Shri Saurav Jain & Anr Vs A. B. P. Design & Anr (Supreme Court of India)
Whenever a new question of law is raised before the Apex Court, it is fiercely contested that there is a bar for raising a new question of law for the first time as the High Court has not dealt with the same.
The Apex Court has dealt with this complex issue in the case in Civil Appeal No. 4448 of 2021 Shri Saurav Jain & Anr. vs M/s A.B.P. Design & Anr. decided recently on August 5, 2021.
The facts of the case are not relevant except that a question of law, which goes to the root of the matter, was raised for the first time in the Apex Court. The respondents opposed the said plea but the Court dismissing their arguments held thus:
“29 With regard to new grounds being raised before this Court in a special leave petition under Article 136, we note that under Order 21 Rule 3(c) of the Supreme Court Rules 2013, SLPs are to be confined to the pleadings before the court whose order is challenged. However, with the leave of the Court, additional grounds can be urged at the time of the hearing.”
The Court referred to the case in Bharat Kala Bhandar (P) Ltd. v. Municipal Committee AIR 1966 SC 249 wherein the Apex Court dealt with a contention that had not been raised in the suit or in the grounds of appeal before the High Court, and was advanced before the Apex Court for the first time. The Court held that the scope of the appeal cannot be broadened at the instance of the parties but if a plea raises a question of law which is of considerable importance, the Court may entertain the same.
The Court also followed Vasant Kumar Radhakisan Vora v. Board of Trustees of the Port of Bombay (1991) 1 SCC 761 wherein it was held that pure questions of law which go to the root of the jurisdiction in a case can be raised for the first time in an appeal under Article 136 of the Constitution.
The Court drew favour from Chandrika Misir v. Bhaiya Lal (1973) 2 SCC 474 wherein the Court was hearing a SLP, the bench observed that although the civil court did not have jurisdiction to entertain the suit at all but this plea of bar on jurisdiction had not been raised in the courts below. Allowing the plea, the Court held thus:
“6. It is from this order that the present appeal has been filed by special leave. It is to be noticed that the suit had been filed in a civil court for possession and the Limitation Act will be the Act which will govern such a suit. It is not the case that U.P. Act 1 of 1951 authorises the filing of the suit in a civil court and prescribes a period of limitation for granting the relief of possession superseding the one prescribed by the Limitation Act. It was, therefore, perfectly arguable that if the suit is one properly entertainable by the civil court the period of limitation must be governed by the provisions of the Limitation Act and no other. In that case there would have been no alternative but to pass a decree for possession in favour of the plaintiffs. But the unfortunate part of the whole case is that the civil court had no jurisdiction at all to entertain the suit. It is true that such a contention with regard to the jurisdiction had not been raised by the defendant in the trial court but where the court is inherently lacking in jurisdiction the plea may be raised at any stage, and, it is conceded by Mr Yogeshwar Prasad, even in execution proceedings on the ground that the decree was a nullity. If one reads Sections 209 and 331 of the U.P. Act 1 of 1951 together one finds that a suit like the one before us has to be filed before a Special Court created under the Act within a period of limitation specially prescribed under the rules made under the Act and the jurisdiction of the ordinary civil court is absolutely barred.”
The Court substantiated its finding by referring to Most Rev. P.M.A. Metropolitan v. Moran Mar Marthoma 1995 Supp (4) SCC 286 wherein the Court entertained an objection as to maintainability of the suit under Section 9 of the CPC, despite the plea not having been raised before the courts below holding 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 non-est in law.
The Court clarified that this proposition has been consistently applied even in criminal proceedings under Article 136 of the Constitution. The Court referred to Masalti v. State of Uttar Pradesh AIR 1965 SC 202 wherein the confirmation of the death sentence of a number of accused persons by the High Court was under challenge before the Court.
“11…….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 a proper case, be permissible to the appellants to ask this Court to consider that point in an appeal under Article 136 of the Constitution; after all in criminal proceedings of this character where sentences of death are imposed on the appellants, it may not be appropriate to refuse to consider relevant and material pleas of fact and law only on the ground that they were not urged before the High Court. If it is shown that the pleas were actually urged before the High Court and had not been considered by it, then, of course, the party is entitled as a matter of right to obtain a decision on those pleas from this Court. But even otherwise no hard and fast rule can be laid down prohibiting such pleas being raised in appeals under Article 136.”
Thus the Court allowed the appellant to raise the ground of jurisdiction before it since allowing the ground to be raised would not require the submission of additional evidence since it is a pure question of law and strikes at the heart of the matter.
It is no longer ‘Res Integra’ that question of law, not raised earlier, can be raised for the first time before the Apex Court in SLP under Article 136 of the Constitution. On the same footing, a plea can be raised in the High Court for the first time although not raised in the District Courts earlier.
FULL TEXT OF THE SUPREME COURT JUDGMENT/ORDER
This appeal arises from a judgment dated 22 February 2018 of the High Court of Judicature at Allahabad in a first appeal1 under Section 96 of the Code of Civil Procedure 1908 (“CPC”). On 18 October 2011, the Additional District and Sessions Judge, Moradabad dismissed a suit 2 instituted by the first The High Court allowed the appeal by the first respondent and reversed the judgment of the Trial Court, holding that the auction conducted by Moradabad Development Authority (“MDA”) in respect of the land in dispute is null and void. The appellant is an auction purchaser who purchased the suit land from the MDA. MDA has been impleaded as the second respondent to these proceedings. Both the appellant and the second respondent have been restrained from interfering with the possession of the first respondent over the land.
Facts
2. The first respondent instituted a suit in the Court of the Civil Judge (Senior Division), Moradabad claiming to be a “transferable owner and cultivator” of lands comprising of Gata No. 200/1 admeasuring 0.1300 hectares equivalent to 1295.04 mts. situated in village Sonakpur, in the city and district of Moradabad. MDA was impleaded as the first defendant while the appellant was the second defendant to the suit. The averments in the plaint need to be adverted to at this stage. A person by the name of Zahid Hussain had title over vacant land admeasuring 6960.84 sq. mts in Moradabad. Ceiling case no. 437/5325 (titled State vs. Zahid Hussain) was instituted against him in the Court of the Competent Authority, Urban Land Ceiling, Moradabad in respect of his lands including the lands comprised in Gata No. 200 admeasuring 1295.04 sq. mts. By an order dated 16 March 1988, the land comprised in Gata No. 200, among other pieces of land, was declared as “surplus” by the Competent Authority under the Urban Land (Ceiling and Regulation) Act 1976 (“ULCRA”). Pursuant to the order of the Competent Authority, possession of the land in Gata No. 200 was allegedly handed over by the State of Uttar Pradesh to the MDA. Meanwhile, Zahid Hussain filed a revenue appeal3 before the District Judge, Moradabad against the order dated 16 March 1988. By an order dated 6 January 1993, the District Judge allowed the appeal and remanded the proceedings for re- consideration to the Competent Authority on the basis of an amended Master Plan.
3. It is the case of the plaintiff that Zahid Hussain was the erstwhile owner and occupier of lands comprised in Gata No. 200 admeasuring 0.32 acres. Out of the above holding, land admeasuring 0.05 acres (equivalent to 0.0200 hectares or 200 mt.) was acquired by MDA on 30 January 1986 under the provisions of the Land Acquisition Act, 1894. After the acquisition, Gata No. 200 was divided into two plots:
