Law: Civil Procedure Code (V of 1908)

Section: 2

(a) Civil Procedure Code (V of 1908)------   -----O. XLI, r. 2-New ground of objection can be allowed to be raised at hearing of appeal only if it has been raised and debated in trial Court.   Order XLI, Rule 2 vests in the Appellate Court a discretion to allow a party to urge any ground of objection not set forth in the memorandum of appeal, but this ground must only be the one which has been raised and debated in the trial Court, and not the one which has been completely left out from the very beginning. The rule of law is based on sound common sense. The decision of a case cannot be based on grounds outside the pleadings of the parties, and it is the case pleaded that has to be found by the Court.   To allow the questions of law or of fact to be raised in appeal for the first time would clearly prejudice the other party and thus defeat the ends of justice.   The objection to the maintainability of the suit or whether a contract is void or voidable must be raised in the written statement, and if it is not so raised, it cannot be allowed to be raised for the first time in appeal.   Kalyanpur Lime Works Limited v. State of Bihar and another A I R 1954 S C 165 ; Nazroo and another v. Lalman and another A I R 1955 Himachal Pradesh 44 and Sukh Ram v. Baldev Dass A I R 1957 Madhya Pradesh 138 ref.   Muhammad Ismail v. Chittar Singh I L R 4 All. 69 ; Chhandani Lal and another v. Shama Charan Lal and others A I R 1914 All. 2 ; Rai Singh and another v. Ram Singh and others A 1 R 1933 Lah. 738 ; Annappa Ramchandra Rai v. Krishna Narayan Prasad and others A I R 1936 Bom. 412 ; Krishnawa Yelagouda Patil and another v. Ramagouda Kadagouda Patil A I R 1941 Bom. 351 and Muhammad Idris Haider v. Muhammad Habibur Rehman A I R 1948 Pat. 97 considered.   (b) Precedents---   ---Application to particular case- Comparative importance must depend on circumstances of that case.   (c) Specific performance----   ---A agreeing to sell land to B-A, in violation of agreement, selling land to C having superior right of pre-emption-B suing A for speck performance impleading C as defendant-Whether Court should refuse relief (Quaere).  …