Cpc Case Method Study Material 2019-20 (2).docx

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ACKNOWLEDGEMENTS

I extend my heartfelt gratitude and sincere thanks to our Hon’ble Vice-Chancellor Prof. (Dr) Surya Prakash for allotting me the subject of Civil Procedure Code with Limitation Law and Prof. Bhavani Prasad Panda for their encouragement and full cooperation throughout the preparation of the case method study material.

INDEX

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#

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Description

Page. No

01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35

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Course Outline 2019-20 Introduction Law Commission Reports Amendments Suit of Civil Nature Essentials & Stages of Suit Parties to the Suit Representative Suit Jurisdiction Doctrines of Res Subjudice & Res Judicata Foreign Judgment Pleadings Summons & Appearance of Parties Defence Written Statement Ex-Parte Decree Framing of Issues Adjournment Interlocutory Applications Injunctions Judicial Settlement Inherent Powers Caveat Mesne Profit Summary Suit Indigent Person Appeal, Reference, Review & Revision Execution Law of Limitation Legal Disability Acknowledgement Case-Laws Judicial Interpretations Journals Articles Index Conclusion

9 12 19 22 26 30 32 33 34 39 41 42 43 44 46 48 50 51 51 52 54 55 56 57 58 58 59 60 62 64 65 66 191 207 208

TABLE OF CASES

1. A. Shanmugam v. Ariya K.R.K.M.N.P. Sangam (2012)6 SCC Part 3 2. Bharat Aluminum Co. v. Kaiser Aluminum Technical services Inc.2012 (9) SCC 552 3. Dhulabhai v. State of M.P., AIR 1969 SC 78 4. Sidramappa v. Rajashetty & Ors AIR 1970 SC1059 5. National Institute of Mental Health and Nuero Sciences v C. Parameshwara AIR 2005 SC 242 6. Indian bank v. Maharashtra state Co-op fed. Ltd. AIR 1998 SC 1952 7. Daryao and Others v The State Of U. P. And Others AIR 1961 SC 1457 8. Patel Roadways Limited, Bombay v. Prasad Trading Company 1991 SCR (3) 391 9. Harshad Chiman Lal Modi v.DLF Universal and Anr. (2005) 7 SCC 791 10. New Moga Transport Company v.United India Insurance Co. Ltd. and Ors A I R 2004 S C 2154 5|Page

11. Mantoo sarkar v. Oriental Insurance company ltd (2009) 2 SCC 244 12. Virendra Kashinath Ravant And Another v. Vinayak N.Joshi And Others AIR 1999 SC 162 13. Bachhaj Nahar v. Nilima Mandal and Anr. AIR 2009 SC 1103 14. Balraj Taneja v. Sunil Madan AIR 1999 SC 3381 15. Bihari Chowdhary & Anr v. State Of Bihar & Ors 1984 AIR 1043 SC 16. G.P. Srivastava v. Shri R.K. Raizada & Ors. A I R 2000 SC 1221 17. Ghan Shyam Das Gupta and another v. Anant Kumar Sinha and others AIR 1991 SC 2251 18. Sangram Singh v. Election Tribunal Kotah and Another AIR 1955 SC 425 19. Satya v. Teja Singh AIR 1975 SC 105 20. C. RavichandranIyer v. Justice A.M. Bhattacharjee 1995 SCC (5) 457 21. S. P. Gupta v. President of India AIR 1982 SC 149 22. M.C. Mehta v. Union of India (Shriram - Oleum Gas case) A I R 1987 SC 965 23. Sukhbir Singh & Ors. v. Brij Pal Singh & Ors. AIR 1996 SC 2510 24. Satyadhan Goshal v DeorjinAIR 1960 SC 941 25. Bhanu Kumar Jain v. Archana Kumar  AIR 2005 SC 626 26. Bhagwandas Goverdhandas Kedia v. Giridharlal Purushottham das 1996 SCR (1) 656 27. Sopan Sukhdeo Sable and Ors. v.  Assistant Charity Commissioner and Ors. AIR 2004 SC1801 28. Revateeju builders & Developers v. Narayanaswamy & sons (2009)10 SCC 814 29. Kailash v. Nanhku AIR 2005 SC 2441 30. Smt. Isabella Johnson v. M.A. Susai 1991 AIR 993 31. Sushil Kumar Mehta v. Gobind Ram Bohra (dead) through his Lrs., [1990] 1 SCC 193 32. Oriental Aroma Chemical Industries Ltd. v Gujarat Industrial Development Corporation MANU /SC/0141/2010 33. C.F. Angadi v. Hirannayya AIR 1972 S.C 239 34. Basawaraj v. Land Acquisition Officer (2013) 14 SCC 81 36. Saiyad Mohammad Bakerv. Abul Habib Hasan AIR 1998 SC 1624 37. Indiaum Indian Telecom v Motorola Inc.(2005) 2 SCC 145

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38. Nani Gopal Mitra v. State of Bihar AIR 1970 SC 1636 39. Jet plywood Pvt. Ltd. v. Madhukar Nowlakha AIR 2006 SC 1260 40. State of Maharastra v. Hindustan Construction Company AIR 2010 SC 1299 41. Bhagwati Developers v. The Peerless 2013 (5) SCALE 378 42. Bharat Aluminum co. v. Kaiser Aluminum Technical 2012 (9) SCC 552 43. Shiv Kumar Sharma v. Santosh Kumar AIR 2008 SC 171 44. Foreshore Co – Operative Housing Society Limited v. Praveen D. Desai AIR 2015 SC 2006 45. State of Andhra Pradesh v. Manjeti Laxmi Kantha Rao AIR 2000 SC 2220 46. Mohanakumaran Nair v. Janyakumaran Nair AIR 2008 SC 213 47. Ramji Gupta v. Gopi Krishan AIR 2013 SC 3099 48. Salem Advocates Bar Assn. v. Union of India (2005) 6 SCC 344 49. Ramrameshwari Devi v. Nirmala Devi 2011 (8) SCC 249 50. G. Ratna Raj (d) by Lrs. v. Muthukumarasamy Permanent Fund Ltd., JT 2019 (3) SC 524 51. Asharfi Devi (D) through LRS. Vs. State of Uttar Pradesh & Ors. AIR 2019 SC 832 52. Tek Singh v. Shashi Verma, AIR 2019 SC 1047 53. Ram Lal v. Salig Ram AIR 2019 SC 729 54. Commissioner, Mysore Urban Development Authority vs. S.S. Sarvesh 2019 (2) MLJ 350 55. Shivnarayan (d) by LRs v. Maniklal 2019 (2) ALT 35

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REFERENCES Books: 1. Mulla, The Code of Civil Procedure, 19th Edition, Lexis Nexis 2. Sarkar’s Code of Civil Procedure, 12th Edition, Lexis Nexis 3. Jatindra Kumar Das, Code of Civil Procedure, 2014, PHI Learning Private Limited 4. Sukumar Ray, Textbook on the Code of Civil Procedure, Second Edition, Universal Law Publishing co. Pvt. Ltd 8|Page

5. C.K. Takwani, Civil Procedure with Law of Limitation, Seventh Edition, Eastern Book Company 6. T.R. Desai Commentary on Limitation Act, 10th Edition, Universal Law Publishing co. Pvt. Ltd Statutes: 1. Civil Procedure Code, 1908 2. Limitation Act, 1963 Articles: 1. Amit Sachdeva, “ Delay in filing of written statement”: An analysis 2. Justice RRK Trivedi, “Law of Injunctions” 3. Merrick B.Garland, “Deregulation and Judicial Review” 4. Justice S.U. Khan, Judicial Settlement under Section 89 of CPC 5. Prof. N.R. Madhav Menon, “ A Vision of Indian Judiciary-2025” Websites:

1. 2. 3. 4.

https://www.advocatekhoj.com https://www.casemine.com https://www.legalcrystal.com https://www.vakilno1.com COURSE OUTLINE (2019-20)

Name of the Faculty: Dr. N. Bhagya Lakshmi

No. of sessions: 70

1. Objective of course: This course is designed to acquaint the students with the various stages through which a civil case progresses. The Code of Civil Procedure, 1908 plays a crucial and determining role in expediting the adjudication of civil disputes. CPC defines the structure of the civil judiciary, its 9|Page

powers, jurisdiction and the significance of various procedural steps stipulated for trail of civil litigation. The object of CPC is to ensure procedural nicety in civil litigation. Procedural laws are a concomitant part for implementing and enforcing of rights, remedies and liabilities as provided therein in the substantive laws. This course will also deals with the Law of Limitation as applicable to civil proceedings. 2. Take Away of the Students: On pursuing this course, the students will be able to understand the technicalities of the procedure in conducting a civil litigation. 3. Pedagogy: The classes for this course will be conducted in a case law method to evoke participation in learning the various procedural niceties of civil litigation.

COURSE OUTLINE CIVIL PROCEDURE CODE AND LAW OF LIMITATION SYLLABUS SL.NO CASE LAWS SESSIONS CONCEPT 1.Afcons infrastructure case (2010)8

to

SCC 24

Dispute & Civil

2.A. Shanmugam v. Ariya K.R.K.M.N.P.

Dispute

Sangam (2012)6 SCC Part 3

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1.1 Introduction

1.2 Types

of

Civil

3.Sangram Singh v. Election Tribunal

Disputes

Kotah and Another AIR 1955 SC 425

1.3 Introduction

4. Bharat Aluminum Co. v. Kaiser

Civil Law

Aluminum Technical services Inc.2012

1.4 Substantial Law &

(9) SCC 552

Procedural Law

5. Dhulabhai v. State of M.P., AIR 1969

1.5 Objective

SC 78

1.6 Introduction

1970 SC1059 7.National Institute of Mental Health and Nuero Sciences v C. Parameshwara AIR 2005 SC 242 8. Indian bank v. Maharashtra state Coop fed. Ltd. AIR 1998 SC 1952 9.Daryao And Others v The State Of U.

of

Procedural Law

6.Sidramappa v. Rajashetty&ors AIR Unit-I

to

principle 13

and

features

of CPC 1.7 Suits – Parties to suits, Locusstandi 1.8 Non-joinder &Misjoinder of parties 1.9 Framing

and

P. And Others AIR 1961 SC 1457

Institution & Bar

10. Satya v. Teja Singh AIR 1975 SC

of Suit.

