Whether the appellate can take the plea of non-maintainability of the suit in the appeal if he has not taken said plea in the written statement?

In so far as the first point of determination is concerned, it

is an admitted position that no such objection to the institution of

the suit was ever taken by the Appellant in their, otherwise detailed, written statement. Order VIII, Rule 2 of the CPC, provides that the defendant must raise by his pleading, all matters which show the suit not to be maintainable. If objection to the non-maintainability of the suit were to be raised by the appellant their written statement in the first place or even by amending the written statement, the Respondent would have had an opportunity to meet with such objection. The mere fact that some questions were posed to Mr. C. D. Chitnis (PW.1) in the course of his cross examination, is not sufficient to conclude that the Respondent was not taken by surprise or was not likely to be taken by surprise. Order 8, Rule 2 of CPC, as noted earlier, inter alia, provides that the Defendant must raise by his pleading all matters which show the suit not to be maintained and all grounds of defence, if not raised, would be likely to take the opposite party by surprise, or would raise the issues of

fact, not arising out of the plaint. Ordinarily, therefore, the

Appellant ought not to be allowed to raise such objection at the

appellate stage. {Para 19}

 

IN THE HIGH COURT OF BOMBAY AT GOA

FIRST APPEAL NO. 123 OF 2013

The New India Assurance Co. Ltd. Vs Messrs Sesa Goa Ltd.,

Coram : M.S. Sonak &

Smt. M.S. Jawalkar, JJ.

Pronounced on : 16th January, 2020

J U G M E N T : (Per M.S. SONAK,

Leave a Reply

LexCliq

Looking To Acquire A Legitimate Home To Mount Your Likely?

Viking River Cruises serves complimentary beer, wine and soft drinks with lunch and healthy meal. Marina would come by our table every at lunch or dinner with $ 17 of white and red. We usually skip wine with lunch, but enjoyed the red evening with dinner. She always kept our glasses filled. Premium wines are […]

Read More
LexCliq

Marvel Realtors Marvel Izara Is A Well-known Tasks During Pune

England have actually a 100% record against a number of countries, mainly those faced in qualifiers, however their most useful record is against lowly San Marino, whom they have beaten seven times, scoring 42 goals and conceding one. The Dodgers’ left-hander allowed just three hits over innings, notching up a record 13 strikeouts-the most in […]

Read More
LexCliq

Eve Online – Isk Making Guide From An In Game Billionaire

You do not possess an inventory because they will stock overall inventories in order to. Your business therefore is actually inventory hassle free. You will save up a lot from rentals fees and such things. Also, packaging really products and finding the right shipping company takes a lot of time. With efficiency shipper, you won’t […]

Read More