• +91-9223281789
  • sui-generis@consultant.com

Dismissal of appeal as time barred consequent upon dismissal of application for condonation of delay – Is not a decree – Decision of Court becomes decree only if there exists adjudication of all or any of disputed matters in suit. (The Commissioner, Hubli-Dharwad Municipal Corporation, Dharwad Vs Shrishail & Ors.) 2004(2) Civil Court Cases 78 (Karnataka)

Withdrawl of amount deposited in Court – Order passed by way of interim arrangement pending suit and subject to conditions – Cannot be said to be a decree nor final order in suit. (Leela Capital and Finance Ltd. Vs Modiluft Ltd.) AIR 2003 Bombay 111

“Decree” – Requirements to constitute a decree are (i) There must be an adjudication; (ii) Such adjudication must have been given in a suit; (iii) It must have determined the rights of the parties with regard to all or any part of the matters in controversy in the suit; (iv) Such determination must be of a conclusive nature; and (v) There must be a formal expression of such adjudication – If there is no judicial determination of any matter in dispute, it is not a decree – The adjudication must have determined the rights of the parties with regard to all or any of the matters in controversy in the suit. (Anubai  Vs Vithoba Shripati Savant (deceased) & Ors.) 2004(2) Civil Court Cases 564 (Bombay)

Disconnection – Civil suit challenging disconnection – Alternative remedy under Electricity Act not exhausted – Suit is not maintainable. (Jayaramachandran Vs The Tamil Nadu State Electricity Board) AIR 2002 Madras 230

Bar to civil suit – Can be express or implied – Express bar is where a Statute itself contains a provision that the jurisdiction of Civil Court is barred – Implied bar is when a Statute provides a special remedy to an aggrieved party like a right of appeal. (N.D.M.C. Vs Satish Chand) 2003(3) Civil Court Cases 640 (S.C.)  : 2003(2) Apex Court Judgments 384 (S.C.)

Civil suit for share in produce from tree and fixation of fair rent on basis of local custom and usage – Is maintainable. (S.Ayyathuri Thevar Vs Arulmighu) AIR 2003 Madras 83

Dismissal from service and compulsory retirement – Suit for declaration that order is null and void and inoperative – Industrial dispute existing between parties – Forum under Industrial Disputes Act constituted to properly adjudicate the dispute – Jurisdiction of Civil Court is barred by necessary implication. (Narpat Ram Vs Hindustan Salt Ltd.) 2003(2) Civil Court Cases 265 (H.P.) 

Jurisdiction – Unless statute provides a forum, mere act of consent of parties does not confer jurisdiction on a Court. (Ramai Ranjan Pati Vs Mst.Sahanaj Fatima) 2005(1) Civil Court Cases 268 (Orissa)

Suit for declaration that a person belongs to Scheduled Caste or Schedule Tribe – Such suit is impliedly barred by Articles 341 and 342 of the Constitution. (Union of India Vs The Registrar, Central Administrative Tribunal) 2003(2) Civil Court Cases 336 (Madras) 

Suit for recovery of claim amount from LIC on the basis that plaintiffs are legal heirs of the deceased insurer is maintainable. (Pramila  Vs Life Insurance Corporation of India & Ors.) 2004(3) Civil Court Cases 33 (Bombay)

Issue – Issue of jurisdiction as preliminary issue – Obligation cast upon Civil Court to frame issue is only in cases where such an issue is raised while dealing with application for grant of or vacating any interim relief including appointment of Commissioner, matters pertaining to stay and similar such interim applications and not otherwise. (Shraddha Associates, Pune Vs St.Patrick’s) 2003(2) Civil Court Cases 627 (Bombay) 

A decree passed in contravention of the provision of S.10 CPC is not a nullity. (Pukhraj D.Jain & Ors. Vs G.Gopalakrishna) 2004(1) Apex Court Judgments 612 (S.C.) : 2004(2) Civil Court Cases 630 (S.C.)

Application u/s 10 CPC before filing of written statement is premature and is not maintainable. (M/s.Renuka Sarees Vs Baldev Singh) 2004(2) Civil Court Cases 421 (Rajasthan)

Proceedings for obtaining succession certificate cannot be stayed during pendency of suit as object of issuance of a succession certificate is entirely different which does not result into deciding the issue finally between the parties as the same are summary in nature. (Succession Act, 1925, S.372). (Monica Bibli Sood Vs Mrs.Kamal Seth & Ors.) 2004(3) Civil Court Cases 212 (P&H)

Provision applies to suits which are legally maintainable. (Hari Ram Vs Lichmaniya & Ors.) 2004(2) Civil Court Cases 244 (Rajasthan)

Second suit during pendency of first suit is not permissible. (Hari Ram Vs Lichmaniya & Ors.) 2004(2) Civil Court Cases 244 (Rajasthan)

Stay of subsequent suit – One or two issues identical – Not a ground to stay the subsequent suit. (Baljinder Kaur & Ors. Vs Dalal Kaur) 2003(1) Civil Court Cases 26 (P&H) 

Stay of subsequent suit – Proceedings before Labour Court cannot be equated with proceedings before Civil Court. (National Institute of Mental Health & Neuro Sciences Vs C.Parameshwara) 2005(1) Civil Court Cases 749 (S.C.)

Stay of subsequent suit – Substratum of dispute to be seen – Matter in issue in two suits should be directly and substantially the same and there must be an identity of the subject matter and parties should also be the same. (Baljinder Kaur & Ors. Vs Dalal Kaur) 2003(1) Civil Court Cases 26 (P&H) 

Stay of subsequent suit – Where subsequently instituted suit can be decided on purely legal points without taking evidence, it is always open to the Court to decide the relevant issues and not to keep the suit pending which has been instituted with an oblique motive and to cause harassment to the other side. (Pukhraj D.Jain & Ors. Vs G.Gopalakrishna) 2004(1) Apex Court Judgments 612 (S.C.) : 2004(2) Civil Court Cases 630 (S.C.)

Stay of suit during pendency of company petition – Company petition cannot be termed as suit – S.10 cannot be invoked to stay proceedings of suit. (S.D.Dhandapani Vs The Branch Manager, Indian Overseas Bank) AIR 2002 Madras 442

Two suits – Parties and subject matter same – It is the subsequent suit and not the previous one which can be stayed. (M.V.Rajashekhar Vs Smt.M.V.Rajamma (Deceased) By L.Rs & Ors.) 2004(3) Civil Court Cases 440 (Karnataka)

Provision of section 10 not applicable – Jurisdiction under section 151 cannot be exercised by bye-passing the provision of section 10 CPC – Where Code deals expressly with a particular matter, the provision should normally be regarded as exhaustive. (National Institute of Mental Health & Neuro Sciences Vs C.Parameshwara) 2005(1) Civil Court Cases 749 (S.C.)

Res judicata – Order for personal appearance of party passed under O.10.R.4 in earlier stage of proceedings – Order not finally adjudicating right of party – Court not precluded from passing different order under O.10.R.4(1) in subsequent stage of proceedings – Bar of res judicata, not applicable. (Smt.Tara Devi Vs The District Judge, Basti) AIR 2003 Allahabad 64

Temporary injunction – Revision – Finding of maintainability of suit in revision does not operate as res judicata in final proceedings. (Thressiamma Vs Sebastian) AIR 2002 Kerala 1

Suit for injunction – Dismissal of suit – Subsequent suit for declaration of title – Not barred by principle of res judicata as in the earlier suit question of title was not in issue and dismissal of suit on basis of finding regarding possession does not operate as res judicata barring subsequent suit for declaration of title and perpetual injunction. (Chinnappa Vs Corporation of the City of Bangalore) 2005(1) Civil Court Cases 382 (Karnataka)

‘Same subject matter’ – Court for the purpose of expression ‘same subject matter’ has to consider not only the relief, but also the cause of action. (Harischandra Vithoba Narawade & Ors. Vs Smt.Vatsalabai w/o Narayan Shinde) 2005(1) Civil Court Cases 217 (Bombay)

Application U.O.1.R.10 for impleadment claiming to be real tenant – Dismissed – Subsequent title suit – Not barred by res judicata since the judgment and order of dismissal in application U.O.1.R.10 CPC does not decide the issue involved in the suit – Moreover, such proceeding not a “suit” within the meaning of S.11 CPC. (Anadi Mohan Rashit Vs Nalin Sarker Street U.P.School) AIR 2002 Calcutta 22

Eviction order obtained from Rent Controller by playing fraud – Order challenged in suit being null and void – When order is questioned on the ground of fraud, question of applying doctrine of res judicata or dismissal of suit on ground of availability of alternative remedy under Rent Control Act does not arise – Whenever a serious allegation of fraud is made, normally technicalities should not come in the way of doing substantial justice to the parties – Fraud clearly averred and proved – Held, decree obtained by fraud is a nullity. (B.Das Vs D.Gunnamma & Ors.) 2004(3) Civil Court Cases 245 (A.P.)

Eviction petition for starting business by plaintiff’s son – Plaintiff’s son becoming Advocate – Plea for requirement of premises for starting business withdrawn – Second suit for eviction on ground that premises were required for starting office of plaintiff’s Advocate son – Not barred. (Dr.S.S.Khurana Vs Mahaveer Prasad) AIR 2004 Rajasthan 107

Provision nowhere deals with abandonment of claim. (Hari Ram Vs Lichmaniya & Ors.) 2004(2) Civil Court Cases 244 (Rajasthan)

Res judicata – Appellant not a party to earlier suit as such she is not bound by any observation made in the earlier judgment – Finding recorded will not operate as res judicata. (Anguri Devi Vs Moti Ram & Ors.) 2003(1) Civil Court Cases 85 (P&H) 

Res judicata – Court assuming jurisdiction which it does not possess under the Statute – Question cannot operate as res judicata even between the same parties. (Govindan Nair Vs Abraham) 2003(1) Civil Court Cases 206 (Kerala) 

Res judicata – Decision in money suit – Shall not operate res judicata in title suit. (Md.Mohammad Ali (Dead) by Lrs. Vs Sri Jagadish Kalita & Ors.) 2003(2) Apex Court Judgments 473 (S.C.)

Res judicata – Earlier suit confined to a small portion of the entire property – Decision as to specified part of property does not constitute res judicata for the entire property which is the subject matter of subsequent litigation. (V.Rajeshwari Vs T.C.Saravanabava) 2004(2) Apex Court Judgments 158 (S.C.) : 2004(2) Civil Court Cases 354 (S.C.)

Res judicata – It is the decision on an issue that has been directly and substantially in issue in the former suit between the same parties which has been heard and finally decided that operates as res judicata – Merely a finding on every incident or collateral question to arrive at such a decision does not operate as res judicata. (Mahila Bajrangi (dead) through L.Rs. & Ors. Vs Badribai & Anr.) 2003(1) Apex Court Judgments 104 (S.C.)

Res judicata – Only a part of property involved in previous suit – Held, principle of res judicata is attracted where issues are directly and substantially involved between the same parties in the previous and subsequent suit – may be – in the previous suit only a part of the property was involved when in the subsequent suit, the whole property is the subject matter. (K.Ethirajan (Dead) by LRs. Vs Lakshmi & Ors.) 2004(1) Apex Court Judgments 1 (S.C.) : 2004(2) Civil Court Cases 205(S.C.)

Res judicata – Principle of res judicata is a procedural provision and it has no application where there is inherent lack of jurisdiction. (Sri Ramnik Vallabhdas Madhvani & Ors. Vs Taraben Pravinlal Madhvani) 2004(1) Apex Court Judgments 630 (S.C.) : 2004(3) Civil Court Cases 98 (S.C.)

Res judicata – Principles of res judicata applies in different stages of the same proceedings. (Bhanu Kumar Jain Vs Archana Kumar & Anr.) 2005(1) Apex Court Judgments 121 (S.C.) : 2005(1) Civil Court Cases 725 (S.C.) : 2005(1) Civil Court Cases 725 (S.C.)

Res judicata – Proforma defendant – When no relief against proforma defendant in the earlier suit is claimed then principle of res judicata does not apply. AIR 1956 P&H 129 distinguished. (Joginder Kaur alias Jogindero Vs Mehar Singh) 2003(1) Civil Court Cases 375 (P&H) 

Res judicata – Revenue authorities in mutation proceedings deciding that J was not legally adopted son of G whereas Gopali and Bajrangi were G’s wife and daughter – Such a decision of revenue authorities does not operate as res judicata. (Mahila Bajrangi (dead) through L.Rs. & Ors. Vs Badribai & Anr.) 2003(1) Apex Court Judgments 104 (S.C.)

Res judicata – Suit for possession – Earlier suit decreed in favour of defendant – Appeal dismissed as withdrawn – Judgment in earlier suit became final between parties and the same operates as res judicata. (Sham Lal Vs Smt.Mathi) AIR 2002 H.P. 66

Res judicata – Withdrawal of earlier suit – Principle of res judicata does not apply when earlier suit was withdrawn as withdrawal is not a decision, wherein the matter can be said to have been heard and finally decided by Court. (Harischandra Vithoba Narawade & Ors. Vs Smt.Vatsalabai w/o Narayan Shinde) 2005(1) Civil Court Cases 217 (Bombay)

Will – Grant of succession certificate – Finding regarding Will cannot operate as res judicata in subsequent suit by same applicant praying for mandatory injunction against defendant praying for mandate to defendant to supply him locker number obtained by defendant on basis of alleged will as set up by defendant giving him right to operate lock – Fact that issues were raised and evidence was recorded in succession certificate not relevant. (District Red Cross Society Vs Joginder Pal) AIR 2002 P&H 5

Res judicata – Any matter which might and ought to have been made ground of defence or attack in former suit shall be deemed to have been a matter directly and substantially in issue in such suit. (Ajay Singh & Ors. Vs Rajasthan Civil Service Appellate Tribunal & Ors.) 2003(3) Civil Court Cases 657 (Rajasthan)

Discussion or observation on an issue which does not arise for consideration in a proceedings cannot give rise to the principle of res judicata in a subsequent proceedings wherein such issue arises for consideration. (Ramchandra Shankar Randive & Ors. Vs Uttam Marutrao Randive & Ors.) 2003(3) Civil Court Cases 442 (Bombay) 

Jurisdiction – Parties by agreement cannot confer jurisdiction in a Court which does not have jurisdiction – Such an agreement is hit by Ss.23 & 28 of the Contract Act. (Contract Act, 1872, Ss.23 & 28). (Rajana Nagpal alias Ranjana Malik Vs Devi Ram) 2003(2) Civil Court Cases 127 (H.P.)

Agreement to sell – Suit for specific performance and alternative relief of compensation claimed – Jurisdiction – Land, subject matter of agreement situated in Haryana – Suit filed at Delhi – Held, Court at Delhi has jurisdiction as agreement was executed at Delhi, consideration amount was received at Delhi, and registered office of defendant at the relevant time of execution of sale deed was at Delhi and agreement categorically stating that Delhi Court shall have jurisdiction to decide any matter arising out of the agreement. (Karan Mahendru & Ors. Vs M/s.Vatika Plantations (P) Ltd.) 2004(3) Civil Court Cases 606 (Delhi)

Suit for foreclosure of mortgage – Filed at the place where property situated – However, in view of agreement and also memorandum of understanding suit agreed to be filed only before Court at Bombay – Held, suit is governed by S.16(c) overriding effect over S.20 – Court at place where property is situated has jurisdiction to try the suit. (Shree Shanthi Homes Pvt.Ltd. Vs CREF Finance Ltd.) AIR 2002 Karnataka 252

Agreement to sell – Suit for specific performance – Can be filed in Court within jurisdiction of which suit property situates – Parties cannot by agreement vest jurisdiction in other Courts – As suit falls u/s 16(d), provision of S.20 is inapplicable. (Ranjana Nagpal alias Ranjana Malik Vs Devi Ram) 2003(1) Civil Court Cases 93 (H.P.) 

Jurisdiction – Suit for specific performance – Can be filed in a Court where immovable property situates – Parties by agreement cannot vest jurisdiction in other Courts as suit falls u/s 16(d) – Provisions of S.20 CPC are not applicable. (Ranjana Nagpal Vs Devi Ram) AIR 2002 H.P. 166

Suit based on tort – Jurisdiction – Part of cause of action arose within jurisdiction of Madras High Court – Plaintiff granted leave to file suit in the Madras High Court – Defendant instead of getting the leave to file suit cancelled as per law raised specific objection in the written statement – Defendants not objected to the jurisdiction of Madras High Court when they were in the box – Thus, the defendants have submitted to the jurisdiction of Madras High Court. (Arun Balakrishnan Iyer & Anr. Vs M/s Soni Hospital & Ors.) 2004(2) Civil Court Cases 183 (Madras)

Agency – Contract of – Entered into at Calcutta – Communicated at Delhi – Commission was to be made at Delhi – Court at Delhi has jurisdiction to enforce contract since part of cause of action arose at Delhi. (M/s Continental and Eastern Agencies Vs M/s Coal India Limited) AIR 2003 Delhi 387

Agreement duly signed specifying jurisdiction where suit can be filed – Merely because words like ‘exclusive’, ‘alone’, ‘only’ and the like not mentioned in such ouster clause – Jurisdiction of Court other than specified in agreement cannot be invoked. (M/s Consolidated Agencies Vs M/s Gujarat Carbon and Industries Ltd.) AIR 2002 Madras 396

Hire purchase agreement – Place where suit to be filed in case of dispute mentioned therein – Suit filed in place other than specified place – Not maintainable. (Dilip Kumar Ray Vs Tata Finance Ltd.) AIR 2002 Orissa 29

In case more than one Court has jurisdiction, parties by their consent may limit the jurisdiction to one of the two Courts – Intention to exclude a Court’s jurisdiction should be reflected in clear, unambiguous, explicit and specific terms – In such case only the accepted notions of contract would bind the parties – Parties by an agreement cannot confer jurisdiction to a Court which overwise does not have jurisdiction to deal with a matter. (New Moga Transport Company, through its Proprietor Krishanlal Jhanwar Vs United India Insurance Co. Ltd. & Ors.) 2004(1) Apex Court Judgments 521 (S.C.) : 2004(2) Civil Court Cases 292 (S.C.)

Jurisdiction – By agreement jurisdiction cannot be vested in a Court which does not have jurisdiction. (Ranjana Nagpal Vs Devi Ram) AIR 2002 H.P. 166

Jurisdiction – Employee of purchaser taking delivery of goods at Delhi – Purchaser not producing employee’s register to indicate that person in question was not his employee – Inference has to be drawn against purchaser and person taking delivery should be taken to be employee of purchaser – Sale should be held to have taken place in State of seller – Courts at Delhi will have jurisdiction to entertain suit for purchase amount. (Taneja Skins Co.Pvt. Ltd. Vs Bharath Skins Corporation) AIR 2002 Delhi 179

Jurisdiction – Words ‘alone’, ‘only’ or ‘exclusively’ not mentioned in the purchase order wherein jurisdiction was confined to Court at Bombay –  Whether jurisdiction of all other Courts except Courts at Bombay is excluded is to be gathered from facts and circumstances of the case – Order was placed at Bombay – Said order was accepted by branch office of plaintiff at Bombay, advance payment was made at Bombay and final payment was to be made at Bombay – Held, there is a clear intention to confine the jurisdiction of Courts in Bombay to the exclusion of all other Courts. (M/s.Hanil Era Textiles Ltd. Vs M/s.Puromatic Filters (P) Ltd.) 2004(2) Apex Court Judgments 04 (S.C.) : 2004(2) Civil Court Cases 548 (S.C.)

Non delivery of goods – Suit against transporter for recovery of amount – Defendants branch office situated within jurisdiction of Court where suit was filed – Cause of action arising within jurisdiction of that Court – Jurisdiction of that Court cannot be taken away on ground of condition printed in bilty conferring jurisdiction on other Court. (M/s Hindustan Metals Vs Vishal Goods Transport Co.) AIR 2002 Rajasthan 248

Parties cannot by agreement vest jurisdiction in a Court which does not have jurisdiction. (Ranjana Nagpal alias Ranjana Malik Vs Devi Ram) 2003(1) Civil Court Cases 93 (H.P.)

Pronote – Suit for recovery – Rule of debtor seeking the creditor applicable – Suit filed at place ‘C’ within whose jurisdiction plaintiff is residing – Suit is maintainable. (Dr.Jose Paul Vs Jose & Ors.) AIR 2002 Kerala 397

Territorial jurisdiction – Clause in agreement that dispute under the contract shall be decided by Court at Bombay and by no other Court – Decision of trial Court that Court at Calcutta has no jurisdiction to try the suit, upheld. (Shree Subhlaxmi Fabrics Pvt.Ltd. Vs Chand Mal Baradia & Ors.) 2005(2) Civil Court Cases 227 (S.C.)

Goods booked with Transport Co. at Udaipur destroyed in fire at Barnala – Words “Subject to Udaipur jurisdiction only” printed on consignment receipt do not exclude the jurisdiction of Court at Barnala. (United India Insurance Co.Ltd. Vs New Moga Transport Co.,) 2003(2) Civil Court Cases 665 (P&H) 

Non delivery of goods – Suit against carrier – Goods booked at place ‘J’ for delivery at place ‘M’ – Printed condition in documents of carrier that Court at Delhi alone will have jurisdiction in respect of all the claims and the matters arising under the consignment of goods – Held, parties by consent cannot create jurisdiction in a Court where no cause of action arose – Court at place ‘J’ where cause of action arose has jurisdiction to try the suit. (M/s.Hindustan Metals, Jodhpur Vs M/s.Vishal Goods Transport Co.) 2003(1) Civil Court Cases 642 (Rajasthan) 

Death of one of the defendants during pendency of suit – Application filed within time for bringing L.R’s on record – Notice also issued to L.R’s – Failure to pass order to alter the cause title to bring L.R’s on record – Question of abatement of suit does not arise – Inaction on the part of Court not having result of non suiting the plaintiff – Objection not filed by L.Rs’ disputing their character as LR of deceased – Objection to validity of decree on this ground rejected. (Harjit Kaur Kuljit Singh Kohli Vs Padmavati J.Sethia) 2003(3) Civil Court Cases 453 (Bombay) 

Matrimonial proceedings – Transfer of case to a Court subordinate to another High Court – Wife at mercy of her father & brother to meet travelling expenses – Proceedings transferred at place of residence of wife. (Vempati Sarada Vs Vempati Kaladhar) 2004(2) Civil Court Cases 610 (A.P.)

Application for transfer of case has to be filed in High Court within whose jurisdiction the suit was instituted and not before Court to which suit has to be brought. (M/s Shree Raghavendra Exports Vs Nawakar Enterprises) AIR 2004 A.P. 84

Transfer of case to a Court subordinate to another High Court – High Court u/s 23(3) can transfer a case to a Court subordinate to another High Court and this power of High Court is not curtailed by S.25 CPC. (Vempati Sarada Vs Vempati Kaladhar) 2004(2) Civil Court Cases 610 (A.P.)

Custody of minor children – Transfer of petition – Husband gainfully employed – Wife leading a life of destitution with her aged parents – Wife not in a financial position to make trips to the place where the case filed by husband is pending – Held, it is wife’s convenience that has to be taken into consideration – It is desirable to transfer the case to the place where wife is residing. (Mazhar Sultana Vs Mohd.Abdul Majeed) 2003(1) Civil Court Cases 397 (A.P.) 

Custody of minor children – Transfer of petition – Petition is in fact a lis between husband and wife – Power of transfer of case to be used very sparingly and only in deserving cases, particularly in matrimonial cases – Economic soundness of both the parties, social strata of spouses and behavioral pattern of their standard of life antecedent to marriage and subsequent thereto and after the snap of the knot which resulted in marriage, the circumstances of either of the parties in eking out their livelihood and under whose protective umbrella they are seeking their sustenance of life. (Mazhar Sultana Vs Mohd.Abdul Majeed) 2003(1) Civil Court Cases 397 (A.P.) 

Divorce petition filed by husband at place ‘G’ and subsequent thereto wife filed petition for restitution of conjugal rights at place ‘B’ – Wife seeking transfer of husband’s petition – Wife’s convenience be considered while deciding transfer of a case – Both parties making serious allegations of threat to life against each other if proceeded to place of Court – Taking the over all facts and circumstances and convenience of wife into consideration both the petitions transferred to Court at a third place – Question of jurisdiction will not come in the way of transfer of cases u/s 24 CPC. (Rayaprolu Rajya Lakshmi Vs Rayaprolu Ravindranadh Sarma ) 2004(2) Civil Court Cases 218 (A.P.)

Husband filed petition u/s 12 HM Act at Gwalior (M.P.) – Subsequently wife filed petition u/s 13 HM Act at Meerut (U.P.) – Held, transfer application for transfer of matrimonial case from Meerut (U.P.) to Gwalior (M.P.) is not cognizable by Allahabad High Court. (Brijesh Kumar Gupta Vs Smt.Poonam Gupta) 2003(1) Civil Court Cases 106 (Allahabad) 

Matrimonial case – Transfer – Husband raising a contention that the Court to which transfer of his divorce petition is sought has no jurisdiction – Court while deciding transfer application need not go into question of jurisdiction. (Rayaprolu Rajya Lakshmi Vs Rayaprolu Ravindranadh Sarma ) 2004(2) Civil Court Cases 218 (A.P.)

Matrimonial case – Transfer – Power of Court to order transfer u/s 24 CPC is not curtailed or excluded by S.21-A of Hindu Marriage Act. (Rayaprolu Rajya Lakshmi Vs Rayaprolu Ravindranadh Sarma ) 2004(2) Civil Court Cases 218 (A.P.)

Divorce proceedings – Transfer of – Convenience of wife is to be taken into consideration and ordinarily the request of wife is accepted – However in the present case allegation of threats is vague as no date or place is indicated in the petition – Wife comfortably and conveniently attending the hearings since 1999 – Effort on the part of the wife appears to cause delay in the final decision of the divorce petition – Petition dismissed. (Navneet Kaur Vs Captain A.P.S.Sandhu) 2003(3) Civil Court Cases 388 (P&H) 

Matrimonial proceedings – Transfer – It is convenience of wife that must be looked at – Wife working in Delhi and husband filed suit at a far away place from Delhi – Suit transferred to Delhi. (Sumita Singh Vs Kumar Sanjay) AIR 2002 S.C. 396

Matrimonial proceedings – Transfer of – Proceeding pending in Court at place ‘B’ and wife residing at place ‘K’ with child aged 15 months – Convenience of wife must be considered – Proceedings transferred to Court at place ‘K’. (Seema alias Preeti Vs Pramod Chandrakant Vernekar) 2004(3) Civil Court Cases 460 (Karnataka)

Obstructor filed application U.O.21.R.97 – Application kept pending for orders – However, order for execution of decree with police help passed – No bias on part of executing Court – No case for transfer.   (Balraj Singh & Anr. Vs Ajit Singh) 2004(3) Civil Court Cases 673 (Rajasthan)

Transfer of case – Party can approach District Court or High Court – When a party is unsuccessful in a transfer petition filed before District Court then that order can be challenged but party cannot approach High Court under S.24 CPC for same relief – Party can however, approach High Court under Article 227 of the Constitution to redress his grievance. (Ariamma Sachariah Vs Rose Elizabeth Kurian) 2004(3) Civil Court Cases 292 (Kerala)

Transfer of case by High Court – Held, High Court had the requisite jurisdiction to withdraw any suit pending in any Court subordinate to it and try or dispose of the same inter alia on its own motion, wherefor even no notice is required to be issued. (Abdul Rahman Vs Prasony Bai & Anr.) 2003(1) Apex Court Judgments 302 (S.C.)

Transfer of Matrimonial proceedings – Convenience of wife has to be taken into consideration – Petition transferred to Court where wife resides. (V.Sailaja Vs Koteswara Rao) AIR 2003 A.P. 178

Transfer of petition – Proceedings before Rent Control Court – Transfer to Civil Court not permissible. (L.K.Phanesh Babu Vs Mohd.Akbar) AIR 2003 A.P. 168

Transferee Court – Decree drawn – Date of presentation of plaint to be mentioned in the decree is date on which suit was instituted in the original Court and not date on which it was received by transferee Court. (M.Krishna Rao & Anr. Vs M.L.Narasikha Rao & Ors.) 2004(2) Civil Court Cases 265 (A.P.)

Consolidation of cases – Objections to Arbitration award filed by Petitioner at Chandigarh on 28.1.2003 and Respondent filed objections on 29.1.2003 at Sonipat – Held, when proceedings with regard to the same matter have been initiated by parties at two places or more than two places then it is always proper to consolidate the proceedings at one place because it would avoid the possibility of any conflicting view – Case at Chandigarh transferred to Court at Sonipat as contract between the parties was within the jurisdiction of Court at Sonipat and witnesses are likely to be from that area. (Haryana Tourism Corporation Limited Vs M/s Lord Shiva Construction Company) 2004(3) Civil Court Cases 719 (P&H)

Two suits arising out of the same transaction filed at Courts within jurisdiction of different High Courts – Court has to regard and respect S.10 CPC – However, considerations such as which is the place where most of the evidence is available, convenience of the parties and witnesses, which one of the two places is more convenient to access and attend and so on are also the factors to be kept in view and may in appropriate case persuade the Court to direct a  transfer of case in departure from the rule underlying S.10 of CPC. (M/s Gupte Cardiac Care Centre & Hospital Vs Olympic Pharma Care Pvt. Ltd.) 2004(1) Apex Court Judgments 622 (S.C.) : 2004(3) Civil Court Cases 43 (S.C.)

“On such day not beyond thirty days from the date of the institution of the suit” – Meaning – It fixes outer time frame i.e. steps must be taken within thirty days from the date of the institution of the suit, to issue summons – Correct address and process fee must be filed in the Court within thirty days so that summons be issued by Court not beyond thirty days from the date of the institution of the suit. (Salem Advocate Bar Association Vs Union of India) 2003(1) Civil Court Cases 198 (S.C.) 

Interest – Redemption of mortgage – No obligation to award interest on contractual rate upto date of redemption of mortgage – It is in discretion of Court to award interest so far as interest pendente lite and subsequent interest is concerned. (Roshan Dinshaw Karai Vs Sangita L.Mankani) 2003(2) Civil Court Cases 537 (Bombay) 

Interest – Suit under summary procedure – Liability not arising out of a commercial transaction – Rate of interest reduced from 18 percent to 6 percent per annum. (Rajni Kumar Vs Suresh Kumar Malhotra & Anr.) 2003(1) Apex Court Judgments 511 (S.C.)

Bank loan – Suit for recovery – 17% interest claimed on basis of Reserve Bank of India directives – Bank setting up specific case not denied by defendants – Court cannot deny interest claimed on principal sum adjudged. (Indian Bank Vs M/s M.R.Prabhu and Sons) AIR 2002 Kerala 44

Goods sold – Suit for recovery of money – Evidence that plaintiff supplied goods of value as claimed – Defendant failed to produce any evidence to prove that he made the payment – Thus, both on testimony of plaintiffs witnesses and on ground of damages for wrongfully withholding of amount on false and concocted grounds, plaintiff entitled to amount due with interest at 21% p.a. (M/s Premier Auto Electric Ltd. Vs Shyam Ahuja) AIR 2003 Delhi 156

Interest – Advance received for supply of goods – Goods not supplied – Award of interest prior to suit is not open to challenge – As regards future interest even on basis of S.34 interest at 6% per annum is proper. (M/s Mahanadi Multipurpose Industries Vs State of Orissa) AIR 2002 Orissa 150

Interest – Agreement to sell – Decree for return of earnest money – Agreement to sell executed as a collateral security for repayment of loan or debt – Loan taken in the year 1990 and defendant denied the execution of agreement itself – Interest pendente lite and future interest allowed at the rate of 12% per annum. (Ram Rakha Vs Sudesh Kumari) 2004(3) Civil Court Cases 521 (P&H)

Interest – Bank loan – As public money is involved so Courts are to be very careful and cautious in grating the rate of interest and also quantum of amount on which the said rate of interest has to be granted – Interest at the rate of 15.5% on the total sum which was claimed on the date of institution of suit and also at 12% simple interest from date of institution of suit till date of realisation granted. (Syndicate Bank Vs M.Venkatesu) 2003(3) Civil Court Cases 291 (A.P.) 

Interest – Cash credit limit – Bank is entitled to interest at the rate of 12 per cent per annum on the amount due as per agreement. (State Bank of India Vs. M/s.H.Satish Hosiery Factory, Modhopuri & Anr.) 2004(2) Civil Court Cases 553 (P&H)

Interest – Commercial transaction – Interest @ 12% would be proper for period subsequent to decree till realisation. (Tamilnad Card Boards and Paper Mill Ltd. Vs Sirpur Paper Mills Ltd.) AIR 2003 A.P. 438

Interest – Contract of guarantee – Charging of additional interest for period of default in terms of contract – Does not amount to charging of penal interest. (Mukesh Gupta Vs SICOM Ltd.) AIR 2004 Bombay 104

Interest – Loan transaction – Interest at 6% p.a. on decretal amount from date of suit till realisation – Can be granted to creditor. (Smt.C.Madhu Vs B.V.S.Murthy) AIR 2003 Karnataka 113

Interest – No agreement – Interest can be granted @ 10% from date of demand till date of realisation on principal amount adjudged. (Brig. R.C.Datta Vs Dr.Rajiv Anand) AIR 2003 Delhi 199

Interest – Post decree – Not to exceed 6% – Interest from date of filing suit to date of decree maintained at 12% and from date of decree till date of realization interest allowed at 6% on the principal sum. (The Chairman, Grid Corporation Of Orissa Ltd., & Ors. Vs Hemalata Sethi & Ors.) 2004(2) Civil Court Cases 640 (Orissa)

Interest – Suit for recovery of price of goods supplied – In view of non commercial nature of transaction, interest awarded at the rate of 6% p.a. (The City Municipal Corporation, Kolar Vs S.A.Lateef & Company, V.Kota, Andhra Pradesh) 2005(1) Civil Court Cases 98 (Karnataka)

Interest – Transaction commercial – Reasonable rate of interest would be 12% per annum. (M/s Ajeet International Vs H.P. Horticulture Produce Marketing and Processing Corporation Ltd.) AIR 2002 H.P. 159

Interest pendente lite – Commercial transaction – Lending rate of nationalised Bank during relevant period, is applicable. (Karnataka State Industrial Investment and Development Corporation Limited Vs State Bank of India & Anr.) 2004(3) Civil Court Cases 653 (Karnataka)

Interest pendente lite and future interest – Stipulation in agreement that no interest is payable – Held, the same ceases to operate when once suit is filed – Plaintiff is entitled to interest in terms of S.34 of the Code. (Balwant Kaur Vs Life Insurance Corporation of India) 2005(1) Civil Court Cases 540 (P&H)

Plot allotment – Additional price – Interest – Simple interest is payable – No provision in Haryana Development Authority Act, 1977 or Haryana Urban Development (Disposal of Land and Buildings) Regulations, 1978 and conditions of allotment stipulated in allotment letter for charging compound interest. (Gian Inder Sharma Vs Haryana Urban Development Authority) AIR 2003 P&H 128

Subsequent interest – Not claimed – Not a bar for the Court to grant subsequent interest. (A.Narayan Rao Vs Shanta Bai & Ors.) 2004(2) Civil Court Cases 409 (A.P.)

Two cheques dishonoured – Liability admitted in letters – No rate of interest specified – Defendant liable to pay interest at the rate of 18% per annum from it received notices of dishonour. (UIC Finance Pvt. Ltd. Vs Carews Pharmaceuticals Pvt.Ltd.) AIR 2004 Calcutta 68

Interest – Payable on principal amount – Principal amount means outstanding loan as capitalised on date of suit including balance of loan amount remaining unpaid as well as interest accrued thereon at contractual rate, till date of suit. (Union Bank of India Vs M/s Chhatarpur Siliment Sales Corporation) AIR 2002 M.P. 145

Interest – Pendente lite and future – Court is not obliged to grant interest at contractual rate, either from date of suit till date of decree or from date of decree till payment thereof. (Union Bank of India Vs M/s Chhatarpur Silliment Sales Corporation) AIR 2002 M.P. 145

Mesne profits – Interest – To be calculated on yearly basis – Mesne profits are earned year to year from the first year itself – Rate of interest cannot be more than it is claimed. (Sri Ramnik Vallabhdas Madhvani & Ors. Vs Taraben Pravinlal Madhvani) 2004(1) Apex Court Judgments 630 (S.C.) : 2004(3) Civil Court Cases 98 (S.C.)

Costs – Respondent not appearing and contesting – No order of costs made. (Kulsoma Bibi Vs Abdul Mannan) AIR 2002 Calcutta 1

Defence – Striking off – Petitioner failing to appear on particular date and non-payment of costs – He could be proceeded with ex parte – Order striking off his defence – Not proper. (Black Diamond Glassware P.ltd. Vs Kusumlata Gupta) AIR 2004 Delhi 88

Costs – Non payment – If issue of non payment of costs is not raised on first date the same cannot be raised on subsequent date – It amounts to waiver – Object of the provision is to secure efficacious prosecution of the suit and not to penalise the party against whom the costs have been awarded. (Roor Singh Vs Raghbir Singh) 2003(1) Civil Court Cases 279 (P&H) 

Cost – Non payment on next date of hearing  – Issue not raised by either of the parties or taken notice of by Court – Cannot be said that thereafter on all or any subsequent date the same can be resuscitated or that S.35-B would continue to apply with all its rigour thereafter as well. (Gurmail Singh Vs Raghbir Singh) 2005(2) Civil Court Cases 320 (P&H)

Execution – Person against whom execution sought residing outside territorial jurisdiction of Court passing decree – Such Court cannot proceed with execution of decree. (Smt.Uma Kanoria Vs Pradip Kumar Daga) AIR 2003 Calcutta 162

Execution – Transfer of decree to another Court on ground that J.D’s properties situate at that place – Order of transmission of decree for execution is a ministerial act and can be made ex parte – J.D. cannot challenge such order on ground that no notice was given to him before passing the order. (Swati Land Developers Pvt. Ltd. Vs Vrajlal Tapubhai Lodhia @ Vajubhai T.Lodhia & Ors.) 2004(2) Civil Court Cases 258 (Gujarat)

Execution – Transfer to another Court – Decree can be transferred for execution to another Court if J.D. actually and voluntarily carries on business or personally works for gain within the local limits of jurisdiction of such other Court irrespective of the fact that J.D. had property sufficient to satisfy the decree within the jurisdiction of Court which passed the decree. (Swati Land Developers Pvt. Ltd. Vs Vrajlal Tapubhai Lodhia @ Vajubhai T.Lodhia & Ors.) 2004(2) Civil Court Cases 258 (Gujarat)

Lease of land – With permission of lessor building constructed on land – Lessor sub-letting building and getting substantial amount of rent – Suit for recovery of possession filed against lessee and in respect of land only and not building thereon – Decree passed on admission of lessee to surrender land – Executable only against lessee and not sub lessees. (Mehta Suraya Vs United Investment Corporation) AIR 2002 Calcutta 108

Co-owner – Claiming his share in residential property, exempt from sale – Ownership of property – By an order burden to prove ownership shifted upon the owner – Ownership cannot be proved by power of attorney holder – Owner not entering in witness box – Held, owner has failed to establish that on the date of the decree he was the co-owner of the property and that he has any independent source of income and contributed for purchase of the property from his own independent income and has further failed to discharge the burden of proving that owner has a share in the property. (Janki Vashdeo Bhojwani & Anr. Vs Indusind Bank Ltd. & Ors.) 2005(2) Civil Court Cases 324 (S.C.)

Civil as well as criminal proceedings – Fine amount in criminal proceedings – Executing Court cannot adjust or take into account part of fine amount received by complainant in criminal case. (Smt.Gayathri Vs Clement Mary) AIR 2003 Karnataka 134

Execution – Objections – Framing of issues – Merely because frivolous and vexatious objections are filed with a view to delay and defeat the execution of the decree, it is not necessary that Court must frame issues and grant opportunity to the parties to lead evidence. (Bikram Singh Vs Surjit Singh & Ors.) 2005(1) Civil Court Cases 374 (P&H)

Suit for specific performance – Objections by son that suit property is a joint Hindu family and coparcenary property and that decree cannot be executed against him – Held, son has no right to intervene in the process of sale at this stage – Coparcener shall have right to challenge the alienation only after the sale is complete and that would be on execution of sale deed. (Bikram Singh Vs Surjit Singh & Ors.) 2005(1) Civil Court Cases 374 (P&H)

Execution application – Dismissed in default – Second application for execution without getting the first application restored is maintainable. (Yash Pal Sharma Vs Ajit Singh & Ors.) 2004(2) Civil Court Cases 420 (P&H)

Bar of separate suit – Not attracted if objecting person is not party to suit or legal representative of party to suit. (Lalitkumar Ramlal Sharma Vs Jadavbai Murlidhar Sharma) 2003(1) Civil Court Cases 301 (Bombay)  

Decree – A decree suffering from illegality or irregularity of procedure, cannot be termed inexecutable by the executing Court. (Rafique Bibi Vs Sayed Waliuddin) 2003(3) Civil Court Cases 710 (S.C.) : 2003(2) Apex Court Judgments 355 (S.C.)

Executing Court cannot scan or review the reasoning provided by the Court in decreeing the suit. (International Security and Intelligence Agency Limited Vs Municipal Corporation) AIR 2002 Delhi 347

Execution – Decree based on khasra girdawari entries – Khasra girdawari entries ordered to be corrected – Held, J.D. is entitled to raise objection that decree has become unexecutable on the ground that the decree holder has lost the status on which the decree was based – Contention repelled that any subsequent order or change in the status of decree holder could not be considered by the executing court for refusing to execute the decree. (Birkha Vs Phool Singh) 2003(1) Civil Court Cases 462 (P&H)  

Execution – Decree for permanent injunction regarding user of flour mill – Mill itself entrusted back to D.H. – There is no further occasion for violating decree – Therefore entire decree stood satisfied on delivery of flour mill to D.H. – Dismissal of execution petition – Proper. (M/s Shiv Charan Din Dayal Jain Vs Mohan Lal) AIR 2004 Delhi 139

Execution – Decree passed by Court having no jurisdiction – Such decree is a nullity – J.D. can object to its execution being a nullity and non est – Its invalidity can be set up whenever it is sought to be enforced including the stage of execution of the decree or any other collateral proceedings. (Sarwan Kumar & Anr. Vs Madan Lal Aggarwal) 2003(1) Apex Court Judgments 282 (S.C.)

Execution – Decree will be a nullity if passed by Court not having jurisdiction – Lack of jurisdiction in the Court passing the decree must be patent on its face in order to enable the executing Court to take cognizance of such nullity based on want of jurisdiction otherwise normal rule that an Executing Court cannot go behind the decree must prevail. (Rafique Bibi Vs Sayed Waliuddin) 2003(3) Civil Court Cases 710 (S.C.) : 2003(2) Apex Court Judgments 355 (S.C.)

Execution – Distinction between a decree which is void and a decree which is wrong, incorrect, irregular or not in accordance with law – Where a Court lacks inherent jurisdiction in passing a decree or making an order, a decree or order passed by such court would be without jurisdiction, non est and void ab initio – Defect of jurisdiction of the Court goes to the root of the matter and strikes at the very authority of the Court to pass a decree or make an order – Validity of such decree or order can be challenged at any stage, even in execution or collateral proceedings – A decree suffering from illegality or irregularity of procedure, cannot be termed inexecutable by the executing court – Remedy of a person aggrieved by such a decree is to have it set aside in a duly constituted legal proceedings or by a superior court – An erroneous or illegal decision, which is not void, cannot be objected in execution or collateral proceedings. (Balvant N.Viswamitra & Ors. Vs Yadav Sadashiv Mule (D) through Lrs. & Ors.) 2004(2) Apex Court Judgments 255 (S.C.) : 2004(3) Civil Court Cases 485 (S.C.)

Execution – Non joinder of a party who is not necessary party to the suit – Does not render the decree a nullity. (Balvant N.Viswamitra & Ors. Vs Yadav Sadashiv Mule (D) through Lrs. & Ors.) 2004(2) Apex Court Judgments 255 (S.C.) : 2004(3) Civil Court Cases 485 (S.C.)

Execution – Person claiming under the defendant or J.D. – Can challenge the decree or order by way of an appeal but cannot challenge the decree as being void or unenforceable in execution. (Government of Orissa Vs M/s.Ashok Transport Agency & Ors.) 2005(1) Apex Court Judgments 366 (S.C.) : 2005(1) Civil Court Cases 744 (S.C.)

Execution – Plea that opportunity to deposit arrears of rent before passing the decree not granted as provided by the statute – It was for the tenants to have invited the attention of Court by making an application so as to avail an opportunity of wiping out the effect of their default – On the face of it decree suffers from a procedural irregularity which cannot be termed as “illegal decree” but decree cannot be said to be “without jurisdiction” or a “nullity” – Plea raised in execution was available by filing an appeal – Plea not available in execution proceedings. (Rafique Bibi Vs Sayed Waliuddin) 2003(3) Civil Court Cases 710 (S.C.) : 2003(2) Apex Court Judgments 355 (S.C.)

Execution – Scope of inquiry under S.47 CPC is limited to the questions of implementation and fulfilment of obligations under the decree. (Tushar Suresh Bhumkar Vs M/s.Suresh and Company) 2003(2) Civil Court Cases 252 (Bombay) 

Exparte decree – Execution – Objections – Decree alleged to be nullity as obtained without service of summons on the objector – Held, without moving an application to set aside the exparte decree or obtaining stay of execution of decree it does not lie in the mouth of the petitioner to say that decree is a nullity in the eye of law – Objections dismissed by trial Court – Order upheld.    (Jasbir Singh Vs Syndicate Bank & Ors.) 2004(2) Civil Court Cases 667 (P&H)

Identity of property – Issue raised and decided in ejectment proceedings – Court cannot go behind the decree by reopening the issue in execution proceedings. (Ravinder Kaur Vs Ashok Kumar & Anr.) 2003(2) Apex Court Judgments 593 (S.C.)

Interest – Awarded in the decree at 18% per annum – Decree attained finality – If J.D. felt aggrieved he should have filed an appeal before the higher Courts – Executing Court cannot go behind the decree and the objection of J.D. regarding rate of interest is not maintainable. (M/s.Harbans Lal Raj Rishi Vs M/s.Lachhman Dass Rajesh Kumar) 2003(3) Civil Court Cases 128 (P&H) 

Order passed u/s 47 CPC – Order is not appealable. (Ramai Ranjan Pati Vs Mst.Sahanaj Fatima) 2005(1) Civil Court Cases 268 (Orissa)

Review of order – Order passed absolutely clean and unambiguous – Court has no inherent power to review its order duly pronounced – No material about discovery of new and important matter or evidence brought on record – No mistake or error apparent on face of record or any other sufficient reason brought before Court – Application not maintainable. (Kishore Motiani Vs M/s Om Prakash & Sons) AIR 2003 Delhi 166

Suit for damages – Decree passed for an amount which was much more than pecuniary jurisdiction – Refusal of executing Court to execute decree on ground that decree was passed without jurisdiction – Not proper. (Arup Kumar Mukherjee Vs Regional Institution of Printing Technology) AIR 2003 Calcutta 40

Execution – Objections – Determination of – Does not amount to decree – No appeal lies from such an order – Order of District Judge entertaining such appeal and holding that decree is not executable reversed – Executing Court to proceed with execution. (Hira Lal Vs Lrs. of Kale Khan & Ors.) 2005(2) Civil Court Cases 288 (Rajasthan)

Execution – Objections – Objections raised already adjudicated upon by first appellate Court and the same cannot be raised again in execution – Executing Court is bound in law to execute the decree. (Medical Supdt. E.S.I. Hospital, Amritsar Vs Prem Lata & Anr.) 2004(2) Civil Court Cases 619 (P&H)

Execution – Compensation awarded to legal representatives on the death of a person does not form part of the estate of the deceased and cannot be attached in execution of decree against the deceased. (K.Ayyasammy Vs Mohanasundari & Ors.) 2004(2) Civil Court Cases 348 (Madras)

Family settlement after passing of the decree – J.D. having more than one house and shops earlier – Contention that J.D. has only one house which cannot be attached – Held, by family settlement it is an attempt to defeat the decree which is a result of collusion between J.D. and his brothers – Objection not maintainable. (M/s.Harbans Lal Raj Rishi Vs M/s.Lachhman Dass Rajesh Kumar) 2003(3) Civil Court Cases 128 (P&H) 

Order u/s 47 – Appeal against – Appeal does not lie against order passed u/s 47 CPC – However, order passed in appeal taken to be an order passed u/s 115 CPC as revision is maintainable against an order passed u/s 47 CPC – Procedural hurdles not an impediment to refuse just remedy to the litigants. (Ramai Ranjan Pati Vs Mst.Sahanaj Fatima) 2005(1) Civil Court Cases 268 (Orissa)

If decree is silent about some relief, power either under S.47 or S.152 CPC cannot be exercised by the Court. (Tushar Suresh Bhumkar Vs M/s.Suresh and Company) 2003(2) Civil Court Cases 252 (Bombay)

Arrest and detention – J.D. carrying on old business in new name with dishonest intention to deprive D.H. of his legitimate dues – New business carried out at same place and in same goods as of old business – J.D. has means to pay but he is refusing to pay shows element of bad faith in his conduct – Case not of mere inability to pay due to circumstances beyond control – Order directing detention of J.D. in civil prison, proper. (Prakash Bhagwani Vs Sammati Food Products Pvt.Ltd.) AIR 2002 M.P. 127

Consent decree for partition – Sent to Collector for execution – Thereafter Civil Court does not become functuous officio – Civil Court can see if Collector had acted in accordance or contrary to decretal mandate. (Mahadu Vs Appaji) 2003(2) Civil Court Cases 376 (Bombay) 

Attachment before judgment – Amount deposited before Criminal Court to stand as surety – Security amount of third party cannot be attached unless and until Court orders return of amount and J.D. has a disposing power. (Surender Singh Bajaj Vs M/s Kitty Steels Ltd.) AIR 2003 A.P. 13

Pension amount – Attachment – Once pension amount is deposited by Govt. in Savings Account of employee it loses all the characteristics of pension and the same is attachable in execution of a decree. (S.Nagappa Vs K.P.Hanumappa) 2004(2) Civil Court Cases 634 (A.P.)

