Whether a defendant can challenge finding given by the court on the issue raised by him in his written statement?

Mainly, it is contended by Sri Vikas Singh, learned senior Counsel for the Appellant-Defendant, that the Trial Court and the First Appellate Court committed an error in deciding the rights of parties in respect of the common areas in the ground floor, when the suit itself was filed, confined to the partition of second floor and terrace rights. 

8. On the other hand, Sri P.S. Patwalia, learned senior Counsel appearing for the Respondent, has submitted that it was the Appellant-Defendant, who in the written statement had raised a dispute in respect of common areas, as such the Trial Court has framed the issue on the common areas and decided the same. It is further submitted that having regard to pleadings and evidence on record, the Trial Court as well as the Appellate Court, have rightly decided the claim of the Appellant-Defendant in respect of the common areas also and there are no grounds to interfere with the same.

9. It is true that the suit filed by the Respondent-Plaintiff is only for partition and permanent injunction with regard to second floor portion of the house and the terrace rights, but it is the Appellant-Defendant who has raised the dispute with regard to common areas in the suit property in terms of paragraph 14 of the written statement. 

10. The Trial Court, had to frame an issue in view of the claim made by the Appellant-Defendant in respect of the common areas also. Having raised the dispute of the common areas, when such claim is considered by framing an issue, which we find in accordance with the pleadings and evidence on record, it is not open for the Appellant-Defendant to plead that directions issued in the impugned judgment, are beyond the scope of the suit.

11. Having invited findings by raising a dispute of the common areas, the Appellant-Defendant cannot plead that the Trial Court as well as the Appellate court have exceeded scope of the suit, in issuing directions for the common areas.

 IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 1899-1900 of 2020 

Decided On: 02.03.2020

Sajan Sethi  Vs.  Rajan Sethi

Hon'ble Judges/Coram:

Mohan M. Shantanagoudar and R. Subhash Reddy, JJ.

Author:R. Subhash Reddy, J.
Citation:(2020) 4 SCC 589

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Whether decision given on any issue will operate as res judicata if finding was given on issue without pleading and evidence?

Secondly, the issue relating to ownership of the present Petitioners over the strip of land was not "directly and substantially in issue" in the earlier suit, because neither there was any pleading, nor the evidence was laid to that effect, specifically to prove the ownership, nor the trial Court has framed any issue to that effect. Only the Appellate Court has framed such issue and gave some finding, and this Court found that such finding cannot be sustained, as the said issue was not before the trial Court for consideration.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 8909 of 2017

Decided On: 31.01.2018

 Vishal Bhagwan Chandanshive Vs. Sangli Miraj and Ors.

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Whether incidental finding given to issue relating to ownership will be res judicata in subsequent suit?

 In such situation, as the Appellate Court has committed an error in framing the issue relating to the ownership of the Respondents therein (Petitioners herein) over the suit plot, this Court has corrected that error and set-aside that finding mainly and mostly on the ground that such issue was not raised for consideration as the suit was simpliciter for injunction. Thus, the issue relating to the ownership of the present Petitioners over the strip of land was not at all "directly and substantially" for consideration in the earlier proceedings. In view thereof, the incidental finding given to the issue relating to the ownership of the Petitioners over the strip of land, cannot operate as res-judicata; especially when the parties to this suit are also not the same parties to the previous suit.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 8909 of 2017

Decided On: 31.01.2018

 Vishal Bhagwan Chandanshive Vs. Sangli Miraj and Ors.

Hon'ble Judges/Coram:

Dr. Shalini Phansalkar Joshi, J.

Citation: 2018 (4) MHLJ 178

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Whether arbitration award can be challenged if issue decided by arbitrator is bad in law?

It is a well-settled principle in Arbitration Law that the award of an Arbitral Tribunal once passed is binding on the parties. The reason being that the parties having chosen their own Arbitrator and given him an authority to decide the specific disputes arising between them must respect his decision as far as possible and should not make any attempt to find fault in each issue decided by him only because it is decided against one party. It is only when the issue decided is found to be bad in law in the light of any of the specified grounds set out in Section 34 of the Act, the Court may consider it appropriate to interfere in the award else not. The case at hand falls in former category.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 8530 of 2009

Decided On: 08.12.2017

 Union of India (UOI) Vs. Susaka Pvt. Ltd. and Ors.

