Article 136: Pure Question Of Law Can Be Raised For The First Time In SLP: Supreme Court

The Supreme Court observed that it can entertain new grounds raised for the first time in an appeal under Article 136 of the Constitution if it involves a question of law which does not require adducing additional evidence. 

The principle in Order XLI Rule 22 of the Code of Civil Procedure furthers the cause of justice by providing the party other than the 'aggrieved party' to raise any adverse findings against them and this Court can draw colour from it and permit objections to findings, the bench of Justices DY Chandrachud and MR Shah observed.

In this case, the Trial Court dismissed a suit though it rejected the defendant's objection regarding lack of jurisdiction of the Trial Court. The High Court allowed the appeal by the plaintiff and reversed the judgment of the Trial Court. It was held that the auction conducted by Moradabad Development Authority in respect of the land in dispute is null and void. The question of jurisdiction was not considered by the High Court because he did not file a cross-objection against this finding of the Trial Court on the exercise of its jurisdiction. Saurav Jain, the defendant- auction purchaser who purchased the suit land from the MDA, approached the Apex court in appeal. He contended that the jurisdiction of the civil court is impliedly excluded under the provisions of the Urban Land (Ceiling and Regulation) Act 1976. Referring to Order XLI Rule 22 of the CPC, it was contended that a party, in whose favour the civil court has decreed a suit, can raise arguments against findings without having to file a cross- objection, in the appeal.

In the appeal, the bench discussed the history and scope of Order XLI Rule 22 CPC as well as the applicability of the principle therein to proceedings before the Supreme Court Court under Article 136 of the Constitution. The Court observed that a party in whose favour a court has decreed the suit can challenge an adverse finding before the appellate court without a cross objection.

Regarding the applicability of Order XLI Rule 22 CPC to an appeal under Article 136, the bench noted that in Ramanbhai Ashabhai Patel v. Dabhi Ajitkumar Fulsinji AIR 1965 SC 669. the constitution bench had held that the provisions of Order XLI Rule 22 of the CPC are not applicable to the Supreme Court. However, it was held that this deficiency must be supplemented by drawing from CPC, the bench said. The court thus observed:

"27.....The principle stipulated in Order XLI Rule 22 of CPC can be applied to petitions under Article 136 of the Constitution because of this Court's wide powers to do justice under Article 142 of the Constitution. Since the principle in Order XLI Rule 22 of the CPC furthers the cause of justice by providing the party other than the 'aggrieved party' to raise any adverse findings against them, this Court can draw colour from Order XLI Rule 22 CPC and permit objections to findings.", the bench observed.

The bench noted that, in this case, the ground of jurisdiction was only raised by the appellant before the Trial Court and not before the High Court.  However, referring to earlier judgments including Most Rev. P.M.A. Metropolitan v. Moran Mar Marthoma 1995 Supp (4) SCC 286, the bench said that the plea of a bar or lack of jurisdiction can be entertained at any stage, since an order or decree passed without jurisdiction is nonest in law. Thus, considering the case on merits, the bench held that ULCRA impliedly excludes the jurisdiction of the civil court on matters arising out of the ceiling proceeding. While disposing the appeal, the bench further observed:

"Though the appellant did not assail the finding of the Trial Court on the issue of jurisdiction before the High Court under Order XLI Rule 22 CPC either by filing a memorandum of cross-objection or otherwise, he is not precluded from raising the argument before this Court. This Court in view of its plenary jurisdiction under Article 136 of the Constitution read with its power to do complete justice under Article 142, can entertain new grounds raised for the first time if it involves a question of law which does not require adducing additional evidence, specifically one concerning jurisdiction of the court which goes to the root of the matter.", the court said while disposing the appeal.

Case: Saurav Jain Vs.  A. B. P. Design ; CA 4448 of 2021

Coram: Justices DY Chandrachud and MR Shah

Counsel: Adv Venkita Subramoniam T.R. for appellant, Sr. Adv  Manoj Swarup for respondent

Citation: LL 2021 SC 354

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