Monday 2 September 2024

Supreme Court: Appellate Court Can't Create New Case For Parties & Frame Issues Without Following Order XLI of CPC

 It is needless to say that Order XLI of the Code of Civil

Procedure, 1809 would apply to the appeals from the appellate

decrees also, as contemplated in Rule-1, Order XLII of the

said Code. {Para 11}

12. As per Order XLI Rule 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. Further, as per Rule-27

Order XLI, the Appellate Court may allow evidence or document

to be produced or witness examined, in the circumstances

stated therein, after recording the reasons for such

admission of evidence. However, the Appellate Court can not

create a new case for the party, frame the issues and decide

the issues without following the procedure contemplated under

Order XLI of CPC.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No.3500/2024

RAMA KT. BARMAN (DIED) THR. LRS  Vs

MD. MAHIM ALI & ORS.

Author: BELA M. TRIVEDI, J.

Citation: 2024 INSC 644.

Dated: 21ST AUGUST, 2024.


1. The appellants – original plaintiffs have assailed the

Judgment and Decree passed by the High Court of Gauhati in

Regular Second Appeal No.74/2006, whereby the High Court had

allowed the appeal preferred by the respondents – defendants,

holding that the appellants – plaintiffs were not entitled to

get the recovery of khas possession of the suit land by

evicting the respondents – defendants therefrom.

2. The broad facts leading to the present appeal are that the

appellants – plaintiffs had filed the Title Suit No.5/2002 in

the Court of Civil Judge (Junior Division) No.2, Barpeta

seeking declaration with regard to the right, title and interest over the scheduled land and for evicting the respondents – defendants from the suit land in question, as also

seeking permanent injunction. The said suit was contested by

the respondents – defendants by filing the written statement.

From the pleadings of the parties, the Trial Court had framed

the following issues: -

“l. Whether the suit is barred by limitation?

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2. Whether the plaintiff has right, title and interest over the suit land?

3. Whether the plaintiffs allowed the defendants

to cultivate one portion of the suit land in "Adhiar system" and on 19.11.2001 the defendant encroached into the rest portion of suit land and

constructed a thatched chali?

4. Whether the defendants have been under the

possession of the suit land since 30 years?

5. Whether the plaintiff is entitled to get a decree as prayed for?"

3. The Trial Court decided the issue Nos.1 and 4 against the

defendants and issue Nos.2 and 3 in favour of the

plaintiffs, and consequently issue No.5 was also decided in

favour of the plaintiffs. Accordingly, the Trial Court vide

the Judgment and Decree dated 19-5-2004 had decreed the suit

of the appellants – plaintiffs.

4. Being aggrieved by the same, the respondents - defendants had

preferred an appeal before the Court of Civil Judge (Senior

Division) being Title Appeal No.35/2004, which came to be

dismissed by the Appellate Court vide the Judgment and Order

dated 21-11-2005.

5. The aggrieved respondents – defendants preferred the Second

Appeal being Regular Second Appeal No.74/2006. The said

Second Appeal was admitted by the High Court on 16-3-2007, by

framing the following substantial question of law: -

"1. Whether the annual patta holder has the right

to transfer the land for which he has only

possessory right to another person?"


6. Thereafter, the High Court again framed two additional

substantial questions of law on 05-02-2015 which are as

follows:-

“1. In view of the admissions contained in

Paragraph 4, 5 and 6 of the plaint, whether the

defendants can be said to have acquired the

status of non-evictable tenants under the Assam

Temporary Settled Areas) Tenancy Act, 1971?

2. Whether the suit itself was not maintainable

due to non-compliance of Section 51 and 54 of the

Assam (Temporary Settled Areas} Tenancy Act,

l97l?"

7. Again, the High Court framed one additional substantial

question of law on 25.03.2015, which reads as follows: -

“1. Whether the declaration of right, title and

interest by the Courts below is at all legally

justified in view of the position that the same

was granted on the basis of Exhibit 1, i.e., the

Annual Petta."

