A first appeal under Section 96 CPC is not a mere formality. It is a rehearing on facts and law, and the first appellate court has a duty to independently test the correctness of the decree on the basis of the pleadings, issues, and evidence already on record. But that wide appellate jurisdiction does not mean that a defendant who remained ex parte before the trial court can use the appeal as a fresh opportunity to construct an altogether new defence.
The governing principle is simple: appeal is a continuation of the suit, not a reconstruction of it. The Supreme Court has repeatedly held that in a first appeal the entire case is open for rehearing on facts and law, and the appellate court may reverse or affirm the trial court after reappreciating the evidence. At the same time, the appellate court remains confined to adjudicating the controversy as framed by the pleadings of the parties and proved through the trial record.
This distinction becomes important when the defendant either did not contest the suit at all, or failed to take a particular plea in the written statement or at trial. In such a case, the appellate court does not sit as a court for granting the defendant a fresh innings. The defendant’s non-participation below does not destroy his status as respondent in appeal, but it narrows the manner in which he can participate.
If the suit was dismissed by the trial court despite the defendant being ex parte, and the plaintiff files a first appeal, the defendant-respondent may still support the decree of dismissal. He may argue that even on the plaintiff’s own pleadings and evidence no decree could legally have been passed, because the plaintiff must succeed on the strength of his own case. For this limited purpose, Order XLI Rule 22 permits the respondent to support the decree even on grounds decided against him, and no cross-objection is necessary so long as he seeks only to maintain the decree as it stands.
The position changes when the respondent wants more than preservation of the decree. If he seeks variation of the decree, reversal of an operative part against him, or any affirmative relief, he must file a cross-objection or separate appeal. Order XLI Rule 22 thus draws a clear line between supporting a decree and seeking a better decree.
A further distinction must be kept in view between three categories of pleas. First, there are grounds already arising from the existing pleadings and evidence; these can ordinarily be argued in appeal. Second, there are pure questions of law going to the root of the matter and not requiring further evidence; these too may be permitted. Third, there are wholly new factual pleas that were never pleaded and would require fresh evidence; these are ordinarily impermissible at the appellate stage.
That limitation is not merely technical. Pleadings define the case to be met, shape the issues for trial, and govern the evidence led by the parties. When a defendant has not pleaded a factual defence before the trial court, permitting him to raise it for the first time in appeal may prejudice the opposite party and distort the appellate process into a retrial.
The same disciplined approach applies to additional evidence. Order XLI Rule 27 is an exception, not the rule. The Supreme Court has reiterated that additional evidence cannot be allowed merely to fill lacunae in appeal, and an appellate court must first examine whether the proposed material is rooted in the pleadings and whether the statutory conditions of Rule 27 are actually satisfied.
Therefore, a defendant who remained absent at trial cannot claim, as of right, to produce fresh documents in appeal simply because he failed to contest the suit earlier. Neglect, strategy, or convenience is not the test; the statutory conditions in Order XLI Rule 27 control the matter.
Section 105 CPC adds another dimension. Even where no independent appeal was filed against an interlocutory order, an error, defect, or irregularity in such order may be urged in an appeal from the decree, provided it affected the decision of the case. Thus, in an appropriate case, a respondent may challenge in appeal the correctness of an order proceeding ex parte, or another interlocutory order, if that error bears upon the decree under challenge.
Still, Section 105 does not authorize the appellate court to reopen the suit for an unrestricted defence. It only permits scrutiny of interlocutory error affecting the final decision; it does not dissolve the boundaries created by pleadings, issues, and evidence.
The practical rule, then, may be stated in this form: where the defendant did not contest the suit before the trial court, or omitted a particular plea, the appellate court may permit him, as respondent, to support the decree on grounds arising from the existing pleadings, findings, and record, and may also consider objections to interlocutory orders under Section 105 CPC if such orders affected the decision of the case. However, the appellate court should not ordinarily entertain a wholly new factual defence, allow additional evidence merely to fill lacunae, or create a new case for the parties at the appellate stage.
Key takeaway
 In a first appeal, the appellate court has wide power to reappreciate facts and law and test the legality of the decree on the trial record, but that jurisdiction is exercised within the framework of the pleadings, issues, and evidence in the suit. Accordingly, where the defendant remained ex parte or omitted a plea before the trial court, he may, as respondent, support the decree on grounds available from the existing record and may invoke Section 105 CPC against interlocutory errors affecting the decision, but he cannot ordinarily be allowed to set up a wholly new factual defence or adduce additional evidence merely to fill lacunae, save in the exceptional situations recognized by Order XLI Rule 27 CPC.