Amount payable under policy of life insurance scheme to father of J.D. – Cannot be attached. (Regional Manager, LIC of India Vs John Bosco )  AIR 2002 Madras 348

Money payable under policy of insurance – Is exempt from attachment and sale irrespective of the fact whether the insurance policy matures during the lifetime of the assured or the money becomes payable after the death of J.D. (Regional Manager, L.I.C. of India, Thanjavur Vs John Bosco) 2003(1) Civil Court Cases 574 (Madras) 

Execution – Decree of specific performance – Exemption of attachment and sale of one residential house – Exemption is not available in case of execution of decree of specific performance as residential house is not attached or sold in execution of decree but decree for specific performance is being executed. (Bikram Singh Vs Surjit Singh & Ors.) 2005(1) Civil Court Cases 374 (P&H)

Residential house – Exemption from attachment – Burden to prove is on J.D. that the house or the building attached constitutes residential house and the same is in his occupation. (Sher Singh Vs State Bank of Patiala) 2003(1) Civil Court Cases 677 (P&H) 

Residential house – Exemption from attachment – Not available when J.D. has created a lien or charge over a residential house. (Sher Singh Vs State Bank of Patiala) 2003(1) Civil Court Cases 677 (P&H) 

Residential house – Exemption from attachment – The only residential house belonging to partners of the firm is exempt from attachment. (Kartar Singh & Ors. Vs The Union of India & Ors.) 2004(2) Civil Court Cases 490 (P&H)

Money decree on the basis of compromise passed in a suit for specific performance – In case of default to make payment house could be sold – Held, house not exempt from attachment. (Sikandar Singh Vs Harjit Pal Singh) 2005(1) Civil Court Cases 691 (P&H)

Registration of document before attachment order is a must to claim right over the property under attachment. (Sumikin Bussan International, Hong Kong Vs Manharlal T.Mody & Ors.) 2005(1) Civil Court Cases 245 (Bombay)

Rateable distribution – Allowed on ground that both D.H’s got asset of J.D. attached during pendency of suit – Not proper. (Kanakam Srinivas Rao Vs Ganga Venkateswara Rao) AIR 2003 A.P. 38

Rateable distribution – Court sale of property which was under mortgage – Mortgagee of property is not entitled for rateable distribution in any surplus arising from the sale of such property in pursuance of a decree obtained by another decree holder – Mortgagee has to work out its remedy in the manner known to law in an independent proceedings for the realisation of whatever sums due to it pursuant to the said mortgage. (Venus Chit Fund and Finance Corporation Vs Pondichery Co-operative Housing Society Ltd.) 2004(3) Civil Court Cases 234 (Madras)

Public Officer – Suit instituted against public officer for acts not relating to his official capacity – Acts whether done in official capacity or individual capacity can only be decided after completion of trial – Plaint cannot be rejected before completion of trial U.O.7.R.11(d). (C.Arjun Rao (D-1) Vs Dr.T.Rama Mohan Rao & Anr.) 2004(2) Civil Court Cases 464 (A.P.)

Leave to institute suit without service of notice – Only if urgent and immediate relief is involved in suit – Return of plaint for complying with provisions of S.80 without examining whether grant of urgent and immediate relief is involved in suit or not – Improper. (Inder Singh Vs State of H.P.) AIR 2002 H.P. 23

Notice – Application filed to dispense with issuance of notice on ground of urgency – Application allowed – Objection to maintainability of suit on ground of non issuance of notice – Cannot be sustained. (State of A.P. Vs Singam Setty) AIR 2003 A.P. 182

Notice – Mere despatch is not sufficient – It must be actually either delivered or tendered to the person to whom it is required to be given u/s 80 CPC. (State of Karnataka Vs M.Muniraju) AIR 2002 Karnataka 287

Notice – Sent as per registered post – Unrebutted statement of plaintiff to same effect – Service of notice held, proved.  (Bharat Kumar & Anr. Vs Union of India & Anr.) 2004(3) Civil Court Cases 237 (Rajasthan)

Notice – Two months notice period has to be excluded from computing the period of limitation u/s 15(2) of Limitation Act. (Union of India & Ors. Vs West Coast Paper Mills Ltd. & Anr.) 2004(2) Apex Court Judgments 237 (S.C.) : 2004(3) Civil Court Cases 250 (S.C.)

Public Officer – Notice – When an urgent or immediate relief is sought for against a public officer in his official capacity, suit may be instituted, with the leave of the Court – If such public officer waives of his right of protection, he cannot be granted protection of bar of suit of law as contemplated U.O.7.R.11(d) – Whether such public officer has waived his right can only be decided after completion of the trial and plaint cannot be rejected before completion of trial U.O.7.R.11(d) CPC. (C.Arjun Rao (D-1) Vs Dr.T.Rama Mohan Rao & Anr.) 2004(2) Civil Court Cases 464 (A.P.)

Notice – Leave to sue without issuance of a notice – There must be a specific order to this effect – Such an order cannot be deemed to have been passed merely because trial Court has entertained the suit. (Jit Singh & Ors. Vs State of Punjab & Ors.) 2004(3) Civil Court Cases 261 (P&H)

Civil suit without exhausting expeditious remedy provided under Contract stipulation having certain incidences of arbitration agreement – Not proper – Filing of suit by aggrieved contractor – Is premature. (The Managing Director Vs Mareppa M.Naik) AIR 2003 Karnataka 115

Court as an arbitrator – By mutual agreement of parties power conferred in Civil Court – Held, Govt. or any party cannot compel Civil Court to arbitrate dispute on strength of agreement entered into between parties. (K.Venkulu Vs State of A.P.) AIR 2004 A.P. 85

Reference of dispute to arbitration, conciliation, judicial settlement including settlement through Lok Adalat – Dispute to be referred only if there exists element of settlement – An application to invoke the power conferred on Court is not required – Other party cannot be compelled to agree with such a proposal – If the parties do not agree to the forum, Court shall apply its mind, take a decision as to which of the four modes is suitable and refer the dispute to that forum – It is for the Court to decide as to which of the four methods should be adopted and no party can claim, as a matter of right, that his case shall be dealt with in any particular mode provided u/s 89 of the Code. (Basheer Vs Kerala State Housing Board) 2005(1) Civil Court Cases 558 (Kerala)

Resort should be had to Alternative Dispute Resolution Mechanism with a view to bring an end litigation between the parties at an early date – S.89(2)(d) contemplates appropriate rules being framed with regard to mediation. (Salem Advocate Bar Association Vs Union of India) 2003(1) Civil Court Cases 198 (S.C.) 

‘Dharamsala’ – User for 125 years as such – Whether leads to an inference that the same belongs to a public trust? – Held long user of a property as Dharamsala by itself would not lead to an inference that dedication of the property in favour of the public was complete and absolute – If there had been such a dedication then the same was expected to be recorded in the revenue records. (Kuldip Chand & Anr. Vs Advocate General to Government of Himachal Pradesh & Ors.) 2003(1) Apex Court Judgments 478 (S.C.)

A Hindu is entitled to dedicate his property for religious and charitable purposes and no instrument in writing is necessary – When a dedication to a charity is sought to be established in absence of an instrument or grant, then such dedication must be established by cogent and satisfactory evidence of conduct of parties and user of property which show the extinction of the private secular character of the property and its complete dedication to charity – It must be proved that the donor intended to divest himself of his ownership in the dedicated property – Meaning of charitable purpose may depend upon the statute defining the same. (Kuldip Chand & Anr. Vs Advocate General to Government of Himachal Pradesh & Ors.) 2003(1) Apex Court Judgments 478 (S.C.)

Trust property – Pujari – Removal – Pujari claimed temple and property of temple as his private property – Temple built by right holders of village – As Pujari claimed his title in temple which is adverse to the temple as such he was rightly removed from the post of Pujari. (Hari Singh Vs Lord Shiva (Idol) 2003(2) Civil Court Cases 259 (P&H) 

Representative suit – Binds not only the parties named in the suit title but all those who share common interest and are interested in the trust – Explanation VI to S.11 constructively bars by res judicata the entire body of interested persons from re-agitating the matters directly and substantially in issue in an earlier suit u/s 92 CPC. (Shiromani Gurdwara Parbandhak Committee Vs Mahant Harnam Singh C. (Dead), M.N.Singh & Ors.) 2004(1) Apex Court Judgments 446 (S.C.)

Interlocutory order – Power cannot be exercised in relation to property totally foreign to dispute and unconnected with claim of parties to suit. (Dinkar Tippanna Mirajkar Vs Bank of India) 2003(1) Civil Court Cases 182 (Bombay) 

Appeal by person who is not party to suit – Can be filed with leave of Court if he is aggrieved by it or prejudicially affected by it – In order to get special leave, the person who files such a petition need only show prima facie that he is aggrieved by it and he is having an appealable interest. (Ramachandran Potti Vs Thankam) 2004(3) Civil Court Cases 534 (Kerala)

First appellate Court – Specific mention of all reasons given by trial Court – Not necessary. (Dr.S.S.Khurana Vs Mahaveer Prasad) AIR 2004 Rajasthan 107

Cross suits between same parties relating to same property involving same issues – Disposal of common judgment – Two decrees passed – Appeal against only one decree preferred – Not maintainable – ‘Judgment’ and ‘decree’ not concepts which can be used in alternative – Res judicata, acquiescence and estoppel – Applicability in determining maintainability of appeal against only one of two decrees arising from common judgment. (Darayas Bamanshah Medhora Vs Nariman Bamansha Medhora) AIR 2002 Gujarat 166

Rejection of plaint – Appeal and not revision lies. (K.S.Geetha Vs Stanleybuck) AIR 2003 Madras 146

Appeal – Second appeal dismissed in limine – Amounts to merger of the judgment of the lower Appellate Court with that of the High Court. (Gulzara Singh & Ors. Vs Devinder Singh & Ors.) 2004(3) Civil Court Cases 455 (P&H)

Second appeal – Pleas to part performance of contract – Cannot be taken for first time in second appeal. (Sham Lal Vs Mathi) AIR 2002 H.P. 66

Appeal – Maintainability of suit – Specific issue framed – Suit held to be maintainable – Finding not challenged by defendant and the same became final – Defendant is not entitled to challenge said finding in second appeal. (Hameed & Ors. Vs Kanhaiya) 2005(1) Civil Court Cases 146 (Allahabad)

Second appeal – Appeal u/s 100 CPC can only be admitted if it raises a substantial question of law – A substantial question of law is one which involves question of general public importance that has not been settled by the Supreme court, Privy Council or by the Federal Court. (Saudarshan Kumar Vs Raj Rani) 2003(3) Civil Court Cases 564 (P&H) 

Second appeal – Concurrent finding on the exercise of discretionary jurisdiction – High Court should not interfere therewith without arriving at a finding that the discretion has been exercised by Courts below on wrong legal principle. (Manjunath Anandappa Urf.Shivappa Hanasi Vs Tammanasa & Ors.) 2003(1) Apex Court Judgments 520 (S.C.) : 2003(2) Civil Court Cases 552 (S.C.)

Second appeal – Concurrent finding recorded by Courts below by misreading evidence and suffering from legal infirmity – Can be interfered with in second appeal. (Rambhau Bhaduji Bhende Vs Kisan Bhaduji Bhende) 2004(2) Civil Court Cases 222 (Bombay)

Second appeal – Finding of fact – Concurrent findings of fact recorded by Courts below are not to be interfered with unless it is shown that the findings are without any evidence or perverse. (Meena Rani Vs Ajaib Singh) 2003(3) Civil Court Cases 20 (P&H) 

Second appeal – Finding of fact – High Court in second appeal would not interfere in findings of fact by reappreciation of evidence unless there is error apparent on the face of record or the findings are based on no evidence. (Mehnga Singh & Ors. Vs Gurdial Singh & Ors.) 2004(2) Civil Court Cases 525 (P&H)

Second appeal – Finding of fact – High Court not to interfere unless finding is infested with illegality, improper exercise of jurisdiction or perversity. (Kunjabihari Pradhan Vs Jayanti Pradhan) 2003(3) Civil Court Cases 129 (Orissa) 

Second appeal – Finding of fact – If it is contrary to evidence on record and perverse then High Court can set it aside in second appeal. (Bondar Singh & Ors. Vs Nihal Singh & Ors.) 2003(1) Apex Court Judgments 557 (S.C.)

Second appeal – Finding of fact if contrary to evidence on record and are perverse, such finding deserve to be set aside in second appeal. (Sangappa Veerappa Katarki Vs Bhimappa Yamanappa Chabbi) 2004(2) Civil Court Cases 347 (Karnataka)

Second appeal – Finding of fact recorded by the first appellate Court on the basis of oral as well as documentary evidence – Cannot be gone into in second appeal. (Kulwant Singh Vs Phula Singh) 2004(2) Civil Court Cases 156 (P&H)

Second appeal – Findings of fact with regard to fraud and misrepresentation cannot be reopened in an appeal u/s 100 CPC unless findings are based on no evidence. (Channo Devi & Ors. Vs Ami Lal) 2004(2) Civil Court Cases 101 (P&H)

Second appeal – High Court can interfere with the concurrent findings recorded by Courts below only on the substantial question of law either framed at the time of admission of appeal or reframed or substituted later on at the time of arguments. (K.G.Shivalingappa (dead) by Lrs. & Ors. Vs G.S.Eswarappa & Ors.) 2004(2) Apex Court Judgments 469 (S.C.) : 2004(3) Civil Court Cases 508 (S.C.)

Second appeal – High Court did not formulate substantial question of law – Judgment cannot be maintained. (Chadat Singh Vs Bahadur Rama & Ors.) 2004(2) Apex Court Judgments 242 (S.C.) : 2004(3) Civil Court Cases 467 (S.C.)

Second appeal – High Court in second appeal cannot reappreciate evidence and reach a conclusion different than the one recorded by the Courts below. (Ram Chand Premi Vs Nawab Kaur) 2004(2) Civil Court Cases 188 (P&H)

Second appeal – High Court remanded matter without formulating substantial question of law involved – Judgment of High Court set aside and matter remanded to High Court to dispose of second appeal in accordance with law after complying with requirement of S.100(4) CPC. (Sabitri Chatterjee Vs Debi Das Roy) 2005(1) Apex Court Judgments 525 (S.C.) : 2005(2) Civil Court Cases 351 (S.C.)

Second appeal – High Court should be slow to interfere with the concurrent findings of facts of Courts below. (Secretary, Communist Party of India (Marxist), Ganjam, Berhampur represented by Alikishore Patnaik   Vs Judhistira Patnaik (since dead) and after him Hemalata Patnaik & Ors.) 2004(2) Civil Court Cases 683 (Orissa)

Second appeal – Landlord filed suit for permanent and mandatory injunction against tenant that he had carried out certain structural changes in premises causing substantial damage to the building – Trial Court decreed suit and first appellate Court affirmed the decree – High Court dismissed second appeal by holding that no substantial question of law is involved – Held, findings recorded by Courts below were either pure findings of fact or mixed question of law and fact and no substantial question of law is involved – High Court was justified in dismissing second appeal. (Sarjas Rai & Ors. Vs Bakshi Inderjit Singh) 2005(1) Apex Court Judgments 558 (S.C.)

Second appeal – Memorandum of appeal precisely to state substantial question of law involved in the appeal and High Court on being satisfied that a substantial question of law is involved it shall formulate that question and second appeal has to be heard on the question so formulated. (Mathakala Krishnaiah Vs V.Rajagopal) 2005(1) Apex Court Judgments 387 (S.C.) : 2005(2) Civil Court Cases 313 (S.C.)

Second appeal – Memorandum of appeal shall precisely state substantial question or questions of law involved in the appeal – Where the High Court is satisfied that in any case any substantial question of law is involved it shall formulate that question and second appeal has to be heard on the question so formulated. (Chadat Singh Vs Bahadur Rama & Ors.) 2004(2) Apex Court Judgments 242 (S.C.) : 2004(3) Civil Court Cases 467 (S.C.)

Second appeal – Question of possession – It is a question of fact and not a question of law – High Court will not interfere in second appeal. (Mahabir Vs Sadhu Ram & Anr.) 2005(2) Civil Court Cases 157 (P&H)

Second appeal – Questions of law purporting to be substantial raised are only questions predominantly relating to appreciation of facts – Concurrent finding with reasons recorded granting discretionary relief of specific performance – Nothing established that the approach itself is erroneous or there is perversity in appreciation of evidence or recording of reasons for interference in second appeal – Second appeal dismissed. (Sughra Bee Vs Kareez Fatima Qureshi) 2004(2) Civil Court Cases 685 (A.P.)

Second appeal – Scope – The existence of a “substantial question of law”, is the sine qua non for the exercise of jurisdiction by the High Court under the amended provision of S.100 CPC – High Court can exercise its jurisdiction u/s 100 CPC only on the basis of substantial questions of law which are to be framed at the time of admission of the second appeal and the second appeal has to be heard and decided only on the basis of such duly framed substantial questions of law. (Vishwasrao Madhavrao Chiplunkar & Ors. Vs Kamlabai Vishwasrao Chiplunkar & Ors.) 2005(1) Civil Court Cases 183 (Bombay)

Second appeal – Substantial questions of law formulated for consideration in course of writing judgment – Parties not made known about the substantial questions of law – Judgment of High Court not sustainable. (Sayed Muhammed Mashur Kunhi Koya Thangal Vs Badagara Jumayath Palli Dharas Committee & Ors.) 2005(1) Apex Court Judgments 73 (S.C.) : 2005(1) Civil Court Cases 670 (S.C.) : 2005(1) Civil Court Cases 670 (S.C.)

Second appeal – Where trial Court and/or the first Appellate Court misdirected themselves in appreciating the question of law and placed the onus on wrong party there is scope for interference u/s 100 CPC after formulating a substantial question of law. (Krishna Mohan Kul @ Nani Charan Kul & Anr. Vs Pratima Maity & Ors.) 2003(2) Apex Court Judgments 368 (S.C.)

No further appeal in certain cases – Suggestion that where the original decree is reversed by a Single Judge of the High Court there should be a provision of LPA – Rules can solve this problem. (Salem Advocate Bar Association Vs Union of India) 2003(1) Civil Court Cases 198 (S.C.) 

Dismissal of appeal as time barred consequent upon dismissal of application for condonation of delay – Not a decree – When it is not decree, question of second appeal does not arise – Such order is not appealable, but only revisable. (The Commissioner, Hubli-Dharwad Municipal Corporation, Dharwad Vs Shrishail & Ors.) 2004(2) Civil Court Cases 78 (Karnataka)

Right of second appeal – Right accrued prior to enforcement of amendment – Not saved. (Jagdish Chandra Vs Arvind Singh) AIR 2003 Allahabad 119

Opinion of High Court – Pleadings in plaint and relief claimed not involving issue regarding validity of any Act, Ordinance or Regulation or provisions of Act – Held, matter cannot be referred for opinion of High Court under S.113. (Mohammed Azharuddin Vs Dr.A.C.Muthaiah) AIR 2002 A.P. 409

Claim petition under Motor Vehicles Act – Revision is not maintainable against order of MACT as MACT is not a Court for the purpose of S.115 CPC. (Oriental Insurance Co. Ltd. & etc. Vs Basanagouda & Anr.) 2004(3) Civil Court Cases 297 (Karnataka)

Order for taking affidavit of witness in lieu of recording his evidence by Court in examination-in-chief – Since order does not finally dispose of suit proceedings, revision does not lie against such an order. (Ibrahim Farukmiya Karajgi Vs Kasimkhan) 2003(2) Civil Court Cases 171 (Karnataka) 

Refusal to appoint second local commissioner – Revision is maintainable against such order. (Ghurhu Vs X Additional District Judge, Varanasi & Ors.) 2004(2) Civil Court Cases 309 (Allahabad)

Revision against order allowing amendment of plaint – Petition is maintainable – Contention that such order is not an order having effect of deciding any case and therefore revision is not maintainable, not tenable. (Dattaram V.Dharwadkar Vs Ghanashyam G.Bhende) 2003(2) Civil Court Cases 311 (Bombay) 311  

Revision against order allowing amendment of pleadings – Order allowing amendments ordinarily should not be interfered in revision. (Harbans Lal  Vs Dev Raj) 2003(1) Civil Court Cases 526 (P&H) 

Rejection of application U.O.7.R.11 holding valuation of suit as proper – Revision against – Not maintainable as jurisdiction of Court is not involved in the matter. (Golden Tringle Fort & Palace Pvt.Ltd. Vs Rajkumari Sidhi Kumari) 2003(2) Civil Court Cases 222 (Rajasthan) 

Document – Admitting or refusing to admit in evidence – No general rule that such order is not revisable as it does not amount to ‘Case decided’ – Question depends upon nature of document and facts of a particular case. (Sri K.Anajneya Setty Vs Sri K.H.Rangiah Setty) AIR 2002 Karnataka 387

Eviction order – Upheld upto Supreme Court – Objections in execution petition dismissed by trial court and appeal thereagainst also dismissed – Civil suit filed alongwith an application for ad interim injunction which was declined – Tenant then filed second objection petition reiterating objections earlier raised with additional ground of fraud – This application also dismissed – High Court in revision held that if execution is allowed then it would render the suit filed by tenant infructuous – Held, an order interim in nature or which does not finally decide the list, cannot be challenged by way of a revision u/s 115 of CPC – Fraud has to be pleaded and proved – In the entire history of litigation nothing was pleaded, much less proved, as fraud – High Court erred in entertaining revision and granting relief – Impugned order set aside. (Gayatri Devi & Ors. Vs Shashi Pal Singh) 2005(1) Apex Court Judgments 637 (S.C.) : 2005(2) Civil Court Cases 215 (S.C.)

Interim order or an order which does not finally decide the lis, cannot be challenged by way of a revision petition. (Gayatri Devi & Ors. Vs Shashi Pal Singh) 2005(1) Apex Court Judgments 637 (S.C.) : 2005(2) Civil Court Cases 215 (S.C.)

Only final orders stricto sensu are revisable. (Madhavan Vs Narayana Das) AIR 2003 Kerala 103

Other proceedings – Means orders passed in civil proceedings registered other than suits. (Mrityunjay Sen Vs Shrimati Sikha Sen) AIR 2003 Calcutta 165

Revision –  Where order, if allowed to stand, would occasion failure of justice or cause irreparable injury to party against whom it is made, such order needs interference – Request to record evidence either by way of Commission or audio-video link rejected – It amounts to depriving party of its right to lead evidence –  Order is liable to be set aside in revision. (Twentieth Century Fox Film Corporation, Los Angeles, U.S.A. & Anr. Vs NRI Film Production Associates (Private) Limited, Mysore) 2004(2) Civil Court Cases 388 (Karnataka)

Revision against interlocutory order is maintainable only if order impugned finally disposes of the suit or other proceedings – Even an order suffering from jurisdictional error cannot be interfered with under S.115 CPC. (M/s. Vedant Exports & Ors. Vs Bank of Baroda) 2003(2) Civil Court Cases 580 (Rajasthan) 

Error in name of Company – Correction in plaint – In strict sense it is not amendment of any pleading or of any fact  – Court can allow correction by invoking provision of S.151 CPC. (Udhey Verma Vs Kamaljeet Singh) 2005(2) Civil Court Cases 440 (P&H)

Decree – Correction – Interest allowed as per operative part of judgment and not in accordance with decision of issue – Decree cannot be corrected under S.152 CPC. (P.Prasad & Anr. Vs Shirdi Enterprises) 2005(1) Civil Court Cases 668 (A.P.)

Scope – Provision can be invoked for limited purpose of correcting clerical errors or arithmetical mistakes in the judgment and cannot be invoked for claiming a substantive relief which was not granted under the decree, or as a pretext to get the order which has attained finality reviewed. (Bijay Kumar Saraogi Vs State of Jharkhand) 2005(1) Apex Court Judgments 650 (S.C.) : 2005(2) Civil Court Cases 291 (S.C.)

Amendment of S.115 – Impact on power of High Court under Articles 226 and 227 Constitution of India – Interlocutory orders passed by Courts subordinate to the High Court – Remedy of revision against such orders excluded by amendment in CPC – However, such orders are open to challenge in certiorari and supervisory jurisdiction of High Court – Curtailment of revisional jurisdiction of High Court does not take away constitutional jurisdiction of High Court to issue writ of certiorari nor its power of superintendence. (Surya Dev Rai Vs Ram Chander Rai & Ors.) 2004(2) Apex Court Judgments 221 (S.C.)

Revision – No revision lies against interim order – Revision is maintainable only if order has given finality to suit or other proceeding. (Shiv Shakti Coop. Housing Society, Nagpur Vs M/s Swaraj Developers & Ors.) 2003(2) Apex Court Judgments 182 (S.C.)

Revision – S.115 is a source of power for High Court to supervise subordinate Courts – Scope for making revision under S.115 is not linked with right of appeal. (Shiv Shakti Coop. Housing Society, Nagpur Vs M/s Swaraj Developers & Ors.) 2003(2) Apex Court Judgments 182 (S.C.)

Revision – Shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court. (Shiv Shakti Coop. Housing Society, Nagpur Vs M/s Swaraj Developers & Ors.) 2003(2) Apex Court Judgments 182 (S.C.)

Plaint – Amendment – Revision against order allowing amendment – Interference not permissible as amendment even if was refused would not have finally disposed of the suit. (K.R.Subbaraju Vs M/s Vasavi Trading Co.) AIR 2002 Karnataka 407

Appeal – During pendency of appeal decree executed – Appeal cannot be dismissed on this ground – Appellate Court has power to allow appeal and dismiss the suit – In such an event, appellants are entitled to invoke the provision of S.144 CPC and request the Court for restitution. (Smt.Sanjeevamma & Ors. Vs G.Krishna & Ors.) 2004(3) Civil Court Cases 316 (Karnataka)

Restitution – Application filed within 12 years from date of judgment is maintainable. (Gorle Sanyasamma & Ors. Vs District Judge, Visakhapatnam) 2003(1) Civil Court Cases 21 (A.P.) 

Restitution – It is statutory recognition of a pre-existing rule of justice, equity and fair play – Even away from S.144 CPC Court has inherent jurisdiction to order restitution so as to do complete justice between the parties. (South Eastern Coalfields Ltd. Vs State of M.P. & Ors.) 2003(2) Apex Court Judgments 708 (S.C.)

Restitution – Order passed by Court when found at the end not sustainable then a party gaining advantage which it would not have otherwise earned or the other party has suffered impoverishment which it would not have suffered but for the order of the Court then successful party is entitled to be compensated in the same manner in which the parties would have been if order of Court would have not been passed – Successful party can demand (a) the delivery of benefit earned by the opposite party under the Court order,  or (b) to make restitution for what it has lost. (Karnataka Rare Earth & Anr. Vs The Senior Geologist, Department of Mines and Geology & Anr.) 2004(1) Apex Court Judgments 321 (S.C.)

Restitution – Release of money withheld by interim order of Court – Successful party finally held entitled to relief assessable in terms of money is entitled to suitable reasonable interest for the period for which the interim order of the Court withholding the release of money had remained in operation – Interest is often a normal relief given in restitution – Such interest is not controlled by the provision of Interest Act 1839 or 1978. (South Eastern Coalfields Ltd. Vs State of M.P. & Ors.) 2003(2) Apex Court Judgments 708 (S.C.)

Restitution – Scope of provision is wide enough so as to include therein almost all kinds of variation, reversal, setting aside or modification of a decree or order – It is duty of Court to place parties in the position which they would have occupied but for such decree or such part thereof as has been varied or reversed. (South Eastern Coalfields Ltd. Vs State of M.P. & Ors.) 2003(2) Apex Court Judgments 708 (S.C.)

Restitution – Relief at interlocutory stage can be granted – Tenant evicted in execution of ex parte decree – Sale of property in the meantime – Exparte decree set aside as it was passed even without notice to the tenant – Order of restitution can be passed against purchaser – Relief of restitution can be granted at an earlier stage which relief can be granted to the party at the disposal of the case which is the main relief itself. (S.Vasanthakumar Vs Mohammed Ariff) 2003(3) Civil Court Cases 61 (Karnataka) 

Decree – Execution – By person claiming to be transferee by assignment – Decree not transferred by assignment in writing or by operation of law to applicant – Property in question was sold to him by heirs of deceased – Applicant was thus purchaser in interest and not assignee of decree – Application was required to file application u/s 146 – As application u/s 146 was barred by time as such applicant has no right to move application U.O.21.R.1 CPC. (Kedar Ram Vs Additional District Judge) AIR 2004 All. 197

Execution – Transferee by assignment – No transfer of decree by assignment in writing or by operation of law – Property in question sold to applicant by heirs of deceased – Applicant is thus purchaser in interest and not assignee of decree – Applicant is required to file application u/s 146 – However, application being barred by time he has no right to move application U.O.21.R.16 CPC. (Kedar Ram Vs Additional District Judge II, Ballia & Ors.) 2004(2) Civil Court Cases 702 (Allahabad)

Extension of time – Particular amount to be deposited within certain period – Amount not deposited being only son and he was out of station for his mother’s treatment – No wilful negligence or laches on his part in depositing amount in time – Enlargement of time – proper. (Vijayan Vs Vivek) AIR 2003 Kerala 82

Default to pay balance court fee – Suit dismissed for default – Restoration – Notice to defendant must be given – Held, when plaint is rejected, a right is vested in the defendant which cannot be set at naught without giving notice. (Ramachandran Nair Vs Kerala Permanent Fund Ltd.) 2004(2) Civil Court Cases 281 (Kerala)

Deficit Court fee – Extension of time for payment – (i) Section 149 CPC has to be interpreted and given effect to in a liberal manner; (ii) the payment of deficit court fee is a matter between the State i.e. Revenue and the plaintiff; (iii) the effect of allowing an application under Section 149 CPC is as if the deficit court fee stood paid on the date of initial presentation; (iv) while judging whether the application under Section 149 CPC should be allowed or not the same has to be tested on the touch stone of whether the plaintiff acted bona fide as per the definition of expression in General Clauses Act and not as per the Limitation Act; (v) Relief is to be denied to the plaintiff if he did not act bona fide or his conduct was contumacious and relief is not to be denied even though he may not have been diligent or had even been negligent. (Sushil Kumar Raut Vs M/s.Virender Bhatnagar Sansathan & Anr.) 2004(2) Civil Court Cases 674 (Delhi)

Deficit Court fee – Extension of time for payment – Application not filed on time – Extension of time sought on ground of inability to arrange for the requisite funds – Plaintiff nothing to gain by delaying the making up the deficiency in Court fee – There is no element of mala fides or contumacy – Time extended for making up the deficiency of Court fee. (Sushil Kumar Raut Vs M/s.Virender Bhatnagar Sansathan & Anr.) 2004(2) Civil Court Cases 674 (Delhi)

Deficient Court fee – Court has jurisdiction to permit the party to make up the deficiency in Court fee even after expiry of limitation. (Mehar Singh Vs Sadhu Ram) 2003(3) Civil Court Cases 175 (P&H) 

Suit for recovery by bank – Civil Court passed decree when it had no jurisdiction to pass such decree in view of coming into force of Act of 1993 – Bank sought recalling entire suit proceedings including decree in view of fact that decree is inexecutable for want of jurisdiction to pass same – Held, civil Court is competent to entertain such application to correct apparent mistake, in exercise of its inherent powers, as exercise of inherent power in such situation will not be in conflict with its power to review. (Mrs.Mangalabai Vs The Sangli Bank Limited) 2003(2) Civil Court Cases 20 (Karnataka) 20 

Fraud – Order obtained by practising fraud – Court has always power to recall its order vitiated by fraud – When order of injunction to restrain authority from proceeding with formation of layout on acquired land and allotment of sites to applicants, was obtained by misrepresenting facts, Court has inherent power to recall order. (Bangalore Development Authority Vs P.Anjanappa) 2003(3) Civil Court Cases 23 (Karnataka) 

Consolidation of suits – Complete or even substantial and sufficient similarly of the issues arising for decision in two suits enables the two suits being consolidated for trial and decision. (M/s Chitivalasa Jute Mills Vs M/s Jaypee Rewa Cement) 2004(2) Apex Court Judgments 88 (S.C.) : 2004(2) Civil Court Cases 459 (S.C.)

Consolidation of suits – Parties separate – Documents on basis of which suits are to be decided not same and they have been executed on different dates – No possibility of conflicting judgments in two identical cases – Evidence of plaintiff already concluded – Application filed at a belated stage – No interference with order of non-consolidation of suits – Order of consolidation of suits where parties were identical, upheld. (Ganeshdas & Anr. Vs Ramesh Chandra) 2003(1) Civil Court Cases 703 (Rajasthan) 

Court fee – Excess payment – Refund of excess amount can be ordered under inherent powers. (Punjab and Sind Bank Vs Ramji Dass Khanna) AIR 2002 Delhi 305

Inherent power – Cannot be exercised in contravention of express provision of law. (Savitha Gupta Vs Nagarathna) 2003(3) Civil Court Cases 172 (Karnataka) 

Inherent power – Exercise of – Court exercising power u/s 151 CPC has first to consider whether exercise of such power is expressly prohibited by any other provisions of the Code and if there is no such prohibition then Court will consider whether such power should be exercised or not on the basis of facts mentioned in the application. (Shipping Corporation of India Ltd. Vs Machado Brothers & Ors.) 2004(1) Apex Court Judgments 574 (S.C.) : 2004(2) Civil Court Cases 533 (S.C.)

Inherent power – If there is no specific power conferred by any provision of the Code, Court can in a proper case, exercise its inherent power. (Ramesh Chandra Mohapatra Vs Bishnupriya Mangaraj) 2003(1) Civil Court Cases 307 (Orissa) 

Inherent powers of Court – Cannot be exercised to enable party to fill lacuna in evidence. (Balkrishna Shivappa Shetty Vs Mahesh Nenshi Bhakta) 2003(3) Civil Court Cases 156 (Bombay) 

Interim relief – Court empowered to grant a substantive relief is competent to award it on interim basis as well even though there is no express provision in the statute or procedural law to grant such relief. (Mohini Bharat alias Seema & Anr. Vs V.K.Bharat) 2004(2) Civil Court Cases 476 (P&H)

Preliminary decree – Setting aside if obtained by fraud – If once it is held that decree and judgment is obtained by practising fraud then Court has inherent jurisdiction to set it aside and in that event principles of res judicata do not apply. (Ram Chandra Singh Vs Savitri Devi & Ors.) 2003(2) Apex Court Judgments 376 (S.C.) : 2003(3) Civil Court Cases 678 (S.C.) 

Subsequent event – Suit becoming infructuous – Continuance of infructuous suit will cause prejudice to the defendant. (Shipping Corporation of India Ltd. Vs Machado Brothers & Ors.) 2004(1) Apex Court Judgments 574 (S.C.) : 2004(2) Civil Court Cases 533 (S.C.)

Subsequent event – Suit becoming infructuous – If a party has a legal right to ask for dismissal of an infructuous suit, and pursuant to the said right it makes an application for dismissal of said suit, the same cannot be termed as an act in malice. (Shipping Corporation of India Ltd. Vs Machado Brothers & Ors.) 2004(1) Apex Court Judgments 574 (S.C.)

Subsequent event making the pending suit infructuous – If by subsequent event original proceedings has become infructuous Court can dispose of infructuous litigation – When such an application is made, Court to inquire into the alleged facts and circumstances to find out whether the pending litigation has in fact become infructuous or not. (Shipping Corporation of India Ltd. Vs Machado Brothers & Ors.) 2004(1) Apex Court Judgments 574 (S.C.)

Subsequent suit – Suit becoming infructuous – If a party has a legal right to ask for dismissal of an infructuous suit, and pursuant to the said right it makes an application for dismissal of said suit, the same cannot be termed as an act in malice. (Shipping Corporation of India Ltd. Vs Machado Brothers & Ors.) 2004(2) Civil Court Cases 533 (S.C.)

Subsequent suit making the pending suit infructuous – If by subsequent event original proceedings has become infructuous Court can dispose of infructuous litigation – When such an application is made, Court to inquire into the alleged facts and circumstances to find out whether the pending litigation has in fact become infructuous or not. (Shipping Corporation of India Ltd. Vs Machado Brothers & Ors.) 2004(2) Civil Court Cases 533 (S.C.)

Suit becoming infructuous due to subsequent event – Suit cannot be continued merely for the reason that interlocutory injunction enjoyed by plaintiff will get vacated and consequently the plaintiff will be prejudiced – Held, interlocutory orders are made in aid of final orders and not vice versa – No interlocutory order will survive after the original proceeding comes to an end. (Shipping Corporation of India Ltd. Vs Machado Brothers & Ors.) 2004(1) Apex Court Judgments 574 (S.C.) : 2004(2) Civil Court Cases 533 (S.C.)

Inaccuracy in calculation and accounting – Mistake noticed in appeal – Mistake should be corrected by appellate Court irrespective of the fact that cross objections by other party are not filed. (Kulamani Mohanty Vs Industrial Development Corporation of Orissa ltd.) AIR 2002 Orissa 38

Judgment and decree – Modification – Locus standi – Suit for partition filed by son of deceased – Decree passed – Application for correction regarding shares by other son of deceased who had spent huge amount of money on marriages of his sisters – Held, application is maintainable. (Jagdish Chand Gupta Vs Dr.Rajinder Parshad)  AIR 2002 P&H 251

Suit decreed but what relief is granted not stated in decree – Decree incapable of execution – Said omission on part of Court can be said to be an accidental slip or omission and can be corrected by Court itself to avoid miscarriage of justice. (Ashutosh Das Vs Sushma Rani Das) AIR 2004 Gauhati 136

Suit for recovery of money – However due to mistake decree drafted as preliminary decree in mortgage suit – Can be corrected by High Court in application made even after 11 years as there is no prescribed period of limitation to file said application. (State Bank of Hyderabad Vs B.Rangaswamy) AIR 2004 A.P. 91

Order passed u/s 151 CPC – Revision and not appeal is maintainable. (Shipping Corporation of India Ltd. Vs Machado Brothers & Ors.) 2004(1) Apex Court Judgments 574 (S.C.) : 2004(2) Civil Court Cases 533 (S.C.)

Power of Court to make correction is not confined only to power exercisable u/s 152 CPC – Power can also be exercised under Ss.151 & 153 of CPC. (Narhari Balku Kawade & Ors. Vs Hanmanta Timma Pujari & Ors.) 2004(3) Civil Court Cases 307 (Bombay)

Clerical or arithmetical mistakes in judgment, decree or order – Correction – Arithmetical mistake is a mistake of calculation, a clerical mistake is a mistake in writing or typing whereas an error arising out of or occurring from accidental slip or omission is an error due to careless mistake on the part of the Court, liable to be corrected. (State of Punjab Vs Darshan Singh) 2003(2) Apex Court Judgments 606 (S.C.)

Clerical or arithmetical mistakes in judgment, decree or order – Correction – No new arguments or re-arguments or merits can be entertained to facilitate such rectification of mistakes – The provision cannot be invoked to modify, alter or add to the terms of the original order or decree so as to, in effect, pass an effective judicial order after the judgment in the case. (State of Punjab Vs Darshan Singh) 2003(2) Apex Court Judgments 606 (S.C.)

Decree – Correction – Interest allowed as per operative part of judgment and not in accordance with decision of issue – Decree cannot be corrected under S.152 CPC. (P.Prasad & Anr. Vs Shirdi Enterprises) 2005(1) Civil Court Cases 668 (A.P.)

Omission sought to be corrected which goes to the merits of the case is beyond the scope of S.152 CPC. (State of Punjab Vs Darshan Singh) 2003(2) Apex Court Judgments 606 (S.C.)

Clerical mistakes and errors in judgment and decree –  Can be corrected by Court at any time either of its own motion or on the application of any of the parties. (Gulzara Singh & Ors. Vs Devinder Singh & Ors.) 2004(3) Civil Court Cases 455 (P&H)

Typographical mistakes – Correction – Second appeal dismissed in limine – Judgment of First Appellate Court merges with that of the first Appellate Court – Application for correction of typographical mistakes is maintainable before High Court even though appeal was dismissed in limine by High Court. (Gulzara Singh & Ors. Vs Devinder Singh & Ors.) 2004(3) Civil Court Cases 455 (P&H)

Errors in plaint due to incorrect jamabandi provided by revenue authorities – Errors travelling to decree – Errors in decree can be corrected by Court and it is not necessary for the correction of the decree to first amend the pleadings. (Gulzara Singh & Ors. Vs Devinder Singh & Ors.) 2004(3) Civil Court Cases 455 (P&H)

Suit for different causes of action – Single suit for different causes of action can be filed – However plaintiff is to pay Court Fees separately for relief claimed under different causes of action. (A.Narayan Rao Vs Shanta Bai & Ors.) 2004(2) Civil Court Cases 409 (A.P.)

Purchase order – Ouster clause – Plaintiff joining several causes of action, some arising out of purchase order and others not so arising and filing suit at Nagpur – Ouster clause in purchase order that Court at Pune alone had jurisdiction – In view of ouster clause, Court at Pune alone had jurisdiction to entertain disputes arising out of purchase orders as well as in respect of those not arising out of purchase order in view of joinder of causes of action. (Bajaj Auto Limited & Ors. Vs Sundeep Polymers Pvt.Ltd., Mumbai) 2005(1) Civil Court Cases 56 (Bombay)

Application U.O.1.R.8 and another application u/s 91 dismissed – As there was no suit before Court as such written statement not filed – Question of defendants claiming damages, does not arise – Thus, award of damages by trial Court in absence of written statement and full trial, improper. (Bhupendra Singh Babara Vs Municipal Council, Ambikapur) AIR 2002 Chhattisgarh 7

Necessary parties – Suit for partition – Absence of impleadment of first class heirs i.e. daughters of Hindu ancestor who were sisters of plaintiff – Suit is not maintainable. (Raja ram Singh VS Arjun Singh) AIR 2002 Delhi 338

Agreement to sell – Suit for specific performance – Impleading of subsequent purchaser – Plaintiff sought a decree against defendant and subsequent purchaser for declaration that subsequent Memorandum of understanding between them was illegal – No question of subsequent purchaser not a necessary or proper party – Fact that plaintiff may choose to adopt independent proceedings against subsequent purchaser simultaneously or later would not disentitle him from joining subsequent purchaser in suit for specific performance. (Haroon Rashid Nizamuddin Umatiya Vs Jivatlal) 2003(3) Civil Court Cases 120 (Bombay) 

Co-sharer – Suit for possession by one co-sharer against a trespasser without impleading other co-sharers – Suit is maintainable. (Dharam Singh Vs Jagdish) 2005(1) Civil Court Cases 823 (H.P.)

Licensee – Suit for declaration and possession – Children residing with licensee – Not necessary party and decree passed against licensee binds children – Dismissal of suit for non-joinder of children of licensee, not proper. (M.K.Venugopal Vs Aswathamma) 2005(1) Civil Court Cases 394 (Karnataka)

Necessary and proper party – Necessary party is one without whom no order can be made effectively – A proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. (Balvant N.Viswamitra & Ors. Vs Yadav Sadashiv Mule (D) through Lrs. & Ors.) 2004(2) Apex Court Judgments 255 (S.C.) : 2004(3) Civil Court Cases 485 (S.C.)

Necessary parties – Non joinder – Effect – No proof that tenant died leaving an heir – Suit not liable to be dismissed on ground of non joinder of necessary parties. (Bhami Bewa Vs Krushna Chandra Swain @ Gochhayat & Ors.) 2004(2) Civil Court Cases 543 (Orissa)

Non joinder of proper parties – Suit not to be dismissed – However, this rule does not apply in case of non joinder of necessary parties – Opportunity cannot be given to plaintiff to implead necessary parties when despite preliminary objection he declined to implead necessary parties. (Shyampati Vs Munshi Ram) 2003(1) Civil Court Cases 28 (H.P.) 

Suit for partition – Necessary parties – Person in permissive possession without any independent interest – Not a necessary party in a suit for partition. (Moin Khan Vs Amin Zema Khan) 2005(2) Civil Court Cases 126 (Jharkhand)

Revision against order allowing application for impleadment of a party – It is an interlocutory order – No revision lies against such an order. (Smt.Pushpa Devi Vs Urban Improvement Trust & Anr.) 2004(3) Civil Court Cases 618 (Rajasthan)

Suit filed against a dead person – Wife allowed to be substituted as a party to the suit – To avoid multiplicity of litigation, Court can allow impleading of a party at any stage if it is satisfied that there occurred a bona fide mistake. (Raghvir Singh & Ors. Vs Gram Panchayat Jawahara through its Sarpanch & Ors.) 2004(2) Civil Court Cases 113 (P&H)

Necessary party – Partition suit – One fifth property allotted in favour of deceased sister – L.R’s of the deceased sister will be necessary party for final decree proceedings. (Eralingappa Vs Nagamma) AIR 2003 Karnataka 201

Transferee pendente lite – Impleading as a party – Application of transferee pendente lite for impleading him a party to the suit should ordinarily be allowed. (Amit Kumar Shaw & Anr. Vs Farida Khatoon & Anr.) 2005(2) Civil Court Cases 423 (S.C.)

Transferee pendente lite – Impleadment as a party – Purchase of property during pendency of suit without leave of Court – Transferee should ordinarily be joined as party to enable him to protect his interest – However, in the instant case trial Court assigned cogent reasons for rejecting such joinder stating that suit is long pending since 1983 and prima facie the action of alienation does not appear to be bona fide and that it was an attempt on part of petitioner to complicate and delay the pending suits –  Held, trial court has rightly exercised its discretion in rejecting application for impleadment of the transferee pendente lite as party to the suit. (Bibi Zubaida Khatoon Vs Nabi Hassan Saheb & Anr.) 2005(1) Civil Court Cases 323 (S.C.)

Transferee pendente lite – Impleadment as a party – There is no absolute rule that the transferee pendente lite without leave of the court should in all cases be allowed to join and contest the pending suits. (Bibi Zubaida Khatoon Vs Nabi Hassan Saheb & Anr.) 2005(1) Civil Court Cases 323 (S.C.)

Impleading of a party – Applicant purchased a part of suit property during pendency of suit – Not a necessary party – Cannot be impleaded as a party to the suit – However applicant allowed to defend the suit on behalf of its vendors as he had purchased a part of suit of property – Applicant will not be entitled to file fresh written statement and/or to take a new stand, other than the stand already taken by the defendants who sold the property during pendency of suit. (M/s.Wimco Limited Vs Horam & Ors.) 2004(2) Civil Court Cases 575 (P&H)

Transferee pendente lite – Impleading as a party in second appeal – Delay in approaching Court sufficiently, properly and satisfactorily explained – Transferee pendente lite should be made as party to the pending second appeal as prayed for by him – He is at liberty to contest the matter on merits. (Amit Kumar Shaw & Anr. Vs Farida Khatoon & Anr.) 2005(2) Civil Court Cases 423 (S.C.)

Impleading of a party – Transferee pendente lite – Can be impleaded as a party if his interest in the subject matter of suit is substantial and not just peripheral – Court has discretion in the matter which must be judicially exercised and an alienee would ordinarily be joined as a party to enable him to protect his interests. (Amit Kumar Shaw & Anr. Vs Farida Khatoon & Anr.) 2005(2) Civil Court Cases 423 (S.C.)

Addition of a party – Suit for specific performance – A stranger or a third party to the contract, claiming to have an independent title and possession over the contracted property is not entitled to be added as a party in the suit. (Kasturi Vs Iyyamperumal & Ors.) 2005(1) Apex Court Judgments 640 (S.C.) : 2005(2) Civil Court Cases 379 (S.C.)

Addition of a party – Suit for specific performance – By addition of a party if suit for specific performance is converted into a suit for title then party to be added is neither a necessary nor a proper party. (Kasturi Vs Iyyamperumal & Ors.) 2005(1) Apex Court Judgments 640 (S.C.) : 2005(2) Civil Court Cases 379 (S.C.)

Additional of a party – When with addition of party scope of suit is enlarged then party to be added cannot be said to be a proper party. (Kasturi Vs Iyyamperumal & Ors.) 2005(1) Apex Court Judgments 640 (S.C.) : 2005(2) Civil Court Cases 379 (S.C.)

Alienation during pendency of suit – Such alienation is hit by principle of lis pendens and the same does not affect the rights of plaintiff – Person in whose favour alienation is executed is not a necessary party – Application to implead rightly dismissed. (Mehar Singh Vs Hardeep Kaur & Ors.) 2005(2) Civil Court Cases 234 (P&H)

Eviction petition – Applicant claiming to be landlord – Impleaded in earlier suit for eviction regarding same premises – Earlier suit returned for presentation to proper Court on ground that in involves question of title – Order impleading revisionist as per in earlier suit is binding on plaintiff – Subsequent suit filed by plaintiff without impleading applicant as party – Not maintainable. (Smt.Prem Kumar Sharma Vs Raj Mani Dubey) AIR 2002 All. 90

Impleading of a party – Exercise of power U.O.1.R.10 CPC does not depend upon the volition of plaintiff as it is exclusively the Court’s power. (L.Puttaiah & Ors. Vs Annaiappa (deceased) by LRs. & Ors.) 2004(2) Civil Court Cases 61 (Karnataka)

Impleading of a party – Party to be implead if  presence of applicant is necessary in order to completely and effectually adjudicate upon and settle all the questions involved in the suit –  Merits of claim made by impleading applicant is not relevant at stage of impleadment – Rejection of application on ground that claim made by applicant has no merits is not proper exercise of discretion. (L.Puttaiah & Ors. Vs Annaiappa (deceased) by LRs. & Ors.) 2004(2) Civil Court Cases 61 (Karnataka)

Impleading of a party – Suit for declaration that plaintiffs are exclusive owners of temple and have exclusive Archakship rights – Applicant also claiming right over temple and Archakship – Held, presence of applicant is necessary to completely adjudicate the nature of the right of the parties over temple and Archakship – Application allowed. (L.Puttaiah & Ors. Vs Annaiappa (deceased) by LRs. & Ors.) 2004(2) Civil Court Cases 61 (Karnataka)

Impleading of a party – Suit for dissolution of partnership firm – Applicant alleging to be a partner in business – Documents produced showing that applicant was also partner in business – Different partnership deeds found regarding same business – Possibility of fraud or collusion regarding partnership business, could not be rule doubt – Held, applicant is necessary party to suit for complete and effective adjudication of matter. (Chandra Prakash Arora Vs Parveen Kumar) AIR 2002 Allahabad 111

Impleading of a party – Suit for specific performance – Applicant seeking to be impleaded as a party on assertion that he is owner in possession of the suit property – Held, in a suit for specific performance for settling the questions involved in the suit presence of strangers is not necessary – It is not even proper – A person who claims title adverse to the parties to the contract is not a necessary or a proper party – Addition of such a person will enlarge the scope of the suit and change its nature and turn it into a title suit – Applicant not a necessary or proper party. (Nafe Singh Vs Krishana & Ors.) 2004(2) Civil Court Cases 481 (P&H)

Impleading of a party – Suit for specific performance – Defendant proceeded exparte – Application by daughters that they are necessary parties as whereabouts of their father is not known – Lower Court observed that since a period of seven years had not elapsed therefore there is no presumption that he had died – Order set aside – Applicants are definitely such persons who are interested in the preservance of the estate – Application allowed. (Laxmi & Ors. Vs Sat Narain & Anr.) 2004(2) Civil Court Cases 242 (P&H)

Necessary or proper parties – Suit for permanent injunction restraining neighbours from raising any construction over adjoining land – Applicants seeking impleadment as a party claiming themselves to be owners of house in which plaintiff was residing – Any finding relating to adjoining land may affect their right in case they are found to be real owners – Held, impleadment of applicants as parties is proper. (Shail Kumari & Ors. Vs Asha Srivastava & Ors.) 2005(1) Civil Court Cases 804 (Allahabad)

Plaintiff can be transposed as a defendant. (Janadas  Vs Vedanayagam) 2004(3) Civil Court Cases 613 (Kerala)

Recording of a finding as to whether applicant is a necessary or proper party is a sine qua non to dispose of the application U.O.1.R.10 CPC. (Balbir Singh Vs Anokh Singh) 2003(2) Civil Court Cases 642 (P&H) 

Subsequent vendee – Suit for specific performance – Applicant purchased suit property prior to filing of suit – Presence of subsequent vendor in whose favour property in dispute is alienated is necessary for effective and complete adjudication of the suit – Order allowing impleading of subsequent vendee as defendant, upheld. (Gurcharan Singh Vs S.Amarjit Singh & Anr.) 2005(2) Civil Court Cases 422 (P&H)

Suit for permanent injunction restraining defendant from closing the same by raising a wall – State of Punjab is not a necessary party as ownership of street is not to be determined. (Piara Singh & Anr. Vs Sri Guru Arjan Dev College, Tarn Taran) 2004(2) Civil Court Cases 397 (P&H)

Suit for specific performance – Addition of a party – Proper party – Guiding principle for deciding the question as to who is a proper party is that the presence of such a party is necessary to adjudicate the controversies involved in the suit for specific performance of the contract for sale. (Kasturi Vs Iyyamperumal & Ors.) 2005(1) Apex Court Judgments 640 (S.C.) : 2005(2) Civil Court Cases 379 (S.C.)

