Apex Law Journal
Apex Law Journal
An online law journal reporting latest and important judgments of Hon'ble Supreme Court of India.                                                                                                                         Click here to get free legal updates via email                                                                                                                          Click here to download forms (Address Form, List Of Documents and Memorandum Of Appearance)
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Editor

Neha Goel, Advocate

Advisory Board

S.C. Khunger, Advocate

Rohit Bansal, Advocate

Varinder Singh Kanwar, Advocate

Hittan Nehra, Advocate

Judgments on Civil Procedure Code, 1908

Tuesday, October 01, 2013
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 100 — Second Appeal — Substantial question of law — Whether a particular question is a substantial question of law or not, depends on the facts and circumstances of each case — Santosh Hazari Vs. Purushottam Tiwari 2001 (3) SCC 179 relied.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 100 — Second Appeal — Construction of a document of title or of a document which is the foundation of the rights of parties, necessarily raises a question of law — Chunilal Mehta Vs. Century Spinning and Manufacturing Company AIR 1962 SC 1314 relied.

 
Monday, January 21, 2013
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 8, Rules 3, 4 and 5 — Held, Rules 3, 4 and 5 of Order VIII form an integral code dealing with the manner in which allegations of fact in the plaint should be traversed and the legal consequences flowing from its non-compliance — It is obligatory on the part of the defendant to specifically deal with each allegation in the plaint and when the defendant denies any such fact, he must not do so evasively but answer the point of substance — It is clearly postulated therein that it shall not be sufficient for a defendant to deny generally the grounds alleged by the plaintiffs but he must be specific with each allegation of fact.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 8, Rules 3, 4 and 5 — Evasive denial in written statement — Defendants could not have been permitted to lead any evidence when nothing was stated in the pleadings (written statement).

 
Friday, January 18, 2013
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Sections 96 and 100 — Appeal — Held, Sections 96 and 100 of the Code make provisions for preferring an appeal from any original appeal or from a decree in an appeal respectively — The aforesaid provisions do not enumerate the categories of persons who can file an appeal — If a judgment and decree prejudicially or adversely affects a person, needless to emphasize, he can prefer an appeal.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 41, Rule 22(1) — Code of Civil Procedure (Amendment) Act 104 of 1976 — Cross-objection — A respondent may defend himself without taking recourse to file a cross-objection to the extent the decree stands in his favour, but if he intends to assail any part of the decree, it is obligatory on his part to file the cross-objection.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 41, Rule 22(1) — Code of Civil Procedure (Amendment) Act 104 of 1976 — Right of respondent to take cross-objection where a decree is entirely in favour of the respondent though an issue had been decided against him or a decree entirely in favour of the respondent where all the issues had been answered in his favour but there is a finding in the judgment which goes against him — Held, in the pre-amendment stage, he could not take any cross-objection as he was not a person aggrieved by the decree — But post-amendment, read in the light of explanation to sub rule (1), though it is still not necessary for the respondent to take any cross-objection laying challenge to any finding adverse to him as the decree is entirely in his favour, yet he may support the decree without cross-objection — It gives him the right to take cross-objection to a finding recorded against him either while answering an issue or while dealing with an issue.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 41, Rule 22(1) — Code of Civil Procedure (Amendment) Act 104 of 1976 — Cross-objection — If the appeal stands withdrawn or dismissed for default, the cross-objection taken to a finding by the respondent would still be adjudicated upon on merits. 

 
Tuesday, November 27, 2012
Civil Procedure Code, 1908

Civil Procedure Code, 1973 — Order 7 Rule 11 — Rejection of the plaint — While considering an application under Order VII Rule 11 CPC, the Court has to examine the averments in the plaint and the pleas taken by the defendants in its written statements would be irrelevant.

 
Saturday, November 17, 2012
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 100 — Second appeal — While it is true that in a second appeal, a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court will be within its jurisdiction to deal with the issue — An issue pertaining to perversity comes within the ambit of substantial question of law.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 100 — Second appeal — Plea of perversity — An issue pertaining to perversity comes within the ambit of substantial question of law.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 100 — Second appeal — Solely because another view is possible on the basis of the evidence, the High Court would not be entitled to exercise the jurisdiction under Section 100 of the Code of Civil Procedure — Abdul Raheem v. Karnataka Electricity Board & Ors. AIR 2008 SC 956 relied.

 
Thursday, November 01, 2012
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 7, Rule 11 — Rejection of plaint — Plaint can be rejected even before the issuance of summons — The trial Court can exercise its power under Order VII Rule 11 of the Code at any stage of the suit i.e. before registering the plaint or after issuance of summons to the defendants or at any time before the conclusion of the trial.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 7, Rule 11 — The plaint, in the present case,  has not shown a complete cause of action of privity of contract between the plaintiff and the first defendant or on behalf of the 1st defendant — Held plaint is liable to be rejected under Order 7 Rule 11.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 7, Rule 11 — Non-joinder of Defendant No. 2 in the application filed under Order VII Rule 11 — Contention that in the application for rejection of plaint, the 1st defendant has not impleaded the 2nd defendant, therefore, the said application is liable to be dismissed on the ground of non-joinder of the 2nd defendant, who is a necessary party — Held, 2nd defendant is not a necessary party to the application for rejection of plaint — Non-joinder of the 2nd defendant does not affect the merit of the application as the plaintiff alone is a necessary party to the application for rejection of plaint.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 7, Rule 11 — Rejection of plaint — Plaintiff alone is a necessary party to the application for rejection of plaint.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 7, Rule 11 — Rejection of plaint — Non-joinder of necessary party — When the plaintiff itself persists in not impleading a necessary party inspite of objection, the consequences of non joinder may follow — However, the said objection should be taken in the trial Court itself so that the plaintiff may have an opportunity to rectify the defect — The said plea cannot be raised in the Supreme Court for the first time.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 7, Rule 14 — Held, Order VII Rule 14 mandates that the plaintiff has to produce the documents on which the cause of action is based.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 7, Rule 11 read with Order 10 — Rejection of plaint — If the allegations are vexatious and meritless and not disclosing a clear right or material(s) to sue, it is the duty of the trial Judge to exercise his power under Order VII Rule 11 — If clever drafting has created the illusion of a cause of action as observed by Krishna Iyer J., in T.Arivandandam vs. T.V. Satyapal & Anr., (1977) 4 SCC 467, it should be nipped in the bud at the first hearing by examining the parties under Order X of the Code.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 7, Rule 11 — Application under Order 7 Rule 11 for rejection of plaint — In order to consider Order VII Rule 11, the Court has to look into the averments in the plaint and the same can be exercised by the trial Court at any stage of the suit — The averments in the written statement are immaterial and it is the duty of the Court to scrutinize the averments/pleas in the plaint — In other words, what needs to be looked into in deciding such an application are the averments in the plaint — At that stage, the pleas taken by the defendant in the written statement are wholly irrelevant and the matter is to be decided only on the plaint averments.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 7, Rule 11 — Power under Order VII Rule 11 of the Code can be exercised at any stage of the suit either before registering the plaint or after the issuance of summons to the defendants or at any time before the conclusion of the trial.

 
Wednesday, October 31, 2012
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 149 — Power to make up deficiency of court-fees — Held, section 149 not only deals with court fees payable on a plaint but it also deals with every document with respect to which court fee is required to be paid under the appropriate law.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 149 — Power to make up deficiency of court-fees — Held, when a plaint is presented to a Court without the payment of appropriate court fee payable thereon, undoubtedly the Court has the authority to call upon the plaintiff to make payment of the necessary court fee — Such an authority of the Court can be exercised at any stage of the suit — Any amount of lapse of time does not fetter the authority of the Court to direct the payment of such deficit court fee — As a logical corollary, even the plaintiff cannot be said to be barred from paying the deficit court fee because of the lapse of time.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1909 — Order 7, Rule 11 and Section 149 — Court Fees Act, 1870, Section 28 — Whether the payment of deficit in court fee beyond the period of limitation prescribed for filing the suit would retrospectively render the plaint (originally presented within the period of limitation but with deficit court fee) a validly presented plaint? — Held, yes.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1909 — Order 7, Rule 11 r/w Order 7 Rule 13 and Section 149 — Plaint not properly valued or insufficiently stamped — Effect — Held, under Order VII Rule 11, a plaint, which has not properly valued the relief claimed therein or is insufficiently stamped, is liable to be rejected — However, under Rule 13, such a rejection by itself does not preclude the plaintiff from presenting a fresh plaint — It naturally follows that in a given case where the plaint is rejected under Order VII Rule 11 and the plaintiff chooses to present a fresh plaint, necessarily the question arises whether such a fresh plaint is within the period of limitation prescribed for the filing of the suit — If it is to be found by the Court that such a suit is barred by limitation, once again it is required to be rejected under Order VII Rule 11 Clause (d) — However, Section 149 CPC, confers power on the Court to accept the payment of deficit court fee even beyond the period of limitation prescribed for the filing of a suit, if the plaint is otherwise filed within the period of limitation.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 149 — Held, Section 149 CPC does not confer an absolute right in favour of a plaintiff to pay the court fee as and when it pleases the plaintiff — It only enables a plaintiff to seek the indulgence of the Court to permit the payment of court fee at a point of time later than the presentation of the plaint — The exercise of the discretion by the Court is conditional upon the satisfaction of the Court that the plaintiff offered a legally acceptable explanation for not paying the court fee within the period of limitation.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 149 — Jurisdiction under Section 149 CPC is discretionary in nature — Court while exercising discretion under Section 149 CPC, must scrutinise the explanation offered for the delayed payment of the deficit court fee carefully because exercise of such discretion would certainly have some bearing on the rights and obligations of the defendants or persons claiming through the defendants.

 
Thursday, May 17, 2012
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 30 — In civil cases, adherence to Section 30 CPC would help in ascertaining the truth — It seems that this provision which ought to be frequently used is rarely pressed in service by our judicial officers and judges.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 30 — Power to order discovery and the like — Held, discovery and production of documents and answers to interrogatories, together with an approach of considering what in ordinary course of human affairs is more likely to have been the probability, will prevent many a false claims or defences from sailing beyond the stage for issues.

 
Saturday, March 31, 2012
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 6, Rule 17 — Amendment of pleadings — Facts/evidence in support of the contention already pleaded, held, are permissible to be introduced by way of amendment of pleadings.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 6, Rule 17 — Amendment of pleadings — In the original plaint, the details of payment of consideration have not been stated and by the present amendment, the plaintiff wants to explain how money was paid — Held, by this process the plaintiff is not altering the cause of action — No prejudice is caused to the defendants.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 6, Rule 17 — Amendment of pleadings — Held, while deciding the application for amendment ordinarily the Court must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide and dishonest amendments — The purpose and object of Order VI Rule 17 of the Code is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just — Amendment cannot be claimed as a matter of right and under all circumstances, but the Courts while deciding such prayers should not adopt a hyper-technical approach — Liberal approach should be the general rule particularly, in cases where the other side can be compensated with costs — Normally, amendments are allowed in the pleadings to avoid multiplicity of litigations.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 47 r/w Order 21 — Premature execution — Mere fact that the execution was levied prior to the expiration of the period stipulated in the decree, held, will not vitiate the execution proceeding.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 47 — Premature execution — Contention that decree had lost its potentiality of executability having been filed on a premature date — Held, cannot be accepted.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 47 — Premature execution in respect of a compromise decree — While relying on the judgments in the case of Chen Shen Ling v. Nand Kishore Jhajharia AIR 1972 SC 726 and Jai Narain Ram Lundia v. Kedar Nath Khetan AIR 1956 SC 359, the learned senior counsel for the respondent, in the present case, has propounded that the executing court could not have passed any order on the application for execution as it was filed prior to the expiry of the period — Pyramiding the said submission, it is urged by him that such advertence in an execution proceeding frustrates the construction of the terms of the decree — Held, in both the decisions, the issue pertained to the nature of order to be passed by the executing court or the type of direction to be issued by it — The ratio enunciated therein does not remotely deal with the filing of an execution petition in respect of a compromise decree prior to the expiry of the date as stipulated in the terms and conditions of the decree — Hence, there is no scintilla of doubt that the said authorities do not support the stand so vehemently put forth by learned senior counsel for the first respondent.

 
Tuesday, March 27, 2012
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 100 — Second Appeal — Formulation of substantial question of law is a sine qua non for exercise of jurisdiction under Section 100 CPC — The law admits no ambiguity and permits no departure in this regard.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 100 — Second Appeal — The High Court is required to formulate substantial question of law involved in the second appeal at the initial stage if it is satisfied that the matter deserves to be admitted and the second appeal has to be heard and decided on such substantial question of law.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 100(5) — Second Appeal — At the time of hearing of second appeal, it is open to the High Court to re-formulate substantial question/s of law or formulate fresh substantial question/s of law or hold that no substantial question of law is involved.

 
Tuesday, March 13, 2012
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 97 — Held, section 97 of the C.P.C. does not create any hindrance or obstruction in the power of the court to modify, amend or alter the preliminary decree or pass another preliminary decree if the changed circumstances so require.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 20, Rule 18 r/w Section 97 — Power of court to alter or amend or modify preliminary decree — It is true that final decree is always required to be in conformity with the preliminary decree but that does not mean that a preliminary decree, before the final decree is passed, cannot be altered or amended or modified by the trial court in the event of changed or supervening circumstances even if no appeal has been preferred from such preliminary decree.

 
Friday, January 27, 2012
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 23, Rule 3-A — U.P. Zamindari Abolition & Land Reforms Act, Sections 176, 178, 182 — Compromise decree passed in a suit filed under Sections 176, 178, 182 of U.P. Zamindari Abolition & Land Reforms Act, held, can be challenged on the ground that it was obtained by fraudulent means under the provisions of Rule 3-A of Order XXIII.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 23, Rule 3-A — A fresh suit for setting aside a compromise decree is expressly barred under Order XXIII Rule 3-A.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 23, Rule 3-A — Expression “not lawful” — Held, the expression “not lawful” used in Rule 3-A of Order XXIII also covers a decree based on a fraudulent compromise hence, a challenge to a compromise decree on the ground that it was obtained by fraudulent means would also fall under the provisions of Rule 3-A of Order XXIII. 

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 23, Rule 3-A — There is nothing in Order XXIII Rule 3-A to bar the institution of a suit before the civil court even in regard to decrees or orders passed in suits and/or proceedings under different statutes before a court, tribunal or authority of limited and restricted jurisdiction.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 37, Rule (3)(5) — Indian Contract Act, 1872, Section 139 — — Plaintiff, in the present case, filed a suit for realisation of its dues against defendant No.1 (borrower) and the two respondents (defendant Nos.2 & 3)  who were guarantors to the loan — Defendant No.1 did not appear in the suit despite notice — The two defendants-respondents, however, appeared before the trial court and filed separate applications under Order 37 Rule 3 sub-rule (5) of the CPC for permission to defend the suit on the ground that since the plaintiff-appellant had got a promissory note executed in its favour by the borrower-defendant No.1 and had further made the borrower create an equitable mortgage in its favour by deposit of title deeds, they would be absolved of their liability in terms of Section 139 of the Contract Act — According to the respondents, their plea gave rise to a triable issue and they, accordingly, sought permission to file their written statements and contest the suit — The trial court by its judgment and order examined all the pleas, including the one based on Section 139 of the Contract Act and found and held that none of the pleas raised by the defendants gave rise to any substantial defence against the claim of the plaintiff — Accordingly, it dismissed the petitions filed by the defendants-respondents and proceeded to decree the suit of the appellant-plaintiff — In appeal the High Court, however, set aside the order and decree passed by the trial court and directed it to allow the defendants-respondents to file their written statement and proceed to try the suit from that stage on the ground that respondents were able to make out a triable issue on the basis of Section 139 of the Contract Act — Held, the High Court was completely wrong in holding that the respondents were able to make out a triable issue on the basis of Section 139 of the Contract Act.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 37, Rule (3)(5) — Indian Contract Act, 1872, Section 139 — Suit for recovery of loan amount against guarantors — Application for permission to defend the suit — Plea by guarantors that since the plaintiff-appellant had got a promissory note executed in its favour by the borrower and had further made the borrower create an equitable mortgage in its favour by deposit of title deeds, they would be absolved of their liability in terms of Section 139 of the Contract Act — According to the guarantors, their plea gave rise to a triable issue against the claim of the plaintiff-apellant and, therefore, they should be permitted to file their written statements and contest the suit — Held, plea of the guarantors does not give rise to a triable issue — Trial Court rightly dismissed applications filed by the guarantors under Order 37 Rule 3 sub-rule (5) of the CPC.  

 
Wednesday, January 25, 2012
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 6, Rule 17, Proviso — Term ‘due diligence’ — A party requesting a relief stemming out of a claim is required to exercise due diligence and is a requirement which cannot be dispensed with — The term “due diligence” determines the scope of a party’s constructive knowledge, claim and is very critical to the outcome of the suit.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 6, Rule 17, Proviso — Term ‘due diligence’ — Held, due diligence is the idea that reasonable investigation is necessary before certain kinds of relief are requested — Duly diligent efforts are a requirement for a party seeking to use the adjudicatory mechanism to attain an anticipated relief — An advocate representing someone must engage in due diligence to determine that the representations made are factually accurate and sufficient — The term ‘Due diligence’ is specifically used in the Code so as to provide a test for determining whether to exercise the discretion in situations of requested amendment after the commencement of trial.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 6, Rule 17, Proviso — Application for amendment of pleadings after the trial has commenced — Plaintiff, in the present case, filed an application seeking amendment to incorporate specific pleading in compliance with Section 16 (c) of the Specific Relief Act and Form 47 of Appendix A CPC on the ground that the same was missed due to “type mistake” in spite of due diligence — Said application allowed by the High Court — Held, the High Court has committed an error in accepting the explanation that it was a typographical error to mention and it was an accidental slip — Omission to take up specific plea mandated in terms of Section 16(c) of Specific Relief Act, held, is a mistake which does not come within the preview of a typographical error — Act of neglecting to perform an action which one has an obligation to do cannot be called as a typographical error — There is a clear lack of ‘due diligence’ — Specific Relief Act, 1963, Section 16(c).

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 6, Rule 17, Proviso — Application for amendment of pleadings after the trial has commenced — The party, held, has to satisfy the Court that he could not have discovered that ground which was pleaded by amendment, in spite of due diligence.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 6, Rule 17, Proviso — Application for amendment of pleadings after the trial has commenced — Unless the Court satisfies that there is a reasonable cause for allowing the amendment normally the court has to reject such request.

 
Thursday, December 08, 2011
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 23, Rule 3 — Evidence Act, 1872, Sections 74, 76, 77 and 78 — Judgment and decree passed on the basis of compromise — Whether such compromise is admissible in evidence or not? — Held, the compromise has merged into a decree and has become a part and parcel of it — It is a public document in terms of section 74 of the Evidence Act, 1872 — A certified copy of such compromise is admissible in evidence without being proved by calling witness — There is presumption as to the genuineness of such certified copy under Section 78 of the Evidence Act, 1872.  

 
Friday, October 28, 2011
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 39 Rule 2A — Once the suit has been decreed, the court could not entertain the application under Order XXXIX Rule 2A CPC as the suit had already been decreed and such an application is maintainable only during the pendency of the suit in case the interim order passed by the court or undertaking given by the party is violated.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 10 Rule 1 — Held, Order X Rule 1 CPC provides for recording the statement of the parties to the suit at the “first hearing of the suit” which comes after the framing of the issues and then the suit is posted for trial, i.e. for production of evidence — Such an interpretation emerges from the conjoint reading of the provisions of Order X Rule 1; Order XIV Rule 1(5); and Order XV Rule 1, CPC.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 10 Rule 1, Order 14 Rule 1(5) and Order 15 Rule 1 — First hearing of the suit — Held, from the conjoint reading of the provisions of Order X Rule 1; Order XIV Rule 1(5); and Order XV Rule 1, CPC,  it becomes clear that the “first hearing of the suit” can never be earlier than the date fixed for the preliminary examination of the parties and the settlement of issues — On the date of appearance of the defendant, the court does not take up the case for hearing or apply its mind to the facts of the case, and it is only after filing of the written statement and framing of issues, the hearing of the case commences — The hearing presupposes the existence of an occasion which enables the parties to be heard by the Court in respect of the cause — Hearing, therefore, should be first in point of time after the issues have been framed — The date of “first hearing of a suit” under CPC is ordinarily understood to be the date on which the Court proposes to apply its mind to the contentions raised by the parties in their respective pleadings and also to the documents filed by them for the purpose of framing the issues which are to be decided in the suit — Thus, the question of having the “first hearing of the suit” prior to determining the points in controversy between the parties i.e. framing of issues does not arise — The words the “first day of hearing” does not mean the day for the return of the summons or the returnable date, but the day on which the court applies its mind to the case which ordinarily would be at the time when either the issues are determined or evidence is taken.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 39, Rule 2A — Application under Order XXXIX Rule 2A CPC lies only where disobedience/breach of an injunction granted or order complained of was one, that is granted by the court under Order XXXIX Rules 1 & 2 CPC, which is naturally to enure during the pendency of the suit — However, once a suit is decreed, the interim order, if any, merges into the final order.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 39 Rule 2A r/w Order 21 Rule 32 — Non-compliance of the terms of the decree passed in the civil suit — Whether contempt proceedings under Contempt of Courts Act, 1971 can be initiated, in essence, as a mode of executing the decree? — Held, no — In case there is a grievance of non-compliance of the terms of the decree passed in the civil suit, the remedy available to the aggrieved person is to approach the execution court under Order XXI Rule 32 CPC which provides for elaborate proceedings in which the parties can adduce their evidence and can examine and cross-examine the witnesses as opposed to the proceedings in contempt which are summary in nature — Application under Order XXXIX Rule 2A CPC is not maintainable once the suit stood decreed — Law does not permit to skip the remedies available under Order XXI Rule 32 CPC and resort to the contempt proceedings for the reason that the court has to exercise its discretion under the Act 1971 when an effective and alternative remedy is not available to the person concerned — Thus, when the matter relates to the infringement of a decree or decretal order embodies rights, as between the parties, it is not expedient to invoke and exercise contempt jurisdiction, in essence, as a mode of executing the decree or merely because other remedies may take time or are more circumlocutory in character.  

