Balwant Singh vs Baljinder Kaur & Ors on 6 March, 2009

RSA No.126 of 2008(O & M)                         1

 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

                                          RSA No.126 of 2008(O & M)
                                          Date of Decision:06.03.2009


Balwant Singh

                                                  ....appellant

                    Versus

Baljinder Kaur & Ors.

                                                  .....respondents



CORAM:          HON'BLE MR.JUSTICE RAKESH KUMAR GARG


Present:        Mr.Onkar Singh,Advocate
                for the appellant

                Mr.R.K.Singla, Advocate
                for the respondents

                    ****

RAKESH KUMAR GARG J.

This is defendant’s second appeal challenging the judgment

of the Lower Appellate Court whereby his appeal against the judgment and

decree dated 04.09.2006 passed by Civil Judge(Jr.Divn.)Phillaur,was

decreed.

Briefly stated the facts of the case are that respondent

Nos.1 & 2 filed a suit for recovery of arrears of maintenance and future

maintenance and for creating charge on the property fully detailed in the

headnote of the plaint. The suit was contested by the defendants/appellant

raising various preliminary objections. On merits, relationship of plaintiff

No.1 and defendant No.1 was admitted. It was also admitted that plaintiff

No.2 was residing with plaintiff No.1. However, she had withdrawn from

the society of defendant No.1 without any reasonable cause and was

residing separately and as such she was not entitled to any maintenance.
RSA No.126 of 2008(O & M) 2

Both the parties led evidence and the trial Court after

evaluating the evidence, decided all the issues in favour of the plaintiff-

respondents and decreed the suit.

Feeling aggrieved therefrom, defendant -appellant filed an

appeal in the Lower Appellate Court which was also dismissed by the it

observing that no arguments were raised by the appellant against the

findings given by the trial Court and, therefore, no interference was called

for in the judgment and decree passed by the trial Court and dismissed the

appeal.

Still not satisfied, the defendant has filed the present appeal

challenging the aforesaid judgment and decree of the Lower Appellate

Court.

I have heard learned counsel for the parties.

Learned counsel for the appellant has vehemently

contended that the judgment of the Lower Appellate Court is liable to be set

aside on the short ground that no reasons have been given while passing

the judgment. In support of his contention learned counsel for the

appellant has relied upon Smt.Swaran Lata Ghosh versus Harendra

Kumar Banerjee and another AIR 1969 Supreme Court 1167.

I have heard learned counsel for the appellant. There is no

dispute with the proposition of law as laid down by the Hon’ble Supreme

Court in Swaran Lata Ghosh’s case(Supra). However, the argument raised

by the learned counsel for the appellant is misconceived. It has been

specifically stated in the judgment of the Lower Appellate Court that no

argument was raised before the Court to challenge the findings given by

the trial Court. Even no such question has been raised by the appellant in

his grounds of appeal taken before this Court. It is also relevant to mention

at this stage that the Hon’ble Supreme Court of India in the case of

Bachhaj Nahar versus Nillima Mandal and anr. JT 2008(13)SC 255 has
RSA No.126 of 2008(O & M) 3

laid down as under:

” A case not specifically pleaded can be considered by the

court only where the pleadings in substance, though not in

specific terms, contains the necessary averments to make

out a particular case and the issues framed also generally

cover the question involved and the parties proceed on the

basis that such case was at issue and had led evidence

thereon. Without pleadings and issues, evidence cannot be

considered to make out a new case which is not pleaded.

Another aspect to be noticed, is that the court can consider

such a case not specifically pleaded, only when one of the

parties raises the same at the stage of arguments by

contending that the pleadings and issues are sufficient to

make out a particular case and that the parties proceeded

on that basis and had led evidence on that case. Where

neither party puts forth such a contention, the court cannot

obviously make out such a case not pleaded, suo motu.”

Since no argument was raised by the appellant before the

Lower Appellate Court, therefore it was not expected to give reasons.

No substantial question of law arises in this appeal.

Dismissed.

(RAKESH KUMAR GARG)
JUDGE
06.03.2009
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