Suit for specific performance – Subsequent transferee – There is no absolute rule of law that subsequent transferee cannot become party on the ground that rule of lis pendence is applicable – Application allowed. (Balbir Singh Vs Anokh Singh) 2003(2) Civil Court Cases 642 (P&H) 

Suit for specific performance – Suit land transferred by collusive decree during pendency of suit – Transferee of suit land is necessary party – Order allowing impleadment of party – Order upheld. (Ram Sarup  Vs Raminder Singh) 2003(3) Civil Court Cases 459 (P&H) 

Suit for specific performance of agreement to sell – Addition of a necessary party – Person who claims adversely to the claim of a vendor is not a necessary party – Two tests to determine as to who is a necessary party in such a suit are: (a) there must be a right to some relief against such party in respect of the controversies involved in the proceedings (2) no effective decree can be passed in the absence of such party. (Kasturi Vs Iyyamperumal & Ors.) 2005(1) Apex Court Judgments 640 (S.C.) : 2005(2) Civil Court Cases 379 (S.C.)

Impleading of a party – Application rejected – Revision lies against order rejecting application. (L.Puttaiah & Ors. Vs Annaiappa (deceased) by LRs. & Ors.) 2004(2) Civil Court Cases 61 (Karnataka)

Addition of a party – Court can add any person who ought to have been joined as party at any stage of the proceedings, either upon or without the application of either party – However, Court should be satisfied that presence of such party before the Court is necessary in order to enable the Court to effectually & completely adjudicate and settle all the questions involved in the suit to avoid multiplicity of litigation. (Gopinath Dixit Vs Rama Chandra Dixit & Anr.) 2005(2) Civil Court Cases 117 (Orissa)

Addition of a party – Necessary party – When questions raised by parties in their respective pleadings reveal that the direct interest of another person is involved in the subject matter of litigation and it would affect the rights of that person, he is a necessary party to the suit and to be impleaded as such – The principle “dominus litis” will not be applicable to such a case. (Gopinath Dixit Vs Rama Chandra Dixit & Anr.) 2005(2) Civil Court Cases 117 (Orissa)

Addition of party – ‘Direct interest’ – Means direct in the issue between the plaintiff and defendant- That a person is legally interested in the question involved in the suit can be determined if party to be impleaded can show that any decision in the suit shall affect his legal rights. (Gopinath Dixit Vs Rama Chandra Dixit & Anr.) 2005(2) Civil Court Cases 117 (Orissa)

Addition or substitution of a party – ‘At any stage’ – Meaning – Cannot be limited or curtailed for a period of three years from the date of filing of the suit – It means at any stage prior to culmination of proceedings. (Shri Gopal @ Shri Ram Gopal Vs Shri Ram Kunwar) 2003(3) Civil Court Cases 670 (Rajasthan) 

Impleading of a party – Suit for permanent injunction restraining Municipal Council from demolition of the construction – Held, neighbour is a necessary party. (Shayama Jain Vs Savitri Devi) 2003(1) Civil Court Cases 117 (P&H) 

Impleading of necessary parties – Power should be exercised at the stage of trial and avoided to be exercised at the appeal stage, more so, if despite objections at the earliest plaintiff fails to impleaded the necessary parties. (Shyampati Vs Munshi Ram) 2003(1) Civil Court Cases 28 (H.P.) 

Instead of filing written statement application filed for deletion of names of defendant Nos.1 & 2 without showing any prejudice or that they are improper parties – Revision Petition dismissed with costs of Rs.10,000/- – Costs shall be a condition precedent for filing the written statement. (Punjab National Bank Vs Balbir Kaur) 2003(3) Civil Court Cases 272 (P&H) 

Necessary and proper party – A necessary party is one who ought to have been joined i.e. a person in whose absence no effective decree at all can be passed – A proper party is one  whose  presence  is necessary to enable the Court to effectually and completely adjudicate upon and decide  all questions involved in the suit. (M/s.Ponni Sugars & Chemicals Ltd. Vs Bargarh Coop. Sugar Mills Ltd.) 2003(2) Civil Court Cases 505 (Orissa) 

Necessary parties – Objection as to – Should be raised before settlement of issues. (M/s Oasis Bar and Restaurant Vs Smt.P.Umabala) AIR 2002 A.P. 465

Res judicata & Principle underlying O.2.R.2 CPC – Distinction –  The former places emphasis on the plaintiff’s duty to exhaust all available grounds in support of his claim, while the latter requires the plaintiff to claim all reliefs emanating from the same cause of action. (Kunjan Nair Sivaraman Nair Vs Narayanan Nair & Ors.) 2004(1) Apex Court Judgments 242 (S.C.) : 2004(2) Civil Court Cases 63 (S.C.)

Suit for possession on ground of expiry of lease – Lease not expired on date of filing of suit – Amendment of plaint in view of subsequent expiry of lease – Allowed – Held, suit cannot be decreed as the same was not maintainable initially. (Union Bank of India Vs Vithalbhai Pvt.Ltd.) AIR 2002 Calcutta 144

‘Cause of action’ – Meaning – The expression means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court – Every fact which is necessary to be proved, as distinguished from every piece of evidence which is necessary to prove each fact, comprises in “cause of action”. (Kunjan Nair Sivaraman Nair Vs Narayanan Nair & Ors.) 2004(1) Apex Court Judgments 242 (S.C.) : 2004(2) Civil Court Cases 63 (S.C.)

Agreement to sell – Suit for permanent injunction filed against defendant before the date fixed for execution of sale deed – Suit for specific performance filed after the date fixed for execution of sale deed – Held, suit for specific performance is not barred U.O.2.R.2 CPC as cause of action for both the suits is different – The day suit for permanent injunction was filed plaintiff has no cause of action to file the suit for specific performance which arose only on the last day fixed for execution of sale deed. (Meena Rani Vs Ajaib Singh) 2003(3) Civil Court Cases 20 (P&H) 

Agreement to sell – Suit for permanent injunction filed before the date fixed for execution of sale deed – Subsequent suit for specific performance is not barred U.O.2.R.2 CPC – If plaintiff continues to prosecute the previous suit for permanent injunction after the expiry of date fixed for execution of sale deed even then suit for specific performance is not hit by O.2.R.2 CPC. (Daulat Ram Vs Hari Ram) 2003(3) Civil Court Cases 136 (P&H) 

Agreement to sell – Suit for permanent injunction restraining defendant from alienating suit property – Subsequent suit for specific performance – Earlier suit not based on cause of action of specific performance – Relief of specific performance not available at the time of earlier suit as agreed date was later in point of time to date of earlier suit – Subsequent suit for specific performance is not barred U.O.2.R.2 CPC. (Harbans Singh Vs Mohinder Singh) AIR 2003 P&H 294

All reliefs arising out of the same cause of action must be availed in the same suit – Second suit based on the same cause of action on which earlier suit was based is barred. (Kunjan Nair Sivaraman Nair Vs Narayanan Nair & Ors.) 2004(1) Apex Court Judgments 242 (S.C.) : 2004(2) Civil Court Cases 63 (S.C.)

Bar of subsequent suit – Earlier suit filed for arrears of rent and subsequent suit filed for damages for unauthorised occupation – Both the suits are based on different cause of action – O.2.R.2 is not applicable and second suit is maintainable. (Palani Municipal Council Vs C.Sadasivam) 2003(3) Civil Court Cases 326 (Madras) 

Bar of suit U.O.2.R.2 – In absence of specific pleading and non production of proceedings of the first suit, such a plea cannot be raised before the Appellate Court. (Harbans Singh & Ors. Vs Mohinder Singh) 2003(3) Civil Court Cases 365 (P&H) 

Bar of O.2.R.2 CPC – It is the foundation of the previous suit as well as the present suit which is to be seen as to whether it is one and the same – Mere comparison of the reliefs or variance in few allegations here or there has no relevance – Earlier suit for injunction dismissed for default – Subsequent suit for specific performance and possession – Bar of O.2.R.2 CPC is applicable on the facts of the instant case. (Gajanan R.Salvi Vs Satish Shankar Gupte & Ors.) 2005(2) Civil Court Cases 204 (Bombay)

Bar of suit U.O.2.R.2 – Plea maintainable only if pleading of previous suit to prove identity of cause of action in the two suits is filed – No inference of bar can be drawn from assertions made in plaint in the subsequent suit. (Andhra Pradesh Wakf Board Vs Syed Jalaluddin Sha ) 2004(3) Civil Court Cases 469 (A.P.)

In earlier suit title upheld but prayer for injunction rejected as possession was not found – Subsequent suit for recovery of possession with mesne profits – Held, cause of action in both the suit is different – Second suit is not barred U.O.2.R.2 CPC. (Kunjan Nair Sivaraman Nair Vs Narayanan Nair & Ors.) 2004(1) Apex Court Judgments 242 (S.C.) : 2004(2) Civil Court Cases 63 (S.C.)

Suit for injunction – Dismissal of suit – Subsequent suit for declaration of title and injunction – Not barred U.O.2.R.2 CPC. (Chinnappa Vs Corporation of the City of Bangalore) 2005(1) Civil Court Cases 382 (Karnataka)

Suit for injunction dismissed for default – In such suit relief of specific performance could have been claimed but plaintiff omitted to do so – Subsequent suit for specific performance is barred. (Smt.Parkash Kumari Vs Balwant Singh & Ors.) 2005(2) Civil Court Cases 299 (P&H)

Suit for permanent injunction filed when cause of action for filing suit for specific performance had not arisen – Subsequently suit for specific performance filed – Held, suit for specific performance is not barred U.O.2.R.2 CPC – 2001(3) Civil Court Cases 132 is not applicable to the facts of the case as in that case suit for permanent injunction had been filed after accrual of cause of action to file suit for specific performance. (Harbans Singh & Ors. Vs Mohinder Singh) 2003(3) Civil Court Cases 365 (P&H) 

Suit for possession – Failure to claim mesne profits – D.H. can put up claim after date of decree as cause of action for claim of mesne profits arises subsequent to decree. (Venugopala Vs Vasantha) AIR 2003 Karnataka 279

Suit for possession on ground of expiry of lease – Lease not expired on date of filing suit – Held, suit is not maintainable as cause of action was not available on date of filing suit. (Union Bank of India Vs Vithalbhai Pvt.Ltd.) AIR 2002 Calcutta 144

To substantiate plea of O.2.R.2 CPC it is necessary to bring on record the plaint of the previous suit so as to sustain the plea – A mere plea put forth in an indirect manner the concept of O.2.R.2 would not be attracted. (Dwarika Prasad Vs Ram Kishan) 2003(3) Civil Court Cases 380 (M.P.) 

Two suits based on different causes of action – Not barred U.O.2.R.2 CPC. (Sham Lal Vs Mathi) AIR 2002 H.P. 66

Where a plaintiff omits to sue in respect of or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (Ajay Singh & Ors. Vs Rajasthan Civil Service Appellate Tribunal & Ors.) 2003(3) Civil Court Cases 657 (Rajasthan) 

Advocate cannot appear as a witness as a substitute for plaintiff – If he appears as a witness he cannot act as an advocate in the same case – If at any point of time he comes to know that he is a material witness in the case he should not continue to appear – The words ‘act’ and ‘appearance’  appearing in rule 2 mean to appear for the client in course of litigation and it includes to examine or cross-examine a witness but not to appear as witness on behalf of the party. (Kamla Bakshi Vs Union of India & Ors.) 2004(3) Civil Court Cases 145 (J&K)

Advocate as a witness – Where an Advocate accepts the brief on behalf of a party and conducts the case in a manner in which he knows that he is likely to be cited as a material witness, he cannot subsequently withdraw from the case and appear as a witness. (Kamla Bakshi Vs Union of India & Ors.) 2004(3) Civil Court Cases 145 (J&K)

Power of attorney holder – Can appear as a witness only in his personal capacity and can state on oath whatever he has knowledge about the case but cannot appear as a witness on behalf of the party in the capacity of that party. (Kamla Bakshi Vs Union of India & Ors.) 2004(3) Civil Court Cases 145 (J&K)

Power of attorney holder – Deposing on behalf of the principal – If power of attorney holder has rendered some ‘acts’ in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him and in respect of matter which only the principal has a personal knowledge and in respect of which the principal is liable to be cross-examined. (Janki Vashdeo Bhojwani & Anr. Vs Indusind Bank Ltd. & Ors.) 2005(2) Civil Court Cases 324 (S.C.)

Application to set aside exparte decree not presented alongwith Vakalathnama – Application dismissed for this reason – Held, if there is some formal defect in the presentation of an application, Court can either return the application for rectification of defect or can issue notice to party to be present on a particular day for the purpose of further prosecuting the matter  – Rejection of application not justified. (M.Venkata Subba Reddy Vs State Bank of India) 2003(3) Civil Court Cases 389 (A.P.) 

Power of attorney holder – Pronote – Execution – Proof – Plaintiff not appearing as a witness – Power of attorney was present at the time of execution of pronote and receipt – Held, power of attorney holder is competent in the circumstances of the case to depose regarding execution of pronote and receipt as well as receipt of the money. (Balbir Singh Vs Anil Kumar) 2003(3) Civil Court Cases 155 (P&H)

General power of attorney – Grant of permission to appear and prosecute particular case – Cannot be withdrawn unless it is shown that he has created unhealthy atmosphere or indisciplined situation or exchanged words. (Surender Raj Jaiswal Vs Smt.Vijaya Jaiswal) AIR 2003 A.P. 317

General power of attorney holder – Not a substitute to the party – Not competent to appear as witness in the capacity of party and depose about facts within exclusive personal knowledge of the party – However, he can depose about facts which are within his personal knowledge. (S.Padmavathamma Vs S.Sudha Rani & Ors.) 2004(2) Civil Court Cases 364 (A.P.)

General power of attorney holder – Has no right of audience – Not entitled to plead and argue – Power to plead on behalf of a party in judicial proceedings vests only with the pleader. (Moulasab Vs Mohammad Hasim) 2003(1) Civil Court Cases 627 (Karnataka) 

Advocate cannot withdraw his vakalatnama without leave of Court – Practice of Court discharging Advocate on mere filing “no instruction” deprecated. (Govinda Bhagoji Kamable & Ors. Vs Sadu Bapu Kamable & Ors.) 2005(1) Civil Court Cases 511 (Bombay)

Disposal of suit by making reference to referee – Statement by Advocate – Advocate engaged to file civil suit and authority given – Consequences of the statement made by Advocate agreeing to the disposal of the suit by making reference cannot be avoided. (Rama & Ors. Vs Hari Singh & Ors.) 2004(3) Civil Court Cases 708 (P&H)

“No instructions” –  Before dismissal of suit Court to issue notice to the party – Counsel continues to represent party until he is permitted to withdraw in writing. (Gulabo Vs Nagar Palika, Phalodi) 2003(1) Civil Court Cases 315 (Rajasthan) 

“No instructions” – Prayer to be made in writing and before granting leave to withdraw from the case Court to ensure that the party on whose behalf the counsel was appearing has knowledge of such withdrawal from the case. (Gulabo Vs Nagar Palika, Phalodi) 2003(1) Civil Court Cases 315 (Rajasthan)

Advocate – Fee – Bank paid 50% fee at the time of filing plaint – Vakalath terminated during pendency of suit – Court directed that Advocate is entitled to 25% of fee and directed to return the balance of excess received from Bank – Circular instructions issued by Bank are binding on Bank and Counsel as well – Order of trial Court directing Counsel to return to Bank half amount of fee is not sustainable. (G.N.Vishwanathappa Vs Canara Bank ) 2004(2) Civil Court Cases 115 (Karnataka)

Plaint – Proper verification and signing of pleading – Is merely a mistake – Can be rectified subsequently. (Bal Mukund Persad Gupta Vs Mathura Prasad) AIR 2002 Allahabad 363

Suit instituted after office hours or on a holiday at the residence of Presiding Officer – No Judicial Officer would refuse to exercise his discretion in a case of urgency justifying the grant of appropriate relief in the form of injunction or stay order in appropriate case. (Jaspal Singh & Anr. Vs Balbir Singh) 2004(2) Civil Court Cases 588 (P&H)

Suit instituted before commencement of Amendment Act 2002 – Provisions of O.5.R.1 and O.8.R.1 not applicable – Court in its discretion may permit filing of written statement even beyond period of 90 days. (Jerry Alex Braganza alias Jeronimo Oriculo Alex Braganza & Anr. Vs Rajeshree alias Rayeshri Ramdas Borkar alias Shobhavati Ramdas Borkar & Ors.) 2004(2) Civil Court Cases 151 (Bombay)

Fixing date for appearance of defendant – Summons issued on 18.8.1987 and service effected on 19.8.1987 for date fixed in the case as 20.8.1987 and exparte decree passed on 1.8.1988 – Date fixed in the case was keeping in view the residence of the defendant – Defendant had adequate notice of pendency of suit – Even if defendant did not have sufficient time to appear on August 20, 1987 he could have put in appearance on any subsequent date or could have moved an appropriate application on any date thereafter – There is no procedural irregularity committed in issuing summons for two days later. (Ami Chand Vs Partapa) 2003(3) Civil Court Cases 52 (P&H) 

Summons – Service – Through process server and registered post – Always returned with vague endorsements such as “not found”, “addressee has left” and “not met” – There is presumption of service of summons. (Ms.Vijay Laxmi & Anr. Vs Munnu Lal) 2005(2) Civil Court Cases 47 (Allahabad)

Service of summons – Court cannot order service of summons under R.9(3) also in addition to and simultaneously to the service of summons under R.9(1) of Order 5 CPC. (Razack Trading Company Vs J.K.Industries Ltd.) 2003(2) Civil Court Cases 47 (Kerala) 

Service by registered post –  Requirement to issue summons by registered post is not mandatory – It is in addition to and simultaneous with the issue of summons for service – It is not obligatory to send summons by registered post when Court considers it unnecessary to issue summons by registered post. (Ami Chand Vs Partapa) 2003(3) Civil Court Cases 52 (P&H) 

Substituted service – Notice in newspaper ‘Andhra Prabha’ – Defendant stating that he is a subscriber for ‘Eenadu’ and had no access to ‘Andhra Prabha’ – No inference can be drawn that defendant had knowledge of ex parte decree – No warranting circumstances to ask parties to adduce evidence in that regard as a disputed question cannot be proved by evidence – In such a case, substituted service cannot be held to be due service to refuse setting aside ex parte decree. (M.Narasimha Reddy & Ors Vs Begari Samuel) 2003(1) Civil Court Cases 169 (A.P.) 

Substituted service – Before resorting to substituted service no satisfaction of Court that it is not possible to serve the defendant in the ordinary course – Endorsement on registered A.D. cover that address is incomplete – Exparte decree set aside – Order upheld. (Subedar Amar Singh Vs Avtar Singh & Anr.) 2003(3) Civil Court Cases 419 (P&H) 

Substituted service – Party cannot ask Court that it wants to serve the defendant by substituted service – Practice of filing such an application deprecated – Substituted service is permissible if Court records reasons after being fully satisfied that defendant cannot be served in an ordinary manner.(Om Prakash Vs Prakash Chand & Ors.) 2005(1) Civil Court Cases 451 (Allahabad)

Summons – Service by beat of drums – Report of Process Server neither mentioned time nor the report attested by an independent person – Report not acceptable. (Kailash Chand Jain & Ors. Vs Chhaju Ram Jain) 2003(3) Civil Court Cases 414 (P&H) 

Pleadings – Plaintiff is bound by its own pleadings and he must fail or succeed on his own pleadings. (Niwas Builders Vs Chanchalaben Gandhi) 2003(3) Civil Court Cases 99 (Bombay) 

Pleadings – A fact which is within the special knowledge of the defendant need not be pleaded in the plaint. (Liverpool & London S.P. & I. Asson Ltd. Vs M.V.Sea Success I and Anr.) 2004(1) Apex Court Judgments 200 (S.C.)

Divorce – Cruelty – Evidence without pleading – Where allegation of cruelty pleaded in divorce petition is vague without citation of particular instances of cruelty, evidence to prove particular instances of cruelty cannot be led. (B.S.Mohan Kumar Vs Smt.B.K.Nirmala) 2004(3) Civil Court Cases 412 (Karnataka)

Fraud – Pleading – Full particulars must be pleaded in case of fraud, undue influence and coercion – General allegations are not sufficient. (K.Chinna Thimma Reddi Vs K.A.Venkatarami Reddi (Died) & Ors.) 2004(2) Civil Court Cases 698 (A.P.)

In a civil suit all facts have to be pleaded and proved. (Sanjay Gera Vs Haryana Urban Development Authority and Anr.) 2005(1) Apex Court Judgments 480 (S.C.) : 2005(2) Civil Court Cases 97 (S.C.)

Pleadings – All necessary and material facts should be pleaded by the party in support of its case set up by it – Evidence in absence of pleadings not to be considered – No party is allowed to travel beyond its pleadings. (Kailash Devi Vs Jai Kishan (Lance Naik) & Anr.) 2005(1) Civil Court Cases 87 (P&H)

Pleading – Relief – For grant of relief form of plaintiff’s prayer does not matter and it is the substance thereof which should be looked into – Plea not specifically made but covered by an issue by implication and parties knew that said plea is involved in trial, then mere fact that plea not expressly taken in the pleadings does not necessarily disentitle a party from relying upon if it is satisfactorily proved by evidence. (Shaik Munni Vs M/s Jagan Mohan Salt Industries) 2003(1) Civil Court Cases 189 (A.P.) 

Inconsistent pleas – A party can take alternate pleas, whether consistent, complimentary or inconsistent and conflicting – When a party takes inconsistent pleas, ordinarily, it may abandon/destroy one, for success in another – In a given case, two conflicting and inconsistent pleas may even destroy both the pleas, cases, grounds of attack or grounds of defence. (Dadabhau Shankar Ghodke Vs Mohanlal Kanhyalal Agrawal) 2003(1) Civil Court Cases 543 (Bombay)  

Pleadings – If parties know that a point arises in the case and produce evidence on it though it does not find place in the pleadings and no specific issue has been framed on it, Court can still adjudicate thereon – None of the parties can be allowed to say that Court cannot decide the matter because it was not raised in the pleadings. (Kirpal Singh Vs Sardha Ram) 2004(2) Civil Court Cases 219 (P&H)

Pleadings – Suit for cancellation of sale deed alleged to be got executed by defendants without consideration and by playing fraud on his father – In said suit it is enough to plead that ‘K’ is his mother and he is son of ‘S’ – In such a suit it is not required to plead that ‘K’ is second wife of ‘S’ or that marriage between them was performed as per Hindu customs or otherwise. (Hameed & Ors. Vs Kanhaiya) 2005(1) Civil Court Cases 146 (Allahabad)

Plea of tenancy – Alternative plea of trespasser – Contrary to earlier plea – Defendant cannot approbate and reprobate. (Sukumbabai Vs Chandgonda) AIR 2003 Bombay 131

Proof beyond pleading – No amount of evidence is substitute to the pleadings which are the foundation to build up a case – In  pleadings, necessary and material facts constituting substantive rights claimed and liabilities assumed by the parties must be incorporated – No amount of evidence would be a substitute for pleadings concerning substantive rights and liabilities. (Maghar Singh Vs Gurmel Singh) 2003(3) Civil Court Cases 96 (P&H) 

Pleading – Ancestral and coparcenary property – In absence of pleading that suit property has fallen from predecessor-in-interest and so on and so forth, framing of an issue or adducing evidence is of no use. (Maghar Singh Vs Gurmel Singh) 2003(3) Civil Court Cases 96 (P&H) 

Pleadings – Not to be strictly interpreted. (Rampur Engineering Co. Ltd. Vs United Construction Co.) AIR 2002 Delhi 170

Undue influence – Pleading – Averments that defendant took undue advantage of a helpless, illiterate and old lady and made her to thumb mark some papers with ulterior motive of usurping her property and that he was guilty of abuse of faith and that she never leased out the agricultural property to the defendant for a period of 99 years as recorded in the lease deed by a ridiculously and woefully amount of Rs.2,500/- p.a. and not a single penny was paid – Held, it is sufficient pleading with regard to undue influence. (Hamelo Vs Jang Sher Singh) AIR 2002 P&H 147

Pleading and proof – Variance – Non giving of details in plaint does not amount to variance between pleading and proof. (Ram Kalyan Vs Smt.Ladbai & Anr.) 2004(3) Civil Court Cases 177 (Rajasthan)

Pleading and proof – Variance – When evidence is not in line with the pleadings and is at variance with it an  adverse inference has to be drawn and the evidence cannot be looked into or relied upon. (Kashi Nath (Dead) through L.Rs. Vs Jaganath) 2004(1) Apex Court Judgments 474 (S.C.)

Proof  beyond  pleading –  Not  permissible. (Pradeep Kumar Vs Mahaveer Pershad) 2003(2) Civil Court Cases 586 (A.P.) 

Plaint not signed – Merely an irregularity which can be rectified – Court should not decide the case on technicalities but decide the case on merits and do substantial justice. (Bal Mukund Prasad Gupta & Anr. Vs Mathura Prasad) 2003(1) Civil Court Cases 719  (Allahabad) 

Correct address in cause title – Provision is mandatory. (Yellappa Vs Yashodabai) AIR 2004 Karnataka 388

Written statement not signed by defendant – Identity of person verifying not disclosed – Which part of written statement is true to his knowledge and which part is true to his belief not disclosed – Held, verification is not in accordance with procedure under CPC. (Palm Print Textiles (India) Ltd. Vs British Millerain Co.Ltd.) AIR 2002 Delhi 497

Admissions in earlier written statement – Defendant seeking to strike out the same as his Advocate mischievously made admission and seeking permission to file a fresh detailed written statement – Averments made in written statement and in the affidavit filed alongwith earlier caveat petition, both drafted by the same counsel matching with each other – Allegations against counsel not believable – Defendant not approaching Court with clean hands – Act of defendant making baseless allegations against his counsel by filing complaints before police and Bar Council of India deprecated – Application dismissed. (S.Malla Reddy & Ors. Vs Future Builders Co-operative Housing Society) 2003(1) Civil Court Cases 706 (A.P) 

Plaint – Amendment – Petition for judicial separation sought to be converted to be one for divorce by amendment of plaint – Object and scope of both the petitions and parameters to be followed are different and distinct – Merely because amendment sought is not prejudicial to the rights of other party and in the absence of specific pleading as to changed circumstances and other relevant ingredients, amendment cannot be allowed – No infirmity in the order of trial Court dismissing application for amendment of plaint. (Dr.N.Shiva Mohana Reddy Vs Smt.Aparna Reddy) 2005(1) Civil Court Cases 417 (A.P.)

Plaint – Amendment at appellate stage – Suit for declaration of title and injunction – As plaintiff dispossessed during pendency of appeal as such relief of possession sought – Courts should try to avoid multiplicity of litigation – Amendment allowed – Appellate Court to invoke jurisdiction U.O.41.R.27(1)(b) r/w R.28 CPC and to give a comprehensive finding on the main issues of declaration of title and recovery of possession. (E.Anand Kumar Vs Dr.A.Narahari Reddy) 2003(1) Civil Court Cases 698 (A.P.) 

Counter claim – Amendment – Cannot be permitted when cause of action for amended counter claim arose after date of filing of written statement or after date of raising of first counter claim. (Ganu Vs Manik) 2003(3) Civil Court Cases 133 (Bombay)  

Counter claim – Amendment – Plea sought to be introduced by way of amendment if available prior to filing of written statement can be allowed. (Vinod Kumar Vs Jagmohan) 2003(1) Civil Court Cases 163 (P&H) 

Written statement – Amendment sought in written statement to set up counter claim – Held, counter claim by amendment of written statement cannot be set up when claim is barred by time. (Gurdial Vs Kulwant Rai) 2003(2) Civil Court Cases 314 (P&H) 

Plaint – Amendment – Agreement to sell – Suit for specific performance – Necessary averments u/s 16(c) to incorporate by way of amendment of plaint – Allowed – Held, in second appeal it is not a substantial question of law as amendment sought does not change the cause of action and is legally permissible. (Chandra Pal Singh Vs Parhlad Singh) 2003(1) Civil Court Cases 321 (Allahabad) 

During pendency of revision amendment in Rent Act came into force – Landlady allowed to amend the pleadings to add additional grounds. (P.Suryanarayana (D) by Lrs. Vs K.S.Muddugowramma) 2004(1) Apex Court Judgments 616 (S.C.)

Plaint – Amendment – Defendant cannot seek amendment of plaint to include left out properties in a suit for partition – Parties are entitled to amend their own pleadings – Such a course cannot be adopted even while exercising inherent powers u/s 151 CPC. (Patchipulusu Mahalakshmi & Anr. Vs Nagolu Ramanamma & Ors.) 2004(3) Civil Court Cases 56 (A.P.)

“Ready and willing” – Sought to be introduced by way of amendment in a suit for specific performance – Question of limitation is not involved in allowing such an amendment in the plaint. (Raj Kumar Vs Dipender Kaur Sethi) 2005(1) Civil Court Cases 354 (S.C.) : 2005(1) Apex Court Judgments 446 (S.C.)

Amendment of plaint to claim higher rate of interest – No amendment can be granted without affording opportunity to other party to rebut the same – Any such amendment to which the other party had no opportunity to rebut shall be ignored – Claim on amended rate of interest declined. (Sri Ramnik Vallabhdas Madhvani & Ors. Vs Taraben Pravinlal Madhvani) 2004(1) Apex Court Judgments 630 (S.C.) : 2004(3) Civil Court Cases 98 (S.C.)

Amendment of pleadings – Deleted pleadings – In case of misstatement of facts, if pleadings are amended then only amended version is to be taken into consideration and not version deleted – However, in certain circumstances even deleted version can be looked into prove existence or non existence of certain facts. (H.Muthunanjaiah Vs C.G.Indiramma (Deceased) by L.Rs & Ors.) 2005(1) Civil Court Cases 448 (Karnataka)

Eviction petition – Amendment – Bonafide necessity – Amendment sought to incorporate additional reasoning in support of ground of eviction – Case at initial stage – Amendment allowed. (Ramgopal Vs Mohit Bhadadada) 2003(1) Civil Court Cases 299 (Rajasthan) 

Execution – Amendment – Trial Court decree affirmed by Appellate Court – Court can allow amendment notwithstanding merger of trial Court decree with Appellate Court decree. (Muhammed Kunju Meera Sahib Vs Lancilad) AIR 2002 Kerala 74

Plaint – Amendment –  By amendment plaintiff seeking to clarify by addition of a new prayer – Nature of suit would not change – Defendant would get an ample opportunity to contest the suit and assail the fact – Amendment allowed. (Nabeena Chandra Sahu Vs  Debasis Sahu) 2003(1) Civil Court Cases 414 (Orissa)

Plaint – Amendment – Admission – Withdrawal of – Admission made by a party cannot be allowed to be withdrawn until party satisfies that the admission made by it was erroneous and negates factual position. (Raj Pati alias Roshni Vs Dharam Singh) 2003(3) Civil Court Cases 604 (P&H) 

Plaint – Amendment – Agreement to sell – Suit for permanent injunction – By amendment of plaint suit allowed to be converted to be one for specific performance – However, due to negligence/inadvertence, necessary pleading that plaintiff was ready and wiling to perform his part of contract omitted – Second amendment sought for addition of missing averment – No injustice will be caused to defendant and it will not change original controversy between parties – Amendment allowed. (Raj Kumar Vs Dipender Kaur Sethi) 2005(1) Civil Court Cases 354 (S.C.) : 2005(1) Apex Court Judgments 446 (S.C.)

Plaint – Amendment – At appellate stage – Amendment of plaint seeking relief of future mesne profits at appellate stage – Such an application is maintainable even though said relief not included in plaint originally – Claim for future mesne profits stand on a different footing from claim for past mesne profits which have to be pleaded specifically and established by paying court fee – Future mesne profits is a part of general relief of possession – Power of appellate Court is co-extensive with power of original Court – When appeal is pending, suit is deemed to be pending. (Moparthi Sarojini Devi Vs Kavuru) 2003(1) Civil Court Cases 559 (A.P.)  

Plaint – Amendment – Challenge to adoption – Fact of adoption came to knowledge on filing of written statement – Written statement was filed on 5.9.2001 and amendment of plaint sought on 6.4.2002 – Question of limitation to challenge the adoption can only be decided at the trial as in case plaintiff is able to prove the date of knowledge from the date of filing of the written statement then it would be entirely a different matter – Order allowing amendment, upheld. (Vijay Kumar @ Vijay Singh Vs Dariya Singh) 2004(2) Civil Court Cases 447 (P&H)

Plaint – Amendment – Delay – Inspite of delay and laches an amendment can be allowed if facts of the case so permits, as  dominant purpose of allowing amendment is to minimize the litigation. (Pankaja & Anr. Vs Yellappa (D) by Lrs. & Ors.) 2004(2) Apex Court Judgments 398 (S.C.) : 2004(3) Civil Court Cases 401 (S.C.)

Plaint – Amendment – Delay – Relief barred by limitation – Amendment can be allowed depending upon the facts of the case – If grant of an amendment really subserves the ultimate cause of justice and avoid furthers litigation the same can be allowed – There is no straight jacket formula for allowing or disallowing an amendment of pleadings – Each case depends upon the factual background of that case. (Pankaja & Anr. Vs Yellappa (D) by Lrs. & Ors.) 2004(2) Apex Court Judgments 398 (S.C.) : 2004(3) Civil Court Cases 401 (S.C.)

Plaint – Amendment – If evidence is required to prove that proposed amendment is barred by limitation then it can be made subject matter of issue after allowing amendment. (Hari Shankar Singhania & Ors. Vs Dr.Gaur Hari Singhania) 2003(2) Civil Court Cases 604 (Bombay) 

Plaint – Amendment – Plaintiff a rustic and illiterate villager – Mistake in understanding fact stated by plaintiff not ruled out – Averment in plaint sufficiently explained to be erroneous – Held, order denying amendment is wholly illegal and causes manifest injustice to plaintiff. (Raj Pati alias Roshni Vs Dharam Singh) 2003(3) Civil Court Cases 604 (P&H) 

Plaint – Amendment – Proposed amendment not going to the root of the case – Amendment not necessary to decide the controversy – Facts sought to be introduced by amendment already in knowledge of plaintiff and amendment sought after leading of evidence and at a belated stage after several years – Refusal of amendment needs no interference. (Ratan Singh & Anr. Vs Ram Prasad) 2003(1) Civil Court Cases 618 (Rajasthan) 

Plaint – Amendment – Relief claimed time barred – Amendment rightly disallowed. (Krishna Rani Vs Ram Kishan) 2003(1) Civil Court Cases 519 (P&H)  

Plaint – Amendment – Relief of declaration whether falls under Article 58 or Articles 64, 65 of Limitation Act – Question to be decided at the trial – Amendment of plaint seeking relief of declaration allowed. (Pankaja & Anr. Vs Yellappa (D) by Lrs. & Ors.) 2004(2) Apex Court Judgments 398 (S.C.) : 2004(3) Civil Court Cases 401 (S.C.)

Plaint – Amendment – Subsequent developments and altered circumstances – If these are relevant in adjudging the nature and character of the claim made, Court should permit amendment bringing such subsequent developments and altered circumstances on record. (Time Warner Entertainment Company, L.P. Vs A.K.Das) 2003(2) Civil Court Cases 602 (Delhi) 

Plaint – Amendment – Subsequent events – If such events are in relation to the subject matter of the dispute between the parties and necessary to decide real controversy, merely delay in filing application for amendment or because a party to the proceedings will have to lead evidence consequent to the amendment cannot be a justification for refusal to allow amendment application. (Krishnaji Shankar Moghe Vs Sitaram) 2003(1) Civil Court Cases 418 (Bombay)  

Plaint – Amendment – Suit for damages – By amendment claim for damages sought to be enhanced – Suit filed in the year 1993 and amendment sought in the year 1998 – Single Judge allowed amendment – Order set aside in appeal – Held, discretion exercised by High Court in rejecting application was in conformity with law. (T.N.Alloy Foundry Co. Ltd. Vs T.N.Electricity Board & Ors.) 2004(1) Apex Court Judgments 514 (S.C.)

Plaint – Amendment – Suit for declaration and injunction – Amendment sought to claim damages – Held, plaintiff cannot be permitted to change nature and character of suit – Order declining amendment, upheld. (Ram Parkash Vs Food Corporation of India, Chandigarh & Ors.) 2004(2) Civil Court Cases 643 (P&H)

Plaint – Amendment – Suit for declaration and injunction – At time of final hearing, amendment of plaint sought seeking additional relief of restoration of possession – Claim barred by limitation – Amendment allowed – Held, order of trial Court being discretionary cannot be disturbed – However, question of limitation is open for being decided by trial Court after framing a proper issue. (Dattaram V.Dharwadkar Vs Ghanashyam G.Bhende) 2003(2) Civil Court Cases 311 (Bombay) 311  

Plaint – Amendment – Suit for injunction – Dispossession during pendency of suit –  Amendment of plaint sought seeking relief of possession – Amendment allowed. (Tarlochan Singh Vs Bhagwant Singh) 2003(2) Civil Court Cases 386 (P&H) 

Plaint – Amendment – Suit for perpetual injunction – Amendment sought to seek relief of declaration and recovery of possession –  Held, when a suit is filed initially for perpetual injunction, subsequent application for amendment seeking to convert suit into one for declaration of title is not maintainable. (Sayanna & Anr. Vs Thimmanna) 2003(1) Civil Court Cases 595 (A.P.) 

Plaint – Amendment – Suit for specific performance – Amendment sought to claim relief of damages instead of specific performance – Cause of action same – Order allowing amendment is proper. (Fertilizer Corporation of India Ltd. Vs M/s Prabha Kirana Stores) AIR 2004 Allahabad 82

Plaint returned for complying with certain objections before plaint is accepted and registered – Contents of plaint if altered either in the body or relief portion – Held, it does not require an application.  (Moparthi Sarojini Devi Vs Kavuru) 2003(1) Civil Court Cases 559 (A.P.)  

Pleading – Amendment – Rejection – Order is interlocutory order – Can be challenged along with final order in suit. (Fertilizer Corporation of India Ltd. Vs M/s Prabha Kirana Stores) AIR 2004 Allahabad 82

Pleadings – Amendment – Can be allowed at any stage including the stage of arguments and even when the case is at appellate stage – Amendment however can only be allowed if it is necessary for proper adjudication of the issue involved. (Vinod Kumar Vs Jagmohan) 2003(1) Civil Court Cases 163 (P&H) 

Pleadings – Amendment – Can be allowed at any stage of the proceedings including when the case is reserved for judgment. (Baburao  Vs Maharashtra Insecticides Limited & Ors.) 2004(2) Civil Court Cases 473 (Bombay)

Pleadings – Amendment – No amendment of pleadings is to be permitted after the commencement of the trial unless cogent reasons are shown by such a party that the matter sought to be incorporated by amendment was not within his knowledge or could not be ascertained with due diligence. (Inder Pal Singh Vs Bankey Bihari) 2003(3) Civil Court Cases 707 (P&H) 

Pleadings – Amendment at appellate stage – Under amended provisions, amendment of pleadings at appellate stage is not permissible. (Shakuntala Vs M/s.Davendra Kumar Mool Chand) 2003(3) Civil Court Cases 167 (Rajasthan) 

Pleadings – Amendments – Amendments which are necessary to decide the controversy raised before the Court are ordinarily to be allowed as it would avoid multiplicity of litigation. (Harbans Lal  Vs Dev Raj) 2003(1) Civil Court Cases 526 (P&H) 

Relief sought by way of temporary injunction rejected earlier – Same relief again sought by way of amendment at later stage of suit – Cannot be allowed. (V.N.Shivaram Vs B.M.Nagappa) AIR 2003 Karnataka 18

Reply to amended plaint – New facts cannot be introduced – Reply to be confined to plaint allowed to be amended. (Raees Ahmed  Vs Shrigopal Prakash) 2003(1) Civil Court Cases 666 (Rajasthan) 

Written statement – Amendment – Admission – Once made cannot be permitted to be withdrawn or diluted by subsequent amendment. (Inder Pal Singh Vs Bankey Bihari) 2003(3) Civil Court Cases 707 (P&H) 

Written statement – Amendment – Amendment sought to substituted ‘1997’ in place of ‘1987’ in cause of action paragraph – It is only a typographical mistake – Amendment allowed. (Todendula Venkata Krishnaiah Vs Uppu Gangaiah) 2003(3) Civil Court Cases 274 (A.P.) 

Written statement – Amendment – Application pending – No order passed by lower Court – Matter covered by application fully argued in second appeal and considered by Court – Held, there is no necessity to remand matter for disposal of amendment application. (Gorachand Mukherjee Vs Malabika Dutta) AIR 2002 Calcutta 26

Written statement – Amendment – Defendant claiming to be co-owner – Amendment sought to incorporate the plea that he has acquired title by adverse possession – Amendment sought is inconsistent with original plea and the same cannot be allowed, moreso, when it is belated. (Patel Ganeshbhai Khushaldas Vs Patel Becharbhai Madhavlal (deceased by L.R’s) and Ors.) 2004(2) Civil Court Cases 240 (Gujarat)

Written statement – Amendment – Defendant pleading that he was co-owner of property – Amendment sought to claim acquisition of property by adverse possession a better claim that a co-owner – Amendment being inconsistent with main plea – Cannot be allowed – Moreso, when it was belated. (Patel Ganeshbhai Khushaldas Vs Patel Becharbhai Madhavlal) AIR 2004 Gujarat 136

Written statement – Amendment – Suit on basis of family settlement – Plaint averments admitted – Amendment of written statement sought – An issue framed and evidence recorded and a finding given that parties never acted upon the family partition and that whole of the amount payable under family settlement is not paid as such allowed amendment – Held, it is well settled that erroneous admissions can be validly explained and on such basis amendment can always be allowed. (Harbans Lal  Vs Dev Raj) 2003(1) Civil Court Cases 526 (P&H) 

Plaint – Amendment – Suit for specific performance – Amendment of plaint to implead subsequent purchaser and also decree for declaration that subsequent agreement was illegal – Amendment was a necessary consequence of the defendant and subsequent purchaser’s conduct – There was no change in the fundamental character of the suit – Amendment allowed. (Haroon Rashid Nizamuddin Umatiya Vs Jivatlal) 2003(3) Civil Court Cases 120 (Bombay) 

Plaint – Amendment – Subsequent events – Suit for permanent injunction – During pendency of suit defendant raised certain construction over the suit property – To avoid the multiplicity of suits amendment sought which cannot be said to be either improper or incorrect – Held, as interlocutory order neither disposes of suit finally nor does it cause failure of justice or irreparable injury to party against whom it is made, same cannot be interfered with in revision. (Kumar & Anr Vs Kothandapani) 2003(2) Civil Court Cases 93 (Karnataka) 

“Trial” – Meaning – Trial means examination of witnesses, production of documents in evidence and all stages subsequent to the same. (Neelakandan Nair Vs Parameswara Kurup) 2003(3) Civil Court Cases 169 (Kerala) 

Time limit for filing amended pleadings not mentioned – Amended pleading filed beyond period of 14 days of order – Held, period of 14 days prescribed by O.6.R.18 is not mandatory and the same can be extended – It can be said that there was condonation of delay when amended pleading is taken on record beyond period of 14 days – Even if there is no such order as to extension of time the same can be taken to be a mere irregularity which does not arm the opposite party that he has suffered a manifest injustice. (Vinod Kumar Arora Vs Smt.Santosh Kumari & Anr.) 2005(1) Civil Court Cases 752 (P&H)

Defect in verification and non compliance of the provision of O.7.R.1(j) and O.20.R.5 – These are only technical objections which do not go into the root of the case. (Puran Singh Vs Nathu) 2003(2) Civil Court Cases 74 (P&H) 

Immovable property not definitely identified – Decree passed overlooking the provisions of O.7.R.3 & O.20.R.3 CPC – It is an inadvertent error and does not affect the merits of the case – Error can be rectified by having resort to S.152 or S.47 CPC. (Pratibha Singh & Anr. Vs Shanti Devi Prasad) 2003(1) Civil Court Cases 259 (S.C.) : 2003(1) Apex Court Judgments 01 (S.C.)

Immovable property – Identification of suit property – Suit for declaration – Held, unless property with reference to which declaration sought is clearly identified, plaintiff is not entitled to a decree. (John Sylem Vs Chanthanamuthui Pillai (Dead) & Ors.) 2004(2) Civil Court Cases 144 (Madras)

General or other relief – Not necessary for plaintiff to ask those reliefs – Court can grant general or other relief as it thinks just. (Shaik Munni Vs M/s Jagan Mohan Salt Industries) 2003(1) Civil Court Cases 189 (A.P.) 

Relief – Court can grant a relief not asked for if the relief granted is smaller than the one claimed in the suit. (Kusam Satyanarayana Reddy & Ors. Vs Kusam Sambrajyamma (died) per L.Rs. & Ors.) 2004(2) Civil Court Cases 450 (A.P.)

Relief – Court can grant either general relief or other relief which appears to be just, legitimate and proper in any case even though such reliefs have not been specifically asked for. (Kusam Satyanarayana Reddy & Ors. Vs Kusam Sambrajyamma (died) per L.Rs. & Ors.) 2004(2) Civil Court Cases 450 (A.P.)

Subsequent events – Court can take notice of events taking place after institution of suit and can suitably mould and grant relief according to changed circumstances. (Shaik Munni Vs M/s Jagan Mohan Salt Industries) 2003(1) Civil Court Cases 189 (A.P.) 

Three alternative reliefs claimed – Granted one – Appeal claiming that other relief should be granted – Appeal not maintainable. (U.G.Srinivasa Rao Vs Vinaykumar & Ors.) 2004(3) Civil Court Cases 240 (Karnataka)

Court having no jurisdiction – Plaint to be returned for presentation before a proper Court instead of dismissing the suit. (Kedar Nath (Dead) through LRs. Vs Chawali) 2004(2) Civil Court Cases 115 (P&H)

Exparte decree passed by Court at Madras – Suit filed in a Court at Hyderabad to set aside the exparte decree being obtained by playing fraud on the Madras Court – At the threshold itself it is not desirable to hold that Court at Hyderabad has no jurisdiction to try and dispose of the suit – Had it been a petition U.O.9.R.13 CPC then Court which passed decree could only entertain and pass appropriate orders – After the defendant appears in suit only then trial Court has to consider the issue from all angles and give a finding regarding its jurisdiction to entertain the suit – Plaint cannot be returned at the threshold stage. (Kalyani Straw Boards Ltd., Vs M/s.Lala Gopi Krishna) 2003(2) Civil Court Cases 624 (A.P.) 

Lack of jurisdiction – Return of plaint – Finding on merit is without jurisdiction when once Court comes to conclusion that it has no jurisdiction to entertain the suit. (Shreyans Industries Vs State of U.P. & Ors.) 2004(2) Civil Court Cases 416 (Bombay)

Return of plaint for presentation to proper Court – Jurisdiction can be exercised at any stage of suit. (Kuchi Charumathi Devi Vs Gampa Chenchu Ratnamma) 2003(1) Civil Court Cases 353 (A.P.) 

Territorial jurisdiction – Lack of – Procedure prescribed U.O.7.R.10-A not followed – Appeal U.O.43.R.1(a) is maintainable. (Sunit W/o Ravi Sangavai Vs Ravi ) 2004(2) Civil Court Cases 664 (Bombay)

Lack of jurisdiction – Issues already framed – Held, framing of issues cannot come in way of considering application. (H.P.Lakshmidevaraje Urs Vs G.P.Asharani alias Nandini) 2003(1) Civil Court Cases 70 (Karnataka)  

Maintainability of suit – Question not raised before Courts below – Cannot be allowed to be raised for the first time in SLP. (Shipping Corporation of India Ltd. Vs Machado Brothers & Ors.) 2004(1) Apex Court Judgments 574 (S.C.) : 2004(2) Civil Court Cases 533 (S.C.)

Application U.O.7.R.11 CPC to be decided on the allegations in the plaint and filing of the written statement by the contesting defendant is irrelevant and unnecessary. (Saleem Bhai & Ors. Vs State of Maharashtra & Ors.) 2003(1) Apex Court Judgments 238 (S.C.) : 2003(1) Civil Court Cases 569 (S.C.) 

Averments in plaint only have to be considered while deciding application U.O.7.R.11 CPC – Defence is to be tried out on merits during trial. (Teja Ram Vs Birbal Ram) 2004(2) Civil Court Cases 562 (Rajasthan)

Cause of action – A cause of action is a bundle of facts which are required to be pleaded and proved for the purpose of obtaining relief claimed in the suit – For this material facts are required to be stated but not the evidence except in certain cases where the pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence. (Liverpool & London S.P. & I. Asson Ltd. Vs M.V.Sea Success I and Anr.) 2004(1) Apex Court Judgments 200 (S.C.)

Cause of action – Failure to disclose cause of action is distinct from the absence of full particulars. (Liverpool & London S.P. & I. Asson Ltd. Vs M.V.Sea Success I and Anr.) 2004(1) Apex Court Judgments 200 (S.C.)

