Issues not mentioned in lower courts can’t be raised in appellate courts: Hyderabad HC
HYDERABAD: The High Court has made it clear that issues not mentioned during hearing by lower courts cannot be raised in appeals before the appellate court. Making this observation, Justice Anis dismissed the second appeal filed by Mir Aijaz Ali of the city challenging an order passed by the second additional chief judge, city civil court, Hyderabad dismissing his first appeal and confirming the decree passed by the first senior civil judge, city civil court, in a property case. Aggrieved, Ali preferred a second appeal before High Court.
As for the case, the respondents filed a suit for partition and separate possession of a property at Aghapura in city. The appellant/defendant filed a written statement before trial court that his father had executed a will in his favour and, as such, it was not a ‘matruka property’ and that the plaintiffs were not in its joint possession.
The trial court categorically held that the it was a ‘matruka property’ and that the defendant failed to establish that it was bequeathed to him under will. Ali filed an appeal before the second additional chief judge, city civil court. With the first appellate court upholding the trial court’s order, Ali filed a second appeal in the High Court.
The appellant’s counsel said both the lower courts had failed to give any finding with regard to the contention of the appellant’. The counsel for respondents/plaintiffs said that at no point of time in the trial court as well as in the first appellate court was any issue of court fee mentioned and the lower courts gave concurrent finding that the property was matruka.
Justice Anis found that the appellant had never raised the ‘deficit court fee’ in the trial court as well as in the first appellate court. As for payment of court fee and suits valuation in a partition suit, the allegations in the plaint alone are to be considered for determination of the court fee, the judge said.
While dismissing the second appeal, the judge made it clear that the appellant cannot now raise the plea that the case before lower courts was not maintainable due to payment of ‘insufficient court fee’.