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 39, Rule 2A — There is a complete fallacy in the argument that the provisions of Order XXXIX Rule 2A CPC would also include the case of violation or breach of permanent injunction granted at the time of passing of the decree.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 39, Rule 2A — Unless there has been an order under Order XXXIX Rule 1 or 2 CPC in a case, the question of entertaining an application under Order XXXIX Rule 2A does not arise — In case there is a final order, the remedy lies in execution and not in an action for contempt or disobedience or breach under Order XXXIX Rule 2A — The contempt jurisdiction cannot be used for enforcement of decree passed in a civil suit.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 39 Rule 2A r/w Order 21 Rule 32 — The proceedings under Order XXXIX Rule 2A are available only during the pendency of the suit and not after conclusion of the trial of the suit — Therefore, any undertaking given to the court during the pendency of the suit on the basis of which the suit itself has been disposed of becomes a part of the decree and breach of such undertaking is to be dealt with in execution proceedings under Order XXI Rule 32 CPC and not by means of contempt proceedings — Even otherwise, it is not desirable for the High Court to initiate criminal contempt proceedings for disobedience of the order of the injunction passed by the subordinate court, for the reason that where a decree is for an injunction, and the party against whom it has been passed has wilfully disobeyed it, the same may be executed by attachment of his property or by detention in civil prison or both — The provision of Order XXI Rule 32 CPC applies to prohibitory as well as mandatory injunctions — In other words, it applies to cases where the party is directed to do some act and also to the cases where he is abstained from doing an act — Still to put it differently, a person disobeys an order of injunction not only when he fails to perform an act which he is directed to do but also when he does an act which he is prohibited from doing — Execution of an injunction decree is to be made in pursuance of the Order XXI Rule 32 CPC as the CPC provides a particular manner and mode of execution and therefore, no other mode is permissible — Contempt of Courts Act, 1971,Criminal contempt.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 21, Rule 32 — The provision of Order XXI Rule 32 CPC applies to prohibitory as well as mandatory injunctions.  

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 39 Rule 2A r/w Order 21 Rule 32 — Disobedience of the judgment and decree — In a case where there is any disobedience of the judgment and decree, the application under Order XXXIX Rule 2A CPC should not be entertained — Such an application is maintainable in a case where there is violation of interim injunction passed during the pendency of the suit — Appropriate remedy available to the decree holder in such a case is to file an application for execution under Order XXI Rule 32 CPC .

 
Monday, September 12, 2011
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 96 — Where the first appellate court reverses the judgment of the trial court, it is required to consider all the issues of law and fact.

 
Tuesday, July 26, 2011
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 22 — A combined reading of the several provisions of Order 22 of the Code makes the following position clear

 

 (a) When the sole plaintiff dies and the right to sue survives, on an application made in that behalf, the court shall cause the legal representative of the deceased plaintiff to be brought on record and proceed with the suit.

 

 (b) If the court holds that the right to sue does not survive on the death of the plaintiff, the suit will abate under Rule 1 of Order 22 of the Code.

 

 (c) Even where the right to sue survives, if no application is made for making the legal representative a party to the suit, within the time limited by law (that is a period of 90 days from the date of death of the plaintiff prescribed for making an application to make the legal representative a party under Article 120 of the Limitation Act, 1963), the suit abates, as per Rule 3(2) of Order 22 of the Code.

 

(d) Abatement occurs as a legal consequence of (i) court holding that the right to sue does not survive; or (ii) no application being made by any legal representative of the deceased plaintiff to come on record and continue the suit. Abatement is not dependant upon any formal order of the court that the suit has abated.

 

 (e) Even though a formal order declaring the abatement is not necessary when the suit abates, as the proceedings in the suit are likely to linger and will not be closed without a formal order of the court, the court is usually to make an order recording that the suit has abated, or dismiss the suit by reason of abatement under Order 22 of the Code.

 

 (f) Where a suit abates or where the suit is dismissed, any person claiming to be the legal representative of the deceased plaintiff may apply for setting aside the abatement or dismissal of the suit under Order 22 Rule (2) of the Code. If sufficient cause is shown, the court will set aside the abatement or dismissal. If however such application is dismissed, the order dismissing such an application is open to challenge in an appeal under Order 43 Rule 1(k) of the Code.

 

 (g) A person claiming to be the legal representative cannot make an application under rule 9(2) of order 22 for setting aside the abatement or dismissal, if he had already applied under order 22 Rule 3 for being brought on record within time and his application had been dismissed after an enquiry under Rule 5 of Order 22, on the ground that he is not the legal representative.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — The normal remedies available under the Code whenever a civil court makes an order under the Code are as under:

 

 (i) Where the order is a ‘decree’ as defined under section 2(2) of the Code, an appeal would lie under section 96 of the Code (with a provision for a second appeal under section 100 of the Code).

 

 (ii) When the order is not a ‘decree’, but is an order which is one among those enumerated in section 104 or Rule 1 of Order 43, an appeal would lie under section 104 or under section 104 read with order 43, Rule 1 of the Code (without any provision for a second appeal).

 

 (iii) If the order is neither a ‘decree’, nor an appealable ‘order’ enumerated in section 104 or Order 43 Rule 1, a revision would lie under section 115 of the Code, if it satisfies the requirements of that section.

 

     When a party is aggrieved by any decree or order, he can also seek review as provided in Section 114 subject to fulfillment of the conditions contained in that section and Order 47 Rule 1 of the Code.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 2(2) — Decree — A reading of the definition of decree in Section 2(2) shows that the following essential requirements should be fulfilled if an order should be treated as a ‘decree’ :

 

 (i) there should be an adjudication in a suit;

 

 (ii) the adjudication should result in a formal expression which is conclusive so far as the court expressing it;

 

 (iii) the adjudication should determine the rights of parties with regard to all or any of the matters in controversy in the suit; and

 

 (iv) the adjudication should be one from which an appeal does not lie as an appeal from an order (under section 104 and order 43 Rule 1 of the Code) nor should it be an order dismissing the suit for default.  

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 96 and 104 — Difference between a ‘decree’ appealable under section 96 and an ‘order’ appealable under section 104 — Held, the difference between a ‘decree’ appealable under section 96 and an ‘order’ appealable under section 104 is that a second appeal is available in respect of decrees in first appeals under section 96, whereas no further appeal lies from an order in an appeal under section 104 and Order 43, Rule 1 of the Code.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 22 Rule 3 and 5 readwith Section 104 and Order 43 Rule 1 — An order under Order 22 Rule 3 and 5 is not appealable under section 104 or Order 43 Rule 1 of the Code.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 22 Rule 9(2) — An application under Rule 9(2) can be filed only if there is abatement or dismissal under Order 22 on account of no application being made.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 22, Rule 3 — The applicant in an application under Order 22 Rule 3 is not a party to the suit — An application under Order 22 Rule 3 is by a non party requesting the court to make him a party as the legal representative of the deceased plaintiff — Necessarily unless the applicant in the application under Order 22 Rule 3 allowed and the applicant is permitted to come on record as the legal representative of the deceased, he will continue to be a non-party to the suit — When such an application by a non-party is dismissed after a determination of the question whether he is a legal representative of the deceased plaintiff, there is no adjudication determining the rights of parties to the suit with regard to all or any of the matters in controversy in the suit.  

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 22, Rule 3 — Dismissal of application under Order 22 Rule 3 of the CPC — Held, there is no adjudication determining the rights of parties to the suit with regard to all or any of the matters in controversy in the suit.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 22, Rules 1 and 3 readwith Section 2(2) — If the court orders that suit has abated or dismissed the suit as having abated, as a consequence of rejection of an application under Order 22 Rule 3 of the Code, there is no determination of rights of parties with regard to any of the matters in controversy in the suit and therefore the order is not a decree — But if an order declares that the suit has abated, or dismisses a suit not as a consequence of legal representatives filing any application to come on record, but in view of a finding that right to sue does not survive on the death of sole plaintiff, there is an adjudication determining the rights of parties in regard to all or any of the matters in controversy in the suit, and such order will be a decree. 

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 22, Rule 3 and Section 115 — Whether an order of the trial court rejecting an application filed under Order 22 Rule 3 of the Code, by a person claiming to be the legatee under the will of the plaintiff and consequently dismissing the suit in the absence of any legal heir, is an appealable decree? — Held, no — Remedy of the applicant under Order 22 Rule 3 is to file a revision. 

 
Tuesday, July 12, 2011
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 14, Rule 1(5) and Section 11 — In the instant case when the entire question of title has been determined by the High Court and the Special Leave Petition against that judgment has been dismissed by this court, thereafter the trial court ought not to have framed such an issue on a point which has been finally determined upto this Court — In any case, the same was exclusively barred by the principles of res judicata — That clearly demonstrates total non-application of mind.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 14, Rule 1(5) and Order 10, Rule 2 — Framing of issues is a very important stage in the civil litigation and it is the bounden duty of the court that due care, caution, diligence and attention must be bestowed by the learned Presiding Judge while framing of issues.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 14, Rule 2(2) — Sub Rule 2 refers to the discretion given to the court where the court may try issue relating to the jurisdiction of the court or the bar to the suit created by any law for the time being in force as preliminary issue — It further relates to disposal of the suit treating these points as preliminary issues and also relates to deferring the settlement of other issues.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 151, Order 7 Rule 11(b), Order 14 Rules 2 and 5 and Order 20 Rule 5 — Application under Section  151 filed by appellant for treating Issue No.4 as preliminary issue — Issue No.4 pertains to court fees and jurisdiction — Suit at the stage of final arguments and both the parties have led the entire evidence — Held, Order 20 Rule 5 clearly states that court has to return finding on each issue — Even Order 14 Rule 2 CPC states that the court has to pronounce the judgment on all issues notwithstanding that the case may be disposed off on preliminary issue — Sub Rule 2 refers to the discretion given to the court where the court may try issue relating to the jurisdiction of the court or the bar to the suit created by any law for the time being in force as preliminary issue — It further relates to disposal of the suit treating these points as preliminary issues and also relates to deferring the settlement of other issues — But there is no such case — Entire evidence has been led, the matter is at the stage of final arguments and the point raised does not relate to the point pertaining to Sub Rule 2 — Neither it relates to bar created by any law nor the jurisdiction of the court to entertain the suit — It is averments made in the plaint — Contention of the applicant for treating the issue as preliminary issue is against the spirit of law as referred in Order 20 Rule 5 and Order 14 Rule 5 CPC — Trial Court rightly dismissed the application.

 
Friday, June 03, 2011
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 96(3) — No appeal lies from a decree passed by the court with the consent of the parties.

 
Saturday, May 28, 2011
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 41, Rule 11 — If the appeal is heard ex-parte for admission under Order XLI Rule 11 of the Code, the Court could dismiss it at that very stage or admit the same for regular hearing — Such appeal could be heard in the presence of the other party at the admission stage itself, particularly, in cases where a caveat is lodged by the respondent to the appeal.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 41, Rule 11 — Expression ‘after fixing a date for hearing the appellant’ — Held, the expression ‘after fixing a date for hearing the appellant’ is of some significance — It obviously means that the Court should fix a date for hearing the appellant on the merits of the appeal — The hearing contemplated under Rule 11 is not an empty formality but denotes the substantive right of being heard, available to the appellant(s) — The Court has to apply its mind to the merits of the appeal and then alone the Court can pass an order of dismissal.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 41, Rule 12 — In terms of Rule 12, unless the Appellate Court dismisses the appeal under Rule 11, it shall fix a day for hearing of the appeal — The hearing contemplated under Rule 12 is normally called ‘final hearing’.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 41, Rules 11 and 12 — Between the day of hearing fixed under Rule 11 and that fixed under Rule 12 there is a requirement to issue notice to the respondent(s).

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 27 — Issuance of summons to the defendants to appear and answer the claim — Such summons are required to be issued within one month from the date of institution of the suit — Once steps in furtherance to issuance of summons within one month are taken by the plaintiff, then even if the summons are not served within that period, it will be substantial compliance of the provisions of Section 27 of the Code — Salem Advocate Bar Association, Tamil Nadu v. Union of India [(2003) 1 SCC 49] relied.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 148A — Right of caveator to be heard before passing of an interlocutory order — In terms of Section 148A of the Code, a caveator has a right to be heard mandatorily for the purposes of passing of an interlocutory order — The law contemplates that a caveator is to be heard by the court before any interim order can be passed against him.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 148A — Rights of a caveator are different from that of crossobjectors per se.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 41, Rule 22 — All the provisions of Order XLI of the Code have to be read conjunctively to give Order XLI Rule 22 its true and purposive meaning.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 41, Rule 22 — Service of notice — Where a respondent in the appeal is a caveator or otherwise puts in appearance himself and argues the appeal on merits including for the purposes of interim order and the appeal is ordered to be heard finally on a date fixed subsequently or otherwise, in presence of the said respondent/caveator, it shall be deemed to be service of notice within the meaning of Order XLI Rule 22 — In other words the limitation of one month shall start from that date. 

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 41, Rule 22 — The limitation of one month for filing the cross-objection as provided under Order XLI Rule 22 of the Code shall commence from the date of service of notice on him or his pleader of the day fixed for hearing the appeal.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 41, Rule 22 — Respondent in an appeal is entitled to receive a notice of hearing of the appeal as contemplated under Order XLI Rule 22 of the Code.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 41, Rule 22 — Cross-objections within the scheme of Order XLI Rule 22 of the Code are to be treated as separate appeal and must be disposed of on same principles in accordance with the provisions of Order XLI of the Code.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 41, Rule 22 — Provisions must receive a liberal construction.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 41, Rule 22 — Default in filing the cross objections within the statutory period of one month — Held, Court has power to take on record the cross-objections even after the expiry of the said period — The expression ‘or within such further time as the court may see fit to allow’ clearly shows that wide judicial discretion is vested in the courts to permit the filing of the cross-objections even after the expiry of 30 days or for that matter any period which, in the facts and circumstances of the case, is found to be just and proper by the Court. 

 
Saturday, May 07, 2011
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 7, Rules 5 and 7 — In a case where prayer is not made against a particular defendant, no relief possibly can be granted against him.

 
Saturday, April 09, 2011
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 151 — Scope of — Held, the scope of section 151 has been explained by this Court in several decisions — The position maybe summarized as follows:

 

 (a) Section 151 is not a substantive provision which creates or confers any power or jurisdiction on courts. It merely recognizes the discretionary power inherent in every court as a necessary corollary for rendering justice in accordance with law, to do what is ‘right’ and undo what is ‘wrong’, that is, to do all things necessary to secure the ends of justice and prevent abuse of its process. 
 

 

(b) As the provisions of the Code are not exhaustive, section 151 recognizes and confirms that if the Code does not expressly or impliedly cover any particular procedural aspect, the inherent power can be used to deal with such situation or aspect, if the ends of justice warrant it. The breadth of such power is co-extensive with the need to exercise such power on the facts and circumstances. 

 

 (c) A Court has no power to do that which is prohibited by law or the Code, by purported exercise of its inherent powers. If the Code contains provisions dealing with a particular topic or aspect, and such provisions either expressly or necessary implication exhaust the scope of the power of the court or the jurisdiction that may exercised in relation to that matter, the inherent power cannot be invoked in order to cut across the powers conferred by the Code or a manner inconsistent with such provisions. In other words the court cannot make use of the special provisions of Section 151 of the Code, where the remedy or procedure is provided in the Code. 

 

 (d) The inherent powers of the court being complementary to the powers specifically conferred, a court is free to exercise them for the purposes mentioned in Section 151 of the Code when the matter is not covered by any specific provision in the Code and the exercise of those powers would not in any way be in conflict with what has been expressly provided in the Code or be against the intention of the Legislature. 

 

 (e) While exercising the inherent power, the court will be doubly cautious, as there is no legislative guidance to deal with the procedural situation and the exercise of power depends upon the discretion and wisdom of the court, and the facts and circumstances of the case. The absence of an express provision in the code and the recognition and saving of the inherent power of a court, should not however be treated as a carte blanche to grant any relief. 

 

 (f) The power under section 151 will have to be used with circumspection and care, only where it is absolutely necessary, when there is no provision in the Code governing the matter, when the bona fides of the applicant cannot be doubted, when such exercise is to meet the ends of justice and to prevent abuse of process of court.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 18, Rule 17 — Power to recall any witness, held, can be exercised by the court either on its own motion or on an application filed by any of the parties to the suit requesting the court to exercise the said power.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 18, Rule 17 — Power to recall any witness — Held, the power is discretionary and should be used sparingly in appropriate cases to enable the court to clarify any doubts it may have in regard to the evidence led by the parties — The said power is not intended to be used to fill up omissions in the evidence of a witness who has already been examined.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 18, Rule 17 — Scope of — Held, Order 18 Rule 17 of the Code is not a provision intended to enable the parties to recall any witnesses for their further examination-in-chief or cross-examination or to place additional material or evidence which could not be produced when the evidence was being recorded — Order 18 Rule 17 is primarily a provision enabling the court to clarify any issue or doubt, by recalling any witness either suo moto, or at the request of any party, so that the court itself can put questions and elicit answers — Once a witness is recalled for purposes of such clarification, it may, of course, permit the parties to assist it by putting some questions.   

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 151 and Order 18, Rule 17 — Re-opening of evidence or recall of any witness for further examination or cross-examination — In the absence of any provision providing for re-opening of evidence or recall of any witness for further examination or cross-examination, for purposes other than securing clarification required by the court, the inherent power under section 151 of the Code, subject to its limitations, can be invoked in appropriate cases to reopen the evidence and/or recall witnesses for further examination — This inherent power of the court is not affected by the express power conferred upon the court under Order 18 Rule 17 of the Code to recall any witness to enable the court to put such question to elicit any clarifications.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 18, Rule 17A (Deleted with effect from 1.7.2002) and Section 151 — Production of evidence not previously known or the evidence which could not be produced despite due diligence — Held, the deletion of the said provision does not mean that no evidence can be received at all, after a party closes his evidence — It only means that the amended structure of the Code found no need for such a provision, as the amended Code contemplated little or no time gap between completion of evidence and commencement and conclusion of arguments — Another reason for its deletion was the misuse thereof by the parties to prolong the proceedings under the pretext of discovery of new evidence — Therefore, it was unnecessary to have an express provision for re-opening the evidence to examine a fresh witness or for recalling any witness for further examination — But if there is a time gap between the completion of evidence and hearing of the arguments, for whatsoever reason, and if in that interregnum, a party comes across some evidence which he could not lay his hands earlier, or some evidence in regard to the conduct or action of the other party comes into existence, the court may in exercise of its inherent power under section 151 of the Code, permit the production of such evidence if it is relevant and necessary in the interest of justice, subject to such terms as the court may deem fit to impose.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 151 and Order 18, Rule 17 — Re-opening of evidence or recall of any witness for further examination or cross-examination — The power under section 151 or Order 18 Rule 17 of the Code is not intended to be used routinely, merely for the asking — If so used, it will defeat the very purpose of various amendments to the Code to expedite trials — But where the application is found to be bona fide and where the additional evidence, oral or documentary, will assist the court to clarify the evidence on the issues and will assist in rendering justice, and the court is satisfied that non-production earlier was for valid and sufficient reasons, the court may exercise its discretion to recall the witnesses or permit the fresh evidence — But if it does so, it should ensure that the process does not become a protracting tactic — The court should firstly award appropriate costs to the other party to compensate for the delay — Secondly the court should take up and complete the case within a fixed time schedule so that the delay is avoided — Thirdly if the application is found to be mischievous, or frivolous, or to cover up negligence or lacunae, it should be rejected with heavy costs — If the application is allowed and the evidence is permitted and ultimately the court finds that evidence was not genuine or relevant and did not warrant the reopening of the case recalling the witnesses, it can be made a ground for awarding exemplary costs apart from ordering prosecution if it involves fabrication of evidence — If the party had an opportunity to produce such evidence earlier but did not do so or if the evidence already led is clear and unambiguous, or if it comes to the conclusion that the object of the application is merely to protract the proceedings, the court should reject the application — If the evidence sought to be produced is an electronic record, the court may also listen to the recording before granting or rejecting the application.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 151 — Re-opening of evidence or recall of any witness for further examination or cross-examination — Held, inherent power under section 151 of the Code, subject to its limitations, can be invoked in appropriate cases to reopen the evidence and/or recall witnesses for further examination — This power under section 151, however, cannot be routinely invoked.

