(2) the appellate court essential to the

(2) To remand a case where the lower court has disposed of the suit upon a preliminary point and the decree is reversed in appeal; (3) To frame issues and refer them for trial where the lower court has omitted to frame or try any issue or to determine any question of fact which appears to the appellate court essential to the right decision of the suit upon the merits; and (4) To take additional evidence or to require such evidence to be taken when the lower court has refused to admit evidence which ought to have been admitted or when 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 reason. In addition to the above, the appellate court has the same powers as have been conferred by the Code on courts of original jurisdiction, in respect of suits instituted therein. The appellate court has however, to bear in mind that it has not the advantage which the trial judge had in having the witnesses before him and of observing the manner in which they deposed in court. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial judge. The rule is and it is nothing more than a rule of practice—that where there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witness, then unless there is some special feature about the evidence of a particular witness which has escaped the trial judge’s notice or there is a sufficient balance of improbability to dispute as to where the credibility lies, the appellate court should not interfere with the finding of the trial judge on a question of fact. [Saijupershad v.

Raja Jwaleshwari Pratap Narain Singh, 1951 A.L.J., p. I. S.C.

,; A.I.R. 1951 S.C. 120, 121). In an appeal against a trial court decree, when the appellate court considers an issue turning on oral evidence, it does not enjoy the advantage which the trial court had in having the witnesses before it and of observing the manner in which they gave their testimony. When there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the appellate court should permit the findings of fact rendered by the trial court to prevail, unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of trial court, or there is a sufficient balance of improbability to displace its opinion as to where the credibility lies, or the appraisal of the evidence by the trial court suffers from a material irregularity or is based on inadmissible evidence or on a misreading of the evidence or on conjectures and surmises.

This approach should be placed in the pre-front in considering whether the High Court proceeded correctly in the evolution of the evidence before it when deciding to reverse the finding of the trial court. The principle is one of practice and governs the weight to be given to a finding of fact by the trial court. (Madhusudan Das v. Smt Narayanibai (deceased) by L.R.

Rs. & Ors. (1983) 1 S.C.C. 35).

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