Summary
The Supreme Court set aside a Gauhati High Court judgment in a second appeal because the High Court had framed fresh substantial questions of law, never raised before the courts below, and decided them without giving the parties an opportunity to lead evidence, thereby making out a new case at the appellate stage. The second appeal was remanded for fresh decision.
Issues
- Whether the High Court, in a second appeal, could frame additional substantial questions of law not raised before the trial or first appellate court and decide them without affording the parties an opportunity to lead evidence.
- Whether an appellate court may make out a new case for a party that is not founded on the pleadings.
Provisions considered
- Order XLII Rule 1, Code of Civil Procedure, 1908Relied on to hold that the rules of Order XLI governing first appeals apply equally to appeals from appellate decrees, so the High Court hearing a second appeal was bound by the Order XLI procedure. (¶ 11)
- Order XLI Rule 25, Code of Civil Procedure, 1908Read as permitting the appellate court, where necessary, to frame issues and refer them for trial to the court below with a direction to take the additional evidence required; the High Court had not followed this route before deciding the newly framed questions. (¶ 12)
- Order XLI Rule 27, Code of Civil Procedure, 1908Read as allowing additional evidence in the appellate court only in the stated circumstances and after recording reasons; the Court held that an appellate court cannot frame and decide new issues without following this procedure. (¶ 12)
Held
- Order XLI CPC applies to second appeals by virtue of Order XLII Rule 1. An appellate court may frame issues and refer them for trial under Order XLI Rule 25, or admit additional evidence under Rule 27 after recording reasons, but it cannot create a new case for a party and frame and decide issues without following that procedure. (¶¶ 11, 12)
- A court cannot create a new case at the appellate stage for either party; the appellate court must decide the issues involved in the suit on the basis of the parties' pleadings. (¶ 14)
- The High Court erred in deciding the second appeal on substantial questions of law (including questions on tenancy status under the Assam (Temporary Settled Areas) Tenancy Act, 1971) that had not been raised before the trial court or the first appellate court and on which neither party was given an opportunity to lead evidence. The respondents' counsel did not oppose a remand on this ground. (¶¶ 6, 7, 10, 13, 14)
- Without examining the merits, the impugned judgment was set aside and the second appeal remitted; on rehearing the High Court may reconsider the substantial questions of law it had framed and decide them in accordance with law. (¶ 15)
Result
Appeal allowed; High Court's judgment and decree in the second appeal set aside and the second appeal remanded for fresh decision, to be decided expeditiously as the trial court decree dates from 2004; parties to maintain status quo regarding possession of the suit land until then.