 
Monday, March 07, 2011
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 16 Rule (1) and (2) read with Section 151 — Whether the respondents could cite the advocate representing the appellants as a witness in the list filed under Order XVI Rule 1 (1) and (2) read with Section 151 of the Code of Civil Procedure (CPC) without giving an iota of indication about the purpose of summoning him in future? — Held, no — Order of the High Court is set aside and the one passed by the trial Court is restored — The respondents shall pay cost of Rs.50,000/- to the appellants.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 16 Rule (1) and (2) read with Section 151 — Party filing the list of witnesses should briefly indicate the purpose of summoning the particular person as a witness. 

 
Tuesday, February 15, 2011
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 11 — Provincial Small Cause Courts Act, 1887, Section 23 — Res judicata — Any finding on the issue of title recorded by the Small Cause Court does not operate as res judicata and ultimately the issue of title has to be adjudicated upon by the competent civil court — Budhu Mal v. Mahabir Prasad & Ors., AIR 1998 SC 1772 referred.

 
Wednesday, February 09, 2011
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 1, Rule 8 — Formalities for instituting a case i.e. representative suit — Not followed — Whether suit should be dimissed? — Held, since affected person himself has filed a suit, therefore, the suit cannot be dismissed on the ground of alleged non-compliance of the provisions of Order I Rule 8 of the CPC.

 
Wednesday, January 12, 2011
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 34 — Interest — Held, Section 34 of the Code of Civil Procedure, 1908 empowers the court to award interest for the period from the date of the suit to the date of the decree and from the date of the decree to the date of payment where the decree is for payment of money.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 34 — Interest — Held, interest is awardable pendente lite taking into consideration the facts and circumstances of the case and not as a matter of course.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 34 — Pre-suit interest — Held, Section 34 of the CPC does not empower the court to award pre-suit interest — The pre-suit interest would ordinarily depend on the contract (express or implied) between the parties or some statutory provisions or the mercantile usage.  

 
Sunday, January 09, 2011
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 100-A and Order 43, Rule 1 — Amendment Act 22 of 2002, w.e.f. 1.7.2002 — No Letters Patent Appeal shall lie against the judgment or order passed by a learned Single Judge in an appeal.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 100-A and Order 43, Rule 1 — Amendment Act 22 of 2002, w.e.f. 1.7.2002 — LPA against a judgment of the learned Single Judge who had decided an appeal under Order 43 Rule 1 against an interlocutory order of the District Judge — Whether maintainable? — Held, no.

 
Tuesday, January 04, 2011
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 100 — Second appeal — The existence of a substantial question of law is a sine-qua-non for the exercise of jurisdiction under the provisions of Section 100 C.P.C. — It is the obligation on the Court to further the clear intent of the Legislature and not to frustrate it by ignoring the same.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 103 — Before powers under Section 103 C.P.C. can be exercised by the High Court in a second appeal, the following conditions must be fulfilled: 

 

 (i) Determination of an issue must be necessary for the disposal of appeal;

 

 (ii) The evidence on record must be sufficient to decide such issue; and 

 

 (iii) (a) Such issue should not have been determined either by the trial court, or by the appellate court or by both; or 

       

       (b) such issue should have been wrongly determined either by trial court, or by the appellate court, or by both by reason of a decision on substantial question of law. 

 

If the above conditions are not fulfilled, the High Court cannot exercise its powers under Section 103 CPC.

 

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Sections 103 and 100 — Held, Section 103 C.P.C. is not an exception to Section 100 C.P.C. nor it is meant to supplant it, rather it is to serve the same purpose — Even while pressing Section 103 C.P.C. in service, the High Court has to record a finding that it had to exercise such power, because it found that finding(s) of fact recorded by the court(s) below stood vitiated because of perversity — More so, such power can be exercised only in exceptional circumstances and with circumspection, where the core question involved in the case has not been decided by the court(s) below.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Sections 103 and 100 — The issue of perversity itself is a substantial question of law and, therefore, Section 103 C.P.C. can be held to be supplementary to Section 100 C.P.C., and does not supplant it altogether — Reading it otherwise, would render the provisions of Section 100 C.P.C. redundant.

 
Wednesday, December 22, 2010
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 6, Rule 17 — Specific Relief Act, 1963, Section 16(c) — Application for amendment of the plaint to incorporate a prayer for specific performance of the agreement for re-conveyance, held, cannot be allowed because there is no averment in the plaint to the effect that the plaintiff is ready & willing to perform his part of the contract.

 
Friday, November 19, 2010
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 98(2) — Travancore-Cochin High Court Act, Section 23 — Kerala High Court Act, Section 9 — Held, Section 23 of the Travancore-Cochin Act is in the nature of a special provision while Section 98(2) is in the nature of general law — As between the two, the former would apply in preference to the latter — The decision of this Court in P.V. Hemlatha’s v. Kattamkandi Puthiya Maliackal Saheeda and Anr. 2005 (5) SCC 548 to the extent it takes a contrary view, requires to be reconsidered — Matter referred to larger bench.

 
Monday, November 08, 2010
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 9 Rule 13 — East Punjab Urban Rent Restriction Act, 1949 — Power to recall an ex-parte order passed earlier — Rent Controller, held, has not been conferred with power under Order 9 Rule 13 C.P.C. to recall an ex-parte order passed earlier.

 
Wednesday, October 13, 2010
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 41, Rule 33 — The provision of Order 41, Rule 33 of CPC is clearly an enabling provision, whereby the Appellate Court is empowered to pass any decree or make any order which ought to have been passed or made, and to pass or make such further or other decree or order as the case may require — Therefore, the power is very wide and in this enabling provision, the crucial words are that the Appellate Court is empowered to pass any Order which ought to have been made as the case may require — The expression ‘Order ought to have been made’ would obviously mean an Order which justice of the case requires to be made — This is made clear from the expression used in the said Rule by saying ‘the court may pass such further or other Order as the case may require.’ — This expression ‘case’ would mean the justice of the case — Of course, this power cannot be exercised ignoring a legal interdict or a prohibition clamped by law.

 
Tuesday, October 05, 2010
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 11 — Resjudicata — Contention of the learned counsel for the apellant that the High Court had seriously erred in holding that the finding in the earlier suit of eviction would operate as res judicata in the subsequent suit for declaration of title and recovery of possession — Held, the issue of title was expressly raised by the parties in the earlier eviction suit and it was expressly decided by the eviction court — The question of title was directly and substantially in issue between the parties in the earlier suit for eviction — Hence, the High Court was right in holding that the finding recorded in favour of the plaintiff in the earlier suit for eviction would operate as res judicata in the subsequent suit for declaration of title and recovery of possession between the parties — Appeal dismissed.

 
Thursday, September 16, 2010
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 23 Rule 3 — The pursis (Memo – Ex.17) filed by the appellants in the first appeal stated that the trustees of the Jamat were withdrawing the appeal unconditionally, in view of the compromise reached between two groups of people who were not parties to the appeal — The parties to the appeal, that is the appellants and respondents did not sign or file any compromise petition before the court — The first appellate court could not therefore direct that a decree be drawn up in terms of the ‘compromise’ between two sets of nonparties, while dismissing the first appeal as withdrawn.    

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 23 Rule 3 — Held, under Order 23 Rule 3, a decree can be made in terms of the compromise only insofar as it relates to the parties to the suit — Where either plaintiff-appellants or the defendant-respondents were not parties, it cannot be said that there was a compromise between the parties to the suit or appeal.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Sections 96 and 100 readwith Order 23 Rule 3 — When an appeal has been withdrawn by the persons who filed the appeal, it is not open to some other parties to file an appeal challenging the withdrawal of the first appeal on the ground that a ‘compromise’ was illegally entered. 

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 23, Rule 3B, Explanation — Representative suits — Held, the Explanation to Rule 3B defines four categories of suits as “representative suits” for the purpose of the said rule : (a) suits under section 91 or section 92 of the Code; (b) suits under Order 1 Rule 8 of the Code; (c) suits in which the manager of an undivided Hindu Family sues or is sued as representing the other members of the family; and (d) suits in which the decree passed may bind any person who is not named as a party to the suit by virtue of the provisions of the Code of Civil Procedure or any other law for the time being in force — If a suit should answer the definition of a ‘representative suit’ under clause (d) of the Explanation, two conditions should be satisfied – (i) the decree passed in the suit should bind the person who is not named as a party to the suit; and (ii) the decree should so bind a person who is not named as a party to the suit, by virtue of the provisions of the Code or any other law for the time being in force.  

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 23, Rule 3B — Compromise in a representative suit — A compromise of a suit is governed by Rule 3 of Order 23 of the Code — However, if the suit which is compromised, is a representative suit, two additional requirements of Rule 3B will also have to be complied with — They are : (i) compromise cannot be entered without the leave of the court expressly recorded in the proceedings; and (ii) before granting such leave, the court shall give notice to such persons as may appear to it to be interested in the suit.

 
Monday, August 16, 2010
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 37 — Held, Order XXXVII C.P.C. has been included in the Code of Civil Procedure in order to allow a person, who has a clear and undisputed claim in respect of any monetary dues, to recover the dues quickly by a summary procedure instead of taking the long route of a regular suit.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 37, Rule 3 — Application for leave to defend the suit — Held, if the affidavit filed by the defendant discloses a triable issue that is at least plausible, leave should be granted, but when the defence raised appears to be moonshine and sham, unconditional leave to defend cannot be granted — What is required to be examined for grant of leave is whether the defence taken in the application under Order XXXVII Rule 3 C.P.C. makes out a case, which if established, would be a plausible defence in a regular suit — Further, held, in matters relating to dishonour of cheques, the aforesaid principle becomes more relevant as the cheques are issued normally for liquidation of dues which are admitted. 

 
Thursday, August 12, 2010
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 89 readwith Order 10, Rule 1-A — Held, Section 89 has to be read with Rule 1-A of Order 10 which requires the court to direct the parties to opt for any of the five modes of alternative dispute resolution processes and on their option refer the matter — The said rule does not require the court to either formulate the terms of settlement or make available such terms of settlement to the parties to reformulate the terms of possible settlement after receiving the observations of the parties — Therefore the only practical way of reading Section 89 and Order 10, Rule 1-A is that after the pleadings are complete and after seeking admission/denials wherever required, and before framing issues, the court will have recourse to section 89 of the Code — Such recourse requires the court to consider and record the nature of the dispute, inform the parties about the five options available and take note of their preferences and then refer them to one of the alternative dispute resolution processes.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 89 — Interpretation of — Held, for proper interpretation of section 89 of the Code, two changes are required — Firstly, it is not necessary for the court, before referring the parties to an ADR process to formulate or re-formulate the terms of a possible settlement. It is sufficient if the court merely describes the nature of dispute (in a sentence or two) and makes the reference — Secondly, the definitions of ‘judicial settlement’ and ‘mediation’ in clauses (c) and (d) of section 89(2) shall have to be interchanged to correct the draftsman’s error. Clauses (c) and (d) of section 89(2) of the Code will read as under when the two terms are interchanged:

 

(c)  for “mediation”, the court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Authority Act, 1987 (39 of 1987) shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act;


 (d) for “judicial settlement”, the court shall effect a compromise between the parties and shall follow such procedure as may be prescribed.

 

The above changes made by interpretative process shall remain in force till the legislature corrects the mistakes, so that section 89 is not rendered meaningless and infructuous.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 89 — Words “where it appears to the court that there exist elements of a settlement” — Held,clearly shows that cases which are not suited for ADR process should not be referred under section 89 of the Code — The court has to form an opinion that a case is one that is capable of being referred to and settled through ADR process — Having regard to the tenor of the provisions of Rule 1A of Order 10 of the Code, the civil court should invariably refer cases to ADR process — Only in certain recognized excluded categories of cases, it may choose not to refer to an ADR process — Where the case is unsuited for reference to any of the ADR process, the court will have to briefly record the reasons for not resorting to any of the settlement procedures prescribed under section 89 of the Code — Therefore, having a hearing after completion of pleadings, to consider recourse to ADR process under section 89 of the Code, is mandatory — But actual reference to an ADR process in all cases is not mandatory — Where the case falls under an excluded category there need not be reference to ADR process — In all other case reference to ADR process is a must. 

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 89 — Having a hearing after completion of pleadings, to consider recourse to ADR process under section 89 of the Code, held, is mandatory — But actual reference to an ADR process in all cases is not mandatory. 

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 89 — The following categories of cases are normally considered to be not suitable for ADR process having regard to their nature :

 

 (i) Representative suits under Order 1 Rule 8 CPC which involve public interest or interest of numerous persons who are not parties before the court. (In fact, even a compromise in such a suit is a difficult process requiring notice to the persons interested in the suit, before its acceptance).
 

(ii) Disputes relating to election to public offices (as contrasted from disputes between two groups trying to get control over the management of societies, clubs, association etc.).
 

(iii) Cases involving grant of authority by the court after enquiry, as for example, suits for grant of probate or letters of administration.
 

(iv) Cases involving serious and specific allegations of fraud, fabrication of documents, forgery, impersonation, coercion etc.
 

(v) Cases requiring protection of courts, as for example, claims against minors, deities and mentally challenged and suits for declaration of title against government.
 

 (vi) Cases involving prosecution for criminal offences.
 

 All other suits and cases of civil nature in particular the following categories of cases (whether pending in civil courts or other special Tribunals/Forums) are normally suitable for ADR processes : 
 

 (i) All cases relating to trade, commerce and contracts, including
 

 - disputes arising out of contracts (including all money claims);
 

 - disputes relating to specific performance;
 

- disputes between suppliers and customers;
 

- disputes between bankers and customers;
 

 - disputes between developers/builders and customers;
 

 - disputes between landlords and tenants/licensor and licensees;
 

- disputes between insurer and insured;
 

(ii) All cases arising from strained or soured relationships, including
 

- disputes relating to matrimonial causes, maintenance, custody of children;
 

 - disputes relating to partition/division among family members/
 coparceners/co-owners; and
 

 - disputes relating to partnership among partners.
 

(iii)  All cases where there is a need for continuation of the pre-existing
 relationship in spite of the disputes, including
 

 - disputes between neighbours (relating to easementary rights,
 encroachments, nuisance etc.);
 

- disputes between employers and employees;
 

 - disputes among members of societies/associations/Apartment owners Associations;
 

(iv) All cases relating to tortious liability including
 

- claims for compensation in motor accidents/other accidents; and
 

 (v) All consumer disputes including
 

 - disputes where a trader/supplier/manufacturer/service provider is keen to maintain his business/professional reputation and credibility or ‘product popularity.
 

 The above enumeration of ‘suitable’ and ‘unsuitable’ categorization of cases is not intended to be exhaustive or rigid — They are illustrative, which can be subjected to just exceptions or additions by the court/Tribunal exercising its jurisdiction/discretion in referring a dispute/case to an ADR process.
 

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 89 — Held, Section 89 refers to five types of ADR procedures, made up of one adjudicatory process (arbitration) and four negotiatory (non adjudicatory) processes - conciliation, mediation, judicial settlement and Lok Adalat settlement — The object of section 89 of the Code is that settlement should be attempted by adopting an appropriate ADR process before the case proceeds to trial — Neither section 89 nor Rule 1A of Order 10 of the Code is intended to supersede or modify the provisions of the Arbitration and Conciliation Act, 1996 or the Legal Services Authorities Act, 1987 — On the other hand, section 89 of the Code makes it clear that two of the ADR processes - Arbitration and Conciliation, will be governed by the provisions of the AC Act and two other ADR Processes - Lok Adalat Settlement and Mediation (See : amended definition in para 18 above), will be governed by the Legal Services Authorities Act — As for the last of the ADR processes – judicial settlement (See : amended definition in para 18 above), section 89 makes it clear that it is not governed by any enactment and the court will follow such procedure as may be prescribed (by appropriate rules). 

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 10, Rule 1A and Section 89 — Held, Rule 1A of Order 10 requires the court to give the option to the parties, to choose any of the ADR processes — This does not mean an individual option, but a joint option or consensus about the choice of the ADR process — On the other hand, section 89 vests the choice of reference to the court.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 89 readwith Order 10, Rule 1A to 1C — Section 89 of the Code gives the jurisdiction to refer to ADR process and Rules 1A to IC of Order 10 lay down the manner in which the said jurisdiction is to be exercised — The scheme is that the court explains the choices available regarding ADR process to the parties, permits them to opt for a process by consensus, and if there is no consensus, proceeds to choose the process.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 89 — Held, pre-supposes that there is no pre-existing arbitration agreement.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 89 — The object of section 89 of the Code is that settlement should be attempted by adopting an appropriate ADR process before the case proceeds to trial.    

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 89 — No pre-existing arbitration agreement — Held, even if there was no pre-existing arbitration agreement, the parties to the suit can agree for arbitration when the choice of ADR processes is offered to them by the court under section 89 of the Code — Such agreement can be by means of a joint memo or joint application or a joint affidavit before the court, or by record of the agreement by the court in the ordersheet signed by the parties — Once there is such an agreement in writing signed by parties, the matter can be referred to  arbitration under section 89 of the Code; and on such reference, the provisions of AC Act will apply to the arbitration, and as noticed in Salem Bar-I [2003 (1) SCC 49], the case will go outside the stream of the court permanently and will not come back to the court.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 89 — ‘Conciliation’ — If both parties do not agree for conciliation, there can be no ‘conciliation’ — As a consequence, as in the case of arbitration, the court cannot refer the parties to conciliation under section 89, in the absence of consent by all parties — As contrasted from arbitration, when a matter is referred to conciliation, the matter does not go out of the stream of court process permanently — If there is no settlement, the matter is returned to the court for framing issues and proceeding with the trial.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 89 — ADR processes (Lok Adalat, Mediation and Judicial Settlement) — If the parties are not agreeable for either arbitration or conciliation, both of which require consent of all parties, the court has to consider which of the other three ADR processes (Lok Adalat, Mediation and Judicial Settlement) which do not require the consent of parties for reference, is suitable and appropriate and refer the parties to such ADR process — If mediation process is not available (for want of a mediation centre or qualified mediators), necessarily the court will have to choose between reference to Lok Adalat or judicial settlement — If facility of mediation is available, then the choice becomes wider — It the suit is complicated or lengthy, mediation will be the recognized choice — If the suit is not complicated and the disputes are easily sortable or could be settled by applying clear cut legal principles, Lok Adalat will be the preferred choice — If the court feels that a suggestion or guidance by a Judge would be appropriate, it can refer it to another Judge for dispute resolution — The court has used its discretion in choosing the ADR process judiciously, keeping in view the nature of disputes, interests of parties and expedition in dispute resolution.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 89 — Arbitration & Conciliation Act, 1996, Section 30 and 36 — When the court refers the matter to arbitration under Section 89 of the Act, as already noticed, the case goes out of the stream of the court and becomes an independent proceeding before the arbitral tribunal — Arbitration being an adjudicatory process, it always ends in a decision — There is also no question of failure of ADR process or the matter being returned to the court with a failure report — The award of the arbitrators is binding on the parties and is executable/enforceable as if a decree of a court, having regard to Section 36 of the AC Act — If any settlement is reached in the arbitration proceedings, then the award passed by the Arbitral Tribunal on such settlement, will also be binding and executable/enforceable as if a decree of a court, under Section 30 of the AC Act. 