105

1.10

Doctrines

–

Res Subjudice and Resjudicata 1.11

Foreign Court

&

Foreign

Judgment 1.12

Mesne Profits-

Legal representatives

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1.SatyadhyanGhosal&Ors v. Deorajni

2.1 Place of Suing

Debi

2.2 Transfer of suit

AIR 1960 SC 941

2.3Territorial

2.Ramji Gupta v. Gopi Krishna Agrawal

Jurisdiction.

Unit-II

AIR 2013 SC 3099

2.4Cause of Action

3. Patel Roadways Limited, Bombay v.

2.5Service

Prasad Trading Company 1991 SCR (3)

Summons & Foreign

391

Summons

4.HarshadChiman Lal Modi v.DLF

2.6

Universal and Anr. (2005) 7 SCC 791

contents – forms –

5.New Moga Transport Company

Amendment.

v.United India Insurance Co. Ltd. and

2.7 Plaint – Essentials

Ors A I R 2004 S C 2154

2.8

6.Mantoo sarkar v. Oriental Insurance

Rejection of plaint

company ltd (2009) 2 SCC 244

2.9

7.Virendra KashinathRavant And

Marking of documents.

Another v. VinayakN.Joshi And Others

2.10 Written Statement

AIR 1999 SC 162

18

of

Pleadings

Return Production

–

and and

2.11Counter – Set off

8.BachhajNahar v. Nilima Mandal and

– Issues.

Anr. AIR 2009 SC 1103

2.12 Abatement of Suit

9. BalrajTaneja v. Sunil Madan AIR 1999 SC 3381 10. SopanSukhdeo Sable and Ors. v. Assistant Charity Commissioner and Ors. AIR 2004 SC1801 11.Kailash v. Nanhku AIR 2005 SC 2441 12. Salem Advocates Bar Assn. v. Union of India (2005) 6 SCC 344

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1.Kunjan Nair Sivaraman Nair

3.1 Appearance and

v.Narayana Nair (2004)3 SCC 277

Examination of parties

2.Dr. Subramanian Swamy v. State of

and

Tamil Nadu & Ors. 2014(1) SCALE 79

3.2

adjournments Ex-parte

3. G.P. Srivastava v. Shri R.K.

Procedure.

Raizada&Ors. A I R 2000 SC 1221

3.3 Summoning and

4.Ghan Shyam Das Gupta and another v.

Attendance of witness

Anant Kumar Sinha and others AIR 1991

–

SC 2251

Examination –

5.Revateeju builders & Developers v.

Admissions

Narayanaswamy& sons (2009)10 SCC

3.4

814

Impounding, Return of

Production,

documents Unit-III

6. G. Ratna Raj (d) by Lrs. v. Muthukumarasamy Permanent Fund Ltd., JT 2019 (3) SC 524 7.Ramrameshwari Devi v. Nirmala Devi 2011 (8) SCC 249 8. G.P. Srivastava v. Shri R.K. Raizada&Ors. A I R 2000 SC 1221 9. M/s Shiv Cotex v. Tirgun Auto PlastP.Ltd 2011 AIR SCW pg. 5789 10. Ritesh Tiwari & Another v. State of Uttarpradesh (2010) SCC 677 11. Hakam Singh v. Gamon India Ltd. AIR 1971 SC 740 12. RSD Finance co. v Shree Vallabh glass Marks AIR 1993 SC 2094 13.Mohanakumaran Nair V. Janyakumaran Nair AIR 2008 SC 213 14.M/s Kusum Ingots & Alloys v Union of India AIR 2004 SC 2321

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Hearing – Affidavit. 3.5

Withdraw&

Compromise of suit 3.6

Judgment

and

Decree 3.7 Summary Suit 3.8 Interim orders and stay. 3.9

Injunction

Appointment

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Receivers and Commissions. 3.10 Caveat 3.11Execution Proceedings Procedure and modes. 3.12Arrest and Detention – Attachment and sale.

1. State of Uttar Pradesh &Anr v.

–

–

JagdishSharan Agrawal &Ors., (2009) 1

4.1 Suits in particular

SCC 689

Cases

2.SBI v. S.N. Goyal AIR 2008 SC 2594

4.2 Suits by / against

3. Smt. Isabella Johnson v. M.A. Susai

Government

1991 AIR 993

Relating to Public matters.

4.Sushil Kumar Mehta v. Gobind Ram

4.3 By / against minors

Bohra (dead) through his Lrs., [1990] 1

and Un-sound mind.

SCC 193

Unit- IV

–

4.4

By

indigent

5.Saiyad Mohammad Bakerv. Abul

persons –

Habib Hasan AIR 1998 SC 1624

4.5 Interpleaded suit

6.Indiaum Indian Telecom v Motorola

4.6

Inc.(2005) 2 SCC 145

Supplemental

7. Nani Gopal Mitra v. State of Bihar

Proceedings

AIR 1970 SC 1636

4.7 Appeals,

8. Jet plywood Pvt. Ltd. v.

13

Incidental

and

Reference, Review and

MadhukarNowlakha AIR 2006 SC 1260

Revision.

9.State of Moharastra v. Hindustan

4.8 General Provisions

Construction Company AIR 2010 SC

relating to Appeal

1299

from

10.Bhagwati Developers v. The Peerless 2013 (5) SCALE 378

Original Decree, Appellate Decree

11.Foreshore Co – Operative Housing Society Limited v. Praveen D. Desai AIR 2015 SC 2006 12.Asharfi Devi (D) through LRS. Vs. State of Uttar Pradesh & Ors. AIR 2019 SC 832 13.Tek Singh v. Shashi Verma, AIR 2019 SC 1047 5.1 Law of Limitation

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Unit-V

1.Radhakrishna Murthy v. Special Dy.

– Concept and Object.

Collector 2003(4) ALT 576

5.2 General Principles

2.Oriental Aroma Chemical Industries

and Extension.

Ltd. v Gujarat Industrial Development

5.3

Corporation MANU /SC/0141/2010

delay and sufficient

3.State of Andhra Pradesh v. Manjeti

10

Laxmi Kantha Rao AIR 2000 SC 2220 4.C.F. Angadi v. Hirannayya AIR 1972 S.C 239

Condonation

cause. 5.4

Computation

of

Limitation. 5.5 Acknowledgment and part – payment.

5.Basawaraj v. Land Acquisition Officer

5.6 Legal Disability

(2013) 14 SCC 81

and Act Provisions.

6.Ram Lal v. Salig Ram AIR 2019 SC 729 7.Commissioner, Mysore Urban Development Authority vs. S.S. Sarvesh2019 (2) MLJ 350 8.Shivnarayan (d) by LRs v. Maniklal 2019 (2) ALT 35 ***List of Cases is not exhaustive. Faculty may discuss or indicate any additional Cases

Essential Reading: 7. Mulla, The Code of Civil Procedure, 19th Edition, Lexis Nexis. 8. Justice C.K.Takwani, Civil Procedure Code, EBC

Suggested Reading: 1. JatindraKumar Das, Code of Civil Procedure, PHI Learning Private Limited. 15 | P a g e

of

2. B M Prasad Manish Mohan, Manual of the Civil Procedure Code (Set of 3) Advanced Reading: 1. SatpalPuliani, Case Commentary on Civil Procedure Code, Karnataka Law Journal Publications (2019) 2. Woodroffe& Ameer Ali, Commentary on Code of Civil Procedure with Latest case laws, Delhi Law house. 3. Justice M.L. Singhal, Suranjan Chakraverti and BholeshwarNath Cases and Materials on Code of Civil Procedure (in 4 Volumes)

INTRODUCTION The province of law differs from that of ethics. While ethics condemns every sort of falsehood, law does not punish all falsehoods, but only those that affect the good governance of the State. Keeping aside ethics, a perusal of law is necessary. In the system of justice provision, it is very important that a person gets justice and on time. Law has always been an essential element of society. It was there even when men were uncivilized and it is even today when we have entered into much-sophisticated world. The presence of law is made much known to us with the existence of courts. Law may be divided into civil and criminal. Yet, there is a distinction between the two, which in its essence is quite simple. In case of civil dispute monetary relief normally compensated the aggrieved person. Law dealing with civil wrongs and the remedies available for their reprisal may be conveniently labeled as civil law. Substantive and procedural laws are two branches of law from jurisprudential stand –point. Civil procedure code belongs to procedural laws are two branches of

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law from jurisprudential stand – point. Civil procedure code belongs to procedural law category. Substantive law determines the rights and liabilities of parties, adjective or procedural law prescribes the practice, procedure and machinery for enforcement of those rights and liabilities. Rights and obligations of the members of a civilized society would be rendered meaningless unless they are determined and enforced. This is made possible by two sets of laws i.e. substantive law and procedural law. The essential distinction between substantive law and procedural law is that while substantive law confers legal rights and defines the nature and extent of legal duties, adjective or procedural law prescribes the procedure for the enforcement of legal rights by a court of law or any other tribunal. The Indian contract Act, 1872, T.P. Act, specific Relief Act, Indian succession Act are all instances of substantive law, civil procedure code, Indian evidence Act are instances of adjective law. Procedure is mere machinery having its object to facilitate the administration of justice, meaning thereby that procedure is a process necessary to be undertaken for enforcement or recognition of the legal rights and liabilities of the litigating parties by a court of law. CIVIL LAW

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LAW OF CIVIL PROCEDURE Law of civil procedure prescribes the procedure for enforcement of substantive civil rights. The efficacy of substantive civil laws mainly depends on the quality of the law of civil procedure. The essential characters of law of civil procedure can be categorized into three classes 1. Complementary 2. Protective 3. Remedial or practical In its complementary character Law of civil procedure is ordinarily contrasted with substantive law. As the law of civil procedure neither creates nor takes away any right. But only regulates the procedure to be followed by civil courts, its provisions must be interpreted in a manner so as to serve and advance the cause of justice rather than defeat it.