Court fee – Deficiency – Failure to make up the deficiency – Suit is liable to be dismissed. (Bhagwana Vs Mohinder Dass) 2005(1) Civil Court Cases 71 (P&H)

Court fee – Non payment of deficit Court fee within time – Plaint to be rejected and not to be returned. (Vattikoti Kantamma Vs T.Suryanarayana & Ors.) 2004(3) Civil Court Cases 29 (Karnataka)

Dismissal of application U.O.7.R.11 – Revision lies against such an order – However revisional Court should not pass an order rejecting a plaint while exercising jurisdiction u/s 115 CPC – Revisional Court to pass order directing Court below to correctly assess the fact by following the provisions of law. (State Bank of India  Vs Somnath Sahoo) 2004(2) Civil Court Cases 634 (Orissa)

Plaint – Rejection – Absence of prayer for relief against applicant – Averment in plaint showing that plaintiff had cause of action against applicant and that the cause of action was also disclosed in plaint – Held, lapse of not claiming relief specifically against applicant/defendant appears to be inadvertent – Prayer for rejection of plaint – Rejected. (Eagle Copters Ltd. Vs Azal Azerbaijan Aviation Ltd.) AIR 2002 Bombay 284

Plaint – Rejection – Can be at any stage – Written statement whether filed or issues have been framed is immaterial. (Sisir Kana Guha Vs Ayakar Grihanirman Sambaya Samity ltd.) AIR 2002 Calcutta 247

Plaint – Rejection – For deciding an application U.O.7.R.11 CPC averments in plaint alone are germane and plea taken in written statement is wholly irrelevant at that stage. (Bajaj Auto Limited & Ors. Vs Sundeep Polymers Pvt.Ltd., Mumbai) 2005(1) Civil Court Cases 56 (Bombay)

Plaint or document relied upon when disclose cause of action then plaint cannot be rejected merely for the reason that such averments are not sufficient to prove the facts stated in the plaint for the purpose of obtaining relief claimed in the suit. (Liverpool & London S.P. & I. Asson Ltd. Vs M.V.Sea Success I and Anr.) 2004(1) Apex Court Judgments 200 (S.C.)

Power under the provision can be exercised at any stage of the suit before registering the plaint or after issuing summons to the defendant at anytime before the conclusion of the trial. (Saleem Bhai & Ors. Vs State of Maharashtra & Ors.) 2003(1) Apex Court Judgments 238 (S.C.) : 2003(1) Civil Court Cases 569 (S.C.) 

Pre mature suit – Defendant should promptly raise objection and Court to promptly dispose of such a plea. (Vithalbhai Pvt.Ltd. Vs Union Bank of India) 2005(1) Apex Court Judgments 593 (S.C.) : 2005(2) Civil Court Cases 01 (S.C.)

Pre mature suit – Not maintainable when – (i) there is a mandatory  bar created by a statute which disables the plaintiff from filing the suit on or before a particular date or the occurrence of a particular event; (ii) When the institution of the suit before the lapse of a particular time or occurrence of a particular event would have the effect of defeating a public policy or public purpose; (iii) if such premature institution renders the presentation itself patently void and the invalidity is incurable such as when it goes to the root of the Court’s jurisdiction, and (iv) where the lis is not confined to parties alone and affects and involves persons other than those arrayed as parties, such as in an election petition which affects and involves the entire constituency. (Vithalbhai Pvt.Ltd. Vs Union Bank of India) 2005(1) Apex Court Judgments 593 (S.C.) : 2005(2) Civil Court Cases 01 (S.C.)

Pre-mature suit – Not to be dismissed if it discloses a cause of action and by the time written statement came to be filed or by the time Court is called upon to pass a decree, plaintiff is found entitled to the relief prayed for in the plaint. (Vithalbhai Pvt.Ltd. Vs Union Bank of India) 2005(1) Apex Court Judgments 593 (S.C.) : 2005(2) Civil Court Cases 01 (S.C.)

Pre-mature suit – Plaint if disclosing cause of action suit not to be dismissed necessarily for such reason –  Court to examine whether any irreparable prejudice was caused to the defendant on account of suit being pre mature  and whether by granting relief in such suit a manifest injustice could be caused to the defendant – After taking into consideration the explanation offered by plaintiff Court may deny plaintiff his costs or may make such other order adjusting equities and satisfying the ends of justice – Conduct of parties and unmerited advantage to plaintiff or disadvantages amounting to prejudice to the defendant, if any, would be relevant factors – Plea as to non maintainability of suit being pre mature should be promptly raised by defendant and pressed for decision and Court to promptly dispose of such a plea. (Vithalbhai Pvt.Ltd. Vs Union Bank of India) 2005(1) Apex Court Judgments 593 (S.C.) : 2005(2) Civil Court Cases 01 (S.C.)

Rejection of plaint – Against some defendants – Not barred. (M.V.Sea Success I Vs Liverpool) AIR 2002 Bombay 151

Rejection of plaint – Amounts to a decree – Such an order is appealable. (State Bank of India  Vs Somnath Sahoo) 2004(2) Civil Court Cases 634 (Orissa)

Rejection of plaint – Cause of action – In ascertaining whether the plaint shows a cause of action, Court is not required to make an elaborate enquiry into doubtful or complicated questions of law or fact – Jurisdiction of Court is restricted to ascertaining whether on the allegations a cause of action is shown. (Liverpool & London S.P. & I. Asson Ltd. Vs M.V.Sea Success I and Anr.) 2004(1) Apex Court Judgments 200 (S.C.)

Rejection of plaint – Main relief in plaint relating to continuance of tenancy under trust – Other reliefs claimed regarding enquiry into affairs of trust – Rejection of plaint on ground that Civil Court has no jurisdiction – Order set aside – Adjudication in suit to be restricted to question of tenancy only – Plaintiff allowed to make application for relinquishing other reliefs. (Sopan Sukhdeo Sable & Ors. Vs Assistant Charity Commissioner & Ors.) 2004(2) Apex Court Judgments 177 (S.C.) : 2004(2) Civil Court Cases 663 (S.C.)

Rejection of plaint – Mere fact that case is weak and not likely to succeed is not a ground for rejection of plaint when claim discloses some cause of action or raises some questions fit to be decided by a Judge. (Liverpool & London S.P. & I. Asson Ltd. Vs M.V.Sea Success I and Anr.) 2004(1) Apex Court Judgments 200 (S.C.)

Rejection of plaint – Since rights conferred upon the parties are determined one way or the other, stricto sensu it would not be an interlocutory order but having regard to its traits and trappings would be a preliminary judgment. (Liverpool & London S.P. & I. Asson Ltd. Vs M.V.Sea Success I and Anr.) 2004(1) Apex Court Judgments 200 (S.C.)

Rejection of plaint – When none of the reliefs sought in plaint can be granted to plaintiff under law, plaint can be rejected. (M/s.Pearlite Liners Pvt. Ltd. Vs Manorama Sirsi) 2004(1) Apex Court Judgments 32 (S.C.) : 2004(2) Civil Court Cases 44 (S.C.)

Rejection of plaint – While deciding application Court is not supposed to look to the defence plea. (State Bank of India  Vs Somnath Sahoo) 2004(2) Civil Court Cases 634 (Orissa)

Withdrawal of suit with permission to file fresh suit allowed subject to payment of costs – Subsequently suit filed but costs not paid – Plaint rejected as costs not paid – As no opportunity to pay costs was granted while rejecting plaint as such order rejecting plaint is improper. (Arulmigu Vs The Executive Officer) AIR 2004 Madras 402

Jurisdiction under the provision can be exercised at any stage of the suit. (Shivrudra Shivling Pailwan & Ors. Vs Prakash Maharudhra Pailwan) 2003(1) Civil Court Cases 277 (Bombay) 

Provision comes into play only when pleadings in the plaint are sufficient to disclose the bar to the suit and not otherwise – The conclusion regarding bar to suit cannot be arrived at on the basis of materials extraneous to the pleadings in the plaint. (Shivrudra Shivling Pailwan & Ors. Vs Prakash Maharudhra Pailwan) 2003(1) Civil Court Cases 277 (Bombay) 

Rejection of plaint – Is a deemed decree – Civil Miscellaneous Appeal is maintainable. (Ragam Yellaiah & Ors. Vs Chinta Shankaraiah) 2004(2) Civil Court Cases 549 (A.P.)

Rejection of plaint – Question of applicability of Article 58 or Article 65 of Limitation Act – Question of limitation necessarily always is not a pure question of law, but it is a mixed question of fact and law – When several other factual aspects are also to be gone into while deciding a question of  law involved incidentally, rejecting of plaint at the threshold cannot be sustained – Those are all aspects which are to be gone into at the time of regular trial – Order rejecting plaint set aside. (Ragam Yellaiah & Ors. Vs Chinta Shankaraiah) 2004(2) Civil Court Cases 549 (A.P.)

Suit for declaration and permanent injunction – Limitation – Cause of action arose on 13.11.1986 and suit filed in the year 1991 – Nowhere in body of plaint, plaintiff has chosen to explain subsequent events providing for a cause of action subsequent to 13.11.1986 – Suit is barred by time – Trial Court dismissed suit – Held, dismissal to be treated as rejected in terms of O.7.R.11(d) CPC. (B.V.Ananthappa (Dead) By L.Rs Vs G.Hanumanthappa & Ors.) 2005(1) Civil Court Cases 210 (Karnataka)

Clauses (e) & (f) are procedural and would not require automatic rejection where plaint is not filed in duplicate or where the plaintiff fails to comply with provisions of O.7.R.9 CPC – Court should ordinarily give an opportunity before rejecting plaint on these grounds. (Salem Advocate Bar Association Vs Union of India) 2003(1) Civil Court Cases 198 (S.C.) 

Documents under challenge – It is mandatory to place on record such documents – If such documents not produced, suit is not maintainable. (Som Parkash Bansal Vs Managing Committee, Hindu Higher Secondary School, Kaithal) 2003(1) Civil Court Cases 304 (P&H) 

Adverse possession – Stand of defendant – Plaintiff seeking production of copy of mutation to rebut stand of adverse possession taken by defendant – Cannot be denied on the ground that document was neither relied upon nor good cause shown for its production. (Balwant Kumar Vs Kailash Bahl) AIR 2003 H.P. 48

Suit for title on basis of certain documents filed – Documents not filed with plaint – Documents filed subsequently with leave of Court and marked as exhibits and received in evidence by trial Court – Could not have been rejected by First Appellate Court. (P.S.M.Ahamed Abdul Khader Vs T.K.Mohammed Abubucker) AIR 2002 Madras 213

Provision of S.148 cannot be invoked to grant time beyond the stipulated period of 90 days available under the provision of O.8.R.1 CPC. (A.Sathyapal & Ors. Vs Smt.Yasmin Banu Ansari) 2004(2) Civil Court Cases 651 (Karnataka)

Written statement – Delay – Condonation – Amendment of CPC during pendency of application- Time for filing written statement would be governed by provision as it stood before amendment – Order condoning delay and taking written statement on record – Not interfered with. (Waqf Mausooma Syed Hussain Vs Dillep Kumar Jain) AIR 2003 Allahabad 371

Written statement – Failure to file written statement within time – Provision is mandatory but only admit of rare exceptions exhibiting either failure of justice or extraordinary factual circumstances which may be out of control of the party concerned and which may justify the extension of time in filing of written statement. (Mohinder Singh Vs Sardool Singh & Ors.) 2005(1) Civil Court Cases 819 (P&H)

Provision is directory in nature – While extending time to file written statement Court should not exercise discretion arbitrarily – Time can be extended only in exceptional cases after recording reasons in writing. (Shailaja A.Sawant  Vs Sayajirao Ganpatrao Patil ) 2004(2) Civil Court Cases 517 (Bombay)

Written statement – To be filed within 30 days of service of summons – Court can enlarge time upto 90 days of service of summons for valid reasons to be recorded in writing – Provision is mandatory – Court has no discretionary power to enlarge time further, nor Court can accept time-barred written statement by exercising its inherent power. (A.Sathyapal & Ors. Vs Smt.Yasmin Banu Ansari) 2004(2) Civil Court Cases 651 (Karnataka)

Written statement – To be filed within 30 days of service of summons – Court can, for valid reasons enlarge time, but time so enlarged cannot go beyond 90 days from date of service of notice on party – Leave to file written statement sought after 90 days of service of summons – Such leave cannot be granted even in exercise of inherent powers of Court or in exercise of writ jurisdiction. (A.M.Khaithan Vs M.Sheshappa & Ors.) 2005(1) Civil Court Cases 227 (Karnataka)

Written statement – Extension of time to file beyond 90 days from date of service of summons – Can be granted by Court at its discretion on reasonable grounds and in exceptional circumstances to render substantial justice to parties – Word ‘Shall’ used in the provision not mandatory – Ground for delay stated that parties proposed to go in for compromise – Court allowed extension of time – No interference in discretion exercised by Court below – Petition dismissed. (Centenary Baptist Church Vs Shyamsunder & Anr.) 2004(3) Civil Court Cases 370 (A.P.)

O.5.R.1 & O.8.R.1 as amended by Act 22 of 2002 do not apply to proceedings filed before the Amendment Act came into force. (Jerry Alex Braganza alias Jeronimo Oriculo Alex Braganza & Anr. Vs Rajeshree alias Rayeshri Ramdas Borkar alias Shobhavati Ramdas Borkar & Ors.) 2004(2) Civil Court Cases 151 (Bombay)

Written statement – Outer limit of 90 days for filing written statement – Cannot be extended – S.148 CPC has no application. (Iridium India Telecom Ltd., Bombay Vs Motorola Inc. & Anr.) 2004(2) Civil Court Cases 443 (Bombay)

Documents – Not produced alongwith written statement – Can be received in evidence at the time of hearing of the suit with the leave of the Court – At that stage Court has to consider only the good cause for non production of those documents earlier – Admissibility and relevancy of the documents can only be gone into at the stage of hearing on objections, if any. (Sirugudi Adinarayana Vs Bodla Mariamma) 2005(1) Civil Court Cases 96 (A.P.)

Written statement – Failure to file within stipulated time – Court is empowered to pronounce judgment – Power to pronounce judgment is nothing but consequence flowing from violation of provision. (A.Sathyapal & Ors. Vs Smt.Yasmin Banu Ansari) 2004(2) Civil Court Cases 651 (Karnataka)

Written statement – To be filed within 30 days of service of summons – Court can extend time for valid reasons – Extended time cannot go beyond 90 days from date of service of summons – Right of party to file written statement is lost if same is not filed within time allowed – Court has no discretionary power to enlarge time further, nor can Court accept time barred written statement by purported exercise of its inherent power. (Savitha Gupta Vs Nagarathna) 2003(3) Civil Court Cases 172 (Karnataka) 

Rule 9 does not hold the key to a correct interpretation of O.8.R.1 CPC. (A.Sathyapal & Ors. Vs Smt.Yasmin Banu Ansari) 2004(2) Civil Court Cases 651 (Karnataka)

Written statement – Omission to file within ninety days from date of service of summons – Court has power to give one more chance to file written statement within 30 days – Power is discretionary and can be exercised for reasons to be recorded in writing – Written statement so permitted to be filed may cover not only defence of set-off or counter-claim but also other matters of defence – If party still defaults in filing written statement then Court has to pronounce judgment or make such order as it thinks fit, on basis of case made out in plaint. (Sri Prasanna Parvathamba Vaidyanatheshwara Trust, Maddur Taluk, Mandya District Vs M.S.Radhakrishna Dixit) 2003(3) Civil Court Cases 415 (Karnataka) 

Written statement – Denial for want of knowledge – It is an evasive denial – Unless specific pleadings which touch the merits of the case are not specifically denied, the same shall amount to admission of the relevant facts pleaded in the corresponding paras of the plaint. (State of Punjab  Vs Gurmel Singh) 2003(2) Civil Court Cases 115 (P&H) 

Written statement – Absence of specific denial – No duty is cast on the plaintiff to adduce evidence with respect to matters which were not specifically denied in the written statement. (Louiz Vs Augustin) 2004(3) Civil Court Cases 464 (Kerala)

Written statement – Allegation of fact when not specifically denied or it has not been denied by necessary implications then such a fact to be taken as an admission – It is discretion of Court to require a party to prove a fact despite such an admission. (Mehnga Singh & Ors. Vs Gurdial Singh & Ors.) 2004(2) Civil Court Cases 525 (P&H)

Written statement – Allegations of fact must be specifically denied –  If denial is not specific but evasive the same shall be taken to be admitted and thus admission itself being proof no other proof is necessary. (Sushil Kumar Vs Rakesh Kumar) 2004(2) Civil Court Cases 63 (S.C.) : 2003(2) Apex Court Judgments 690 (S.C.)

Written statement not filed – Still party has right to cross examine witnesses of plaintiff and to participate in the process of hearing – However, the scope of cross-examination cannot be permitted to travel beyond limited object of pointing out falsity or weakness of plaintiff’s case and in any case, it cannot be converted into presentation of defence theory. (Suryabhan Vs Shobha Bhimrao Pawar) 2003(2) Civil Court Cases 155 (Bombay) 

Equitable set off – Right is available only if the claim arises out of the same transaction which is the foundation of the plaintiff’s claim and the claim has not become time barred. (Maharashtra State Farming Corporation Ltd. Vs Belapur Sugar & Allied Industries Ltd.) 2004(3) Civil Court Cases 255 (Bombay)

Counter claim – Belated counter claim – Refusal by Court to entertain – Defendant in spite of counter claim having been refused to be entertained is at liberty to file his own suit based on the cause of action for counter-claim. (Ramesh Chand Ardawatiya Vs Anil Panjwani) 2003(1) Apex Court Judgments 595 (S.C.)

Counter claim – By way of amendment of written statement or by way of subsequent pleading – If it is to prolong the trial or complicate otherwise smooth flow of proceedings or causing a delay by forcing a retreat on the steps already taken, Court would not allow belated counter-claim. (Ramesh Chand Ardawatiya Vs Anil Panjwani) 2003(1) Apex Court Judgments 595 (S.C.)

Counter claim – Can be filed even after filing  of written statement provided such counter claim is within period of limitation. (Rakesh Ahuja & Anr. Vs Jagan Nath) 2004(3) Civil Court Cases 567 (P&H)

Counter claim – Can be made even after filing written statement if cause of action arose prior to filing of written statement or prior to the date fixed for filing written statement and that it is filed within limitation prescribed. (Madanapalle Municipality Vs Syed Ahamad) 2003(2) Civil Court Cases 303 (A.P.) 

Counter claim – Is permissible in suits others than money suits. (Smt.Gowramma Vs Nanjappa) AIR 2002 Karnataka 76

Counter claim – Sought to be filed after closure of plaintiff’s evidence – Counter-claim cannot be permitted at that belated stage though the claim is within period of limitation – Stage at which counter-claim can be filed – Analysed. (N.Eshwara Prasad & Ors. Vs Margadarshi Chit Fund Limited, Warangal & Anr.) 2004(2) Civil Court Cases 483 (A.P.)

Counter claim – Sought to be filed after filing of written statement – Application dismissed – Revision filed – In the meantime evidence of parties recorded – Defendant cannot therefore be permitted to make counter claim at that stage – Dismissal of application by Court below, upheld. (Madanapalle Municipality Vs Syed Ahamad) 2003(2) Civil Court Cases 303 (A.P.)

Counter claim – Three modes – Written statement may itself contain a counter claim, secondly a counter claim may be preferred by way of amendment incorporated subject to the leave of the Court and thirdly counter claim may be filed by way of a subsequent pleading under rule 9 order 8 CPC.  (Ramesh Chand Ardawatiya Vs Anil Panjwani) 2003(1) Apex Court Judgments 595 (S.C.)

Written statement not filed – Counter claim is not entertainable when there is no written statement on record. (Ramesh Chand Ardawatiya Vs Anil Panjwani) 2003(1) Apex Court Judgments 595 (S.C.)

Written statement – Failure to file within prescribed time – Though party loses his right, Court is not precluded from calling upon party to file written statement at any time before pronouncement of judgment. (A.V.Purushotam Vs N.K.Nagaraj) 2004(2) Civil Court Cases 708 (Karnataka)

Facts pleaded in written statement not denied in replication – Such facts shall be taken to be admitted to be correct. (Sujan Kaur Vs Chand Singh) 2003(3) Civil Court Cases 254 (P&H)

Replication – Filing of replication is not mandatory – Presumption against plaintiff cannot be raised for non filing of replication. (Charanjit Kaur & Anr. Vs Darshan Singh) 2005(2) Civil Court Cases 347 (P&H)

Written statement – Giving wrong facts – Costs of Rs.10,000/- imposed. (Narotam Dass Mehta Vs State of Punjab) 2005(1) Civil Court Cases 796 (P&H)

Written statement – Not filed within prescribed time – No penal consequences are prescribed for not filing the written statement within stipulated period – Provision is directory in nature. (A.V.Purushotam Vs N.K.Nagaraj) 2004(2) Civil Court Cases 708 (Karnataka)

Use of word “Shall” in O.5.R.1, O.8.R.1, O.8.R.9 and O.8.R.10 – It cannot be said that the said provisions are mandatory. (A.V.Purushotam Vs N.K.Nagaraj) 2004(2) Civil Court Cases 708 (Karnataka)

Written statement – Time limit for filing written statement – Cannot be construed as mandatory – Court in extraordinary circumstances has discretion to permit to file written statement beyond the period of 90 days – Order extending time should not be passed except in exceptional and special circumstances. (Chintaman Sukhdeo Kaklij & Ors. Vs Shivaji Bhausaheb Gadhe & Ors.) 2005(1) Civil Court Cases 34 (Bombay)

Court can allow defendant to file written statement at any stage prior to the pronouncement of judgment – Power under Rules 9 & 10 of Order 8 should be used only in exceptional cases and that too for reasons to be recorded in writing and cannot be exercised by a defendant as a matter of right. (Shailaja A.Sawant  Vs Sayajirao Ganpatrao Patil ) 2004(2) Civil Court Cases 517 (Bombay)

Plaint averments admitted in written statement – Not necessary that suit must be decreed – Court can direct plaintiff to prove his case by leading evidence. (Harbans Lal  Vs Dev Raj) 2003(1) Civil Court Cases 526 (P&H) 

Suit for specific performance – Written statement not filed – Decree for specific performance being discretionary, the fact that defendant has not filed written statement as such is not a ground for passing an exparte decree. (Thomas P.Abraham  Vs Aleyamma Abraham) 2004(2) Civil Court Cases 86 (Kerala)

Written statement – Failure to file – In absence of denial of plaint averments burden of proof on the plaintiff is very heavy – Prima facie proof of relevant facts constituting cause of action would suffice and Court would grant plaintiff such relief as to which he may in law be found entitled.   (Ramesh Chand Ardawatiya Vs Anil Panjwani) 2003(1) Apex Court Judgments 595 (S.C.)

Written statement – Failure to file written statement within ninety days of service of summons – Entails penalty on defendant and defendant cannot file written statement – Suit has to be decided even in absence of written statement. (Dr.Nanda Agrawal Vs Matri Mandir, Varanasi & Anr.) 2005(1) Civil Court Cases 466 (Allahabad)

Provision applies when neither party appears when suit is called for hearing – Thus dismissal of suit for non prosecution – Cannot be taken to be one under O.(.R.3 CPC. (State Bank of India Vs M/s Kumar Apparel Industries) AIR 2003 Bombay 128

Restoration of suit – Request for adjournment made on behalf of counsel for plaintiff – Held, when suit is at initial stage then there is absolutely no justification for Court to decline the request and refuse to adjourn the case. (Balbir Singh & Ors. Vs Smt.Jagir Kaur & Ors.) 2004(2) Civil Court Cases 47 (P&H)

Restoration of suit dismissed for non prosecution – Application filed on the next day – Notice is not required to be served on the defendant nor the defendant has any legal right to contest the application.  (Balbir Singh & Ors. Vs Smt.Jagir Kaur & Ors.) 2004(2) Civil Court Cases 47 (P&H)

Exparte decree – Setting aside – More than one defendant – Exparte decree set aside against them – Benefit will not enure to benefit of those who had not shown good cause for remaining absent. (M.Nanu Vs K.C.Joseph) AIR 2002 Kerala 349

Dismissal for default – Restoration – Delay – Condonation – Dismissal of application for condonation of delay – Revision against such order is not maintainable. (Chandu  & Anr. Vs Digambar & Ors.) 2004(3) Civil Court Cases 601 (Bombay)

Court fee – Non payment – Plaint rejected U.O.7.R.11 – Application U.O.9.R.4 is not maintainable – Decree passed U.O.7.R.11(c) is a decree u/s 2(2) of the Code, hence appealable. (Mohanan Vs Nalinakshan) 2003(3) Civil Court Cases 636 (Kerala) 

Dismissal in default – Restoration of suit – Illness – No doctor examined to prove illness – Medical certificate mark ‘A’ produced – Held, non examination of a doctor or Vaid to support assertion of illness alone is not a ground for rejecting the explanation – Counsel in whom petitioner has reposed trust had failed to appear on the date of hearing – Party cannot be made to suffer for the fault of his counsel – Suit ordered to be restored. (Kanshi Ram Vs Haryana State & Ors.) 2004(2) Civil Court Cases 362 (P&H)

Restoration of suit – Case fixed for filing written statement – Nothing was to be done by plaintiff – Court should not have dismissed the suit for non prosecution as it cannot be said that there was default in strict sense for non prosecution on the part of plaintiff – Suit restored.  (Prakash Chandra Vs Hari Prasad & Anr.) 2005(1) Civil Court Cases 516 (Rajasthan)

Restoration of suit – No necessity to frame issues and to take evidence when suit is dismissed in default in absence of both the parties – Matter should be decided on the basis of affidavits in the shortest possible time. (Sewa Singh Vs Harbans Singh) 2003(2) Civil Court Cases 561 (P&H) 

Restoration of suit – When both the parties are not present on the date fixed in the suit it may be due to some misunderstanding about the date of hearing – In such a situation, it is always in the interest of justice and fair procedure of law to restore the suit dismissed in default. (Sewa Singh Vs Harbans Singh) 2003(2) Civil Court Cases 561 (P&H) 

Restoration application – Dismissal – Plaintiff has two remedies – He can either file fresh suit U.O.9.R.5 or may apply for setting aside dismissal U.O.9.R.4 and S.141 CPC – Both these remedies are simultaneous and not exclude either of them. (Karni Dan Singh Vs Ram Chandra) AIR 2003 Rajasthan 98

Ex parte suit proceedings – Neither issues nor judgment on every issue is required – However trial Court to frame ‘points for determination’ and to decide points one by one – Merely because defendant is absent Court shall not admit evidence the admissibility whereof is excluded by law nor permit its decision being influenced by irrelevant or inadmissible evidence. (Ramesh Chand Ardawatiya Vs Anil Panjwani) 2003(1) Apex Court Judgments 595 (S.C.)

Exparte proceedings – Setting aside – No express order as to petitioner being proceeded ex parte except  that service is complete – Petitioner made an endorsement on the summons that name of his father is wrongly mentioned and that he has no connection with the case and that it is not his duty to receive notice – Held, in the facts and circumstances of the case mere non mentioning of the words ‘exparte’ in the order is not necessary as the petitioner expressly made it clear that he does not wish to contest the case – Error in the name of father of petitioner is also not significant as it is no body’s case that petitioner is a person other than party to the proceeding – Petition dismissed. (Sardar Singh Vs Krishan Lal Bharti) 2005(1) Civil Court Cases 421 (P&H)

Exparte order – Setting aside – Death of defendant during pendency of application – Plaintiff informing Court about death of defendant but did not apply to bring on record L.R’s – Order of trial Court that suit had abated – Appellate Court remanding case to trial Court – Trial Court allowing plaintiff’s application for bringing on record L.R’s of defendant – Appellate Court passing order that it was not obligatory on plaintiff to bring on record L.R’s of defendant for reason that defendant had not filed any written statement – Held, order of appellate Court that there is no necessity for plaintiff to bring on record L.R’s of deceased erroneous when plaintiff has himself moved application for impleading L.R’s – As application to implead L.R’s not filed within time as such suit held to have abated. (Dharam Singh & Ors. Vs Mukhtiar Singh & Anr.) 2004(3) Civil Court Cases 343 (Rajasthan)

Application U.O.9.R.7 is not maintainable at the stage when suit is pending for pronouncing the judgment. (Bhanu Kumar Jain Vs Archana Kumar & Anr.) 2005(1) Apex Court Judgments 121 (S.C.) : 2005(1) Civil Court Cases 725 (S.C.)

Exparte order – Setting aside – Evidence of plaintiff not closed at the time of filing of application – Application is maintainable and liable to be liberally allowed. (Ramhet & Ors. Vs Ajaypal Singh) 2003(2) Civil Court Cases 72 (M.P.) 

Exparte order – Setting aside – Sought at stage when arguments were yet to be heard and entire hearing was not completed – Application allowed – Not improper. (Lal Bahadur Vs IInd Addl.Munsif, Fatehpur) AIR 2002 Allahabad 360

Exparte proceedings – Setting aside – Wrong mentioning of name of father of petitioner in summons –  Not significant as it is no body’s case that petitioner is a person other than party to the proceeding. (Sardar Singh Vs Krishan Lal Bharti) 2005(1) Civil Court Cases 421 (P&H)

Party proceeded exparte can join and participate in proceedings at the stage at which it is pending without getting the exparte order set aside  and without obtaining the permission of the Court to take part in the proceedings – However, if he desires to be relegated to the stage at which he was proceeded exparte then he has to move an application and has to show good cause for his non appearance. (Moulasab Vs Mohammad Hasim) 2003(1) Civil Court Cases 627 (Karnataka)

Restoration of suit – Defendant sick on date fixed for hearing – Medical certificate produced – It is illegal on part of trial Court to hold application as not bona fide –  Application allowed on payment of Rs.1,000/- as costs. (Thakur Kan Singh Vs Thakur Devi Singh) 2004(2) Civil Court Cases 629 (Rajasthan)

Additional written statement – Can be allowed to a party who had already filed a written statement. (Savitha Gupta Vs Nagarathna) 2003(3) Civil Court Cases 172 (Karnatak)

Restoration of suit – Case fixed for framing of issues – Counsel pleading no instructions – Date fixed for framing of issues is not a date fixed for hearing of suit – O.9.R.8 CPC not applicable – Restoration application is one u/s 151 CPC – Period of limitation for filing application is three years under Article 137 Limitation Act. (Gulabo Vs Nagar Palika, Phalodi) 2003(1) Civil Court Cases 315 (Rajasthan) 

Dismissal in default – Restoration – Both the counsels noted wrong date – It is always in the interest of justice to decide quasi-judicial matters on merits – Technicalities ought not to be taken into account by the quasi judicial authorities like respondent No.1 who is to be guided by rules of natural justice – Petition ordered to be restored. (Chicha Coop. Agri. Service Soc. Ltd. Vs Additional Secretary) 2003(2) Civil Court Cases 390 (P&H) 

Mistake in noting date of case – After engaging an Advocate it is not the job of client to attend Court to take dates of the proceedings and convey them to his Advocate – In the trial Courts the party is expected to attend the Court as and when his presence is required in the proceedings and/or whenever the party is informed by his lawyer to remain present – It is the duty of Advocate engaged for conducting the cause on behalf of suitor to keep himself fully informed of the proceedings in the Court and be present when his case is called out. (Ashok Ravji Vadodriya Vs Municipal Corporation of Greater Bombay) 2003(3) Civil Court Cases 383 (Bombay) 

Restoration of suit dismissed for default – Mistake in noting date of case – It is not the duty of client to attend Court and convey the adjourned date to his advocate – Plaintiff cannot be made to suffer for fault of Advocate – Dismissal set aside. (Ashok Ravji Vadodriya Vs Municipal Corporation of Greater Bombay) 2003(3) Civil Court Cases 383 (Bombay) 

Restoration application – Time barred – Application for condonation of delay also filed – Condonation application is required to be decided first – Suit ordered to be restored without considering pendency of condonation application – Order of restoration is without jurisdiction – Order set aside directing disposal of condonation application first. (Bongaigaon Stores & Anr. Vs Moolchand Kucheria & Ors.) 2004(2) Civil Court Cases 369 (Gauhati)

Plaintiff appeared through Advocate – His Advocate however was not ready to go on with matter – In circumstances O.9.R.9 has no application as plaintiff has appeared in matter. (State Bank of India Vs M/s Kumar Apparel Industries) AIR 2003 Bombay 128

Restoration of suit – Application for restoration of suit on behalf of Bank filed by an officer different than the one who filed the suit – Held, successor in office can file application for restoration of suit. (M/s.Madanchand & Broders & Anr. Vs Bank of Baroda) 2005(2) Civil Court Cases 94 (Rajasthan)

Restoration of suit dismissed on basis of “No instruction” pleaded by counsel – Application can be filed when plaintiff comes to know of dismissal of suit – Application u/s 5 Limitation Act is not necessary in such case – Cause of plaintiff’s absence on date fixed explained in affidavit – Plaintiff not informed by Court of his counsel’s plea of no instruction – Counsel also not informing plaintiff of dismissal of suit – Suit ordered to be restored. (M/s.Aravali Stone Company Vs Urban Improvement Trust) 2003(3) Civil Court Cases 342 (Rajasthan) 

Same cause of action –  Includes cause of action on which plaintiff could have claimed the relief in the previous suit. (Smt.Parkash Kumari Vs Balwant Singh & Ors.) 2005(2) Civil Court Cases 299 (P&H)

Suit fixed for framing of issues – Non appearance of plaintiff – Suit not to be dismissed for default when case is fixed for framing of issue – When presence of party on a particular date is not required and Court can proceed with the suit even without assistance of party and his advocate, then it is always desirable that Court should not dismiss the suit. (M/s.Madanchand & Broders & Anr. Vs Bank of Baroda) 2005(2) Civil Court Cases 94 (Rajasthan)

Suit which is barred in terms of O.2.R.2 is also barred in terms of O.9.R.9 CPC. (Smt.Parkash Kumari Vs Balwant Singh & Ors.) 2005(2) Civil Court Cases 299 (P&H)

Restoration of suit – Notice to opposite party is mandatory – Suit restored without notice to the opposite party – Thereafter defendant proceeded exparte and exparte decree passed – Held, restoration of suit without notice to opposite party is illegal and contrary to O.9.R.9(2) CPC – Exparte decree set aside. (Manager, Personal Banking Division, State Bank of India, Madras Vs P.S.Maragatham) 2003(3) Civil Court Cases 693 (Madras) 

Restoration of suit – Notice of restoration application to opposite party is mandatory. (Manager, Personal Banking Division, State Bank of India, Madras Vs P.S.Maragatham) 2003(3) Civil Court Cases 693 (Madras) 

Suit fixed for framing of issues – Counsel for plaintiff appeared and stated that he was not ready to go on with the matter – Suit dismissed for non prosecution – Plaintiff not entitled to make application for restoration of suit U.O.9.R.9 or Rule 4 CPC. (State Bank of India Vs Kumar Apparel Industries) 2003(2) Civil Court Cases 660 (Bombay) 

Dismissal of suit in default – Subsequent suit on same cause of action is barred – Same cause of action includes a cause of action which could have been included but plaintiff omitted to do so – In other words, a suit which is barred in terms of O.2.R.2 CPC would also be barred in terms of O.9.R.9 CPC. (Smt.Parkash Kumari Vs Balwant Singh & Ors.) 2005(2) Civil Court Cases 299 (P&H)

Exparte decree – Appeal against – Dismissed as barred by limitation – Held, after disposal of appeal on any ground other than withdrawal of appeal, application U.O.9.R.13 CPC for setting aside exparte decree is not maintainable. (P.Kiran Kumar Vs A.S.Khadar & Ors.) 2003(1) Apex Court Judgments 100 (S.C.)

Exparte decree – Setting aside – Delay – Counsel assured party that he will take care of the case but he never informed the defendant about any date fixed in the trial Court – Defendant met with an accident and remained admitted in hospital and that he was on bed rest for about a period of six months – – Defendant however himself admitted in his evidence that his son was in touch with his counsel – Held, it is not a case of simple negligence on the part of the counsel of the defendant rather it is a case of gross negligence and total inaction on the part of the defendant himself – Conclusion of both Courts below that there was no explanation for delay – No interference with order rejecting application for setting aside exparte decree. (Ladu Ram Vs Smt.Gyatri Devi & Ors.) 2004(3) Civil Court Cases 631 (Rajasthan)

Joint application U.O.9.R.13 CPC 7 & S.5 Limitation Act can be filed – Separate application to condone delay is not required to be filed if grounds in both the applications are one and the same – Both the reliefs can be prayed in one petition U.O.9.R.13 CPC. (M.Narasimha Reddy & Ors Vs Begari Samuel) 2003(1) Civil Court Cases 169 (A.P.) 

Section 5 of the Limitation Act is applicable to an application filed U.O.9.R.13 CPC. (Dilip B.Joshi Vs Vidya Sahakari Bank Ltd.) 2004(3) Civil Court Cases 180 (Bombay)

Exparte decree – Subsequent suit for setting aside exparte decree – Separate suit is not maintainable – Grievance could be agitated before Executing Court or should resort to remedy U.O.9.R.13 CPC for setting aside exparte decree or to file an appeal against exparte decree – Order of trial Court in subsequent suit restraining plaintiff in earlier suit from executing exparte decree set aside. (Mohanlal  Vs Khandelwal Brothers Ltd.) 2003(1) Civil Court Cases 24 (Bombay)

Exparte decree – Remedy to file appeal in an ex parte decree is also available to an aggrieved party – It is not necessary, for an aggrieved party to first file an application U.O.9.R.13 CPC. (Gram Panchayat  Vs Ranjit Singh) 2005(2) Civil Court Cases 267 (P&H)

Ex parte decree – Setting aside – Fraud – To prove fraud it must be pleaded and proved – To prove fraud it must be proved that representation made was false to the knowledge of the party making such representation or that the party could have no reasonable belief that it was true – Level of proof in such cases is extremely higher – An ambiguous statement cannot per se make the representor guilty of fraud – To prove a case of fraud, it must be proved that the representation made was false to the knowledge of the party making such representation. (A.C.Ananthaswamy Vs Boraiah (dead) by LRs) 2004(2) Apex Court Judgments 719 (S.C.) : 2004(3) Civil Court Cases 624 (S.C.)

Exparte decree – Two options are available – One to file appeal and second to file application U.O.9.R.13 – If appeal is dismissed then application U.O.9.R.13 is not maintainable but not the vice versa – On dismissal of application U.O.9.R.13 remedy of appeal U.O.43.R.1 is available – In case of dismissal of such an appeal then in the first appeal same contention cannot be raised as regards the correctness or otherwise of the order proceeding ex parte – However, the decree can be assailed on the ground that material brought on record by plaintiff is not sufficient for passing a decree in his favour or the suit was otherwise not maintainable – Lack of jurisdiction of the Court can also be a possible plea in such an appeal. (Bhanu Kumar Jain Vs Archana Kumar & Anr.) 2005(1) Apex Court Judgments 121 (S.C.) : 2005(1) Civil Court Cases 725 (S.C.) : 2005(1) Civil Court Cases 725 (S.C.)

‘Prevented by any sufficient cause from appearing’ – To be liberally construed to do complete justice between the parties. (Baldev Singh Vs Labh Singh) 2003(3) Civil Court Cases 58 (P&H) 

“No instructions” – If counsel has not informed about no instructions and there is no notice to the party about “no instruction” then the entire proceedings will become illegal. (Jayalakshmi Vs Avara) 2003(3) Civil Court Cases 284 (Kerala) 

Exparte decree – Application to set aside – Dismissed – Appeal against ex parte decree thereafter is maintainable. (Khurshed Banoo Vs Vasant Malikarjun Manthalkar) AIR 2003 Bombay 52

Exparte decree – For sustaining exparte decree it is incumbent upon the successful party to show the presence of adequate evidence to sustain the findings – Merely because one of the party is absent would not ipso facto lead to the conclusion that evidence adduced by successful party supports his case – Mere fact that plaintiff had chosen to adduce some evidence cannot by itself entitle him to an ex parte decree – Decree has to be passed on the basis of reliable evidence – Duty is cast upon Court to ensure that in exparte cases decree is based on cogent and reliable evidence. (Gram Panchayat  Vs Ranjit Singh) 2005(2) Civil Court Cases 267 (P&H)

Exparte decree – Setting aside – ‘Sufficient cause’ – Has to be construed liberally – Sufficiency of grounds has to be examined – Expression ‘sufficient cause’ and ‘upon such terms as to costs’ and ‘otherwise as it thinks fit’ gives considerable amount of latitude to the court when defendant comes to court for setting aside ex parte decree. (Thomas P.Abraham  Vs Aleyamma Abraham) 2004(2) Civil Court Cases 86 (Kerala)

Exparte decree – Setting aside – “No instructions” reported by Advocate without prior intimation to the party – No reliable material placed before Court in support of the said plea – Advocate not made a party to the application filed to set aside the ex parte decree – His affidavit not even filed – Such a conduct of an Advocate, if true, amounts to violation of rules of conduct framed by Bar Council of India – No complaint made against him – Held, in the absence of any positive proof, no presumption can be drawn about the conduct of Advocate – Exparte decree cannot be set aside on such a ground not established. (M.Sidda Reddy & Ors. Vs Lakshmamma & Anr.) 2003(2) Civil Court Cases 270 (A.P) 

Exparte decree – Setting aside – Appellants appearing before Executing Court on 20.1.1996 and application to set aside ex parte decree filed on 12.2.1996 – Appellants not disclosing on what information they so appeared – Appellants having knowledge of ex parte decree at least by 29.11.1995 – Application dismissed – Order upheld. (Harkori Vs Tehal Singh) 2003(2) Civil Court Cases 535 (Rajasthan) 

Exparte decree – Setting aside – Applicant filed revision against decree which was pending before Revisional Court – Held, merely filing of or pendency of revision does not take away jurisdiction of trial Court to entertain and dispose of application – When applicant was proceeded exparte without due service of notice, dismissal of his application for setting aside decree is unsustainable in law. (Ashok Motors, Bangalore Vs H.Ibrahim) 2004(2) Civil Court Cases 596 (Karnataka)

Exparte decree – Setting aside – Costs – Suit amount more than Rs.23 lakhs – Considering the quantum of suit claim, ex parte decree set aside subject to payment of Rs.10,000/- as costs – Held, it is not the quantum of the suit claim that is to be considered but the question to be considered is whether there was any wilful default of the party in not appearing when the case was taken up for hearing – Petition filed on the same day when defendant was proceeded ex parte  – Cost reduced from Rs.10,000 to Rs.2,000/-. (Aiswarya Cashew Co. Vs Krimpexx Overseas (P) Ltd.) 2005(1) Civil Court Cases 500 (Kerala)

Exparte decree – Setting aside – Counsel pleaded “No instructions”  without informing the defendant – If there was non-cooperation on behalf of the party counsel ought to have given them registered notice before pleading no instructions –  Parties not afforded an opportunity for leading their evidence with regard to sufficiency of grounds for non appearing in the Court on the date fixed in the suit – Matter remitted to trial Court for deciding it afresh after affording an opportunity to the parties to lead their evidence. (Pooranmal & Ors. Vs Ashok Kumar & Ors.) 2004(2) Civil Court Cases 477 (Rajasthan)

Exparte decree – Setting aside – Court can impose conditions which may include direction to deposit costs or the decretal amount or any portion thereof – However, such conditions should be reasonable and not harshly excessive – In the instant case condition imposed was to deposit 75% of decretal amount and costs which is about two lakhs – Held, condition imposed is onerous and harsh – Order modified directing deposit of only a sum of one lakh besides decretal costs and exemplary costs imposed by Court below. (Vakati Prabhakar Reddy Vs Tenali Mohan Rao) 2003(2) Civil Court Cases 316 (A.P.) 

Exparte decree – Setting aside – Decree of maintenance – Claim of maintenance meagre and moderate and was granted long before – Husband not providing any maintenance to wife for a long period – Ends of justice do not tilt in favour of husband so as to interfere with the ex parte decree of maintenance with the aid of O.9.R.13 CPC. (Kunjabihari Pradhan Vs Jayanti Pradhan) 2003(3) Civil Court Cases 129 (Orissa) 

Exparte decree – Setting aside – Exparte decree can be set aside when summons are not duly served or that defendant was prevented by sufficient cause for not appearing when the suit was called for hearing – Exparte decree cannot be set aside merely on the ground that there had been an irregularity in service of summons and if Court is satisfied that defendant had notice of the date of hearing and had sufficient time to appear and answer the claim. (Avutu Vijayalakshmi & Anr. Vs M/s.Sri Pujitha Chit Fund, Vijayawada) 2005(1) Civil Court Cases 334 (A.P.)

Exparte decree – Setting aside – Exparte decree set aside as (a) Process server not examined; (b) Non furnishing of copy of plaint with summons; (c) Non filing of affidavit by plaintiff in support of reply filed to the application U.O.9.R.13 CPC – Order upheld. (Baldev Singh Vs Labh Singh) 2003(3) Civil Court Cases 58 (P&H) 

Exparte decree – Setting aside – Fraud – Non service of summons does not constitute fraud or misrepresentation. (A.C.Ananthaswamy Vs Boraiah (dead) by LRs) 2004(2) Apex Court Judgments 719 (S.C.) : 2004(3) Civil Court Cases 624 (S.C.)

Exparte decree – Setting aside – Imposing conditions – Past conduct of defendant considered – Condition imposed to deposit entire cost of suit – Condition cannot be said to be onerous or without jurisdiction. (Bathini Sambaiah Vs Juluru Narayan) 2003(1) Civil Court Cases 605 (A.P) 

Exparte decree – Setting aside – Irregularity in service of summons – Exparte decree cannot be set aside merely on the ground that there has been irregularity in service of summons if it is satisfied that defendant had knowledge of date of hearing and had sufficient time to appear and answer the plaintiffs claim. (Trinatha @ Trilochan Behera Vs Mirza Sabir Beg & Ors.) 2005(2) Civil Court Cases 180 (Orissa)

Exparte decree – Setting aside – More than one defendants – Application filed by only one defendant – Exparte decree can be set aside against other defendants also if decree is of such a nature that it cannot be set aside only against the defendant who made the application – Exparte decree set aside against only that defendant who filed application as relief claimed against him is different from the relief claimed against other defendants. (Palakurthy Vs Noroju Manorama) 2003(2) Civil Court Cases 480 (A.P.) 

Exparte decree – Setting aside – Noting wrong date of case – Evidence to this effect remained unshaken during cross examination – Such plea accepted and the same affirmed by appellate Court – High Court cannot interfere with the same in revisional jurisdiction. (Bramhananda Mishra Vs Jogne Kumar Mishra) AIR 2004 Orissa 87

Exparte decree – Setting aside – One of the grounds that first appellant who was looking after the suit fell sick and therefore could not attend on the day fixed in the case – Material to prove sickness not produced – Plea belied by the facts that it is the third appellant (son of first appellant) who has filed the affidavit in petition to set aside ex parte decree – Third appellant not gave any reason for his absence on the relevant date – Dismissal of petition by trial Court – Not liable to interference. (M.Sidda Reddy & Ors. Vs Lakshmamma & Anr.) 2003(2) Civil Court Cases 270 (A.P) 

Exparte decree – Setting aside – Practice of advocate filing his affidavit for setting aside ex parte decree – Totally wrong and illegal. (Pasupuleti Subba Rao Vs Nandavarapu Anjaneyulu) AIR 2003 A.P. 445

Exparte decree – Setting aside – Relevant date for consideration of absence of defendant is the date when he was proceeded exparte – Contention that defendant failed to appear on subsequent dates does not merit acceptance. (Baldev Singh Vs Labh Singh) 2003(3) Civil Court Cases 58 (P&H) 

Exparte decree – Setting aside – Service of summons – Plea that defendant was not properly served and that he came to know about the exparte decree only when bailiff came to deliver possession of shop – Person present at that time not examined as witnesses to corroborate version of defendant – Defendant failed to explain delay in filing application U.O.9.R.13 CPC – Application dismissed. (Pawan Kumar Vs Harinder Singh & Ors.) 2004(3) Civil Court Cases 637 (P&H)

Exparte decree – Setting aside – Service through Munadi – Petitioner absent despite service through Munadi and hence proceeded ex parte – Brother of petitioner filed an appeal against judgment and decree – It is difficult to believe that petitioner had no knowledge of the litigation against him – This shows that petitioner had not come to Court with clean hands. (Nimmo Devi & Anr. Vs Manni Devi & Ors.) 2004(2) Civil Court Cases 625 (P&H)

Exparte decree – Setting aside – Where Court is satisfied that there was no service of summons and that party was not aware of suit proceedings and decree passed therein, it is open to Court to set aside ex parte decree. (Nagamma Vs Gurupadappa (Deceased) By L.Rs.) 2003(1) Civil Court Cases 133 (Karnataka) 

Exparte decree – Setting aside – Written statement not filed inspite of repeated adjournments – Costs also imposed but not paid – Defendant not present and hence proceeded exparte – Application to set aside ex parte decree dismissed – Appeal against – Written statement not filed with appeal and defendant even not ready with written statement and seeking further time – Defendant is in the habit of procrastinating and dodging the matter – Defendant even misrepresented facts in appeal and obtained stay of execution – Defendant not approached with clean hands – Defendant by his act and conduct does not deserve any indulgence – Order dismissing application, upheld. (Avutu Vijayalakshmi & Anr. Vs M/s.Sri Pujitha Chit Fund, Vijayawada) 2005(1) Civil Court Cases 334 (A.P.)

Limitation Act, 1963, Art.123 – Exparte decree – Setting aside – Limitation – 30 days from date of knowledge – Application filed on the next date of acquiring knowledge of exparte decree – Not effectively controverted by plaintiff by filing an affidavit in support of their reply – Application has to be treated within limitation. (Baldev Singh Vs Labh Singh) 2003(3) Civil Court Cases 58 (P&H) 

Lis pendens transferee – Not brought on record – Has right to file application to set aside exparte decree passed against his transferor, the defendant in the suit. (Raj Kumar Vs Sardari Lal & Ors.) 2004(1) Apex Court Judgments 438 (S.C.)

Pendency of an application U.O.9.R.13 CPC ipso facto does not render judgment and decree ineffective or non-operative. (Kunjabihari Pradhan Vs Jayanti Pradhan) 2003(3) Civil Court Cases 129 (Orissa) 

Exparte decree – Setting aside – Application is not maintainable when an appeal against ex parte decree is dismissed may be on ground of limitation or dismissal for default – By virtue of explanation disposal of appeal on any ground whatever, apart from its withdrawal, constitutes sufficient reason for bringing the ban into operation. (Shyam Sundar Sarma Vs Pannalal Jaiswal & Ors.) 2005(1) Apex Court Judgments 01 (S.C.) : 2005(1) Civil Court Cases 202 (S.C.)

