Code of Civil Procedures, 1908 – Ord. XLI – Appeals from appellate decree – Procedure contemplated u/Ord. XLI – Compliance – High Court in second appeal framed additional substantial questions of law, which were not raised by any of the parties before the courts below and allowed the appeal without giving any opportunity of leading the evidence on the additional issues framed – Correctness:
Held: Ord. XLI would apply to the appeals from the appellate decrees also, as contemplated in r. 1, Ord. XLII – As per Ord. XLI r. 25, the appellate court may, if necessary, frame issues and refer the same for trial to the court whose decree is appealed from, and direct such court to take additional evidence required – Furthermore, as per r. 27 Ord. XLI, the appellate court may allow evidence or document to be produced or witness examined, after recording the reasons for such admission of evidence – However, the appellate court cannot create a new case for the party, frame the issues and decide the issues without following the procedure contemplated u/Ord. XLI – On facts, the High Court in the second appeal had framed one substantial question of law and thereafter, three more substantial question of law, and in all framed four additional questions of law – None of the said substantial questions of law formulated by the High Court were either raised before the trial court or the appellate court as also none of parties were given any opportunity of leading the evidence on the said issues – Court cannot create any new case at the appellate stage for either of the parties, and the appellate court is supposed to decide the issues involved in the suit based on the pleadings of the parties – In view thereof, without examining the merits of the case, the impugned judgment and decree passed by the High Court in the Second Appeal set aside, and matter remanded to the High Court for deciding the same afresh and in accordance with law. [Paras 11-16]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Nidhi Jain. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.