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 89 readwith Order 10, Rule 1-A — Appropriate stage for referring the matter to  ADR processes — Held, having regard to the provisions of Section 89 and Rule 1-A of Order 10, the stage at which the court should explore whether the matter should be referred to ADR processes, is after the pleadings are complete, and before framing the issues, when the matter is taken up for preliminary hearing for examination of parties under Order 10 of the Code — However, if for any reason, the court had missed the opportunity to consider and refer the matter to ADR processes under Section 89 before framing issues, nothing prevents the court from resorting to Section 89 even after framing issues — But once evidence is commenced, the court will be reluctant to refer the matter to the ADR processes lest it becomes a tool for protracting the trial.

 
Civil Procedure Code, 1908

(xxi) Civil Procedure Code, 1908 — Section 89 — Procedure to be adopted by a court under section 89 of the Code as under :

 

 a) When the pleadings are complete, before framing issues, the court shall fix a preliminary hearing for appearance of parties. The court should acquaint itself with the facts of the case and the nature of the dispute between the parties.


 b) The court should first consider whether the case falls under any of the category of the cases which are required to be tried by courts and not fit to
be referred to any ADR processes. If it finds the case falls under any excluded category, it should record a brief order referring to the nature of the case and why it is not fit for reference to ADR processes. It will then proceed with the framing of issues and trial.

 c) In other cases (that is, in cases which can be referred to ADR processes) the court should explain the choice of five ADR processes to the parties to enable them to exercise their option.


 d) The court should first ascertain whether the parties are willing for arbitration. The court should inform the parties that arbitration is an
adjudicatory process by a chosen private forum and reference to arbitration will permanently take the suit outside the ambit of the court. The parties should also be informed that the cost of arbitration will have to be borne by them. Only if both parties agree for arbitration, and also agree upon the arbitrator, the matter should be referred to arbitration.


 e) If the parties are not agreeable for arbitration, the court should ascertain whether the parties are agreeble for reference to conciliation which will
be governed by the provisions of the AC Act. If all the parties agree for reference to conciliation and agree upon the conciliator/s, the court can refer the matter to conciliation in accordance with section 64 of the AC Act.


 f) If parties are not agreeable for arbitration and conciliation, which is likely to happen in most of the cases for want of consensus, the court should,
keeping in view the preferences/options of parties, refer the matter to any one of the other three other ADR processes : (a) Lok Adalat; (b) mediation by a neutral third party facilitator or mediator; and (c) a judicial settlement, where a Judge assists the parties to arrive at a settlement. 


 (g) If the case is simple which may be completed in a single sitting, or cases relating to a matter where the legal principles are clearly settled and
there is no personal animosity between the parties (as in the case of motor accident claims), the court may refer the matter to Lok Adalat. In case where the questions are complicated or cases which may require several rounds of negotiations, the court may refer the matter to mediation. Where the facility of mediation is not available or where the parties opt for the guidance of a Judge to arrive at a settlement, the court may refer the matter to another Judge for attempting settlement.


 (h) If the reference to the ADR process fails, on receipt of the Report of the ADR Forum, the court shall proceed with hearing of the suit. If there is a
settlement, the court shall examine the settlement and make a decree in terms of it, keeping the principles of Order 23 Rule 3 of the Code in mind.


 (i) If the settlement includes disputes which are not the subject matter of the suit, the court may direct that the same will be governed by Section 74 of
the AC Act (if it is a Conciliation Settlement) or Section 21 of the Legal Services Authorities Act, 1987 (if it is a settlement by a Lok Adalat or by mediation which is a deemed Lok Adalat). This will be necessary as many settlement agreements deal with not only the disputes which are the subject matter of the suit or proceeding in which the reference is made, but also other disputes which are not the subject matter of the suit.


 (j) If any term of the settlement is ex facie illegal or unforceable, the court should draw the attention of parties thereto to avoid further litigations
and disputes about executability.

 

 The Court should also bear in mind the following consequential aspects, while giving effect to Section 89 of the Code :

 

 (i) If the reference is to arbitration or conciliation, the court has to record that the reference is by mutual consent. Nothing further need be stated in the order sheet.


 (ii) If the reference is to any other ADR process, the court should briefly record that having regard to the nature of dispute, the case deserves to be
referred to Lok Adalat, or mediation or judicial settlement, as the case may be. There is no need for an elaborate order for making the reference.


 (iii) The requirement in Section 89(1) that the court should formulate or reformulate the terms of settlement would only mean that court has to briefly refer
to the nature of dispute and decide upon the appropriate ADR process.


 (iv) If the Judge in charge of the case assists the parties and if settlement negotiations fail, he should not deal with the adjudication of the matter, to
avoid apprehensions of bias and prejudice. It is therefore advisable to refer cases proposed for Judicial Settlement to another Judge.


 (v) If the court refers the matter to an ADR process (other than Arbitration), it should keep track of the matter by fixing a hearing date for the ADR
Report. The period allotted for the ADR process can normally vary from a week to two months (which may be extended in exceptional cases, depending upon the availability of the alternative forum, the nature of case etc.). Under no circumstances the court should allow the ADR process to become a tool in the hands of an unscrupulous litigant intent upon dragging on the proceedings.


 (vi) Normally the court should not send the original record of the case when referring the matter for an ADR forum. It should make available only copies of
relevant papers to the ADR forum. (For this purpose, when pleadings are filed the court may insist upon filing of an extra copy). However if the case is referred to a Court annexed Mediation Centre which is under the exclusive control and supervision of a Judicial Officer, the original file may be made available wherever necessary.


 The procedure and consequential aspects referred to above are intended to be general guidelines subject to such changes as the concerned court may deem fit
with reference to the special circumstances of a case.    

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 89 readwith Order 10, Rule 1-A — Appropriate stage for referring the matter to  ADR processes in family disputes or matrimonial cases — Held. though in civil suits, the appropriate stage for considering reference to ADR processes is after the completion of pleadings, in family disputes or matrimonial cases, the position can be slightly different — In those cases, the relationship becomes hostile on account of the various allegations in the petition against the spouse — The hostility will be further aggravated by the counter-allegations made by the respondent in his or her written statement or objections — Therefore, as far as Family Courts are concerned, the ideal stage for mediation will be immediately after service of respondent and before the respondent files objections/written statements.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 89 — Though the process under Section 89 appears to be lengthy and complicated, in practice the process is simple: know the dispute; exclude ‘unfit’ cases; ascertain consent for arbitration or conciliation; if there is no consent, select Lok Adalat for simple cases and mediation for all other cases, reserving reference to a Judge assisted settlement only in exceptional or special cases.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 89 — Whether section 89 of the CPC empowers the court to refer the parties to a suit to arbitration without the consent of both parties? — Held, no — A court has no power, authority or jurisdiction to refer unwilling parties to arbitration, if there is no arbitration agreement.

 
Tuesday, August 10, 2010
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 10, Rule 2 — A party giving an answer in an examination under Order 10 Rule 2 is neither giving evidence nor giving a affidavit.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 10, Rule 2 — The object of oral examination under Rule 2 of Order 10 is to ascertain the matters in controversy in suit, and not to record evidence or to secure admissions — The statement made by a party in an examination under Rule 2 is not under oath, and is not intended to be a substitute for a regular examination under oath under Order 18 of the Code — It is intended to elucidate what is obscure and vague in the pleadings. 

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 10, Rule 2 — The object of Order 10 Rule 2 is not to elicit admissions — Nor does it provide for or contemplate admissions.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 10, Rule 2 read with Order 12, Rule 3A — Court, held, has power to call upon a party to admit any document when a Party is being examined under Order 10 Rule 2 — But the court can only call upon a party to admit any document and cannot cross-examine a party with reference to a document.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 10, Rule 2 — The power under Order 10 Rule 2 of the Code, cannot be converted into a process of selective cross-examination by the court, before the party has an opportunity to put forth his case at the trial. 

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 10, Rule 2 and Order 18, Rule 14 — Evidence Act, 1872, Section 165 — The power to identify the matters in controversy by examination of parties at the pre-trial stage under Order 10 Rule 2, is completely different from the power exercised by the court under Section 165 of the Evidence Act to put any question it pleases in any form, to a witness or a party in order to discover or to obtain proper proof of relevant facts, or the power under Order 18 Rule 14 of the Code to recall and examine any witness. 

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 10, Rule 2 — Examination under Rule 2 of Order 10 of the Code, need not be restricted to allegations in the pleadings of the other party, but can relate to elucidating any matter in controversy in the suit. 

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 10, Rule 2 — Rule 2 enables the court to examine not only any party, but also any person accompanying either party or his pleader, to obtain answer to any material question relating to the suit, either at the first hearing or subsequent hearings.  

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 10, Rule 2 — Whether the court could, in an examination under Order 10 Rule 2 of the Code, confront a defendant with only the signature portion of a disputed unexhibited document filed by the plaintiff (by covering the remaining portions of the document) and require him to identify the seal/stamp and signature? — Held, no.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 10, Rule 1 — Held, Rule 1 enables the court to ascertain from each of the parties (or his pleader), at the first hearing whether he admits or denies such of those allegations of fact made in the pleadings of the other party, which were not expressly or by necessary implication admitted or denied by him — In other words, if the defendant in his written statement fails to expressly or by necessary implication admit or deny any of the plaint allegations, the court can ascertain from the defendant, whether he admits or denies the said plaint allegations — Similarly, if the defendant has made some allegations against the plaintiff in his written statement, and no reply is filed thereto by the plaintiff, the court can ascertain whether plaintiff admits or denies those allegations.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 10, Rule 1 — Resort to Rule 1 of Order 10 is necessary only in cases where the court finds that the plaintiff or the defendant has failed to expressly or impliedly admit or deny any of the allegations made against him, by the other party — Examination under Order 10 Rule 1 of the Code will not be necessary where the pleadings of each party have been fully and clearly traversed by the other party. 

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 10, Rule 1 — Under Rule 1 of Order 10, the court can examine only the parties and their advocates, that too at the ‘first hearing’.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 10, Rule 1 and Order 10, Rule 2 — What is the purpose of an examination under Rule 1 and Rule 2 of Order 10? — Held, while the purpose of an examination under Rule 1 is to clarify the stand of a party in regard to the allegations made against him in the pleadings of the other party, the purpose of the oral examination under Rule 2 is mainly to elucidate the allegations even in his own pleadings, or any documents filed with the pleadings. 

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 12 Rule 3A read with Order 10 Rule 2 — The power of court to call upon a party to admit any document and record whether the party admits or refuses or neglects to admit such document is traceable to Order 12 Rule 3A rather than Order 10 Rule 2 of the Code — Nothing however comes in the way of the court combining the power under Order 12 Rule 3A with its power under Order 10 Rule 2 of the Code and calling upon a party to admit any document when a Party is being examined under Order 10 Rule 2 — But the court can only call upon a party to admit any document and cannot cross-examine a party with reference to a document.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 10, Rule 2 — Criminal Procedure Code, 1973, Sections 340 and 195(1)(b) — Indian Penal Code, 1860, Section 195 — Whether on the basis of the answer given by a party, in response to a question under Order 10 Rule 2 of the Code, the court could prosecute him under Section 340 of Code of Criminal Procedure read with Section 195 of the Indian Penal Code? — Held, no.

 
Tuesday, August 03, 2010
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 25 — Transfer of Suits — Held,  Section 25 of the Code itself makes it clear that if any application is made for transfer, after notice to the parties, if the Court is satisfied that an order of transfer is expedient for the ends of justice necessary direction may be issued for transfer of any suit, appeal or other proceedings from a High Court or other Civil Court in one State to another High Court or other Civil Court in any other State.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 25 — Power to transfer suits — In order to maintain fair trial, this Court can exercise this power and transfer the proceedings to an appropriate Court.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 25 — Power to transfer suits — Held, the mere convenience of the parties may not be enough for the exercise of power but it must also be shown that trial in the chosen forum will result in denial of justice — Further illustrations are, balance of convenience or inconvenience to the plaintiff or the defendant or witnesses and reasonable apprehension in the mind of the litigant that he might not get justice in the Court in which suit is pending — The above-mentioned instances are only illustrative in nature. In the interest of justice and to adherence of fair trial, this Court exercises its discretion and order transfer in a suit or appeal or other proceedings.

 
Saturday, July 24, 2010
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Sections 151 readwith Sections 35, 35A, 35B and Order 25, Rule 1 — As there are specific provisions in the Code, relating to costs, security for costs and damages, the court cannot invoke Section 151 on the ground that the same is necessary for ends of justice.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 151 — Power of court to direct plaintiff to file an undertaking that  he will pay a sum directed by the court to the defendant as damages in case he fails in the suit — Held, a court trying a civil suit, cannot, in exercise of inherent power under section 151 of the Code, make an interim order directing the plaintiff to file an undertaking that he will pay a sum directed by the court to the defendant as damages in case he fails in the suit.  

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 25, Rule 1 — Held, the provision , only enables the court to require the plaintiff to furnish security for payment of costs incurred or likely to be incurred by the defendant.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 35 — As Section 35 of the Code does not impose any ceiling the desired object can be achieved by the following : (i) courts levying costs, following the result, in all cases (non-levy of costs should be supported by reasons); and (ii) appropriate amendment to Civil Rules of Practice relating to taxation of costs, to make it more realistic in commercial litigation.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 35A — The provision relating to compensatory costs (Section 35A of the Code) in respect of false or vexatious claims or defences has become virtually infructuous and ineffective, on account of inflation — Under the said section, award of compensatory costs in false and vexatious litigation, is subject to a ceiling of Rs.3,000/- — This requires a realistic revision keeping in view, the observations in Salem Advocates Bar Association [2005 (6) SCC 344].

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 35B — Section 35B providing for costs for causing delay is seldom invoked — It should be regularly employed, to reduce delay.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 35, 35A, 35B and Order 7, Rule 11, Order 14, Rule 2 and Order 17, Rules 2 and 3 — Safeguards to prevent and discourage frivolous, speculative and vexatious suits — Held, certain safeguards are built into the Code to prevent and discourage frivolous, speculative and vexatious suits — Section 35 of the Code provides for levy of costs — Section 35A of the Code provides for levy of compensatory costs in respect of any false or vexatious claim — Order 7 Rule 11 of the Code provides for rejection of plaint, if the plaint does not disclose a cause of action or is barred by any law — Order 14 Rule 2 of the Code enables the court to dispose of a suit by hearing any issue of law relating to jurisdiction or bar created by any law, as a preliminary issue — Even if a case has to be decided on all issues, the court has the inherent power to expedite the trial/hearing in appropriate cases, if it is of the view that either party is abusing the process of court or that the suit is vexatious — The court can secure the evidence (examination-in-chief) of witnesses by way of affidavits and where necessary, appoint a commissioner for recording the cross examination so that it can dispose of the suit expeditiously — The court can punish an erring plaintiff adopting delaying tactics, by levying costs under Section 35B or taking action under Order 17 Rules 2 and 3 of the Code — Apart from recourse to these provisions in the Code, an aggrieved defendant can also sue the plaintiff for damages, if the suit is found to be based on a forged or false document, or if the suit was vexatious or frivolous.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 95 — Held, Section 95 provides that where in any suit in which an arrest or attachment has been affected or a temporary injunction granted, the suit of the plaintiff ultimately fails and it appears to the court that there was no reasonable or probable ground for instituting the suit, and the court may upon an application by the defendant, award against the plaintiff, such amount not exceeding Rs.50,000/- as it deems a reasonable compensation to the defendant for the expense or injury caused to him — It further provides that an order determining any such application shall bar any suit for compensation in respect of such arrest, attachment or injunction — In other words, if a suit is field without sufficient grounds and in such a suit the plaintiff obtains an interim order of arrest, attachment or temporary injunction, the court can grant compensation up to Rs. 50,000 on application by the defendant.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 95 — Three things are implicit from this provision — The first is, if no interim order (of arrest, attachment or injunction) is obtained by the plaintiff, the court cannot grant any compensation to defendant — The second is that the compensation awardable by the court cannot exceed Rs.50,000/- — The third is that if a plaintiff does not secure an interim order of arrest, attachment or temporary injunction but merely files a suit on insufficient or false grounds the remedy of the defendant, if the defendant wants any compensation (other than costs and exemplary costs under Section 35 and 35A of the Code), he has to file a separate suit.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 151 — Applicability of — As the provisions of the Code are not exhaustive, section 151 is intended to apply where the Code does not cover any particular procedural aspect, and interests of justice require the exercise of power to cover a particular situation.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 151 — Held, Section 151 is not a provision of law conferring power to grant any kind of substantive relief — It is a procedural provision saving the inherent power of the court to make such orders as may be necessary for the ends of justice and to prevent abuse of the process of the court — It cannot be invoked with reference to a matter which is covered by a specific provision in the Code — It cannot be exercised in conflict with the general scheme and intent of the Code — It cannot be used either to create or recognize rights, or to create liabilities and obligations not contemplated by any law.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Power of  court to give directions — In a suit governed by the Code, no court can, merely because it considers it just and equitable, issue directions which are contrary to or not authorized by law — Courts will do well to keep in mind the warning given by Benjamin N. Cardozo in The Nature of the Judicial Process : (Yale University Press -1921 Edition Page 114).

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 89 — The lack of appropriate provisions relating to costs has resulted in a steady increase in malicious, vexatious, false, frivolous and speculative suits, apart from rendering Section 89 of the Code ineffective. 

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 25, Rule 1 and Sections 9 and 151 — Whether a court has the power to pass an order directing a plaintiff in a suit for specific performance (or any other suit), to file an undertaking that in the event of not succeeding in the suit, he shall pay Rs.25 lakhs (or any other sum) by way of damages to the defendant? — Held, no — The Code, nowhere authorizes or empowers the court to issue a direction to a plaintiff to file an undertaking to pay damages to the defendant in the event of being unsuccessful in the suit — The Code also does not contain any provision to assess the damages payable by a plaintiff to defendant, when the plaintiff’s suit is still pending, without any application by defendant, and without a finding of any breach or wrongful act and without an inquiry into the quantum of damages.

 
Saturday, July 10, 2010
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 115 — Whether the Revisional Court is justified in reappreciating the evidence and substituting its own findings on the ground that the Appellate Court did not consider the evidence properly? — Held, no — High Court cannot re-appreciate the evidence and set aside concurrent findings of facts by taking a different view of the evidence — It is always open to the High Court to remit the matter if in its opinion the courts below did not consider the material evidence on record.

 
Friday, July 02, 2010
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 100 — Second Appeal — Held, Second Appeal under Section 100 CPC is maintainable basically on a substantial question of law and not on facts — However, if the High Court comes to the conclusion that the evidence on record recorded by the courts below are perverse being based on no evidence or based on irrelevant material, the appeal can be entertained and it is permissible for the Court to re-appreciate the evidence.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 100 — Second Appeal — Held, There is no prohibition to entertain a second appeal even on question of fact provided the Court is satisfied that the findings of the courts below were vitiated by non-consideration of relevant evidence or by showing erroneous approach to the matter — (Vide Jagdish Singh Vs. Nathu Singh, AIR 1992 SC 1604; Smt. Prativa Devi Vs. T.V. Krishnan, (1996) 5 SCC 353; Satya Gupta @Madhu Gupta Vs. Brijesh Kumar, (1998) 6 SCC 423 Ragavendra Kumar Vs. Firm Prem Machinery & Co., AIR 2000 SC 534; and Molar Mal Through Lr. Vs. M/s. Kay Iron Works Pvt. Ltd., AIR 2000 SC 1261).

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 100 — Second Appeal — Held, Second appeal does not lie on the ground of erroneous findings of facts based on appreciation of the relevant evidence — The High Court should not entertain a second appeal unless it raises a substantial question of law — It is the obligation on the Court of Law to further the clear intendment of the Legislature and not to frustrate it by ignoring the same.