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In its protective character, the law of civil procedure represents the public functioning of the legal machinery and the operation of the ‘due process of law’. Every person who has a grievance has a right to approach a court of law for remedy. Due process of law means nobody ought to be condemned unheard. Due process of law is satisfied the moment rights of the parties are adjudicated by a competent court. CPC safeguards every person and his right to life, liberty, reputation, livelihood and property. It also ensures that no person shall suffer any deprivation of his rights. In its remedial or practical character the law of civil procedure deals with the actual litigation process itself, in accordance with the practice & procedure of the courts and enhances the importance and application of the rules, practical and procedural modes and methods for the conduction of the judicial process. The law of civil procedure plays a crucial and determining role in expediting the adjudication of civil disputes. Civil procedural law is an indispensable instrument for attainment of justice and it fulfills many legal and social functions and it assumes complementary character when it puts into motion and gives life to substantive law. One of the remarkable features of the CPC is that each party to a dispute is provided with an equal and fair opportunity to present his case before the court. The code was enacted with the objective of consolidating and amending the laws relating to the procedure of the courts of civil judicature. The code, being a procedural law is retrospective in operation and its provisions apply to the proceedings pending at the time of its having come into force. However, the procedure correctly adopted & concluded under the previous (repealed) law cannot be re – opened for the purposes of applying new procedure. It emerges from the foregoing discussions that the CPC is the product of history. It is rooted in our soil, nurtured and nourished by our culture, languages & traditions fostered and sharpened by our genius and guest for social justice, reinforced by history and heritage, it is not a mere copy of the English common law, though inspired and strengthened, guided and enriched by concepts and precepts of justice equity and good conscience which are indeed the hall mark of common law. 19 | P a g e

The CPC gives wide discretionary power to the courts. However, this discretionary power must be exercised in a judicious manner. It should not be arbitrary. The court should exercise discretion according to the well – accepted norms. It contains both mandatory and directive provisions. The court has to act according to the statutory provisions in CPC, keeping in view the circumstances of the case for which it has to use its discretionary power. A mandatory provision should be strictly followed. The CPC applies to the procedure of all courts of civil judicature it cannot of itself establish a right which does not exist under the ordinary law of the land. DISPUTE AND LITIGATION A ‘Dispute’ is a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons.

Mavrommatis Palestine Concessions 1924 PCIJ, series A, No 2, P.11 1) Under what circumstances does a ‘disagreement’ or ‘conflict’ become a dispute? Does the communication between the parties need to reach a certain level of intensity to quality as a dispute? 2) Who determines whether the dispute is on point of law or fact, a conflict of legal views? 3) How does the court determine whether the dispute represents a conflict of interests between’ the parties? Dispute must be legal dispute. The expression ‘Legal dispute’ has been used to make clear that while conflicts of rights are within the jurisdiction of the center, mere conflicts of interests are not. The dispute must concern the existence of (or) scope of the legal right or obligation, or the nature or extent of the reparation to be made for breach of a legal obligation. Disputes will not be found hypothetical and unfit for judicial resolution because actual damage not occurred. A dispute must relate to clearly identified issues and must have specific consequences in order to serve as a basis for jurisdiction. A dispute will be legal if the claim is based on legislations and other sources of law and if remedies such as restitution for damages are sought. Litigation: 20 | P a g e

Litigation means an action brought in court to enforce a particular right. Litigation is the settlement of legal disputes before courts. Civil procedure is about litigation, which is the basic model by which disputes are resolved in our society. The classic course for dispute resolution is litigation, the process by which the person will sue the wrongdoer and the dispute will be resolved by the judicial system through the litigation process litigation, and then is a socially acceptable method for resolving the disputes. Our course is about civil litigation. In this context ‘civil’ is juxtaposed to criminal.

DISPUTE RESOLUTION Despite all such, positive and negative effects of dispute it is necessary that the Society, State and Parties to the dispute be equally under the obligation to resolve the dispute, as in any civilized society, for the rule of law to prevail, complete justice should be meted out. The above study of the environment factors contributing for dispute, leads to the truth that there are elements of conflict in every situations and that dispute is part of every human society and the society, from the time immemorial has pioneered different methods to smoothen the causes of dispute with the use of different dispute resolution mechanism. Fundamentals of Dispute Resolution Process: Disputes resolution is an indispensable process for making social life peaceful. Dispute disturbs the integration of the group and since social stability is required for the social order, in every society efforts have been made to bring about resolution of conflict between antagonistic groups. Disputes resolution process tries to resolve and checks conflicts, which enables persons and group to maintain co-operation. Adjudication through Court of Law (Litigation / Lawsuits): Litigation as commonly understood is a lawsuit, a judicial contest or a contest in the Court of Law. Justice P.B. Mukharji held that litigation means dispute and not actual proceedings in a Court of law. In the case of Vide Mury Exportation Vs Khaitan and Sons, (AIR 1956 Cal 644,648) it was held that Litigation and Arbitration, are both methods of resolving the Dispute, one in a Court of law while the other through a private Tribunal. There are some disputes, which

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can only be decided in the Courts thus, the in arbitrability of the subject matter of the disputes makes it not capable of settlement by the alternative dispute redressal methods for the time being in force. (The Arbitration and Conciliation Act, 1996 Section 34(2) (b) (i).) The expression ‘subject matter’ has been defined neither in the Arbitration and Conciliation Act, 1996 nor in Code of Civil Procedure 1908. The rights and liability arising out of certain actions falling in the area of criminal offences have to be determined by the criminal Courts because such Courts are specifically equipped with the paraphernalia to try criminal offences and inflict punishment. Thus, such disputes are not triable by the alternative dispute redressal forums as in law it cannot acquit or punish a person for a criminal offence, because it cannot assume the powers of a Magistrate. The matters covered by The Guardian and Ward Act 1989 cannot be suitable dealt under the alternative dispute redressal methods. That Guardian and Ward Act 1989, provides special machinery for dealing with various types of disputes, which are suitable dealt with only under the provisions of that Act. Likewise the question of legality and validity of will or capacity of testators etc., have to be dealt with by the law relating to wills, trust and succession statutes or the personal laws only. The matters relating to winding up, amalgamation and takeover etc. are covered under The Companies Act 1956 and such matters can only be dealt with under the machinery provided in that Act. Lawsuits have their own advantages such as the judicial officers will be highly qualified lawyers with high experience, expertise and objectivities. The established rules and procedures result in cases being present to the best advantage, including detailed enquiry in to the facts, the principles applied by the Court are clearly discernible and reasonable. The Court have the dignity, authority and confidence in the eyes of the public, as a right legal aid is also available to the litigants, and in some cases the Court proceedings can sometimes stimulate settlement negotiations. The parties to the Suit also experience the disadvantages in the Process of Litigations in practice. The process of litigation is open to the public viewing and public reporting it is the main disadvantage where the dispute is between the individuals regarding matters on which they do not want a bitterness before the public eye. The differences are highlighted and the parties sometimes take extreme position in the adversarial atmosphere. The process of litigation is also costly, in many cases litigation results in anxiety, apprehension and stress. Litigations ends in a winning, losing situation and compromises among the parties to the dispute is very rare, and 22 | P a g e

most notable disadvantage is the backlog of cases due to the unending and unjustifiable time taken by the Courts at the trial stage or in appeals for arriving at the final judgment. Interpretation of CPC: Law of civil procedure is based on the principle that as far as possible, no proceeding in a court of law should be allowed to be defeated on grounds of mere technicalities. The provisions of the CPC, therefore, must be interpreted in a manner so as to sub serve and advance the cause of justice rather than to defeat it. Procedure is mere machinery and its object is to facilitate and not to obstruct the administration of justice. It should not be treated as an enactment providing for punishment and penalties. The law of justice should be so constructed as to render justice where reasonably possible. CPC contains sections & orders along with rules. The sections lay down the general principles of jurisdiction and the orders and rules prescribe the method, manner and mode in which this jurisdiction may be exercised. Objective of course: Study of procedural law is important for a law student. This course is designed to acquaint the students with the various stages through which a civil case passes, through and the connected matters. Aim: Procedural law is aimed to shorten litigation and grant expedient justice, its object is to grant final justice and not to weave spider web to entangle for immemorial time, the parties into litigation for occasioning proverbial delays. Procedural law is not a tool to refuse a just relief for a mere infraction of a rule of procedure which in no way cause prejudice to the complaining party. It cannot be allowed to occasion injustice or go against good conscience. Objective of the code: Its preamble states that code was enacted with the object of consolidating and amending the laws relating to the procedure of the courts of civil judicature. 23 | P a g e

The code is in two parts: (1) The body of the code which contains sections 1 to 158 (2) Schedule contains orders and rules.

Issues: (1) Whether civil procedure is an adjective law? (2) How the code of civil procedure 1908 evolved and developed overtime? (3) What are the objectives, scope and extent of applicability of the code? (4) How the code is to be interpreted? (5) Whether the code should have retrospective operation? (6) Whether the code provides an adversary procedure or an inquisitorial procedure? (7) To what extent has such adversary procedure been effective? The civil justice system aims to resolve disputes between individuals, enabling both legal and equitable rights to be enforced. History of the code: Before, 1859 there was no uniform civil procedure applicable for the entire country. 1859 code was enacted but it was not applicable to presidency Supreme Court and presidency small cause courts. This code had several issues and amended and reenacted in 1877 and another amendment was made in 1892. The existing present code was enacted in 1908. LAW COMMISSION REPORTS Laws are made to regulate human relations on the basis of the policy adopted by the Government. In order to ensure a system, where justice is available and redressal is satisfying the expectation of the people, there is need to develop a method whereby speed trial is accessible. The demand of justice is not only that justice should be provided but also within a reasonable time. ‘Delay’ though today has become a buzz word but it is not a recent phenomenon. Several commissions have given recommendations for proper judicial administration. The main objective was to revamp the judicial system with a view to reduce delay and enlarge access to justice.

