LexRAMA KT. BARMAN (DIED) THR. LRS. versus MD. MAHIM ALI & ORS.
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[2024] 8 S.C.R. 727 : 2024 INSC 644 Rama Kt. Barman (Died) Thr. Lrs. v. Md. Mahim Ali & Ors. (Civil Appeal No. 3500 of 2024) 21 August 2024 [Bela M. Trivedi* and Satish Chandra Sharma, JJ.] Issue for Consideration Matter pertains to the correctness of the order passed by the High Court in second appeal wherein it created a new case for the party, framed the issues and decided them without following the procedure contemplated u/Ord. XLI. Headnotes† Code of Civil Procedures, 1908 – Ord. XLI – Appeals from appellate decree – Procedure contemplated u/Ord. XLI – Compliance – High Court in second appeal framed additional substantial questions of law, which were not raised by any of the parties before the courts below and allowed the appeal without giving any opportunity of leading the evidence on the additional issues framed – Correctness: Held: Ord. XLI would apply to the appeals from the appellate decrees also, as contemplated in r. 1, Ord. XLII – As per Ord. XLI r. 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 – Furthermore, as per r. 27 Ord. XLI, the appellate court may allow evidence or document to be produced or witness examined, after recording the reasons for such admission of evidence – However, the appellate court cannot create a new case for the party, frame the issues and decide the issues without following the procedure contemplated u/Ord. XLI – On facts, the High Court in the second appeal had framed one substantial question of law and thereafter, three more substantial question of law, and in all framed four additional questions of law – None of the said substantial questions of law formulated by the High Court were either raised before the trial court or the appellate court as also none of parties were given * Author 728 [2024] 8 S.C.R. Digital Supreme Court Reports any opportunity of leading the evidence on the said issues – 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 – In view thereof, without examining the merits of the case, the impugned judgment and decree passed by the High Court in the Second Appeal set aside, and matter remanded to the High Court for deciding the same afresh and in accordance with law. [Paras 11-16] List of Acts Code of Civil Procedure, 1908; Assam (Temporary Settled Areas) Tenancy Act, 1971. List of Keywords Appeals from appellate decree; Procedure contemplated u/Ord. XLI CPC; Appellate court; Create new case for the party; Second appeal; Substantial question of law; Additional questions of law; Opportunity of leading the evidence; Appellate stage; Pleadings of the parties. Case Arising From CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3500 of 2024 From the Judgment and Order dated 07.04.2015 of the High Court of Gauhati in RSA No. 74 of 2006. Appearances for Parties Ms. Kavya Jhawar, Ms. Nandini Rai, Ms. Sneha Kalita, Advs. for the Appellants. Azim H. Laskar, Bikas Kar Gupta, Ms. Anamika Pandey, Chandra Bhushan Prasad, Advs. for the Respondents. Judgment / Order of the Supreme Court Judgment Bela M. Trivedi, J. 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 [2024] 8 S.C.R. 729 Rama Kt. Barman (Died) Thr. Lrs. v. Md. Mahim Ali & Ors. 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: - “1. Whether the suit is barred by limitation? 2. Whether the plaintiff has right, title
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