CHITTOORI SUBBANNA Vs. KUDAPPA SUBBANNA
LAWS(SC)-1964-12-15
SUPREME COURT OF INDIA (FROM: ANDHRA PRADESH)
Decided on
December 18,1964
CHITTOORI SUBBANNA
Appellant
VERSUS
KUDAPPA SUBBANNA
Respondents
Referred Judgements :-
YESHWANT DEORAO VS. WALCHAND RAMCHAND [REFERRED]M K RANGANATHAN VS. GOVERNMENT OF MADRAS [REFERRED]
ITTYAVIRA MATHAI VS. VARKEY VARKEY [REFERRED]
GYARSI BAI VS. DHANSUKH LAL [REFERRED]
GULABCHAND CHHOTALAL PARIKH VS. STATE OF GUJARAT [REFERRED]
Cited Judgements :-
VINJAMURI VENKATA NARASIMHACHARYULU VS. KADABHUSI LAKSHMI NARASIMHACHARYULU [LAWS(APH)-1965-9-53] [REFERRED TO]AMBALAL SARABHAI ENTERPRISES LIMITED VS. RAJEEV DAGA [LAWS(CAL)-2022-1-50] [REFERRED TO]
M.S. FRANK VS. DELHI UNIVERSITY AND ORS. [LAWS(DLH)-2015-7-313] [REFERRED TO]
SUBRAMANIYAN VS. LAKSHMI AMMA [LAWS(KER)-1971-6-23] [REFERRED TO]
KANDASWAMY KOUNDAR VS. THIRUMURTHY GOUNDAR AND ANR. [LAWS(MAD)-1977-12-33] [REFERRED]
EMKAY MEDICARE SERVICES THROUGH VS. THE PRESIDENT, RAJASTHAN MEDICARE RELIEF SOCIETY [LAWS(RAJ)-2017-6-4] [REFERRED TO]
K. LUBNA VS. BEEVI [LAWS(SC)-2020-1-26] [REFERRED TO]
SAWALI HOME MAKERS PVT. LTD. AND ORS. VS. SMITA SHIVAJIRAO KAWALE [LAWS(NCD)-2015-3-185] [REFERRED TO]
RUKSHANA SULEMAN CHAMADIA VS. NARENDRA RAMESH SHARMA [LAWS(BOM)-2009-9-83] [REFERRED TO]
VISHNU MARUTI JADHAV VS. KAMALABAI SADASHIV RAJAWADE [LAWS(BOM)-2018-10-246] [REFERRED TO]
ASHISH ESTATES AND PROPERTIES PVT. LTD. VS. COMMISSIONER OF INCOME TAX [LAWS(BOM)-2018-6-266] [REFERRED TO]
BANS RAJ SINGH VS. KRISHNA CHANDRA [LAWS(ALL)-1981-2-25] [REFERRED TO]
UNIVERSITY OF RAJASTHAN JAIPUR VS. MOHAN MELWANI [LAWS(RAJ)-1977-11-2] [REFERRED TO]
PREET SINGH & SADA RAM VS. CENTRAL CO-OPERATIVE BANK LTD , ROHTAK [LAWS(P&H)-1976-12-27] [REFERRED]
NEELAKAHTAPURAM JAYARAM VS. N GANGADHAR [LAWS(KAR)-2010-10-32] [REFERRED TO]
PHILOMINA JOSE VS. FEDERAL BANK LTD [LAWS(SC)-2006-2-56] [REFERRED TO]
GOPAL MEHER VS. DALA BARIHA [LAWS(ORI)-1982-10-4] [REFERRED TO]
S GUHAN VS. RUKMINI DEVI [LAWS(MAD)-1986-11-1] [REFERRED TO]
ROYAL WESTERN INDIA TURF CLUB LTD VS. EMPLOYEES STATE INSURANCE CORPORATION [LAWS(BOM)-2005-10-181] [REFERRED TO]
HEMANT MADHUKAR PATIL VS. SHAKUNTALA ARVIND BRAMHABHATT [LAWS(BOM)-2002-1-95] [REFERRED TO]
INDIA TOURISM DEVELOPMENT CORPORATION VS. ANIL KUMAR KHANNA AND ORS. [LAWS(DLH)-2016-4-56] [REFERRED TO]
CENTRAL BANK OF INDIA VS. ANIL PURANMAL BANSAL AND ORS. [LAWS(BOM)-2015-3-286] [REFERRED TO]
NONGMAITHEM ANGAHAL SINGH VS. SALAM BIRA ALIAS KORA SINGH [LAWS(GAU)-2006-11-23] [REFERRED TO]
RAJENDRA SINGH VS. DIRECTOR OF EDUCATION AND ORS. [LAWS(DLH)-2015-10-279] [REFERRED TO]
