Civil Procedure Code | Appellate Court Can't Create New Case For Parties & Frame Issues Without Following Order XLI : Supreme Court

Recently, the Supreme Court held that the Courts at the Appellate stage of civil suits cannot create a new case for the parties while framing such additional issues that were never raised in the pleadings of the parties.

“It is well-settled principle of law that the Court cannot create any new case at the appellate stage for either of the parties, and the appellate court is supposed to decide the issues involved in the suit based on the pleadings of the parties.”, the bench comprising Justice Bela M Trivedi and Justice Satish Chandra Sharma said.

The Court said that whenever the Appellate Courts create an additional issue then it is incumbent upon them to decide the said issues in contemplation with Order 41 of Code of Civil Procedure, 1908 (“CPC”).

"As per Order XLI Rule 25, the appellate court may, if necessary, frame issues and refer the same for trial to the court whose decree is appealed from, and direct such court to take additional evidence required. Further, as per Rule-27 Order XLI, the Appellate Court may allow evidence or document to be produced or witness examined, in the circumstances stated therein, after recording the reasons for such admission of evidence. However, the Appellate Court can not create a new case for the party, frame the issues and decide the issues without following the procedure contemplated under Order XLI of CPC," the Court explained.

Apart from the already subsisting substantial questions of law, the High Court in a second appeal had framed four additional substantial questions of law. However, none of the additional issues formulated by the High Court were raised before the trial court or the appellate court and none of the parties was given any opportunity to lead the evidence on the said issues.

Deploring such practice, the Court deemed it appropriate to set aside the impugned judgment and decree passed by the High Court in the Second Appeal and remand the same to the High Court for deciding the same afresh and in accordance with law.

“While deciding the Second Appeal afresh, the High Court may reconsider the substantial questions of law framed by it earlier and decide the same in accordance with law.”, the judgment authored by Justice Bela M Trivedi added.

Accordingly, the appeal was allowed.

Appearance:

For Appellant(s) Ms. Kavya Jhawar, Adv. Ms. Nandini Rai, Adv. Ms. Sneha Kalita, AOR

For Respondent(s) Mr. Azim H. Laskar, Adv. Mr. Bikas Kar Gupta, Adv. Ms. Anamika Pandey, Adv. Mr. Chandra Bhushan Prasad, AOR

Case Title: RAMA KT. BARMAN (DIED) THR. LRS. VERSUS MD. MAHIM ALI & ORS., Civil Appeal No.3500/2024

Citation : 2024 LiveLaw (SC) 637

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