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.

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Whether relief claimed in memorandum of appeal determines value of appeal for purposes of court-fee?

The question for determination in this appeal is whether the order of the Judicial Commissioner demanding additional court-fee can be sustained in law. A memorandum of appeal, as provided in article 1 of Schedule I of the Court-Fees Act, has to be stamped according to the value of the subject-matter in dispute in appeal; in other words, the relief claimed in the memorandum of appeal determines the value of the appeal for purposes of court-fee. The only relief claimed in the memorandum of appeal was the first one mentioned in the plaint. This relief being purely of a declaratory character, the memorandum of appeal was properly stamped under article 17 of Schedule II.

10. It is always open to the appellant in an appeal to give up a portion of his claim and to restrict it. It is further open to him, unless the relief is of such a nature that it cannot be split up, to relinquish a part of the claim and to bring it within the amount of court-fee already paid : Brahmanandam v. Secretary of State for India I.L.R.(1930)Mad. 48; Ram Prasad v. Bhiman I.L.R. (1905) All. 151; Karam Chand v. Jullundur Bank Ltd A.I.R. 1927 Lah. 543; Neelachalam v. Narasingha Das MANU/TN/0263/1931 : AIR1931Mad716 ; Sah Ramchand v. Pannalal MANU/UP/0232/1929 : AIR1929All308 ; Chuni Lal v. Sheo Charanlal Lalman MANU/UP/0189/1925 : (1925) I.L.R. 47 All. 756. The plaintiffs in express terms relinquished the second relief they had claimed in the plaint, in their memorandum of appeal. For the purpose of deciding whether the memorandum of appeal was properly stamped according to the subject-matter of the appeal, it was not open to the Judicial Commissioner to canvass the question whether the suit with the second prayer eliminated from it fell within the mischief of the proviso to section 42 of the Specific Relief Act. That was a question which related to the merits of the appeal and did not concern its proper institution. On this ground, therefore, the Judicial Commissioner had no jurisdiction to demand additional fee from the plaintiffs and the appeal could not be dismissed for failure to meet it. We are thus of the opinion that the order demanding additional court-fee on the memorandum of appeal as it stood, that is, minus the second prayer, was erroneous and we hold that the memorandum of appeal was properly stamped, as the subject-matter of the appeal was purely of a declaratory character.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 105 of 1950

Decided On: 10.11.1952

Nemi Chand and Anr. Vs. The Edward Mills Co. Ltd. and Anr.

Hon'ble Judges/Coram:

M.C. Mahajan, S.K. Das, Vivian Bose and Ghulam Hasan, JJ.

Citation:AIR 1953 SC 28

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