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14th Report of law Commission of India: (Reform of Judicial administration noted that the delay in decision is as old as the law itself. The in ordinate delay results in the miscarriage of justice and increases the cost of litigation. The commission opined that there is congestion of work in the higher courts, which is not found in the lower courts. So, there can be reallocation of work from higher courts to lower courts. 27th Report of Law Commission of India: (Report on code of civil procedure code) The commission examined the problem of congestion and the delay in disposal of cases. It is found that the delay is caused mainly due to four factors. Which are insufficiency of judicial officers, inadequate ministerial staff, personal factors and defects in the procedure? The report has recommended more appointments of the judicial officers and ministerial staff. New districts and courts are established to distribute the workload. 58th Report of law commission of India:

(Structure and jurisdiction of Higher Judiciary):

Litigation should be the last resort and should have tribunals or appellate forums rather than invoking Art. 136 of India constitution. Further

recommended

alternative

dispute

resolutions for dispute settlement, which will provide an amicable settlement to the parties at speedier and cheaper rate. 77th Report (Report on Delay and arrears in Trail courts): The commission expressed the view that improvement in the efficiency of trial judges will help to tackle the problem of arrears. The trial judge is the linchpin of the entire judicial system. The efficiency of trial judge should be improved by providing intensive training. 120th Report: (Report on manpower planning in judiciary: A blue print): The report highlighted upon the problem of manpower planning which has not improved proportionate to the development. The present time has made it not only the duty of the state but also the fundamental right of individual to have fair and speedy trial. 121st Report: (Report on A new forum for judicial appointments): 25 | P a g e

The report recommended the reduction in delay by streamlining the process of appointment of judges. The Supreme Court and High Court would devise methods for selection of judges to the subordinate judiciary. The present report recommended on the manner of the selection through National Judicial service commission. 124th Report: (Report on the High Court Arrears – A fresh look): The law commission in its findings mentioned that there is need of decentralization of system of administration of justice by establishing other tiers or systems within the judicial hierarchy to reduce the volume of work in the Hon’ble Supreme Court and the High Courts. The computer facility in the courts is the need of present time. The information and communication technology in the judiciary well smoothen and accelerate case progression to reach its logical end within the set time frame with complete demystification of judicial process ensuring transparency and accountability. In this report, the committee recommended in the curtailment of High Court jurisdiction from tax, labour and education subjects. 125th Report: (Report on the Supreme Court. A fresh look): This report recommended for splitting the Supreme Court into two. That would not only considerably reduce costs but also the litigant will have the advantage of his case being argued by some advocate. 213th Report: (Fast track Courts): Alternative dispute resolution mechanism comprises of negotiations, conciliation and mediation can provide adjudication at a faster rate. Lok- Adalats are established to deal with these cases at a speedier rate. 221st Report: (Need for speedy justice): The mounting of arrears of cases in High Courts and dist. Courts has been a matter of great concern for litigants as well as for the state. The frivolous and vexatious litigations should be controlled. 26 | P a g e

229th Report: (Need for the division of Supreme Court): This Report has looked into arrears of cases accumulated in the Supreme Court. A separate constitutional division and legal division to be established. 230th Report (Reforms in the Judiciary): Speedy justice is the right of every litigating person. The judiciary has a special role to play in the task of achieving socio – economic goals enshrined in the constitution while maintaining their aloofness and independence. There is a need for institutional and systematic reforms for the judges. The number of working days should be increased. 233rd Report: (Amendment of civil procedure code): The courts exists for the dispensation of justice and not for the denial for technical (session) reasons especially when the law and justice demands it utmost.

AMENDMENTS The civil procedure code has been amended several times to meet the needs and requirements to meet the needs and requirements, which are dynamic and changing from time to time. From 1909 to 1976, the code has been amended more than 30 times. Two important amendments were made in 1951 and 1956, despite there being some defects in it, the code was enforced satisfactorily. The law commission submitted several reports for amendment of the code: 1. The procedure must not be complex and must allow a fair deal to economically weaker sections of the society. 2. A litigant must get a fair trial in accordance with the accepted principles of natural justice. Despite the radical changes in due course of time, the society still faced the delaying issues due to humongous pending lawsuits in the court.

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The failure of the objective of the amendments in 1999 i.e. speedy & expeditious trial resulted to the 2002 amendment. The main objective behind this amendment to reduce the delays faced at the different levels of the litigation. 1. Number of adjournments to be restricted 2. Provisions for outside settlement to be introduced 3. Provisions for recording evidence by court commissioner has been made 4. No further appeal in certain cases (Sec. 100A) 5. Fixed time frame for service of the summons 6. The concept of ‘access to justice’ has undergone significant transformation. The amendment 2002 aims to provide for speedy & effectual justice.

PHILOSOPHY OF CPC 

The major concern of law is that conflict of resolution



Procedural laws are important for implementing and enforcing of rights and remedies provided in substantial law



CPC regulates the function of civil courts & establish procedure for adjudication of disputes



It provides a fair procedure for redressal of disputes.



Ensure procedural regularity in civil litigation.

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Procedural law is an adjunct or an accessory to substantial law



Prescribes practice and procedure and machinery for the enforcement of rights and liabilities.



Nothing can be given by procedural law what is not sought to be given by substantial law.



It neither creates nor takes away any right.



It is designed to facilitate justice and further its end.



Regulating access to court & justice

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Maintains speedy and effective process

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Achieving just and effective outcomes.

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

CPC is systematic and formal way



Efficiency & fairness demanded that three can be an end to litigation.



Mediation and conciliation processes are encouraged.



CPC prescribes basic rules for jurisdiction of civil courts.



Claimant may protect his right or interest by way of temporary relief



The court has inherent power to act according to principles of natural justice, equity and good conscience.



Consolidated code collecting all the laws relating to procedures to be adopted by the courts.



Code construed liberally and technical objections should not be allowed to defeat substantial justice.



The CPC is not merely based on the black letter of law and procedure, it takes (account) into account humanist perspective while charting out the procedure. CODE AT A GLANCE The body of the code has 12 parts containing 158 Sections. Sec.1 to 8 are preliminary as

Sec. 1 deals with the extent of the applicability, Sec.2 deals with definitions. Sec.3 to 8 talk about the constitution of different courts and their jurisdictions. Part – 1 deals with Sec. 9 to 35 – B and orders 1 to 20 of the (first) schedule deal with suits. Section 9 enacts jurisdiction Sec. 10 – stay of suit, Sec. 11 – well – known doctrine of Resjudicata and other aspects. Orders 1 to 2 deals with various aspects that institution and frame of suits, parties to suit, issue and service of summons, pleadings, appearance of the parties and discovery and inspection of documents. Part – II Sec – 36 to 74 and order 21 cover execution proceedings. The principles governing execution of decrees and orders are dealt with in Sec -36 to 74 (substantive law) and order 21 (procedural Law). Order 21 is the longest order covering 106 rules. Part –III – Sec. 75 to 78 and order 26 make provisions as to issue of commissions. (Sec. 94) Part – IV – Sec. 79-93 and orders 27 to 37 lay down procedure for suits in special cases. Sec. 91 and 92 suits relating to public nuisances and suits relating to public trusts. Sec. 94 & 95 and order 38 provides for arrest of a defendant & attachment before judgment. Section 89 29 | P a g e

inserted by way of 2002 amendment for settlement of disputes outside the court through arbitration, mediation and lok - adalats. Part – VI – Sec. 96 -103 contained detail provisions for appeal, reference, review and revision. Sec. 96 to 99 – A and or. 41 deals with first appeals, Sec. 100 to 103 and or. 42 deals with law relating to second appeals. Part – VII – Sec. 104 to 108 and order 43 Contains provisions as to appeals from orders. Sec. 109, 112 and order 45 provide for appeals to the Supreme Court. Order 44 – appeals by indigent persons Part – VIII – Sec. 113 and order 46 pertain to references to be made to a High Court by a subordinate Court when a question of constitutional validity of an act arises. Part – IX – Section 114 and order 47 permit review of judgments in certain circumstances. Sec – 115 provisional jurisdictions. Part – X - Sec. 121 – 131 enables High Courts to frame rules regulating their own procedure and the procedure of civil courts subject to their superintendence. Part – XI – XII deals with Sec. 132 to 158. Explains proceedings would not proceedings under Art. 226. Section 144 embodies the doctrine of restitution and deals with power of the court to grant relief of restitution in case a decree is set aside or modified by a superior court. Sec. 148 – A – permits a person to lodge a caveat in a suit or proceedings. Sec. 151 is a salutary provision. It saves inherent powers in every court to secure the ends of justice and also to prevent the abuse of process of the court. Sec. 152 to 153 – A empower a court to amend judgments, decrees etc. sec. 153B expressly declares that the place of trial shall be open to the public.

SUIT OF A CIVIL NATURE Suit:

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The expression ‘suit’ is not defined in the code. But in Hans raj Gupta v. official liquidators of the Dhera Dun ((1932-33) 60 IA 13; AIR 1933 PC 63 and pandu ranga Rama Chandra v. Rhantibai Ramachandra 1989 Supp (2) SCC 627 at p. 6; Their lordships defined the term ‘suit’ in the following words. ‘The words ‘suit’ ordinarily means and apart from some context must be take into mean, a civil proceedings institute by the presentation of a plaint. Civil Suits are divided: i)

Suits of a civil nature and

ii)

Suits not of a civil nature.