 
Friday, June 18, 2010
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 6, Rule 16 — Additional written statement, in the present case, was taken on record without any objection from respondent Nos.1 and 2, who did not even seek leave of the court to file further pleadings — After a long time gap of three years and six months respondent Nos.1 and 2 filed application for striking off the additional written statement by asserting that the legal representatives of the deceased defendant No.2 do not have right under the Code of Civil Procedure (CPC) to file such written statement and, in any case, they cannot be allowed to raise new plea about their title to the suit premises — Respondent Nos. 1 and 2 further pleaded that the additional written statement is liable to be struck off because before filing the same, the appellants did not seek leave of the court — Question arose — What is the effect of delay in filing the application by respondent Nos. 1 and 2 for striking off the additional written statement — Held — Once the additional written statement filed by the appellants was taken on record without any objection by respondent Nos. 1 and 2, who also led their evidence keeping in view the pleadings of the additional written statement, the High Court was not at all justified in allowing the application filed for striking off the additional written statement — As a matter of fact, respondent Nos. 1 and 2 have delayed the proceedings for over two years by filing frivolous application for striking off the additional written statement.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 6, Rule 16 — Additional written statement — Application for striking off — Contested on the ground that additional written statement cannot be struck off because the applicants/ respondent Nos. 1and 2 have failed to make out a case for exercise of power by the court under Order VI Rule 16 CPC — Whether the High Court could pass an order for striking off the additional written statement despite the fact that respondent Nos. 1and 2 failed to make out a case for exercise of power by the court under Order VI Rule 16 CPC — Held — Since the striking off pleadings has serious adverse impact on the rights of the concerned party, the power to do so has to be exercised with great care and circumspection — In our opinion, the learned Single Judge did not have the jurisdiction to direct striking off the additional written statement without being satisfied that respondent Nos. 1 and 2 were able to make out a case for exercise of power by the court under either of three clauses of Order VI Rule 16 CPC — Knowles v. Roberts (1888) 38 Ch D, 263, Boven, L.J and Sathi Vijay Kumar v. Tota Singh and others (2006) 13 SCC 353 referred.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 6 Rule 16 — Striking out pleading — Power of court — Held — Court’s power to strike out any pleading at any stage of the proceedings can be exercised in either of the three eventualities i.e., where the pleadings are considered by the court unnecessary, scandalous, frivolous or vexatious; or where the court is satisfied that the pleadings tend to prejudice, embarrass or delay the fair trial of the suit or which is otherwise considered as an abuse of the court.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 6 Rule 16 — Election petition — Whether the provisions of Order VI Rule 16 of CPC are applicable to Election petitions? — Discussed in the light of law laid down in Sathi Vijay Kumar v. Tota Singh and others (2006) 13 SCC 353, wherein it is held that the provisions of Order VI Rule 16 CPC are applicable to election petitions.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 6, Rule 16 and Order 22, Rule 4 — Additional written statement — Filed by LRs of AR — Contested on the ground that same were inconsistent with and beyond the scope of the defence set up by AR in the original written statement — Held — Plea negated — Bal Kishan v. Om Parkash (1986) 4 SCC 155 and Vidyawati v. Man Mohan (1995) 5 SCC 431 distinguished.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 6, Rule 16 — Striking off the additional written statement — Plea of the appellants, in the present case,  that the application filed by respondent Nos.1 and 2 for striking off the additional written statement was highly belated — Rejected by the High Court by observing that the trial Court could have compensated appellants by imposing cost — Held, High Court was not at all justified in allowing the application filed for striking off the additional written statement and that too without even adverting to Order VI Rule 16 CPC and considering whether respondent Nos. 1 and 2 were able to make out a case for exercise of power by the court under that provision — High Court should have seriously examined the issue of delay in the backdrop of the facts that respondent Nos.1 and 2 did not object to the taking on record the additional written statement or framing of additional issues and led their evidence and further that the application was filed after almost one year of completion of their evidence — Appeal allowed — The impugned order of the High Court is set aside and the one passed by the trial Court is restored — Respondent Nos. 1 and 2 shall pay cost of Rs.25,000/- to the appellants for burdening them with unnecessary litigation.

 
Thursday, June 03, 2010
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 100 — Second Appeal — High Court can interfere with the finding of fact while deciding the Second Appeal provided the findings recorded by the Courts below are perverse.

 
Sunday, May 30, 2010
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Under Order 12, Rule 6, the admission must be clear and unambiguous.

 
Thursday, April 08, 2010
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 41, Rules 2 and 3 — Do the principles relating to amendment of pleadings in original proceedings apply to the amendment in the grounds of appeal? — Held, yes — Provisions of Order XLI Rules 2 and 3 CPC leave no manner of doubt that the appellate court has power to grant leave to amend the memorandum of appeal.

 
Tuesday, March 23, 2010
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 12, Rules 1 and 2 — Appellants herein did not lead any oral evidence, yet some of the documents filed by appellants were exhibited, probably under misconception of law that they were not disputed in Court by respondent — Appellants had also not served any notice of admission or denial of documents on the respondent during trial as contemplated under Order XII Rule 2 of the Code of Civil Procedure — Even the defence that has been pleaded and set up by the appellants in their written statement was not put forth to the respondent, while he was in the witness box — Held,  no advantage thereof could be accrued to the appellants, even if it is assumed that said documents have been admitted by respondent and were then exhibited and marked — Appeallants had miserably failed to prove and establish their defence in the case — Appeal dismissed.

 
Monday, March 22, 2010
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 20 Rule 18 — Suit for partition — In respect of three non-agricultural plots and some movables — Preliminary decree and final decree — Trial court decreed the suit directing a preliminary decree for partition be drawn in regard to the one-third share  of  the plaintiffs  in the  said plots  and a  final decree  be drawn  up through appointment of a Commissioner for actual division of the plots by metes and  bounds — Appeal against decree before High Court dismissed on 29/9/1974 — Application for drawing up of final decree was moved by respondent 1/5/1987 — Petitioner filed application on 15/4/1991 to drop the final decree proceedings as barred by limitation — Trial court dismissed the application on the ground that once the rights/shares of the plaintiff had been finally determined by a preliminary decree, there is no limitation for an application for affecting the actual partition/division in accordance with the preliminary decree, as it should be considered to be an application made in a pending suit — Revision petition against order of trial court also dismissed by the High Court — Hence this SLP — Held,  application filed by the plaintiff in this case for drawing up of a final decree, was rightly held to be not subject to any period of limitation — Provisions of Limitation Act are inapplicable to an application for drawing up a final decree — Limitation Act, 1963, Articles 136 and 137.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 20 Rule 18 — Difference between ‘suit for partition’ and ‘separation of share’ — Held, ‘Partition’ is a re-distribution or adjustment of pre-existing rights, among co-owners/coparceners, resulting in a division of lands or other properties jointly held by them, into different lots or portions and delivery thereof to the respective allottees — The effect of such division is that the joint ownership is terminated and the respective shares vest in them in severalty — A partition of a property can be only among those having a share or interest in it — A person who does not have a share in such property cannot obviously be a party to a partition — ‘Separation of share’ is a species of ‘partition’ — When all co-owners get separated, it is a partition — Separation of share/s refers to a division where only one or only a few among several co-owners/coparceners get separated, and others continue to be joint or continue to hold the remaining property jointly without division by metes and bounds — For example, where four brothers owning a property divide it among themselves by metes and bounds, it is a partition. But if only one brother wants to get his share separated and other three brothers continue to remain joint, there is only a separation of the share of one brother. 

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 20 Rule 18 — Suit for partition or separation of a share — Held, in a suit is for partition or separation of a share, the court at the first stage decides whether the plaintiff has a share in the suit property and whether he is entitled to division and separate possession — The decision on these two issues is exercise of a judicial function and results in first stage decision termed as ‘decree’ under Order 20 Rule 18(1) and termed as preliminary decree’ under Order 20 Rule 18(2) of the Code — The consequential division by metes and bounds, considered to be a ministerial or administrative act requiring the physical inspection, measurements, calculations and considering various permutations/ combinations/alternatives of division is referred to the Collector under Rule 18(1) and is the subject matter of the final decree under Rule 18(2).

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 20 Rule 18 — Limitation Act, 1963 — Suit for partition — Preliminary decree passed — Limitation for an application for drawing up of a final decree — Held, the Schedule to the Limitation Act, 1963, does not contain any Article prescribing the limitation for an application for drawing up of a final decree.

 
Tuesday, February 23, 2010
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 148-A — Scope of — Summons held, cannot be issued by the Civil Courts, so as to be served on the other side through a Baliff of the Court in a proceeding under Section 148-A of the CPC — Such is not the scope of a Caveat under Section 148-A of the CPC.

 
Friday, February 19, 2010
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 92 — State Government Notification No. GOM No.727 dated 8.3.1960 — Interpretation of section 92 of the Code of Civil Procedure, with reference to the State Government Notification No. GOM No.727 dated 8.3.1960 — Held,  District Court in the State of Tamil Nadu has jurisdiction to try a suit under section 92 of the code — Decision of the Madras High Court in P. S. Subramanian v. K. L. Lakshmanan – 2007 (5) Mad. L.J. 921, is not correct and therefore, cannot be approved.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 92 — Word ‘or’ — Whether the word ‘or’ was used in section 92 of the Code in a substitutive sense — Held, the provisions of section 92 do not give room for interpreting the word “or” as a substitutive, so as to lead to an interpretation that when the Government notified any other court, such notified court alone will have jurisdiction and not the District Court. 

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 92 — Scope of — Held, it is clear from section 92 of the Code that the legislature did not want to go by the general rule contained in section 15 of the Code that every suit shall be instituted in the court of the lowest grade competent to try it, in regard to suits relating to public Trusts — The intention of the law makers was that such suits should be tried by the District Court — At the same time, the law makers contemplated that if there was heavy work load on the District Court, the State Government should be enabled to empower any other court (within the local limits of whose jurisdiction, the whole or any part of the subject matter is situate), also to entertain such suits — Therefore, the word “or” is used in the ordinary and normal sense, that is to denote an alternative, giving a choice.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 92 read with Sections 15 to 20 — Tamil Nadu Civil Courts Act, 1873, Section 12 — In view of the express provisions of section 92 specifying the courts which will have jurisdiction to entertain suits under that section, neither the provisions of sections 15 to 20 of the Code nor the provisions of section 12 of the Civil Courts Act will apply to such suits.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 92 — Decision of the learned Single Judge of the Madras High Court in PS Subramanian case [2007 (5) Mad. L.J. 921] which ignores the earlier decisions of that court and decisions of other High Courts which have consistently taken the view that where jurisdiction is also conferred on any other court by the state government by a notification (under section 92 of the Code or under any similar provision), then that court and the District Court will have concurrent jurisdiction, held, is not correct and therefore, cannot be approved.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 92 — Jurisdiction  to entertain suit under Section 92 — Whether depends upon the value of the subject matter of the suit ? — Held, no — Section 92 is a self contained provision, and conferment of jurisdiction in regard to suits under that section does not depend upon the value of the subject matter of the suit — Therefore, insofar as the suits under section 92 are concerned, the District Courts and Subordinate Courts will have concurrent jurisdiction without reference to any pecuniary limits.

 
Monday, January 25, 2010
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 100(5) — Second appeal — Held, sub-section (5) of section 100 CPC provides that a second appeal shall be heard on the substantial questions of law formulated by the Court — It also provides that the respondent, at the hearing of the second appeal, can argue that the case does not involve such questions — Thus the substantial questions of law formulated by the High Court are not final, and it is open to the petitioner herein (who is the respondent in the pending appeal) to demonstrate during hearing that no substantial question of law arose for consideration in the case and that the second appeal should be dismissed.

 
Friday, January 08, 2010
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 22, Rule 5 — Determination of the question as to who is the legal representatives of the deceased plaintiff or defendant under Order XXII Rule 5 of the Code of Civil Procedure is only for the purposes of bringing legal representatives on record for the conducting of those legal proceedings only and does not operate as res judicata and the inter se dispute between the rival legal representatives has to be independently tried and decided in probate proceedings.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 22, Rule 5 — Contention of the learned counsel for the appellant that in a proceeding under Order XXII Rule 5 of the Code, it was not open to the court to consider genuineness of the Will alleged to have been executed by the testator and come to a finding that the Will was suspicious and, therefore, the appellant could not be substituted/impleaded as a legal representative of the deceased plaintiff — Held, tenable — High Court as well as the trial Court, in the present case, were not at all justified in rejecting the application for impleadment filed at the instance of the appellant based on the alleged Will of the deceased plaintiff at this stage of the proceedings.

 
Tuesday, December 22, 2009
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 22, Rule 5 and Section 11 — An enquiry under Order 22 Rule 5, CPC is of a summary nature and findings therein cannot amount to res judicata, however, that legal position is true only in respect of those parties, who set up a rival claim against the legatee.

 
Wednesday, December 09, 2009
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 35B — Power to dismiss the suit for non-payment of costs — Held, section 35B of the CPC does not confer power to dismiss the suit for non-payment of costs — Therefore contention of the respondents, in the present case, that section 35B contemplates or requires dismissal of the suit as an automatic consequence of non-payment of costs by plaintiff, held, not tenable.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 35B — Non-payment of costs — Held, non-payment of costs results in forfeiture of the right to further prosecute the suit or defence as the case may be.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 35B readwith Section 148 — When section 35B states that payment of such costs on the date next following the date of the order shall be a condition precedent for further prosecution, it clearly indicates that when the costs are levied, it should be paid on the next date of hearing and if it is not paid, the consequences mentioned therein shall follow — But the said provision will not come in the way of the court, in its discretion extending the time for such payment, in exercise of its general power to extend time under section 148 of CPC — Having regard to the scheme and object of section 35B, it is needless to say that such extension can be only in exceptional circumstances and by subjecting the defaulting party to further terms — No party can routinely be given extension of time for payment of costs, having regard to the fact that such costs under section 35B were itself levied for causing delay.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 17, Rule1(2), proviso (e) and Section 35B — It is evident from Rule 1(2) proviso (e) of Order 17 that where a witness is present in court but the other side is not ready to cross-examine the witness, the court can dispense with his cross-examination — But where a genuine and bona fide request is made for adjourment, instead of resorting to forfeiture of the right to cross-examine, the court may grant time by levying costs — However, if the costs levied for seeking an adjournment to cross-examine a witness are not paid, the appropriate course is to close the cross-examination of the witness and prohibit the further prosecution of the suit or the defence, as the case may be by the defaulting party.

 
Thursday, October 15, 2009
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order XIII Rule 10 — “Procedural Mechanics” involving interpretation of Order XIII rule 10 — In the present case, allegedly,  a deed of partition was entered in to by and between co-sharers — Suit for cancellation of the partition deed by appellant — F.I.R. was also lodged in relation to deed — I.O. recovered the original deed from the custody of respondent — Same was sent for Forensic Science Laboratory — Appellant filed an application calling for the report of the forensic expert from the Court of Judicial Magistrate as regards the purported signature of the petitioner — Application was allowed by the learned Trial Judge — In the meantime, a second report with regard to the thumb impression of the petitioner was also received from the Forensic Science Laboratory — Similar application under Order XIII rule 10 C.P.C. has been filed by him before Trial Judge — Trial Court rejected the same — An application under Article 227 of the Constitution filed thereagainst has been dismissed by the High Court — Appeal against the impugned judgment of High Court — Question of power of Civil Court under Order XIII rule 10 C.P.C to calling for document from Criminal Court, when both  civil proceedings and as well as criminal proceedings are pending with regard to same subject matter and document is collected by investigating Officer as a piece of evidence in criminal proceeding — Adjudged — Order XIII rule 10 empowers the Court to send papers from its own records or from other courts — Trial Judge himself had allowed a similar application in the suit — It is, therefore difficult to comprehend as to on what basis a similar prayer made by the appellant in regard to the opinion of finger print expert could be held to be not maintainable — The procedural mechanics necessary to arrive at a just decision must be encouraged — Having regard to the provisions contained in  Order XIII rule 8 of the Code, the Civil Court would furthermore be entitled to substitute the original document by a certified copy. We therefore, fail to appreciate as to why the said original document could not be called for — Appeal allowed — Anil Behari Ghosh v. Smt. Latika Bala Dessi & Ors. [AIR 1955 SC 566], Shanti  Kumar  Panda  v. Shakuntala  Devi  [(2004)  1  SCC  438],  [(2006) 1 SCC, Union of India & Anr. v. The State & Anr. [1961 XLII ITR 753], Kailash v. Nanhku & Ors. [(2005) 4 SCC 480] and  Uday Shankar Triyar v. Ram Kalewar Prasad Singh & Anr{(2006)l SCC 75] referred.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order XIII Rule 10 — ”Procedural Mechanics” involving interpretation of Order XIII rule 10 — Held — If bringing on record a document is essential for proving the case by a party, ordinarily the same should not be refused; the Court’s duty being to find out the truth. The procedural mechanics necessary to arrive at a just decision must be encouraged — However, the court in said process would not encourage any fishing enquiry. It would not assist a party in procuring the document which he should have himself filed.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order XIII Rule 10 — Applicability — Document may also be called for from the authorities constituted under any Act such as the authorities under the Income Tax Act — Union of India & Anr. v. The State & Anr. [1961 XLII ITR 753], Kailash v. Nanhku & Ors. [(2005) 4 SCC 480] and  Uday Shankar Triyar v. Ram Kalewar Prasad Singh & Anr{(2006) l scc 75] referred.

 

 
Tuesday, October 13, 2009
Civil Procedure Code, 1908

Civil Procedure Code — Order  XXXVII — Summary suit — Leave to defend — Whether should be granted by way of mercy ? — Held, no.

 
Civil Procedure Code, 1908

Civil Procedure Code — Order  XXXVII — Summary suit — Leave to defend — Imposition of conditions — Held, ordinarily the conditions imposed for grant of leave to defend in a suit filed under Order XXXVII of the Code of  Civil Procedure should  not be unduly onerous  when  leave  to  defend  is  granted — The conditions imposed thereunder unsustainably should not be onerous. As a result whereof, the defendant would not be able to defend the action for all intent and purpose — Each case, however, has to be considered on its own merits.

 
Civil Procedure Code, 1908

Civil Procedure Code, Order  XXXVII — Summary suit — Leave to defend — In Sunil Enterprises & Anr. v. SBI Commercial & International Bank Ltd. reported in (1998) 5 SCC 354), the Hon’ble Supreme Court has held that:-

 

(a) If the defendant satisfies the court that he has a good defence to the claim on merit, the defendant is entitled to unconditional leave to defend.

(b) If the defendant raises a tribal issue indicating that he has fair and bona fide or reasonable defence, although not a possibly good defence, the defendant is entitled to unconditional leave to defend.

(c) If the defendant discloses such facts as may be deemed sufficient to entitle him to defend, that is, if the  affidavit discloses that at the trial he may be able to establish a defence to the plaintiff’s claim, the court may impose conditions at the time of granting leave to defend – the conditions being as to time of trial or mode of trial but not as to payment into court or furnishing security. 

(d) If the defendant has no defence, or if the defence is sham or illusory or practically moonshine, the defendant is not entitled to leave to defend.                     

 
Wednesday, September 16, 2009
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 5, Rule 20 — Substituted service — Held, direction for substituted service under Order 5 Rule 20 can be passed only when Court is satisfied “that there is reason to believe that the defendant is keeping out of the way for the purpose of evading service, or that for any other reason the summons cannot be served in the ordinary way” — In the present case, Court on seeing the service return did not come to the conclusion that the husband was evading service — Therefore, the Court cannot, in absence of its own satisfaction that the husband is evading service, direct substituted service under Order 5 Rule 20 of the Code.

 
Tuesday, September 15, 2009
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 39, Rule 2A, Order 21, Rule 46B read with Order 38 Rule 11A — Contempt of Court Act, 1971, Section 2(b) — At all events, if a garnishee, or a defendant, who is directed to pay any sum of money, does not pay the amount, the remedy is to levy execution and not in an action for contempt or disobedience/breach under Order 39 Rule 2A — This is evident from Rule 46B of Order 21 read with Rule 11A of Order 38 of the Code.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 39, Rule 2A — Contempt of Court Act, 1971, Section 2(b) — Contempt jurisdiction, either under the Contempt of Court Act, 1971, or under Order 39 Rule 2A of the Code, held, is not intended to be used for enforcement of money decrees or directions/orders for payment of money — The process and concept of execution is different from process and concept of action for disobedience/contempt.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 39, Rule 2A — Contempt of Court Act, 1971, Section 2(b) — Held, the power exercised by a court under Order 39, Rule 2A of the Code is punitive in nature, akin to the power to punish for civil contempt under the Contempt of Courts Act, 1971 — The person who complains of disobedience or breach has to clearly make out beyond any doubt that there was an injunction or order directing the person against whom the application is made, to do or desist from doing some specific thing or act and that there was disobedience or breach of such order — While considering an application under Order 39 Rule 2A, the court cannot construe the order in regard to which disobedience/breach is alleged, as creating an obligation to do something which is not mentioned in the ‘order’, on surmises suspicions and inferences — The power under Rule 2A should be exercised with great caution and responsibility.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 39, Rule 2A — An application under Order 39, Rule 2A of the Code, held, is maintainable only when there is disobedience of any ‘injunction’ granted or other order made under Rule 1 or Rule 2 of Order 39 or breach of any of the terms on which the injunction was granted or the order was made.

 
Sunday, September 13, 2009
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 6, Rule 17 and Order 8, Rule 9 — Distinction between — Held, Order VI Rule 17 speaks of amendment of pleadings whereas Order VIII Rule 9 provides for subsequent pleadings by a defendant — The distinction between the two provisions is evident — Whereas by reason of the former unless a contrary intention is expressed by the court, any amendment carried out in the pleadings shall relate back to the date of filing original thereof, subsequent pleadings stand on different footings.  

