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}




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,

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