Sita Ram vs Bansidhar and Another

Mahmood, J.—This is a second appeal, and was admitted by my late Honorable colleague Mr. Justice Brodhurst by his order, dated the 10th January 1890. The appeal is of the nature covered by the jurisdiction of the single Judges of this Court under rule 1 of the rules of the Court, and it is now before me for disposal.

The appellant is represented by Mr. Ghulam. Mujtaba, holding the brief of Mr. Madho Prasad, and the respondent is represented by Mr. Jogindro Nath Chaudhri.

Upon the case being called for hearing, Mr. Ghulam Mujtaba has frankly admitted that both the grounds taken in the memorandum of appeal are unsustainable but the learned pleader has asked me to consider matters other than those contained in the grounds of appeal. In making this prayer the learned pleader has relied upon s. 542 of the CPC and the cases noted in the margin.

Mahabir Tiwari v. Jhangur Weekly notes 1887, p. 213. Dharam Das v. Nand Lal Singh Weekly notes 1889, p. 78.

On the strength of these authorities the learned pleader has set forth in his argument matters wholly foreign to the circumstances mentioned in the memorandum of appeal, and has contended that I am bound to decide the appeal upon some grounds other than those mentioned in the memorandum of appeal.

To this Mr. Jogindro Nath Chaudhri objects, on the ground that no sufficient cause has been shown why the appellant should be heard on matters foreign to the grounds of appeal, and of which the respondent had no notice.

I am of opinion that Mr. Jogindro Nath''s objection is right. Parties complaining of judgments and decrees must mention all the grounds of complaint in the memorandum of appeal, and the provisions of s. 542 of the CPC are not meant to relieve them of such necessity.

The Legislature, as I understand s. 542 of the Code of Civil Procedure, meant to confer upon Courts the power to decide appeals upon grounds other than those set forth by the appellant in the memorandum of appeal, and that power is to be exercised by the Court alone, and not to enable the appellant to take the respondent by surprise by urging matters of which he had no notice. Neither of the two rulings cited conflicts with this view. The only two grounds taken in the memorandum of appeal having been abandoned, I have no alternative but to dismiss the appeal, and I do so with costs.