The Civil courts have jurisdiction to try suits of a civil nature. They have no jurisdiction to try suits not of a Civil-nature. This principle is laid down in Sec.9 of CPC. It says that the Civil Courts have jurisdiction to try all suits of a civil nature excepting those that are expressly or impliedly barred. The C.P.C. 1976 has added two explanations. i) A suit in which the right to property or to an office is contested, is a suit of a civil nature, even though such a right is connected with a religious right or with religious ceremony, ii) It is immaterial whether or not any fees had been attached to an office or such an office was attached to a particular place or not, Eg.:i) Suits of Civil nature: Matters relating to Easement, Adoption, Marriage, title to property, to run a customary bull race, right to burial. ii) Suits not of a civil nature: Suit for claiming dakshina for worship at a temple by the pujari (worshipper), political questions etc. Suits expressly barred: Remedy of a workman against termination order, is barred as the remedy is in the Industrial Disputes Act. Suits dealing with Act of State & public policy are barred. The cardinal rule is therefore that the Civil Courts can entertain only suits of a civil nature. But, vexed problems do come before the courts with mixed rights civil & religious. The courts are guided by certain procedural principles in suchcircumstances. i) If the main question or the only question is in respect of caste or religious right or ceremonies it is not of a civil nature but, if the religious right is only a subsidiary question, then it is of a civil nature. Further, if the main question cannot be decided without deciding the religious or caste 31 | P a g e

question then, the matter is of a civil nature and the courts have jurisdiction. Expulsion from caste(Excommunication). This will deprive a person of his legal right which forms part of his status. Hence, suit will lie. However, excluding a member from invitation to caste dinners or ceremonies will deprive him a social privilege, and hence no civil suit can be filed.Similarly a) No civil suit can be filed to compel a pujari to adorn an idol at a certain season. b) Suit in respect of a mere dignity attached to an office is not of the civil nature. The suit of a swamiji, that he should be carried on the high road in a palanquin isnot a suit of a civil nature as it is .only a religious honour. ii) If the main question is a civil or a legal right, it is a civil nature. Therefore, a right to an office is a suit of a civil nature. Office may be secular or religious. A religious office may be of two kinds: a) Those offices to which fees are attached as of right. Eg. Khaji, Aya of a Mutt, Joshi of a village, orpujari of a temple, Upadayaya of a Caste. b) Those offices to which no fees is attached. . iii) Interference with temple properties. Eg: Removing the name or other religious mark is of civil nature. Right to worship at a certain place is of a civil nature. Right of burial is a civil right. Carrying religious procession on the highway is a civil right. Hence, a civil suit may be filed. iv) Examples: 1. Right of an elected person to act as such 2. Right to vote or stand for election 3. Suit for dissolution of marriage 4. Right of a club or Association member tocontinue asmember 5. Suit for rent contribution, mesne profits, etc. General concept of suit: The term suit is not defined under the in the C.P.C. but by various decisions it can be said that “Suit ordinarily means a civil proceedings instituted by presentation of a plaint. Civil suit is the institution of litigation for enforcement of civil rights (or substantive rights, it may be against state or individual). Essentials of a suit: 32 | P a g e

Parties (there must be two opposing parties) – In a suit there must be at least two parties the plaintiff & the defendant. There is no limitation with regards to number on either side. Locus standi: Locus standi means a person who approached the court should show himself that he suffered a legal injury. Bonafide reason should be there. Redress ability is another important essential i.e. it should be enforceable right. Sec. 31(3) of Supreme Court Act, 1981 provides ‘no application for judicial review shall be made unless the applicant has a sufficient interest in the matter to which the application relates. Cause of Actions – it is a set of facts or circumstances that a plaintiff is required to prove. A person is party to a suit if there is a cause of action against him. The cause or the set of events or circumstances, which leads or resulted into presentation of a plaint or filing a suit. – lay man language. Legally – The cause of action means every fact, which is necessary for the plaintiff(s) to be proved with a view to obtain a decree in his favour. 33 | P a g e

Cause of action means all essential facts constituting the right and its infringement.Every plaint must disclose a cause of action if not; it is the duty of the court to reject the plaint – O.7, R.11 Subject matter – there must be a subject matter (with what respect or aspect civil dispute is). Section-9. Courts to try all civil suits unless barred. The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Explanation I: A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies. Explanation II: For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place. Relief claimed by the plaintiff – No court will give relief unless the party specifically claims relief Relief is of two types 1) Specific relief and 2) Alternative relief.

STAGES OF SUIT

Enumerating on what comes under the umbrella of the procedural law, it includes jurisdiction of the courts, proceeding in the court, issue of processes which includes summons, warrants, etc., pleadings, trial procedure, recording of evidence, appearance of parties, advocates, 34 | P a g e

prosecutors, etc., judgment of the courts, costs, review, revision, appeals etc., and finally the execution of decree or order or punishment in criminal cases. Therefore differentiating it with the substantive law, it deals with the ends which the administration of justice seeks to achieve. Whereby procedural law deals with the means and procedure by which those ends can be achieved. While substantive law determines the conduct and relations inter se in respect of the matter litigated, the procedural regulates the conduct of the court and parties therein. The ends of administration of justice are dealt with the procedural law deals with means and instruments by which the ends of justice may be attained. But it is to be considered that there exist many rights which pertain to the sphere of procedure. The rights to appeal, a right to interrogate the opposite party, a right to give evidence on one’s own behalf are examples of those rights which are one way or other are procedural. The most part of the Code of Criminal Procedure and the law of Evidence pertain to procedural law whereas the Indian Penal Code, the law of Contract, transfer of property, negotiable instruments etc. are the examples of substantive of substantive law. There consist various stages in the judicial procedure in the CPC. The initial stage involves the Summons which effects the strict adherence to the procedure which provides all interested parties an opportunity for appearance in a court in order to put forth their respective arguments for the settlement of issues. While another important procedural stage called pleadings is the backbone of litigation. The Code of Civil Procedure, 1908, defines ‘pleadings’ as meaning a plaint and written statement.  While proof bears the third procedural importance as it is a process which enables the parties to furnish the material by adducing evidence to that the court may arrive at the right conclusion on the basis of issues for determination before it. Judgment, the conclusion of a suit, contains the statements given by Judge about the grounds of decree or order. The decision of the court is embodied in the judgment. While the court in its judgment may also order the losing side to pay ‘costs’ to which the other party has been put in consequence of the suit having essence of a penalty imposed to the losing party, to provide for his or her wrongful claim for causing willful delay in meeting ends of justice.

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The last stage that is execution it involves the physical force needed to uphold the judgment when voluntary submissions are not seen. It is considered as the process where a decree is enforced by the court. Recognizing it as an act of carrying out the judgment into effect, execution of a decree or order compels the defendant to do or pay what has been ordered by the court. The question of execution does not arise in case of a successful defendant except for the recovery of costs arising thereby.

PARTIES TO THE SUIT

The civil cases, start with the institution of the case by one party against the another party and the competent court decides the rights and liabilities of the parties. Civil Law represents an individual’s private right of action for redress. It is important to have the proper parties named in 36 | P a g e

a civil lawsuit. Courts require that civil lawsuits be brought by "the real party in interest", which means that the party bringing suit is legally entitled to seek the relief requested. A civil suit is a process for recovery of an individual right or redress of an individual wrong.The question of joinder of parties may arise either as regards the plaintiffs or as regards the defendants. An Act may be done by a single individual and may adversely affect another individual. In that case, the question of joinder of parties does not arise at all. The question of joinder of parties arises only when an Act is done by two or more persons or it affects to two or more persons. Joinder of Parties: Joinder of Parties means joining several parties as plaintiffs or defendants in the same suit. All or any of those persons can be joined to a suit as plaintiffs or defendants in whom the right to any relief is alleged to exist, or who is alleged to possess any interest in the subject-matter of litigation, or in the opinion of the court is a proper or a necessary party. Order 1 of the Code of Civil Procedure, 1908 deals with the parties to the suit and also contains provisions for addition, deletion and substitution of parties, joinder, non-joinder and misjoinder of parties to the suit and objections to misjoinder and non-joinder. Joinder of Plaintiffs: All persons may be joined in one suit as plaintiffs according the conditions required under Rule 1 of Order 1. The conditions which are required to be fulfilled are that the right to relief alleged to exist in each plaintiff arises out of the same act of transaction; and the case is such of a character that, if such person brought separate suits, any common question of law or fact would arise. Joinder of Defendants: On the other hand, a person can be joined as a defendant according to the provisions of Rule 3 of Order 1. The conditions to be required to be satisfied in the case of defendant are that the right to relief alleged to exist against them arises out of the same act of transaction; and the case is of such a character that, if separate suits were brought against such person, any common question of law or fact would arise. Necessary Parties:

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A necessary party is a party without impleading whom a claim cannot be legally settled by court. In other words, in the absence of a necessary party, no effective and complete decree can be passed by the court. REPRESENTATIVE SUIT The general rule is that all persons interested in a suit should be joined as parties to it to avoid freshlitigation on the same matter and to finally dispose of the case. Representative suits are exception to thisgeneral rule and is based on convenience and equity mothered by the practical necessity of providingprocedural device so that mere number does not disable a number of individuals, united in interest fromenforcing their equitable rights or grant them immunity from their equitable wrong. A representative suit isoften defined as a suit where a person sues or is sued for him or on behalf of others. Representative suitsare based on convenience and equity mothered by the practical necessity of providing procedural deviceso that mere number does not disable a number of individuals, united in interest from enforcing theirequitable rights or grant them immunity from their equitable wrong. It essentially serves two purposes i.e.provides the individual with injuries insufficient to justify the cost of the lawsuit, an economically feasibleavenue of redress and helps relieve burden on courts which are overwhelmed by the large number ofclaimants". These are also useful when the number of claimants are so huge that a joinder of suits isimpractical because either some of the parties are not within the court’s jurisdiction or their whereaboutare not known. The main advantages of such suits are that even if individual members suffer a smallamount of harm, since they share the cost of litigation, they get adequate amount of damages that makesthe lawsuit a feasible idea. In addition, such suits produce fair outcomes by balancing between wealthydefendants and individual plaintiffs whether or not the latter has a claim large enough to finance aseparate action. Representative Suits act as a deterrent to a potential defendant from externalizing thecost of their action by causing Widespread, minimum individual harm, as they would now be accountablein both monetary and reputational terms. Representative Suit in the Code of Civil Procedure, 1908

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In the Code of Civil Procedure, 1908 there is the provision for the filing of representative Suits. Order I. Rule 8 deals with the Representative Suits. This rule enumerates that, where there is numerous personshaving the same interest in one suits, one or more of them may with the permission of the Court, sue orbe sued on behalf of all of them. The Rule prior to 1976 amendment created a doubt as to whether theparties representing the others should have the same cause of action as the person represented by him.The Rule is substantiated by a new rule and an explanation is added to clarify that such person need nothave the same cause of action.

