Muhammad Abdul Hai and Another vs Sheo Bishal Rai

Mahmood, J.—This was an action for recovery of rent, and was dealt with by the Court of First Instance in a judgment dated the 16th February 1885, the effect of which was to decree the claim in part. From that decree the plaintiffs appealed to the Lower Appellate Court, and that Court, by an order dated the 4th September 1885, remanded the case u/s 566 for findings on no less than nine issues. The Court of First Instance, in an elaborate order of the 8th January 1886, recorded findings upon these issues, and re-submitted these to the Lower Appellate Court. To these findings no objection was taken by the present plaintiffs-appellants, but the defendant-respondent before me took objections, and the learned Judge of the Lower Appellate Court, in dealing with them, disallowed them for the reasons stated in his judgment, and upholding the findings of the Court of First Instance, dismissed the appeal on the 29th May 1886.

This appeal has been preferred, not by the defendants, whose objections to the findings of the first Court were disallowed by the Judge of the Lower Appellate Court, but by the plaintiffs, who never took any objections at all to the findings of the first Court upon remand. The grounds now urged are such as might have been taken as objections, u/s 567 of the Code, to the findings of the Court of First Instance upon remand. These objections never having been urged before the Lower Appellate Court, that Court has naturally not dealt with these points, taking it for granted that the present plaintiffs-appellants had no objections to urge.

Under these circumstances I do not think that, hearing this appeal as a second appeal, I can for the first time allow those objections to be taken here as grounds of second appeal.

The appeal is dismissed with costs.