Appeal as of Right

What is an Appeal as of Right?

An **appeal as of right** is an appeal that a party can file as a **statutory entitlement** — meaning the law grants them the right to challenge a decision in a higher court without needing to first obtain permission from any court. The aggrieved party simply files the appeal within the prescribed limitation period, and the appellate court is **obligated to hear it**.

This is contrasted with an appeal that requires **leave** (permission) — where the party must first convince the court that the case raises a question worthy of further hearing, and the court may refuse to grant permission, effectively shutting the door on the appeal.

In everyday terms, an appeal as of right is like having an automatic ticket to the next level of court. An appeal requiring leave is like having to apply for a ticket and hoping the court approves your application.

Legal Definition and Framework

The Indian legal system provides for appeals as of right at various stages, governed by different statutes.

First Appeal as of Right — Civil Cases

Under the **Code of Civil Procedure, 1908:**

- **Section 96:** Any party aggrieved by a **decree** (not merely an order) passed by a court exercising **original jurisdiction** may appeal to the court authorised to hear appeals from that court. This is the classic appeal as of right — no permission is needed.

- **Section 96(2):** An appeal shall lie from an **original decree** passed ex parte as well.

- **Section 96(3):** **No appeal** shall lie from a decree passed by the court with the consent of the parties (consent decree). This is an exception to the general right.

- **Section 96(4):** No appeal shall lie from a decree passed by a **Small Causes Court** except on a question of law.

The first appeal as of right is considered the most important stage of appellate review because the appellate court can re-examine both **questions of fact and questions of law**. The appellate court can reappreciate evidence, draw its own conclusions, and even take additional evidence under **Order 41 Rule 27 CPC**.

Second Appeal — Restricted Right

- **Section 100 CPC:** A second appeal lies to the High Court from every decree passed in appeal by any court subordinate to the High Court, but **only if the High Court is satisfied that the case involves a substantial question of law**. This is not a pure appeal as of right — while the statute provides for the appeal, the High Court must first formulate a substantial question of law before admitting it. If no substantial question of law is found, the appeal is dismissed at the threshold.

Appeals in Criminal Cases

Under the **Code of Criminal Procedure, 1973 (CrPC)** and the **Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS):**

- **Section 374 CrPC (Section 415 BNSS):** Appeals from convictions — a person convicted on a trial held by a Sessions Judge, Additional Sessions Judge, or Chief Judicial Magistrate may **appeal as of right** to the High Court.

- **Section 374(2) CrPC:** A person convicted on trial by a Metropolitan Magistrate or Judicial Magistrate may appeal to the Sessions Judge.

- **Section 377 CrPC (Section 418 BNSS):** The **State Government** may, in any case of conviction on a trial held by any court other than a High Court, direct the Public Prosecutor to present an appeal against the sentence as being inadequate — this is also an appeal as of right (of the State, not the accused).

- **Section 378 CrPC (Section 419 BNSS):** Appeal against acquittal — the State Government may direct an appeal to the High Court against an order of acquittal. For private complainant cases, **leave of the High Court** is required. This distinction illustrates the difference between appeal as of right (State) and appeal with leave (private complainant).

Constitutional Appeals to the Supreme Court

Under the **Constitution of India:**

- **Article 132:** An appeal lies to the Supreme Court from any judgment of a High Court if the High Court **certifies** that the case involves a substantial question of law regarding the interpretation of the Constitution. The certification requirement makes this partially conditional.

- **Article 133:** In civil cases, an appeal lies to the Supreme Court if the High Court certifies that the case involves a substantial question of law of general importance.

- **Article 134:** In criminal cases, an appeal lies to the Supreme Court as of right if the High Court (a) reverses an acquittal and sentences the accused to death, or (b) withdraws a case from a subordinate court and convicts and sentences the accused to death. In other cases, the High Court must certify fitness.

- **Article 136 (Special Leave Petition):** The Supreme Court may grant **special leave to appeal** from any judgment or order of any court or tribunal in India. This is entirely discretionary — **not** an appeal as of right.

When Does This Term Matter?

The Practical Importance of the Distinction

The distinction between appeal as of right and appeal with leave matters enormously in practice:

- **Appeal as of right:** The appellate court **must** entertain the appeal (subject to procedural compliance like limitation and court fees). The court cannot refuse to hear it at the threshold merely because it considers the appeal unlikely to succeed.