JURISDICTION “The power and authority constitutionally conferred upon (or constitutionally recognized as existing in) a court or judge to pronounce the sentence of the law, or to award the remedies provided by law, upon a state of facts, proved or admitted, referred to the tribunal for decision, and authorized by law to be the subject of investigation or action by that tribunal, and in favor of or against persons (or a res) who present themselves, or who are brought, before the court in some manner sanctioned by law as proper and sufficient.” The literal meaning of the word is derived from two words “juris” and “dicto” which means, “I speak the law”. Simply put, the jurisdiction of a court would mean the power or authority of a court to hear and determine a cause or a matter. It means the power to deal with or to entertain a particular suit and to decide after deliberating upon it. It has been laid down in various judgments and it has been upheld that jurisdiction to decide a particular matter it must not only have jurisdiction to try the suit brought but must also have the authority to pass the orders sought for.It is well settled that for deciding the jurisdiction of a civil court, the averments made in the plaint are material. To put it differently, the jurisdiction of a court should normally be decided on the basis of the case put forward by the plaintiff in his plaint and not by defendant in his written statement. In the determination of the jurisdiction of the court, what matters is the substance of the matter and not the form.

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Once it is decided that the court has jurisdiction to deal with the case then the veracity of the decision cannot be said to be without jurisdiction in as much as the power to decide necessarily carries with it the power to decide wrongly as well as rightly. Lord Hob house had once laid down that “A jurisdiction to decide wrong as well as right. If it decides wrong, the wronged party can only take the course prescribed by law for setting matters right; and if that course is not taken, the decision, however wrong, cannot be disturbed”. To put it differently it can be said that if there is inherent lack of jurisdiction, the decree passed by the civil court is null and void and the nullity can be set up in any collateral proceedings.18 However if the court lacks jurisdiction but it is irregularly exercised, the defect does not go to root of the matter, and the error, if any, in exercising the jurisdiction can be remedied in appeal or revision and when there is no such remedy or is not availed of, the decision is final.

Types of Jurisdiction: (a) Civil and Criminal Jurisdiction

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Civil jurisdiction deals with disputes of a civil nature and Criminal jurisdiction on the other hand relates to crimes and punishes offenders. The District Court or Additional District court exercises jurisdiction both on original side and appellate side in civil and criminal matters arising in the District. The territorial and pecuniary jurisdiction in civil matters is usually set in concerned state enactments on the subject of civil courts. On the criminal side, jurisdiction is exclusively derived from the criminal procedure code. As per this code, the maximum sentence a district court may award to a convict is capital punishment. The district court has appellate jurisdiction over all subordinate courts situated in the district on both civil and criminal matters. Subordinate courts, on the civil side (in ascending order) are, Junior Civil Judge Court, Principal Junior Civil Judge Court, Senior Civil Judge Court (also called sub-court). Subordinate courts, on the criminal side (in ascending order) are, Second Class Judicial Magistrate Court, First Class Judicial Magistrate Court, and Chief Judicial Magistrate Court. Certain matters on criminal side or civil side cannot be tried by a lesser court than a district court. This gives the District Court original jurisdiction in such matters. Appeals from the district courts lie to the High Court of the concerned state. (b) Territorial or Local Jurisdiction Every court has its own local or territorial limits beyond which it cannot exercise its jurisdiction. The Government fixes these limits. The district judge has to exercise jurisdiction within its district and not outside it. The high court has jurisdiction over the territory of a State within which it is located and not beyond it. A court does not possess jurisdiction to try suits, which involves the properties, immovable, outside the territorial jurisdiction of the court.

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(c) Pecuniary Jurisdiction It divides the jurisdiction of the courts on a vertical basis. According to Section 6 of the Code, the courts have jurisdiction over matters, apart from the territorial jurisdiction, which do not go beyond the pecuniary jurisdiction of the courts. The High Courts and District Courts have no limit to entertain cases. But while these courts are invested with no limits, other Small Causes Courts have a limit to entertain cases whose amount claimed does not exceed Rs. 1000. (d) Subject Matter Jurisdiction Different courts are invested with the power to look into matters relating to different types of subjects. For example Presidency Small Causes courts have no jurisdiction to try cases which are related to Specific Performance of contracts or partition of immovable property. Also to note is the difference between the jurisdictions of a Sessions Court and a Civil Court, the former being able to deal with only crime and other related matters and the latter being able to deal with property suits, or any other kind of non-crime matters.

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(e) Original and Appellate Jurisdiction The former is conferred upon the court in the very first instance. In the exercise of the jurisdiction so mentioned the court of first instance would decide suits, petitions and applications. The latter is conferred upon a higher court in order to review, revise or overturn the judgments pronounced by a smaller court. This involves deliberations on suits which have already been contemplated upon in the small courts. (f) Exclusive and Concurrent Jurisdiction Exclusive jurisdiction is the one which confers upon the court a special power to deal with a particular type of case. This type of power is vested in only one court. For Example only the Supreme Court has the jurisdiction to entertain cases related to issuance of writs or to deal with Inter-State Matters or to deal with matters, which involve State and the Union Government against each other. Determination of Jurisdiction The civil courts have inherent power to decide its own jurisdiction. In dealing with the question of whether a civil court has the jurisdiction to deal with cases or it is barred from doing so a presumption has to make in favour of the civil court. The jurisdiction is not excluded unless it is expressly stated in the statute being dealt with or there is an inevitable inference being drawn from the nature of the suit. The party seeking to disapprove the jurisdiction or seeking to oust the same has the burden of proof of doing so. It is very much well established that a statute, which is outside the jurisdiction of the civil court, has to be construed in the strictest sense. A litigant has the freedom to file a suit in the civil court unless the jurisdiction is expressly barred and such exclusion must be clear. But here, again when the jurisdiction is expressly barred then the court still has the jurisdiction to examine whether the provisions of the law have been complied with or the rules made there under have or have not been complied with or order passed is contrary to law, malafide, ultra vires or arbitrary or violative of the principles of natural justice.

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RES SUBJUDICE Sec. 10 C.P.C.This means 'a right under judicial consideration'. In order to prevent courts of concurrent jurisdiction fromsimultaneously trying two parallel suits in respect of the same matter inissue,provisions are made in Sec.10 C.P.C.Such a matter is said to be 'Res Subjudice' if the matterpreviously instituted is pending in another court of competentjurisdiction.What is barred is the second suit instituted. The second courtshould not proceed with the trial of the suit if: i) The matter in issue is also directly and substantially in issue in apreviously instituted suit between the same parties. ii) The previously instituted suit must be (a) in the same court inwhich the second, suit is brought or (b) in any other court original orappellate. iii) The previously instituted case must be pending in any of thecourts as above or Supreme Court competent to grant the relief. Exception: If a suit is pending in a Foreign Court, the suit is notbarred in India and hence, a suit may be filed. The provisions in Sec. 10 are mandatory. It also applies toproceedings under Art 226 of the Constitution. Exceptions: •

Suit pending in foreign court

•

Summary suit

•

Interim orders

RES JUDICATA Sec. 11 C.P.C.Res Judicata means 'right decided’. This means 'the matteris adjudicated' and hence, the competent court has already decidedthe matter. The rule is that the second trial should be barred toprevent multiplicity of proceedings.

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Conditions i) The matter directly & substantially in issue in the subsequentsuit must be the same matter which was directly and substantially inissue either directly or constructively in the former suit. Former suit isa suit which has been decided prior to the suit in question. ii) The former suit must have been between the same parties orbetween their representatives. iii) The parties to the suit must have litigated under the sametitle in the former suit; same title means the same capacity. iv) Thecourt, which decided the former suit, should have been a court competent to try the subsequent suit. If the first court had exclusive jurisdiction, then that court’s jurisdiction will act as res judicata to bar any subsequent suit. If the first court had concurrent jurisdiction then that court is Competent hence res judicata operates. Hence, if the first court had neither exclusive nor concurrent jurisdiction, it has no jurisdiction at all. Hence res judicata will not apply. The suit may be initiated. v) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the court in the suit. There must be final decision, the matter is heard and finally decided in any one of the following ways: (a) Ex Parte (b) Dismissal (c) Decree (d) Dismissal due to plaintiffs’ failure to produce evidence. Explanation: - Sec.11 has 8explanations: i) The matter in the former suit should have been alleged by one party and admitted or denied by the other ii) Competence of court is decided irrespective of a provision to an appeal in the earlier suit, iii) "Matter" which might ‘or ought to have been agitated or defended in the earlier suit shall be the matter directly or substantially in issue. iv) Relief, if not, granted in earlier suit shouldbe constructed as rejected. Amendments of C.P.C. 1976.

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i) To avoid multiplicity of proceedings it is provided that the District court may try the suit or transfer it to a court with competent jurisdiction if the court finds that the case involves a question which a court of limited jurisdiction would be incompetent to try. ii) Before the new C.P.C. under res judicata the successful party was barred in respect of adverse findings of the court. Now, it is not barred, and he may file an appeal against such adverse findings. iii) The doctrine is now extended to independent proceedings and also to execution proceedings. Constructive res judicata. According to Sec.11, Explanation iv: a matter may be actually or constructively in issue. Matters may be directly in issue. These are clear from the pleadings in the plaint and the written statement. However, there may be matters 'might have been ‘or 'ought to have been' made by the parties (the plaintiff in his averment or the defendant in his written statement).If the parties have failed in the previous suit to bring out these, then under the rule of res judicata, the matter is deemed to have been in issue directly and substantially, and it is deemed to have been heard and decided. The result is that in such cases, the suit is barred under res Judicata. FOREIGN JUDGMENT Foreign judgment is defined as the judgment given by the Foreign Court i.e. a court situated beyond the territorial limits of India and which is not established or continued by the President of India. The rule is that a foreign judgment operates as a Res judicatabetween the parties except in the following cases; i) The Courts in India will not give effect to a foreign judgment pronounced by a court without jurisdiction. ii) The foreign judgment must have been given on the merits ofthe case. The Indian courts have a right to examine the merits. iii) If the Indian court finds that the foreign judgment appears on the face of the record to be an incorrect view of International Law or Indian Law, it may refuse to follow that decision. iv) If the foreign judgment is given in violation of the principles of Natural Justice, the Indian courts may refuse to follow it. 46 | P a g e

v) Any foreign judgment obtained by fraud is void, and hence, not followed by Courts in India. vi) If the foreign judgment has decreed for a claim, which is abreact of any Indian Law, then the decision is not found. Hence, a foreign judgment for a gambling debt would not be enforceablein Indian courts. Presumptions as to foreign judgments: According to Sec.14, a certified copy of the foreign judgment inadmissible in evidence in India, There is a presumption that the judgment is duly pronounced. This presumption is, of course, rebuttable. PLEADINGS