Hon'ble Judges/Coram:

Abhay Manohar Sapre and Navin Sinha, JJ.

Citation: 2018(4) MHLJ 131

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Whether court can record finding on a issue which is framed beyond pleading?

 In our considered opinion, the aforesaid finding of the High Court is wholly illegal and unsustainable in law besides being against the pleading and evidence. This we say for following reasons:

26. First, the Respondent (Defendant) had not raised such plea in his written statement. In other words, the Respondent did not set up such defense in the written statement. Second, the Trial Court, therefore, had no occasion to frame any issue on such plea for want of any factual foundation in the written statement. Third, the Trial Court and First Appellate Court, in these circumstances, had no occasion to record any finding on this plea either way. Fourth, in the light of these three reasonings, the High Court ought to have seen that such plea really did not arise for consideration because in order that any question is involved in the case, the party concerned should lay its factual foundation in the pleading and invite finding on such plea. Fifth, the High Court failed to see the case set up by the Respondent in his written statement. As mentioned above, the defense of the Respondent was that he had denied the Appellant's title over the suit shop and then set up a plea of adverse possession contending that he has become the owner of the suit shop by virtue of adverse possession, which according to him, was from time immemorial.

27. It was clear that the Respondent never claimed that he was in possession of the suit shop as tenant of the Appellant's predecessor-in-title. On the other hand, the Respondent had asserted his ownership right over the suit shop on the strength of his long adverse possession.

28. It is these issues, which were gone into by the two Courts and were concurrently decided by them against the Respondent. These issues, in our opinion, should have been examined by the High Court with a view to find out as to whether these findings contain any legal error so as to call for any interference in second appeal. The High Court, however, did not undertake this exercise and rather affirmed these findings when it did not consider it proper to frame any substantial question of law. It is a settled principle of law that the parties to the suit cannot travel beyond the pleadings so also the Court cannot record any finding on the issues which are not part of pleadings. In other words, the Court has to record the findings only on the issues which are part of the pleadings on which parties are contesting the case. Any finding recorded on an issue de hors the pleadings is without jurisdiction. Such is the case here.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 19421 of 2017 (Arising out of SLP (C) No. 22894/2014)

Decided On: 20.11.2017

 Shivaji Balaram Haibatti Vs.  Avinash Maruthi Pawar

Hon'ble Judges/Coram:

R.K. Agrawal and Abhay Manohar Sapre, JJ.

Citation: (2018) 11 SCC 762

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Whether a party to appeal can give up an issue which is not the subject matter of lis before Appellate Court?

As rightly urged by the learned counsel for the applicant, the question before this Court was whether the applicant was entitled to claim mesne profits at the rate of Rs.200/- p.m. Since the applicant was already awarded mesne profits at the rate of Rs.30/- p.m. with 10% increase every three years from the date of filing of suit till 21.08.1990 together with interest @ 12% at the amount accruing due month after month, which was not under challenge at the instance of respondents and hence the question was whether the applicant was entitled to claim mesne profits for the balance amount, i.e. Rs.170/- p.m. from the respondents.

32) It is this claim, i.e., Rs. 170/- p.m., which was given up by the applicant that being the subject matter of the petition which this Court recorded and accordingly disposed of the applicant’s petition by order dated 21.04.2009.

33) In our opinion, the order of this Court dated 21.04.2004 could not have been construed so as to deprive the applicant to claim mesne profits at the rate of Rs.30/- p.m. with 10% increase every three years from the date of filing of suit till 21.08.1990 together with interest @ 12% at the amount accruing due month after month from the respondent. Indeed, this claim which was already adjudicated in applicant’s favour by the Courts below and which was neither challenged by the respondents and nor was it the subject matter of dispute in applicant’s petition, the same could not be held to have been given up by the applicant by order dated 21.04.2009.
 It is a settled principle of law that only those issues could be given up by the party which are the subject matter of the lis before the Court. Since in the petition before this Court, the issue with regard to award of mesne profits at the rate of 30/- p.m. was not the subject matter at the instance of any party to the lis, the question of its giving up at the instance of the applicant did not arise. The order dated 21.04.2009, in our view, has to be interpreted keeping in view these background facts.

