Skip to content


Sasadhar Bhattacharjee and ors. Vs. Arun Kumar (Arun Chandra in Vakalutnamah) Bhattacharjee and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in54Ind.Cas.631
AppellantSasadhar Bhattacharjee and ors.
RespondentArun Kumar (Arun Chandra in Vakalutnamah) Bhattacharjee and ors.
Excerpt:
civil procedure code (act v of 1908), order xli, rule 1, order xlvii, rule 1 - appeal, dismissal of--review, admission of appeal on--grounds not taken in original memorandum of appeal, whether can be urged at hearing. - ernest fletcher, j.1. this appeal must fail for the following reasons: the appellants filed a memo, of appeal, dated the 16th november 1916, against the judgment of the learned judge in the lower appellate court which was pronounced on the 6th july. 1916. the appeal, of which the grounds of appeal were properly certified, came on for hearing before a bench of this court and was summarily dismissed under the provisions of order xli, rule 11, code of civil procedure, on the 24th january 1917. it is quite clear that the matters raised in the grounds of appeal filed on the 16th november 1916 do not cover the matters that have been attempted to be urged at the hearing of the present appeal. the text of the proceedings was a document that is no. 6 in the printed paper book, which is called the.....
Judgment:

Ernest Fletcher, J.

1. This appeal must fail for the following reasons: The appellants filed a memo, of appeal, dated the 16th November 1916, against the judgment of the learned Judge in the lower Appellate Court which was pronounced on the 6th July. 1916. The appeal, of which the grounds of appeal were properly certified, came on for hearing before a Bench of this Court and was summarily dismissed under the provisions of Order XLI, Rule 11, Code of Civil Procedure, on the 24th January 1917. It is quite clear that the matters raised in the grounds of appeal filed on the 16th November 1916 do not cover the matters that have been attempted to be urged at the hearing of the present appeal. The text of the proceedings was a document that is No. 6 in the printed paper book, which is called the memo, of appeal presented on the 1st March 1917. As a matter of fact it is nothing of the sort. When we look at the document itself, we find that it is a memo, of application for review under Order XLVII, Rule 1, Code of Civil Procedure, with regard to an order of dismissal passed on the 24th June 1917 under Order XLI, Rule 11. This memo, of review contained certain grounds which are not the grounds of appeal but were given as grounds for review and these grounds for review were sufficient to impress the learned Judges composing the Bench which summarily dismissed the appeal to review their order and admit the appeal. That does not entitle the appellants to urge these grounds of review as grounds of appeal for reversing the decision appealed against. I think this is a procedure that we ought not to assent to, lo a case like this we ought not to allow grounds of appeal to be raised which apparently ware not suggested until the learned gentleman who now appears for the appellants was called in fit a somewhat lata stage of the case and suggested farther and important points which were matters that ought to have been urged at the preliminary hearing of the appeal. The' appellants ought to have got the services of this learned gentleman at the earliest stage of the ease. Then the grounds of appeal could have been properly framed before the hearing and disposal of the appeal under Order XLI, Rule 11, Code of Civil Procedure. I do not think in this ease we ought to allow these grounds to be urged before us. In, my opinion the present appeal fails and ought to be dismissed with costs.

Cuming, J.

2. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //