Tuesday, 21 April 2020

Whether a court can permit the appellant to take additional grounds of appeal which were not in the memo of appeal?

 Order 41 Rule 2 of CPC is extracted hereunder for ready reference:

Order 41 Rule 2: Grounds which May be Taken in Appeal - 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; but the appellate Court, in deciding the appeal, shall not be confined to the grounds of objections set forth in the memorandum of appeal or taken by leave of the Court under this rule.

Provided that the Court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that ground.

9. A plain reading of the said provision would amply make the point clear that the appellate Court has got ample power to permit the appellant to raise additional grounds.

IN THE HIGH COURT OF MADRAS

C.R.P. (NPD) Nos. 1843 and 1844 of 2010 and M.P. No. 1 of 2010

Decided On: 09.08.2010

Pappireddy  Vs.  Ramaswamy Reddy 

Hon'ble Judges/Coram:
G. Rajasuria, J.




1. Animadverting upon the order dated 17.2.2010 passed by the Principal District Judge, Krishnagiri, in I.A. Nos. 6 and 11 of 2010 in A.S. No. 55 of 1989, these civil revision petitions are focussed.

2. Heard both sides.

3. The epitome and the long and short of the relevant facts absolutely necessary and germane for the disposal of these two civil revision petitions would run thus:

One Nanja Reddy filed the suit O.S. No. 390 of 77 seeking partition. After contest, the trial Court decreed the suit, as against which, several appeals have been filed by various groups among the parties and those appeals were pending.

(ii) While so, the revision petitioners herein, who happened to be D51 to D60, filed the I.A. No. 6 of 2010 before the appellate Court with the following prayer:

to direct the respondents to get the leave of the Court by an application, before ever their Counsel argues the new ground not set forth in the memorandum of appeal in A.S. No. 159 of 1988, that D1 schedule properties in the suit in O.S. No. 390 of 77 are joint family properties.'

(extracted as such)

(iii) Whereas, the respondents 1 to 10 herein, who happened to be original D2 to D4, D28 to D32, filed the I.A. No. 11 of 2010 with the following prayer:

to grant leave to petitioners/appellants to urge that DI schedule properties are joint family properties.

(iv) Both the applications were contested and whereupon common order was passed by the lower Court dismissing the I.A. No. 6 of 2010 filed by the revision petitioners herein and allowing the I.A. No. 11 of 2010 filed by the aforesaid respondents.

4. Being aggrieved by and dissatisfied with the said order, these two civil revision petitions are filed almost on identical grounds.

5. The Learned Counsel for the revision petitioners, so to say, D51 to D60, reiterating the grounds of revisions would develop his arguments, the warp and woof of them would run thus:

(i) The appellate Court had no jurisdiction at all to permit D2 to D4 and D28 to D32 as appellants in appeal A.S. No. 55 of 1989 to raise additional grounds touching upon the decision rendered by the trial Court relating to the Schedule 'DI' property.

(ii) The Schedule 'DI' property is pertaining to the one exclusively purchased by the deceased V. Venkata Reddy/D49 and his legal heirs are the revision petitioners herein.

(iii) D2 to D4 and D28 to D32 in A.S. No. 55 of 1989 under ground No. 67 stated thus:

67. This appeal is filed in respect of all the suit properties except item 6 of 'B' I schedule items 10 and 11 of 'C' V Schedule; item 17 and 55 of 'D' schedule' 'D' I Schedule and items 2 and 3 of 'E' Schedule.

After setting out such a ground in the memorandum of appeal by D2 to D4 and D28 to D32 and giving up their claim over Schedule 'DI', they simply had a volte face and quite antithetical to what they committed themselves in black and white in appeal memorandum, they have chosen to pray in I.A. No. 11 of 2010 as though they are also having grievance relating to the adjudication made by the trial Court.

(iv) It is too late in the day on the part of D2 to D4 and D28 to D32 to contend that the Schedule 'D1' property also happened to be the joint family property. They cannot approbate and reprobate, blow hot and cold.

(v) The appeal itself was filed in the year 1989. The very I.A. No. 11 of 2010 was filed in the year 2010, so to say, after more than two decades of filing of the appeal. In the meanwhile, much water has flown under the bridge and the legal heirs of V. Venkata Reddy-D49, namely, the revision petitioners herein, took it for granted that their exclusive right over Schedule 'DI' property was beyond question; holus-bolus I.A. No. 11 of 2010 was came to be filed by D2 to D4, D28 to D32 to the shock and surprise of the legal heirs of Venkata Reddy-D49-the revision petitioners herein and in fact, the petitioners in I.A. No. 11 of 2010 were estopped from raising such a plea contrary to what they have stated in ground No. 67 of their memorandum of appeal.

