HC Expounds: Expect a plea of maintainability, no new ground can be taken up by the appellant in an appeal, Read Judgment

Recently, the single judge bench of the Gauhati High Court held that except for a plea of maintainability, no new ground can be taken up by the appellant in an appeal.

Brief facts:

The factual matrix of the case is that the late Girish Ch. Borah was travelling as a pillion rider in a scooter and it was riding by Sri Prasanta Kr. Baruah. It is alleged that the scooter was riding in a rash and negligent manner. When a cow came in front of the scooter, the driver in order to save the cow, took some turns. As a result, the scooter lost control and the deceased was thrown away from the scooter. He sustained serious injuries. He was brought to Guwahati for medical treatment. On the next day of the accident, he succumbed to his injuries.

Thereafter, the claim petition was filed and the rider and the present appellant were made opposite party. The tribunal awarded the compensation of ₹12,18,504/-. Aggrieved by this, the present appeal is filed. The Appellant also filed an application under Order 41 Rule 27 of the Code of Civil Procedure praying for leave to allow it to adduce additional evidence in the Tribunal to prove that there was no coverage of Insurance Policy at the time of the accident.

Observations of the court:

The Hon’ble Court observed that an appeal is a remedial concept determined as an individual’s right to seek justice against an unjust decree/order by referring it to a Superior Court. Sections 96 to 99A; 107 to 108 & Order 41 of the Code of Civil Procedure, 1908, deal with appeals from original decrees known as First appeals. An appeal is a legal process in which a higher forum reviews the decision of a lower forum on both legal and factual grounds. The word appeal has nowhere been defined in the Code of Civil Procedure. The term appeal means the judicial examination by a higher court of the decision of an inferior court. An Appeal in legal parlance is held to mean the removal of a cause from an inferior or subordinate to superior tribunal or forum in order to test and scrutinize the corrections of impugned decisions.

The court relied upon the judgment titled Rama Kt. Barman (Died) Thr. Lrs v. Md. Mahim Ali.

The court furthermore observed that except a plea of maintainability, no new ground can be taken up by the appellant in an appeal. Also, the plea raised by the Appellant was never taken in the written statement.

Based on these considerations, the court was of the opinion that if the prayer of the appellant is allowed, then, there will be de novo trial and the same is not allowed by law.

The decision of the court:

With the above direction, the court dismissed the appeal.

Case Title: M/S Oriental Insurance Co. Ltd. v. Smti Taramai Borah And 4 Ors

Coram: Hon’ble Mr. Justice Parthivjyoti Saikia

Case No.: MACApp./252/2017

Advocates for the Petitioner: Mr. A Ahmed, Ms L Das, Mr. R C Paul

Advocates for the Respondent: Mr. H R A Choudhury, Ms. R Choudhury, Ms. N Begum