Pleadings are the backbone of legal profession. It is the foundation stone on which case of a party stands. The case of a party must be set out in the pleadings. Moreover, the relief cannot be claimed on the grounds which are not contained in the pleadings. The immaterial or vague or ambiguous matter should be avoided and pleadings should be properly framed. Order VI of the Code of Civil Procedure, 1908 deals with pleadings in general, Rule 1 defines pleading, while Rule 2 lays down the fundamental principles of pleadings. Rules 3 to 13 require the parties to supply necessary particulars. Rules 14 and 15 provide for signing and verification of pleadings. Rule 16 empowers a Court to strike out unnecessary pleadings. Rules 17 and 18 contain provisions relating to amendment of pleadings. As per Rule 1 of Order VI of the Code of Civil Procedure, 1908, pleading is defined as plaint or written statement. It is important to know here the meaning of plaint and written statement. Plaint: Plaint is the statement of the plaintiff containing grievances in order to initiate an action in a court of law. It helps the court to determine the real nature of the suit. Written statement is the statement or defence of the defendant by which he either admits the claim of the plaintiff or denies the allegations or averments made by the plaintiff in his plaint. Object and Importance of Pleadings: 47 | P a g e

  The object of pleadings are (i) to bring the parties to definite issues; (ii) to prevent surprise and miscarriage of justice; (iii) to avoid unnecessary expense and trouble; (iv) to save public time; (v) to eradicate irrelevancy; and (vi) to assist the Court. Fundamental or Basic Rules of Pleadings:-  Sub-rule (1) of Rule 2 of Order VI of the Code of Civil Procedure, 1908, lays down the fundamental principles of pleadings. “Every pleading shall contain, and contain only a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved.” From the above provision, it can be said that following are the fundamental or basic rules of pleadings:(1) Pleading should state facts and not law;  (2) The facts stated in pleadings should be material facts;  (3) Pleadings should not state the evidence; and  (4) The facts in pleadings should be stated in a concise form SUMMONS Summons is an instrument used by the court to commence a civil action or proceedings and is a means to acquire jurisdiction over party. It is a process directed to a proper officer requiring him to notify the person named, that an action has been commenced against him, in the court from where process is issued and that he is required to appear, on a day named and answer the claim in such action. When the suit is duly instituted summons may be issued to defendant to appear and answer the claim. Defendant to whom a summons has been issued may appear in person or by a pleader duly instructed or by a pleader accompanied by some person who is able to answer all questions. To expedite the filing of reply and adjudication of claim, the court may direct filing of written statement on date of appearance and issue suitable summons for that purpose. Failure to do so may result in Ex-parte judgment under order 8, rule 10. 48 | P a g e

The provisions of substituted service have to be resorted when the summons is not served by normal process though the court bailiff. Where the court is satisfied that there is reason to believe that the defendant is keeping out of the way for purpose of avoiding service or that for any others reason the summons cannot be served in ordinary way the court shall order summons to be served by affixing copy thereof in conspicuous part of the house. (ORDER 5, RULE 20 OF CIVIL PROCEDURE CODE.) To expedite service of summons one more provision is relating to substituted service under which the court orders service by an advertisement in a newspaper shall be a daily newspaper circulating in the locality in which the defendant last resided or carried on business or personally worked for gain (ORDER 20 RULE -1A) APPEARANCE OF PARTIES On the day fixed in the summons the defendant is required to appear and answer and the parties shall attend the court unless the hearing is adjourned to a future day fixed by the court, if the defendant is absent court may proceed exparte. Where on the day so fixed it is found that summons has not been served upon defendant is consequence of failure of plaintiff to pay the court fee or postal charges the court may dismiss the suit. Where neither the plaintiff nor the defendant appears the court may dismiss the suit. Such dismissal does not bar fresh suit in respect of same cause of action. DEFENCE Before proceeding to file a written statement, it is always necessary for a pleader to examine the plaint very carefully and to see whether all the particulars are given in it and whether the whole information that he requires for fully understanding the claim and drawing up the defence is available. If any particulars are wanting, he should apply that the plaintiff be required to furnish them before the defendant files his written statement. If he cannot make a proper defence without seeing any documents referred to in the plaint, and the defendant has not with him copies of them, or the copies do not serve the required purpose, he should call upon the plaintiff to grant him inspection of them and to permit him to take copies, if necessary, or, if he thinks necessary, he may apply for discovery of documents. If he thinks necessary, he may apply for discovery of documents. If he thinks any allegations in the plaint are embarrassing or 49 | P a g e

scandalous, he should apply to have them struck out, so that he may not be required to plead to them. If there are several defendants, they may file a joint defence, if they have the same defence to the claim. If their defences are different, they should file separated written statements, and if the defences are not only different but also conflicting, it is not proper for the same pleader to file the different written statements, For instance, if two defendants, executants of a bond, are sued on the bond, and their plea is one of satisfaction, they can file a joint written statement. If the plaintiff claims limitation from the date of certain acknowledgment made by one defendant and contends that the acknowledgment saves limitation against the other also, the defendants may file separate written statements. In a suit on a mortgage-deed executed by a Hindu father, to which the sons are also made parties on the ground that the mortgage was for a legal necessity, if the sons want to deny the alleged legal necessity they should not only file a separate defence from their father’s but should also preferably engage a separate pleader. Before proceeding to draft a written statement, it is always necessary for a pleader to examine the plaint very carefully and to see whether all the particulars are given in it and whether the whole information that he requires for fully understanding the claim and drawing up the defence is available. If any particulars are wanting, he should apply that the plaintiff be required to furnish them before the defendant files his written statement. If he cannot make a proper defence without seeing any documents referred to in the plaint, and the defendant has not with him copies of them, or the copies do not serve the required purpose, he should call upon the plaintiff to grant him inspection of them and to permit him to take copies, if necessary, or, if he thinks necessary, he may apply for discovery of documents. If he thinks necessary, he may apply for discovery of documents. If he thinks any allegations in the plaint are embarrassing or scandalous, he should apply to have them struck out, so that he may not be required to plead to them. If there are several defendants, they may file a joint defence, if they have the same defence to the claim. If their defences are different, they should file separated written statements, and if the defences are not only different but also conflicting, it is not proper for the same pleader to file the different written statements, For instance, if two defendants, executants of a bond, are sued on the bond, and their plea is one of satisfaction, they can file a joint written statement. If 50 | P a g e

the plaintiff claims limitation from the date of certain acknowledgment made by one defendant and contends that the acknowledgment saves limitation against the other also, the defendants may file separate written statements. In a suit on a mortgage-deed executed by a Hindu father, to which the sons are also made parties on the ground that the mortgage was for a legal necessity, if the sons want to deny the alleged legal necessity they should not only file a separate defence from their father’s but should also preferably engage a separate pleader.

WRITTEN STATEMENT Rule 1 of Order VIII of the Code, which prescribes the limitation period for filing of a written statement by a defendant in a suit, has undergone several changes since the entry into force of the Code in 1909. The said provision has travelled from being a provision expressly permitting judicial discretion to extend time to one mandating the defendant to file the written statement with a stipulated time period with a proviso authorizing extension of time with a negatively-prescribed outer limit. This paper endeavours to analyze whether, with all the many amendments, the intended object has been attained. The said rule, as it existed before the coming into force of Code of Civil Procedure (Amendment) Act, 1976 (―the 1976 Amendment‖), read as follows: ―The defendant may, and if so required by the court, shall at or before the first hearing or within such time as the court may permit, present a written statement of his defence. Before the 1976 Amendment, in terms of Rule 1, a defendant had the option of filing the written statement either at the time of, or at any time before, the first hearing of the suit. 1976 Amendment As a result of the 1976 Amendment, Rule 1 of Order VIII of the Code came to read as under: ―The defendant shall, at or before the first hearing or within such time as the court may permit, present a written statement of his defence. 2002 amendment ―The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence. 51 | P a g e

While substantially reducing, by prescribing the limit of thirty days, the discretion of the courts, the legislature, being conscious that in some cases delay in filing of a written statement could indeed be occasioned by genuine causes, inserted a new proviso to the said rule which reads as under: ―Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons. Amendment of Pleadings: Amendment is the formal revision or addition or alteration or modification of the pleadings. Provisions for the amendment of pleadings are intended for promoting the ends of justice and not for defeating them. Rules 17 and 18 of Order VI of Code of Civil Procedure, 1908 deals with provisions regarding amendment of pleadings and failure to amend after order respectively, Rule 17 of the Code of Civil Procedure, 1908 provides that, “The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Proviso to the Rule 17 of Order VI of Code of Civil Procedure, 1908 as inserted by the Code of Civil Procedure (Amendment) Act, 2002 restricts and curtails power of the Court to allow amendment in pleadings by enacting that no application for amendment should be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. Amendment of pleadings when granted:-  Amendment of pleadings can be granted by the Court in two situations namely, (i) where the amendment is necessary for the determination of the real question in controversy; and (ii) can the amendment be allowed without injustice to the other side. Amendment of pleadings when refused:- 

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Amendment of pleadings can be refused in many circumstances. Following are the situations or circumstances when the Court can refuse amendment of pleadings:(1) When the proposed amendment is unnecessary. (2) When the proposed amendment causes an injury to the opposite party which cannot be compensated for by costs. (3) When the proposed amendment changes the nature of the case. 4) When the application for amendment is not made in good faith. (5) When there has been an excessive delay in filing the amendment application. Failure to amend:-  Rule 18 of Order VI of Code of Civil Procedure, 1908 deals with this issue. It provides that if a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose by the order, or if no time is thereby limited then within 14 days from the date of the order, he shall not be permitted to amend after the expiration of such limited time as aforesaid or of such 14 days, as the case may be, unless the time is extended by the Court. EX-PARTE DECREE

A decree against the Defendant without hearing him or in his absence or in absence of his defense can be passed under the following circumstances 1. Where any party from whom a written statement is required fails to present the same within the time permitted or fixed by the court, as the case may be the court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on pronouncement of such judgment a decree shall be draw up. (ORDER 8. RULE 10 CIVIL PROCEDURE CODE.) 2. Where defendant has not filed a pleading, it shall be lawful for the court to pronounce judgment on the basis of facts contained in the plaint. Except against person with disability. (ORDER 8, RULE 5(2), CIVIL PROCEDURE CODE.)