 
Sunday, August 16, 2009
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 114 — Words “subject as aforesaid” — Meaning of — Held, the words “subject as aforesaid” occurring in Section 114 of the Code means subject to such conditions and limitations as may be prescribed as appearing in Section 113 thereof and for the said purpose, the procedural conditions contained in Order 47 of the Code must be taken into consideration.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 114 read with Order 47, Rule 1 — Held, Section 114 of the Code although does not prescribe any limitation on the power of the court but such limitations have been provided for in Order 47 of the Code, Rule 1.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 114 — Review — An application for review would lie inter alia when the order suffers from an error apparent on the face of the record and permitting the same to continue would lead to failure of justice — The power of review can also be exercised by the court in the event discovery of new and important matter or evidence takes place which despite exercise of due diligence was not within the knowledge of the applicant or could not be produced by him at the time when the order was made — An application for review would also lie if the order has been passed on account of some mistake — Furthermore, an application for review shall also lie for any other sufficient reason.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Setion 114 — Review court does not sit in appeal over its own order — A re-hearing of the matter is impermissible in law — It constitutes an exception to the general rule that once a judgment is signed or pronounced, it should not be altered — It is also trite that exercise of inherent jurisdiction is not invoked for reviewing any order — Review is not appeal in disguise.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 41, Rule 1 — Held, Order 41, Rule 1 of the Code stipulates that filing of an appeal would not amount to automatic stay of the execution of the decree — The law acknowledges that during pendency of the appeal it is possible for the decree holder to get the decree executed — The execution of the decree during pendency of the appeal would, thus, be subject to the restitution of the property in the event the appeal is allowed and the decree is set aside.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 47 Rule 1 — The Hon’ble Supreme Court in Board of Control for Cricket in India & Anr. v. Netaji Cricket Club & Ors. [(2005) 4 SCC 741]  had held that Order 47 Rule 1 of the Code provides for filing an application for review — Such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason — Thus, a mistake on the part of the court which would include a mistake in the nature of the undertaking may also call for a review of the order — An application for review would also be maintainable if there exists sufficient reason therefor — What would constitute sufficient reason would depend on the facts and circumstances of the case — The words “sufficient reason” in Order 47 Rule 1 of the Code are wide enough to include a misconception of fact or law by a court or even an advocate — An application for review may be necessitated by way of invoking the doctrine “actus curiae neminem gravabit”. 

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 47 Rule 1 — The Hon’ble Supreme Court in Jagmohan Singh v. State of Punjab & Ors. [(2007) 7 SCC 38], had held that Order 47 Rule 1 of the Code of Civil Procedure does not preclude the High Court or a court to take into consideration any subsequent event — If imparting of justice in a given situation is the goal of the judiciary, the court may take into consideration (of course on rare occasions) the subsequent events.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 7, Rule 7 read with Order 41, Rule 33 and Section 114 — Specific Relief Act, 1963, Sections 16(c) and 20(2)(b) — Held, appellate court while exercising its appellate jurisdiction would be entitled to take into consideration the subsequent events for the purpose of moulding the relief as envisaged under Order 7, Rule 7 read with Order 41, Rule 33 of the Code of Civil Procedure — The same shall, however, not mean that the court would proceed to do so in a review application despite holding that the plaintiff was not entitled to grant of a decree for specific performance of contract — For the purpose of obtaining a decree for specific performance of contract, the court must arrive at a conclusion that the plaintiff not only pleaded but also established his readiness and willingness to perform his part of contract throughout — Exercising the discretionary jurisdiction one way or the other having regard to Section 20(2)(b) would depend thereupon arriving at a finding of such fact.

 
Saturday, June 13, 2009
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 6, Rule 17 and Order 8, Rules 3 and 5 — Amendment of pleadings — It is true that ordinarily, an amendment of pleadings should not be allowed by reason whereof a party to the suit would resile from the admission made by him in the same proceedings at an earlier stage — In this case, however, the averments made in the plaint have merely been denied — There is no categorical or unequivocal admission as such — It is, thus, not a case where a party to the suit is resiling from his statement made in the earlier part of the proceedings — The learned trial Judge, in a case of this nature, had not or could not have taken recourse to the provisions of Order VIII Rule 3 and Order VIII Rule 5 of the Code of Civil Procedure — Gautam Sarup v. Leela Jetly & Ors. [(2008) 7 SCC 85] relied.

 
Wednesday, May 13, 2009
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 11, Order 9, Rules 8 and 9 — Resjudicata — Suit dismissed for non-prosecution — Held, the dismissal of the suit for non-prosecution was not a decision on merit — Consequently, the said order cannot operate as resjudicata — Further held, as the suit was dismissed for non-prosecution and not under Order 9 Rule 8, therefore, Order 9 Rule 9 cannot be said to be applicable.

 
Tuesday, April 14, 2009
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 23, Rule 1 — If a suit is to be decreed or dismissed on the basis of a compromise, even permission to withdraw the suit pursuant thereto, Order XXIII Rule 1 of the Code, held, may not have any application — Even in such a case, a permission to withdraw the suit could have been given only with notice to the respondents who had become entitled to some interest in the property by reason of a judgment and decree passed in the suit — The Court for the purpose of allowing withdrawal of a suit after passing the decree, viz., at the appellate stage, is required to consider this aspect of the matter.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 23, Rule 3 — Held, Order XXIII, Rule 3 of the Code of Civil Procedure provides that a compromise decree is not binding on such defendants who are not parties thereto. 

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 23, Rule 3 — If a compromise is to be held to be binding, as is well known, must be signed either by the parties or by their counsel or both, failing which Order XXIII, Rule 3 of the code of Civil Procedure would not be applicable.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 23, Rule 3 — Compliance of the requirements laid down in Order XXIII, Rule 3 of the Code of Civil Procedure is imperative in character.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 23, Rule 3 — Doctrine of ratification — If the court had no jurisdiction to accept the compromise in defiance of the mandatory provisions contained in Order XXIII Rule 3 of the Code of Civil Procedure, the question of invoking the doctrine of ratification, held, would not arise.

 
Sunday, April 12, 2009
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Sections 47 and 152 — The question which falls for consideration in the present case is that when a specific issue regarding the identity of the judgment-debtor had been raised and entertained by the High Court and the Court having remitted the matter to the Executing Court, the enquiry conducted by the Executing Court in furtherance of the said direction, could its order be said to be without jurisdiction ? — Held, no — The Executing Court had no option but to determine the question of identity of the judgment-debtor because of the direction of the High Court and the issues raised before it — High Court was not justified in holding that the only course available to the decree holder was to seek amendment of the decree under Section 152 of the C.P.C.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 47 — Jurisdiction of executing court — Held, there is no quarrel with the general principle of law and indeed, it is unexceptionable that a court executing a decree cannot go behind the decree; it must take the decree according to its tenor; has no jurisdiction to widen its scope and is required to execute the decree as made.  

 
Thursday, March 12, 2009
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 16, Rules 1 and 1-A — PW-3, in the present case, sought permission of the court to file certain documents which was not allowed by the trial court on the ground that a witness could not be allowed to produce documents under Order XVI Rule 1 of the Code of Civil Procedure as the term “production”, as mentioned in Order XVI Rule 1 of the Code shall mean that the witness can be summoned to bring the record to prove the documents placed on record by the parties to the suit and since the document in question was not produced by the respondent either along with the plaint or at the time of framing of issues, such document at that stage could not be taken on record — Revision against — High Court allowed the production of the document and directed that the said document be taken on record — Held, High Court was justified in permitting the document to be taken on record at the instance of the witness PW-3 — Court cannot decline to examine the witnesses produced by the plaintiff nor the court could refused to take the documents on record through the witnesses — Order XVI, Rule 1 and Rule 1A of the Code permits the court to pass the order directing the witnesses to take the documents on record — Only, while dealing with the application for production of documents under Order XVI Rule 1 read with Rule 1-A of the Code, what is required was that, leave of the court would be necessary — AIR 1983 SC 925 and 1999 (3) SCC 573 relied.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 16, Rules 1 and 1-A — Held, Order XVI Rule 1 and 1-A of the Code, if read together, would clearly indicate that it is open to a party to summon a witness to the Court or even may, without applying for summons, bring a witness to give evidence or to produce documents — Since Rule 1A is subject to the provisions of sub-Rule 3 of Rule 1, all that can be contended is that before proceeding to examine any witness, who might have been brought by a party for the purpose, the leave of the Court may be necessary — This by itself would not mean that Rule 1-A was in derogation to sub-Rule 3 of Rule 1 — Such document brought by the said witness can be taken on record and it is not necessary that the plaintiff must have filed on record the copies of the said document earlier.

 
Friday, February 13, 2009
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Sections 35 and 35A — Costs — Where the issue is governed and regulated by sections 35 and 35A of the Code, there is no question of exercising inherent power contrary to the specific provisions of the Code.  

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 35A — Where a suit or litigation is vexatious, the outer limit of exemplary costs that can be awarded, in addition to regular costs, shall not exceed Rs.3000/-.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Sections 35 and 35A — Costs — Held, huge costs of the order of Rs. Fifty thousand or Rs. One lakh, are normally awarded only in writ proceedings and public interest litigations, and not in civil litigation to which sections 35 and 35A are applicable — The principles and practices relating to levy of costs in administrative law matters cannot be imported mechanically in relation to civil litigation governed by the Code.  

 
Wednesday, February 11, 2009
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 22, Rules 4 and 5 — Filing an application to bring the legal representatives on record, does not amount to bringing the legal representatives on record — When an LR application is filed, the court should consider it and decide whether the persons named therein as the legal representatives, should be brought on record to represent the estate of the deceased — Until such decision by the court, the persons claiming to be the legal representatives have no right to represent the estate of the deceased, nor prosecute or defend the case — If there is a dispute as to who is the legal representative, a decision should be rendered on such dispute — Only when the question of legal representative is determined by the court and such legal representative is brought on record, it can be said that the estate of the deceased is represented — The determination as to who is the legal representative under Order 22 Rule 5 will of course be for the limited purpose of representation of the estate of the deceased, for adjudication of that case — Such determination for such limited purpose will not confer on the person held to be the legal representative, any right to the property which is the subject matter of the suit, vis-a-vis other rival claimants to the estate of the deceased. 

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 22, Rules 4, 5 and 11 — The provisions of Rules 4 and 5 of Order 22 are mandatory — When a respondent in an appeal dies, the Court cannot simply say that it will hear all rival claimants to the estate of the deceased respondent and proceed to dispose of the appeal — Nor can it implead all persons claiming to be legal representatives, as parties to the appeal without deciding who will represent the estate of the deceased, and proceed to hear the appeal on merits — The court cannot also postpone the decision as to who is the legal representative of the deceased respondent, for being decided along with the appeal on merits — The Code clearly provides that where a question arises as to whether any person is or is not the legal representative of a deceased respondent, such question shall be determined by the court — The Code also provides that where one of the respondents dies and the right to sue does not survive against the surviving respondents, the court shall, on an application made in that behalf, cause the legal representatives of the deceased respondent to be made parties, and then proceed with the case — Though Rule 5 does not specifically provide that determination of legal representative should precede the hearing of the appeal on merits, Rule 4 read with Rule 11 make it clear that the appeal can be heard only after the legal representatives are brought on record.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 96 read with Order 22, Rules 4, 5 and 11 — Appeal can be heard only after the legal representatives are brought on record.     

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 96 read with Order 22, Rules 4, 5 and 11 — In the present case, Suguna filed a suit seeking a declaration that the registered gift deed executed by her in favour of the Trust in respect of the suit property was null and void and for a consequential injunction restraining the said Trust from interfering with her rights — Said suit was decreed by the Trial Court, declaring the said gift deed to be void and restraining the Trust from interfering with her possession — Feeling aggrieved, the Trust filed an appeal in the High Court — Suguna who was the first respondent in the said appeal, died during the pendency of the appeal — The Trust filed an application to bring her husband (third respondent) on record as her legal representative — The appellants, who are the nieces and nephews of Suguna filed an application seeking leave to come on record as her legal representatives — Thus, there was a dispute as to who is or are the legal representatives of the deceased Suguna — Therefore, the High Court directed the Trial Court, under the proviso to Rule 5 of Order 22 of Code of Civil Procedure (‘CPC’ for short) to try the said question and submit its finding — The Trial Court accordingly, held an enquiry and submitted a report — On the receipt of the said report, the High Court ought to have determined the question as to who are the legal representatives of the deceased Suguna, as required by Order 22 Rule 5 CPC — But it did not do so — Instead, it proceeded to hear the main appeal itself as also the said two LR applications — Held, procedure adopted by the High Court in hearing the appeal without bringing the legal representatives on record and deciding the appeal on merits first and thereafter deciding the issue relating to legal representative is not correct — The appeal could be heard on merit only after the legal representative of the deceased first respondent were brought on record — Entire judgment of the High Court is nullity and inoperative and is, therefore, set aside — Appeal allowed.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 2(11) — ‘Legal representative’ — A legatee under a will, who intends to represent the estate of the deceased testator, being an intermeddler with the estate of the deceased, will be a legal representative. 

 
Friday, January 16, 2009
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 100(5) Proviso — Applicability of — Held, the proviso is applicable only when any substantial question of law has already been formulated and it empowers the High Court to hear, for reasons to be recorded, the appeal on an other substantial question of law — The expression “on any other substantial question of law” clearly shows that there must be some substantial question of law already formulated and then only another substantial question of law which was not formulated earlier can be taken up by the High Court for reasons to be recorded, if it is of the view that the case involves such question. 

 
Thursday, January 15, 2009
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 41, Rule 5(5) read with Order 41, Rule 1(3) — Application for stay of execution of money decree — Held, non-compliance of a direction to deposit the decreetal amount or part of it or furnish security therefor would result in the dismissal of the stay application but not the entire appeal — Kayamuddin Shamsuddin Khan vs. State Bank of India [(1998) 8 SCC 676] relied.   

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 41, Rule 1(3) — Although the word ‘shall’ has been used in Order XLI Rule 1 (3) of the Code, the same is not mandatory in character, and, thus, may be read as directory.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 37, Order 41, Rules 1(3) and 5(5) — Appellant filed a summary suit under Order 37 of the Code of Civil Procedure, 1908 — Application for leave to defend filed by the respondent was allowed, subject to the condition that the respondent shall make payment of undisputed and admitted amount — However, as the said amount was not deposited, the trial court passed a judgment decreeing the suit in favour of the appellant — Respondent preferred an appeal thereagainst — An application for stay of the said judgment and decree passed by the trial court was also filed — The High Court stayed the operation and execution of the decree in its entirety on the ground that ground for stay, as contemplated under Order 41, Rule 5 C.P.C. is made out — Held, the High Court failed to notice the provisions of sub-rule 3 of Rule 1 of Order 41 — The High Court has not said that any exceptional case has been made out — It did not arrive at the conclusion that it would cause undue hardship to the respondent if the ordinary rule to direct payment of the decreetal amount or a part of it and/or directly through the judgment debtor to secure the payment of the decreetal amount is granted — A strong case should be made out for passing an order of stay of execution of the decree in its entirety — Judgment of the High Court set aside — Respondent directed to deposit a sum of Rs.35 lakhs within a period of four weeks from date — Respondent shall furnish adequate security for the rest of the decreetal amount within the same period — Appeal allowed.

 
Wednesday, January 14, 2009
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 22, Rule 18 read with Section 152 and Section 97 — Whether a property can be added in the list of properties after a preliminary decree is passed in a partition suit ? — Held, if a property was subject matter of pleadings and the court did not frame an issue which it ought to have done, it can, at a later stage, when pointed out, may amend the decree — The power of amendment, in a case of this nature would not only be dependent upon the power of the court but also the principle that a court shall always be ready and willing to rectify the mistake it has committed.    

 

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Sections 97 and 152 — Indisputably, Section 97 of the Code of Civil Procedure provides for an appeal against preliminary decree but the said provision, held, would not be a bar to file an application for amendment of a decree.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 2(2) — Decree — The court with a view to determine whether an order passed by it is a decree or not must take into consideration the pleadings of the parties and the proceedings leading upto the passing of an order — The circumstances under which an order had been made would also be relevant.

 
Wednesday, October 15, 2008
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 7, Rule 11(d) — Held, Order VII, Rule 11(d) of the Code has limited application — It must be shown that the suit is barred under any law — Such a conclusion must be drawn from the averments made in the plaint. 

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 7, Rule 11(d) — Different clauses in Order VII, Rule 11, held, should not be mixed up — Whereas in a given case, an application for rejection of the plaint may be filed on more than one ground specified in various sub-clauses thereof, a clear finding to that effect must be arrived at.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 7, Rule 11(d) — What would be relevant for invoking clause (d) of Order VII, Rule 11 of the Code is the averments made in the plaint — For that purpose, there cannot be any addition or subtraction.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 7, Rule 11(d) and Order 14, Rule 2 — Absence of jurisdiction on the part of a court can be invoked at different stages and under different provisions of the Code — Order VII, Rule 11 of the Code is one, Order XIV, Rule 2 is another. 

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 7, Rule 11(d) — For the purpose of invoking Order VII, Rule 11(d) of the Code, no amount of evidence can be looked into — The issues on merit of the matter which may arise between the parties would not be within the realm of the court at that stage — All issues shall not be the subject matter of an order under the said provision.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 7, Rule 11(d) — What would, however, be the effect of a partition suit which had not been taken to its logical conclusion by getting the properties partitioned by metes and bounds is a question which, held, cannot be gone into in a proceeding under Order VII, Rule 11(d) of the Code — Whether any property is available for partition is itself a question of fact. 

 
Thursday, August 14, 2008
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 37, Rule 3 — The trial court, in the present case, rejected the petition filed by the appellant under Order 37, Rule 3, CPC on the ground that the contentions raised by the appellant for defending the suit were quite inconsistent — On the one hand, he denied the signatures on the promissory note as his signatures and, on the other hand, it was stated that his signatures were obtained on blank stamp papers on the pretext that those were to be made into receipts for payments made to him and one of those signatures was used for creating the promissory note — Against the order passed by the trial court, the appellant moved the High Court in revision but the High Court dismissed the revision and affirmed the order passed by the trial court primarily on the ground that there was an inherent inconsistency in the case of the appellant — Held, the trial court and High Court have taken a rather technical view of the matter — In the overall facts and circumstances of the case, the petitioner ought to have at least been allowed to defend the suit, subject to the condition of depositing a part of the plaintiff's claim — Appeal allowed — Orders of the trial court and the High Court set aside — Petitioner granted leave to defend the suit subject to deposit of Rs.50,000/- in the trial court.  

 
Tuesday, August 12, 2008
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 54 — Limitation Act, 1963, Articles 136 and 137 — Whether an application for initiating a final decree proceedings in terms of Section 54 of the Code of Civil Procedure, 1908 (for short, 'the Code') would be governed by any provision contained in the Schedule appended to the Limitation Act, 1963? — Held, no.      

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 54 — Held, Section 54 only provides for a ministerial functions of a court. It cannot be termed to be an execution proceeding.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 41, Rule 33 — Held, Order 41 Rule 33 of the Code of Civil Procedure has limited application — When there exists a legal interdict, the same would not apply.

 
Monday, July 14, 2008
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 100 — Second Appeal — Allowing a second appeal without framing substantial question of law, held, is clearly contrary to the mandate of Section 100 C.P.C.   

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 100 — The High Court, in the present case, held, has committed an error in interfering on a question of fact which was not permissible under Section 100 C.P.C.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 41, Rule 27 — Production of additional evidence — Though the parties to the proceeding can produce a document as additional evidence even in Appellate Court, undoubtedly, they have to adhere and satisfy the mandates provided under Order XLI Rule 27.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 41, Rule 27(1) sub-clauses (a) & (aa) — Parties to the lis, held, are not entitled to produce additional evidence as of course or routine but must satisfy the conditions stated in sub-clauses (a)&(aa).   


 

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 41, Rule 27(2) — Sub-clause (2) of Rule 27 mandates that wherever additional evidence is allowed to be produced by an Appellate Court, it shall record the reason for its admission.

 
Sunday, July 13, 2008
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 41, Rule 1(3) — High Court in exercise of jurisdiction under Order XLI Rule 1(3) of the Code of Civil Procedure, 1908, directed the appellant to deposit a sum of Rs.5,00,000/- in trial court within a particular time — Appellants question the correctness of the order on the ground that the High Court could not have referred to Order XLI Rule 1(3) in the absence of any application for stay — Held, in the absence of any application for stay the High Court could not have passed the order impugned — The direction for deposit as given accordingly stands vacated — Appeal allowed.

