hello,

the court decides what is pleaded as the substantial question of law. if you don't plead it, even then the court may in its discretion decide the question. but it is not bound to decide what is not pleaded. therefore, ask for an amendment in the pleadings, or the court may in its discretion answer the question if it thinks that it is important to decide the controversy.

regards

Supreme Court in the case namely Bachhaj Nahar vs. Nilima Mandal & Anr., (Civil Appeal Nos. 5798-5799 of 2008) decided on 23.09.2008 and reported as (2008) 17 SCC 491

No amount of evidence can be looked into, upon a plea which was never put forward in the pleadings. A question which did arise from the pleadings and which was not the subject matter of an issue, cannot be decided by the court.

A Court cannot make out a case not pleaded. The court should confine its decision to the question raised in pleadings. Nor can it grant a relief which is not claimed and which does not flow from the facts and the cause of action alleged in the plaint.

A factual issue cannot be raised or considered for the first time in a second appeal.

Yes, it is true that court of appeal can’t decide questions which were not there in the plain.

But, if there are situations which kept the facts hidden from the plaintiff due to which questions not put in the plaint then may the court decide in the appeal also.

There are many such which decisions which are clear on the point hat the question of law if not raised in the pleading can not be raised for the first time in second appeal. During first appeal though it can be raised by way of amendment.

I am referring the first decision on this issue- hitturi Subbanna vs Kudapa Subbanna & Others on 18 December, 1964

citations: 1965 AIR 1325, 1965 SCR (2) 661

Hello,

The following two judgement might be of your help:

Nilima Mandal & Anr., (Civil Appeal Nos. 5798-5799 of 2008) decided on 23.09.2008 and reported as (2008) 17 SCC 491

T. Muralidhar vs Pvr Murthy on 7 November, 2014, COURT OF DELHI AT NEW DELHI, RFA (OS) No.115/2014 & CM No.12344/2014

Regards

1. It is the well settled principle of law that which has not been mentioned in the plaint can not be pleaded.

2. However, the High Courts have the unlimited inherent power to decide on the matter.

3. Lower Courts can not decide on the matters which have not been mentioned in the plaint and/or have not be pleaded before the Court.

Supreme Court in the case namely Bachhaj Nahar vs. Nilima Mandal & Anr., (Civil Appeal Nos. 5798-5799 of 2008) decided on 23.09.2008 and reported as (2008) 17 SCC 491 dealt with the issue as to whether court can go beyond what is pleaded in pleadings for adjudication?

The excerpts of a judgment on the subject query is given below, you may go through the entire judgment whose reference is given below:

the law on the issue can be summarised to the effect that, issue of drawing adverse inference is required to be decided by the court taking into consideration the pleadings of the parties and by deciding whether any document/evidence, withheld, has any relevance at all or omission of its production would directly establish the case of the other side. The court cannot loose sight of the fact that burden of proof is on the party which makes a factual averment. The court has to consider further as to whether the other side could file interrogatories or apply for inspection and production of the documents etc. as is required under Order XI CPC. Conduct and diligence of the other party is also of paramount importance. Presumption or adverse inference for non-production of evidence is always optional and a relevant factor to be considered in the background of facts involved in the case. Existence of some other circumstances may justify non-production of such documents on some reasonable grounds. In case one party has asked the court to direct the other side to produce the document and other side failed to comply with the court’s order, the court may be justified in drawing the adverse inference. All the pros and cons must be examined before the adverse inference is drawn. Such presumption is permissible, if other larger evidence is shown to the contrary.

Supreme Court of India

Union Of India vs Ibrahim Uddin & Anr on 17 July, 2012

CIVIL APPEAL NO. 1374 of 2008

Dr. BS Chauhan J

In second appeal only law point is decided.

Facts are not going to be ever discussed.