(vi) The Learned Counsel for the revision petitioners also would submit that in the appeal filed by the revision petitioners herein in A.S. No. 160 of 1989 in ground No. 96 they stated thus:

96. The decree and judgment of the lower court are contrary to law, weight of evidence and probabilities of the case in respect of except that relating to item 6 of B1 schedule the entire 'D' 1 schedule and items 2 and 3 of 'E' schedule of the suit properties.
As such, D2 to D4, D28 to D32 should not be allowed to raise a plea which is capable of setting the clock back or unsettling the settled position.

Accordingly, the Learned Counsel for the revision petitioners prays for allowing the revision petitions by setting aside the order passed in I.A. Nos. 6 and 11 of 2010.

6. Per contra, by way of torpedoing and pulverising the arguments as put forth and set forth on the side of the revision petitioners, the Learned Counsel for the respondents/D2 to D4 and D28 to D32 would develop his arguments, which could tersely and briefly be set out thus:

(i) Order 41 Rule 3 of CPC gives ample power to the appellate Court to permit the appellants in an appeal to raise all pleas/grounds, which they failed to raise earlier at the time of filing the appeal.

(ii) The question of pressing into service 'estoppel by conduct' pendente lite of the appeal does not arise at all.

(iii) Order 41 Rule 33 of CPC whether it is in stricto senso applicable or not, Order 41 Rule 2 of CPC is squarely applicable and accordingly, the discretionary power exercised by the appellate Court cannot be found fault with.

Accordingly, the Learned Counsel for the respondents prays for dismissal of both the CRPs.

7. The point for consideration is as to whether there is any illegality or perversity on the part of the appellate Court in allowing the I.A. No. 11 of 2010 and dismissing I.A. No. 6 of 2010 in view of the reasons found set out in the grounds of revisions.

8. Order 41 Rule 2 of CPC is extracted hereunder for ready reference:

Order 41 Rule 2: Grounds which May be Taken in Appeal - 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; but the appellate Court, in deciding the appeal, shall not be confined to the grounds of objections set forth in the memorandum of appeal or taken by leave of the Court under this rule.

Provided that the Court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that ground.

9. A plain reading of the said provision would amply make the point clear that the appellate Court has got ample power to permit the appellant to raise additional grounds.

10. No doubt wittingly or unwittingly, knowingly or unknowingly, rightly or wrongly D2 to D4, D28 to D32 tried to press into service Order 41 Rule 33 of CPC, whereupon the revision petitioners herein also detailed and delineated the scope of Order 41 Rule 33 of C.P.C. and consequently, the Court also dwelt very much on the said provision. In my considered opinion in the facts and circumstances of this case, Order 41 Rule 33 of C.P.C. is not the appropriate provision to be invoked. Order 41 Rule 33 is reproduced hereunder:

Order 41 Rule 33: Order of Court of Appeal - The appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are, passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees.

Provided that the Appellate Court shall not make any order under Section 35A, in pursuance of any objection on which the Court from whose decree the decree is preferred has omitted or refused to make such order.

A bare perusal of the same would display and demonstrate that in the facts and circumstances, the said provision of law is not applicable.

11. Here the very appellants in A.S. No. 55 of 2010, who happened to be originally D2 to D4, D28 to D32, thought fit at the time of appeal to add the ground No. 67 to the effect that the property as described in schedule 'D1' was not the subject matter of appeal and subsequently, it seems, they thought fit to challenge the verdict of the Court relating to the said item of property and they wanted to argue impugning and challenging the verdict given by the trial Court over such property.

12. At this juncture, it has to be seen as to what is the scope of the contention relating to the property described in Schedule 'D1' of the plaint.

13. The lower Court held that the said property happened to be the exclusive property of the deceased Venkata Reddy-the propositus of the revision petitioners herein, and such a decision was against D2 to D4, D28 to D32 because they would contend that even that property happened to be the joint family property.

14. The Learned Counsel for D2 to D4 and D28 to D32 would try to explain and expound by pointing out that several appeals were filed and some of the appellants in some appeals sail together. In the process of preparing the memorandum of appeal, the ground as found set out in one other appeal was verbatim copied even though there were conflict of interest among them. Accordingly, he prays for permitting D2 to D4, D28 to D32 to raise their plea as against the verdict given by the trial Court in respect of the property found described in Schedule 'D1'.

15. The Learned Counsel for the revision petitioners would reiterate that what is settled should not be unsettled and if that is done so and that too, after two decades, the revision petitioners stand in the appeal would get disturbed and furthermore, the dealings which they have undertaken relating to the said property described in Schedule 'D1' also would get affected.

16. In black and white it is not found spelt out either in the appeal or in the revision herein as to what actually took place after the decision of the trial Court in respect of the property described in the Schedule 'D1'. As such, in the absence of clear facts before this Court, this Court cannot simply invoke 'estoppel by conduct' and hold that D2 to D4, D28 to D32 are not having the right to argue their appeal challenging the verdict of the trial Court relating to that property concerned.

