“I entirely agree. I am not particularly surprised at the result, In my experience, a point which is deliberately not taken until the eleventh hour and is then taken in the final Court, is generally a bad one. I had my suspicion that this was the nature of the point on this occasion, but I do not see on what principle Courts of Appeal should be compelled to listen to long arguments on bad points which have been deliberately kept in reserve for the final Court. For the very reason that such points, although there may be exceptions to the rule, are generally irrelevant, an Appellate Court ought to be compelled to listen to them for the first time. In my opinion, the real principle which has always been followed certainly in English Courts and in most High Courts in India is that the cases in which a point, whether it goes to the root of the cause of action or is merely a subsidiary point can be taken after all the evidence has been concluded and one Court of appeal has also determined the suit are very rare indeed, and in my opinion it should only be done by the permission of the Court hearing the appeal, i.e.,the Court hearing the appeal may take the point itself, or, if persuaded that for some good cause a vital point has been overlooked in the proceedings of the Court below, it may permit the point to be argued. It cannot, however, in my opinion, be compelled as a matter of right at the instance of the appellant to listen to a point so raised. In this particular case I am bound to say that I think the appellants’ Vakil ought to have known that the point was clear, and ought not to have raised it.”