Exparte decree – Setting aside – Application to set aside exparte decree or appeal against ex parte decree to superior Court can be filed – Application to set aside ex parte decree is maintainable only if appeal against ex parte decree is not opted or where an appeal had been preferred the same has been withdrawn. (Vijay Kumar Vs Tara Chand) 2003(2) Civil Court Cases 452 (P&H) 

Suit for partition – Both Courts below misunderstood real point for determination and dismissed suit without considering admission made by defendant U.O.10.R.2 that there was partition between parties earlier – Dismissal of suit is liable to be set aside being based on inadmissible evidence. (Rasheed Ahmed Vs Karima Khatoon) AIR 2002 Allahabad 195

Discovery of documents – Court may issue direction under R.12 to any party to suit to make discovery on oath of documents which are or have been in his possession or power – If such discovery is found to be unnecessary, then such a prayer can be declined on the ground that it is not necessary for disposing of the suit. (Sharvan Kumar Vs Sumeet Kumar Garg) 2003(1) Civil Court Cases 456 (P&H) 

Production of documents – Production of orders, directions passed by Minister and by officials of defendant – Notings by various officials at various stages and even orders or directions passed by Minister or Secretary is irrelevant until and unless communicated to the party – Defendant cannot be asked to produce the entire file with all such notings and drafts for approval or suggestions of various functionaries – Application for production of such notings is highly misconceived – Application dismissed. (Bigdot Advertising & Communications Pvt. Ltd. Vs Union Of India) 2003(2) Civil Court Cases 672 (Delhi) 

Matter in question – Documents containing information, directly or indirectly, enabling a party to advance his own case or to damage his opponent’s are documents which relate to the matter in question in the suit – Even document which will throw any light on the case is a document relating to a matter in dispute though it might not be admissible in evidence. (New India Assurance Company Ltd. Vs Sumer Chand & Ors.) 2005(2) Civil Court Cases 183 (Rajasthan)

Production of documents –  Can be allowed to be produced at any time (stage) during the pendency of suit if the document is in possession or power of the party against whom the order is made and secondly the documents must relate to the matter in question in the suit. (New India Assurance Company Ltd. Vs Sumer Chand & Ors.) 2005(2) Civil Court Cases 183 (Rajasthan)

Production of documents – Order has to be speaking one – Order passed without assigning any reasons on mere ground that counsel for opposite party refused to address arguments when opposite party had contested application by filing reply – Is invalid. (Madhavulu Vs Boya Eshwaraiah) AIR 2004 A.P. 164

Production of documents – Request is never declined if documents relate to any fact in issue or relevant facts – Refusal can only be in regard to privileged documents. (Sharvan Kumar Vs Sumeet Kumar Garg) 2003(1) Civil Court Cases 456 (P&H) 

Non compliance with order of discovery of document – Dismissal of suit or striking off defence can only be in case of wilful defiance of order – It is not wilful defiance of order when document ordered to be discovered is not traceable. (Ramesh Chandra Vs Sarpnach, Bagri Nagar) 2003(1) Civil Court Cases 113 (Rajasthan) 

Admission – Decree on basis of admission – Admission of fact, as contained in any document even outside the pleadings,  must be clear and must be of such a nature that if it stands then it would be impossible for the party making admission to succeed in the case. (Anup Jindal Vs Jagdish Chander Gupta) 2003(2) Civil Court Cases 465 (Delhi) 

Admission – Decree on basis of admission – If there was no fraud in passing the decree, then said decree is good and valid and cannot be ignored on the ground that the same is not registered. (2002(2) PLR 512 (S.C.) followed.) (Hari Singh Vs Gurcharan Singh) 2003(3) Civil Court Cases 183 (P&H)

Admission – Judgment – Tenant admitting creation of lease by plaintiff and that lease had expired by efflux of time – Tenant however raising plea that unless plaintiff, one of the co-owners proves himself to be owner of premises suit is not maintainable – Plea not tenable – Such plea is available in suits for title when there is dispute as to title and not in suit for recovery of possession against tenant – Plaintiff entitled to decree for possession on admission of tenant. (Zulfiquar Ali Khan Vs J.K.Helene) AIR 2002 Delhi 425

Admission – If there is an admission on behalf of the defendant or an admission can be inferred from the facts and circumstances of the case without any dispute then in order to expedite and dispose of the matter such admission can be acted upon. (Charanjit Lal Mehra & Ors. Vs Smt.Kamal Saroj Mahajan & Anr.) 2005(1) Apex Court Judgments 622 (S.C.)

Conviction on basis of acceptance of charge of guilt as to breach of trust in criminal proceedings – It will be regarded as an admission U.O.12.R.6 CPC and a decree can be based on such an admission. (Pransukhlal Mafatlal Hindu Swimming Boat Club Trust & Ors. Vs Vasant Joshi & Ors.) 2005(1) Civil Court Cases 384 (Bombay)

Judgment on admission – Admission should be unconditional, unequivocal and unambiguous – In the instant case one part of admission was unconditional and there was no controversy on the part of the opposite party – Held, power can be exercised U.O.12.R.6 qua that part – However, the other part which is disputed cannot be made subject to exercise of this power. (Meera Gupta Vs Dinesh Chand) 2003(1) Civil Court Cases 43 (Delhi) 

Judgment on admission – Provision can be invoked at any stage of the suit – Mere fact that issues have been framed is not a ground to reject application U.O.12.R.6 CPC. (Meera Gupta Vs Dinesh Chand) 2003(1) Civil Court Cases 43 (Delhi) 

Plaintiff discounted bills of defendant – Two post dated cheques issued but dishonoured – On repeated requests defendant made part payment – Two letters written by defendant showing clear admission about its undischarged liability – Liability was thus admitted by defendant in said letters – Plaintiff is entitled to judgment on admission against defendant. (UIC Finance Pvt. Ltd. Vs Carews Pharmaceuticals Pvt.Ltd.) AIR 2004 Calcutta 68

To attract the provision there must be categorical admission by the defendant – When number of facts are disputed  and evidence is required to prove those fact then provision  of  O.12.R.6 CPC  is  not  attracted. (Sudesh Kumar Vasudeva Vs Mrs.Veena Garg) 2004(3) Civil Court Cases 311 (P&H)

Application for producing documents – Objection by other party regrading admissibly of document being forged – Order admitting documents cannot be passed without deciding issue by reasoned order. (Chander Shekhar Vs Roop Shanker) AIR 2003 Rajasthan 102

Document – Relating to the year 1992 whereas suit filed in 1995 – No question of ignorance of document – Three witnesses already examined – No satisfactory explanation for inordinate delay – Held, there is no material irregularity in rejection of application. (Mohan Raj Vs Karan Chand) 2003(1) Civil Court Cases 103 (Rajasthan) 

Documents – Late production – Application for late production of documents filed after 15 years of settlement of issues – Documents in power and possession and knowledge of applicant – Documents neither relied upon nor produced at appropriate stage – Production sought on pretext of clarification of points crept in during cross-examination – No reasons shown for non production at appropriate stage – Production of documents not allowed. (Hardyal Singh Vs Smt.Kamlinder Kaur) 2003(1) Civil Court Cases 647 (Delhi) 

Documents – Late production – No satisfactory explanation of inordinate delay – Court must refuse to admit the document on record. (Mohan Raj Vs Karan Chand) 2003(1) Civil Court Cases 103 (Rajasthan) 

Documents – Production at a subsequent stage of proceedings – Cannot be permitted unless good cause is shown – Good cause requires a lower degree of proof as compared to sufficient cause – Said rule not to be construed liberally – Dismissal of application cannot be interfered with in revision even if order is erroneous unless Court acted with material irregularity and unless it results in failure of justice. (Palakurthy Vs Noroju Manorama) 2003(2) Civil Court Cases 480 (A.P.)

Mode of proof – Objection as to – Falls within procedural law – Objection if not taken before the document is marked as an exhibit and admitted to record then the same is considered to be waived. (Smt.Dayamathi Bai Vs Sri K.M.Shaffi) 2004(2) Apex Court Judgments 245 (S.C.) : 2005(1) Civil Court Cases 108 (S.C.)

Unregistered partition deed – Proper course for Court is to mark such document subject to objections and decision at final hearing whether such document can be looked into for collateral purposes. (Sri K.Anajneya Setty Vs Sri K.H.Rangiah Setty) AIR 2002 Karnataka 387

Marking of a document as exhibit – Cannot be held to be its due proof – Its execution has to be proved by admissible evidence – Situation is however different where the documents are produced, and they are admitted by opposite party, signatures on them are also admitted and they are marked thereafter as exhibits by the Court. (Narbada Devi Gupta Vs Birendra Kumar Jaiswal) 2004(1) Apex Court Judgments 171 (S.C.) : 2004(2) Civil Court Cases 337 (S.C.)

Document – Admissibility – Unstamped and unregistered mortgage deed – Trial Court to decide objection as to its admissibility before proceeding further. (LRs of Late Shri Chittar Mal Vs Addl.Civil Judge (SD) & Ors.) 2004(2) Civil Court Cases 565 (Rajasthan)

Document – Marking – Objection on ground of non registration – Except in case of objection relating to deficiency of stamp duty, document can be marked in evidence subject to its decision in the final judgment – Appellate Court can decide the correctness of the said finding, if raised, without remanding the matter for fresh disposal. (Mulla Alamsabgari Dastigiri Vs B.Pullamma & Ors.) 2005(1) Civil Court Cases 126 (A.P.)

Document exhibited in terms of rule 4 – Cannot be rejected thereafter under Order 13 Rule 6 CPC. (Saifuddin Saheblal Vazir Vs Habjabai Mishra Patel) AIR 2003 Bombay 36

Document exhibited without objection to its admissibility at the time when it was tendered in evidence – Held, no objection to the admissibility of the document can be raised lateron. (Sunehri Devi  Vs Lachhmi) 2004(3) Civil Court Cases 45 (P&H)

Document marked as exhibits subject to decision of objections later on – Does not mean that objection has been overruled – It means that objection has been postponed and Court would be bound to decide same at subsequent stage before suit is finally disposed of. (Santosh Kumar Gupta Vs Jay Prakash Agrawal) AIR 2004 Chattisgarh 11

Documents – Not properly endorsed – Admission of document as exhibits improper – However, keeping in view that documents were admitted and acted upon by both sides the same allowed to be relied upon. (Raman Pillai Krishna Pillai Vs Kumaran Parameswaran) AIR 2002 Kerala 133

Lease deed – Admissibility – Document whether lease or merely receipt acknowledging rent in advance – Court to decide the same when document is sought to be tendered in evidence by the party after entering into the witness box. (Saifuddin Saheblal Vazir Vs Smt.Habjabai Mishra Patel) 2003(1) Civil Court Cases 521 (Bombay)  

Proof of document – Exhibiting a document is an administrative act – It has nothing to do with proof. (Bama Kathari Patil Vs Rohidas Arjun Madhavi & Anr.) 2004(3) Civil Court Cases 14 (Bombay)

Document admitted and exhibited in terms of R.4 – Cannot be rejected thereafter under O.13.R.6 CPC. (Saifuddin Saheblal Vazir Vs Smt.Habjabai Mishra Patel) 2003(1) Civil Court Cases 521 (Bombay)  

Exhibit in evidence – A document can be exhibited in evidence only when such a document is admissible in evidence and not otherwise. (Saifuddin Saheblal Vazir Vs Smt.Habjabai Mishra Patel) 2003(1) Civil Court Cases 521 (Bombay)  

Return of documents – Documents sought to be returned were certified copies of original from record of file – Cannot be returned as only original document filed can be returned after its certified copies delivered to proper officer for being substituted for original. (Des Raj Vs Raghunath Singh) AIR 2004 J&K 64

Admissibility of a document – Can be classified into two classes (1) Document when in itself is inadmissible in evidence (2) Mode of proof – In the first case if a document is exhibited, an objection to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision – In the second case objection should be taken before evidence is tendered and once the document is admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit.  (R.V.E.Venkatachala Gounder Vs Arulmigu Viswesaraswami & V.P.Temple & Ors.) 2004(2) Civil Court Cases 01 (S.C.) : 2003(2) Apex Court Judgments 614 (S.C.)

Issues – Non framing of – Both parties aware of the principal question involved in the suit and had invited findings relating to same – Parties conscious of controversy – Plea of non framing of issue raised at stage of second appeal – Not tenable. (Samdani Begum Vs Dir Mohammed Khan) AIR 2004 A.P. 272

Issues of res judicata, constructive res judicata and maintainability of suit – Can be treated as preliminary issues – Such issues, in fact, when facts are admitted, ordinarily should be decided as preliminary issues. (Abdul Rahman Vs Prasony Bai & Anr.) 2003(1) Apex Court Judgments 302 (S.C.)

Parties leading evidence though issue not framed on a specific plea – Court can decide the said plea if both parties have led evidence thereon. (Pradeep Kumar Vs Mahaveer Pershad) 2003(2) Civil Court Cases 586 (A.P.) 

Preliminary issue – Issue as to Court fee not framed even when there was a specific plea in the written statement – Issues framed in presence of the parties – Application filed for treating non existent issue of Court fee as preliminary issue – To say that it is duty of Court to frame issues lacks complete merit – Application dismissed. (Raghbir Singh Vs Smt.Bhateri & Ors.) 2004(3) Civil Court Cases 22 (P&H)

Issues – Once the parties go to trial being alive to the controversy between them even then, in the absence of a specific issue having been framed, the court is not precluded from recording a finding of fact on that controversy provided that the parties have pleaded the case and have led their evidence. (Tika Vs Ram Chander) 2003(3) Civil Court Cases 691 (P&H) 

Court is not under an obligation to decide an issue which is not pressed. (Mahabir Vs Sadhu Ram & Anr.) 2005(2) Civil Court Cases 157 (P&H)

Preliminary issue – Bar of limitation – Refusal to try issue as preliminary issue – No interference when the issue is a mixed issue of law and fact. (Sidh Nath Vs District Judge, Mirzapur) AIR 2002 Allahabad 356

Preliminary issue – Decision on basis of preliminary issue can be made when issue relates to either jurisdiction of Court or bar to suit created by law – Disposal of suit after deciding issues which could not have been treated as preliminary issue and which involved mixed questions of facts and law – Not proper. (J&K Bank Ltd. Vs Mohammad Farooq Rather) AIR 2003 J&K 25

Preliminary issue – Issue as to limitation, maintainability, Court-fee and res judicata – Treated as preliminary issue and case fixed for evidence – Held, order does not suffer any from infirmity. (Jagdev Singh Vs Sardarni Prem Parkash Kaur) AIR 2002 P&H 330

Unregistered firm – Suit for accounts of dissolved firm – Suit whether barred by S.69(1) of Partnership Act – Issue as to – Treated as preliminary issue being a pure question of law – Trial Court rightly exercised jurisdiction to decide the said issue as preliminary issue. (Shoib Ullah Vs Bhartesh Chandra Jain) 2003(2) Civil Court Cases 645 (Allahabad) 

Court fee – Issue as to – Preliminary issue – Application rejected – Ground that same is not necessary for adjudication of suit – Held, approach of trial Court is perverse and contrary to well settled law of treating issue of Court fee as preliminary. (M/s Laxmi Cotton Co. Vs Sri Mahant Cotton Co.) 2003(3) Civil Court Cases 152 (Karnataka) 

Issues – Limitation – Issue as to bar of limitation can be treated as preliminary issue only in cases where it can be disposed of as an issue of law and not otherwise. (Shraddha Associates, Pune Vs St.Patrick’s) 2003(2) Civil Court Cases 627 (Bombay) 

Limitation – Question of limitation is a mixed question of law and fact – To be decided on basis of evidence to be led by the parties. (Jagdish Vs Jagat Pal) 2003(2) Civil Court Cases 635 (P&H) 

Preliminary issue – Can be allowed if claimed at the time of filing of written statement or before the settlement of issues – After framing of issues and recording evidence of parties, preliminary issue cannot be claimed. (Punjab Digital Industries System Limited, Mohali Vs Presiding Officer, Labour Court, Patiala) 2004(2) Civil Court Cases 453 (P&H)

Undervaluation of suit and payment of deficient Court fee – Issue to be treated as preliminary issue. (Smt.Kamla & Anr. Vs Shri Ramesh Chandra) 2003(1) Civil Court Cases 58 (Rajasthan)  

Additional issue – Framing of – Suit for recovery of possession from tenant – Plea of tenant that he was a licensee and not tenant – ssue framed was “whether defendant was Tenant” – In the interest of justice plea of licensee included and issue amended as “whether defendant was tenant or licensee.”. (Yatendra Nath Gupta Vs Jagdish Chander Sharma) AIR 2003 Delhi 267

Additional issue – Application cannot be rejected on ground of delay and without considering it on merits. (Anneppa Channappa Shetkar Vs Bandevva) AIR 2004 Karnataka 276

Additional issues – Revision against order refusing to frame additional issues –  Framing of issues and additional issues is a matter or an essential step as the whole trial, recording of evidence and also recording of findings depends upon issues  only and hence such order refusing to frame issues or additional issues falls under “case decided” and hence revision is maintainable. (Dr.S.V.S.Ravi Krishna Vs K.Sita Ramaiah & Anr.) 2003(3) Civil Court Cases 431 (A.P.) 

Additional issues – When issue framed is comprehensive and all additional issues which are ancillary issues the same need not to be separately framed. (Dr.S.V.S.Ravi Krishna Vs K.Sita Ramaiah & Anr.) 2003(3) Civil Court Cases 431 (A.P.) 

Issue of tile in a suit for injunction – Defendant asserted in written statement that he has perfected his title by adverse possession – When a specific averment as to adverse possession is made in written statement issue as to title cannot be ignored – However it is for the Court to record a finding as to whether the said issue of adverse possession was an incidental issue or substantial issue basing on the evidence on record. (Venkata Subbamma Vs Praneshachari & Anr.) 2004(2) Civil Court Cases 614 (A.P.)

Issues – Framing, re-framing or re-casting of issues – Exercise of power by Court is not subject to pre-hearing of the parties – Consequent to such reframing or recasting or striking of the issues, parties are not precluded from approaching the Court if there is any error on the part of the Court. (Shraddha Associates, Pune Vs St.Patrick’s) 2003(2) Civil Court Cases 627 (Bombay) 

Striking out an issue – Court is competent to strike out an issue that appears to be wrongly framed – It is the duty of the Court to ensure that proper issues are framed and no estoppel arises even if the issues have been framed in the presence of the parties. (Jasso Vs Harbans Singh) 2003(1) Civil Court Cases 126 (P&H) 

 ‘First hearing’- Means the day on which Court applies its mind to the case which ordinarily would be when either issues are determined or evidence taken. (M/s Mangat Singh Trilochan Singh & Ors. Vs Satpal) 2004(2) Civil Court Cases 141 (S.C.)

Delay in deposit of rent – Trial Court not striking off defence exercising its discretion – High Court not justified to interfere in revision. (M/s Mangat Singh Trilochan Singh & Ors. Vs Satpal) 2004(2) Civil Court Cases 141 (S.C.)

Arrears of rent – Failure to deposit admitted rent – Striking off defence – It is not obligatory for Court in every case to strike off defence only because there is delay in deposit of arrears of rent – Court has discretion in the matter and the power to strike off defence is to be exercised with due regard to the facts and circumstances of each case. (M/s.Mangat Singh Trilochan Singh Thr. Mangat Singh (dead) Thr. LRs. & Ors. Vs Satpal) 2003(2) Apex Court Judgments 464 (S.C.)

Arrears of rent – Failure to deposit admitted rent – Striking off defence – Summons stated only a date of appearance and not date of hearing – Trial Court refused to strike off defence for more than one valid reason – High Court in revision struck off the defence – Held, High Court has no justifiable  reason to strike off defence when trial Court had exercised its jurisdiction in accordance with law in refusing to strike off the defence of tenant. (M/s.Mangat Singh Trilochan Singh Thr. Mangat Singh (dead) Thr. LRs. & Ors. Vs Satpal) 2003(2) Apex Court Judgments 464 (S.C.)

Rent – Deposit – Delay – It is not obligatory to strike off defence – Court has discretion in the matter and power to strike off defence is to be exercised with due regard to the facts and circumstances of each case. (M/s Mangat Singh Trilochan Singh & Ors. Vs Satpal) 2004(2) Civil Court Cases 141 (S.C.)

Witnesses – Summoning – At the stage when case was fixed for final arguments defendant sought summoning of a witness not named in list – Rejection of application is justified. (Shantilal Vs Mahendra Kumar & Ors.) 2003 (2) Civil Court Cases 706 (Raj.)

Summoning of witnesses –  Application rejected on ground that liberty had been given to petitioner to produce his witnesses, which he failed to produce despite opportunity – Witness a doctor, not willing to appear without summons – Duty of Court is to summon such witness – Impugned order set aside. (LIC of India & Ors. Vs Ram Prakash) 2003(2) Civil Court Cases 220 (Rajasthan) 

List of witnesses – Failure of party to file list of witnesses within 15 days of settlement of issues – Such party can make an application under sub-rule (3) of Rule 1 for permission of the Court to summon any witness and examine him in support of his case. (Rehman Hussain Vs Althaf Hussain) 2004(2) Civil Court Cases 197 (Karnataka)

Document – Summoning of – Every application not to be allowed automatically – Court to allow summoning of a document only on considering the bona fides of the application. (Sunder Vs Mohd. Ismail & Anr.) 2004(3) Civil Court Cases 633 (A.P.)

Production of document by person present in Court – Dispute regarding execution of partnership between parties – Petitioner seeking permission to file ‘partnership deed’ by getting it summoned from State Financial Corporation through its officer – Rejection of permission to adduce evidence of said witness – Not proper – Moreso when said witness was present before Court on date evidence was to be recorded. (Ramesh Chand Vs Shriram) AIR 2002 Rajasthan 65

Witness – Failure to attend despite service of summons – A single absence in spite of service need not necessarily lead to an inference that the witness has failed to attend without lawful excuse – There is no bar to issue summons to the witness for the second time. (Dilawarkhan Ahmedkhan Vs Manbee Ahmed Khan) 2003(2) Civil Court Cases 449 (Bombay) 

Witness – Defendant as plaintiff’s witness – Can be allowed – Partition suit – Plaintiff confident that evidence of defendant would be clinching on vital issues of partition – Application rejected on ground of physical condition of defendant and condemnability of practice in calling adverse party as witness – Improper – If physical incapability of defendant continues trial Court shall appoint doctor who will accompany commissioner and then evidence of defendant be recorded. (Braja Mohan Patra Vs Ananta Charan Patra & Ors.) 2004(2) Civil Court Cases 382 (Orissa)

Adjournment – Not to be granted more than three times during hearings of suit – Even these three adjournments cannot be claimed as of right as adjournment is in the discretion of the Court and cannot be claimed as of right. (Chandra Prakash Ojha Vs District Judge, Bareilly & Ors.) 2004(3) Civil Court Cases 367 (Allahabad)

Adjournments – Court have to implement and give effect t the amended provisions and should not grant adjournment in violation of said statutory provisions. (Laxman Das Vs Deoji Mal) 2003(2) Civil Court Cases 212 (Rajasthan) 

Suit adjourned for next date for decision on one of issues – Plaintiff remaining absent – Dismissal of suit – Is in exercise of power U.O.17.R.2 and not under O.17.R.3 as no notice of final disposal was issued to plaintiff – Application for restoration is maintainable. (Makhan Singh Vs XIth ADJ) AIR 2004 Allahabad 136

Order of Court “No representation for the defendants hence suit decreed with costs…” –  This is an exparte adjudication and not a decision on merits – There is no indication as to what evidence was evaluated and/or whether the merits were tested – Application U.O.9.R.13 CPC allowed – Order upheld. (B.Janakiramaiah Chetty Vs A.K.Parthasarthi & Ors.) 2003(1) Apex Court Judgments 515 (S.C.)

Court can exercise jurisdiction under Expln. to Rule 2 of Order 17 CPC only when evidence on record is sufficient to substantiate the absentee party’s stand and for disposal of the suit – It is also imperative for the Court to record its satisfaction in that perspective – If the evidence on record is sufficient for disposal of suit then there is no need for adjourning the suit or deferring the decision. (B.Janakiramaiah Chetty Vs A.K.Parthasarthi & Ors.) 2003(1) Apex Court Judgments 515 (S.C.)

Provision does not confer any power on the Court to direct the defendant to adduce evidence first if defendant himself has not claimed such right in view of the contingencies mentioned in the provision. (Gouri Food Products Vs Priya Trading Co.) 2003(1) Civil Court Cases 576 (Bombay) 

Two sets of defendants – Main issue of actual partition – That issue supported by one set of defendants – Defendant supporting the issue to lead evidence first – That defendant  can keep his  right  reserved to lead rebuttal evidence, the onus of which is on the other set  of  defendants. (Chandra Sekhar Pattjoshi Vs Jogendra Pattjoshi & Ors.) 2004(2) Civil Court Cases 09 (Orissa)

Application U.O.18.R.1 dismissed being not filed at the time when case was first posted for evidence – Does not operate as res judicata for filing application U.O.18.R.3 – O.18.R.1 and O.18.R.3 though lead to same consequence but they stand on different sequence. (Chinanchitti Raj Kishore Subudhi Vs M.Manjula) 2003(3) Civil Court Cases 246 (Orissa) 

Case reserved for judgment – At that stage permission sought to lead further evidence – Held, once case is finally heard and posted for judgment, nothing is required to be done except to pronounce judgment – No application can be filed after the final arguments are heard and the matter is posted for judgment. (Rabiya Bi Kassim M. Vs The Country-Wide Consumer Financial Service Limited, Bangalore) 2004(3) Civil Court Cases 593 (Karnataka)

Some of the defendants when supporting plaintiff – Sequence of leading evidence should be –  (1) Those defendants who fully support the case of plaintiff; (2) Those defendants who partly support the case of plaintiff and (3) Those defendants who do not support the case of the plaintiff in any part. (Sunil Chhatrapal Kedar Vs Y.S.Bagde & Anr.) 2005(1) Civil Court Cases 99 (Bombay)

Rebuttal evidence – After closing evidence by defendant case posted for arguments – Plaintiff moved application for rebuttal evidence before final arguments – Rejection of application – Order set aside – Plaintiff allowed to produce evidence in rebuttal. (Prem Sagar Gupta Vs Smt.Kamlesh Kumari) AIR 2004 Delhi 136

Rebuttal evidence – In case where burden of proof on all issues is on the plaintiff, question of his reserving a right to adduce rebuttal evidence does not arise. (Venkata Ramana Agencies Vs Koppu Guranna) 2003(1) Civil Court Cases 67 (A.P.) 

Rebuttal evidence – Plaintiff leading evidence touching his own case – Plaintiff has right to lead evidence in rebuttal. (L.M.P.Precession Engineering Company (P) Ltd. Vs Ram Narayan) 2004(2) Civil Court Cases 429 (Rajasthan)

Witness – Examination – Audio visual link – Witness living abroad – Appearance of witness on audio visual screen in Court is as good as his physical presence in Court – When recording of evidence of witness, through mechanical process is permissible under provision of Code, use of audio visual link which is also mechanical process, for cross examination and re-examination of witness whose examination-in-chief is done on affidavit, cannot be barred. (Twentieth Century Fox Film Corporation, Los Angeles, U.S.A. & Anr. Vs NRI Film Production Associates (Private) Limited, Mysore) 2004(2) Civil Court Cases 388 (Karnataka)

Written arguments – Can be filed with express permission of Court and before conclusion of oral arguments – Copy of written arguments is required to be furnished to the opposite party. (Madan Lal Vs Sardar Lakhwinder Singh) 2004(2) Civil Court Cases 256 (P&H)

Party as his own witness – Examination before other witnesses are examined by him – Provision is not mandatory and breach of rule does not necessarily render party’s evidence nullity.  (C.Sesha Reddy Vs T.Basavana Goud) 2004(2) Civil Court Cases 23 (Karnataka)

Plaintiff as his own witness – Examination of plaintiff before examination of other witnesses – Two witnesses examined but defendant did not raise any objection as to examination of plaintiff first – Defendant is estopped by his act and conduct to raise the point. (Gurmail Chand Vs Ashok Verma) 2004(2) Civil Court Cases 716 (P&H)

Two witnesses examined but defendant did not raise any objection that plaintiff should be examined first as in the list of witnesses name of plaintiff as a witness was not cited – Held, merely because the name of plaintiff is not cited in the list of witnesses does not mean that plaintiff cannot be examined as a witness – A witness can always be examined without being summoned and it would not be a valid ground to discard the testimony of such a witness – Contention of defendant is without any merit. (Gurmail Chand Vs Ashok Verma) 2004(2) Civil Court Cases 716 (P&H)

Witness – Examination-in-chief by way of affidavit – Leading questions – Prohibition of putting leading questions in examination-in-chief has no application to affidavit taken in lieu of examination-in-chief of witness. (Ibrahim Farukmiya Karajgi Vs Kasimkhan) 2003(2) Civil Court Cases 171 (Karnataka) 

Affidavit of examination-in-chief – Copies of affidavits to be furnished to opposite party well in advance. (F.D.C.Limited Vs Federation of Medical Repres.) 2003(3) Civil Court Cases 41 (Bombay) 

Examination-in-chief of a witness on affidavit – Rule does not differentiate between appealable and non-appealable cases. (F.D.C.Limited Vs Federation of Medical Repres.) 2003(3) Civil Court Cases 41 (Bombay) 

Examination-in-chief of witnesses on affidavit – Both plaintiff and defendant can be asked simultaneously to file – It does not violate O.18.R.1 – Cross examination of plaintiff’s witnesses has nothing to do with examination-in-chief of defendant’s witnesses. (Kamal Kumar Modi Vs Krishan Saigal) 2003(2) Civil Court Cases 391 (Delhi) 

Party as his own witness – Requirement of filing affidavit applies to party also if he chooses to be witness in his own case. (Ibrahim Farukmiya Karajgi Vs Kasimkhan) 2003(2) Civil Court Cases 171 (Karnataka) 

Provision applies to parties also who are examined as a witness. (F.D.C.Limited Vs Federation of Medical Repres.) 2003(3) Civil Court Cases 41 (Bombay)

Witness – Recording evidence through Audio-Video Link – Permissible – It requires certain safeguards which are analysed – Court can also impose such other conditions as are necessary in a given set of facts – Expenses and arrangements to be borne by the applicant who wants this facility. (Twentieth Century Vs NRI Film) 2003(2) Civil Court Cases 435 (Karnataka) 

Witness – Examination-in-chief – It is to be on affidavit and copies of affidavit are to be supplied to opposite party by party who has called witness for evidence – Procedure is mandatory and applies to every case whether appealable or not – This provision which empowers Court to treat affidavit as evidence of facts stated therein is exception to O.18.R.5 whereunder evidence of witness is taken down by Court in language of Court – Opposite party is entitled to cross-examine witness who has filed affidavit and evidence elicited in course of such cross-examination is to be recorded by Court in manner prescribed in O.18.R.5 or it can be recorded on commission also. (Ibrahim Farukmiya Karajgi Vs Kasimkhan) 2003(2) Civil Court Cases 171 (Karnataka)

Examination-in-chief to be by affidavits – Court has power to direct either all the evidence recorded in Court or all the evidence recorded by Commissioner or partly by Commissioner and partly by Court – Evidence may be recorded either in writing or mechanically – ‘Mechanically’ indicates that evidence can be recorded with the help of electronic media, audio or audio-visual – Held, it will be advisable that there should be simultaneously at least an audio recording of the statement of the witnesses so as to obviate any controversy at a later stage. (Salem Advocate Bar Association Vs Union of India) 2003(1) Civil Court Cases 198 (S.C.) 

Local Commissioner to record evidence of a witness – Before appointing a Commissioner, Court to ensure (i) filing of examination-in-chief in the form of an affidavit with a copy to the opposite party; (ii) Immediately thereupon Court to resolve questions as regards the proof and admissibility of documents which are relied upon by plaintiff in the course of examination-in-chief; (iii) Court then to appoint a Local Commissioner for recording evidence of a witness. (Bharat R.Desai & Anr. Vs Naina Mohanlal Bhal) 2004(3) Civil Court Cases 49 (Bombay)

does not make any distinction between appealable and non appealable cases so far as mode of recording evidence is concerned – Such a difference is found only in Rule 5 and 13 of Order 18 – Rules 4 and 5 are required to be harmoniously construed – Both provisions are required to be given effect to, as Rule 5 cannot be read as an exception to Rule 4 – Defendant would not be prejudiced in any manner whatsoever if the examination-in-chief is taken on an affidavit – If he desires to cross examine the said witness, he would be permitted to do so in open Court – There may be cases where a party may not feel the necessity of cross-examining a witness, examined on behalf of the other side and thus time of Court would not be wasted in examining such witness in open Court. (Ameer Trading Corporation Ltd. Vs Shapoorji Data Processing Ltd.) 2004(1) Apex Court Judgments 136 (S.C.) : 2004(2) Civil Court Cases 238 (S.C.)

Examination-in-chief by way of affidavit – Ultimate judgment or decree when appealable evidence to be recorded by Court U.O.18.R.5 CPC – However in cases where ultimate judgment or decree is not appealable then discretion is conferred upon Court to accept examination-in-chief in the form of affidavit as provided U.O.18.R.4 CPC – ‘In every case’ contained in O.18.R.4 have to be understood in a limited sense that every case wherein the ultimate order is not appealable and by no means it can take in its ambit the orders which would be appealable. (Laxman Das Vs Deoji Mal) 2003(2) Civil Court Cases 212 (Rajasthan)

Examination-in-chief by way of affidavit – In appealable as well as in non appealable cases examination-in-chief of a witness is to be by way of affidavit – The expression ‘every case’ in O.18.R.4 CPC would be rendered illusory and otiose if recording of examination-in-chief by affidavit is confined to only those cases which are not appealable as no such intention is discernible from rules 4 & 5 of Order 18 CPC. (Karam Singh Vs Dana Singh) 2003(2) Civil Court Cases 227 (P&H) 

Examining plaintiff immediately – Plaintiff 92 years of age – Plaintiff may not be available by the time suit reaches stage of recording of evidence – Statement of plaintiff very important and necessary for just and appropriate decision – Fit case for exercise of power U.O.18.R.16 for the purpose of recording statement of plaintiff without waiting for the suit to have reached the stage of evidence. (Daulat Jehangir Mehta Vs Miss Piloo Dadabhoy Broacha & Ors.) 2005(1) Civil Court Cases 616 (Bombay)

Recall of a witness for further cross examination – Witness already cross examined on that point – No reason to recall the witness. (Soma Devi Vs Guin Devi) AIR 2003 H.P. 158

Recall of witness – Not at the instance of a party – Recall can be for examination by Court – Court in a given case can invoke inherent powers to recall witness for cross-examination – Lapse on part of a party to object to production of documents in course of evidence – Would not enure to its benefit to seek assistance of Court to get witness recalled and cross-examined in exercise of inherent powers. (Balkrishna Shivappa Shetty Vs Mahesh Nenshi Bhakta and others) AIR 2003 Bombay 293

Witness – Recall for further cross examination – Ground that petitioner could not instruct his counsel properly on date of examination of said witness – Is a vague ground – Application being not bona fide, hence dismissed. (Botsa Appala Narasayya Vs Smt.Raghunanda Lakshmi) AIR 2004 A.P. 82

Rebuttal evidence by plaintiff  – Cannot be allowed to be led on the issues the burden of which was on the plaintiff. (Dinesh Kumar Vs State of Haryana)_ 2003(1) Civil Court Cases 445 (P&H) 

Recall of witness – Power cannot be exercised by Court for cross-examination of witnesses by either of parties but for purpose of examination by Court itself. (Balkrishna Shivappa Shetty Vs Mahesh Nenshi Bhakta) 2003(3) Civil Court Cases 156 (Bombay) 

Witness – Recall for further cross examination  – Reason stated that proper instructions could not be given to counsel on date of examination of said witness – Not a relevant ground for recall of witness for further cross examination – Application dismissed. (Botsa Appala Narasayya Vs Smt.Raghunanda Lakshmi & Ors.) 2004(2) Civil Court Cases 112 (A.P.)

Provision is deleted with a view that unnecessarily applications are not filed primarily with to prolong the trial. (Salem Advocate Bar Association Vs Union of India) 2003(1) Civil Court Cases 198 (S.C.) 

Further evidence – Court should be liberal in permitting the parties to adduce such evidence as they wish to bring on record, provided it is not an abuse of process of Court or a part of delaying tactics. (Venkata Ramana Agencies Vs Koppu Guranna) 2003(1) Civil Court Cases 67 (A.P.)

Inspection by Court – Eviction petition on ground of unfit and unsafe for human habitation – Expert witness clearly stated about the condition of the demised premises – There is hardly any confusion – No occasion for the Court to undertake an inspection. (Kailsho Devi Vs Chhabi Parkash) 2004(3) Civil Court Cases 669 (P&H)

Inspection by Court – Inspection note whether substantive piece of evidence – Held, No when expert witness clearly stated about the condition of the demised premises and there was no occasion for the Court to undertake an inspection and secondly expert witness was not subjected to any cross examination which clearly indicated the dilapidated condition of the demised premises.(Kailsho Devi Vs Chhabi Parkash) 2004(3) Civil Court Cases 669 (P&H)

Inspection by Court – Permissible only in case of confusion or to appreciate evidence in a better way – Court cannot base its judgment solely on the basis of inspection note recorded by it. (Kailsho Devi Vs Chhabi Parkash) 2004(3) Civil Court Cases 669 (P&H)

Judgment – Opportunity of hearing – Cannot be denied to party on ground that identical matter had been decided by previous order. (Teku Ram Vs State of Himachal Pradesh) AIR 2002 H.P. 89

Preliminary decree – Passing of supplementary preliminary decree – Availability of items in the plaint schedule disputed by persons not impleaded before preliminary decree but impleaded in the final decree proceedings – Held, preliminary decree can be reopened to consider whether they are available or not. (Kochukunju Stephen Vs Ashia Ummal) 2005(2) Civil Court Cases 202 (Kerala)

Instalments – Executing Court has no power to grant instalments in case of money decree. (Guna Yerrannaidu Vs Guna Venkanna) AIR 2002 A.P. 37

Executing Court has no power to order the payment of decretal amount in instalments. (Tota Singh Vs Manjit Singh) 2004(2) Civil Court Cases 312 (P&H)

Suit for possession on the basis of title under encroachment by defendant – Encroachment proved by evidence of Cadestal Surveyor – No actual measurement noted down in map prepared by Cadestal Surveyor – It is therefore not admissible – Matter remitted back to trial Court – Plaintiff shall make an application before trial Court for appointment of Cadestal surveyor within a period of three months and in default the suit shall stand dismissed. (Sukhdeo Parashramji Bhugul  Vs Wamanrao Nagorao Charhat) 2004(3) Civil Court Cases 333 (Bombay)

Mesne profits – Lease of flat – Defendant not vacating despite notice – Plaintiff claiming mesne profits at the rate of Rs.50/- per sq. feet for unauthorised use and occupation – Plaintiff did not lead any satisfactory evidence regarding market rate of rent – Court, however, fixed rate of rent at the rate of Rs.20 per sq. feet on estimated basis with interest at the rate of 12%. (W.H.Deeth (Ballabhgarh) & Co. Vs Punjab National Bank) 2003(2) Civil Court Cases 701 (Delhi) 

Mesne profits – Quantum – Wrongful possession of land measuring 31 Kanals – Mesne profits on the basis of least of land of 10 marlas of the year when land was illegally occupied – No sale deeds or lease deed produced by defendant – Keeping in view the smallness of leased land to the suit land as well as the fact that it was a developed site a cut of 1/3 applied to the quantum of mesne profits determined by trial Court. (Punjab Small Scale Industries Corporation Vs Kartar Singh & Ors.) 2005(1) Civil Court Cases 310 (P&H)

Mesne profits – Wrongful possession – A person in wrongful possession is liable to pay mesne profits – Mesne profits are payable even when there is no issue with regard thereto. (Punjab Small Scale Industries Corporation Vs Kartar Singh & Ors.) 2005(1) Civil Court Cases 310 (P&H)

Residential accommodation by virtue by employment – License co-terminus with tenure of employment of the Licensor firm – Termination of service – Employee has no right to continue – Contention of employee that he is not liable to vacate the premises till final outcome of the decision of Labour Court – Not tenable – Employee ordered to pay mesne profits for unauthorised occupation at the rate of Rs.7,500/-. (Sarla Ahuja  Vs Kundan Lal) 2003(2) Civil Court Cases 674 (Delhi) 

Single suit for administration of estate of more than one deceased persons – Maintainable. (K.K.Thankappan Vs K.S.Jayan) AIR 2003 Kerala 114

Dissolution of partnership and rendition of accounts – Suit for – One partner making prayer to call upon other partners to deposit amount which was of debit balance in the capital account of such partners as that amount being payable by them to the firm – Held, firm and its partners are not distinct entities – Such partners can not held to be debtors of company before settlement of accounts – Refusal by receiver to direct them to deposit so called debt amount, proper. (Jayesh H.Pandya Vs Sukanya Holdings Pvt.Ltd.) AIR 2003 Bombay 148

Suit for account – Does not lie when a crystallised amount is due as there is no account to be settled between the parties – Suit for accounts is entertainable when there are circumstances of special complication necessitating the taking of accounts. (Brothers Chitty Fund Vs Jacob Mathew) 2004(2) Civil Court Cases 262 (Kerala)

Co-owner – Selling his undivided share in property – Purchaser is entitled to joint possession or partition – For seeking partition there is no prescribed period of limitation. (Moin Khan Vs Amin Zema Khan) 2005(2) Civil Court Cases 126 (Jharkhand)

Partition – Defendant taking plea of previous partition by metes and bounds about 60 years ago – Defendant averred that they were in service and purchased property from their own earnings – No evidence what were their earnings from service – Documentary evidence such as rent receipts, canal purchase etc. not establishing partition – Held, there was unity of tile and possession in respect of property which might be subjected to partition between parties especially when parties belonged to Mitakshara School of Hindu Law under which there is presumption of jointness. (Hardeo Yadav Vs Dinanath Yadav) AIR 2002 Patna 60

Partition – Preliminary decree – Succession law amended during pendency of appeal giving right to applicant daughter to claim equal share in joint family property – Applicant not seeking setting aside of preliminary decree on basis of said amendment – Decree confirmed in appeal – It would finally determine rights/shares of parties – Decree cannot be questioned or varied in final decree proceedings. (Smt.Prema Vs Nanje Gowda) AIR 2003 Karnataka 104

Partition suit – Final decree – Ascertaining value of joint family property for purpose of allocation of shares following final decree – Value to be ascertained is market value as on date of decree – It is open to parties to seek issue of commission to ascertain value. (Vasudeva Murthy (Deceased) by L.Rs Vs Mariyappa (Deceased) By L.Rs & Anr.) 2004(2) Civil Court Cases 440 (Karnataka)

Partition – Partition of each item of property by metes and bounds is not necessary – Essential requirement is equalisation of shares on basis of value of joint family property as on date of final decree – As far as possible person in possession of property should be permitted to retain his possession by providing for payment owelty – Party getting property of higher value to pay to party getting property of less value – Order of trial Court directing Court Commissioner to divide each item of property in terms of preliminary decree not sustainable in law. (Vasudeva Murthy (Deceased) by L.Rs Vs Mariyappa (Deceased) By L.Rs & Anr.) 2004(2) Civil Court Cases 440 (Karnataka)

Suit for partition – Valuation of the property – Ordinarily it has to be the date of passing of the final decree and not the date of filing of the suit for partition – The actual partition is effected by passing of the final decree as such valuation has to be on the date of final decree. (M.L.Subbaraya Setty (Dead) by LRs. & Ors. Vs M.L.Nagappa Setty (Dead) by LRs. & Ors.) 2003(1) Apex Court Judgments 160 (S.C.)

Gift of property after passing of preliminary decree but before passing of final decree – Preliminary decree in partition suit passed on 13.2.1978 which was not on stamp paper but defined shares by metes and bound – Final decree drawn, a replica of preliminary decree on 24.5.1979 but on stamped paper – High Court holding that donors had no title before final decree – Not correct – Application of Rule of Feeding grant by estoppel applies – Appeal allowed. (Renu Devi Vs Mahendra Singh & Ors.) 2003(1) Apex Court Judgments 626 (S.C.)

Partition proceedings – Final decree in the first instance can be passed – Preliminary decree U.O.20.R.18 CPC not necessarily required to be passed – Final decree in the first instance can be passed if the rights of the parties are finally determined and no further inquiry remains to be held for the purposes of completing the proceedings in partition – Such cases are often which are based on compromise. (Renu Devi Vs Mahendra Singh & Ors.) 2003(1) Apex Court Judgments 626 (S.C.)

Partition – Shares, bonds and securities – Non availability at the time of partition – By itself not a ground to deny plaintiff his share if he is otherwise entitled thereto. (M.L.Subbaraya Setty (Dead) by LRs. & Ors. Vs M.L.Nagappa Setty (Dead) by LRs. & Ors.) 2003(1) Apex Court Judgments 160 (S.C.)

Partition – Shares, bonds and securities – Non availability at the time of partition – Party in possession is liable to give accounts for the rents, income, profits and dividends in respect of the joint family property to others. (M.L.Subbaraya Setty (Dead) by LRs. & Ors. Vs M.L.Nagappa Setty (Dead) by LRs. & Ors.) 2003(1) Apex Court Judgments 160 (S.C.)

Preliminary and final decree – Distinction – A preliminary decree merely declares the rights and shares of the parties and leaves room for some further inquiry to be held and conducted pursuant to the directions made in the preliminary decree which inquiry having been conducted and the rights of the parties finally determined a decree incorporating such determination needs to be drawn up which is the final decree. (Renu Devi Vs Mahendra Singh & Ors.) 2003(1) Apex Court Judgments 626 (S.C.)

‘Present possession of parties shall be respected as far as possible’ – Means person in possession should be allowed to retain it by equalization of share – It does not mean that a person out of possession of all immovable properties should not be allowed any part of the immovable property whatsoever. (M.L.Subbaraya Setty (Dead) by LRs. & Ors. Vs M.L.Nagappa Setty (Dead) by LRs. & Ors.) 2003(1) Apex Court Judgments 160 (S.C.)

Provision of S.5 Limitation Act is not applicable to an application under O.21 CPC. (Mangilal Narsingdas Gattani Vs Shaligram Ukarda Payghan) 2003(1) Civil Court Cases 497 (Bombay) 

Payment of decretal amount out of Court – D.H. in his income-tax return had shown that he was to recover only some amount out of balance amount – Is sufficient for purposes of satisfaction of Court that payment is evidenced in writing – Further as return was submitted by D.H. of his own accord as such he is estopped from denying such payment. (Bapulal Walchand Jain Vs Pandurang Vithal Pingle) AIR 2003 Bombay 5

Execution – Payment of interest, cost and part of principal amount by J.D. – Calculation of interest thereafter on the whole principal amount by D.H. – Not permissible. (R.Lingaraj Vs Dr.Arumugha Pandian) AIR 2002 Madras 254

Decree – Satisfaction – Rs.8,000/- alleged to be paid by J.D. in a compromise towards the satisfaction of decree – Writing to this effect undated and thumb marked by D.H. – There are no witnesses to the said writing and the same not signed or thumb marked by J.D. – Held, the said writing is not in conformity with the provision of O.21.R.2 CPC and the same cannot be taken to be adjustment of the decree. (Nahra Vs Surji & Ors.) 2004(2) Civil Court Cases 308 (P&H)

Execution – Payment or adjustment – Not to be recognised if not certified or recorded by Court within 30 days from the date when the payment or adjustment is made. (Joseph Vs Kanakam) 2003(1) Civil Court Cases 387 (Kerala)  

Decree – Satisfaction – Unless certified or recorded payment or adjustment cannot be recognised by executing Court. (Gouri Sirkar Vs Goutam Sirkar) AIR 2002 Calcutta 70

Eviction decree – Execution – Fresh lease during pendency of execution outside Court – Fresh least amounts to adjustment or satisfaction of decree – Application for recording of compromise must be made within 30 days of execution of fresh lease – In absence of recording of compromise, landlord is entitled to have decree executed and to recover possession. (B.M.Rajanna (Deceased) by L.Rs Vs K.S.Lingappa) 2005(1) Civil Court Cases 659 (Karnataka)

Payment made out of Court – However, plaintiff admitting payment of certain amounts by defendants before Executing Court – Such admission tantamount to D.H. certifying such payment – Court to record the same accordingly – Failure of Court to record it – Art.125 of Limitation Act providing that application to record adjustment or satisfaction of decree would be made within 30 days of date of payment – Not applicable in such cases – Once Executing Court was intimated about receipt of amount by D.H. it is duty of Court to record the same and there is no limitation prescribed for it. (Dilipkumar Vs Industrial Credit & Development Syndicate Limited) AIR 2004 Bombay 117

Ejectment order – Execution – Objections – Fresh tenancy alleged to be created by one of the D.H. – Execution cannot be stayed – Any adjustment of decree which is not recorded by Court U.O.21.R.2(i) cannot be recognised by the executing Court and that too within the prescribed period of limitation of 30 days. (Ramesh Kumar Vs Vijay Kumar & Ors.) 2004(3) Civil Court Cases 644 (P&H)

Sale of entire property without considering J.D’s plea that sale of only a portion would be sufficient – Order is illegal. (Thanka Vs Francis) AIR 2002 Kerala 379

Execution – Verification – Pleadings and execution cannot be placed on same pedestal – Requirement of O.21.R.11(2) is deemed to be fulfilled if verification is to the satisfaction of the Court. (International Security and Intelligence Agency Limited Vs Municipal Corporation) AIR 2002 Delhi 347

Motor Accident Claim – Execution – Award of Motor Accident Claims Tribunal is to be treated as a decree of Civil Court and application U.O.21.R.11 CPC is maintainable – Claimants cannot be asked to go to District Collector for same relief – Tribunal possesses inherent jurisdiction to enforce its own award in accordance with the provisions of CPC as applicable to execution of orders and decrees passed by a Civil Court – When the Claims Tribunal possesses inherent jurisdiction to enforce its own award, the claimants cannot be asked to follow another procedure. (Pushpa Mishra & Ors. Vs MACT & Anr.) 2004(3) Civil Court Cases 68 (Rajasthan)

Decree for possession – When under mortgage deed mortgagee is not entitled to induct tenants who would continue even after expiry of mortgage then actual physical possession is to be delivered as no relationship of landlord and tenant exists between mortgagor and tenant and tenant is not entitled to protection of Rent Act. (Gopal Sharan & Ors. Vs Smt.Radha Devi & Ors.) 2004(2) Civil Court Cases 163 (Rajasthan)

Execution – Possession taken with help of police – During pendency of execution proceedings some of decree holders entered into agreement of tenancy along with J.D. and entered into said premises with help of unruly element – Defendants can be treated as trespassers – Since said agreement of tenancy is illegal it is not permissible for Court to create a new decree in said agreement which is in variance with original decree. (Manik Chandra Naskar Vs Smt.Tara Debi and others) AIR 2004 Calcutta 207

Joint decree holders – Death of one D.H. – During pendency of execution and after death of deceased D.H. his heirs executed a relinquishment deed in favour of remaining D.H’s –  Provision of O.21.R.15 CPC is applicable and execution can proceed without bringing on record L.R’s of deceased D.H. (Rifakat Ali & Anr. Vs Shyam Sunder & Ors.) 2005(2) Civil Court Cases 20 (Allahabad)

Execution – By L.R’s – Succession certificate is a must. (Sangappa Mallappa Kuri Vs Special Land Acquisition Officer) AIR 2003 Karnataka 142

Execution within two years – Option is given to Court to give or not to give notice to J.D. – However, once notice is ordered to be given to J.D., withdrawing of same at the instance of D.H. on the ground of long delay in litigation and ordering delivery of possession without hearing other side is not legal – Impugned order set aside – Matter remanded to Court below to dispose of execution afresh after hearing both the parties. (R.Kanthamma Vs Boyapati Ravindra) 2003(2) Civil Court Cases 655 (A.P.) 

