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Ram Kinkar Rai and anr. Vs. Tufani Ahir and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad
Decided On
Reported inAIR1931All35
AppellantRam Kinkar Rai and anr.
RespondentTufani Ahir and ors.
Excerpt:
.....the omission was by the appellant in that court or whether the respondent failed to support his decree by taking the point, will not be permitted to be raised, except possibly: their lordships said :in the absence of any exceptional conditions, it was not open to the appellant to raise as a fresh point in appeal an issue which had not been raised before the subordinate judge or the high court and might then have been raised in a convenient form and at an opportune time, and that there was no valid reason in the present case for departing from the established practice of the privy council......under five heads: cases in which the doctrine of res judicata has. been allowed to be invoked; cases of limitation; cases in which on a study of the pleadings no cause of action has been put forward by the plaintiffs or defence shown by the written statement; jurisdiction; and points which the courts have allowed to be taken upon the specific ground that all the material being be-fore the court, a decision would result in the saving of further litigation. on the question of res judicata he referred us to md. ismail v. chhatter singh [1881] 4 all. 69, which; is an authority for the proposition that the plea of res judicata, though not brought forward either before the munsif or the lower appellate court, can be brought forward for the first time in second appeal, and must be.....
Judgment:

1. This is a Full Bench appointed to consider the question whether, to use the language of Young, J.:

a point of law which has never been taken in either the trial Court or the lower appellate Court can be raised in second appeal.

2. The plaintiffs sued eight defendants in ejectment and for damages The defence of the first group of defendants was that they were tenants, holding by virtue of an agreement with defendant 3. a widow by name Mt. Batasi, her husband being by name Baldeo. The second group of defendants were cosharers, who did not join in the action. In the year 1926 the defendants had been actually ejected from the land in dispute but they subsequently regained possession; and the principal point that was discussed before the Munsif and the lower appellate Court was, whether the defendants were trespassers, a matter which involved the right of Mt Batasi to grant a lease to defendant 1. The Munsif on the issue of joint-ness or separation held that Baldeo the husband of Mt. Batasi, died as a member of the joint Hindu family, and therefore decreed the suit. On appeal Mr. Krishna Das held that Baldeo was separate from the plaintiffs. He therefore dismissed the suit holding that Mt. Batasi had power to grant the lease. Counsel for the plaintiff omitted to raise in their pleadings the legal position which later in this Court they sought to raise, viz., that even if Baldeo was separate from the plaintiffs Mt. Batasi could not thereby grant a lease to defendant 1, and that in the further alternative, the suit of the plaintiffs ought to have been decreed in part. Nor were these alternatives discussed in the lower appellate Court. When these points were sought to betaken before Young, J., he declined to receive them upon the ground that no appellant should be allowed to raise points not taken by him in the lower Courts. He noticed, however, that this matter frequently arose, and was of opinion that the matter should be authoritatively settled. Dr. Agarwala, who appeared on behalf of the plaintiffs, called our attention to a number of cases which can be conveniently grouped under five heads: cases in which the doctrine of res judicata has. been allowed to be invoked; cases of limitation; cases in which on a study of the pleadings no cause of action has been put forward by the plaintiffs or defence shown by the written statement; jurisdiction; and points which the Courts have allowed to be taken upon the specific ground that all the material being be-fore the Court, a decision would result in the saving of further litigation. On the question of res judicata he referred us to Md. Ismail v. Chhatter Singh [1881] 4 All. 69, which; is an authority for the proposition that the plea of res judicata, though not brought forward either before the Munsif or the lower appellate Court, can be brought forward for the first time in second appeal, and must be entertained by the Bench who have two courses open to them, either to decide the question on the record as it stands, or after a remand upon findings of fact. Decisions to the same effect are to be found in Tek Narain Rai v. Dhondh Bahadur [1898] A.W.N. 104, Chhadami Lal v. Shyama Charan [1914] 22 I.C. 12 and: Bibi Wasilan v. Mir Syed Hussain A.I.R. 1929 Pat. 173.

3. On the question of limitation we were referred to Bechi v. Ahsanullah [1890] 12 All. 461, in which a Full Bench of this Court decided that a question of limitation, when it arises upon the facts before a Court, must be heard and determined whether or not it is directly raised in the pleadings or in the grounds of appeal. In Ranga Charya v. Guru Reoti Banian Acharya : AIR1928All689 the Court held that where the facts necessary to support a plea of limitation are either admitted or are apparent on the face of the record, the High Court will not be justified in refusing to entertain the plea even if raised for the first time in second appeal.

4. The third case is that of Mitthu Lal v. Deojit : AIR1927All589 , in which it was held that a plea of limitation can be raised at any moment prior to the decision of the appeal. On the question as to the duty of the 'Court when the plaint discloses no cause of action, we were referred to Secy. of State for India in Council v. Sukhdeo [1899] 21 All. 341. In that case it came to the notice of the 'Court that the plaint in the suit disclosed no cause of action against the defendant. The Court examined the plaint, upheld that contention and thereupon decided that that plea must prevail though taken before the second appeal Bench for the first time.

