NIROD BARAN BANERJEE versus DY. COMMISSIONER OF HAZARI BAGH

Citation: [1980] 2 S.C.R. 1043 · Decided: 14-02-1980 · Supreme Court of India · Bench: S. MURTAZA FAZAL ALI · Disposal: Dismissed

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Judgment (excerpt)

• 
NIROD BARAN BANERJEE 
v. 
DY. COMMISSIONER OF HAZARI BAGH 
February 14, 1980 
[S. MURTAZA FAZAL ALI AND A. D. KosHAL, JJ.] 
1043 
New Plea-A point not taken either before the trial court or before the 
!High Court when the appeal was not taken,, cannot be allowed to be raised 
for the first time either in the Supren1e Court or in the application 
given 
he/ore the lligh Court for granting a certificate of fitness-Civil 
Procedure 
.,Code Order VI Rule 8 and Order Vlll Rule 2. 
In respect of the lands acquired by the State of Bihar, the appellant 
w315 awarded a sum of Rs. 9665-35 which along with sola.tium and 
other 
<:barges totalled to a sum of Rs. 20,23 Hi7. The appellant claimed a sum 
of· Rs. 2,80,000/- as the market value of the land acquired. Before the Dis-
tr,ict Magistrate could take up the hearing on a reference 
made 
under 
1. 18 of the Land Acquisition Act, the matter was agreed 
by the 
parties 
to be referred to a Board of Arbitration consisting of three persons of whom 
one wa5 appointed by the appellant. The Board so 
constituted 
gave 
an 
award confirming the con1pensa.tion given by the Collector. The 
appellant 
moved the District Court for setting aside the award. The said application 
was diS!missed by the Court and an appeal to the High Court thereon was 
also dismissed. Thereafter, the appellant approached the High Court 
for 
-granting a certificate of fitness for appeal to the Supreme Court and it was 
.at that stage that for the first time the appellant raised the point 
tha.t 
the 
arbitration agreement was not in accordance with the provisions of Article 
299 of the Constitution and that there being no arbitration agreement 
in 
the eye of la.w, the a\Vard was invalid and liable to be set aside. The High 
Court accepted the contention and granted leave as prayed for. 
Dismissing the appeal, the Court, 
HELD : 1. The question \Vhether or not there was an agreement which 
fulfilled the requirements of Art. 299 is not a pure question of law but is a 
<iuestion which depends on investigation of facts. 
[1046C] 
2. ln view of the provision of Order VI Rule 8 and Order VIII Rule ' 
(If the Code of Civil Procedure, the appellant would 
be 
debarred 
from 
$ising a point for the first time before this Court or even before the High 
Court. It is well settled that no evidence can be looked into by the Court 
for which there is no foundation in the pleadings. 
[1047BJ 
In the instant case, the appellant cannot be allowed to raise the 
plea 
for the first time in the Supreme Court, in as much as : 
(a) the appellant contented himself by relying on the resolution by the 
Government, treated it as a -valid arbitration agreement and never raised the 
.question that the said resolution was hit by Art. 299 ot the Constitution of 
India. [I047C] 
'A 
B 
c 
D 
E 
F 
G 
(b) he fully participated in the arbitration proceedings aad having taken 
the benefit of a decision by the Board in his favour made a complete somer-
B 
·sault only when the decision went against him, by taking the plea now under 
<ixrunination, which doublless required investigation of facts. [1047D] 
1044 
SUPREME COURT REPORTS 
[1980) 2 s.c.R:. 
• 
· A 
(c) Even that plea he took neither before the Additional Sub-Judge nor 
in the High Court when the appeal was heard on merits but only 
for 
the--
first time in the application which he gave for gr3nting leave to appeal 
to-
..(" 
this Court. Had he raised the plea before the Trial Court that the arbitra-
tion agreement was not in consonance with Art. 299 of the Constit11tion of 
India, the rrespondent may have been in a position to rebut the plea by produc-
ing evidence a.nd circumstances to sho\v that an agreement for arbitration was 
g 
authenticated in the form required by Art. 299 of the Cons.titution. 
[1047El 
, 
c 
D 
E 
F 
G 
H 
Ka/yanpur Lime Works Ltd. v. State of Bihar and Anr.; [1954] S.C.R. 
958 @ 969; followed. 
CIVIL 
APPELLATE 
JlTRISDICTION 
1970. 
Civil A ppcal No. 1105 of\., \ 
Appeal by Certificate from the Judgment and Order datea 
13-5-1968 of the Patna High Court in Misc. Appeal No. 178 of 
1963. 
Dr. Y. S. Chitale, K. N. Choubey and B. P. Singh for the Appel-
ial!t. 
Lal Narain Sinha Attorney General and S. N. !ha for the Respon-
dent. 
1 he Judgment of the Court was delivered by 
FAZAL ALI, J.-This appeal by certificate is directed against a 
judgment of the Patna High Court dated 13-5-1968 dismissing the 
appeal filed by the appellant before the High Court. 

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