Reportable

Supreme Court of India

Sant Ram vs Dhan Kaur & Ors on 16 October, 2015

Bench: J. Chelameswar, Abhay Manohar Sapre

Citation:(2016) 14 SCC 421

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Whether writ petition will be barred by res judicata if issues are not same?

The submission of the learned counsel appearing for the
respondent-State that the writ petition is barred by res
judicata is also not sustainable in law. In our considered view,
question as to whether the appellants landholders were
dispossessed from the land in question and the effect of the
Repeal Act on this was not the issue in the earlier writ petition
and, therefore, it cannot be held that the instant writ petition
is barred by res judicata or constructive res judicata.
“REPORTABLE”
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7434 OF 2012
Vipinchandra Vadilal Bavishi (D) by Lrs.
and another 
V
State of Gujarat and others 
Citation:(2016) 4 SCC531
M.Y. EQBAL, J.

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Whether plea of limitation can be decided as per principle of law divorced from facts?

Mr. Nariman, learned senior counsel appearing for the
appellant put heavy reliance on the decision in the case of
Ramesh B. Desai vs. Bipin Vadilal Mehta, (2006) 5 SCC
638, for the proposition that a plea of limitation cannot be
decided as an abstract principle of law divorced from facts
as in every case the starting point of limitation has to be
ascertained which is entirely a question of fact.
A plea of
limitation is a mixed question of law and fact.
In our
considered opinion, in the aforesaid decision this Court was
considering the provision of Order XIV Rule 2, CPC.
While
interpreting the provision of Order XIV Rule 2, this Court was
of the view that the issue on limitation, being a mixed
question of law and fact is to be decided along with other

issues as contemplated under Order XIV, Rule 2, CPC.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No. 7732 of 2011
Foreshore Co-operative Housing Society Limited

versus
Praveen D.Desai (Dead) thr. Lrs. and others

Citation;2015(3) MHLJ 315 SC

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Whether doctrine of Res judicata is applicable if raising of that issue in previous suit was discretionary?

Equivalent Citation: AIR1961Bom97, 1960(62)BOMLR360, ILR1960 Bom 493

IN THE HIGH COURT OF BOMBAY AT NAGPUR

Letters Patent Appeal No. 115 of 1955

Decided On: 25.11.1959

Appellants: Mathurabai w/o Nilkanth Deshpande and Anr.
Vs.
Respondent: Ramkrishna Bhaskar Barve and Ors.

Hon'ble Judges/Coram:
S.P. Kotval and V.B. Raju, JJ.

Civil Procedure Code (Act V of 1908), Section 11 - Indian Contract Act (IX of 1872), Section 65 --Trustees of Deosthan unauthorizedly selling trust property to plaintiff--Suit for possession by Deosthan against plaintiff and trustees but trustees joined as formal parties and no relief claimed against them--Plaintiff contending that if sale void Deosthan to be ordered to refund consideration--Suit decreed and no appeal filed --Suit by plaintiff against trustees for recovering consideration--Whether judgment in former suit res judicata on question of liability of trustees--Discretionary relief claimed in former suit and issue raised on it--Whether principle of res judicata applies to such issue--Applicability of principle of res judicata where raising of issue not obligatory--Principle embodied in Section 65, Indian Contract Act, whether can be extended to property purchased from consideration of void contract.

