Annamalai Vs. Vasanthi - However, we clarify that any failure or omission on the part of the trial court to frame an issue on maintainability of a suit touching jurisdictional fact by itself cannot trim the powers of the higher court to examine whether the jurisdictional fact did exist for grant of relief as claimed, provided no new facts were required to be pleaded and no new evidence led.”

 Imp. Ruling; Maintainability of suit & Fresh Plea in Appeal

Index; 

1. SCI (2025.10.29) in Annamalai Vs. Vasanthi, [2025 INSC 1267, Civil Appeal @ Arising out of SLP (C) No. 26848-26849/2018] 

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SCI (2025.10.29) in Annamalai Vs. Vasanthi, [2025 INSC 1267, Civil Appeal @ Arising out of SLP (C) No. 26848-26849/2018] held that;

# 29. In A. Kanthamani (supra) [2017 (4) SCC 654], the decision in I.S. Sikandar (supra) was considered, and it was held:

• “30.3. Third, it is a well settled principle of law that the plea regarding the maintainability of suit is required to be raised in the first instance in the pleading (written statement) then only such plea can be adjudicated by the trial court on its merits as a preliminary issue under Order 14 Rule 2 CPC. Once the finding is rendered on the plea, the same can be examined by the first or/ and second appellate court. It is only in appropriate cases, where the court prima facie finds by mere perusal of plaint allegations that the suit is barred by any express provision of law or is not legally maintainable due to any legal provision; a judicial notice can be taken to avoid abuse of  judicial process in prosecuting such suit. Such is, however, not the case here.

• 30.4. Fourth, the decision relied on by the learned counsel for the appellant in I.S. Sikandar turns on the facts involved therein and is thus distinguishable.”

# 30. In R. Kandasamy (since dead) and others v. T.R.K. Sarawathy and another [Civil Appeal No. 3015. 3016 of 2013], this Court considered both I.S. Sikandar (supra) and A. Kanthamani (supra), and clarified the law by observing as under:

• “47. However, we clarify that any failure or omission on the part of the trial court to frame an issue on maintainability of a suit touching jurisdictional fact by itself cannot trim the powers of the higher court to examine whether the jurisdictional fact did exist for grant of relief as claimed, provided no new facts were required to be pleaded and no new evidence led.”

# 31. From the aforesaid decisions what is clear is that though a plea regarding maintainability of the suit, even if not raised in written statement, may be raised in appeal, particularly when no new facts or evidence is required to address the same, the issue  whether a declaratory relief is essential or not would have to be addressed on the facts of each case.

Ref. 

Ardeshir H. Mama v. Flora Sassoon, AIR 1928 PC 208 = 1928 SCC OnLine PC 43; followed in A. Kanthamani v. Nasreen Ahmed, (2017) 4 SCC 654

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