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New Pleas Raised For The First Time In Appeals Under Article 136

Special Leave Petition
Legal Service India.com

  • 1. Plea on Facts

    The Supreme Court has by and large followed the practice of the Judicial Committee of the Privy Council and that of the Federal Court in not allowing new points of facts to be raised for the first time before it if those points were not raised before the lower Court or before the High Court. This has been the general rule, but in exceptional circumstances the Court has entertained a new plea on facts for the first time.

    In Karanpura Development Co. Ltd. v. K. Narain Singh, the Court did not allow the question whether a transaction concerning a license with an agreement to lease in future was bad under Section 18 of the Bengal Court of Wards Act, 1879, to be raised, for the reason that the rates of Salami and

    Royalty fixed there were less than the current market rates. The Court stated that the said question was essentially a question of fact and hence could not be raised in appeal before the Supreme Court for the first time.

    In Jagannath Behera v. Raja Harihar Singh, the Court held that the question whether any special laws or customs prevailed in the merged territory was one of fact and could not be allowed to be urged for first time before the Supreme Court. The principle that was laid down was that where the determination of the question raised required evidence in regard to the same, it would not be fair to allow that question to be agitated.

    In Venkataramana Devaru v. State of Mysore, the Court did not allow a question to be raised for the first time whether the temple was a private one or not within the purview of Madras Act 13 of 1949 as the said point was not taken in the pleadings in the courts.

    An accused cannot be permitted to take up a contention for the first time before the Supreme Court that the Food Inspector had no authority to file a complaint if the contention has not been raised before the lower courts. The Court held that if the accused had challenged the authority of the Food Inspector to file the complaint, the trial court would have gone into the same. This was essentially a question of fact.

    In Gopinath Ghosh v. State of West Bengal, in an appeal against conviction and sentence, the appellant for the first time before the Supreme Court claimed that he was less than 18 years of age on the date of occurrence and as such entitled to the benefit under the West Bengal Children Act. The Court held that considering the underlying intendment and the socially progressive statute, the plea of the accused ought to be entertained. The Court called for a finding on the age from the Sessions Court. On the basis of the finding that the accused was less than 18 years, he accused was acquitted and the Magistrate was directed to proceed as per the West Bengal Children's Act, 1959

    2. Plea of Law

    In so far as a pure question of law is concerned, the Court would generally permit the parties to raise the same even if the same was not raised at any stage in the proceedings. In Badri Prasad v. Nagarmal, the Court allowed a new point of law to be raised for the first time before it. In that case, a question as to contravention of Section 4(2) of the Rewa States Companies Act, 1935 was raised for the first time in the Supreme Court.
    The Court held that it was a pure question of law, not requiring the investigation of any facts, and hence could be raised in the Supreme Court in appeal for the first time

    The Court in Masalti V. State of U. P., stated:
    "It may be conceded that if a point of fact which plainly arises on the record, or a point of law which is relevant and material and can be argued without any further evidence being taken, was urged before the trial Court and after it was rejected by it was not repeated before the High Court, it may, in an appropriate case, be permissible to the appellants to ask this Court to consider that point in an appeal under Art. 136 of the Constitution."

    In State of Rajasthan v. Karam Chand Thapar, the Court held that a question of law which can be decided on the material on record of the case can be allowed to be raised at the stage of appeal by special leave under Article 136. In B.K. Bhandar Ltd. v. Municipal Committee, Dhamangaon, a new plea based on the Municipalities Act was raised for the first time in the statement of case and the Court allowed it to be raised as it was a question of considerable importance and might be raised in other similar suits which were said to be pending.

    In Noorulla Ghazanfarulla v. Municipal Board of Aligarh, the plea regarding the constitutionality of a legislation, even though it was not argued in the writ petition before the High Court, was allowed to be raised before the Supreme Court as declining such a plea could lead to another writ petition challenging the constitutionality of the legislation which was always open to the party. However, in this case since the question was not decided by the High Court, the matter was remanded back to the High Court.

    A plea as regards lack of jurisdiction can be raised for the first time before the Supreme Court. A plea that an application under Section 33-C (2) of the Industrial Disputes Act, 1947 was barred by limitation was allowed to be raised for the first time before the Supreme Court. The Court held that though the plea was not put forward before the Courts below, it would allow it to be raised as it was a pure question of law and could be decided on the basis of facts on record. Further, in this case, the party had filed an application seeking permission to raise the point of limitation and the Court held that the respondents were, therefore, aware that this point
    as to be raised by the appellant.

    However, there have been cases where the Supreme Court, has not permitted a question of law to be agitated for the first time before it. In Cantonment Board, Ambala v/s Pyare Lal, the question was raised for the first time that the Magistrate acting under Section 259 of the Cantonments persona designata and, therefore, his order was not revisable under Section 435/439 of the Code of Criminal Procedure. The Act, 1924, was a Court held:

    "..though the High Court may not have jurisdiction to interfere under Section 435/439 of the Code of Criminal Procedure, it could certainly interfere with the order of the Magistrate under Article 227 of the Constitution. Now if this point had been raised before the High Court it may very well be that the High Court might have considered the reference as if it was an application before it under Article 227 of the Constitution, in which case the High Court would have jurisdiction in the circumstances to interfere with the order of the Magistrate if it came to the conclusion that the Magistrate had no jurisdiction under Section 259 of the Act. In the circumstances, we are not prepared to permit the appellant to raise this point before us at this late stage."

    Similarly in a case, a plea that the jurisdiction of the civil court was barred by provisions of M.B. Land Revenue and Tenancy Act which was decided against the respondent by the first two Courts, and was given up before the High Court was not to be permitted to be raised in the Supreme Court.8 A plea abandoned by the appellant in the High Court cannot be opened before the Supreme Court.9 A question which requires fresh pleadings cannot be raised for the first time in the Supreme Court.

    In Ishwari Yatayat Cooperative Society v. State Transport Appellate Authority, it was held that a contention not raised in the High Court or before the Appellate Authority or in the special leave petition cannot be entertained during arguments. In Remington Rand of India v. Thiru R. Jabulingam, the appellant wanted to raise the plea of jurisdiction for the first time in the Supreme Court. The plea of jurisdiction had not been raised by the appellant before the Commissioner for Workmen's Compensation. The Supreme Court did not allow the same to be raised

    A mixed question of fact and law such as a plea that Rule 12 of the M.P.Government Servants (Temporary and Quasi-Permanent Service) Rules, 1960 was unconstitutional as it was framed without consulting the Public Service Commission or the High Court, was not allowed to be raised for the first time before the Supreme Court.

    The Court has held that where the appeal before the High Court was dismissed as not pressed. because the matter was covered by an earlier Division Bench judgment of the High Court, it was open to the appellant to raise the point before the Supreme Court.

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