Ramabai Govind vs Raghunath Vasudeo on 12 July, 1951
In our view, having regard to the above mentioned decisions in Shripad v. Shivram.
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1 - 8 of 8 (0.39 seconds)Muman Habib Nasir Khanji vs State Of Gujarat And Ors. on 6 September, 1969
But before we consider this question we must refer to one extreme contention advanced by Mr. S.N. Patel, learned advocate appearing on behalf of the Municipality; which if successful, would enable him to by-pass this question and to eliminate most of the difficulties which beset his other arguments. The contention was that the Tharav had no binding effect ab initio and there was, therefore, no question of its continuing in force after the merger of the Baroda State. Now to this contention a preliminary objection was raised by Mr. B.G. Thakore, learned advocate appearing on behalf of the Company. He submitted that this contention could not be allowed to be raised in these Letters Patent Appeals since it had not been taken before the learned Judge who heard the Second Appeals and for the matter of that it had not been taken even before the learned Assistant Judge or the learned trial Judge. He pointed out the limits of our jurisdiction hearing a Letters Patent Appeal and relied upon three decisions of the High Court of Bombay, namely, Shripad v. Shivram 36 Bom.
Mansukhlal Kapurchand Sanghavi And ... vs Shushilaben Durlabhji Virani And Anr. on 22 September, 1972
We do not think so. If we look at the decision in AIR 1965 Guj 293 it will be found that the Division Bench in that case did not examine this question on principle but merely followed there decision of the High Court of Bombay, namely, Shripad v. Shivram, AIR 1934 Bom 466, Sattappa Gurasattappa v. Md. Appeal Kazi, AIR 1936 Bom 227 and Ramabai v. Raghunath, AIR 1952 Bom 106. It is, therefore, necessary to considered what exactly these decision of the Bombay High Court laid down and what is the principle on which they proceed. It will be apparent on a close suturing of these decision that what these decision laid down was that an appellant in a Letter Patent Appeal is not entitled as a matter fright to urge a new contention which has not been raised by him before the Judge hearing the Second Appeal and not that the Court hearing a Letter Patent Appeal has not power in a fit case to grant him permission to do so. The distinction made in these decision of the Bombay High Court is between right of an appellant to be heard on a new contention and the power of the Court to grant permission to the appellant Tories a new contention. The former cannot prevail in a Letter Patent Appeal but the letter is not excluded.
Sattappa Gurusattappa Hukeri vs Mahomedsaheb Appalal Kazi on 15 August, 1935
In Shripad Shivram v. Shivram Bhikaji 36 Bom. L.R. 1052 : 152 Ind. Cas. 1031 : A.I.R. 1934 Bom. 466 : 7 R.B. 203, our own High Court has held that in an appeal under the Letters Patent the appellant is not entitled to be heard on joints which had not been raised before the Judge from whose judgment the appeal has been preferred.
Hussainbhai Mulla Fida Hussain vs Motilal Nathulal And Anr. on 24 July, 1962
7. A preliminary objection was raised on behalf of the respondents that this point was not raised by the plaintiff before Mudholkar, J. and therefore be was not entitled to urge this point in an appeal under Clause (15) of the Letters Patent. The learned counsel relied on Shripad v. Shivram, AIR 1934 Bom 466; Sattappa Gurusattappa v. 'Mahomedsaheb Appalal Kazi, AIR J936 Bom 227 and Kanhaiyalal v. Jerome D'Costa, 1955 Nag LJ 710 : ((S) AIR 1955 Nag 302) (FB). In AIR 1934 Bom 466, the question was one of adverse possession and it was not allowed to be raised in the Letters Patent appeal for several reasons. The point was not seriously considered by either of the parties in the original Court. No issue was asked for on that point. In the District Court, it was not pressed nor was it pressed in second appeal, and therefore the Judges said:
Kadi Municipality vs New Chhotalal Mills Company Ltd. on 27 July, 1964