M. KESAVA GOUNDER VS. D. C. RAJAN [LAWS(MAD)-1974-6-19] [REFERRED TO.]
PANDURANG RAMJI DOIPHODE VS. DHONDIRAM RAMJI DOIPHODE [LAWS(BOM)-1977-11-66] [REFERRED TO]
ZUARI INDUSTRIES LIMITED (NOT KNOWN AS ZUARI GLOBAL LTD.) VS. ROQUE GLENITO FURTADO [LAWS(BOM)-2018-10-282] [REFERRED TO]
ANIL KUMAR KHANNA AND ORS. VS. THE INDIAN TOURISM DEVELOPMENT CORPORATION LTD. [LAWS(DLH)-2015-7-341] [REFERRED TO]
SK ISSAC VS. JALIKHA BIBI [LAWS(ORI)-2014-11-43] [REFERRED TO]
MOSA RAJAYYAN VS. JACOB HARIS [LAWS(KER)-1981-1-17] [REFERRED TO]
STATE OF KERALA VS. MYTHEEN PILLAI MUHAMMED KANNU [LAWS(KER)-1996-3-11] [REFERRED TO]
KARAN SINGH VS. RACHHPAL SINGH [LAWS(P&H)-2001-8-200] [REFERRED TO]
GOKUL CHANDRA VS. ATLAS AND UNION JUTE PRESS CO LTD [LAWS(CAL)-1986-3-32] [REFERRED TO]
V V NARASIMHACHARYULU VS. L NARAIIMHACHARYULU [LAWS(APH)-1965-9-2] [REFERRED]
UNION OF INDIA VS. BAURIA COTTON MILLS AND CO LTD [LAWS(CAL)-1972-2-18] [REFERRED TO]
STATE OF PUNJAB VS. MALERKOTLA POWER SUPPLY CO , MALERKOTLA, ETC [LAWS(P&H)-1973-11-66] [REFERRED]
LEGAL HEIRS OF SANJOY GOGOI AND ORS. VS. MADHAB CH. DAS [LAWS(GAU)-2015-3-111] [REFERRED TO]
M.J. EXPORTERS PVT. LTD. VS. UNION OF INDIA (UOI) [LAWS(SC)-2015-10-123] [REFERRED TO]
LAISRAM CHAOBA SINGH VS. POTSANGBAM BIHARI SINGH [LAWS(MANIP)-2013-2-30] [REFERRED TO]
K.CHANDRA REDDY VS. K.MUTYAM REDDY [LAWS(TLNG)-2023-6-59] [REFERRED TO]
GREATER COCHIN DEVELOPMENT AUTHORITY VS. P.K.ASHOKAN [LAWS(KER)-2020-12-460] [REFERRED TO]
SADABAI MANIKCHAND BORA VS. NIVRUTTI VITHOBA TAKALE [LAWS(BOM)-1978-3-4] [REFERRED TO]
R K SIHNDE VS. SHEKOBA AUTO PVT LTD [LAWS(BOM)-2007-11-20] [REFERRED TO]
OM PRAKASH VS. MST. RAM SRI AND ANOTHER [LAWS(ALL)-1978-12-74] [REFERRED TO]
INDIRA SRA CO OPERATIVE HOUSING SOCIETY VS. SHIVKRIPA BUILDERS AND DEVELOPERS [LAWS(BOM)-2011-8-70] [REFERRED TO]
SINGONG KAMEI PAOKINGEI VS. M.K. GUIKHENANG [LAWS(GAU)-2012-1-120] [REFERRED TO]
GOKAVARAPU RAMALINGAM VS. KODUR ESTATE AND INVESTMENTS [LAWS(APH)-2000-11-50] [REFERRED TO]
JAYANTI MUKHERJEE VS. HINDUSTHAN FERTILIZER CORPORATION LIMITED [LAWS(CAL)-2000-4-18] [REFERRED TO]
BATA INDIA LIMITED VS. BINDIYA CO-OPERATIVE HOUSING SOCIETY LIMITED [LAWS(BOM)-2024-1-62] [REFERRED TO]
VELICHETI AUDINARAYANA VS. UNION OF INDIA [LAWS(APH)-2001-8-109] [REFERRED TO]
DELHI TRANSPORT CORPORATION INDRAPRASTHA ESTATE NEW DELHI VS. PRESIDING OFFICER INDUSTRIAL TRIBUNAL CONSTITUTED [LAWS(DLH)-2004-11-78] [REFERRED TO]
TAPAN KUMAR CHANDA VS. GOBINDA KUMAR BHAKAT [LAWS(CAL)-2023-2-69] [REFERRED TO]
NARAYAN MISHRA VS. CHAMPA DIBYA [LAWS(ORI)-1985-9-19] [REFERRED TO]
RENGASAMI ANGURAR VS. NACHARAMMAL [LAWS(MAD)-1996-2-74] [REFERRED TO]
PATURU VENKATA SESHAIAH,(DIED) VS. PATURU KONDAIAH DIED [LAWS(APH)-2024-11-8] [REFERRED TO]
PURUSHOTTAM VS. NAG VASTRA BHANDAR [LAWS(BOM)-1978-6-16] [REFERRED TO]
