Skip to main content

A Court cannot make a new case, not made out by parties in their pleadings

High Court of Calcutta

Ganesh Chandra Paul v. Maya Paul and Ors.

MANU/WB/0216/2017

03.04.2017

Property

A Court cannot make a new case, not made out by parties in their pleadings

Instant revisional application under Article 227 of Constitution of India, at instance of pre-emptor in a proceeding for pre-emption under West Bengal Land Reforms Act, 1955 is against judgment and order passed by District Judge. By judgment, Appellate Court held that pre-emption case filed by Petitioner under Section 8 of Act was not maintainable for incorrect description of suit land and dismissed pre-emption case of Petitioner.

Supreme Court in case of Sheodhari Rai & Ors. v. Suraj Prasad Singh, and a Division Bench decision of this Court in case of Jugal Kishore Kundu & Ors. v. Narayan Chandra Kundu, observed that it is settled law that, a Court cannot make a new case, not made out by parties in their pleadings and, as such, in absence of any pleading or defence set up by opposite parties that, Petitioner in his application did not describe suit land correctly, Appellate Court below committed a patent error of law in dismissing Petitioner's pre-emption case under Section 8 of Act.

In present case, undisputedly neither in written statement filed before trial Judge, nor in Memorandum of Appeal filed before Appellate Court below, opposite parties set up any defence to claim of Petitioner in application under Section 8 of Act that, suit land has not been correctly described. Even from order passed by trial Judge, it is clear that neither any issue was framed, nor any argument was advanced on behalf of opposite parties with regard to maintainability of pre-emption application on ground of incorrect description of suit land. Further, from impugned order passed by Appellate Court below, it is clear that none of parties to appeal advanced any argument before appellate Court below disputing correctness of description of suit land.

Therefore, in view of settled principle of law, as held by Supreme Court in case of Sheodhari Rai and Division Bench decision in case of Jugal Kishore Kundu, Petitioner is justified in his contention that appellate Court below went wrong in law to dismiss pre-emption case filed by Petitioner under Section 8 of Act by making out a new case of wrong description of suit land, which was not case urged by opposite parties as their defence, either before trial Judge or in above appeal. Further, from a perusal of operative portion of impugned order, it is clear that appellate Court below first dismissed appeal filed by opposite parties and at same time set aside judgment and order passed by trial Judge. In any event, impugned order containing contradictory directions cannot be sustained. Impugned order is set aside.

Relevant

Sheodhari Rai and Ors. vs. Suraj Prasad Singh and Ors. MANU/SC/0058/1950
; Jugal Kishore Kundu (deceased by L.R.'s) and Ors. vs. Narayan Chandra Kundu and Anr. MANU/WB/0080/1982

Comments

Popular posts from this blog

MACT - Permanent disability - calculate - compensation - Supreme Court - Part 2

1) C. K. Subramonia Iyer vs. T. Kunhikuttan Nair - AIR 1970 SC 376
2) R. D. Hattangadi vs. Pest Control (India) Ltd. - 1995 (1) SCC 551
3) Baker vs. Willoughby - 1970 AC 467
4) Arvind Kumar Mishra v. New India Assurance Co.Ltd. - 2010(10) SCALE 298
5) Yadava Kumar v. D.M., National Insurance Co. Ltd. - 2010 (8) SCALE 567)



5.The heads under which compensation is awarded in personal injury cases are the following : Pecuniary damages (Special Damages)
(i)Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii)Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising :
(a)Loss of earning during the period of treatment;
(b)Loss of future earnings on account of permanent disability.
(iii)Future medical expenses.
Non-pecuniary damages (General Damages)
(iv)Damages for pain, suffering and trauma as a consequence of the injuries.
(v)Loss of amenities (and/or loss of prospects…

Delay - condon - limitation

The proof by sufficient cause is a condition precedent for exercise of the extraordinary restriction vested in the court. What counts is not the length of the delay but the sufficiency of the cause and shortness of the delay is one of the circumstances to be taken into account in using the discretion.

Supreme Court of India
State Of Nagaland vs Lipok Ao & Ors on 1 April, 2005
Author: A Pasayat
Bench: Arijit Pasayat, S.H. Kapadia
           CASE NO.:
Appeal (crl.)  484 of 2005

PETITIONER:
State of Nagaland

RESPONDENT:
Lipok AO & Ors.

DATE OF JUDGMENT: 01/04/2005

BENCH:
ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT:
J U D G M E N T (Arising out of S.L.P. (Crl.) 4612 of 2003 ARIJIT PASAYAT, J.

Leave granted.

The State of Nagaland questions correctness of the judgment rendered by a learned Single Judge of the Gauhati High Court, Kohima Bench refusing to condone the delay by rejecting the application filed under Section 5 of the Limitation Act, 1963 (in short the 'Limitation Act') and conseque…

Passport - DRT - power to impound - High Court

1) Satwant Singh Sawhney v. D.Ramarathnam. Asst. Passport Officer, 1967 (3) SCR 52
2) Menaka Gandhi v. Union of India, 1978 (1) SCC 248
3) Industrial Credit and Investment Corporation of India Ltd. v. Grapco Industries Ltd., (1994) 4 SCC 710
4) Suresh Nanda v. Central Bureau of Investigation, 2008 (3) SCC 674
5) Damji Valaji Shah & another Vs. L.I.C. of India & others [AIR 1966 SC 135]
6) Gobind Sugar Mills Ltd. Vs. State of Bihar & others [1999 (7) SCC 76]
7) Belsund Sugar Co. Ltd. Vs. State of Bihar and others [AIR 1999 SC 3125]
8) Sanjeev R.Apte v. I.F.C.I. Ltd., and others, 2008 (154) DLT 77
9) Smt.Annai Jayabharathi v. The Debt Recovery Tribunal & Anr., CDJ 2005 Ker HC 171
10) Allahabad Bank v. Radhakrishna Maity, AIR 1999 SC 3426
11) Ramalinga v. Radha, 2011 (4) CTC 481
12) Sinnaswami Chettiar v. Aligi Goundan and others, AIR 1924 Madras 893 (OVERRULED)
13) Nallagatti Goundan v. Ramana Gounda and others, AIR 1925 Madras 170
14) Income Tax Officer v. M.K.Mohammad…