- **Appeal with leave:** The court first examines whether the case is **worthy of appeal** — whether it raises substantial questions of law, whether the lower court's decision is manifestly unjust, or whether the interests of justice require further hearing. A significant percentage of leave applications are rejected, ending the litigation.

Limitation Periods

Appeals as of right have prescribed **limitation periods** under the **Limitation Act, 1963:**

- **Article 116:** Appeal from a decree or order — **30 days** from the date of the decree (to the High Court) or **90 days** (from a High Court decree to the Supreme Court).

- **Section 5 of the Limitation Act** allows condonation of delay if sufficient cause is shown, but courts are generally stricter with appeals as of right, expecting litigants to exercise their statutory right promptly.

First Appeal Is a Valuable Right

The Supreme Court has repeatedly emphasised that the **first appeal as of right** under Section 96 CPC is a **substantive right**, not a mere procedural formality. In **Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179**, the court held that the first appellate court must independently assess the evidence and give reasons for its conclusions — it cannot simply affirm the trial court's decision without proper analysis. A first appeal disposed of without proper consideration is liable to be set aside.

No Appeal from Certain Orders

The right to appeal as of right is not universal. **Section 104 CPC** lists orders from which appeals lie, and **Order 43** specifies appealable orders. Orders not listed in these provisions are generally not appealable as of right — the aggrieved party must seek **revision** under Section 115 CPC instead, which is a more limited remedy.

Practical Significance

- **Always check whether your case qualifies** for an appeal as of right or requires leave — the strategy, preparation, and prospects differ significantly.

- **First appeal is critical** — since it allows re-examination of both facts and law, it is often the most effective opportunity to challenge an adverse trial court decision.

- **Court fees** for appeals as of right can be substantial — in property suits, the court fee for appeal is typically calculated on the value of the subject matter.

- **Limitation is strict** — missing the filing deadline for an appeal as of right can be fatal, though condonation of delay may be sought.

- **Interim relief** — filing an appeal as of right does not automatically stay the execution of the decree. A separate application for stay must be filed under **Order 41 Rule 5 CPC**.

Frequently Asked Questions

Does filing an appeal as of right automatically stay the lower court's order?

No. Under Indian law, filing an appeal does **not automatically stay** the execution of the decree or order appealed against. The appellant must separately apply for a **stay of execution** under **Order 41 Rule 5 CPC** in civil cases. The appellate court may grant a stay if it is satisfied that substantial loss may result to the appellant if the decree is executed pending appeal. In criminal cases, filing an appeal against conviction does not automatically suspend the sentence — the appellant must apply for **suspension of sentence and bail** under **Section 389 CrPC (Section 430 BNSS)**.

Can the right to appeal be taken away by legislation?

The right to appeal is a **statutory right**, not a fundamental right. The legislature can restrict or take away the right to appeal by enacting a specific provision. For instance, **Section 96(3) CPC** bars appeal from consent decrees, and various special statutes (like certain tribunal acts) may provide that decisions are final and non-appealable. However, the Supreme Court has held that even when the statutory right to appeal is taken away, the right to approach the High Court under **Article 226** (writ jurisdiction) or the Supreme Court under **Article 136** (special leave) remains available, as these are constitutional remedies that cannot be ousted by ordinary legislation.

What is the difference between appeal as of right and Special Leave Petition?

An **appeal as of right** under statute is an entitlement — the court must hear it. A **Special Leave Petition (SLP)** under **Article 136** is entirely discretionary — the Supreme Court may refuse to grant leave without giving reasons. SLPs are the ultimate remedy when no statutory appeal lies or when lower appellate remedies have been exhausted. The Supreme Court receives thousands of SLPs annually and grants leave in only a fraction of cases. The SLP stage is essentially a filtering mechanism where the court decides which cases merit the Supreme Court's attention.

Can an appeal as of right be dismissed at the admission stage?

While the appellate court must **entertain** an appeal as of right, it can dismiss the appeal at the admission stage if there are **procedural defects** — such as non-payment of court fees, filing beyond limitation without condonation, or failure to comply with procedural requirements (like filing the requisite number of copies). However, the court cannot dismiss an appeal as of right at the threshold on merits without hearing the appellant — this would violate the statutory right. The court must admit the appeal, issue notice to the respondent, and hear both sides before deciding.