HANMANTRAM SURAJMAL MARWADI Vs. SHANKARLAL ABAJI MARWADI

JUDGEMENT

(1.) THE plaintiff sued to recover possession with arrears of rent of the suit property which consisted of houses. THE defendant alleged that the property had been mortgaged by him to the plaintiff. He relied upon Exhibit 24 as evidence of the mortgage transaction. He did not plead that the notice given to him by the plaintiff was insufficient. THE Judge in the trial Court passed a decree in favour of the plaintiff holding that the defendant, not being an agriculturist, was disentitled from contending that the transaction Exhibit 24 was really a, mortgage and not a sale with the condition of repurchase within the period of two years.

(2.) IN appeal the defendant did not contest this finding, but confined himself to the question of notice and the question of damages. The Judge considered that Rule 2 of Order VIII applied to the case, and that as the appellant had not taken objection to the sufficiency of notice in the plaadings, it could not be raised later on. Rule 2 of Order VIII was a new rule enacted by the code of 1908, and he thought that the earlier decisions to the effect that questions may be raised in appeal for the first time, might have to be reconsidered in the light of that rule. Considering the circumstances of this case, we think that the Judge was right in holding that the point of sufficiency of notice could not be raised, and certainly it is undesirable that a party, when he has omitted to raise a question depending upon evidence for its determination in the pleadings and has failed on the points which he has raised, should be allowed in first appeal to entirely alter his case according to the circumstances and rely upon a fresh ground for the purpose of defeating the plaintiff's claim, The appeal is dismissed with costs.