8. As transpiring from the impugned Judgment, the appeal was

partly heard on 25-03-2015 and again was concluded on

27-03-2015, however, on both the occasions, none had appeared

on behalf of the appellants - plaintiffs, and the High Court

vide the impugned Judgment dated 07-04-2015 allowed the said

second appeal and set aside the Judgment and Decree passed by

the two courts below. It has been held by the High Court

inter alia that though the Courts below had dismissed the

appeal of the respondents (defendants) on the ground that

they had failed to prove adverse possession of the suit land,

however, as per the legal position, the appellants –

plaintiffs could succeed only on the strength of their own

case, irrespective of the question whether the respondents –

defendants really proved their case or not. The High Court

further held that the courts below had not considered the

provisions of Assam (Temporary Settled Areas) Tenancy Act,

1971 and had committed gross error in decreeing the suit of

the appellants – plaintiffs holding the defendants to be the

encroachers.

9. It is sought to be submitted by Ms. Kavya Jhawar, learned

Advocate appearing for the appellants – plaintiffs that the

High Court has grossly erred in not giving proper opportunity

of hearing to the appellants, more particularly when the High

Court had framed as many as four additional substantial

questions of law, which were not raised by any of the parties

before the Courts below. She further submitted that the

respondents – defendants had claimed the ownership over the

suit land by the adverse possession, and had not claimed

tenancy rights over the same, however, the High Court has

created a new case for the respondents – defendants by

framing additional substantial questions of law and allowing

the Second Appeal without giving any opportunity of leading

the evidence on the additional issues framed by it.

10. Mr. Azim H. Laskar, the learned counsel appearing for the

respondents has fairly submitted that the High Court having

not given the proper opportunity to the parties to lead

evidence on the additional substantial questions of law

framed by it, he has no objection if the matter is remanded

to the High Court for fresh consideration.

11. It is needless to say that Order XLI of the Code of Civil

Procedure, 1809 would apply to the appeals from the appellate

decrees also, as contemplated in Rule-1, Order XLII of the

said Code.

12. As per Order XLI Rule 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. Further, as per Rule-27

Order XLI, the Appellate Court may allow evidence or document

to be produced or witness examined, in the circumstances

stated therein, after recording the reasons for such

admission of evidence. However, the Appellate Court can not

create a new case for the party, frame the issues and decide

the issues without following the procedure contemplated under

Order XLI of CPC.

13. In the instant case, the High Court in the second appeal had

framed one substantial question of law on 16-3-2007, and

framed two another substantial questions of law on 5-2-2015

and one more substantial question of law in 2015. Thus, in

all framed four additional questions of law.

14. Apart from the fact that none of the said substantial

questions of law formulated by the High Court were either

raised before the trial court or the appellate court, none of

parties was given any opportunity of leading the evidence on

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the said issues. It is well-settled principle of law that the

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.

15. In view of the above, without examining the merits of the

case, we deem it appropriate to set aside the impugned

judgment and decree passed by the High Court in the Second

Appeal, and remand the same to the High Court for deciding

the same afresh and in accordance with law. While deciding

the Second Appeal afresh, the High Court may reconsider the

substantial questions of law framed by it earlier and decide

the same in accordance with law.

16. Accordingly, the impugned judgment and decree passed by the

High Court is set aside and the Appeal stands allowed

accordingly.

17. Since the decree was passed by the trial court in 2004, the

High Court is requested to decide the Second Appeal as

expeditiously as possible.

18. It is directed that till the Second Appeal is decided by the

High Court, both the parties shall maintain status-quo as

regards to the possession of the suit land.

 …………………………………………J

 (BELA M. TRIVEDI)

 …………….………………………………………J

 (SATISH CHANDRA SHARMA)

NEW DELHI

21ST AUGUST, 2024.


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