Dhirendra Nath Hazari vs Aloke Kumar Panda And Ors. on 7 January, 1993
In support of his contention he has referred to a decision of this Court in Promode Kumar Pandit v. Mrityunjoy Mukherjee and Anr. wherein it has been held that a point which is not a pure question of law but depends on facts as well and which was not taken in the courts below, cannot be entertained in second appeal. There is substance in this contention which must be accepted. The point raised by Mr. Das Gupta as to waiver is not a pure question of law but is a mixed question of law and facts. There is neither any evidence nor any admission that the erstwhile landlord had full knowledge of the alleged sub-tenancy or that the sub-tenancy was created as early as in 1965. Specific defence case was that the defendant No. 2 himself was a direct tenant under the erstwhile landlord. No alternative case of waiver was taken nor this point was urged in the courts below. The point being not a pure question of law but depending on facts as well, cannot therefore be urged for the first time in second appeal.