The contention was that the Tharav had no binding effect ab initio and there was, therefore, no question of its continuing in force after the merger of the Baroda State. Now to this contention a preliminary objection was raised by Mr.B.G.Thakore, learned advocate appearing on behalf of the Company. He submitted that this contention could not be allowed to be raised in these Letters Patent Appeals since it had not been taken before the learned Judge who heard the Second Appeals and for the matter of that it had not been taken even before the learned Assistant Judge or the learned trial Judge. He pointed out the limits of our jurisdiction hearing a Letters Patent Appeal and relied on three decisions of the High Court of Bombay, namely, Shripad v. Shivram, 36 Bom L R 1052: (AIR 1934 Bom 466), Sattappa v. Mohamed Saheb, 38 Bom L R 221: (AIR 1936 Bom 227) and Ramabai Govind v. Raghunath, 53 Bom L R 883: (AIR 1952 Bom 106). It is clear from these decisions that a new point which has not been urged before the Judge hearing a Second Appeal cannot be allowed to be urged for the first time of the hearing of a Letters Patent Appeal. Now it cannot be disputed that this point which is sought to be raised by Mr.S.N.Patel was not alleged before the learned Judge at the time of the hearing of the Second Appeals nor was it taken before the learned Assistant Judge or the learned trial Judge. We cannot, therefore, permit this point to be raised for the first time of the hearing of this Letters Patent Appeals before us. But apart from this objection founded on the fact that these are Letters Patent Appeals, there is another cogent reason why we cannot permit the Municipality to raise this point. This point is now sought to be raised is in complete contradiction of the basis on which the case has been argued in all the three Courts. The case has throughout proceeded on the basis that the Tharav was a valid and binding Tharav up to the date of the merger and the only argument was that it cease to be in force on merger. It was never the case of the Municipality so far that the Tharav did not have any binding effect at all right from the commencements. The Municipality cannot, therefore, be allowed to take up a stand altogether inconsistent with the stand taken up by it up to the State. But even if we were to allow the Municipality to raise this point we do not think there is any substance in it. The only reason suggested on behalf of the Municipality in support of the contention that the Tharav had no binding effect ab-initio was that the B Class Municipalities Act did not make any provision for granting exemptions from payment of octroi duty and that the Baroda State had, therefore, no power to make the Tharav granting such exemption. The argument was that there being no power under the B Class Municipalities Act to grant exemption, the Tharav if valid, amounted to an amendment of the Act and this it was not open to the Baroda State to do by merely making a Tharav, for the only way in which an amendment to the Act could be carried out was by following the same traditional form of enactment and making what purported to be an express amendment of the Act. Now there is no substance in this contention. It must be remembered that the Ruler of the Baroda State was an absolute monarch and there is no prohibition on the power of an absolute monarch to act in such manner a he likes. There is no constitutional requirement which compels an absolute ruler to amend his enactment in any particular form. He being the fountain of all authority, his will is law howsoever expressed and whatever he says has binding effect, whether it be a legislative, executive or judicial act. If, therefore, the Ruler or his delegate the Diwan made the Tharav granting exemption from octroi duty payable under the Rules framed under the B Class Municipalities Act, the Tharav must have binding effect and it cannot be argued that if the Tharav was to have the effect of amending the B Class Municipalities Act, it should have been enacted in any particular form or should have been expressly made as an amendment to the Act. We are, therefore, of the view that there is no substance in this contention urged on behalf of the Municipality and it must be rejected.
Sattappa Gurusattappa Hukeri vs Mahomedsaheb Appalal Kazi on 15 August, 1935
In Shripad v. Shivram our own High Court has held that in an appeal under the Letters Patent the appellant is not entitled to be heard on points which had not been raised before the Judge from whose judgment the appeal has been preferred.
Ebrahim Sherkhan Pathan vs Hajratkhan Mohiddinkhan on 28 July, 1939
In two cases this Court has recently held that in an appeal under the Letters Patent the appellant is not entitled to be heard on points which had not been raised before the Judge from whose judgment the appeal has been preferred see Shripad v. Shivram and Sattappa v. Mahomedsaheb (1935) 38 Bom. L.R. 221 As has been pointed out by Broomfield J. in the latter case that practice is a salutary one and there is no reason to depart from it. That would serve as an additional ground for rejecting this appeal.
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