A house belonging to a Deosthan was sold to the plaintiff for Rs. 2,000 by the defendants who were its trustees. Another trustee of the Deosthan filed a suit on its behalf against the plaintiff for a declaration that the sale of the house was void and for possession. The defendants were made formal parties to the suit and no relief was claimed against them. The plaintiff contended that if the sale deed was found to be void, the Deosthan should be put to terms and ordered to pay back Rs. 2,000. There was no prayer by the plaintiff that the defendants should be put to terms. The plaintiff's plea was rejected and the suit was decreed, the trial Judge finding that neither the Deosthan or the defendants could be put to terms before setting aside the sale. There was no appeal against the decree. Thereafter the plaintiff filed a suit against the defendants and the Deosthan and inter alia contended that a decree should be passed against the defendants for Rs. 2,000. On the question whether the judgment in the previous suit was res judicata on the question whether the defendants should be ordered to refund Rs. 2,000 to the plaintiff:-

Held:

That as the parties in the former suit had not joined issue on the question of the liability of the defendants to refund Rs. 2,000 and as there was no adverse finding in the judgment in the previous suit against the defendants, the judgment did not operate as res judicata on the question of the liability of the defendants to pay Rs. 2,000 to the plaintiff.

If a relief in a suit is claimed in fact, whether discretionary or not, and an issue raised on it the principle of res judicata would apply as the relief, though discretionary, having been claimed, it is a matter directly and substantially in issue. If a particular issue has not been raised, the principle of res judicata would still apply to it if that issue ought to have been made a ground of defence or attack. But this principle would not apply if the raising of that issue was discretionary and not obligatory.

The principle embodied in Section 65 of the Indian Contract Act, 1872, cannot be extended to properties purchased from the consideration of a void contract.

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When trial Court has jurisdiction to go into all the issues after remand of case?

 The above noted grievance of the petitioner, as it appears, is on a misconception and understanding the scope of the remand order. When the suit has been remanded to the trial Court for a fresh decision, the trial Court has jurisdiction to go into all the issues and at that stage he has also jurisdiction to go into the valuation of the suit and the matter relating to sufficiency or insufficiency of the Court-fee paid. Therefore, the act of the learned Civil Judge is found neither to be illegal nor unjust or improper. Hence, on the basis of such misconception and misunderstanding of the petitioner, his grievance is devoid of merit to be considered.

Orissa High Court

Purandar Pradhan vs Gati Pradhan And 3 Ors. on 11 December, 2003

Equivalent citations: 97 (2004) CLT 65, 2004 I OLR 56,AIR 2004 NOC411 orissa

Bench: P Tripathy

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Whether Correction in judgment if it changes very foundation of issues is permissible?

  We do not agree that the learned Single Judge  was  merely  correcting
an accidental omission or typographical error.  By correcting the  judgment,
the very foundation and the issue formulated, broken down and  fell  on  the
ground and the issue framed by the learned Single Judge, lost its  sanctity.
  The learned Single Judge cannot correct an issue  which  has  been  framed
and answered.  As already indicated, the first issue framed is  with  regard
to the “wrong treatment and consequential death of a  patient”  and  it  was
that issue which was answered, then we  fail  to  see  how  the  application
preferred by the Respondents for review can be  treated  as  an  application
for correcting accidental omission or typographical error, that too  without
notice to the appellants herein.

13.    We are dealing with the case of  medical  negligence  and  we  wonder
whether this case borders on judicial negligence or the  negligence  of  the
parties to point out that the issue was wrongly  framed.  Pleadings  of  the
parties nowhere state that the patient is dead.  Learned  Single  Judge,  it
is seen, has framed  two  issues,  after  perusing  the  records  and  after
hearing the arguments of the learned  counsel  for  the  parties.   When  we
peruse the records, as already stated, we do not  find  any  statement  that
the wife of Respondent No. 1 is no more.  The entire thought process of  the
Judge centered round  on  an  incorrect  premise  that,  due  to  the  gross
negligence on the part of the appellants,  the  wife  of  Respondent  No.  1
died.
    REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                    CRIMINAL APPEAL NOS. 506-508 OF 2014
              [Arising out of SLP (Crl) Nos.2421-2423 of 2013]


Daljit Singh Gujral & Ors.             
      Versus

Jagjit Singh Arora & Ors.                
Citation;2014(1) crimes 314 SC

                         


K. S. RADHAKRISHNAN, J.

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