5. To the same effect is Sheodayal v. Jagernath [1919] 8 A.L.J. 922. Dr. Agarwala also referred us to the Privy Council case of Kamlaput Moti Lal v. Union Sugar Mills Co. A.I.R. 1929 P.C. 256. In that case it was pointed oat to their Lordships of the Privy Council that a scheme, which it was essential should have been laid before the shareholders for their approval, had by omission not been so laid before them. It was ' tentatively suggested ' in the High Court that a decision by the shareholders should precede sanction by the Court; but the point was not pressed. When however the omission was brought to the notice of their Lordships of the Privy Council they at once gave effect to :it. This is an example of a point taken which involved the jurisdiction of the High Court.

6. On the fifth head, viz., the desirability of allowing a fresh point to be taken which if decided will prevent further litigation we were referred by Dr. Agarwala to Skinner v. Nihal Singh [1913] 35 All. 211 at p. 226; Chhote Lal v. Chandrabhan A.I.R. 1923 All. 176.

7. Three other cases lying outside these groups to which our attention was drawn by counsel for the plaintiffs are: Brij Lal Singh v. Bhawani Singh [1910] 32 All. 651, where at p. 826, a claim was allowed to be amended which enabled the plaintiffs-appellants to redeem both mortgages and thereby to save the expenses of a fresh suit. It is to be noticed that the Court held that that was not an unreasonable application and it was not objected to by the advocate for the respondents. Dr. Agarwala concluded his argument by very properly presenting to us two cases which were contrary to the contention that he was urging : Kanhia v. Mahin Lal [1888] 10 All. 495 and Balkaran Singh v. Mt. Dulari Bai : AIR1927All231 . In the latter case the Court said:

We have repeatedly stated in this Court that lower appellate Courts and this Court, sitting either in Letters Patent or in second appeal ought not to entertain points which should have been alleged in the pleadings and made the subject of an issue and of argument and of decision by the trial Court and also stand in the grounds of appeal clearly and directly. The trial Judge does not have an opportunity of giving a decision upon a point such as this and it is not fair to a lower Court to upset an appeal on a ground never submitted to it.

8. In answer to these authorities Mr. Gour referred us to many cases of which these are the principal; they are in addition to the last two cases cited by Dr. Agarwala: Partap v. Ram Sewak [1926] 96 I.C. 304, Jai Ram Das v. Rajnarain A.I.R. 1922 All. 493, Sadho Kandu v. Mt. Jhinka Kuer : AIR1929All456 ; Iqbal Haidar Khan v. Mt. Wasi Fatima Bibi A.I.R.. 1923 All. 358, Subramanian Pattar v. Kishakhara Uthamanthil Raman A.I.R. 1922 Mad. 519; Girish Chandra Choudhury v. Gopal Chandra Poddar : AIR1925Cal1184 and Balkaran Singh v. Dulari Bai : AIR1927All231 .

9. Further, he contended that, before the points which Dr. Agarwala sought to raise in the second appeal could be decided, it would be necessary to send down issues inasmuch as the defendants' case would be that Mt. Batasi was in exclusive possession of the property which was the subject of the lease, and that that was a matter which could only be decided by evidence as to whether there was a private arrangement by which cosharers were entitled to have exclusive possession over certain particular agreed portions of property.

10. The question then for decision is, should the raising of a new point ever be permitted, and if the answer is in the affirmative, then in what circumstances? The question is really analogous to that dealt with in Order 41, Rule 2, which lays down that

the appellant shall not, except by leave of the Court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal; and the appellate Court in deciding the appeal, shall not be confined to the grounds of objection set forth in the memorandum of appeal or taken by the leave of the Court under this rule.

11. From all the very numerous cases to which we have referred, and many others, we deduce the following principles which we approve:

12. A point not taken in the Court below, whether the omission was by the appellant in that Court or whether the respondent failed to support his decree by taking the point, will not be permitted to be raised, except possibly:

I. Where the point may be described as involving a question of public policy e.g.,

(1) involving jurisdiction;

(2) involving the the principle of res judicata;

(3) where the decision of the point would prevent future litigation.

In the above instances the point will be allowed to be argued only if it can be decided upon the materials before the Court and does not involve the taking of further evidence, or the sending of the case, or any issue, back to the lower Court, or a decision of a question of fact.

II. Where the plaint discloses no cause of action, or the written statement, no ground of defence, it is not a ground for permitting a new point to be argued, merely:

(1) that it was omitted by oversight in the Court below; or

(2) that the materials are all on the record and that the answer to the point is plain.

13. In this connexion the principles enunciated by their Lordships of the Privy Council in Manindra Chandra Nandi v. Durga Parsad Singh A.I.R. 1917 P.C. 23 are of interest.

Their Lordships said : ' In the absence of any exceptional conditions, it was not open to the appellant to raise as a fresh point in appeal an issue which had not been raised before the Subordinate Judge or the High Court and might then have been raised in a convenient form and at an opportune time, and that there was no valid reason in the present case for departing from the established practice of the Privy Council.

14. A reference to the authorities given above shows the uniformity with which Courts in India have in fact refused to allow new points to be raised in second appeal, when they lie outside the area of the special classes we have mentioned.

15. It will be noticed that we have ex-eluded limitation from the type of cases in which the new point can, under certain conditions, be entertained. We have done this because we are of opinion that when next it is sought in this Court to put forward a plea of limitation which was not argued in the lower Court, the decision of Bechi v. Ahsan Ullah (supra) will have to be considered and contrasted with that of Baldeo Prasad v. Sukhdeo Prasad : AIR1929All485 , decided on 27th March 1929. An authoritative decision can then be given on this point.

16. We therefore dismiss this appeal with costs.


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