Property purchased vide registered sale deed prior to its attachment in execution – Decree holder cannot proceed against property in question. (Linga Vs M/s Saravana Enterprises) AIR 2003 Karnataka 128

Property purchased vide registered sale deed prior to its attachment in execution – No specific direction in decree creating any charge on said property – General observation in decree that D.H. is entitled to proceed against assets of J.D. – Does not amount to creating charge on property – Decree holder is not entitled to attach and sale of property in execution. (Linga Vs M/s Sarvana Enterprises) AIR 2003 Karnataka 128

Ad interim injunction – Its enforcement by filing application U.O.21.R.32 r/w S.151 – Not proper as stage for making such application arises only after passing of decree – Proceedings for violation, disobedience of injunction order can be initiated U.O.39.R.2-A CPC. (Kishan Lal Vs Smt.Naaheed Maylkat) AIR 2002 M.P. 149

Injunction decree – Execution – It has a permanent and perpetual life – It can be put into execution at any time to prevent breach or to prevent apprehended breach. (Yashodabai Ganesh Naik Gaunekar Vs Gopi Mukund Naik) 2003(1) Civil Court Cases 264 (Bombay) 

Prohibitory injunction – Decree of – Can now be enforced to a practicable extent in the same way as decrees for mandatory injunctions. (Ajayakumar Vs Damayanthi) 2004(2) Civil Court Cases 383 (Kerala)

Appeal – Order of status quo regarding possession passed in an appeal against decree of specific performance – Execution not stayed – Executing Court directed to proceed with the execution and get the sale deed executed in favour of D.H. in accordance with law. (Jagir Singh Vs Sanjeev Kumar)2003(3) Civil Court Cases 267 (P&H)

Injunction decree – Execution – Attachment of property or by imprisonment – Can be resorted to only when J.D. had an opportunity of obeying the decree and has deliberately failed to obey it. (Yashodabai Ganesh Naik Gaunekar Vs Gopi Mukund Naik) 2003(1) Civil Court Cases 264 (Bombay) 

Injunction decree – Execution – Despite civil imprisonment J.D. ventured to commit successive breaches – Effective order against him could be attachment and sale of his property and in absence thereof detention in civil prison again. (Yashodabai Ganesh Naik Gaunekar Vs Gopi Mukund Naik) 2003(1) Civil Court Cases 264 (Bombay) 

Injunction decree – Execution – Detention of J.D. in civil prison is no substitute for compliance of decree – Compliance of decree can only be by resort to penal actions – Liability or obligation flowing from the decree cannot be taken to have been discharged by detaining a person liable to comply with the decree, to jail. (Yashodabai Ganesh Naik Gaunekar Vs Gopi Mukund Naik) 2003(1) Civil Court Cases 264 (Bombay) 

Decree of permanent injunction restraining defendants from interfering in possession – Dispossession in violation of decree – Court can restore possession U.O.21.R.32 CPC. (Inder Singh and others Vs Dharma and others) 2003(3) Civil Court Cases 363 (P&H)

Decree of restitution of conjugal rights – Execution – Wife sought execution of decree after 2-1/2 years – Decree can be executed by attachment and sale of property of defaulting party but Court cannot give physical custody of J.D. to decree holder. (Yudhisthar Singh Vs Smt.Sarita Sankhala) 2005(1) Civil Court Cases 353 (Rajasthan)

Draft of document in terms of decree delivered to Court – Objection relating to nature of decree is not permissible – However, identical objections raised by J.D. were dealt with by executing Court – In view of principle of res judicata, it was not open for him to raise same objections again – Finding of executing Court that decree in question has to be treated as a decree for specific performance of duties cast upon J.D. cannot therefore be faulted. (Rasika  Vs Mount Mary Vaikunta Co-Op.Hous. Society Ltd.) 2003(3) Civil Court Cases 72 (Bombay) 

Draft of document in terms of decree delivered to Court – It contained name of dead person – Direction given to substitute it with that of his L.R’s. (Rasika  Vs Mount Mary Vaikunta Co-Op.Hous. Society Ltd.) 2003(3) Civil Court Cases 72 (Bombay) 

Draft of document in terms of decree delivered to Court – Objections thereto – Decided by Court – Objector can file appeal U.O.43.R.1(i) – Scope of appeal is restricted – Appellate Court while exercising its jurisdiction under order 43 cannot travel beyond purview of its appellate jurisdiction. (Rasika  Vs Mount Mary Vaikunta Co-Op.Hous. Society Ltd.) 2003(3) Civil Court Cases 72 (Bombay) 

Decree for execution of conveyance – Defendant neither applied for setting aside ex parte decree nor did he challenge the same in appeal – He cannot be allowed to raise any objection in execution. (Rasika  Vs Mount Mary Vaikunta Co-Op.Hous. Society Ltd.) 2003(3) Civil Court Cases 72 (Bombay) 

Sale deed – Execution by Court – Draft of sale deed furnished by D.H. in execution of decree – J.D. remained exparte – Draft sale deed therefore not served on J.D. – Sale deed executed and registered – Rule 34 requires the Court and not the D.H. to serve the draft sale deed on J.D. – Object of service is to enable J.D. to raise any objections – However, J.D. has not pointed out any defect or illegality in draft sale deed in spite of their being aware of the contents of sale deed – Only objection raised is that it was not served on them – Objection that sale deed is not valid since draft of sale not served on J.D. is not sustainable. (S.Hassan & Anr. Vs Sha Peerchand, Pawn Broker & Money Lender) 2005(2) Civil Court Cases 40 (A.P.)

Sale deed – Execution by Court – Executing Court is competent to refer to pleadings, if circumstances warrant for understanding the decree – Suit decreed directing plaintiff to pay balance of consideration agreed after giving credit to amount paid as advance and the amounts due as on the date of filing of suit under two pronotes executed – Amounts payable under pronotes shall be treated as part of consideration – If interest calculated upto date of filing of suit as per terms of decree, no amount remained unpaid by plaintiff towards consideration under the agreement – Contention that interest is not payable after filing of agreement of sale, that plaintiff has not paid balance of consideration as directed by decree and that therefore decree is not executable, not tenable as plaintiff cannot be said to have not complied with terms of agreement and decree – Sale deed executed by Executing Court is valid. (S.Hassan & Anr. Vs Sha Peerchand, Pawn Broker & Money Lender) 2005(2) Civil Court Cases 40 (A.P.)

Property of a co-sharer purchased during pendency of proceedings – Principle that purchase made during pendency of litigation is unsustainable applies only if purchase is made from J.D. and not from a co-sharer – Share of first plaintiff, one of the coparceners, sold to respondent by his wife on his death – To the extent of his share, decree stood extinguished – Interest of coparceners in the property is undefined and indeterminate – E.P. filed by L.Rs. of second plaintiff claiming recovery of possession of entire property having knowledge of the sale of share of first plaintiff in favour of respondent and also claiming to be the L.Rs of both the plaintiffs – Defective and not entertainable. (Katepaga Yadagiri & Ors. Vs B.Maheshwar Reddy) 2004(2) Civil Court Cases 174 (A.P.)

Execution – Dismissed as withdrawn – Decree not satisfied – Subsequent execution application is maintainable. (Jit Singh Vs Bhago) AIR 2002 P&H 340

Tenant – Redemption of mortgage – Tenant inducted by mortgagee – Property redeemed and remortgaged and tenancy continued – Held, as tenant was not inducted by mortgagor as such tenant is liable to be evicted in execution of final decree of redemption obtained against the second mortgagee. (Shambhu Dayal Vs Shivcharan Lal & Anr.) 2004(2) Civil Court Cases 607 (Rajasthan)

Execution – Arrest of J.D. in civil prison – J.D. denying that he has any means to repay decretal amount – Further, no source of income or cash in hand of J.D. brought on record by D.H. – In such circumstances fair and decretal order of executing Court dismissing application – Cannot be interfere with by High Court. (K.M.Kannu Goudner Vs. Mahboob Ali Sahib) AIR 2003 Madras 362

Decretal amount – Non payment – Arrest of J.D. – Not to be ordered without giving a specific finding that J.D. is avoiding to make payment having sufficient means – Order of arrest without such a finding set aside – J.D. permitted to pay the decretal amount in five monthly equal installments. (Vesapogu Yeshaiah Vs Muppalla Subba Rao) 2003(1) Civil Court Cases 496 (A.P.) 

Execution – Arrest and detention – Rule 40 is not only procedural but also mandatory in nature and confers certain powers upon the executing Court during the pendency of an enquiry to be conducted – ‘Enquiry’ contemplated under rule 40 means an enquiry with regard to defence, if any, taken by J.D. and also to enquire into the averments by D.H. before the J.D. is sent to civil prison – An enquiry has to be conducted before the Executing Court passes an order sending J.D. to civil prison. (S.Ismail & Anr. Vs Agraseni Chit Funds (P) Ltd. & Ors.) 2005(1) Civil Court Cases 518 (A.P.)

Arrest & detention – J.D. a man of no means – J.D. doing coolie work – When a person does not have any means to clear of his debts, he cannot be arrested – Order directing arrest of J.D. set aside. (Dharmalingam Vs Pavalkodi) 2005(1) Civil Court Cases 342 (Madras)

Money decree – Execution – Arrest and detention –  Notice to J.D. to show cause instead of warrant of arrest – Notice to be issued to J.D. to appear before the Court – However, such notice is not necessary when Court is satisfied by affidavit or otherwise, that with the object or effect of delaying the execution of the decree, J.D. is likely to abscond or leave the local limits of the jurisdiction of the Court. (Neelam Gautam  Vs Balwinderjit Singh @ Bikramjit @ Happy) 2004(3) Civil Court Cases 121 (P&H)

Execution – Arrest and detention – Application for arrest and detention of J.Drs. for recovery of decretal amount – Order of attachment of salary of one of the J.Drs. when application is made under rule 37 is unwarranted and uncalled for. (S.Ismail & Anr. Vs Agraseni Chit Funds (P) Ltd. & Ors.) 2005(1) Civil Court Cases 518 (A.P.)

Execution – Arrest of J.D. – Court hearing counsel for parties and then issuing warrant under R.38 – It is not order under R.40 – It is order under R.38 without conduct of enquiry under R.40 – It being one under R.38, is not without jurisdiction. (K.Manokaran Vs A.U.Subbananan)  AIR 2002 Madras 340

Application U.O.21.R.41 is not an application for execution of decree – Application can precede filing of execution petition. (United Phosphorous Ltd. Vs A.K.Kanoria) AIR 2003 Bombay 97

Lunatic – Attachment of property of a lunatic – Lunatic defended by a guardian appointed by a Court – Property can be attached in execution of decree. (Jolly Vs Oriental Kuries Ltd.) 2003(2) Civil Court Cases 484 (Kerala) 

Machinery embedded in earth and fastened with bolts – It is still movable property – Auction sale cannot be set aside for not following the procedure applicable to sale of immovable property. (Shree Arcee Steel Private Limited, Bangalore & Anr. Vs Bharat Overseas Bank Limited, Bangalore & Anr.) 2005(2) Civil Court Cases 238 (Karnataka)

Decree against firm – Can be executed against partner individually who had been served with notice of suit and had appeared in suit individually – Personal property of such partner when attached in execution of decree against firm and he not objecting to same then objection against such attachment filed subsequently by L.R’s of partner who were brought on record on death of partner during pendency of execution, is not sustainable. (Shivalingeshwara Oil Mill Vs Channaveerappa) 2005(2) Civil Court Cases 375 (Karnataka)

Notice – Mere issuance of notice U.O.21.R.54(1) cannot be construed as notice U.O.21.R.54(1-A) – Only when notice U.O.21.R.54(1-A) is issued proviso to O.21.R.66(2) springs into action i.e. when notice U.O.21.R.54(1-A) is issued then no further notice as required U.O.21.R.66(2) is required. (Pappasani Narayana Reddy Vs Mandem Reddappa Reddy) 2005(1) Civil Court Cases 480 (A.P.)

Attachment – Omission to affix order of attachment in the notice board of the office of District Collector – Does not amount to material irregularity – Private sales will be valid only if it is shown that substantial injustice was done to the persons who purchased the property under private sales by virtue of non-compliance with the provisions in O.21.R.66 or O.21.R.54 CPC. (Peta Thallamma Vs Pedamallu Gopala Krishna Murthy) 2003(3) Civil Court Cases 90 (A.P.) 

Attachment in execution – Dismissal of execution petition – Order of attachment ceases to exist. (Linga Vs M/s Saravana Enterprises) AIR 2003 Karnataka 128

Attachment before judgment – Application for raising of attachment – Dismissed for default – Said default dismissal order became final and conclusive – Another application U.O.21.R.58 on same cause of action is not permissible. (Satyamsetti Vs Ramisetti) AIR 2004 A.P. 87

Attachment – Application for raising attachment – Dismissed – Such dismissal amounts to a decree – Revision against – Not maintainable – Party affected can file appeal but not a fresh suit. (Ravindra Sheregara Vs Syndicate Bank) AIR 2002 Karnataka 324

Attachment – Joint Family Property of father, 2 major sons and 2 minor sons – On petition by two major sons raising attachment allowed – Therefore attachment in respect of 2/5th share of two appellant minor sons can also be raised as they stand on same footing. (Kongisi Vs Kongisi) AIR 2003 A.P. 297

Suit for recovery of money – Consent decree passed and decree also ordered sale of one building belonging to defendant – Said building did not fetch sufficient amount to satisfy decree – Sale of other properties – Order not erroneous – Plea that earlier decree was only in respect of sale of property and was not a money decree, not tenable. (Ramzanali Gulamhussain Ramodiya Vs Hamida Karim Ramodiya) AIR 2002 Bombay 526

Attachment – Appellant purchased the property and applied for raising of attachment – Application dismissed for default – Property put to sale in auction – Application U.O.21.R.58 filed in execution – Inquiry provided U.O.38.R.8 is to be conducted like a trial in a regular suit and an order passed thereunder amounts to a decree against which an appeal lies – Held, second application in execution petition does not lie as the same is barred U.O.9.R.9 CPC. (Satyamsetti Somaraju Vs Ramisetti Naidu @ Vekata Rao & Anr.) 2004(2) Civil Court Cases 590 (A.P.)

Claim petition – Every claim petition need not be insisted to be tried as a suit on merits – Petition can be dismissed for non disclosure of cause of action U.O.7.R.11 CPC. (P.Divya (Kumari) Vs P.Jayender Rao & Anr.) 2004(2) Civil Court Cases 438 (A.P.)

Attachment – Objections – Court is obliged to reject the objections if it considers that the objections have been designedly or unnecessarily delayed. (Ranjit Singh Vs Kamaljit Singh) 2004(2) Civil Court Cases 318 (P&H)

Attachment – Objections – Ownership claimed on the basis of Will dated 21.2.1993 – However on the basis of Will no mutation of inheritance entered and the Will did not see the light of the day till the suit property was attached – Principle laid down in O.21.R.58(1) Proviso (b) applies  as the objections are filed designedly and unnecessarily to delay the execution – Objections dismissed. (Ranjit Singh Vs Kamaljit Singh) 2004(2) Civil Court Cases 318 (P&H)

Money decree – Execution – Attachment of joint property – If the co-owner of property is neither a debtor nor a guarantor then his share in the property cannot be attached merely because that co-owner happens to be the wife of J.D. or a partner in business. (Janki Vashdeo Bhojwani & Anr. Vs Indusind Bank Ltd. & Ors.) 2004(1) Apex Court Judgments 681 (S.C.) : 2004(2) Civil Court Cases 305 (S.C.)

Proclamation stating that property will be sold in lots – Sale conducted in disregard to said condition – Improper and liable to be set aside, more so when judgment debtor had moved an application that entire property should not be sold in one lot. (M/s Vidya Hatechery Farm Vs Punjab National Bank) AIR 2002 H.P. 92

Execution – Exparte decree – Execution – Sale of property during pendency of application to set aside ex parte decree – Held, once there is an application for stay of execution proceedings in an application for setting aside ex parte decree, trial Court should not proceed to sell the property in post haste manner – Sale of land without notice to J.D. on the basis of refusal report on application U.O.21.R.66 CPC shows that the proceedings have been conducted to grant undue benefit to D.H. (Mehar Singh & Ors. Vs Firm Pakher Singh) 2003(3) Civil Court Cases 686 (P&H) 

Notice of application U.O.21.R.66 not served upon J.D. – Valuation of property not given by D.H. – Sale of property suffers from material illegality and irregularity and thus the same set aside. (Mehar Singh & Ors. Vs Firm Pakher Singh) 2003(3) Civil Court Cases 686 (P&H) 

Proclamation of sale – To be drawn up after notice to the decree holder and the judgment-debtor and is required to state fairly and accurately (i) the property to be sold or where a part of the property would be sufficient to satisfy the decree, such part; (ii) the revenue assessed upon the estate or part of the estate; (iii) any encumbrance to which the property is liable; and (iv) the amount for the recovery of which the sale is ordered. (Dharam Pal  Vs Ludhiana Improvement Trust & Ors.) 2005(1) Civil Court Cases 30 (P&H)

Sale without notice to J.D. is nullity – Jurisdiction to sell the right arises in a Court only where the owner is given notice of the execution for attachment and sale of his property – On notice owner can offer his estimate as he is the person who intimately knew the value of his property prevailing in the locality. (Randhir Singh & Ors. Vs New Bank of India) 2003(1) Civil Court Cases 530 (P&H) 

Sale proclamation – Failure of J.D. to file objections, if any, on the valuation assessed by D.H. – Even if no valuation was made by D.H. even then J.D. is not precluded from quoting his price – J.D. came forward only to pay some amount and sought for adjournment of sale – Held, when J.D. failed to avail the opportunity at the initial stage in spite of having full knowledge about the sale proclamation and the proceedings of settlement of terms of sale, no further opportunity need be given to him, at the time of sale. (S.Nooruddin Vs Khadam Gnanoba) 2004(3) Civil Court Cases 696 (A.P.)

Notice – By affixture – Not a valid notice in the absence of process server making repeated efforts to effect personal service and in the absence of Court ordering to follow the procedure contemplated u/o 5 rule 20 CPC on a report of process server. (Pappasani Narayana Reddy Vs Mandem Reddappa Reddy) 2005(1) Civil Court Cases 480 (A.P.)

“Reserve price” and “upset price” – Difference – Though analogous and almost homologous are not synonymous. (Nedungadi Bank Ltd. Vs Ezhimala Agrl. Products) 2004(2) Civil Court Cases 95 (Kerala)

Arrears of pay – Sale of property – Petitioner never filed objections – Bank one of the creditors claiming first charge over said property also did not file objections to sale on ground of pendency of proceedings before Debt Recovery Tribunal – Officer of purchaser accepted in absence of better offer – Petitioner and Banker subsequently raising objection to auction on ground of inadequate consideration – Held, not maintainable in absence of any bona fides – Moreover, purchaser has already deposited entire payment and he should not suffer for no fault of his. (M/s Samrat Ashok Exports Ltd. Vs Asstt. Provident Fund Commissioner) AIR 2002 Karnataka 61

Auction sale – Deposit of 25% of purchase money in Court immediately after auction – Provision is mandatory – Failure to do so – Renders the auction proceedings a nullity – Sale set aside – D.H. withdrew the amount deposited by auction purchaser subsequently – D.H. to refund the said amount with interest at 10% p.a. within 3 months, in default, to pay interest at 18% p.a. (M/s.Ganry’s and Ganry’s  Vs M/s.J.Sikile (India) Ltd.) 2003(2) Civil Court Cases 237 (A.P.) 

Auction – Deposit of auction amount – Period of 15 days – Provision is mandatory – Court in exercise of power u/ss 148 or 151 cannot extend time. (United Commercial Bank Vs Mani Ram) AIR 2003 H.P. 63

25% of auction money deposited – Failure to deposit the remainder within 15 days – Extension of time – Provision of O.21.R.85 is mandatory and Court cannot extend time u/s 148 – Inherent power also cannot be used to extend time fixed by law – Time for deposit of full purchase money fixed by law as 15 days cannot be extended. (United Commercial Bank Vs Mani Ram, Dhani Ram) 2003(3) Civil Court Cases 498 (H.P.) 

Auction sale – Failure to deposit full amount of sale price within specified period of 15 days – Sale becomes a nullity. (Fauja Singh Vs Mohinder Singh) 2003(3) Civil Court Cases 190 (P&H)  

Provision is mandatory – Failure to deposit balance purchase money within period of 15 days results in cancellation of sale itself. (Kadeeja Vs Chandrika) 2005(1) Civil Court Cases 635 (Kerala)

Purchase money – Deposit – Period expiring on day while strike was on and deposit made on the working day next after lifting of strike – Deposit is within time. (Limitation Act, 1963, Ss.4, 5 & 9). (Kadeeja Vs Chandrika) 2005(1) Civil Court Cases 635 (Kerala)

25% of purchase money deposited – Failure to deposit the remainder within 15 days – Forfeiture – Default in despot stated to be due to lack of knowledge of the provision and also due to illness of mother and time consumed in treatment – After deducting the expenses of sale, one half of the remainder of the amount ordered to be forfeited to Govt. and the remaining half is ordered to be refunded to the auction purchaser. (United Commercial Bank Vs Mani Ram, Dhani Ram) 2003(3) Civil Court Cases 498 (H.P.) 

Auction sale – Setting aside – Fraud – Sale can be set aside on ground of fraud – Undervaluation by itself is not sufficient to infer fraud – However gross undervaluation coupled with other circumstances such as one of the purchasers being the son of one of the J.D’s and another one being a relative of one of the J.D’s and the enthusiasm exhibited by J.D’s in having the sale of their own property confirmed are circumstances indicating fraud. (Nedungadi Bank Ltd. Vs Ezhimala Agrl. Products) 2004(2) Civil Court Cases 95 (Kerala)

Auction sale – Setting aside – Cannot be allowed to be achieved by maintaining revision – Remedies U.O.21.Rr.89, 90 to be availed. (Vummethala Vs Thameeru) AIR 2003 A.P. 45

Execution – Sale of property without notice to J.D. – Sale is nullity. (Randhir Singh Vs New Bank of India) AIR 2002 P&H 264

Auction sale – Setting aside – Limitation is 60 days – Time begins to run from the date of sale  – Process of moving an application U.O.21.R.90 has to precede the confirmation of sale – Provision of S.5 Limitation Act is not applicable to an application under O.21 CPC. (Mangilal Narsingdas Gattani Vs Shaligram Ukarda Payghan) 2003(1) Civil Court Cases 497 (Bombay) 

Auction sale – Setting aside – Limitation – Notice not given to J.D. for drawing up sale proclamation – Sale is a nullity – There is no question of 60 days limitation in making application for setting aside sale. (Randhir Singh & Ors. Vs New Bank of India) 2003(1) Civil Court Cases 530 (P&H) 

Auction sale – Setting aside – Mere assertion of circumstances not sufficient to prove fraud – No material produced to prove the same – Further application to set aside sale filed beyond period of limitation of sixty days – Application cannot be entertained. (Boban Vs Sajith Kumar) AIR 2004 Kerala 181

Sale – Ordered to be conducted by SDO (Civil) – However, sale not conducted by him – It is material irregularity. (Ludhiana Improvement Trust Vs Balraj Singh) AIR 2002 P&H 277

Sale – Setting aside – Limitation – Sale sought to be set aside on ground of material irregularity or fraud in publishing or conducting sale – Held, length of time not to be admitted for refusing relief. (Ludhiana Improvement Trust Vs Balraj Singh) AIR 2002 P&H 277

Sale – Setting aside – Notice to J.D. not given – How much property will be sufficient to meet the decretal amount and how much should be the reserve price not decided – No notice to prospective bidders as to postponement of sale – No proclamation of sale in local newspaper – Sale price entered in sale deeds is not the true price as the same is under valued to avoid payment of stamp duty – Sale liable to be set aside. (Randhir Singh Vs New Bank of India) AIR 2002 P&H 264

Sale – Setting aside – Notice to J.D. not given – How much property will be sufficient to meet the decretal amount and how much should be the reserve price not decided – No notice to prospective bidders as to postponement of sale – No proclamation of sale in local newspaper – Sale price entered in sale deeds is not the true price as the same is under valued to avoid payment of stamp duty – Sale liable to be set aside. (Randhir Singh Vs New Bank of India) AIR 2002 P&H 264

Sale – Setting aside – Sale found to be nullity – No question of limitation in making application for setting aside sale arises in such cases. (Randhir Singh Vs New Bank of India) AIR 2002 P&H 264

Auction sale – Setting aside – Failure to state the existence of a well and mango tree in the sale proclamation – J.D. was present through Advocate when sale proclamation was settled – No such objection was raised at that stage by J.D. – Held, J.D. is prohibited from raising that objection as constituting material irregularity in the conduct of sale in view of provisions of O.21.R.90(3) CPC. (Mangilal Narsingdas Gattani Vs Shaligram Ukarda Payghan) 2003(1) Civil Court Cases 497 (Bombay) 

Auction sale – Setting aside – Mere inadequacy of price is not a ground to set aside auction sale – However if there is material irregularity in conducting the sale leading to substantial injury to J.D. then sale has to be set aside. (Randhir Singh & Ors. Vs New Bank of India) 2003(1) Civil Court Cases 530 (P&H) 

Sale – Notice not given to J.D. for drawing up sale  proclamation – Amounts to substantial injury – Sale set aside. (Randhir Singh & Ors. Vs New Bank of India) 2003(1) Civil Court Cases 530 (P&H) 

Sale – Setting aside – Sale cannot be set aside merely on  irregularity in publishing or conducting sale – Sale can be set aside if there is material irregularity or fraud in conducting or publishing the sale and there is irreparable injury. (Randhir Singh & Ors. Vs New Bank of India) 2003(1) Civil Court Cases 530 (P&H) 

Auction sale – Setting aside – Execution of exparte decree – Application for stay of execution filed in an application for setting aside exparte decree – Trial Court should not have proceeded to sell the property in post-haste manner – Sale of land without notice to J.D. on refusal report on an application U.O.21.R.66 CPC shows that the proceedings have been conducted to grant undue benefit to D.H. – Sale set aside. (Mehar Singh & Ors. Vs Firm Pakhar Singh Amir Singh & Ors.) 2005(1) Civil Court Cases 170 (P&H)

Auction sale – Setting aside – Notice U.O.21.R.66 CPC not served upon J.D. nor the valuation of property given by D.H. – Held, sale of property suffers from material illegality and irregularity and the same is liable to be set aside. (Mehar Singh & Ors. Vs Firm Pakhar Singh Amir Singh & Ors.) 2005(1) Civil Court Cases 170 (P&H)

Auction sale – Setting aside – Proclamation of sale – Notice ordered to be issued to J.D. but not served – Proclamation did not contain the correct amount of recovery of which sale was ordered – Court did not record the satisfaction that the sale of property or part of property would be sufficient to satisfy the decree – Proclamation did not contain the estimate given by J.D. in the proclamation – Held, these irregularities are sufficient not to confirm sale. (Dharam Pal  Vs Ludhiana Improvement Trust & Ors.) 2005(1) Civil Court Cases 30 (P&H)

Auction sale – Set aside – Repayment of purchase price – Interest –  Under O.21.R.93 CPC it is discretion of Court setting aside sale either to award interest or not to award interest – Obtaining of possession by purchaser on deposit of purchase price is relevant in deciding whether purchaser would be entitled to interest on the purchase price – Interest not allowed keeping in view that purchaser obtained possession even before he had paid the entire purchase price and had paid only 25 per cent or so of the purchase price and kept that possession for 10 years. (Allahabad Bank etc.  Vs Bengal Paper Mills Co. Ltd. & Ors.) 2005(1) Apex Court Judgments 657 (S.C.) : 2005(2) Civil Court Cases 196 (S.C.)

Execution – Decree of specific performance – Objectors claiming to be in possession of suit premises but miserably failing to prove same that he was running school in premises in question – Objections rightly dismissed. (Central Academy Educational Society Vs Mool Chand & Ors.) 2004(2) Civil Court Cases 353 (Rajasthan)

Dismissal of application U.O.21.R.97 – Dismissal to be treated as decree against which an appeal lies. (Balraj Singh & Anr. Vs Ajit Singh) 2004(3) Civil Court Cases 673 (Rajasthan)

Execution – Decree for possession of immovable property – Application of obstructing party dismissed at its threshold on ground of maintainability – No inquiry into right, title and interest of parties made – Held, such an order cannot be deemed to be decree – Revision and not appeal is maintainable against such order. (Ram Kumar Tiwari Vs Deenanath & Ors.) AIR 2002 Chhattisgarh 1

Decree for specific performance – Execution – Delivery of possession – Obstruction – Obstructing party not having subsisting right or outstanding claim of right in terms of settlement deed – Clause relied on by him in the settlement deed not found valid – Obstruction is not maintainable. (Ittiyachan Vs M.I.Tomy) AIR 2002 Kerala 5

Decree for delivery of symbolic possession – Applicant a stranger to decree in possession of suit premises as lessee – Unless and until objections of applicant are heard, no order in execution requiring applicant to handover vacant possession of suit premises can be passed. (Roshanlal Vs Avinash) AIR 2003 Bombay 31

Execution – Decree for possession of immovable property – Objection can be raised by party apprehending dispossession. (Ram Kumar Tiwari Vs Deenanath) AIR 2002 Chhattisgarh 1

Application u/s 151 filed in execution petition seeking police protection for effecting delivery of possession – Though application is one u/s 151 but nature of relief sought is one under O.21.R.97 for removal of obstruction by third parties – Such an application cannot be ordered without notice – It is mandatory that adjudication be made in such application after giving notice and hearing the parties who are other than J.D’s. (Dairapu Satyanarayana & Ors. Vs Omni Appala Naidu & Ors.) 2004(3) Civil Court Cases 505 (A.P.)

Obstructors – Asserted their lawful possession as tenant – Earlier an application based on same facts was rejected – Order became final with dismissal of revision – Trial Court is not required to determine alleged claim of tenancy as the application is barred by res judicata u/s 11 of the Code. (Abdul Sattar & Ors. Vs Gurlingayya) 2003(1) Civil Court Cases 489 (Karnataka) 

Application U.O.21.R.97 filed on 14.10.2003 but Court did not pass any order and posted it for orders on 1.11.2003 – However, on 14.10.2003 order for execution of decree with police help passed – Application U.O.21.R.97 CPC will be deemed to have been dismissed. (Balraj Singh & Anr. Vs Ajit Singh) 2004(3) Civil Court Cases 673 (Rajasthan)

Decree for possession – Obstruction by third party – Obstructor claiming possession by virtue of his induction as lessee under oral agreement by D.H. himself during pendency of suit – J.D. held to be in possession as lessee by trial Court and first Appellate Court – Claim made by obstructor cannot be believed in absence of evidence, as there cannot be two tenancies of single tenement – Party claiming under D.H. cannot be obstructor and his petition against execution of decree is not maintainable. (Ramachandra Vs Smt.Kempamma) 2003(2) Civil Court Cases 254 (Karnataka) 

Execution – Payments made during pendency of suit and/or execution proceedings – Adjustment – Provision of O.21.R.97 CPC cannot be invoked to make such an application. (Kokila Manohar Bhavsar & Anr. Vs Sulochana Vasant Bhavsar) 2005(1) Civil Court Cases 340 (Bombay)

Obstruction to possession – In case of obstruction D.H. has to file an application under O.21.R.97 – Inspite of obstruction Court Nazir taking forcible possession – Illegal – Such an act of Nazir amounts to misconduct – Conduct of Nazir and acceptance of his report by Executing Court in such circumstances of the case is reprehensible. (Katepaga Yadagiri & Ors. Vs B.Maheshwar Reddy) 2004(2) Civil Court Cases 174 (A.P.)

Obstructor – Not clear as to what is his position – Order as to enquiry to ascertain position of obstructor – No illegality or irregularity in order. (Balraj Singh & Anr. Vs Ajit Singh) 2004(3) Civil Court Cases 673 (Rajasthan)

Removal of person bound by decree who does not vacate – It would include claim of a person who claims to be in possession in his own right and independently of judgment debtor but whose claim ex facie is unsustainable –  However, when resistance is offered or where obstruction proceeds from the claimant claiming to be in possession in his own right and whose claim cannot be rejected on the ground of want of good faith, without investigation, the Decree Holder must proceed U.O.21.R.97 CPC. (P.Janardhana Rao Vs Kannan & Ors.) 2004(2) Apex Court Judgments 626 (S.C.)

Adjudication/enquiry – Adjudication envisaged need not necessarily be a full fledged adjudication akin to O.21.R.58 CPC – It need not be a detailed enquiry by collection of evidence – However, if evidence is necessary then parties may be directed to adduce evidence. (Pagidi Padmavathi & Anr. Vs Kanala Nagaraju & Ors.) 2004(2) Civil Court Cases 559 (A.P.)

Execution – Possession – Obstruction by J.D. – Application by D.H. for removal of obstruction and delivery of possession – Order rejecting application on ground that same was not filed within limitation – Revision against – Not maintainable as remedy is to file appeal as order is to be treated as a decree. (Nallasivam Vs Dakshinamurthy) AIR 2004 Madras 387

Dispossession – Open vacant land –  When possession of open vacant land is delivered in execution of a decree it amounts to dispossession of the owner – Merely because at the time of execution of the decree owner was not physically present it cannot be said that delivery of possession to D.H. by Court does not amount to owners ouster or ‘dispossession.’ (Ashan Devi & Anr. Vs Phulwasi Devi & Ors.) 2004(1) Apex Court Judgments 25 (S.C.) : 2004(2) Civil Court Cases 212 (S.C.)

Application U.O.21.Rr.99 & 100 – Requirement for consideration of application is whether applicant claimed a right independent of the judgment debtor or not – A person claiming through or under J.D. may be dispossessed in execution of a decree passed against J.D. but not when he is in possession of the premises in question in his own independent right or otherwise. (H.Seshadri Vs K.R.Natarajan & Anr.) 2003(2) Apex Court Judgments 01 (S.C.)

Restoration of possession – Application U.O.21.R.99 is maintainable even if execution petition is closed on delivery of possession – Need to file such an application arises only after dispossession and not earlier – Executing Court can entertain such application and pass appropriate orders – Respondent dispossessed with help of Court Nazir having knowledge of its purchase by him – Impugned order of Court below in ordering restoration of possession to respondent – Not illegal. (Katepaga Yadagiri & Ors. Vs B.Maheshwar Reddy) 2004(2) Civil Court Cases 174 (A.P.)

Application U.O.21.Rr.99 & 100 – Requirement for consideration of application is whether applicant claimed a right independent of the judgment debtor or not – A person claiming through or under J.D. may be dispossessed in execution of a decree passed against J.D. but not when he is in possession of the premises in question in his own independent right or otherwise. (H.Seshadri Vs K.R.Natarajan) 2003(3) Civil Court Cases 01 (S.C.) 

Open vacant land – In execution of decree owner dispossessed as possession reported to be delivered to D.H. – Owner looses his right and control over the land when Nazir of Court delivered possession to D.H. – Such a person can make an application  to executing Court and seek adjudication of his right and title in accordance with O.21.R.101 – Separate suit claiming title not required. (Ashan Devi & Anr. Vs Phulwasi Devi & Ors.) 2004(1) Apex Court Judgments 25 (S.C.) : 2004(2) Civil Court Cases 212 (S.C.)

Claim petition – Order in a claim petition is a decree and appeal and second appeal lies – No revision lies. (Vasanthakumari Vs George Selvaraj) 2004(2) Civil Court Cases 524 (Kerala)

L.R’s of J.D. brought on record in execution – Become J.D. – Cannot raise objection for transfer of property to the auction purchaser by claiming tenancy right in said property – Lease created in favour of L.Rs subsequent to passing of decree – Hit by doctrine of lis pendence – Hence void. (Muppidi Dora Reddy Vs Bollreddy Ramakrishan Reddy) AIR 2003 A.P. 299

‘Hearing’ – Meaning – It includes stage of delivery of judgment also. (Smt.Vithabai G.Ghodake Vs The United Western Bank Ltd.) 2003(2) Civil Court Cases 137 (Karnataka) 

Execution – Dismissal for default – Restoration – Where application is filed in time and sufficient cause is shown for non appearance of decree-holder on day of hearing, Court can restore dismissed petition to file – Such restoration does not amount to fresh execution and question of limitation therefore does not arise to bar execution. (Smt.Vithabai G.Ghodake Vs The United Western Bank Ltd.) 2003(2) Civil Court Cases 137 (Karnataka)

Execution – Restoration – Notice returned with endorsement as ‘not claimed’ – Notice is deemed to be duly served – Fact also within knowledge of parties and inspite of this they not participating – Restoration cannot be therefore said to be bad on ground on non service. (Smt.Vithabai G.Ghodake Vs United Western Bank Ltd.) AIR 2003 Karnataka 266

Execution – Restoration of execution proceedings – Does not amount to fresh execution – Petition for execution filed within period of 12 years – Plea that restoration of execution amounts to fresh execution and is barred by limitation – Not sustainable. (Smt.Vithabai G.Ghodake Vs United Western Bank Ltd.) AIR 2003 Karnataka 266

Impleading of L.R’s – Delay of three years – After further gap of 7 years application for condonation of delay filed – Reason stated that applicant practising on criminal side did not know requirements of civil law and the lack of knowledge as to filing of requisite application – Weak and untenable – Right though valuable got extinguished by passage of time – Application dismissed. (Smt.H.T.Shrimathi Rao Vs Prafulla) AIR 2002 Karnataka 255

Death of sole defendant during pendency of application U.O.9.R.7 CPC – Plaintiff failing to bring on record L.R’s within time – No application for setting aside abatement filed by plaintiff thereafter – Suit automatically abated on date of death of sole defendant. (Dharam Singh & Ors. Vs Mukhtiar Singh & Anr.) 2005(1) Civil Court Cases 622 (Rajasthan)

Death of one of defendant during pendency of appeal against decree in partition suit – When right to appeal survives on death of one of several defendants, but his L.R’s not brought on record within period of limitation, appeal abates – Judgment pronounced by first Appellate Court when appeal had abated, is of no consequence – Second appeal is not maintainable. (M.R.Laxmana (Dead) by Lrs & Ors. Vs Govindappa) 2004(2) Civil Court Cases 147 (Karnataka)

Death of party during pendency of appeal against interlocutory order – L.R’s impleaded – L.R’s on record would enure for subsequent stage of suit. (Kanhaiya Prasad Srivastava Vs Smt.Santosh Kumari) AIR 2004 All. 333

Suit for specific performance filed jointly by 3 plaintiffs – One of them dying – L.R’s not impleaded within time – Entire suit abates. (Smt.Annabai Devram Kini Vs Mithilal Daisangar Singh) AIR 2002 Bombay 332

L.R’s – Cannot take a stand contrary to what had been taken by their predecessor-in-interest. (Smt.Chandrakala Vs Kanak Mal) 2003(2) Civil Court Cases 497 (Rajasthan) 

Appeal – Death of appellant during pendency of appeal – Applicant came to know about pendency of appeal when he received a communication from Advocate engaged by his father – Application rejected on the ground that there was no prayer for setting aside abatement of appeal nor for condonation of delay – Applicant therefore filed separate applications which were also rejected – Held,  such technical objections should not come in doing full and complete justice between the parties – L.R’s allowed to be brought on record. (K.Rudrappa Vs Shivappa) 2005(1) Civil Court Cases 627 (S.C.)

Death of one plaintiff during pendency of first appeal and his L.R’s not brought on record – All the plaintiffs claimed common ownership and possession – Appeal stands abated in its entirety. (Arigela Laxmi & Anr. Vs Boodireddy Chandraiah) 2003(2) Civil Court Cases 679 (A.P. 

Appeal – Death of appellant during pendency of appeal – Applicant came to know about pendency of appeal when he received a communication from Advocate engaged by his father – Application rejected on the ground that there was no prayer for setting aside abatement of appeal nor for condonation of delay – Applicant therefore filed separate applications which were also rejected – Held,  such technical objections should not come in doing full and complete justice between the parties – L.R’s allowed to be brought on record. (K.Rudrappa Vs Shivappa) 2005(1) Civil Court Cases 627 (S.C.) : 2005(1) Apex Court Judgments 21 (S.C.)

L.R’s – Impleading of beneficiary of Will – Allowed – Order upheld as in the matter of determination of legal representatives, the genuineness of Will is not to be final determined as inquiry for determination of legal representatives is summary in nature. (Daljit Singh Vs Bhupinder Singh) 2004(2) Civil Court Cases 352 (P&H)

Impleading of L.R’s – Application held not maintainable on ground that separate application for condonation of delay not filed – Subsequently separate applications filed – Held, subsequent applications not barred by principle of res judicata. (Ganeshprasad Badrinarayan Lahoti (D) by Lrs. Vs Sanjeevprasad Jamnaprasad Chourasiya & Anr.) 2004(2) Apex Court Judgments 281 (S.C.) : 2004(3) Civil Court Cases 410 (S.C.)

Civil Procedure Code, 1908, O.22.R.4 – Death of one of the defendants – Impleading L.R’s. – Averments in application vague – Date of death not given – Deceased defendant a well known person and Ex-Chief Minister of State whose date of death could be easily ascertained by Bank – Belated application without giving explanation for delay – Filed on date when hearing was concluded and delivery of judgment was reserved – Application rejected. (Indian Bank Vs M/s B.Patnaik Mines (P) Ltd.) AIR 2003 Orissa 81

Legal representatives – Do not ipso facto become entitled to file a fresh written statement or to take pleading inconsistent to that already taken, or additional defence, or the like – Legal representatives cannot take up a defence which is individual to them and which was not open to deceased defendant. (L.Rs. of Shri Bhanwar Lal Vs L.Rs. of Shri Kanhaiya Lal) 2003(1) Civil Court Cases 255 (Rajasthan) 

L.R’s are entitled to take any defence appropriate to their character as legal representatives and can put all contentions which the deceased-defendant could have urged except only those which were personal to the deceased – Legal representatives are not prevented from setting up also their own independent  title in which case there could be no objection to the Court impleading them not merely as the L.Rs. of the deceased but also in their personal capacity avoiding thereby a separate suit for a decision on title. (Raghunath Dey alias Ray  Vs Mahammad Usman Khan) 2003(2) Civil Court Cases 462 (Orissa) 

Death of defendant who was proceeded exparte – L.R’s not impleaded – Permission as contemplated under the provision not sought so as not to implead L.R’s of deceased defendant – Held, L.R’s of such a deceased defendant were entitled to be brought on record in the suit. (Zahirul Islam Vs Mohd.Usman & Ors.) 2003(1) Apex Court Judgments 329 (S.C.)

Death of sole defendant during pendency of application U.O.9.R.7 CPC – Plaintiff himself submitted application for bringing on record LRs of defendant – Suit could not have proceeded without deciding said application – Court was under obligation to issue notice to LRs of defendant – Finding of appellate Court that plaintiffs were not required to submit any application for bringing on record LRs of defendant as trial Court had already passed exparte order – Liable to be set aside. (Dharam Singh & Ors. Vs Mukhtiar Singh & Anr.) 2005(1) Civil Court Cases 622 (Rajasthan)

Abatement – Application to set aside – Dismissal – Appeal and not revision lies – Fact of composite application U.O.22.Rr.4 & 9 alongwith application u/s 5 Limitation Act is immaterial as fact remains that abatement of suit is automatic on failure to bring on record legal representatives of deceased defendant and order passed is one rejecting application to set aside abatement – Revision dismissed with liberty to file appeal within 15 days from receipt of copy of order. (Manohar Lal Vs Surajmal) 2003(2) Civil Court Cases 257 (Rajasthan) 

Non impleading of L.R’s of a defendant who died during pendency of suit – Effect – Suit for possession of seven rooms –  It was specifically mentioned in plaint as to which room is in possession of which defendant – If the interest of the co-defendants are separate, as in case of co-owners, the suit will abate only as regards the particular interest of the deceased party – Held, in the instant case suit abates only against deceased defendant whose L.R’s not impleaded. (Shahazada Bi & Ors. Vs Halimabi (since dead) by her Lrs.) 2004(2) Apex Court Judgments 437 (S.C.) : 2004(3) Civil Court Cases 689 (S.C.)

L.R’s –  Not entitled to take up a new plea other than the one taken up by the deceased defendant – They are to proceed with the case from the stage of  death of defendant. (J.Vijaya Bhaskar & Ors. Vs J.Jayalakshmi & Ors.) 2004(3) Civil Court Cases 176 (Madras)

Substitution of defendants No.4 & 5 as L.R’s of deceased defendant No.1 their father – Application not opposed by plaintiff – Contest put up by defendant No.1 not to be taken into consideration for rejection of application – Inter-se dispute of defendants, if any, has to be decided in independent proceedings – Further held, that substitution shall not confer upon defendants No.4 & 5 any right of being trustees in the trust. (Ajay Kumar Jaiswal & Anr. Vs Joginder Kumar & Ors.) 2005(2) Civil Court Cases 186 (P&H)

Death of sole defendant during pendency of application U.O.9.R.7 CPC – Plaintiff himself submitted application for bringing on record LRs of defendant – Suit could not have proceeded without deciding said application – Court was under obligation to issue notice to LRs of defendant – Finding of appellate Court that plaintiffs were not required to submit any application for bringing on record LRs of defendant as trial Court had already passed exparte order – Liable to be set aside. (Dharam Singh & Ors. Vs Mukhtiar Singh & Anr.) 2005(1) Civil Court Cases 622 (Rajasthan)

Impleading of L.R’s – Setting aside abatement – Prayer for bringing on record legal representatives – Relief of setting aside abatement though not prayed is implied – Order of abatement set aside. (Ram Dulari & Ors. Vs Maniram Ram Prasad Tiwari & Ors.) 2005(1) Civil Court Cases 297 (Bombay)

Sole defendant – Death – L.R’s not brought on record – Abatement of suit – Plaintiff had no knowledge of death of defendant – Proceedings of suit stayed because of revision filed by defendant – Death of defendant during pendency of revision – Application to implead L.R’s filed after four years – Held, in such circumstances trial Court ought to have exercised discretion for allowing application under rule 4 – Application of plaintiff for substitution treated as consolidated application under rules 4 and 9 and same allowed by condoning delay. (Smt.Mohan Devi @ Mohini Devi Vs Lrs. of Himmat Lal Menaria) 2005(1) Civil Court Cases 431 (Rajasthan)

Death of one of the defendants – Impleading of L.R’s – Failure to implead – Suit does not abate when one or some of the legal representative are already on record though in a different capacity. (Gautam Bhawan Nirman Sahkari Samiti Ltd., Jodhpur Vs Smt.Ramnik Kumari & Ors.) 2004(3) Civil Court Cases 318 (Rajasthan)

Impleading of L.R’s during pendency of revision – Revisional Court to decide application first and then pass order on merits. (Dubbzar Vs Ist ADJ, Azamgarh) AIR 2002 Allahabad 358

Legal heirs – Dispute as to who are the legal heirs of the deceased –  It is incumbent upon the Court to adjudicate the point and without adjudication, L.R’s cannot be brought on record. (Karamjit Kaur & Anr. Vs Gurbant Singh) 2003(3) Civil Court Cases 88 (P&H) 

Legal representative – Determination – Not res judicata in subsequent proceedings – Determination under O.22.R.5 CPC is exclusively for the purpose of ensuring that the deceased is represented effectively by somebody or the other – Such a determination cannot be treated as final pronouncement as to the devolution of, or succession to the rights of the deceased – Separate proceedings have to be initiated for this purpose unless those very questions and issues fall for consideration in that suit or other proceedings itself and all the affected persons are parties to it. (G.N.Kishore Reddy Vs R.Venugopal Rao & Ors.) 2005(1) Civil Court Cases 173 (A.P.)

Legal representative – Impleadment – Order as to – Not a final adjudication as to validity of Will – Final adjudication is not required as to the status of L.R. before impleading him as legal representative. (Shri Baini Parshad Udyog, Jagadhri Vs Nirmal Gupta & Ors.) 2004(2) Civil Court Cases 566 (P&H)

Legal representatives –  All the legal heirs giving up their claim in favour of one by filing an affidavit to this effect – No challenge to the affidavit that the same is false or is result of misrepresentation or fraud – Impleading of one legal heir as legal representative of the deceased plaintiff is proper. (Shri Baini Parshad Udyog, Jagadhri Vs Nirmal Gupta & Ors.) 2004(2) Civil Court Cases 566 (P&H)

‘Legal heir’ & ‘Legal representative’ – Distinction – Concept of ‘Legal heir’ is the result of operation of law of succession and other related personal laws – Legal representative is a person who is entitled to represent the estate of the deceased in the proceedings in which the necessity arises – Legal heir cannot be treated as legal representative if there is conflict of interests between him and the deceased. (G.N.Kishore Reddy Vs R.Venugopal Rao & Ors.) 2005(1) Civil Court Cases 173 (A.P.)

Abatement – Setting aside – Application filed U.O.22.R.9 & S.151 – Application and supporting affidavit showing that plaintiff could not know death of defendant and steps for bring on record L.R’s could not be taken in time – Application in substance is an application for setting aside abatement – fact that no explicit prayer or setting aside abatement is made – Immaterial. (Smt.Kamlesh Vs Tekchand) AIR 2003 Allahabad 299

Detailed enquiry at the stage of granting leave is not contemplated – Court to be only prima facie satisfied for exercising its discretion in granting leave for continuing the suit by or against the person on whom the interest has devolved by assignment or devolution – Question about the existence and validity of the assignment or devolution can be considered at the final hearing of the proceedings. (Amit Kumar Shaw & Anr. Vs Farida Khatoon & Anr.) 2005(2) Civil Court Cases 423 (S.C.)

Execution – Death of D.H. during pendency of execution petition – Execution cannot proceed until legal heirs of D.H. are brought on record. (MakkhanLal Jaiswal Vs Executive Engineer) AIR 2002 All. 75

Withdrawal of suit – Unconditional withdrawal of suit – Claim which could have been claimed but not claimed, stands relinquished as lost claim and plaintiff cannot file a second suit for such claims. (Hari Ram Vs Lichmaniya & Ors.) 2004(2) Civil Court Cases 244 (Rajasthan)

Suit for specific performance – Dismissed by trial Court and affirmed by first appellate Court but claim for refund of Rs.2500/- with interest allowed – In second appeal in terms of consensus of both counsels decree modified where respondents were to pay Rs.25,000/- to appellant – Contention that in absence of compromise in writing and signed by parties, impugned decree could not be passed – Held, judgment or decree passed as result of consensus arrived at before Court cannot always be said to be one passed on compromise or settlement and adjustment – No allegation attributing any impropriety to act of counsels – No interference is called for. (Jineshwardas (D) through LRs. & Ors. Vs Smt.Jagrani & Anr.) 2003(2) Apex Court Judgments 405 (S.C.) : 2003(3) Civil Court Cases 713 (S.C.) 