 
Sunday, June 15, 2008
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 41, Rule 27 — Additional evidence — Appellate court, in the present case, rejected the petition filed by the appellant in the pending appeal for acceptance of additional evidence under Order 41 Rule 27 of the Code of Civil Procedure — Said order of the appellate court affirmed by the High Court — Appeal against — Held, in order to decide the pending appeal in which the application under Order 41 Rule 27 of the Code of Civil Procedure was filed ought to have been taken by the appellate Court along with the application for acceptance of additional evidence under Order 41 Rule 27 of the Code of Civil Procedure — Order of the High Court as well as of the appellant court rejecting the petition filed by the appellant in the pending appeal for acceptance of additional evidence under Order 41 Rule 27 of the Code of Civil Procedure, set aside — Appellate Court directed to decide the pending appeal along with the application under Order 41 Rule 27 of the Code of Civil Procedure on merits.

 
Friday, June 13, 2008
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 6, Rule 17 — Application for amendment of plaint in a suit for specific performance of the agreement for sale seeking to correct a part of the description of the suit property in the plaint as well as in the agreement to sell rejected by the High Court on the ground that if such amendment was allowed, the nature of the suit would change from a suit for specific performance of contract for sale to a suit for declaration which was not permissible — Held, High Court was not justified in rejecting the prayer for amendment of the plaint and the agreement — Such amendment in the plaint cannot convert the suit for specific performance of the contract to a suit for declaration — In a suit for specific performance of contract for sale, it is permissible to amend a part of the description of the suit property not only in the plaint but also in the agreement — Separate independent suit is not needed to be filed when the proviso to Section 26 itself clearly permits either party to correct or rectify the description of the suit property not only in the plaint but also in the agreement itself — Specific Relief Act, 1963, Section 26.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 6, Rule 17 — Amendment of pleadings after 18 years — Whether can be allowed? — Held, if acceptable material/materials placed before the court show that the delay was beyond their control or diligence, it would be possible for the court to consider the same by compensating the other side by awarding cost.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 6, Rule 17 — Word “Due diligence” — Held, the words “Due diligence” has not been defined in the Code — However, "Due diligence" means reasonable diligence; it means such diligence as a prudent man would exercise in the conduct of his own affairs.  

 
Thursday, June 12, 2008
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 34, Rule 14 — Rule 14 of Order XXXIV CPC, held, prohibits the mortgagee to bring the mortgaged property to sell otherwise than by instituting a suit for sale in enforcement of the mortgage.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 11 — Res-judicata — Held, Section 11 of the Code not only recognizes the general principle of res judicata, it bars the jurisdiction of the court in terms of Section 12 thereof.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 11 — Principles of estoppel and waiver — Held, principles of estoppel, waiver and res judicata, are procedural in nature and, thus, the same will have no application in a case where judgment has been rendered wholly without jurisdiction or issues involve only pure questions of law — Even in such cases, the principle of issue estoppel will have no role to play.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 11 — Applicability of — Once it is held that the issues which arise in the subsequent suit were directly and substantial in issue in the earlier suit, indisputably Section 11 of the Code would apply.  

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 11 — To constitute a matter res-judicata, the following conditions, held, must be satisfied, namely —

 (i) The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue in the former suit;

 (ii) The former suit must have been a suit between the same parties or between parties under whom they or any of them claim;

 (iii) The parties must have litigated under the same title in the former suit;

 (iv) The court which decided the former suit must be a court competent to try the subsequent suit or the suit in which such issue is subsequently raised; and

 (v) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the court in the first suit. Further Explanation 1 shows that it is not the date on which the suit is filed that matters but the date on which the suit is decided, so that even if a suit was filed later, it will be a former suit if it has been decided earlier. In order therefore that the decision in the earlier two appeals dismissed by the High Court operates as res judicata it will have to be seen whether all the five conditions mentioned above have been satisfied." Sheodan Singh vs. Daryao Kunwar : [1966] 4 SCR 300 relied.       

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 11 — Evidence Act, 1872, Section 115 — Distinction between “issue estoppel” and “res judicata” — Held, res judicata debars a court from exercising its jurisdiction to determine the lis if it has attained finality between the parties whereas the doctrine issue estoppel is invoked against the party. If such an issue is decided against him, he would be estopped from raising the same in the latter proceeding. The doctrine of res judicata creates a different kind of estoppel viz. estoppel by accord.        

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 11, Explanation IV — Even in a case of title, Explanation IV to Section 11, held, would apply.

 
Tuesday, April 15, 2008
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 92 — If in a given case notice has not been given and leave has been granted, it is open to the Court to deal with an application for revocation and pass necessary orders.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 92 — Merely because objections or views did not find acceptance by majority, that, held, cannot be a ground to lay a suit under Section 92 CPC questioning legitimate decisions taken by the majority — The Court does not deal with administration of trusts — Only if the pre-conditions are satisfied then only leave can be granted as provided in Section 92 — There must be an element of dis-honest intention and lack of probity — When action is taken bona fide though there may be mistaken action, that would not amount to breach of trust.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 92 — To find out whether the suit was for vindicating public rights there is necessity to go beyond the relief and to focus on the purpose for which the suit was filed — It is the object and purpose and not the relief which is material — There cannot be any hard and fast rule to find out whether the real purpose of the suit was vindicating public right or the object was vindication of some personal rights — For this purpose the focus has to be on personal grievances.

 

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 92 — A co-trustee, held, is not remediless if the leave is not granted under Section 92.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 92 — It is not every suit claiming reliefs specified in Section 92 that can be brought under the Section; but only the suits which besides claiming any of the reliefs are brought by individuals as representatives of the public for vindication of public rights — As a decisive factor the Court has to go beyond the relief and have regard to the capacity in which the plaintiff has sued and the purpose for which the suit was brought — The Courts have to be careful to eliminate the possibility of a suit being laid against public trusts under Section 92 by persons whose activities were not for protection of the interests of the public trusts.

 
Monday, April 14, 2008
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 39, Rules 1 and 2 and Section 151 — Order 39, Rule 1 of the Code of Civil Procedure (Code) is not the sole repository of the power of the court to grant injunction — Section 151 of the Code confers power upon the court to grant injunction if the matter is not covered by Rules 1 and 2 of Order 39 of the Code.

 
Wednesday, January 02, 2008
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Sections 80(2) and 80(1) — Leave to proceed without service of notice — Refused — Whether any interim relief could be granted at that stage? — Held, no — A suit may be filed against the Government or a public officer without serving notice as required by sub-section (1) with the leave of the Court — When such leave is refused, the question of institution of the suit does not arise and accordingly, no interim relief could also be granted at that stage.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 6, Rule 17 — Indian Contract Act, Section 230 — Amendment of the written statement — Appellant in their prayer for amendment has only taken an additional defence that in view of Section 230 of the Indian Contract Act, the suit itself is not maintainable — Held, it is well settled that at the time of considering the prayer for amendment of the written statement it would not be open to the Court to go into the fact whether in fact the suit in view of Section 230 of the Indian Contract Act was or is not maintainable — That apart it is permissible in law to amend a written statement of the defendant by which only an additional ground of defence has been taken — In view of the reasons stated herein above, the order of the Special Court rejecting the application for amendment of the written statement filed by the appellant is liable to be set aside and the prayer for amendment of the written statement must be allowed — Accordingly, the application for amendment of the written statement is allowed and the impugned order is set aside.

 
Tuesday, January 01, 2008
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 80(2) — Suit against Union of India — Application under Section 80(2) rejected by the trial Court on 18.1.2007 and plaint was accordingly returned to the appellant (plaintiff) as per law — Revision against — High Court while admitting the revision passed and interim order directing the parties to maintain status quo — However, at the time of final disposal, High Court vacated the interim order passed earlier and remitted the matter to the learned trial Judge to re-decide the entire matter on the concession that the impugned order passed by the trial Court on 18.1.2007, was a non-reasoned and non-speaking order — Held, the said concession was obviously with regard to the rejection of the plaintiff’s prayer for grant of leave under Section 80(2) of the Code — Trial Court was bound to reconsider the question of grant of leave in light of the observations made by the High Court.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 80(2) — If leave is refused by the original court, it is open to the superior courts to grant such leave as otherwise in an emergent situation a litigant may be left without remedy once such leave is refused and he isrequired to wait out the statutory period of two months after giving notice.

 
Sunday, December 16, 2007
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order XLI, Rule 22 and Order II Rule 2 — The High Court, held, was clearly in error in holding that the appellant not having filed a memorandum of cross-objections in terms of Order XLI Rule 22 of the Code, could not challenge the finding of the trial court that the suit was not barred by Order II Rule 2 of the Code.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order XLI, Rule 33 — Scope of — Order XLI Rule 33 enables the appellate court to pass any decree that ought to have been passed by the trial court or grant any further decree as the case may require and the power could be exercised notwithstanding that the appeal was only against a part of the decree and could even be exercised in favour of the respondents, though the respondents might not have filed any appeal or objection against what has been decreed — There is no need to have recourse to Order XLI Rule 33 of the Code, in a case where the suit of the plaintiff has been dismissed and the plaintiff has come up in appeal claiming a decree as prayed for by him in the suit — Then, it will be a question of entertaining the appeal considering the relevant questions and granting the plaintiff the relief he had sought for if he is found entitled to it.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order XXXIV, Rule 14 and Order II Rule 2 — Rule 14 of Order 34 C.P.C., held, has been enacted for the protection of the mortgagor — In the context of Rule 14 of Order 34 of the Code, it is difficult to uphold a plea based on Order II Rule 2.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order XXXIV, Rules 14, 15 and Order II Rule 2 — Defendant No.1, the appellant, in the present case, borrowed a sum of Rs.1,10,000/- from the plaintiff Bank for the purchase of a bus — He secured repayment of that loan by hypothecating the bus and further by equitably mortgaging two items of immovable properties — The Bank first filed a suit for recovery of the money due — The said suit was decreed — The Bank, in execution, sought to proceed against the hypothecated bus — The bus could not be traced and the money could not be recovered — The Bank tried to proceed against the mortgaged properties in execution — The appellant resisted by pointing out that there was no decree on the mortgage and the bank could, if at all, only attach the properties and could not sell it straightaway — That objection was upheld — The Bank thereupon instituted the present suit, for enforcement of the equitable mortgage — The appellant resisted the suit by pleading that the suit was barred by Order II Rule 2 of the Code of Civil Procedure — Held, it is not possible to come to the conclusion that the suit to enforce the equitable mortgage is hit by Order II Rule 2 of the Code in view of the earlier suit for recovery of the mid term loan, especially in the context of Order XXXIV Rule 14 of the Code — The two causes of action are different, though they might have been parts of the same transaction — Even otherwise, Order XXXIV rule 14 read with rule 15 removes the bar if any that may be attracted by virtue of Order II Rule 2 of the Code.

 
Saturday, December 15, 2007
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 16, Proviso to Section 16 and Section 20 — If a suit comes within Section 16 of the Code, then Section 20 of the Code, held, cannot have application in view of the opening words of Section 20 "subject to the limitations aforesaid" — Further held, proviso to Section 16 would apply only if the relief sought could entirely be obtained by personal obedience of the defendant.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 7 Rule 10 — Return of the plaint — Held, there is no doubt that at the stage of consideration of the return of the plaint under Order VII Rule 10 of the Code, what is to be looked into is the plaint and the averments therein — At the same time, it is also necessary to read the plaint in a meaningful manner to find out the real intention behind the suit.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 5, Rule 9 — Service through process of Court, held, is mandatory — This position is clear from the use of the word "may" in the provision.

 
Friday, December 14, 2007
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 100 (4) & Order XIV Rule 1 — Second appeal decided by the High Court without formulating a substantial question of law — Whether judgment of the High Court should be set-aside on this ground alone? — Held, no — Judgment of the High Court should not be set-aside on this ground alone if no prejudice had been caused to the appellant — Further held, ratio of the decisions on Order XIV Rule 1 C.P.C. will also apply when a judgment of the High Court is challenged on the ground that a substantial question of law was not formulated by the High Court as required by Section 100 (4) C.P.C.

 
Monday, December 10, 2007
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 8, Rule 1 — Written statement — Provisions of Order 8, Rule 1, CPC, held, does not specifically take away the power of the Court to take the written statement on record though filed beyond the time as provided for.  

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 8, Rule 1 — Written statement — Grant of extension of time beyond 30 days is not automatic — It should be exercised with caution and for adequate reasons — Extension of time beyond 90 days of the service of summons must be granted only based on a clear satisfaction of the justification for granting such extension, the court being conscious of the fact that even the power of the court for extension inhering in Section 148 of the Code, has also been restricted by the legislature. (Per Hon’ble Mr. Justice P.K. Balasubramanyan).

 
Thursday, August 16, 2007
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 39(4) — If the execution is sought to be proceeded against any person or property outside the local limits of the jurisdiction of the executing court, nothing in Section 39 of the Code shall be deemed to authorise the court to proceed with the execution — In the light of this, it may not be possible to accept the contention that it is a matter of discretion for the court either to proceed with the execution of the decree or to transfer it for execution to the court within the jurisdiction of which the property is situate.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 39(4) and Order 21 Rule 3 — Executing court to desist from proceeding against a property situate outside its jurisdiction, unless it be a case coming under Order XXI Rule 3 of the Code.  

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 39(4) and Order 21 Rule 54 — In the present case, Executing Court by order dated 19.3.2003 directed a third party, who had subsequently acceded to the jurisdiction of the executing court, not to handover possession of the building in question and the documents concerned, to the judgment debtor — Third person submitted to the jurisdiction of the court and surrendered the documents in his possession to the executing court and prayed to that court that he be relieved from the responsibility of managing the property in the circumstances stated by him in his application — Executing court passed another order dated 7.7.2003 that the documents produced by the third party be kept in safe custody of the court — These two orders, held, are certainly within the jurisdiction of the court which passed the decree since they are only orders of restraint being issued to a person from handing over a property in his possession to the judgment debtor along with the concerned documents and keeping the documents in safe custody — They are in the nature of a "freezing order" or a "Mareva injunction" and an order akin to an Anton Piller order, orders that can be issued even if the property or the person concerned is outside the jurisdiction of the court.

 
Tuesday, July 10, 2007
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 6 Rule 17 — Amendment of written statement — Addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable. 

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 6 Rule 17 — Amendment of pleadings — The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint — It has no counterpart in the principles relating to amendment of the written statement.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 6 Rule 17 — Amendment of plaint — Adding, altering or substituting a new cause of action in the plaint may be objectionable.  

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 6 Rule 17 — Amendment of written statement — In the case of amendment of a written statement, the courts are more liberal in allowing an amendment than that of a plaint as the question of prejudice would be far less in the former than in the latter case.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 6 Rule 17 — Amendment of written statement so as to add a proviso or condition to the admission made — Whether amounts to withdrawal of admission ? — Held, no — Admission made in written statement was not at all withdrawn but only a rider/or proviso has been added keeping the admission intact.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 6 Rule 17 — Amendment of written statement — When the trial court has exercised its discretion in allowing the amendment of written statement on consideration of the principles of law and the material on record, then, held, High Court should not have reversed the said order of the trial Court.

 
Wednesday, June 13, 2007
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 8, Rules 3 and 5 — Evidence Act, 1872, Section 58 — If a plea which was relevant for the purpose of maintaining a suit had not been specifically traversed, the Court was entitled to draw an inference that the same had been admitted — A fact admitted in terms of Section 58 of the Evidence Act need not be proved.

 
Tuesday, June 12, 2007
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 34 — Interest — There is no hard and fast rule about how much interest should be granted and it all depends on the facts and circumstances of the each case.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 34 — Interest — There is misconception about interest — Interest is not a penalty or punishment at all, but it is the normal accretion on capital.

 
Monday, June 11, 2007
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 100-A (as substituted by Act 22 of 2002, sec.4 (w.e.f. 1.7.2002) — Section 100-A of the CPC, held, will not have retrospective effect so as to bring within its fold even the appeals preferred prior to coming into force of the said Amendment Act (2002) — Thus, a letters patent appeal, which was filed prior to coming into force of the 2002 Act would be maintainable — Appeal dismissed.

 
Wednesday, May 16, 2007
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 2(11) — Expression ‘legal representative’ — Held, the definition contained in Section 2(11) CPC is inclusive in character and its scope is wide, it is not confined to legal heirs only — Instead it stipulates that a person who may or may not be legal heir competent to inherit the property of the deceased can represent the estate of the deceased person — It includes heirs as well as persons who represent the estate even without title either as executors or administrators in possession of the estate of the deceased — All such persons would be covered by the expression ‘legal representative’.

 
Monday, May 14, 2007
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 21 — Whether an order passed by a person lacking inherent jurisdiction would be a nullity ? — Held, yes — The principles of estoppel, waiver and acquiescence or even res judicata which are procedural in nature would have no application in a case where an order has been passed by the Tribunal/Court which has no authority in that behalf — Any order passed by a court without jurisdiction would be coram non judice being a nullity, the same ordinarily should not be given effect to.

 
Sunday, May 13, 2007
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 2(2), Order 23, Rules 1(2) and 1(4)(b) — When the court allows the suit to be withdrawn without liberty to file a fresh suit, without any adjudication, such order allowing withdrawal, held, cannot constitute a decree.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 6, Rule 17 — Time-barred claim sought to be introduced by the amendment in the plaint — Held, amendments can be introduced at any stage of the suit, however, when by that amendment an apparently time barred claim is being introduced for the first time, there would have to be some explanation and secondly, the plaintiff would have to show his bona fides, particularly because such claims by way of an amendment would have the effect of defeating the rights created in the defendant by lapse of time. 

 
Friday, May 11, 2007
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Distinction between lack of inherent jurisdiction and objection to territorial jurisdiction and pecuniary jurisdiction — Held, whereas, an inherent lack of jurisdiction may make a decree passed by that court one without jurisdiction or void in law, a decree passed by a court lacking territorial jurisdiction or pecuniary jurisdiction does not automatically become void — At best it is voidable in the sense that it could be challenged in appeal therefrom provided the conditions of Section 21 of the Code of Civil Procedure are satisfied.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 21 — No objection as to place the suing can be allowed by even an appellate or revisional court unless such objection was taken in the court of first instance at the earliest possible opportunity and unless there has been a consequent failure of justice.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 21 A — Though Section 21A of the Code speaks of a suit not being maintainable for challenging the validity of a prior decree between the same parties on a ground based on an objection as to "the place of suing", there is no reason to restrict its operation only to an objection based on territorial jurisdiction and excluding from its purview a defect based on pecuniary jurisdiction — In the sense in which the expression "place of suing" has been used in the Code it could be understood as taking within it both territorial jurisdiction and pecuniary jurisdiction. 

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 15 and Sections 15 to 20 — Section 15 of the Code deals with pecuniary jurisdiction and, Sections 15 to 20 of the Code deal with 'place of suing' — The heading 'place of suing' covers Section 15 also. 

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 21 A — Expression “ojection as to place of suing” — There is no justification in understanding the expression "objection as to place of suing'" occurring in Section 21A as being confined to an objection only in the territorial sense and not in the pecuniary sense.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 21 and Sections 15 to 20 — An objection to territorial jurisdiction and to pecuniary jurisdiction, is treated on a par by Section 21 — The placing of Sections 15 to 20 under the heading 'place of suing' also supports this position.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Sections 21 and 99 — Suit Valuation Act, 1887, Section 11 — The policy underlying sections 21 and 99 of the Civil Procedure Code and section 11 of the Suits Valuation Act, held, is the same — (1955) 1 SCR 117 relied.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 21 and Sections 15 to 20 — Defect as to place of suing — Whether can be waived ? — Held, section 21 is a statutory recognition of the principle that the defect as to the place of suing under Sections 15 to 20 of the Code may be waived and that even independently of Section 21, a defendant may waive the objection and may be subsequently precluded from taking it — (1966) 1 SCR 461 relied.   

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 11 — Applicability of res judicata between co-defendants — Held, following conditions are necessary for applicability of res judicata between co-defendants : —

(i) there must be a conflict of interest between the defendants concerned; 

(ii) it must be necessary to decide the conflict in order to give the plaintiff the relief he claims; 

(iii) the co-defendants must be necessary or proper parties to the suit and; 

(iv) the question between the defendants must have been finally decided inter se between them.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 11 — Held, section 11, when it is applied to two suits, has to be literally complied with and one of the requirements of Section 11 of the Code is that the court which passed the decree in the first suit, should have jurisdiction to entertain the second suit in which the earlier decree is put forward as res judicata.

 
Wednesday, April 11, 2007
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 3, Rule 1 and Order 9, Rule 12 — In appropriate cases, a Civil Court may direct a party to the suit-plaintiff or defendant, to appear in person.

