INDIA Law and Practice Contributed by: Anuradha Mukherjee, Omar Ahmad, Vikram Shah and Soumya Dasgupta, Cyril Amarchand Mangaldas
that has not been determined or that has been wrongly determined by the lower appellate court. Moreover, the CPC permits the production of additional evidence at the appellate stage under certain circumstances, such as: • the court from whose decree the appeal is preferred has refused to admit evidence that ought to have been admitted; • the party seeking to produce additional evi- dence establishes that, notwithstanding the exercise of due diligence, such evidence was not within their knowledge or could not, after the exercise of due diligence, be produced by them at the time when the decree appealed against was passed; • the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment; or • for any other substantial cause. Furthermore, the appellate court has to see if the court whose decree is in appeal has omitted to frame or try issues that in the appellate court’s opinion are essential for arriving at the decision; the appellate court may then frame the issue and refer it to trial to the court whose decree is in appeal. 10.5 Court-Imposed Conditions on Granting an Appeal The court may impose certain conditions before considering an appeal. For instance, the court may require the appellant to deposit the entire sum involved before the appeal is even heard by the appellate court. The mere filing of the appeal does not by itself result in a stay of the operation of the challenged decree. A separate application seeking a stay of the impugned decree has to be made; the
appellate court may stay the operation of the decree, subject to conditions, upon sufficient cause being shown that substantial loss may be caused to the appellant unless the impugned decree is stayed. In the case of arbitral awards, there is no prereq- uisite for the awarded amount to be deposited in order to file an application seeking to set aside an arbitral award. However, if an application is filed for a stay of the operation of the award, the court may grant such a stay for reasons to be recorded in writing, subject to such conditions as it may deem fit. 10.6 Powers of the Appellate Court After an Appeal Hearing The appellate court has the power to: • decide and determine a case by setting aside or upholding the judgment; • remand the case back to the lower court; • frame issues and refer them for trial; or • take or require additional evidence to be taken. If the appellate court decides and determines the case, it may confirm, vary or reverse the decree against which the appeal is referred. Regarding arbitral awards, please see 13.3 Cir- cumstances to Challenge an Arbitral Award . 11. Costs 11.1 Responsibility for Paying the Costs of Litigation Court Fees At the time of the institution of a suit, the court fee is borne by the plaintiff, and is computed on the basis of the reliefs sought.
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