17. I hark back to the maxim- 'Audi Alteram Partem' - Hear the other side.

18. I also recollect the trite proposition of law that the first appellate Court is the last Court of facts and it is expected to re-evaluate the evidence in entirety and gave its own independent finding on each and every issue. No doubt, when there is no challenge in the appeal to certain findings given by the trial Court, the appellate Court cannot be called upon to give its verdict. But in this case, the respondent/D2 to D4, D28 to D32 would submit that they are having grievance as against such finding relating to the Schedule D1 property also.

19. The core question arises as to whether the valuable right of the respondents herein/D2 to D4 and D28 to D32 to air their grievance before the first appellate Court could be throttled simply because unwittingly as highlighted by the respondents themselves that certain versions crept in as though they were having no grievance against the findings of the trial Court relating to the said property described in schedule 'DI'. My answer is an emphatic No. The Court should always be liberal in allowing additional grounds to be raised. It appears as highlighted by both sides, for one reason or other, so to say, because of the successive deaths occurred in the parties to the lis, there has been delay in disposal of the appeal.

20. In such a case, even by phantasmagorical thoughts, it cannot be held that D2 to D4, D28 to D32 themselves by their ground No. 67 given a quietus to the dispute relating to the said property described in schedule 'D1'.

21. In my considered opinion the question of limitation also does not arise. It is not a case of impleading a new party to the lis, after the limitation period is over. The question of adding new cause of action also cannot be pressed into service at the appeal stage when the appellants want to question one of the findings of the trial Court.

22. No doubt, the parties to the lis as well as the lower Court elaborately dwelt upon Order 41 Rule 33 of C.P.C. To the risk of repetition and pleonasm, but without being tautalogous, tautologous I would like to point out that Order 41 Rule 33 is not the proper provision to be applied in the facts and circumstances of this case.

23. At this juncture, it is just and necessary to consider the following judgment of the Honourable Apex Court cited by the Learned Counsel for the revision petitioners:

JT 2003(5) SC 225 - Banarsi and Ors. v. Ramphal , certain excerpts from it would run thus:

15. ...secondly, a claim given up or lost cannot be revived; and thirdly, such part of the decree which essentially ought to have been appealed against or objected to by a party and which that party has permitted to achieve a finality cannot be reversed to the advantage of such party. A case where there are two reliefs prayed for and one is refused while the other one is granted and the former is not inseparably connected with or necessarily depending on the other, in an appeal against the latter, the former relief cannot be granted in favour of the respondent by the appellate court exercising power under Rule 33 of Order 41.

18. In Harihar Prasad Singh and Ors. v. Balmiki Prasad Singh and Ors. the following statement of law made by Venkatarama Aiyar, J.(as His Lordship then was) in the division Bench decision in Krishna Reddy v. Ramireddi, was cited with approval which clearly brings out the wide scope of power contained in Rule 33 and the illustration appended thereto, as also the limitations on such power:

Though Order 41, Rule 33 confers wide and unlimited jurisdiction on courts to pass a decree in favour of a party who has not preferred any appeal, there are, however, certain well-defined principles in accordance with which that jurisdiction should be exercised. Normally, a party who is aggrieved by a decree should, if he seeks to escape from its operation, appeal against it within the time allowed after complying with the requirements of law. Where he fails to do so, no relief should ordinarily be given to him under Order 41, Rule 33.
24. A plain reading of the said judgment would amply make the point clear that on a different set of facts the said decision of the Honourable Apex Court emerged. As revealed by the said judgment there was a suit for specific performance. Whereupon, judgment was passed by the Court below to the effect that at the first instance the plaintiff would not be entitled to specific performance, if at all the defendant would pay the amount due payable under the said decree, however, on his default alone, specific performance could be enforced. It appears, there no cross-appeal was filed challenging the order attracting specific performance, in default of the defendant paying the said amount and in such circumstances, it appears the Court exercised its powers under Order 41 Rule 33 of C.P.C. and in that context the Honourable Apex Court held that once the aggrieved party himself has not chosen to challenge such specific direction in the decree, the question of the appellate Court invoking suo moto Order 41 Rule 33 would not arise.

25. It is therefore crystal clear that the facts involved in that case are entirely different from this case and no more elaboration in this regard is required.

26. In this factual matrix, as per Order 41 Rule 2 of CPC, a fortiori the Court has got the power to permit the appellant to raise addition grounds, touching upon the findings of the lower Court and accordingly the lower Court exercised its discretion warranting no interference in revision.

27. In the result, I am of the considered view that the ultimate conclusion arrived at by the appellate Court in allowing the I.A. No. 11 of 2010 warrants no interference. However, I would like to clarify that the revision petitioners herein are directly entitled to get their memorandum of appeal in A.S. No. 160 of 1988 amended by modifying the ground No. 96 so as to enable them also to argue in support of the findings of the lower Court to the effect that the said property described in Schedule 'DI' was the self-acquired property of Venkata Reddy.

The Civil revision petitions are disposed of accordingly. No costs. Consequently, connected miscellaneous petition is closed.


Print Page

No comments:

Post a comment