Summary suit – Plaintiff can at any time abandon or give up part of claim unilaterally – Recording of statement of plaintiff by Court is sufficient – Making of formal application by plaintiff for same is not necessary. (SICOM Ltd. Vs Prashant S.Tanna) AIR 2004 Bombay 186

A litigant should not be allowed to reagitate the same cause of action once he has availed an opportunity to approach the Court with respect thereto. (Hari Ram Vs Lichmaniya & Ors.) 2004(2) Civil Court Cases 244 (Rajasthan)

Appeal dismissed as withdrawn – Restoration of appeal by recalling the order of dismissal as withdrawn – Maintainable if fraud is played upon plaintiff or appellant as the case may be – In the instant case constructive fraud was played on appellant as such order dismissing appeal as withdrawn recalled and appeal restored to its original number and position. (State Bank of India Vs Firm Jamuna Prasad Jaiswal and Sons and Anr.) 2004(2) Civil Court Cases 119 (Allahabad)

Compromise decree – Benefit under decree cannot be defeated merely by death of decree holder. (Manju Lata Sharma Vs Vinay Kumar Dubey) AIR 2004 Allahabad 92

Compromise decree – Compromise instrument or compromise decree is to be read as a whole in order to gather intention of parties and for interpretation of any particular part of expression. (Manju Lata Sharma V. Vinay Kumar Dubey) AIR 2004 Allahabad 92

Compromise decree – Recall – Premises vacated on receipt of Rs.7.50 lacs – Respondent however seeking recall of consent decree on the plea that consent was obtained under duress and coercion – Respondent alleged to be forcibly evicted on 24.12.1997 and consent terms signed on 29.12.1997 – If respondent was forcibly evicted on 24.12.1997 then he would not have signed consent terms on 29.12.1997 – Secondly respondent subsequent to consent terms encashed cheques – Encashing of cheques is itself a proof that he himself is bound by the terms of settlement – Held, consent decree passed is valid in law. (Gangadeep Pratishthan Pvt. Ltd. & Ors. Vs M/s.Mechano & Ors.) 2005(2) Civil Court Cases 52 (S.C.)

Deletion of name of one of the defendants – Order cannot be challenged by defendant who is still a party to the suit as he has no grievance as to the deletion of name of other defendant. (Brown-Forman Mauritius Ltd., Mauritius Vs M/s Jagatjit Industries Ltd. & Ors.) 2005(1) Civil Court Cases 475 (P&H)

Deletion of name of proforma defendant – Held, plaintiff is the dominus litus of the suit and he can choose as to against which party he wants claim as relief – Plaintiff is well within his right to pray for deletion of name of one of the defendants. (Brown-Forman Mauritius Ltd., Mauritius Vs M/s Jagatjit Industries Ltd. & Ors.) 2005(1) Civil Court Cases 475 (P&H)

Earlier suit claiming right of pathway not complying with provisions of O.7.R.3 – Suit dismissed as not pressed – Not a bar to later suit containing necessary averment for establishment of easement right with schedule as required by O.7.R.3 CPC. (Subha Jayan Vs Meenakshy Kumaran & Ors.) 2004(2) Civil Court Cases 669 (Kerala)

Earlier suit claiming right of pathway not complying with provisions of O.7.R.3 CPC – Suit dismissed as not pressed – Later suit claiming easement right containing necessary averments for establishment of easement right – No contention regarding maintainability of suit in written statement nor plaint of earlier suit produced as exhibit – Dismissal of suit on issue of maintainability, not justified. (Subha Jayan Vs Meenakshy Kumaran & Ors.) 2004(2) Civil Court Cases 669 (Kerala)

Judgment or decree passed as a result of consensus arrived at before Court cannot always be said to be one passed on compromise or settlement and adjustment – It may, at times, be also a judgment on admission. (Jineshwardas (D) through LRs. & Ors. Vs Smt.Jagrani & Anr.) 2003(2) Apex Court Judgments 405 (S.C.) : 2003(3) Civil Court Cases 713 (S.C.) 

Partition suit – Withdrawal of suit – In partition suit even defendants can seek separate possession of their share by paying necessary Court fee and in case of withdrawal of suit they can seek to transpose themselves as plaintiffs and continue suit – Where defendant has sought separate possession and paid necessary court fee, permitting plaintiff to withdraw suit amounts to denial of defendant’s right to continue suit – Such order for withdrawal is liable to be set aside. (Smt.Gowramma Vs Nanjappa) 2003(1) Civil Court Cases 267 (Karnataka) 

Party desiring to file fresh suit on new cause of action – Leave of Court – Not necessary. (Mahadkar Agency Vs Padmakar Achanna Shetty) AIR 2003 Bombay 136

Second suit on the same cause of action filed the day earlier suit was withdrawn – Earlier suit withdrawn without permission of Court to file fresh suit on the same cause of action – Fact of filing of earlier suit not mentioned in the second suit – Second suit dismissed being not maintainable. (Jonnala Sura Reddy & Anr. Vs Tityyagura Srinivasa Reddy & Ors.) 2004(2) Civil Court Cases 417 (A.P.)

Unconditional withdrawal of suit as defendant satisfied the plaintiff – Held, if satisfaction of plaintiff has not resulted into a decree and plaintiff withdraws suit unconditionally then plaintiff cannot reagitate the issues which were involved in the suit. (Hari Ram Vs Lichmaniya & Ors.) 2004(2) Civil Court Cases 244 (Rajasthan)

Withdrawal of suit – At appellate stage – Suit for perpetual and mandatory injunction dismissed on merits by holding that no part of land belonging to plaintiff was encroached by defendant – Order permitting withdrawal of suit by plaintiff at appellate stage with leave to file fresh suit on the same cause of action is not proper. (Mangat Ram Vs Chura Dutt & Anr.) 2003(3) Civil Court Cases 408 (H.P.) 

Withdrawal of suit at appellate stage – Not permissible. (Gian Chand Modi Vs M/s Sawan Ram Muni Lal) 2003(2) Civil Court Cases 118 (P&H) 

Withdrawal of suit at appellate stage with liberty to file fresh suit on the same cause of action – To avoid multiplicity of proceedings, suit can be permitted to be withdrawn with liberty to file a fresh suit on the same cause of action. (C.Vaiyapuri Gounder & Ors. Vs Commissioner, H.R. & C.E (Administration Department), Chennai & Ors.) 2005(2) Civil Court Cases 429 (Madras)

Withdrawal of withdrawal application – Permissible if fraud is played upon plaintiff or upon the appellant as the case may be. (State Bank of India Vs Firm Jamuna Prasad Jaiswal and Sons and Anr.) 2004(2) Civil Court Cases 119 (Allahabad)

Withdrawl of suit – Speaking order not necessary for allowing withdrawal simpliciter. (Mahadkar Agency Vs Padmakar Achanna Shetty) AIR 2003 Bombay 136

Withdrawl of suit at final stage – Not allowed considering large number of pending cases and time required for hearing each case – Also due to absence of special circumstances. (Siddagangappa Vs Thimmanna) AIR 2003 Karnataka 164

Bar created by O.23.R.1(4) does not operate against the successor-in-title. (Harischandra Vithoba Narawade & Ors. Vs Smt.Vatsalabai w/o Narayan Shinde) 2005(1) Civil Court Cases 217 (Bombay)

Formal defect – Petition allowed to be withdrawn – Grant of liberty to file fresh petition on the same cause of action has to be inferred. (Mangal Sain Vs Jiwan Dass) 2003(1) Civil Court Cases 329 (P&H) 

Withdrawal of suit – Sought immediately after filing of written statement by defendant and before framing of issues as plea of misrepresentation and fraud by inadvertence could not be taken and that detailed particulars of fraud and misrepresentation were sought to be pleaded by filing the new suit – Application allowed. (Narain Vs Rewati) 2005(1) Civil Court Cases 386 (P&H)

Application U.O.23.R.3 – No ad-valorem court fee needs to be affixed on such an application. (Ravinder Kumar Rishi Vs Sushma Rishi) 2003(2) Civil Court Cases 612 (Delhi) 

 Compromise decree – Appeal against – Not maintainable. (Santosh Kumar Vs Karam Devi) AIR 2002 P&H 20

 Consent decree – Review/recall petition – Does not lie – However, review petition is maintainable u/s 151 only if it is proved that fraud is played on Court. (Smt.Anita Vs R.Rambilas) AIR 2003 A.P. 32

Compromise – Between tenant and one of the landlords – Compromise cannot be enforced qua the other landlords. (Sat Pal & Ors. Vs Firm Sat Pal Sanjeev Kumar & Ors.) 2004(2) Civil Court Cases 422 (P&H)

Compromise – By counsel – Consent of client is not needed for a matter which is within the ordinary authority of the counsel – Compromise in Court by the counsel whose authority has not been expressly limited, the client is bound by such compromise – If matter is settled in Court in presence of client, his consent will be inferred. (Girnari Devi Vs Gopal Dass) 2003(1) Civil Court Cases 410 (P&H)

 Compromise – Entered in two between landlord and tenant and revision disposed of in terms of compromise – Compromise not signed by either of parties or counsel – It violates O.23.R.3 – Cannot be enforced – Even if revision is adjusted or disposed of by agreement and there is no final adjudication, same cannot dilute requirement of compromise being signed in writing by parties. (S.P.Minocha Vs Lila Ram) AIR 2002 Delhi 223

Compromise – In writing signed by parties at the time of recording of compromise – Petitioner examined by Court for being satisfied that she had entered into compromise and petitioner admitted factum of compromise – Original compromise petition contained seal of Court on all pages and signatures of all parties and their advocates – It cannot be said that compromise was not lawfully entered. (Ramawati Devi Vs Maheshwar Singh) AIR 2003 Patna 101

Compromise – Normally Court passes decree in terms of compromise – However Court can make a change – If Court makes a change then reasons for making the change have to be recorded and then decree is not in terms of compromise. (Rajasthan Financial Corporation Vs M/s.Man Industrial Corporation Ltd.) 2003(2) Apex Court Judgments 490 (S.C.)

Compromise – On the basis of compromise decree passed and plaintiff acted upon the decree – Held, plaintiff then has no right to say that compromise is the result of mis-representation or fraud. (Jagat Singh (Deceased) Vs Babu Singh & Ors.) 2005(1) Civil Court Cases 789 (P&H)

Compromise – Recorded in police station during pendency of suit – Suit cannot be disposed of except by recording compromise and that too by following the procedure, and recording the satisfaction, contemplated by O.23.R.3 CPC. (Ajad Singh @ Ajad Vs Chatra & Ors.) 2005(1) Apex Court Judgments 385 (S.C.) : 2005(1) Civil Court Cases 577 (S.C.)

Compromise – Validity – Can be challenged before the same Court – Compromise whether void or voidable has to be determined by the Court – Once it is held that compromise is fraudulent the same per se would be unlawful and the Court is required to declare the same as such. (Dwarka Prasad Agarwal (D) by Lrs. and Anr. Vs B.D.Agarwal & Ors.) 2003(2) Apex Court Judgments 453 (S.C.) : 2003(3) Civil Court Cases 546 (S.C.) 

Compromise decree – Setting aside – Petitioner in cross examination admitted that opposite Advocate read over compromise petition to them and thereafter they signed it – Thus, petitioners knew contents of compromise but had not raised any objection thereto – Cannot be allowed to challenge compromise decree alleging that it was not prepared according to terms and conditions of settlement reached between parties. (Kalipada Deka Vs Danpati Deka) AIR 2003 Gauhati 64

Compromise decree – Testamentary suit – Compromise can be acted upon if same is entered into by all legal heirs of testator – If the heirs compromise then decree will not be binding on other heirs who had not joined compromise. (P.Jothi Bai Vs B.Dorairaj) AIR 2002 Madras 191

Compromise decree – Setting aside – Decree alleged to be obtained by fraud – Suit seeking setting aside of compromise dismissed as barred by O.23.R.3-A – Said order attained finality – Thereafter petition U.O.23.R.3 read with S.151 seeking setting aside of compromise decree – Not maintainable. (Kalipada Deka Vs Danpati Deka) AIR 2003 Gauhati 64

Consent decree – Appeal against – Availability of alternative remedy under Proviso to R.3 of O.23 – Not a ground for non entertaining appeal. (Kantaben T.Shah Vs Devendrakumar C.Shah) AIR 2002 Gujarat 160

Partition suit – Compromise – Decree passed on basis of compromise reached by parties representing heads of branches without notice to other members of branches who are interested in suit and without obtaining leave of Court to compromise – Such compromise decree does not bind other members of branches – Such member is competent to file suit for appropriate relief ignoring such compromise decree – Such suit is not barred either by principle of res judicata or estoppel. (Siddalingeshwar & Ors. Vs Virupaxgouda & Ors.) 2004(2) Civil Court Cases 655 (Karnataka)

Partition suit – Compromise decree – Leave not granted by Court – Notice not given to members of branches who are interested in suit – Compromise is void – Person interested in suit but had no notice of compromise is not barred from challenging compromise decree. (Siddalingeshwar & Ors. Vs Virupaxgouda & Ors.) 2004(2) Civil Court Cases 655 (Karnataka)

Compromise decree – Court not expressly record grant of leave to parties to enter into compromise and no notice given to persons interested in suit – Compromise held, void – O.23.R.3A will not bar subsequent suit challenging compromise decree – Persons interested in said suit can file subsequent suit challenging consent decree. (Siddalingeshwar Vs Virupaxgouda) AIR 2003 Karnataka 407

 Representative suit – Decree passed in compromise without complying R.3B – Any person affected by it, but not party to it can file separate suit seeking appropriate relief in regard to said decree by way of declaration or otherwise – He can also file suit for appropriate relief ignoring compromise decree and such suit will not be barred by principle of res judicata. (Siddalingeshwar Vs Virupaxgouda) AIR 2003 Karnataka 407

Compromise decree – Tendency of trial Court to pass mechanically compromise decree without examining whether suit is representative suit and without satisfying itself about lawfulness of compromise – Such tendency is deprecated. (Siddalingeshwar & Ors. Vs Virupaxgouda & Ors.) 2004(2) Civil Court Cases 655 (Karnataka)

Compromise decree – Remedy against – Decree can be assailed either U.O.23.R.3 before the Court which passed the compromise decree or by way of an appeal – Suit to assail such decree is barred. (Gopal Lal Vs Babu Lal & Ors.) 2004(2) Civil Court Cases 462 (Rajasthan)

Commissioner – Appointment at pre evidence stage to know the correct ground reality of the suit property –  Not improper when no prejudice or hardship is likely to be caused to the opposite party. (Suresh Vs Vijaykumar)2003(2) Civil Court Cases 584 (Karnataka) 

Witness – Examination – On commission – It is not choice of witness. (Rayala Umamaheswara Rao Vs Dantuluri) AIR 2002 A.P. 178

Commission to examine witness – Affidavit or medical certificate indicating illness and immobility, not filed alongwith application – Held, application was rightly rejected. (Smt.Shanti Bai Vs Udai Raj) 2005(2) Civil Court Cases 56 (Rajasthan)

Local Commissioner – Refusal to appoint – Order is interlocutory – Revision against – Not maintainable. (M/s.Benz Automobiles Private Limited,  Vs C.Mohanasundaram & Ors.) 2004(2) Civil Court Cases 278 (Madras)

Local Commission – Court can appoint suo moto – When local investigation is requisite or proper, Court can appoint Local Commissioner suo moto. (Punjab Wakf Board   Vs Shri Neeko) 2004(3) Civil Court Cases 52 (P&H)

Local Commissioner – Cannot be appointed to ascertain as to who is in possession. (M/s.Benz Automobiles Private Limited,  Vs C.Mohanasundaram & Ors.) 2004(2) Civil Court Cases 278 (Madras)

Local commissioner – Court has discretion to order local investigation – In boundary disputes and disputes about identity of land Court should order local investigation. (Kishanlal Maniklal Rathi Vs Dinkar Yashwant Patil) 2004(2) Civil Court Cases 456 (Bombay)

Local commissioner – Encroachment – Oral evidence cannot conclusively prove such an issue – To determine the area encroached it is always desirable to get the field measured by an expert and find out the area encroached upon. (Kishanlal Maniklal Rathi Vs Dinkar Yashwant Patil) 2004(2) Civil Court Cases 456 (Bombay)

Local Commissioner – To ascertain as to which party is in possession – It is beyond the scope of O.26.R.9 CPC – This question has to be decided by Court after parties adduce evidence. (Ashutosh Dubey & Anr. Vs Tilak Grih Nirman Sahkari Samiti & Anr.) 2004(3) Civil Court Cases 678 (M.P.)

Local Commissioner – When there is a dispute about an encroachment or dimension of a site, Commissioner must be appointed by Court to take joint measurements. (Kashinath Chindhuji Shastri Vs Haribhau Nathuji Bawanthade) 2004(2) Civil Court Cases 436 (Bombay)

Second local commissioner – Merely because the first report was confirmed, subject to the evidence by the parties, the issuance of the second commission could not be denied. (Ghurhu Vs X Additional District Judge, Varanasi & Ors.) 2004(2) Civil Court Cases 309 (Allahabad)

Local Commissioner can be appointed ex parte – Report of Local Commissioner without issuing notice to the other party is admissible in law – However, report of Local Commissioner is not admissible in evidence unless Local Commissioner is examined in Court and an opportunity is given to the other party to cross examine him. (Piara Lal Vs The Liquidator Cooperative Store, Kapurthala & Ors.) 2004(2) Civil Court Cases 573 (P&H)

Local Commissioner – Court has power to appoint a Local Commissioner for the purpose of elucidating any matter in dispute. (Piara Lal Vs The Liquidator Cooperative Store, Kapurthala & Ors.) 2004(2) Civil Court Cases 573 (P&H)

Local Commissioner – – Neither objections raised nor request made for appointment of another Local Commissioner – Presence of Local Commissioner before Court is not necessary – Report of Local Commissioner can be read in evidence. (Jagdish & Anr. Vs Sanjay Kumar & Ors.) 2004(2) Civil Court Cases 286 (P&H)

Local Commissioner – Appointment for knowing as to whose possession – Parties can lead evidence – Appointment of Local Commissioner would amount to collecting evidence on behalf of plaintiff – Order rejecting application justified. (Madhu Sudan Pradhan Vs Santosh Kumar Das) AIR 2004 Orissa 86

Commission report partitioning properties in a final decree proceedings – Order refusing to set aside the report – Order not revisable but correctness of the order can be gone into in exercise of the powers under Art.227 of the Constitution of India. (Nirmala Ravindran  Vs Mohanan) 2004(2) Civil Court Cases 81 (Kerala)

Commissioners report – Cannot form basis of decree in absence of proof – Merely because objections not raised by defendant, report cannot be said to be proved. (Khurshed Banoo Vs Vasant Malikarjun Manthalkar) AIR 2003 Bombay 52

Commission – Examination of witness – Admission of document – Is different from admission of recital – If opportunity to examine witness not given petitioners right of substantial and effective defence would be adversely affected – Order rejecting application for examination of witnesses liable to be set aside. (Dasu Jaya Vani Vs Bala Seethapati) AIR 2003 A.P. 293

Age of ink – Cannot be determined on the basis of the writing. (Yash Pal Vs Kartar Singh) 2003(3) Civil Court Cases 630 (P&H) 

Principal Officer of Corporation cannot delegate power to file appeal – Appeal filed by District Manager who was authorised by Regional Manager to file appeal is not maintainable. (Food Corporation of India, Hissar Vs Dhani Ram) 2005(1) Civil Court Cases 159 (P&H)

Corporation – Service of summons – Service report not indicating that efforts were made to serve summons on Secretary or Director or any other Principal Officer of Corporation in terms of Cl.(a) of R.2 – Resort to mode of service provided by Cl.(b) of R.2 – Improper. (Rajesh Bansal Vs M/s Ansal Housing Construction) AIR 2002 Delhi 214

Partnership firm – Registered – Suit filed by person who was one of the partners – Suit is competent. (S.Butail and Co. Vs H.P.State Forest Corpn.) AIR 2002 H.P.1

Suit by one of the partners of firm – Not invalid for non joinder of firm. (State of Tripura Vs M/s Bhowmik & Company) AIR 2004 Gauhati 19

Proprietorship firm – Suit can be filed by or against the firm in business name than in the name of individual partners. (M/s.Paras Industries, Ludhiana Vs M/s.Paras Special Machine Co.) 2003(3) Civil Court Cases 540 (P&H) 

Proprietorship firm – Suit has to be brought in the name of proprietor and not in the trading name. (Municipal Council, Tiroda Vs K.Ravindra & Company) 2003(2) Civil Court Cases 578 (Bombay) 

Minor – Petition filed through brother though father alive – Minor can sue through a guardian, who may not have any interest adverse to him/her, it may be, father, mother or brother – Once, brother is held having no interest adverse to the minor, a lis can be filed through him. (Ramesh Kumar Vs Sunita Devi) 2005(1) Civil Court Cases 572 (P&H)

Minor’s undivided share in joint family property – Partition suit on behalf of minor filed by mother as next friend of minor against minor’s father – Suit is not maintainable where it is not proved that father as natural guardian of minor has neglected to provide for minor’s maintenance or denied his right or mismanaged property jeopardizing minor’s interest therein. (Smt.Gourawwa Vs Basappa) 2003(3) Civil Court Cases 328 (Karnataka) 

Aged lady – Inability to defend due to advanced age – Appointment of guardian – Guardian can only be appointed after holding an enquiry whether applicant is incapable of protecting her interest by reason of any mental infirmity or not. (Kasturi Bai & Ors. Vs Anguri Chaudhary) 2003(1) Apex Court Judgments 690 (S.C.)

Permission to sue as indigent person – Report of Collector that husband of applicant has substantial income and that she is living with her husband – Nothing stated about income of applicant – Held, inquiry has to be into the means of the person who applies to sue as indigent person – Permission to sue as indigent person granted. (Janak Kumari Vs Land Acquisition Officer) 2003(1) Civil Court Cases 155 (M.P.) 

Permission to sue as indigent person – Specific pleading that plaintiff does not possess any property – It amount to compliance of R.2 of O.33 CPC. (Devarakondappa Vs K.Rajeshwari) 2003(3) Civil Court Cases 202 (Karnataka) 

Application to sue as indigent person – Suit against Insurance Company for recovery of damages caused to car – Details of property belonging to plaintiff not appended with the application – Plaintiff ex-serviceman and had also purchased a car – Appellate Court, however, protected his interest by referring the matter to trial Court U.O.33.R.15-A CPC – Petition dismissed. (Harnam Singh Vs Oriental Fire and General Co.Ltd.) 2003(3) Civil Court Cases 295 (P&H) 

Minor – Suit filed without next friend – Defective – Irregularity in instituting the suit does not make the suit wholly bad  – It is a defect in procedure – Such defect can be corrected only when the defendant makes an application under Rule (2) of Order 32 CPC or when an application is filed by next friend on noticing the said defect. (Y.Chinna Butchi Reddy & Ors. Vs Y.Kesava Madhusudhana Reddy & Ors.) 2004(2) Civil Court Cases 206 (A.P.)

Permission to sue as indigent person – Utmost bona fide is required in matter of disclosure of assets – Deliberate concealment of material particulars of properties entails dismissal of application.  (Doddananjappa & Ors. Vs The Sub-Registrar, Hoskote Taluk, Hoskote & Ors.) 2003(3) Civil Court Cases 422 (Karnataka)  

Minor – Suit filed by minor thinking that he was major based on school certificate which appears to be not correct – On defect being pointed out in written statement his grand mother immediately filed an application to permit her as next friend and to make necessary amendments – Defendant failed to make an application U.O.32.R.2(1) – Question of taking the plaint off the file does not arise in such circumstances – Allowing of such application by Court below U.O.32.R.2(2) is perfectly justified. (Y.Chinna Butchi Reddy & Ors. Vs Y.Kesava Madhusudhana Reddy & Ors.) 2004(2) Civil Court Cases 206 (A.P.)

Minor – Suit filed without next friend – Two contingencies – One is that suit is filed knowing that he is minor and he is incompetent to institute a suit without the next friend and yet filing a suit with a view to deceive the Court or with some ulterior purposes and the other a minor filing suit without knowing or realizing his minority – In the former case suit is to be dismissed and in the latter case the plaint is to be taken off the file. (Y.Chinna Butchi Reddy & Ors. Vs Y.Kesava Madhusudhana Reddy & Ors.) 2004(2) Civil Court Cases 206 (A.P.)

Suit filed by a person of unsound mind – When such a finding is reached by Court suit is not to be dismissed but plaint is to be taken off the file enabling person of unsound mind to cure irregularities – When defect is cured and person of unsound mind is properly represented then suit continues. (Amrutaben Budhaji Thakore Vs Nitaben Somabhai Patel) AIR 2003 Gujarat 292

Minor – Compromise – Without leave of Court – Can be attacked in three ways (a) by an application to the Court in which the compromise took place; (b) by a regular suit to set aside the decree and (c) by bringing a fresh suit. (Rama & Ors. Vs Hari Singh & Ors.) 2004(3) Civil Court Cases 708 (P&H)

Dismissal of suit on basis of report of referee – Contention that judgment is nullity as dispute could not be referred on behalf of minor to referee without leave of Court – Does not make the decree void but voidable at instance of minor. (Rama & Ors. Vs Hari Singh & Ors.) 2004(3) Civil Court Cases 708 (P&H)

Aged lady – Inability to defend due to advanced age – Appointment of guardian – Guardian can only be appointed after holding an enquiry whether applicant is incapable of protecting her interest by reason of any mental infirmity or not. (Kasturi Bai  Vs Anguri Chaudhary) 2003(2) Civil Court Cases 699 (S.C.) 

Lunatic – Decree against – No formal order passed appointing a guardian from the date of institution of suit till the appointment – No prejudice caused to the J.D. – Suit not null and void – Court has jurisdiction to try the suit. (Jolly Vs Oriental Kuries Ltd.) 2003(2) Civil Court Cases 484 (Kerala) 

Unsound mind – Question as to – For this purpose trial Court should examine the alleged lunatic either in open Court or in Chambers and in the presence of medical expert – Trial Court has got ample power to compel the attendance of the alleged lunatic before it and to submit himself for medical examination. (Shakunthala Devi Vs K.S.Naidu & Anr.) 2005(1) Civil Court Cases 271 (Madras)

Guardian – Appointment – Plaintiff examined himself – Medical certificate proved by doctor – Procedure followed and hence no interference in order of appointment of guardian. (M/s Leelason Breweries Ltd. Vs Beemireddy Lakshminaryana Reddy) AIR 2002 A.P. 253

Forma pauperis – Mere possession of ornaments or a plot is not sufficient – If property in possession of appellant is not sufficient enough to raise money to pay the requisite court fee, he or she should not be deemed to be possessing sufficient means to pay court fee – Appellant allowed to file appeal as forma pauperis. (Smt.Manjulata Vs Sidhkaran) 2005(1) Civil Court Cases 07 (Rajasthan)

Permission to sue as indigent person – Suit for damages – Facts on record completely belied statement – Plaintiff a person with lots of wealth and resources – Person claiming damages of 29 lakhs must be wealthiest person – Such frivolous attempts by suppressing true facts would be abuse of process of law and make liable for punishment. (S.Saraswathi Vs Executive Member, Karnataka Industrial Area Development Board) AIR 2002 Karnataka 447

Permission to sue as indigent person – Petitioner partner in a firm having annual income of Rs.15 lacs – Petitioner also having some immovable property – Plea that if income from firm is used for payment of stamp duty then business will stop – Not tenable – Petitioner cannot be permitted to sue as indigent person. (Lokesh Patawari Vs State of U.P. & Ors.) 2005(2) Civil Court Cases 193 (Allahabad)

Permission to sue in forma pauperis – Collector in his report stated that husband of applicant has 13 acres of land and is having annual income of Rs.30,000/- Nothing in report that applicant has any source of income and is possessed of any means or sufficient realisable property from which she could arrange for payment of Court fees – Rejection of application, not proper. (Janak Kumari Vs Land Acquisition Officer) AIR 2002 M.P. 253

Permission to sue as pauper – List of moveable and immovable property with estimated value – Is mandatory – Deliberate omission on part of applicants to show that they do not possess sufficient means – Rejection of application, proper. (Doddanjappa Vs The Sub Registrar) AIR 2003 Karnataka 205

Application to sue as an indigent person – Permission declined – Suit shall be deemed to be filed the day application seeking permission to sue as indigent person was filed and not on the day Court fee was paid – Interest on the amount decreed is thus payable from the day application seeking permission to sue as indigent person was filed. (Shiv Dayal & Ors. Vs Ram Kali & Ors.) 2005(2) Civil Court Cases 242 (P&H)

Permission to sue as indigent person – Application to presented in person by applicant or leave of Court be taken if to be presented by authroised agent or power of attorney holder – Where leave of Court to present application through power of attorney holder is not obtained, Court examining power of attorney holder regarding merits of applicant’s claim is without jurisdiction. (Easi Technologies Private Limited, Bangalore Vs S.K.Sannakalegowda) 2004(2) Civil Court Cases 572 (Karnataka)

Permission to sue in forma pauperis – Rejection of application – Court to grant reasonable time to pay requisite Court fee irrespective of whether time to pay Court fee is sought or not – Trial Court was not justified in preventing applicant from prosecuting his suit by rejecting Court fee subsequently tendered on ground that he had not sought Court’s permission to prosecute suit. (Smt.B.S.Annapurna & Ors. Vs Kumaraswamy & Anr.) 2004(2) Civil Court Cases 562 (Karnataka)

Final decree – Limitation to file application to pass a final decree starts to run from the date of expiry of the period fixed in the preliminary decree and if no period is fixed, within six months from the date of the preliminary decree unless it is extended by an order of the Court. (Govindan Nair Vs Abraham) 2003(1) Civil Court Cases 206 (Kerala) 

Bank loan – Suit for recovery – Interest – Reduced from 12% to 6% from date of suit to date of realisation. (M/s Radha Agencies Vs Vijaya Bank) AIR 2002 A.P. 91

Mortgaged suit – Interest – Prior to filing of suit and pendente lite interest – Interest payable is contractually fixed between parties. (State Bank of India Vs Swapan Basak) AIR 2002 Gauhati 48

Summary suit – Counter claim filed – Would not detract or result in suit filed as summary suit being treated as regular suit. (Suraj Sanghi Finance Ltd. Vs Credential Finance Ltd.) AIR 2002 Bombay 481

Summary suit – Contract of guarantee – Default committed by principal debtor and suit filed against guarantor in terms of contract treating him as guarantor – Suit cannot be said to be suit on guarantee U.O.37.R.1(2) but based on written contract between parties – Suit is maintainable as summary suit. (Mukesh Gupta Vs SICOM Ltd.) AIR 2004 Bombay 104

Summary suit – Falling within one of classes of suits – Suit is maintainable even if claim made therein is not properly quantified or is in excess of what the plaintiff is entitled to. (SICOM Ltd. Vs Prashant S.Tanna) AIR 2004 Bombay 186

Summary suit – Plaintiff is entitled at any time to abandon or give up a part of the claim unilaterally – This can be done by making a statement to be recorded by the Court without the necessity of making a formal application for withdrawing the summons for judgment, amending the plaint and taking out fresh summons for judgment. (Sicom Ltd. Vs Prashant S.Tanna & Ors.) 2004(3) Civil Court Cases 495 (Bombay)

Summary suit – Mere making of an excess claim or not quantifying the same properly does not render a suit not maintainable as a summary suit. (Sicom Ltd. Vs Prashant S.Tanna & Ors.) 2004(3) Civil Court Cases 495 (Bombay)

Summary suit – Suit for recovery against guarantor – Suit instituted in terms of agreement – Suit is maintainable as summary suit. (Mukesh Gupta Vs Sicom Ltd., Mumabi) 2004(2) Civil Court Cases 539 (Bombay)

Loan by cheque – Non payment – Is not a suit upon a cheque or bill of exchange – Suit is not maintainable as a summary suit. (Ms.Purnima Jaitly Vs Ravi Bansi Jaisingh) 2004(2) Civil Court Cases 364 (Bombay)

Summary suit – Suit based on invoice – Invoice not containing any terms and conditions entered into between parties regarding supply of goods and its payment – No written contract between parties – Suit not triable as summary suit. (M/s A.R.Electronic Pvt.Ltd. Vs M/s R.K.Graphics Pvt.Ltd.) 2003(2) Civil Court Cases 544 (Delhi) 

Summary suit – Balance payable confirmed by debtor and creditor – If interest was paid in past at 18% per annum then subject to anything to the contrary it would imply a promise to continue to pay interest at that rate on balance confirmed – In such circumstances it is not necessary to have express stipulation that balance would be paid with interest. (Sun N Sand Hotel Limited  Vs M/s.V.V.Kamat, HUF) 2003(3) Civil Court Cases 508 (Bombay) 

Summary suit – Suit based on balance confirmation letter is maintainable as summary suit. (Sun N Sand Hotel Limited  Vs M/s.V.V.Kamat, HUF) 2003(3) Civil Court Cases 508 (Bombay) 

 Bank loan – Suit for recovery – Proof of loan – Entries in books of account are not sufficient – Some independent evidence to show that sum has been advanced must be given by Bank – As original loan transaction admitted as such statement of account relied upon. (M/s Radhu Agencies Vs Vijaya Bank) AIR 2002 A.P. 91

Defendant served with summons for judgment but failing to apply for judgment with prescribed time – Held, plaintiff is entitled to judgment U.O.37.R.3(6). (Kishan Bharwany Vs V.P.Aggarwal) AIR 2002 Delhi 345

Entering appearance – Counsel for defendant filing Vakalatnama by way of entering appearance – Actual date of service of summons was two months thereafter – Filing of Vakalatnama can be treated as entering appearance in terms of sub-rules (1) and (3) of R.3. (M/s NEPA Ltd. Vs M/s Medica Asia Pvt.Ltd.)  AIR 2002 Delhi 128

Summary suit – Part of claim not disputed – Court as a condition for leave to defend can permit withdrawal of money by plaintiff against guarantee or security. (Motorola India Limited Vs Kiklu I.Malani) AIR 2003 Bombay 92

Summary suit – Summons for judgment – ‘Dasti’ service – Is insufficient serve – Cannot be acted upon. (Rajesh Bansal Vs M/s Ansal Housing Construction) AIR 2002 Delhi 214

Summary suit – Summons for judgment – Affidavit to accompany summons for judgment – Supply of copy of affidavit before passing of order for issuance of summons for judgment – Is improper. (Rajesh Bansal Vs M/s Ansal Housing Construction) AIR 2002 Delhi 214

Summary suit – Leave to defend – Refusal – Appeal and not revision is maintainable. (V.S.Saini Vs D.C.M. Ltd.) AIR 2004 Delhi 219

Summary suit – Leave to defend – Conditional leave can be granted in respect of part of the claim and unconditional relief for remaining part of the claim – In such an event if defendant fails to comply with the condition, he would suffer the consequences qua only that of the claim for which conditional leave to defend has been granted and not in respect of that part of the claim for which unconditional leave has been granted. (Sicom Ltd. Vs Prashant S.Tanna & Ors.) 2004(3) Civil Court Cases 495 (Bombay)

Promissory note – Summary suit – Failure to reply to notice of demand – Does not amount to admission of the claim made in the notice – Application by defendant disclosing valid defence leading to a triable issue to be decided only after giving opportunity to both sides to substantiate their respective pleas – Dismissal of application on the ground of defendant’s failure to reply notice – Not legal. (Manepalli Udaya Bhaskara Rao Vs Kanuboyina Dharmaraju) 2004(3) Civil Court Cases 281 (A.P.)

Difference between the two provisions – Enumerated. (Rajni Kumar Vs Suresh Kumar Malhotra & Anr.) 2003(1) Apex Court Judgments 511 (S.C.)

Not only special circumstances which prevented from appearance or applying for leave to defend but also facts, by affidavit or otherwise, have to be shown which would entitle  him to defend the suit – In this respect O.37.R.4 is different from O.9.R.13 CPC. (Rajni Kumar Vs Suresh Kumar Malhotra & Anr.) 2003(1) Apex Court Judgments 511 (S.C.)

Security – Deposit of decretal amount to serve as security for the suit amount in the event Court granting leave to defend the suit – Relief not granted – Amount can be withdrawn by depositor or he can have it adjusted in satisfaction of the decree. ((Rajni Kumar Vs Suresh Kumar Malhotra & Anr.) 2003(1) Apex Court Judgments 511 (S.C.)

Sufficient cause for non appearance on the date of passing exparte decree shown but failure to disclose facts which would entitle him to defend the case – Application rightly dismissed. (Rajni Kumar Vs Suresh Kumar Malhotra & Anr.) 2003(1) Apex Court Judgments 511 (S.C.)

Summary suit on basis of pronote – Defendant disputing execution and amount of pronote and pleading payment as also other pleas as to deficiency of stamp on pronote and money lending licence – Held, triable issues are raised as such leave to defend rightly granted. (Mahesh Chandra Vs Balu Ram) 2003(1) Civil Court Cases 687 (Rajasthan) 

Exparte decree U.O. 37 – Setting aside – Merely a printed line in summons that affidavit as required to be filed U.O.37.R.3(4) stands filed is not sufficient whereas in fact no such affidavit is filed – Since there is no compliance with mandatory provision of Order 37.R.3(4) exparte decree set aside by treating application U.O.9.R.13 to be one U.O.37.R.4 CPC. (Mukesh Kumar Vs Bhopal Singh) 2005(1) Civil Court Cases 549 (Rajasthan)

Summary suit – Leave to defend – Suit on basis of cheques – Leave to defend sought by one of the defendants alleging no passing of consideration – Defence not a possible defence – Applicant not able to deny totally the liability being a partner of firm – Leave to defend granted on condition to deposit proportionate amount to meet the claim. (P.G.Sadasivam Vs M/s.Andavar Electrical Distributions) 2003(1) Civil Court Cases 65 (Madras)

Summary suit – Leave to defend – Letter of Credit/Bank guarantee – Presentation of documents and negotiation thereof made in terms of credit – Dishonoured – Reasons given by Bank not convincing but improper – Leave to defend granted on furnishing security. (Amarnath Sanganaria Vs Sonali Bank) AIR 2003 Calcutta 255

Attachment before judgment – Before passing order of attachment before judgment Court must be satisfied that the defendant with intent to obstruct or delay the execution of any decree that may be passed is about to dispose of the whole or any part of his property or is about to  remove the whole or any part of his property from the local limits of the jurisdiction of the Court, only then, under such contingencies, Court may direct the defendant within a time to be fixed by it, either to furnish security in such sum specified, to produce and place at the disposal of the Court, when required, the said property or the value or to appear and show cause as to why he should not furnish security. (Southern Petrochemical Industries Corpn. Ltd. Vs S.Rathish Kanna) 2004(2) Civil Court Cases 346 (Madras)

Attachment before judgment – Exparte order without giving any opportunity to the defendant – Held, order is arbitrary, unreasonable, illegal and the same set aside. (Southern Petrochemical Industries Corpn. Ltd. Vs S.Rathish Kanna) 2004(2) Civil Court Cases 346 (Madras)

Attachment before judgment – If an order of attachment is made without complying with the provisions of sub-rule (1) then order of attachment is void. (Southern Petrochemical Industries Corpn. Ltd. Vs S.Rathish Kanna) 2004(2) Civil Court Cases 346 (Madras)

Attachment before judgment – Suit for recovery of money – When defendant is got restrained from alienating his property, then order to attach property before judgment should not be made. (M/s.V.G.Quenim & Anr Vs M/s Bandekar Brothers Pvt.Ltd.) 2003(1) Civil Court Cases 146 (S.C.) 

Agreement of sale – Executed prior to order of attachment before judgment – Held, agreement of sale prevails over the attachment. (Adinarayana Vs S.Gafoor Sab & Ors.) 2004(2) Civil Court Cases 234 (A.P.)

Attachment before judgment – Debtor unable to pay debt – Debtor’s property cannot be attached merely for this reason – Circumstance that company was in financial strains – Cannot be ground for attachment of its property before judgment. (Saraswat Co-operative Bank Ltd. Vs Chandrakant Maganlal Shah) AIR 2002 Bombay 203

Attachment before judgment – Order on ground that defendant did not appear inspite of notice – Nothing on record to show that defendant with intent to obstruct or delay execution of decree was about to dispose of suit property – Impugned order of attachment passed without taking into consideration said aspect and recording satisfaction in that respect and also without following guidelines of High Court – Impugned order set aside. (M/s R.B.M.Pati Joint Venture Vs M/s Bengal Builders) AIR 2004 Calcutta 58

Attachment before judgment – Sale deed executed prior to attachment order but its registration took place after order of attachment –  Sale deed executed prior to attachment can be considered for sustaining claim petition of third party. (Abdul Jalal Vs M/s Mariya Financiers) AIR 2002 Kerala 276

Attachment before judgment – Speak order – Not necessary. (Greater Cochin Development Authority Vs Harrisons) AIR 2002 Kerala 119

Suit for recovery of money – Defendant making attempt to close his business to defraud his creditors – Attachment of movable ordered to furnish security for suit amount – Not improper. (Bommanasaree Mandir Vs Manisha Sarees) AIR 2002 A.P. 66

Attachment before judgment – Raising of – Non furnishing of security within 48 hours – Is not a ground to refuse prayer for raising of attachment – Court can raise attachment whenever there is offer made by party for accepting security. (Madigiri Kiran Kumar Vs Swaragiri) AIR 2004 A.P. 104

Money decree – Execution – Agreement to sell executed before order of attachment – Agreement of sale accepted by Court – Decree passed in performance thereof had become final – Agreement of sale prevails over attachment before judgment. (Adinarayana Vs S.Gafoor Sab) AIR 2004 A.P. 377

 Temporary injunction – Exparte injunction – Granting of injunction on the ground that other side refused to receive notice without recording reasons and without discussing matter on merits – Not legal. (Mididodi Saraswathi & Anr. Vs Mandal Revenue Officer & Ors.) 2005(1) Civil Court Cases 233 (A.P.)

 Temporary injunction – Plaintiff in possession under agreement of sale – Heavy amount paid to vendor on date of execution of agreement – Sale deed could not be executed due to failure of owner to obtain Income-tax Clearance certificate – Plaintiffs cannot be blamed for non payment of remaining amount – Prima facie they were ready and willing – Plaintiff in possession of date of suit, balance of convenience was in their favour – They were likely to suffer substantial injury if temporary injunction was not granted – Held, plaintiff is entitled to temporary injunction. (M/s Chetak Constructions Limited Vs Om Prakash & Ors.) 2003(3) Civil Court Cases 477 (M.P.) 

Cosharer in joint possession – Suit for injunction to restrain the other co-sharer from selling more than his share and raise construction – Injunction granted as the defendant not found to  be in exclusive possession – Order upheld by the High Court and further held that equity demands that the property should be  preserved in present state – Status-quo ordered. (Balbir Singh Vs Lamber Singh ) 2004(3) Civil Court Cases 129 (P&H)

Interim injunction – Granted by trial Court – Order reversed by Ist Appellate Court – Revision against – Not maintainable – However, revision treated to be a petition under Article 227 of the Constitution of India. (Dr.Bhupesh Mangla Vs Dr.Ravi Chander Mangla) 2004(2) Civil Court Cases 42 (P&H)

Temporary injunction – Restraining from interference in possession – Plaintiff in possession in exchange of his house with his father, the original owner of suit land – Possession continued on basis of mutation entry and report made in Roznamcha – Defendant claiming ownership over suit land on basis of some consent decree – But said consent decree prima facie found to be result of fraud – In such circumstances injunction can be granted. (Gurmail Singhy Vs Hardyal Singh) AIR 2002 P&H 327

nterim injunction or ad interim injunction – No qualitative difference between the two. (Rajendraprasad R.Singh Vs Municipal Corporation) AIR 2003 Bombay 392

 Interim relief not be granted which amounts to final relief – In exceptional circumstances where Court is satisfied that ultimately petitioner is bound to succeed and fact-situation warrants granting such a relief, Court may grant the relief but it must record reasons for passing such an order and make it clear as what are the special circumstances for which such a relief is being granted to a party. (Ashok Kumar Bajpai Vs Dr.Ranjana Bajpai) AIR 2004 All. 107

Jurisdiction – Raise an arguable issue and need not be decided at the ad interim stage. (The Bengal Club Ltd. Vs Susanta Kumar Chowdhary) AIR 2003 Calcutta 96

Police help – Interference in possession inspite of stay order – Held, when an injunction order is not carried out it is always open for the parties to seek police protection to see that the injunction order is properly implemented. (Sk.Yousuf Vs Shaik Madhar) AIR 2003 A.P. 44

Transporter of goods –  Detaining goods and filing suit for recovery of hire charges – One of the defendants Warehousing Corporation who delivered goods for transportation seeking release of goods claiming himself as custodian of goods – Goods in danger of being wasted or damaged – Can be released on furnishing Bank guarantee. (M/s Central Warehousing Corporation Vs Prabhu Narain Singh) AIR 2003 Allahabad 223

Restraining petitioners from transferring suit land or any part thereof to any third person – Father during his life time disposed of 1/3rd share in property and petitioner in possession out of this 1/3rd share which was acquired for valuable consideration – Merely because there was no evidence of partition of property that by itself cannot enure to the benefit of the plaintiff to obtain equitable relief of injunction – Order as far as it imposed restrictions upon the petitioners from transferring or alienating the suit land or any portion thereof or creating any encumbrance quashed. (Ramchandra Shankar Randive & Ors. Vs Uttam Marutrao Randive & Ors.) 2003(3) Civil Court Cases 442 (Bombay) 

Temporary injunction – Second application under changed circumstances – Not barred by res judicata. (Bhura Vs Addl. District Judge No.8, Jaipur City & Ors.) 2004(2) Civil Court Cases 90 (Rajasthan)

Second appeal against appellate order granting or rejecting injunction – Not maintainable. (Motilal Ramdev Teli Vs Bhandari) AIR 2002 Chhattisgarh 6

Rejection of plaint – Appeal against – Held, in such an appeal Appellate Court has power to grant temporary injunction. (Sanjay Purushottam Agrawal & Anr. Vs Nirmaladevi Shantilal Ruparel & Ors.) 2004(2) Civil Court Cases 616 (Bombay)

Exparte temporary injunction – Application U.O.9.R.13 CPC to set aside exparte temporary injunction – Grant of ex parte temporary injunction is only an order and not a decree – O.9.R.13 CPC is not applicable to set aside such an order. (Mididodi Saraswathi & Anr. Vs Mandal Revenue Officer & Ors.) 2005(1) Civil Court Cases 233 (A.P.)

Interim injunction – Order refusing to grant ex parte injunction – Order is not appealable – Hence, bar of S.115(2) is not applicable – Revision against such order is maintainable. (Smt.Urmila Devi Vs Nagar Nigam) AIR 2003 Allahabad 158

Temporary injunction – Appellate Court finally deciding disputed question of fact at injunction stage – Order set aside – Case remanded for decision afresh. (Mohd. Sharif Vs ADJ No.2 Sikar & Anr.) 2004(2) Civil Court Cases 682 (Rajasthan)

Exparte ad interim injunction – Order is appealable – Revision does not lie. (Airport Authority of India V. M/s Paradise Hotel & Restaurant) AIR 2002 Gauhati 146

Ad interim injunction – Person in possession can protect his possession by seeking injunction against any other person but not against the true owner. (Dharamvir Vs Naresh Kumar & Oars.) 2005(1) Civil Court Cases 770 (P&H)

Ad interim injunction – Restraining defendants from interfering in peaceful possession – Defendant father of plaintiff owner of entire house – Plaintiff produced no documents showing that nature of property is Joint Hindu Family Property or that he is a co-sharer in any manner – Status of plaintiff cannot be more than a mere licensee – Injunction cannot be granted against the true owner – Interim stay declined – Order upheld. (Dharamvir Vs Naresh Kumar & Oars.) 2005(1) Civil Court Cases 770 (P&H)

Ad interim injunction – Restraining true owner from interfering in possession – Servant of tenant occupied premises when it was vacated by tenant – Held, possession of servant was in fact an occupation as an agent or a servant of the original tenant and thus his possession cannot amount to actual physical possession by a tenant – Held, plaintiff is not entitled to injunction. (Sahban Khan Vs Rajendra Prasad Srivastava & Anr.) 2005(1) Civil Court Cases 785 (Allahabad)

Ad interim injunction – Trade Mark – Prior user – Plaintiff using mark ‘Malikchand’ but not much publicized – At a subsequent point of time defendant started use of mark ‘Malikchand’ in a large scale –  At relevant time, neither party had a registered trade mark for the respective marks claimed by them – A number of cases registered against defendant under Prevention of Food Adulteration Act – Prima facie establishment of prior user goes a long way in enabling the plaintiff to claim an injunction in a passing-off action – Grant of interim injunction in favour of plaintiff held to be justified. (Dhariwal Industries Ltd. & Anr. Vs M/s M.S.S. Food Products) 2005(1) Apex Court Judgments 546 (S.C.) : 2005(2) Civil Court Cases 261 (S.C.)

Cement factory – Restraining defendant from constructing factory for manufacturing cement cavity box – Licence for running factory duly granted – Manufacturing yet to start – No actionable nuisance caused – Suit filed on ground that activity would cause pollution and spread of disease – Suit lies only after cause of action erupts on account of manufacturing activity – Suit liable to be dismissed. (Thressiamma Vs Sebastian Mathew) AIR 2002 Kerala 1

Co-sharer – Restraining another co-sharer from raising construction – Defendant seeking permission to raise construction and demolish the same later on after partition – Held, such a course would result into unnecessary complications even in partition proceedings. (Pritam Singh & Ors. Vs Chanan Singh) 2003(1) Civil Court Cases 426 (P&H) 

Co-sharer – Restraining another co-sharer from raising construction over superior and valuable portion of the suit property without getting the same partitioned – Held, plaintiff a co-sharer is entitled to protect the suit land to ensure that the nature of suit land is not changed by another co-sharer – Proceedings for partition have been initiated and defendant would not suffer any prejudice because it would soon be clear which of the co-sharer would be entitled to occupy and possess which portion of the land. (Pritam Singh & Ors. Vs Chanan Singh) 2003(1) Civil Court Cases 426 (P&H) 

Departmental proceedings – Stay during pendency of criminal proceedings launched on the same set of facts – AIR 1997 SC 13 followed wherein held : (i) Both proceedings can continue simultaneously; (2) If charge in criminal case is of a grave nature which involves complicated questions of law and fact then departmental proceedings to be stayed till conclusion of criminal case; (3) Charge being grave or involving complicated questions of fact and law, depends upon nature of offence; (4) factors No.2 & 3 cannot be considered in isolation to stay departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed; (5) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, administration may get rid of him at the earliest. (Syama Ghana Biswal Vs General Manager, SBI) 2003(3) Civil Court Cases 305 (Orissa) 

Discussion made on documents and findings recorded for disposal of application U.O.39.Rr.1,2 CPC is only for the purpose of deciding the application – Do not have the effect of adjudicating the relevant issues in the suit. (Upendranath Singh Vs Smruti Ranjan Mohanty) 2003(2) Civil Court Cases 432 (Orissa) 

Exclusive copy-right over industrial drawings and designs claims – Not registered under Designs Act – Cannot claim copyright – Not entitled to injunction. (M/s Polymer Papers Ltd. Vs Gurmit Singh) AIR 2002 Delhi 530

Exparte temporary injunction – Court is required to record reasons in support of its conclusions for grant of temporary injunction. (Mididodi Saraswathi & Anr. Vs Mandal Revenue Officer & Ors.) 2005(1) Civil Court Cases 233 (A.P.)