JAGATSING PYARASING VS. MAHANT P KRISHNANANDGIRI GOSWAMY [LAWS(BOM)-1980-3-39] [REFERRED TO]
NEW INDIA ASSURANCE CO. LTD. DIVISIONAL OFFICE 112700, COOPERATIVE INSURANCE BUILDING, ABOVE KASHMIRI ART EMPORIUM, 4TH FLOOR ,SIR P.M. ROAD, FORT MUMBAI MAHARASHTRA VS. M/S. KASSA FINVEST PVT. LTD. R/O AT H [LAWS(NCD)-2016-5-74] [REFERRED TO]
AHEIBAM ROMEL SINGH VS. STATE OF MANIPUR [LAWS(MANIP)-2021-12-1] [REFERRED TO]
LAISRAM CHAOBA SINGH VS. POTSANGBAM BIHARI SINGH [LAWS(GAU)-2013-2-75] [REFERRED TO]
AL AHALI BUSINESS TRADE LINK (P) LTD. VS. STATE OF KERALA [LAWS(KER)-2014-3-32] [REFERRED TO]
K LAKSHMAMMA VS. T M RANGAPPA [LAWS(KAR)-2003-8-66] [REFERRED TO]
ALLAHABAD BANK VS. KRISHAN CHANDER RAMESH CHANDER AND BORS [LAWS(DLH)-2011-1-124] [REFERRED TO]
UNION OF INDIA VS. ASHOK KUMAR AGARWALLA [LAWS(CAL)-2003-12-46] [REFERRED TO]
MOOTHEDATH G. JAIPALAN & ANR. VS. SANJIT K. ROY & ORS. [LAWS(CAL)-1996-12-25] [REFERRED TO]
MRITYUNJOY MUKHERJEE VS. KRISHNA PRASAD MUKHERJEE [LAWS(CAL)-2011-6-50] [REFERRED TO]
UNION OF INDIA VS. BAURIA COTTON MILLS CO LTD [LAWS(CAL)-1972-6-4] [REFERRED TO]
DEVURI APPALA RAJU VS. KOLLI RAMAYAMMA [LAWS(APH)-1982-9-16] [REFERRED TO]
STATE OF U.P. THRU PRIN. SECY. HOME (PRISONS)GOVT. OF UP AND OTHERS VS. SHAILENDRA KUMAR MAITREYA AND ANOTHER [LAWS(ALL)-2018-9-120] [REFERRED TO]
RAM BABU SINGH VS. STATE OF U P & OTHERS [LAWS(ALL)-2016-8-215] [REFERRED]
UTKAL AUTO, CUTTACK VS. STATE OF ORISSA [LAWS(ORI)-2023-9-55] [REFERRED TO]
VIKESH SHARMA VS. SHIVANI [LAWS(UTN)-2010-4-5] [REFERRED TO]
PUNJAB URBAN PLANNING AND DEVELOPMENT AUTHORITY VS. BHIM SINGH [LAWS(UTRCDRC)-2005-3-10] [REFERRED TO]
JUDGEMENT
RAGHUBAR DAYAL, J.(on behalf of himself and with him SIKRI, J.); -
(1.)THE following Judgments of the court wen' delivered by
(2.)THIS appeal, presented on a certificate granted by the High court of Andhra Pradesh, arises out of execution proceedings in execution of a decree dated 7/03/1938. Kudapa Subbanna, plaintiff No. 2 and respondent No. 1 here, was held entitled to the properties mentioned in Schedules A and C and to 1/24ths share in the properties mentioned in Schedule B attached to the plaint. The defendants in possession of the properties were directed to deliver possession to the decree-holder. The properties in Schedule B were first to be divided in accordance with the shares specified in para 9 of the plaint and the decreeholder was to be allowed the share to which the first plaintiff was shown to be entitled. The trial court was directed to make an enquiry into the mesne profits from the date of the institution of the suit and pass a final decree for payment of the amount that be found due up to the date of delivery of possession to the second plaintiff. Possession over the properties in Schedules A and C was delivered to the decree-holder on February 