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TMI Blog2010 (8) TMI 1116X X X X Extracts X X X X X X X X Extracts X X X X ..... ad not been correctly valued for the purposes of Court Fees and proper and adequate court fees had not been affixed on the plaint. Fourthly, it had been articulated that the plaintiff had not obtained leave of the Court for filing a fresh action at the time when CS(OS) No. ,118/2005 was dismissed. Each of these four contentions have also been canvassed before us. 2. Mr. V.P. Singh, learned Senior Counsel for the Appellant, has additionally pressed Section 41(h) of the Specific Relief Act, 1963 ('SR Act' for short) to contend that the Suit itself is not maintainable as it seeks a mandatory and permanent injunction. In this connection, Mr. Arvind Nigam, learned Senior Counsel for the Respondent, submits that this argument had not been raised before the learned Single Judge. We have questioned the Appellant on the legal propriety of raising a ground in an Appeal against an interlocutory Order which ground had not been voiced before the learned Single Judge. In response thereto, Mr. Singh has sought to rely on the following observations made in Gurcharan Singh v. Kamla Singh (1976) 2 SCC 152: 11. Before we examine this quintessential aspect presented before us with comple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as in the case in hand is, since only an interim application has been considered and decided in the impugned Order. For the same reason, reliance on Ravulu Subba Rao v. CIT MANU/SC/0042/1956MANU/SC/0042/1956 : AIR 1956 SC 604 is of no advantage to the Appellant. We think it imperative that all legal points such as limitation, estoppel, res judiciata and maintainability in law of the suit etc. must necessarily be raised before and thereupon cogitated upon and decided by the Trial Court in the intermediary stages of the lis for a decision to be rendered with regard thereto. We think so for the simple reason that in the continuum of the case, corrective action should not be thwarted. We are in no manner of doubt that a party who invites the Court to bring legal proceedings to a conclusion earlier than what is envisaged by established procedure must present all the grounds before the Court of first instance. Such a party cannot be permitted to attack the order on fresh grounds at the appellate stage as that would work disadvantage to the other party. We are fortified in this view by the observations made in Umashanker Pandey v. B.K. Uppal 1991(2) SCC 408 where their Lordships in concl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of mandatory and permanent injunction so that a final and definitive answer may be received from the Court which would then have binding effect and force between the parties on particular and individual disputes. In Abdul Gafur v. State of Uttarakhand (2008) 10 SCC 97 their Lordships have again recognized the right of every person to initiate civil proceedings. It would be inopportune and unfair to non suit a party at the threshold as this argument and explanation is a plausible one at the present stage of the litigation. This is especially so since the Defendant, in fact, asserts that no concluded contract/Family Agreement had come into being. No party should be allowed to approbate and reprobate and this is clearly what the Defendant is attempting to achieve. On the one hand, it is affirmed on his behalf that the relief of Specific Performance is available to the plaintiff and in the very next breath it is asserted by him that no contract had evolved between the parties. There is no gainsaying that parties can take alternative pleas. In such circumstances, however, a suit cannot be defeated at the threshold by taking into consideration pleas that are essentially contradictory. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of a oral gift by way of 'pasupu kumkum' under Hindu Law, estoppels and acquiescence, to put forth a case of title, such complicated questions could properly be examined only in a title suit, that is a suit for declaration and consequential reliefs, and not in a suit for an injunction simpliciter . The parties must be given a fair opportunity to explain their rival stands in the Trial, especially keeping in mind that they are brothers. The close relation between the parties propels us to the opinion that the pronouncements in Kale, subsequently followed in Manish and Hari, should persuade the Court away from a technical and rigorous approach. 10. We shall now proceed to decide the next Objection raised by the Appellant/Defendant which is to the effect that the Suit is barred by limitation. We have already mentioned that the so called Rai Family Agreement is dated 19.3.2000. The Defendant/Appellant contends that the plaintiff would have gained knowledge of the Defendant's unwillingness to implement the Rai Family Agreement through E-mails exchanged between the parties going back to the year 2002, at which time the cause of action would have arisen. The subject Suit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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