 
Tuesday, March 13, 2007
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 7 Rule 11(d) — Whether a suit which may be bad for misjoinder of parties or misjoinder of cause of action, is a suit barred by law in terms of Order VII Rule 11(d) of the Code ? — Held, no — It is difficult to say that a suit which is bad for misjoinder of parties or misjoinder of causes of action, is a suit barred by any law — A procedural objection to the impleading of parties or to the joinder of causes of action or the frame of the suit, could be successfully urged only as a procedural objection which may enable the Court either to permit the continuance of the suit as it is or to direct the plaintiff or plaintiffs to elect to proceed with a part of the suit or even to try the causes of action joined in the suit as separate suits. 

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 99 — No decree, held, shall be reversed in appeal on account of any misjoinder of parties or causes of action or non-joinder of parties unless a Court finds that the non-joinder is of a necessary party. 

 
Thursday, February 15, 2007
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 39, Rules 1 and 2 — Injunction — Grant of — Conduct of the plaintiffs, held, is relevant — The Court while granting an order of injunction, therefore, would take into consideration as to whether the plaintiffs have prevaricated their stand from stage to stage.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 39, Rules 1 and 2 and Order 7, Rule 11 — At the stage of grant of injunction, however, the effect of dismissal of an application under Order VII, Rule 11 of the Code of Civil Procedure would not be of much significance.

 
Wednesday, February 14, 2007
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 80 — The service of notice under Section 80 is, held, a condition precedent for the institution of a suit against the Government or a public officer — The legislative intent of the Section is to give the Government sufficient notice of the suit, which is proposed to be filed against it so that it may reconsider the decision and decide for itself whether the claim made could be accepted or not.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 6, Rule 17 — Amendment in pleadings — One distinct cause of action cannot be substituted for another nor the subject-matter of the suit can be changed by means of an amendment. 

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 80 — Notice — Waiver of — Suit filed against State without notice under Section 80 of the C.P.C., held, is not maintainable — However, where the State does not raises any objection in its written statement as to non-service of notice under S.80 of the C.P.C., held, State would be deemed to have waived the objection.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 80, Sub-sections (1) and (2) — Suit against State — Notice — Service of — Held, service of notice under sub-section (1) is imperative except where urgent and immediate relief is to be granted by the Court, in which case a suit against the Government or a public officer may be instituted, but with the leave of the Court — Leave of the Court is a condition precedent — Such leave must precede the institution of a suit without serving notice — Even though Section 80(2) does not specify how the leave is to be sought for or given yet the order granting leave must indicate the ground(s) pleaded and application of mind thereon — A restriction on the exercise of power by the Court has been imposed, namely, the Court cannot grant relief, whether interim or otherwise, except after giving the Government or a public officer a reasonable opportunity of showing cause in respect of relief prayed for in the suit. 

 
Monday, February 12, 2007
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 115 — High Court having preliminary jurisdiction, held, has incidental or ancillary power.    

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 115 — Incidental or ancillary powers — Held, incidental or ancillary powers are provided for in the Code of Civil Procedure — They otherwise inhere in the jurisdiction of the court exercising plenary jurisdiction in certain situations but it must be stated that an appellate court can exercise the incidental or ancillary power only after the appeal has been entertained and not as a condition precedent for entertaining the same. 

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 115 — Incidental power — Held, incidental power is to be exercised in aid to the final proceedings — In other words an order passed in the incidental proceedings will have a direct bearing on the result of the suit — Such proceedings which are in aid of the final proceedings cannot, thus, be held to be at par with supplemental proceedings which may not have anything to do with the ultimate result of the suit.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 9, Rule 7 and Order 9 Rule 13 — Distinction between the power of the court exercised under Order IX, Rule 7 of the Code of Civil Procedure vis-a-vis Order IX, Rule 13 — Held, while exercising its jurisdiction under Order IX, Rule 7 of the Code of Civil Procedure, the court can impose conditions in regard to payment of costs, but while exercising its power under Order IX, Rule 13 thereof, the court can exercise a larger jurisdiction in the sense that it can impose other conditions. 

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 41, Rule 5 and Section 115 — While the court can impose conditions while granting stay in exercise of its jurisdiction under Order XLI, Rule 5 of the Code of Civil Procedure, it cannot pass any such order where the appellate or revisional jurisdiction is to be exercised.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 23, Rule 3 — Compromise decree — A compromise decree can be passed only on compliance with the requirements of Rule 3 of Order XXIII of the Code and unless a decree is passed in terms thereof, it may not be possible to recognise the same as a compromise decree — Rule 3 of Order XXIII of the Code insists that the terms to the compromise should be reduced to writing and signed by the parties.

 
Friday, January 12, 2007
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 7, Rule 3 — Identification of property — A property, held, can be identified either by boundary or by any other specific description — Appeal allowed.

 
Friday, December 15, 2006
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 39, Rule 1, 2 — Interim mandatory injunction — The plaintiff, in the present case, moved an application under Order XXXIX Rules 1 and 2 of the C.P.C., for an interim injunction pending the suit, restraining the defendants from interfering with his possession of the plaint schedule property — Trial Court refused to pass an ad-interim order of injunction — Appeal against — Appellate Court passed an order of status quo without indicating what the status quo was — Held, Order of Appellate Court without indicating what the status was, is not proper.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 39, Rule 2 — Jurisdiction to grant interim mandatory injunction for violation of order to maintain status quo, held, could be exercised on entering a finding that on the day the order for maintaining the status quo was passed, the plaintiff was in possession and a day after the interim order was passed, he was in fact dispossessed — In the present case, plaintiff claiming that he was in possession of property as tenant on the basis of a letter — Said letter suffering from prima facie infirmities — Tenancy denied by defendant-landlord — Suit premises is of a substantial dimension and is located in a commercial area, with many tenants in it — Plaintiff has failed to show that he had become a member of the tenants association of the building — None of the occupants of the building was examined to prima facie show dispossession after order of status quo — Held, order granting interim mandatory injunction, to plaintiff, is without jurisdiction — Appeal allowed — The orders of the High Court and that of the Additional District Court are set aside. 

 
Wednesday, December 13, 2006
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 21, Rule 90 — Application to set aside sale on ground of irregularity or fraud — Held, merely establishing a material irregularity or fraud will not do — The applicant must go further and establish to the satisfaction of the Court that the material irregularity or fraud has resulted in substantial injury to the applicant — Conversely even if the applicant has suffered substantial injury by reason of the sale, this would not be sufficient to set the sale aside unless substantial injury has been occasioned by a material irregularity or fraud in publishing or conducting the sale.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 21, Rule 90 — A charge of fraud or material irregularity under Order XXI, Rule 90 must be specifically made with sufficient particulars — Bald allegations would not do — The facts must be established which could reasonably sustain a charge.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 21, Rule 67(1) r/w Order 21 Rule 54(2) — Auction sale — Trial court ordered that the sale should be given wide publicity — Contention of the respondent that by using the word “wide publicity”, the Trial Court had intended that the sale should be advertised in the newspaper — Held, not tenable — The provisions of Order XXI Rule 67 clearly provides that if the sale is to be advertised in the local newspaper there must be specific direction of court to that effect — In the absence of such direction, the proclamation of sale has to be made under Order XXI Rule 67(1) “as nearly as may be in the manner prescribed by Rule 54, sub-rule (2).

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 21, Rule 54(2) — Proclamation of the sale by beat of drum, held, is not mandatory, so long as the sale notice was proclaimed at or adjacent to the property. 

 
Thursday, December 07, 2006
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 6, Rule 17 — Application for amendment of pleadings — Held, while considering whether an application for amendment should or should not be allowed, the court should not go into the correctness or falsity of the case in the amendment — Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing prayer for amendment.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 6, Rule 17 — Application for amendment of pleadings — Cause of action arose during the pendency of the suit — Held, proposed amendment ought to have been granted because the basic structure of the suit has not changed and there was merely change in the nature of relief claimed — If it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 6, Rule 17 — Application for amendment of pleadings — Held, amendment to pleading should be liberally allowed since procedural obstacles ought not to impede the dispensation of justice. 

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 6, Rule 17 — Object — Held, the object of the rule is that courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 6, Rule 17 — Held, Order VI Rule 17 consist of two parts whereas the first part is discretionary (may) and leaves it to the court to order amendment of pleading — The second part is imperative (shall) and enjoins the court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties.

 
Friday, November 17, 2006
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 9, Rule 13 — Ex-parte decree — Setting aside — Whether the Court, while setting aside the exparte decree under Order IX, Rule 13, is competent to impose such conditions apart from the direction to pay costs ? — Held, yes — However, conditions imposed should not be unreasonable or harshly excessive — What would be reasonable terms would depend upon facts and circumstances of each case.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 9 Rule 13 — Money decree for Rs.37.26 lakhs passed ex-parte — Application for recalling the said ex-parte decree, allowed by the High Court on the condition that respondent furnishes the security of Rs.37 lakhs either in the form of Bank Guarantee or in cash within a period of 3 months — Held, condition imposed by High Court is unreasonable and harsh — Respondent directed to furnish security to the extent of Rs.5 lakhs — Appeal allowed. 

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 9 Rule 13 — Interpretation of — A discretionary jurisdiction has been conferred upon the court passing an order for setting aside an ex parte decree not only on the basis that the defendant had been able to prove sufficient cause for his non-appearance even on the date when the decree was passed, but also other attending facts and circumstances — It may also consider the question as to whether the defendant should be put on terms — The court, indisputably, however, is not denuded of its power to put the defendants to terms — It is, however, trite that such terms should not be unreasonable or harshly excessive — Once unreasonable or harsh conditions are imposed, the appellate court would have power to interfere therewith.

 
Thursday, October 19, 2006
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 23, Rule 3, Section 96 — Appeal against consent decree — Whether maintainable ? — Held, no — Only remedy available to a party to a consent decree to avoid such consent decree, is to approach the court which recorded the compromise and made a decree in terms of it, and establish that there was no compromise.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 23, Rule 3 — What is the difference between the first part and the second part of Rule 3 — The first part refers to situations where an agreement or compromise is entered into in writing and signed by the parties. The said agreement or compromise is placed before the court. When the court is satisfied that the suit has been adjusted either wholly or in part by such agreement or compromise in writing and signed by the parties and that it is lawful, a decree follows in terms of what is agreed between the parties. The agreement/compromise spells out the agreed terms by which the claim is admitted or adjusted by mutual concessions or promises, so that the parties thereto can be held to their promise(s) in future and performance can be enforced by the execution of the decree to be passed in terms of it — On the other hand, the second part refers to cases where the defendant has satisfied the plaintiff about the claim. This may be by satisfying the plaintiff that his claim cannot be or need not be met or performed. It can also be by discharging or performing the required obligation. Where the defendant so ‘satisfies’ the plaintiff in respect of the subject-matter of the suit, nothing further remains to be done or enforced and there is no question of any ‘enforcement’ or ‘execution’ of the decree to be passed in terms of it.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 23, Rule 3 — Difference between first part and the second part of Rule 3 — The difference between the two parts is this : Where the matter falls under the second part, what is reported is a completed action or settlement out of court putting an end to the dispute, and the resultant decree recording the satisfaction, is not capable of being enforced by levying execution — Where the matter falls under the first part, there is a promise or promises agreed to be performed or executed, and that can be enforced by levying execution — While agreements or compromises falling under the first part, can only be by an instrument or other form of writing signed by the parties, there is no such requirement in regard to settlements or satisfaction falling under the second part — Where the matter falls under second part, it is sufficient if the plaintiff or plaintiff’s counsel appears before the court and informs the court that the subject matter of the suit has already been settled or satisfied. 

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 23, Rule 3 — Compromise of suit — In a suit against the tenant for possession, if the settlement is that the tenant will vacate the premises within a specified time, it means that the possession could be recovered in execution of such decree in the event of the defendant failing to vacate the premises within the time agreed — Therefore, such settlement would fall under the first part of Rule 3 — On the other hand, if both parties or the plaintiff submit to the court that the tenant has already vacated the premises and thus the claim for possession has been satisfied or if the plaintiff submits that he will not press the prayer for delivery of possession, the suit will be disposed of recording the same, under the second part of Rule 3 — In such an event, there will be disposal of the suit, but no ‘executable’ decree — In the instant case, under the settlement, the tenant undertook to vacate the suit property on a future date (that is 22.1.2002) and pay the agreed rent till then — The decree in pursuance of such settlement was an ‘executable’ decree — Therefore the settlement did not fall under the second part, but under the first part of Rule 3 — The High Court obviously committed an error in holding that the case fell under the second part of Rule 3.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 23, Rule 3 — Where an agreement or compromise falls under the first part, what is the meaning and significance of the words ‘in writing’ and ‘signed by the parties’ occurring in Rule 3 ? — Held, words ‘in writing’ and ‘signed by the parties’ occurring in Rule 3 of Order 23 of CPC, held, refers to the statements of the parties or their counsel, recorded by the court and duly signed by the persons making the statements.

 
Wednesday, October 11, 2006
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 6, Rule 17 — Application for amendment of written statement rejected on the ground that inconsistent pleas are sought to be raised by seeking amendment in written statement — Held, inconsistent pleas can be raised by defendants in the written statement although the same may not be permissible in the case of plaint — Inconsistent or alternative pleas can be made in the written statement — High Court and the trial Court, in the instant case, held, had gone wrong in holding that defendants/appellants are not allowed to take inconsistent pleas in their defence. 

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 6, Rule 17 — Contention that question of limitation cannot be allowed to be raised by way of an amendment of the written statement — Held, not tenable.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 6, Rule 17 — Delay of three years in filing the application for amendment of the written statement — Effect — Held, mere delay of three years in filing the application for amendment of the written statement could not be a ground for rejection of the same when no serious prejudice is shown to have been caused to the plaintiff/respondent No.1 so as to take away any accrued right.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 6, Rule 17 — Amendment of pleadings — Amendment of a plaint and amendment of a written statement are not necessarily governed by exactly the same principle — It is true that some general principles are certainly common to both, but the rules that the plaintiff cannot be allowed to amend his pleadings so as to alter materially or substitute his cause of action or the nature of his claim has necessarily no counterpart in the law relating to amendment of the written statement — Adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering or substituting a new cause of action — Accordingly, in the case of amendment of written statement, the courts are inclined to be more liberal in allowing amendment of the written statement than of plaint and question of prejudice is less likely to operate with same rigour in the former than in the latter case.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 6, Rule 17 — Court shall allow amendment of pleadings if it finds that delay in disposal of suit can be avoided and that the suit can be disposed of expeditiously. 

 
Wednesday, September 20, 2006
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 26, Order 6, Rule 15 (4) — Contention that the non-filing of an affidavit in support of the pleadings in the plaint at the time of presentation thereof was a mere procedural error which was capable of being cured — Held, tenable — The requirements of Order VI and Order VII of the Code, being procedural in nature, any omission in respect thereof will not render the plaint invalid and that such defect or omission will not only be curable but will also date back to the presentation of the plaint.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 26, Order 6, Rule 15 (4), Order 4 Rule 1(3) — Amendments effected to Section 26, Order IV, Order VI Rule 15, being procedural in nature, they are directory in nature and non-compliance thereof would not automatically render the plaint non-est.

 
Thursday, September 14, 2006
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 21, Rule 64 — Expression “necessary to satisfy the decree” — Held, use of the said expression clearly indicates the legislative intent that no sale can be allowed beyond the decreetal amount mentioned in the sale proclamation — In all execution proceedings, Court has to first decide whether it is necessary to bring the entire property to sale or such portion thereof as may seem necessary to satisfy the decree — If the property is large and the decree to be satisfied is small the Court must bring only such portion of the property the proceeds of which would be sufficient to satisfy the claim of the decree holder — It is immaterial whether the property is one or several — Even if the property is one, if a separate portion could be sold without violating any provision of law only such portion of the property should be sold — This is not just a discretion but an obligation imposed on the Court — The sale held without examining this aspect and not in conformity with this mandatory requirement would be illegal and without jurisdiction. 

 
Friday, July 28, 2006
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 100 (5), Proviso — Applicability — Proviso to sub-section (5) of S.100 of CPC, held, is applicable only when any substantial question of law has already been formulated and it empowers the High Court to hear, for reasons to be recorded, the appeal on any other substantial question of law — The expression “on any other substantial question of law” clearly shows that there must be some substantial question of law already formulated and then only another substantial question of law which was not formulated earlier can be taken up by the High Court for reasons to be recorded, if it is of the view that the case involves such question.

 
Friday, July 21, 2006
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 22, Rule 3 — Indian Succession Act, 1925, Section 213 — Where the testator had himself filed a suit (seeking a declaration and consequential reliefs) and he dies during the pendency of the suit, the executor or legatee under his Will, can come on record as the legal representative of the deceased plaintiff under Order 22, Rule 3 CPC and prosecute the suit — Section 213 of Indian Succession Act, 1925, does not come in the way of an executor or legatee being so substituted in place of the deceased plaintiff, even though at the stage of such substitution, probate or letters of administration has not been granted by a competent Court. 

 
Monday, July 10, 2006
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 9 — Industrial Disputes Act, 1947, Sch.2, Item 6 — Jurisdiction of Civil Court — Whether barred where the dispute involves recognition, observance or enforcement of any of the rights or the obligations created by the Industrial Disputes Act ? — Held, yes — The only remedy is to approach the forums created by the Industrial Disputes Act.

 
Monday, June 05, 2006
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 100 — Scope and ambit — Interference by the High Court, held, is permissible only in cases involving substantial questions of law — There is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however, gross or inexecusable the error may seem to be.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 100 — Second appeal — Substantial question of law — Held, the word substantial, as qualifying “question of law”, means - of having sub-stance, essential, real, of sound worth, important or considerable — It is to be understood as something in contradistinction with - technical, of no substance or consequence, or academic merely.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 100 — Scope and ambit — Held, now after 1976 Amendment, the scope of Section 100 has been drastically curtailed and narrowed down — The High Courts would have jurisdiction of interfering under Section 100 CPC only in a case where substantial questions of law are involved and those questions have been clearly formulated in the memorandum of appeal — At the time of admission of second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions  of law and then only the High Court is permitted to proceed with the case to decide those questions of law — The language used in the amended section specifically incorporates the words as “substantial question of law” which is indicative of the legislative intention — It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become “third trial on facts” or “one more dice in the gamble” — The effect of the amendment mainly, according to the amended section, was :

(i) The High Court would be justified in admitting the second appeal only when a substantial question of law is involved;

(ii) The substantial question of law to precisely state such question;

(iii) A duty has been cast on the High Court to formulate sabstantial question of law before hearing the appeal;

(iv) Another part of the section is that the appeal shall be heard only on that question.

 
Friday, June 02, 2006
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 20, Rule 16 — Rendition of accounts — Order 20, Rule 16, held, does not create or confer any substantive right to seek rendition of accounts in any particular type of cases, nor in all types of cases — It merely refers to a rule of procedure and would apply where there is an existing right to seek rendition of accounts having regard to the relationship between the parties. 

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 20, Rule 16 — Suit for rendition of accounts — Whether a contractor engaged to execute a particular work, can file a suit for account against the  employer in regard to payment for the work done ? — Held, no — Such a right is not created or recongnized by any statute — Even where the contract between the employer and independent contractor may provide for payment on the basis of measurements to be recorded by the employer, contractor, held, is not entitled to file a suit for rendition of accounts against the employer.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 149 — Court-fee — Deficit — Section 149, held, would apply only in respect of the court fee payable at the time of institution of the suit — If the court fee due on the plaint when instituted, is not paid wholly or partly by the person instituting the suit, the court in its discretion, may allow him to pay the court fee or deficit court fee within the period fixed by it — Section 149 of the C.P.C, held, has no application where court fee, due on the plaint as per the valuation of the suit, is fully paid, but subsquently is not found that a larger amount is due to the plaintiff.

 
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Order 20, Rule 16 — Contractor filed a suit for recovery of Rs.2 lakhs towards the value of the work done with an additional prayer for accounting and several other reliefs — High Court dismissed the suit in entirety as not maintainable on the ground that a suit for accounts by a contractor is not maintainable — Held, if the prayer in regard to accounting was found to be not tenable, that prayer could not be granted — But nothing could come in the way of plaintiff getting a decree for the amounts claimed towards value of the work done for which he has paid the court fee, by proving that such amount was due for work done and by proving that he was not at breach — High Court, held, was not justified in dismissing the suit as not maintainable ignoring the other prayers.

 
Tuesday, January 24, 2006
Civil Procedure Code, 1908

Civil Procedure Code, 1908 — Section 2(11) — “Legal representative” — Held, donee of the suit property certainly falls within the definition of “legal representative”.

 
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