17, 18 and 20, 1943. On 23/06/1945, the decree-holder filed I.A 558 of 1949 to revive and continue the earlier I.A. 429 of 1940 which had been presented for the ascertainment of future profits and was struck off on 25/09/1944. On 28/07/1948, the Subordinate Judge decreed the mesne profits and interest thereon for the period from 1926-27 to 1942-43 with respect to the A and C schedule properties. The amount decreed was Rs. 17,883-8-3 including Rs. 10,790.00 for mesne profits. He also decreed mesne profits with respect to the B-schedule properties upto 1946. They are not in dispute now.
On 22/04/1949, Chitturi Subbanna, 1st defendant, appealed to the High court. The decree-holder filed crossobjections and claimed Rs. 19,000.00 more stating that the amount of mesne profits actually due to him would be about Rs. 45,000.00 but he confined his claim to Rs. 19,000.00 only.
On 13/09/1958, the High court dismissed the appeal, but allowed the cross-objection, the result of which was that the amount of mesne profits decreed by the Subordinate Judge with respect to the A and C schedule properties was increased very substantially. The amount decreed for mesne profits was raised to Rs. 17,242-12-0 and, consequently, the amount of interest also increased. Chitturi Subbanna then obtained leave from the High court to appeal to this court as the decree of the High court was one of variance and the value of the subject matter in dispute was over Rs. 10,000.00.
(3.)CHITTURI Subbanna, appellant, applied to the High court for permission to raise an additional ground of appeal to the effect that the trial court was not entitled to grant mesne profits for more than 3 years from the date of the decree of the High court. The High court disallowed that prayer for the reasons that he had not taken such a ground in the memorandum of appeal and had, on the other hand, conceded before the Commissioner and the trial court that accounts could be taken upto 1943 in respect of A and C schedule properties, that he had elected to have the profits determined by the trial court upto the date of delivery of possession and that if he had taken the objection earlier, it would have been open to the second plaintiff-respondent to file a suit for the recovery of mesne profits beyond the three years upto the date of deliG very of possession. It is urged before us for the appellant that the High court was in error in not allowing the appellant to have raised the objection based on the provisions of O .20, r. 12, C.P.C. We agree with this contention. The question sought to be raised was a pure question of law and was not dependent on the determination of any question of fact. The first appellate court ought to have allowed it. Such pure questions of law are allowed for the first time at later stages too.