Injunction – An equitable relief – Plaintiff if guilty of inequitable conduct,  is not entitled to the relief of injunction. (Kanchusthabam Satyanarayana & Ors. Vs Namuduri Atchutaramayya & Ors.) 2005(1) Apex Court Judgments 607 (S.C.) : 2005(2) Civil Court Cases 187 (S.C.)

Interim injunction – Consent eviction decree – Challenged as being obtained by fraud by putting an imposter – Plaintiff not to be dispossessed during pendency of suit. (Sumitra Devi Anand (Dead) by LRs. Vs Shanti Devi (Dead) by Lrs.) 2005(1) Apex Court Judgments 679 (S.C.) : 2005(1) Civil Court Cases 692 (S.C.)

Interim injunction – Plaintiff in lawful possession of suit property situated within development area under U.P.Urban Planning and Development Act and not under Nagar Mahapalika – Plaintiff held entitled to grant of injunction restraining officials of Nagar Nigam from forcible dispossession. (Smt.Urmila Devi Vs Nagar Nigam) AIR 2003 Allahabad 158

Interim injunction – Plaintiff running nursing home and permitting doctors to practice profession in chambers of cabins – Defendants were in fiduciary relationship with plaintiff – On termination of directorship and withdrawal of permission, defendant cannot be allowed to disturb working of hospital by committing trespass and nuisance. (Geetanjali Nursing Home (P) Ltd. Vs Dr.Dileep Makhija & Ors.) AIR 2004 Delhi 53

Interim injunction – Restraining defendant from interfering in joint use of electric motor connection – In revenue record plaintiff shown to be owner in possession where electric motor is installed –  Held, grant of injunction restraining other co-owners from interfering with the joint use of electric motor connection is proper and calls for no interference. (Ajit Singh Vs Tarsem Singh & Ors.) 2005(1) Civil Court Cases 748 (P&H)

Interim injunction – Unlawful possession or possession without any right to be lawfully in possession of the property – Plaintiff not entitled to injunction against the true owner. (K.Ankaiah Vs Tirumala Tirupati Devasthanams) 2003(1) Civil Court Cases 135 (A.P.) 

Interim injunction restraining defendant from raising any construction over the property in dispute – Undertaking by defendant to raise construction at his own risk and responsibility and that he will not claim any compensation and rather remove the malba in case suit is decided against him – Defendant allowed to raise construction at his own risk subject to the final decision of the suit. (Dr.Bhupesh Mangla Vs Dr.Ravi Chander Mangla) 2004(2) Civil Court Cases 42 (P&H)

Once an application is made by opposite party for referring the matter to arbitration in terms of arbitration agreement, thereafter Court cannot decide the application U.O.39.Rr.1,2 as nothing further is required to be done. (Arbitration and Conciliation Act, 1996, S.7). (M/s Jagdish Raj & Brothers Vs Jagdish Raj) 2003(1) Civil Court Cases 367 (P&H) 

Partner – Restraining retired partner from using trade mark of firm – Defendant alleging no dissolution of firm in the eye of law and that he is still a partner of the firm – In the caveat filed by defendant, intimation to tax authorities and settlement of accounts, though disputed, are sufficient for decision of temporary injunction application that defendant has left the partnership firm –  Validity of these documents to be decided at the time of trial – Prima facie case in favour of plaintiff – Trade mark forms part and parcel of the assets of the firm – Temporary injunction as prayed for granted. (Sivaramakrishna Traders Vs Kamal Traders) 2003(3) Civil Court Cases 649 (A.P.) 

Plaintiff suppressing material facts in order to get advantage over defendants – Playing fraud on Court – Not entitled to discretionary relief of injunction. (M/s Polymer Papers Ltd. Vs Gurmit Singh) AIR 2002 Delhi 530

Police help to implement order of temporary injunction – When once an injunction order is not carried out, it is always open for the parties to seek police protection to see that the order of temporary injunction is properly implemented. (Sk.Yousuf & Ors. Vs Shaik Madhar Saheb) 2003(1) Civil Court Cases 392 (A.P.) 

Possession – Jamabandi – In absence of clear evidence of possession and title entries in jamabandi cannot constitute the basis for concluding that the plaintiff is in possession – Vendor cannot pass to the vendee a title better than his own title or rights better than his own rights – Once the vendor of plaintiff was not in possession it remains unexplained as to how entries in the jamabandies have been incorporated showing that the plaintiff is in possession – Held, view taken by appellate Court that it is not believable that vendor of plaintiff is owner in possession does not suffer from any legal flaw – Order upheld. (Jai Pal Singh Vs Ram Dhan Saini) 2003(1) Civil Court Cases 142 (P&H) 

Prohibition injunction – Plaintiff not in possession – Grant of injunction in favour of plaintiff is proper when plaintiff is actual owner and defendant fails to prove title by adverse possession. (Mohandas Dattaram Prabhu Vs U.F.M. Mukund Honnappa Naik) AIR 2003 Karnataka 428

Restitution order – An order of restitution is stayed only in exceptional circumstances. (Kanchusthabam Satyanarayana & Ors. Vs Namuduri Atchutaramayya & Ors.) 2005(1) Apex Court Judgments 607 (S.C.) : 2005(2) Civil Court Cases 187 (S.C.)

Restraining alienation during pendency of suit – Any transfer made during pendency of suit is subject to the provision of S.52 of Transfer of Property Act as such there is no necessity to pass an order of prohibitory injunction prohibiting the alienation of property during pendency of suit. (Upendranath Singh Vs Smruti Ranjan Mohanty) 2003(2) Civil Court Cases 432 (Orissa)

Restraining defendant from raising any construction on suit land – Status quo order granted – Appellate Court vacated order – Not proper in view of fact that there was possibility of defendant altering nature of suit property during pendency of suit – Order of trial Court restored. (Parboti Adhikary Vs Pradip Adhikary) AIR 2004 Gauhati 49

Suit for injunction – Suit withdrawn without permission of Court to file fresh suit on the same cause of action – Second suit filed without mentioning the fact of filing of earlier suit – Held, injunction is an equitable relief and the same cannot be granted to a person who does not come to Court with clean hands and who is guilty of suppression of facts. (Jonnala Sura Reddy & Anr. Vs Tityyagura Srinivasa Reddy & Ors.) 2004(2) Civil Court Cases 417 (A.P.)

Suit for specific performance – Oral agreement – Original title deeds in possession of plaintiff – Certain other circumstance also in favour of plaintiff – However injunction not granted in view of undertaking given by defendant that he had no intention to sell property. (Haraparbati Thakurrani Bije Vs Ramakanta Gupta) AIR 2002 Orissa 89

Suit for specific performance – Restraining defendant from transferring suit land by way of sale or by any other mode till the final disposal of the suit – Held, without a prayer for decree of perpetual injunction, an interim injunction cannot be granted. (Ishwarbhai Vs Bhanushali Hiralal Mohanlal Nanda) AIR 2002 Gujarat 328

Suppression of material facts – Disentitled party for getting discretionary relief of injunction – Plaintiff withholding vital documents relevant to litigation in order to gain advantage on other side – He would be guilty of playing fraud on Court as well as on opposite party – Not entitled to discretionary relief of injunction. (Rohit Dhawan Vs G.K.Malhotra) AIR 2002 Delhi 151

Telephone booth – Permission to run PCO in railway premises – Cancellation – No show cause notice or opportunity of hearing given to plaintiff before proposed action – Further application by plaintiff to convert her prayer of temporary injunction into an interim mandatory injunction – Can be allowed – Strong prima facie case, balance of convenience and irreparably injury in favour of applicant – Direction given to defendant to remove lock from PCO booth, deliver its possession and to restore electricity supply and telephone connection forthwith to plaintiff. (Smt.Ajra Habib Vs R.K.Gupta) AIR 2002 M.P. 95

Temporary injunction – Agreement to sell – Suit for specific performance – Restraint order from interference with possession sought – Agreement denied by vendor – Vendor alleged possession of another vendee under registered sale deed – Plaintiff admittedly in possession – Plaintiff having prima facie case on raising a serious and substantial question – Balance of convenience also in favour of plaintiff – Refusal of injunction likely to cause irreparable injury to plaintiff – Consequently direction issued for maintaining status quo subject to deposit of Rs.75,000/- annually to safeguard the interest of purchaser from vendor. (Sukkha Singh Vs Mahal Singh) 2003(2) Civil Court Cases 547 (Rajasthan) 

Temporary injunction – Both plaintiff and defendant seeking temporary injunction – Application of plaintiff dismissed whereas application of defendant allowed  and plaintiff retrained from interfering with possession of defendant – Suit stood disposed of for want of prosecution as plaintiff sought permission to withdraw suit – Held, order of temporary injunction passed in favour of defendant is not executable. (Ramesh Akre Vs Mangalabai Pralhad Akre) AIR 2002 Bombay 487

Temporary injunction – Co-sharers – Once the parties are in exclusive possession of their respective shares, the question of issuance of any ad interim injunction qua the suit property does not arise. (Baldev Singh Vs Sewa Singh & Anr.) 2004(2) Civil Court Cases 422 (P&H)

Temporary injunction – Encroachment on road – Report of Local Commissioner that plaintiff has encroached 5 feet street land in front of his house – Held, interim injunction rightly denied to him. (Gian Singh Vs Jarnail Singh) 2003(2) Civil Court Cases 625 (P&H) 

Temporary injunction – Grant of – Appeal against – Satisfaction that there is prima facie case – By itself not sufficient to grant injunction – On point of irreparable injury there was no conclusion – No material or affidavit discussed to come to conclusion that balance of convenience is in favour of plaintiff – Reasons also not discussed regarding balance of convenience – Important ingredients for grant of injunction not satisfied – Order granting injunction liable to be interfered with. (Lark Laboratories (India) Ltd. Vs Medico Interpharma Ltd.) AIR 2002 Gujarat 368

Temporary injunction – Grant of – Guiding principles – (i) prima facie case, (ii) balance of convenience and (iii) irreparable loss and/or injury if temporary injunction is refused – Injunction cannot be granted without examining the matter in detail by merely saying that prima facie case is made, apart from stating that the other two requirements are fulfilled or not – Order granting or refusing to grant interim relief must contain some discussion with respect to the documents placed on record – Order must reflect an application of mind on the part of the Court passing the order. (Ajay Mittal Industrial Premises Co-Operative Society Vs Raj Publicity) 2004(3) Civil Court Cases 639 (Bombay)

Temporary injunction – It is not necessary for plaintiff to establish his full fledged title over suit property. (Satya Prakash Vs Ist ADJ) AIR 2002 Allahabad 198

Temporary injunction – Jurisdiction – Clause in agreement viz. “Court of Bombay and no other Court’ – Plea of not consciously agreeing to the exclusion of jurisdiction of Courts other than Bombay – Until a clear finding is recorded that Court has territorial jurisdiction to try the suit, no injunction can be granted in favour of plaintiff by making a general remark that plaintiff has an arguable case and that he did not consciously agree to the exclusion of the jurisdiction of the Court other than Bombay. (Shree Subhlaxmi Fabrics Pvt.Ltd. Vs Chand Mal Baradia & Ors.) 2005(2) Civil Court Cases 227 (S.C.)

Temporary injunction – Order passed u/s 145/146 Cr.P.C. – Civil Court has jurisdiction to make an order of injunction inconsistent with the order of Executive Magistrate. (Shanti Kumar Panda Vs Shakuntala Devi) 2005(1) Apex Court Judgments 169 (S.C.) : 2005(1) Civil Court Cases 344 (S.C.)

Temporary injunction – Plaintiff failing to prove long possession – Other party holding registered sale deed executed 20 years back – Refusal of grant of injunction against his dispossession – Proper. (Shetra Pal Vs Renu) AIR 2002 Rajasthan 159

Temporary injunction – Public property –  Encroacher of public land has no right to seek injunction.   (Chunni Lal & Ors. Vs State of Haryana & Ors.) 2004(2) Civil Court Cases 586 (P&H)

Temporary injunction – Restraining alienation and raising construction – Temporary injunction cannot be declined on the basis that alienation will be subject to law of lis pendens and construction raised will be at own risk or on the basis of an undertaking that there will be no alienation and construction will be at own risk –  Unless and until a case of irreparable loss or damage is made out by a party to the suit, Court should not permit the nature of property being changed with also includes alienation or transfer of property  which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings. (Maharwal Khewaji Trust (Regd.), Faridkot Vs Baldev Dass) 2005(1) Apex Court Judgments 457 (S.C.) : 2005(1) Civil Court Cases 430 (S.C.)

Temporary injunction – Separate electricity meter and water connection – No specific prayer to that effect in plaint – Plaintiff licencee in suit premises – Possession of plaintiff in suit premises not disputed – Relief of separate electricity meter and water connection granted on the basis of balance of convenience as also on humanitarian grounds – No error in granting relief to plaintiff in equity even if there was no specific prayer in plaint to that effect. (Niranjan Lal Joshi & Anr. Vs P.K.Joshi & Ors.) 2005(1) Civil Court Cases 181 (Rajasthan)

Temporary injunction – Street – Encroachment by plaintiff – Held, an encroacher has no right to seek temporary injunction against Gram Panchayat.  (Ishwar Singh Vs Gram Panchayat) 2004(2) Civil Court Cases 279 (P&H)

Temporary injunction – Tenanted premises – Reconstruction of roof by tenant – Tenant is duty bound to maintain leased premises in as good a condition, as they were when they were let out – He has right to effect repairs in tenanted premises in terms of S.108(m) Transfer of Property Act – Provision in Rent Act enabling tenant to seek repairs from landlord does not take away right of tenant to effect repairs himself – Held, landlord cannot claim injunction restraining tenant from reconstructing roof of tenanted premises. (Transfer of Property Act, 1882, S.108(m), U.P.Urban Buildings (Regulation of Letting, rent and Eviction) Act, 1972, S.28). (Smt.Saroj Dwivedi Vs Additional District Judge) 2003(3) Civil Court Cases 717 (Allahabad) 

Temporary injunction – Violation of copyright – Applicant assessing monetary claim that may result from violation of copyright – Same can be compensated in terms of money – Temporary injunction not granted. (Gee Pee Films Pvt. Ltd. Vs Pratik Chowdhury) AIR 2002 Calcutta 33

Temporary mandatory injunction – Can be granted – Principles governing  are (1) The plaintiff has a strong case for trial i.e.,  a higher standard than a prima facie case that is normally required for a prohibitory injunction; (2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money; (3) The balance of convenience is in favour of the one seeking such relief. (Appukuttan Nair  Vs Hydrose) 2004(2) Civil Court Cases 605 (Kerala)

Temporary mandatory injunction – Can be granted only in exceptional cases coming within exceptions noticed in Dorab Cawasji Warden case. (Metro Marins & Anr. Vs Bonus Watch Co. Pvt. Ltd. & Ors.) 2005(1) Apex Court Judgments 436 (S.C.) : 2005(1) Civil Court Cases 308 (S.C.)

Temporary mandatory injunction – Expiry of period of license – Suit for possession – Interim mandatory injunction directing defendant to hand over vacant and peaceful possession of premises – Cannot be granted – Granting of interim order directing handing over of possession would only mean decreeing the suit even before trial. (Metro Marins & Anr. Vs Bonus Watch Co. Pvt. Ltd. & Ors.) 2005(1) Apex Court Judgments 436 (S.C.) : 2005(1) Civil Court Cases 308 (S.C.)

Temporary mandatory injunction – Wall put up across a way which was in existence for more than 12 years and the plaintiff was prevented from using that way to go to his house just two days prior to the institution of suit – Interim injunction, prohibitory or mandatory can be granted even for restoring status quo anterior to the date of the suit if it is found that it is absolutely necessary – Order to remove wall, upheld. (Appukuttan Nair  Vs Hydrose) 2004(2) Civil Court Cases 605 (Kerala)

Tenant can be restrained from making any structural addition or alternations and from changing the existing position or effecting any major repair in the shop illegally or forcibly without the prior consent of the landlord or without the prior permission of the Rent Controller. (M/s Changa Weaving and Hosiery Factory Vs Sanjiv Kumar) 2003(1) Civil Court Cases 20 (P&H) 

Tenant on second floor – One room on second floor occupied by servant of landlord – Common latrine and bath room used by tenant and servant of landlord – Tenant cannot seek injunction restraining servants of landlord from using common amenity during pendency of eviction petition. (Smt.Urmila Devi Jain Vs Shorey Lal) AIR 2003 Delhi 6

Tenanted premises – Destruction overnight  – Whether pulled down by landlord? – Can be gone into only after taking evidence – Unless said issue is finally decided no permission can be granted to conduct business in temporary shed – Moreover permission granted by Court to put up shed to house machinery of mill cannot be taken as licence to conduct business in newly erected shed – No permission or licence obtained from Gram Panchayat to conduct business in shed – No prima facie case made out to grant interlocutory injunction. (M.B.Muhammed Ali Vs Ibrahim Haji) AIR 2002 Kerala 336

Tenanted premises – Use of roof – Staircase and upper floor in exclusive possession of plaintiff – Defendant had no approach to upper floors in any manner as only access to upper floor was through the staircase which was built inside the rented premises and in possession of plaintiff – Even when rent note is silent about tenancy of the roof the same is included in the tenancy – Defendant restrained from interfering with the possession of plaintiff and use of staircase leading to the first floor and also from the second floor. (Bhupinder Singh Vs Manpreet Singh) 2003(3) Civil Court Cases 323 (P&H) 

Transfer of immovable property in violation of an order of injunction or prohibition confers no right, title or interest in the transferee, as it is no transfer at all. (Keshrimal Jivji Shah & Anr. Vs Bank of Maharashtra & Ors.) 2004(3) Civil Court Cases 375 (Bombay)

Water and sewerage charges – Authorities seeking fixed sum of money by way of taxes from plaintiff – Refusal of injunction not causing irreparable injury to plaintiff which cannot be compensated in terms of money – Held, interim injunction cannot be granted. (Som Datta Bukders Ltd. Vs Kanpur Jal Sansthan) AIR 2002 Allahabad 249

Injunction – Power of Court to act on affidavits – Is unfettered – Not subject to O.19.Rr.1,2. (Satya Prakash Vs Ist ADJ) AIR 2002 Allahabad 198

Appeal lies against injunction granted U.O.39.Rr.1,2 while revision lies against injunction granted u/s 151 CPC. (Satya Prakash Vs Ist ADJ) AIR 2002 Allahabad 198

Exparte temporary injunction – Application U.O.9.R.13 to set aside exparte temporary injunction – Not maintainable – For setting aside such an order, only course open is to file an appeal or to seek adjudication of matter on merits. (Mididodi Saraswathi & Anr. Vs Mandal Revenue Officer & Ors.) 2005(1) Civil Court Cases 233 (A.P.)

Interlocutory orders – Restoration of suit dismissed for default – Interlocutory orders passed before dismissal of  suit revive when dismissal is set aside and suit is restored unless Court expressly or by implication excludes the operation of interlocutory orders passed during period between dismissal of suit and restoration. (Vareed Jacob Vs Sosamma Geevarghese & Ors.) 2004(1) Apex Court Judgments 487 (S.C.) : 2004(2) Civil Court Cases 365 (S.C.)

Temporary injunction – Can be issued at the instance of a defendant against co-defendant. (Fr.Simon  Vs Fr.Skaria) 2005(1) Civil Court Cases 76 (Kerala)

Temporary injunction – Violation – Contempt proceedings do not lie as there is equally efficacious alternate remedy available U.O.39.R.2-A CPC. (Surinder Singh Vs Rai Rani) 2003(1) Civil Court Cases 195 (P&H) 

Appeal against – Maintainable – Restricted meaning that appeal lies only in case where the trial Court has refused to initiate action under O.39.R.2-A – Does not flow from the provisions of O.43.R.1(r). (Rajinder Kaur Vs Sukhbir Singh) AIR 2002 P&H 12

Injunction – Violation – High Court in exercise of inherent powers can order demolition of construction in violation of injunction order and bring back status quo ante – Plea that Court should not order demolition and confine its powers only to modalities prescribe under O.39.R.20A – Not tenable. (Baishnab Pradhan Vs Guru Charan Pradhan) AIR 2003 Orissa 73

Status quo – Violation of order – Unless there is clear evidence, person cannot be punished on mere surmises. (Thresia Vs Johny) AIR 2003 Kerala 97

Temporary injunction – Breach of – It is necessary for trial Court to give notice to a party who allegedly committed breach before proceeding against him in the matter. (Jawahar Singh Vs Des Raj) AIR 2002 J&K 134

Proceedings U.O.39.R.2-A are quasi criminal in nature – In criminal proceedings provision O.7.R.11 CPC has no application –  If an application for disobeying the order of Court is filed, Court has to examine the allegations in the application, giving full opportunity to the other party of hearing and decide it as a criminal trial. (Urban Improvement Trust, Jodhpur Vs Barkat Khan) 2003(2) Civil Court Cases 119 (Rajasthan) 

Injunction order against father – Sons after being impleaded as L.R’s executed sale deed in violation of injunction order granted against their father – Held, injunction order passed against father is required to be respected by legal representatives who succeeded to the property and having knowledge of the injunction order against their father – L.R’s since have violated the order of injunction are liable to be punished. (Mohd.Sharfuddin  Vs Mohd.Jamal) 2003(3) Civil Court Cases 695 (A.P.)  

Injunction – Disobedience – Defendant restrained from causing obstruction in lifting of clinker by plaintiffs in his vehicles from cement factory – Order not referring to particular registration numbers of trucks – Out of these vehicles plaintiff not permitted to lift clinker in one vehicle of which he was not owner – Violation of injunction order – Court holding defendants guilty of disobedience of injunction order on ground that though operative part of order does not refer to particular registration numbers of trucks, the identity of these three trucks was to be found in suit laid by plaintiff – Held, for this purpose pleadings cannot be looked into – Impugned order set aside. (Sushil Mittal & Anr. Vs R.D.Bhardwaj & Anr.) 2004(2) Civil Court Cases 341 (H.P.)

Injunction – Disobedience – It is only wilful disobedience of injunction order which invites punitive action depriving a person of his personal liberty and property – Expression “wilful” means a deliberate or voluntary or intentional Act – Unintentional disobedience is not enough to justify an action against the defaulter under O.39.R.3 CPC. (Sushil Mittal & Anr. Vs R.D.Bhardwaj & Anr.) 2004(2) Civil Court Cases 341 (H.P.)

Injunction – Disobedience – When an order is passed by the Court, it is not open to a party to go behind the order, by looking into the pleadings together the intention of the Court or mind of the Presiding Officer, to comply with the orders of the Court, particularly when any non-compliance entail punitive consequences. (Sushil Mittal & Anr. Vs R.D.Bhardwaj & Anr.) 2004(2) Civil Court Cases 341 (H.P.)

Injunction – Violation – By a person not party to the suit – A person knowing full well that an injunction order is passed against the defendant and still violates the injunction order irrespective of fact whether he is a party to the injunction or not and commits violation of the order, is required to face the consequences under Rule 2-A of O.39 CPC. (Mohd.Sharfuddin  Vs Mohd.Jamal) 2003(3) Civil Court Cases 695 (A.P.)  

Injunction – Violation/disobedience – Sale deed executed in disobedience of injunction order – Sale is a nullity – Entire property directed to be attached. (Smt.Savitri Devi Vs Civil Judge (Senior Division), Gorakhpur & Ors.) 2004(2) Civil Court Cases 90 (Allahabad)

Proceedings U.O.39.R.2-A CPC are quasi criminal in nature. (Avtar Singh Vs Balkar Singh) 2003(1) Criminal Court Cases 135 (P&H) 

Punishment for violation of injunction order – When once the order is violated it is open for the Court either to commit the contemnor for civil prison or to attach the property or to order both – Conditional attachment of property and deposit of Rs.20,000/- in unwarranted as it runs counter to statutory provisions – Conditional order of attachment of property subject to deposit a sum of Rs.20,000/- and permitting the respondents to withdraw the same is not sustainable. (Mohd.Sharfuddin  Vs Mohd.Jamal) 2003(3) Civil Court Cases 695 (A.P.)  

Undertaking – Breach – When Court acts on an undertaking given by a party, in substance it amounts to an injunction restraining him from acting in breach thereof – Act done in breach thereof is punishable U.O.39.R.2-A CPC. (Thiruvalkani K.Nagaraj (in CMP) State of A.P.) Vs Thiruvalkani Sarojamma) 2003(1) Civil Court Cases 281  (A.P.)  

Violation of injunction order by L.R. – Separate injunction order against L.R’s is not required and L.R’s are bound by the injunction order issued against their father and are liable to be punished for violation. (Mohd.Sharfuddin  Vs Mohd.Jamal) 2003(3) Civil Court Cases 695 (A.P.)  

Violation/disobedience  of injunction order – Proceedings are analogous to the Contempt of Court proceedings but they are taken under the provisions of O.39.R.2A CPC – Special provision in the Code prevails over the general law of contempt contained in Contempt of Courts Act.  (Smt.Savitri Devi Vs Civil Judge (Senior Division), Gorakhpur & Ors.) 2004(2) Civil Court Cases 90 (Allahabad)

Violation/disobedience of injunction order – Proceedings under O.39.R.2A are quasi criminal in nature which are meant to maintain the dignity of the Court in the eyes of the people so that the supremacy of law may prevail and to deter the people for mustering the courage to disobey the interim injunction passed by the Court. (Smt.Savitri Devi Vs Civil Judge (Senior Division), Gorakhpur & Ors.) 2004(2) Civil Court Cases 90 (Allahabad)

Ex parte ad interim injunction – Recording of reasons is mandatory. (The Bengal Club Ltd. Vs Susanta Umar Chowdhary) AIR 2003 Calcutta 96

Ad interim injunction – Exparte grant of injunction – Order passed taking into consideration plaint and other material on record – Order cannot be said to be without jurisdiction. (Akbar Sekh & Ors. Vs M/s Mousumi Factory Agency & Ors.) 2005(1) Civil Court Cases 814 (Delhi)

Notice – Suit against Govt. officials – Treating of refusal to receive notice by Asst. Government Pleader appointed for the Court who is Agent of Government as constituting service – Proper. (Mididodi Saraswathi & Anr. Vs Mandal Revenue Officer & Ors.) 2005(1) Civil Court Cases 233 (A.P.)

Injunction – Implementation – Application not disposed of within 30 days after passing order of ad interim injunction – Court not recorded its inability to dispose of same within stipulated time – Thus injunction neither confirmed nor extended for further period – Therefore it cannot be said to be non est in the eye of law – But by efflux of time it has become inoperative – Held, dismissal of application of police aid is proper as order of injunction was not in existence. (Kudithi Vs Gantla) AIR 2002 A.P. 418

Violation of mandate of O.39.R.3-A – Appeal lies against such order – When remedy of appeal is available, revision petition is not maintainable. (Dr.Rajaratan Basavanneppa Ghanti Vs Chandrasekhar) 2003(3) Civil Court Cases 253 (Karnataka) 

Exparte ad interim injunction – Appeal against – Appellant can point out before appellate Court that plaintiff before trial Court suppressed facts. (The Bengal Club Ltd. Vs Susanta Kumar Chowdhary) AIR 2003 Calcutta 96

Temporary injunction – Variation/discharge/vacation – Court may consider subsequent events. (Dover Park Builders Pvt.Ltd. Vs Madhuri Jalan) AIR 2003 Calcutta 55

Receiver – Appointment of receiver is considered as one of the harshest remedies and is allowed only in extreme cases and in circumstances where the interest of person seeking the appointment of receiver is exposed to manifest peril – Protection of properties and safeguarding the rights of the parties are the twin objectives impelling the appointment of a Receiver. (Chandana Veeranjaneyulu & Ors. Vs Chandana Panduranganayakamma) 2003(3) Civil Court Cases 688 (A.P.) 

Receiver – Not to be appointed as a matter of course – As it is a harsh remedy, discretion must be exercised with care and caution – An order of appointment of receiver should not be made where it has the effect of depriving of a party defacto possession which it may cause irreparable loss. (Rabinarayan Mahasuar Vs Lokanath Mahasuar) 2003(1) Civil Court Cases 311 (Orissa) 

Receiver – Partition suit – Receiver cannot be appointed in respect of properties already alienated by Karta or any of the coparceners – Receiver can only be appointed with regard to properties in the possession or management of Karta of the family. (Manne Krishna Veni @ Veeraveni & Ors. Vs Rangisetti Pavan Kumar & Ors.) 2005(1) Civil Court Cases 474 (A.P.)

Receiver – Partnership firm – L.R’s of deceased partner, who died during pendency of suit, seeking appointment of receiver – L.R’s are non-partners of the firm – Receiver cannot be appointed at the instance of non-partners. (Rabinarayan Mahasuar Vs Lokanath Mahasuar) 2003(1) Civil Court Cases 311 (Orissa) 

Receiver – Serving judicial officer should not be appointed as receiver. (Dilip Kumar Sharma Vs Civil Judge) AIR 2004 Allahabad 86

Receiver – Should not be made without ascertaining right of plaintiff to maintain action – Trial Court to first decided injunction application – Appointment of receiver straightway instead of deciding injunction application which necessarily required it to consider question of locus standi – Is not proper. (Dilip Kumar Sharma Vs Civil Judge (Sr.Divn.) AIR 2004 Allahabad 86

Receiver – Suit for dissolution of partnership – Particulars not given as to property being in danger of being wasted, damaged, transferred or alienated – Respondent looking after business of firm for a pretty long time – No case for appointment of receiver is made out.  (Prahlad Sharma Vs Khubhi Ram & Anr.) 2004(2) Civil Court Cases 571 (Rajasthan)

Suit by bank for recovery of advance – Land and factory premises not offered as security to Bank – Held, there is no question of appointment of Receiver in respect of land and factory premises or tenancy rights thereof would arise. (Saraswat Co-operative Bank Ltd. Vs Chandrakant Maganlal Shah) AIR 2002 Bombay 203

Appeal – Dismissal for non prosecution by persons interested in the matter – Can only be under S.151 CPC and not under any other provision of O.41 CPC – Restoration of appeal dismissed u/s 151 CPC – Art.122 Limitation Act has no application – It is Art.137 Limitation Act which applies. (G.Christhudas & Anr. Vs Anbiah (Dead) & Ors.) 2003(1) Apex Court Judgments 471 (S.C.)

Appeal – Certified copy of impugned order – Though appeal should accompany impugned order but in exceptional circumstances, appeal can be filed without that order and appellant can be allowed to place on record the same subsequently. (Mehar Singh Vs Sadhu Ram) 2003(3) Civil Court Cases 175 (P&H) 

Cross objections – When appeal is withdrawn or dismissed, cross objections can still be heard and determined. (Hari Shankar Rastogi Vs Shri Sham Manohar & Ors.) 2005(1) Apex Court Judgments 503 (S.C.) : 2005(2) Civil Court Cases 241 (S.C.)

Money decree – Appeal against – Stay of execution – Not sought – Appellate Court however can suo motu direct deposit of decretal amount pending appeal. (Bhogvati Sahakari Sakhar Karkhana Ltd. Vs M/s Chaugule and Sons) AIR 2003 Bombay 185

Rule is directory and not mandatory as the rule does not state that appeal can be dismissed if amount is not deposited or security is not given. (State of Kerala Vs Kuruvilla) 2004(2) Civil Court Cases 95 (Kerala)

Appeal – By third party – A person whose right is affected by reason of the judgment and decree has right to file an appeal – Appeal by third party is not maintainable when there is no contention that in the event the impugned judgment and decree is allowed to stand the same will cause personal injury to him or shall affect his interest otherwise. (Baldev Singh Vs Surinder Mohan Sharma) 2003(2) Civil Court Cases 16 (S.C.) 

Eviction order – Appeal against – Stay of execution – Contractual rent Rs.371.90 since 1944 – Premises situated in prime commercial locality – Tenant directed to pay Rs.15,000/- per month as charges for use and occupation during pendency of appeal – No fault can be found with the approach adopted by the Tribunal. (M/s.Atma Ram Properties (P) Ltd. Vs M/s.Federal Motors Pvt. Ltd.) 2005(1) Apex Court Judgments 426 (S.C.) : 2005(1) Civil Court Cases 454 (S.C.)

Eviction order – Appeal against – Stay of execution subject to payment of Rs.15,000/- per month in addition to the contractual rate of rent – Tenant as per Delhi Rent Control Act does not include a person against whom an order or decree for eviction is passed – Tenant, as such, on filing of appeal against order of eviction can be put to reasonable terms and can be directed to pay mesne profits or compensation and landlord is not bound by the contractual rate of rent and that doctrine of merger does not have the effect of postponing the date of termination of tenancy merely because the decree of eviction stands merged in the decree passed by the superior forum at a latter date. (M/s.Atma Ram Properties (P) Ltd. Vs M/s.Federal Motors Pvt. Ltd.) 2005(1) Apex Court Judgments 426 (S.C.) : 2005(1) Civil Court Cases 454 (S.C.)

Declaratory decree – Stay of operation of decree pending disposal of appeal – Held, appellate Court has power to grant stay of operation of decree. (Ramesh Chandra Mohapatra Vs Bishnupriya Mangaraj) 2003(1) Civil Court Cases 307 (Orissa) 

Mere preferring of an appeal does not operate as stay on the decree or order appealed against nor on the proceedings in the Court below – Appellate Court is not ordained to grant an order of stay merely because an appeal has been preferred and an application for an order of stay has been made –  Appellate Court while passing an order of stay may put the parties on such terms that enforcement whereof would satisfy the demand for justice of the party found successful at the end of appeal. (M/s.Atma Ram Properties (P) Ltd. Vs M/s.Federal Motors Pvt. Ltd.) 2005(1) Civil Court Cases 454 (S.C.) : 2005(1) Apex Court Judgments 426 (S.C.)

State is not required to give the security. (State of Kerala Vs Kuruvilla) 2004(2) Civil Court Cases 95 (Kerala)

Appeal is to be filed U.O.41.R.1 in the Court in which it is maintainable – All that Order 41 Rule 9 requires is that a copy of memorandum of appeal which has been filed in the appellate court should also be presented before the court against whose decree the appeal has been filed and endorsement thereof shall be made by the decreeing court in a book called the Register of Appeals – Merely because a memorandum of appeal is not filed under Order 41 Rule 9 will not, to our mind, make the appeal filed in the appellate court as a defective one. (Salem Advocate Bar Association Vs Union of India) 2003(1) Civil Court Cases 198 (S.C.) 

First appeal – Admission of appeal subject of deposit of specific amount is not envisaged by provision of S.96 read with O.41.R.11 CPC – Further imposition of condition that failure to deposit the amount would result in dismissal of appeal also cannot be sustained. (Management of Devi Theatre Vs Vishwanath Raju) 2004(2) Apex Court Judgments 137 (S.C.) : 2004(2) Civil Court Cases 568 (S.C.)

Non compliance of Court order – Appeal dismissed – Fault on part of counsel – Party should not suffer for fault of counsel – Appeal ordered to be readmitted. (Rajasthan State Ind. Dev. Vs M/s.Modi Thread Mills) 2003(3) Civil Court Cases 268 (Raj.) 

Appeal – Restoration – Application for condonation of delay – Deciding of both applications simultaneously without affording opportunity of hearing to pro forma opposite parties – Improper. (Jagsingh Patra Vs Debram Jhakar) AIR 2002 Orissa 191

Cross objections – Extension of time – Cross objections if not filed within time then period can be extended but that must be done before the hearing of cross objection. (Tarun Chandra Dey & Ors. Vs State of Tripura & Ors.) 2004(2) Civil Court Cases 305 (Gauhati)

Cross objections – Not filed within a month from the date fixed by Court for hearing of appeal – Extension of time also not sought –  Respondent  rather  participated  in the  hearing on cross objections  – Thereafter respondent filed application for condonation of delay – Held, application not maintainable as extension of time can  be  sought only prior to hearing of cross  objections. (Tarun Chandra Dey & Ors. Vs State of Tripura & Ors.) 2004(2) Civil Court Cases 305 (Gauhati)

Cross objections – Not filed within time – Period cannot be extended after conclusion of arguments. (Tarun Chandra Dey & Ors. Vs State of Tripura & Ors.) 2004(2) Civil Court Cases 305 (Gauhati)

Cross objections – Court can hear and determine cross objections even when original appeal in which cross objections are filed, has been dismissed. (Chandrashekar  Vs The Assistant Commissioner) 2003(2) Civil Court Cases 498 (Karnataka) 

Appeal by defendant – Plaintiff not filing any cross appeal or cross objections – Appellate Court cannot pass a decree which is to the prejudice of the appellant-defendant and to the advantage of the respondent-plaintiff. (Banarsi & Ors. Vs Ram Phal) 2003(1) Apex Court Judgments 639 (S.C.)

Remand – Only when appellate Court arrives at finding that judgment of trial Court is erroneous and is liable to be reversed or set aside – This is a condition precedent for passing of remand order – In the instant case finding by appellate Court that partnership was not dissolved and trial Court has to decide matter on certain issues is not sufficient to sustain order of remand. (Kota Suryanarayana Vs Penumatcha) AIR 2002 A.P. 340

Remand – Report of Local Commissioner regarding boundaries of disputed land found unsatisfactory – Remand of entire case for decision afresh – Not proper – Proper course is to direct appointment of another Commissioner or to call for fresh report. (Gian Chand Khatana Vs Inderjit Chohdha) AIR 2003 H.P. 49

Remand of case after framing additional issues – Non application of mind as to whether issues already framed required any amendment, modification or alteration – Appellate Court required to pass such order so that trial Court may decide factual aspects avoiding second chance of remand – Order of Appellate Court set aside – Appellate Court directed to look into those issues which are still alive – Appellate Court after hearing parties to decide whether the entire matter required re-trial or not. (Nandlal Vs Bhanwarlal) 2003(3) Civil Court Cases 64 (Rajasthan) 

Remand – Power of remand cannot be exercised in cases where Appellate Court can decide the issue considering the evidence on record. (Sreenivasan  Vs Thilakan) 2003(3) Civil Court Cases 296 (Kerala) 

Additional evidence at appellate stage – Revision is maintainable against an order on an application U.O.41.R.27 CPC. (Sailo Ram Vs Kuldip Chand) AIR 2003 H.P. 148

Additional evidence at appellate stage – Relegation of parties to trial Court for providing fair opportunity to opposite party to meet that evidence by appellate Court, proper. (Sheo Shankar Prasad Sinha Vs State of Bihar) AIR 2003 Patna 30

Additional evidence at appellate stage – Certified copies of public record – On comparison of these documents with those already on record it was found that the two are at variance – Variance determined either way would have a material bearing on the crucial issue arising for decision between the parties – No prejudice is likely to be caused to the other party in such a case – Production of such documents allowed. (Jayaramdas and Sons Vs Mirza Rafatullah Baig and Ors.) 2004(1) Apex Court Judgments 499 (S.C.)

Additional evidence at appellate stage – If on a visual comparison of signatures on document to be produced by way of additional evidence Court finds that signatures differ with the admitted signatures then Court can decline the prayer for additional evidence. (Ram Chand Premi Vs Nawab Kaur) 2004(2) Civil Court Cases 188 (P&H)

Additional evidence at appellate stage – Not to be allowed unless a case for admission thereof is made out by reference to clause (a) or (aa) of sub-rule (1) of Rule 27 or unless the Appellate Court requires such evidence to enable it to pronounce judgment or for any other substantial cause within the meaning of clause (b). (Jayaramdas and Sons Vs Mirza Rafatullah Baig and Ors.) 2004(1) Apex Court Judgments 499 (S.C.)

Additional evidence at appellate stage – Parties are not entitled to produce additional evidence at appellate stage, whether oral or documentary, unless they have shown that in spite of due diligence, they could not produce such documents and such documents are required to enable the court to pronounce proper judgment. (Karnataka Board of Wakf Vs Government of India & Ors.) 2004(2) Apex Court Judgments 379 (S.C.) : 2004(3) Civil Court Cases 326 (S.C.)

Additional evidence at appellate stage – Reason for failure to file documents shown as lack of legal knowledge and lack of proper advice – Knowledge about existence of documents being there – Lack of legal knowledge and proper advice not a ground for production of additional evidence at appellate stage – Order rejecting application, upheld. (Enugukonda Venkata Raghavacharyulu & Ors. Vs Pushpagiri Mattam Cuddapah Dist. & Anr.) 2003(3) Civil Court Cases 360 (A.P.) 

 Additional evidence in appeal – Cannot be allowed before commencement of hearing of appeal on merit – It is only in course of hearing of appeal on merit if it appears to be expedient for rendering effective decision or for any other substantial cause, the Appellate Court may require additional evidence, documentary or oral,  to be produced by the parties. (Sapam Ibomcha Singh Vs Sapam Ningol Ibema Devi) 2004(2) Civil Court Cases 385 (Gauhati)

Appeal – Additional evidence – Failure to establish that such evidence was not within knowledge or could not, after exercise of due diligence, be produced at the time of passing of decree – Application rejected. (Shantilal Vs Mahendra Kumar & Ors.) 2003 (2) Civil Court Cases 706 (Raj.)

Delay in filing application – Can never be fatal – Court is to impart justice and for delay other party can be compensated by way of costs – Held, if  court requires any evidence same could be ordered under order 41 rule 27 and it should be allowed when a party makes such application.   (Punjab Wakf Board   Vs Shri Neeko) 2004(3) Civil Court Cases 52 (P&H)

Appellate Court if deals with all the grounds taken in the Memorandum of appeal and gives decision on those grounds with reasons, it amounts to sufficient compliance of O.41.R.31 CPC. (Mohd.Ibrahim Vs Managing Committee of Masjid-e-Khursheed Jah) 2003(3) Civil Court Cases 581 (A.P.) 

First appeal – Points for consideration – Non framing of – Does not vitiate appellate judgment when there is substantial compliance with provision by considering  all aspects, both oral and documentary, in detail answering all the points – Does not vitiate the judgment of appellate Court. (Sughra Bee Vs Kareez Fatima Qureshi) 2004(2) Civil Court Cases 685 (A.P.)

Formulation of points for determination – Literal compliance thereof not to be insisted upon if Court considers all the questions raised before it and gives reasons for its decision – Judgment is not vitiated just because Court did not formulate a point or points for determination in the appeal – Substantial compliance with the rule is sufficient. (A.Narayan Rao Vs Shanta Bai & Ors.) 2004(2) Civil Court Cases 409 (A.P.)

Interest – Refusal by trial Court – Granted by first appellate Court in absence of an appeal or cross objections – Held, refusal of interest itself constitutes an independent and separable portion of decree, which requires to be appealed against and without which no relief could have been granted by lower appellate Court – In absence of an appeal or cross objections it cannot be said that plaintiff shall be entitled to relief of interest. (Appasani Veera Venkata Satyanarayana Murthy & Anr. Vs Chekka Veera Raja Rao & Ors.) 2005(1) Civil Court Cases 530 (A.P.)

Relief in respect of which no appeal is filed – Can be granted if such relief has a direct and inseparable link with the other relief so that without which the latter relief could not have been granted. (Appasani Veera Venkata Satyanarayana Murthy & Anr. Vs Chekka Veera Raja Rao & Ors.) 2005(1) Civil Court Cases 530 (A.P.)

Decree of specific performance – Appeal against – Relief of possession in decree not granted – High Court in appeal however granted relief of possession without there being a cross objection filed by the plaintiff – Relief of possession as granted by High Court set aside. (Shankar Popat Gaidhani Vs Hiraman Umaji More (Dead) by Lrs. & Ors.) 2003(1) Apex Court Judgments 633 (S.C.)

Appellate Court – Powers of – Adoption – Parties abandoning issue of validity of adoption and accepting it as admitted fact before trial Court – It is not open for appellate Court to invalidate said adoption by relying on absence of proof of custom to the contrary. (Sorawar Singh Vs Kan Mal) AIR 2003 Rajasthan 107

Subsequent events – Party must seek amendment of pleadings. (Om Prakash Gupta Vs Ranbir B.Goyal) AIR 2002 S.C. 665

Suit for declaration and permanent injunction – Trial Court holding that suit in the present form not maintainable and that it has no jurisdiction to entertain the suit – Decree dismissing the suit drawn – Appeal lies u/s 96 – Section 104 & O.43.R.1 CPC not attracted. (Kishan Singh Vs M/s East India Cotton Manfg. Co.) AIR 2004 P&H 153

Remand – Finding on issue which was not framed – Issue also not framed which arises in the case – Case remanded. (Manubhai Khandubhai Naik Vs Sumantrai Ranchhodji Naik) AIR 2004 Gujarat 73

Remand – Appeal against – Appellant under an appeal U.O.43.R.1(u) is not entitled to agitate questions of facts – High Court can and should confine itself to such facts, conclusions and decisions which have a bearing on the order of remand and cannot convass all the findings of facts arrived at by the Lower Appellate Court. (Narayanan Vs Kumaran & Ors.) 2004(1) Apex Court Judgments 366 (S.C.) : 2004(2) Civil Court Cases 315 (S.C.)

Exparte decree set aside against only that defendant who made the application – If aggrieved he can challenge the same in superior Court in appropriate proceedings – No mistake or error apparent on the face of record to correct it in a review application – No ground to interfere with dismissal of review petition – Revision petition dismissed. (Palakurthy Vs Noroju Manorama) 2003(2) Civil Court Cases 480 (A.P.) 

Review – Application can be filed only by a party to the lis – Review application is not maintainable at the instance of a third party. (Bangalore Development Authority Vs P.Anjanappa) 2003(3) Civil Court Cases 23 (Karnataka) 

Review – Insufficiently stamped and unregistered partition deed admitted in evidence for collateral purpose by Court without deciding he objection raised by other side – It is a mistake on the part of Court which is apparent on the face of record – Application for review is maintainable. (Bolleddula Lakshmi Devi Vs Bolleddula Papanna & Ors.) 2004(2) Civil Court Cases 253 (A.P.)

Review – Petition is not maintainable on a issue not agitated at the time of passing  the impugned order. (Virendra Singh Kothari Vs State of Rajasthan) 2003(3) Civil Court Cases 208 (Rajasthan) 

Review – Power can be exercised when there is error apparent on the face of record  – An error which is not self evident and has to be detected by a process of reasoning cannot be said to be an error apparent on the face of record justifying Court to exercise its power of review – If there is a clear distinction between an erroneous decision and an error apparent on face of record the first can be corrected by higher forum while the latter can only be corrected by exercise of review jurisdiction. (Delta Foundations & Constrictions Vs Kerala State Constructions Corporation Ltd.) 2003(2) Civil Court Cases 297 (Kerala) 

Review – Scope of review is limited – Mere fact that another view is possible having regard to the material on record is not a ground for review – Error apparent on the face of record can only be corrected in review – Matter cannot be reargued on merits and another order cannot be substituted in place of the order passed after hearing the parties. (Smt.Chinnamma & Ors. Vs R.Venkataswamy & Ors.) 2004(2) Civil Court Cases 376 (Karnataka)

Review – Scope of review is very limited and under the garb of review a party cannot be permitted to reopen the entire case. (Virendra Singh Kothari Vs State of Rajasthan) 2003(3) Civil Court Cases 208 (Rajasthan) 

Review – Successive applications – Not barred if same are otherwise maintainable in law. (Jaya Chandra Mohapatra Vs Land Acquisition Officer, Rayagada) 2005(1) Civil Court Cases 508 (S.C.) : 2005(1) Apex Court Judgments 496 (S.C.)

Review – Against order closing evidence of defendant – Not a case of defendant in review application that new and important matter or evidence is discovered or that mistake or error apparent on face of record was evident – Dismissal of review application upheld as no jurisdiction error in said order. (Punjab National Bank Vs V.P.Mehra) AIR 2004 Delhi 135

Review – By a person not party thereto – Not maintainable. (Pujya Sindhi Panchayat Vs Prof.C.L.Mishra)  AIR 2002 Rajasthan 274

Review – Mere erroneous decision per se does not permit Court to undertake review – Review jurisdiction can be exercised only on ground of error apparent on the face of record and not on any other ground. (Ahmedabad Electricity Co. Vs State of Gujarat) AIR 2003 Gujarat 157

Review – Must be heard by same Judge or Court – However, there are exceptions to this general principle – Order passed by District/Additional District Judge during pendency of trial – Can be reviewed by Civil Judge after case is transferred to his Court due to statutory change in pecuniary jurisdiction of Courts vesting same powers and jurisdiction. (Rajiv Lochan Vs Narender Nath) AIR 2004 Delhi 48

Review – Not permissible on ground that Court has proceeded on wrong proposition of law – Review is also not permissible on ground that decision is erroneous on merits. (Dolat Industries Vs Krishna Oil Industries) AIR 2002 Gujarat 91

Second review – Agreement to sell – Initially suit for injunction filed – By amendment of plaint relief of specific performance allowed – As plaint was beyond pecuniary jurisdiction of Court the same was ordered to be returned and presented in Court of competent jurisdiction within two months – Plaintiff kept quite for seven years – After seven years request for return of plaint allowed – Revision thereagainst allowed by High Court – Plaintiff filed application in trial Court to treat the plaint as fresh one, which was rejected – In revision thereagainst High Court ordered trial Court to decide application afresh – Held, this in fact is an attempt of second review which cannot be permitted and earlier order cannot be set aside as earlier order had already attained finality. (K.G.Arumugham & Ors. Vs K.A.Chinnappan & Ors.) 2005(1) Apex Court Judgments 666 (S.C.) : 2005(2) Civil Court Cases 63 (S.C.)

Review – Application has to be in the form of an appeal, setting out various grounds for review as in the case of an appeal – When review petition is not in proper form then petition to be returned for being presented in proper form as procedural errors or lapses by themselves are not a ground for dismissal of a petition – Petition cannot be dismissed merely on the ground that it is not in proper form. (Palakurthy Vs Noroju Manorama) 2003(2) Civil Court Cases 480 (A.P.)