Granting Leave To Urge Any Additional Ground In The Memorandum Of Appeal Does Not Amount To Accepting The Same On Merit: Orissa HC
The Orissa High Court observed that granting leave to urge any additional ground in the memorandum of appeal does not amount to accepting the same on merit.
The Court granted leave to the petitioner to raise additional grounds in his memorandum of appeal and directed the appellate Court to permit the petitioner to urge the additional grounds under Order VI Rule 17 of the CPC.
A Single Bench of Justice K.R. Mohapatra observed, “In view of the clear Provision of Rule 2 to Order XLI CPC, this Court feels that learned appellate Court should have granted leave to the Petitioner to raise additional grounds in his memorandum of appeal. Granting leave to urge any additional ground in the memorandum of appeal does not amount to accepting the same on merit. Merit of such ground, if permitted to be urged, can only be gone into at the time of hearing of the appeal.”
Advocate Susanta Kumar Dash appeared for the petitioner, while Advocate Vivekananda Jena represented the opposite party.
The petitioner had challenged the decision of the appellate court which rejected a petition filed by the petitioner under Order XLI Rule 3 read with Order VI Rule 17 and Section 151 of the CPC.
The petitioner argued that since the petition was filed in a hurry, some relevant grounds of facts and law could not be stated in the memorandum of appeal. Thus, before the hearing of the appeal, the petitioner filed the petition for amendment of the memorandum of appeal to incorporate some additional grounds. It was submitted that neither the grounds which sought to be incorporated would have changed the nature and character of the suit nor would the Opposite Party be prejudiced in any manner.
The High Court noted that the petition under Order XLI Rule 3 read with Order VI Rule 17 and Section 151 of the CPC was filed during the pendency of the appeal to incorporate certain additional grounds in the memorandum of appeal.
“There is no absolute bar under the statute to take any additional ground of objection at the time of hearing of the appeal. But, such ground(s) can be taken only with the leave of the Court,” the Court stated.
“On perusal of the impugned order, it appears that learned appellate Court has made some observations in respect of the merits of the grounds sought to be incorporated. While considering the petition under Order VI Rule 17 CPC as well as Order XLI Rule 2 CPC, learned appellate Court should not express any opinion on the merits of grounds sought to be raised at the tim e of hearing by the Appellant,” the Court remarked.
Consequently, the Court set aside the impugned order and directed the appellate Court to permit the petitioner to urge the additional grounds.
Accordingly, the High Court disposed of the petition.
Cause Title: Panchanana Jena v. Rekha Jatania
