Case of a Flying Elephant (Tips on arguing in SC)


An elephant had escaped into jungle from a circus with some flaps tied on either side. Two villagers saw it moving here and there in jungle on one moonlit night.

One villager said that it was a flying elephant with wings on both sides. Another villager disputed him.

Their dispute continued even when they reached village. Other villagers came and began to take sides.

Dispute grew very hot and finally, one villager said, “If any Judge will say that it was a flying elephant, I will give you half of my farm.”

The other villager took up the challenge and insisted that agreement be written down. The agreement was written down and signed by these two debating villagers.

Then one of them filed suit in court on the ground that since it was a flying elephant, half of the farm of other villager be decreed to him.

After recording evidence, the Judge gave verdict that it was a flying elephant and decreed half of farm of defendant in favour of plaintiff.

Aggrieved villager who had lost half of farm, lost first appeal and second appeal in High Court.

So he filed appeal in Supreme Court. His appeal came up for admission hearing before two judge bench.

At hearing, his counsel tried to argue that as per Darwin theory, there cannot be any flying elephants and he pleaded that judgements of courts below be set aside.

Senior Judge pointed out to him, “You have admitted the case of plaintiff in your written statement. You did not cross examined evidence of plaintiff. How can you get over the findings which are against you? And above all, you are, for the first time here, telling us about Darwin Theory.. What prevented you to argue this theory in courts below?”

At this time, advocate of caveator- opposite side began to nod vehemently as if to support senior judge.

The counsel for peitioner had no answer to any of the questions asked by the Senior Judge.

Senior Judge then turned to brother judge to seek his view. They discussed something and then Brother judge took charge of hearing.

He put a question to counsel of caveator, “Mr. Counsel, how can we allow people to enter into these types of betting and wagering agreements? Till yesterday people were betting on cricket scores…and now they have started betting on which way a judge will decide ! Can we allow these types of agreements? Please read Sec.23 of the Contract Act.”

The counsel resisted by saying that this point is never taken in courts below but then began to read Sec.23 which prohibited these types agreement.

“Show us the agreement?” asked Brother Judge.

It turned out that agreement was not filed in paper book.

Senior Judge came to rescue of counsel, “You take your time and file agreement along with your counter affidavit. And next time you also come prepared on Sec.23 and whether we can allow appeal on this ground alone.”

The Judge then issued notice returnable in four weeks and stayed judgements of courts below in the meantime.


Tips from the above imaginary case:

A) There can be more than one law hidden in any given transaction.

B) Some law points could have been missed in courts below.

C) You have to 1) Either overcome findings of court below or 2) to show some vital questions of law which, if accepted, can upturn the judgements of courts below.