The appellant could not have claimed-and did not claim a right to urge the new point which had not been taken in the grounds of appeal. He made a separate application for permission to take up that point. The procedure followed was in full conformity with what had been suggested in Wilson v. United Counties Bank, Ltd. (1) to the effect : 'If in exceptional cases parties desire to add new grounds to those of which they have given notice, it will usually be convenient, by a substantive application, to apply to the indulgence of the court which is to hear the appeal.'
(2.)THIS appeal, presented on a certificate granted by the High court of Andhra Pradesh, arises out of execution proceedings in execution of a decree dated 7/03/1938. Kudapa Subbanna, plaintiff No. 2 and respondent No. 1 here, was held entitled to the properties mentioned in Schedules A and C and to 1/24ths share in the properties mentioned in Schedule B attached to the plaint. The defendants in possession of the properties were directed to deliver possession to the decree-holder. The properties in Schedule B were first to be divided in accordance with the shares specified in para 9 of the plaint and the decreeholder was to be allowed the share to which the first plaintiff was shown to be entitled. The trial court was directed to make an enquiry into the mesne profits from the date of the institution of the suit and pass a final decree for payment of the amount that be found due up to the date of delivery of possession to the second plaintiff. Possession over the properties in Schedules A and C was delivered to the decree-holder on February 17, 18 and 20, 1943. On 23/06/1945, the decree-holder filed I.A 558 of 1949 to revive and continue the earlier I.A. 429 of 1940 which had been presented for the ascertainment of future profits and was struck off on 25/09/1944. On 28/07/1948, the Subordinate Judge decreed the mesne profits and interest thereon for the period from 1926-27 to 1942-43 with respect to the A and C schedule properties. The amount decreed was Rs. 17,883-8-3 including Rs. 10,790.00 for mesne profits. He also decreed mesne profits with respect to the B-schedule properties upto 1946. They are not in dispute now.
On 22/04/1949, Chitturi Subbanna, 1st defendant, appealed to the High court. The decree-holder filed crossobjections and claimed Rs. 19,000.00 more stating that the amount of mesne profits actually due to him would be about Rs. 45,000.00 but he confined his claim to Rs. 19,000.00 only.
On 13/09/1958, the High court dismissed the appeal, but allowed the cross-objection, the result of which was that the amount of mesne profits decreed by the Subordinate Judge with respect to the A and C schedule properties was increased very substantially. The amount decreed for mesne profits was raised to Rs. 17,242-12-0 and, consequently, the amount of interest also increased. Chitturi Subbanna then obtained leave from the High court to appeal to this court as the decree of the High court was one of variance and the value of the subject matter in dispute was over Rs. 10,000.00.
(3.)CHITTURI Subbanna, appellant, applied to the High court for permission to raise an additional ground of appeal to the effect that the trial court was not entitled to grant mesne profits for more than 3 years from the date of the decree of the High court. The High court disallowed that prayer for the reasons that he had not taken such a ground in the memorandum of appeal and had, on the other hand, conceded before the Commissioner and the trial court that accounts could be taken upto 1943 in respect of A and C schedule properties, that he had elected to have the profits determined by the trial court upto the date of delivery of possession and that if he had taken the objection earlier, it would have been open to the second plaintiff-respondent to file a suit for the recovery of mesne profits beyond the three years upto the date of deliG very of possession. It is urged before us for the appellant that the High court was in error in not allowing the appellant to have raised the objection based on the provisions of O .20, r. 12, C.P.C. We agree with this contention. The question sought to be raised was a pure question of law and was not dependent on the determination of any question of fact. The first appellate court ought to have allowed it. Such pure questions of law are allowed for the first time at later stages too.
The appellant could not have claimed-and did not claim a right to urge the new point which had not been taken in the grounds of appeal. He made a separate application for permission to take up that point. The procedure followed was in full conformity with what had been suggested in Wilson v. United Counties Bank, Ltd. (1) to the effect : 'If in exceptional cases parties desire to add new grounds to those of which they have given notice, it will usually be convenient, by a substantive application, to apply to the indulgence of the court which is to hear the appeal.'
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