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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