whose
decree an appeal lies, shall entertain the memorandum of appeal and shall endorse thereon
the date of presentation and shall register the appeal in a book of appeal for that purpose
.It has been noticed that compliance of the above provision is not made by the subordinate
Courts and the same has been taken a serious note of. Therefore, it has been desired by the
Hon'ble Court that provisions of the said Rule 9 of Chapter XLI be strictly complied with
by all the subordinate Courts.

Therefore, I am directed to request you to kindly impress upon all the judicial
officers posted under your administrative control to adhere to the mandates given in order
XVI Rule 9 of C.P.C. without fail.
(iv)
Ceiling appeals
 C.L. No. 17/VII f-209 dated 16th February, 1979
For the sake of uniformity in the matter in all the judgeships where the District
Judges are appointed as appellate authority under section 33 of the Urban Land (Ceiling
and Regulation) Act, 1976 (Act no. 33 of 1976) the following instructions should be
followed:-
1.
The appeals under section 33 of the Urban Land (Ceiling & regulation)
Act, 1976 should be treated as Miscellaneous appeals and entered in
Register in Form no. 81 of the General Rules (Civil), 1957, Volume II.
2.
Quota for appeals under the Urban Land (Ceiling & Regulation) Act, 1976
(Act no. 33 of 1976) is hereby fixed at four appeals per day.
182
C.L. No. 32/Ceiling/Admn.(g) dated 13th May, 1986
Section 4 of the U.P Imposition of Ceiling of Land Holdings Ordinance (No. 3 of
1986) bars the jurisdiction of District Judges, Additional District Judges, Civil Judges,
and Additional Civil Judges, to hear appeals under section 13, 20 and 21 of the principal
Act and provides further that such appeals pending immediately before the
commencement of the Ordinance no. 3 of 1986 before any District Judge, Additional
District Judge, Civil Judge and Additional Civil Judge shall stand transferred to the
Commissioner and shall be disposed of by him in accordance with the provisions of the
U.P. Imposition of Ceiling on Land Holdings Act as provided by the U.P. Ordinance No.
3 of 1986 promulgated by Government on January 13, 1986.
 The District Judge should bring this fact to the notice of all concerned officers.
(v)
Compliance of provisions mentioned under Order XLI Rule 9 of CPC
C.L. No. 19/2008 Admin (G): Dated: 4.9.2008
Upon consideration of the Judgment and Order dated 25.10.2002 passed by the
Hon'ble Apex Court in Salem Advocate Bar Association, Tamil Nadu v. Union of India,
the Hon'ble Court has been pleased to direct that the Appeal shall be filed under Order
XLI, Rule 1 in the Court in which it is maintainable and a copy of the memorandum of
appeal which has been filed in the Appellate Court should also be presented before the
court against whose decree the appeal has been filed and the endorsement thereof shall be
made by the decreeing court in a book called the Register of Appeals.
Therefore, in supersession of earlier C.L. No./2007/Admin (G) Dated 13.12.2007.
I have been directed to say that the Hon'ble Court has desired that the contents of this
Circular Letter be brought to the notice of all the officers working under your
administrative control for strict compliance of the directions.
15.
MISCELLANEOUS CASES
(i)
Adoption of abandoned or destitute children
C.L. No. 40/VII f-45-Admn. (G) dated 29th May, 1986
The directions of Hon'ble Supreme Court contained in its orders dated 6th
February, 1984, and 27th September, 1985 and 13th February, 1986 passed in L.K. Pandey
v. Union of India reported in AIR 1984 SC 469 and AIR 1986 SC 272 respectively,
should be strictly complied with by all.
EXTRACT OF ORDER DATED 13 FEBRUARY, 1986
In respect of children who have been abandoned or brought prior to 27.9.85 in the
State in which the application for guardianship sought to be made with a view to eventual
adoption, the court to which the application is made will satisfy itself where such children
have been abandoned or brought within the State prior to 27.9.85 and if the court is so
satisfied, the requirement laid down by us in the main judgment and the supplementary
judgment that the children should not be allowed to be brought from one State to another
for adoption except subject to certain conditions, as also the requirement that where the
children sought to be adopted are abandoned or destitute children, they should be cleared
by the Juvenile Court, shall not be applicable to such children. The Court may for this
purpose require the scrutinizing agency to visit the Home or Homes where such children