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3. Where defendant plaintiff appears and defendant does not appear when suit is called up for hearing and summons is property served the court may make an order that suit will be heard ex parte (ORDER 9. RULE 6(1) (a) OF CIVIL PROCEDURE CODE) If an exparte decree is passed and the defendant satisfies that he was prevented by sufficient cause then he has the following remedies open. 1. Prefer appeal against decree. 2. Apply for Review. 3. Apply for setting aside the Exparte Decree PRODUCTION OF DOCUMENTS According to order 8 duty is casts upon the defendant to produce documents on which he bases his defense or other documents which are in his possession along with a list. Such list of documents is he supplied with written statement. EXAMINATION OF PARTIES Examination of parties is an important stage after appearance. At first hearing of the suit the court shall ascertain from each party or his pleader whether he admits or denies such allegations of fact as are made in the plaint or written statement. Such admissions and denials shall be recorded. The examination may be an oral examination. When a party if the pleader of the party who appears refuses or is unable to answer any material question court may direct the concerned party should remain present in the court. If the party does not remain present court may pass such orders as deemed fit (ORDER 10 OF CPC.) DISCOVERY AND INSPECTION The purpose of discovery and inspection of document and facts is to enable the parties to ascertain the facts to be proved. With the leave of the court the plaintiff or defendant may deliver interrogatories in writing for examination of opposite parties which are required to be answered and which are related to the matter. Admission (Order 12):- Either party may call upon the other party to admit within seven days from the date of service of the notice. Any document saving all just exception in case of refusal

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or neglect to admit after such notice, the cost of proving such document shall be paid by the party, so neglecting or refusing whatever be the result of the suit may be, unless the court otherwise directs and no cost f proving any such document shall be allowed unless such notice is given, except where the omission to give the notice is in the opinion of the court a saving of expenses. The above procedure is rarely followed by the advocates of parties.

FRAMING OF ISSUES In common, parlance the term “Issue” means a matter that is in dispute between two or more parties or the point at which an unsettled matter is ready for decision. Under law, issue is point at which the parties come to clash. Framing of issues is a very important step in a suit. It has a very important bearing on the trial and decision of the case. It is the process of formulating questions to conduct trial basing on them to arrive at a decision. Settlement of issues is one deserted area where the trial courts and advocates used to demonstrate tepid attention. But only on laying down the foundation of case with correct and accurate issues, it is possible to frame the right questions to go along the right lines and come to the correct decision in the shortest possible time that is humanly possible. Framing of issue is commencing point in trial which ends with judgment. When clarity appear in understanding the dispute, the inputs such as necessary evidence to prove the disputed fact and legal position on the disputed fact could very well be analysed in the process of writing judgment. Therefore for effective judgment writing it is imperative to frame proper issues. Purpose of framing of issues: Framing of issues is necessitated that no party at trial is put to surprise. It guides the parties to the suit to adduce proper evidence during trial. For right decision in the matter framing of appropriate issues is essential. Issues are the crux of the matter. Without understanding, the crux of the matter there is no direction in the preparation of the matter or in the conduct of the matter. Incorrect and inaccurate framing of issues is possibly the primary cause of unnecessary delay in disposing of matters before court, apart from causing unnecessary expense to the clients in terms of time, effort and energy. Conversely, if issues are framed in the manner required by law, after going through all the proceedings in the matter including the plaint, written statement 55 | P a g e

and the documents as envisaged by law, it will cut down a lot of unnecessary wastage of court time. On giving adequate attention to framing issues correctly, we are able to focus our attention on the correct line of thought that is required to decide a matter and hopefully it will ultimately lead to far quicker and more efficient justice Framing of Issues under CPC: Under Order 14 of the Code of Civil Procedure, the court is required to frame issues, only on such controversies, as it perceives between the parties. Order 14 Rule 1 of C.P.C., lays down that “Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. Material proposition are those propositions of law or fact, which a plaintiff must allege in order to show a right to sue, or defendant must allege in order to constitute his defence. Each material proposition affirmed by one party and denied by the other shall form the subject or a distinct issue.” The said rule does not lay down the negative that an issue cannot arise otherwise than from the formal pleadings of the parties. The issues should be confined to pleadings in controversy. That is the points necessary for proper trial and disposal of the case and should not be framed with respect to points not so necessary. ADJOURNMENT Adjournment means postponement, recess, or break. Generally, after the hearing of a suit is commenced, it shall continue without break until the suit is finally disposed of. However, adjournment is an exception to such general rule. According to Order 17 Rule 1 & 2 the court can grant adjournment on showing sufficient cause.

An adjournment is a suspension of

proceedings to another time or place. To adjourn means to suspend until a later stated time or place. Once the hearing of evidence has begun, the hearing has to continue from day to day until all the witnesses have been examined.

INTERLOCUTORY APPLICATIONS “Interlocutory application” means an application to the Court in any suit, appeal or proceeding already instituted in such Court, other than a proceeding for execution of a decree or order. Interlocutory Petitions are a form of incidental proceedings and they are in aid to the final

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proceedings. An Interlocutory Petition is initiated with a view to prevent the ends of justice from being defeated when the Original Petition is unable to address the immediate circumstances. The meaning of ‘Interlocutory application’s given in the Rule 2 (j) of A.P. Civil Rules of Practice and Circular Orders, 1980. It reads: ‘Interlocutory application’ means an application to the court in any suit, appeal or proceeding already instituted in such court, other than a proceeding for execution of a decree or order. There is no specific definition in Civil Procedure Code, 1908 to this phrase ‘Interlocutory application’. Enquiries and orders in interlocutory applications: Temporary injunctions, attachment before judgments, appointment of commissioners and receivers can be known as interlocutory applications. An interlocutory order is an order that does not finally determine the rights, duties and obligations of the parties to a proceeding. Interlocutory orders may take various shapes depending upon the requirement of the respective parties during the pendency of the suit, applications for appointment of Commissioner, Temporary Injunctions, Receivers, payment into court, security for cause, and etc. INJUNCTIONS In Civil matters the law relating to grant of injunction is contained in Chapter VII of Part III of the Specific Relief Act, 1963. Sections 36 to 42 deal with the grant of injunction. It has been termed as a prever1tive relief, which is granted at the discretion of the Court by injunction, which may be temporary or perpetual. Section 37(1) of the Specific Relief Act, 1963 deals with the temporary injunctions which are such as are to continue until a specified time, or until further orders of the Court, and they may be granted at any stage of the suit or proceedings and are regulated by the Code of Civil Procedure. From the aforesaid it is clear that there can be permanent injunction which is granted as a final relief in the suit and there can be temporary injunction which may be passed at any situation of the suit or proceedings for preservation of the property. Permanent Injunction: As is clear from Section 37 (2) of Specific Relief Act, 1963 (hereinafter referred to as the Act), a perpetual injunction can only be granted by the decree made at the hearing and upon the merit of the suit. The defendant is thereby perpetually enjoined from the assertion of a right or from the commission of an - act which would be contrary to the right of the 57 | P a g e

plaintiff. Section 38 of the Act further provides the circumstances where the perpetual injunction may be granted in favour of the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication. Temporary injunction: Section 37(1) of the Specific Relief Act, 1963, deals with the temporary injunctions which are such as are to continue until a specified time or until further orders of the Court and they may be granted at any stage of the suit or proceedings and are regulated by the Code of Civil ProcedureSection 94 (c) and (e) of Code of Civil Procedure contain provisions under which the Court may in order to prevent the ends of justice from being defeated, grant a temporary injunction or make such other interlocutory order as may appear to the Court to be just and convenient. Section 95 further provides that where in any suit a temporary injunction is granted and it appears to the Court that there were no sufficient grounds, or the suit of the plaintiff falls and it appears to the Court that there was no reasonable or probable ground for instituting the same. Commissions: The word “Commission “is not defined in the code of Civil Procedure. The commission‟ can be understood a person/group of persons who have been given an official job of finding, information about something or controlling something. In other words to formal appointment or assignment to do a task or function. According to Section 75 and Order XXVI of C.P.C., Court has discretion to appoint a commissioner. Before appointing commissioner, Court shall examine pleadings, relief claimed and real controversy between parties. The discretion to appoint Commissioner has to be exercised in a judicious and sound manner and not whimsically. When an application for appointment of advocate commissioner is filed, such application must be decided without any delay. Subject to such conditions and limitations as may be prescribed, the court may issue a commission – (a) To examine any person; (b) To make a local investigation; 58 | P a g e

(c) To examine or adjust accounts; or (d) To make a partition; (e) To hold la scientific, technical, or expert investigation; (f) To conduct sale of property which is subject to speedy and natural decay and which is in the custody of the Court pending the determination of the suit; (g) To perform any ministerial act. Appointment of Receiver: The appointment of a receiver pending a suit is a matter resting in the discretion of the Court. The discretion is not arbitrary or absolute: it is a sound and judicial discretion, taking into account all the circumstances of the case, exercised-for the purpose of permitting the ends of justice, and protecting the rights of all parties interested in the controversy and the subject-matter and based upon the fact that there is no other adequate remedy or means of accomplishing the desired objects of the judicial proceeding. JUDICIAL SETTLEMENT Section 89 C.P.C:“Settlement of disputes outside the Court. – (1) where it appears to the court that there exist elements of a settlement, which may be acceptable to the parties. The court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observations of the parties, the court may reformulate the terms of a possible settlement and refer the same for— a) Arbitration; b) Conciliation; c) Judicial settlement including settlement through Lok Adalat; or d) Mediation Where a dispute has been referred(a) For arbitration or conciliation, the provisions of the Arbitration and Conciliation Act,1996 shall apply as if the proceedings for arbitration or conciliation were referred for settlement under the provisions of that Act; 59 | P a g e

(b) to Lok Adalat, the court shall refer the same to the Lok adalat in accordance with the provisions of sub-section (1) of section 20 of the Legal Services Authorities Act, 1987 and all other provisions of that Act shall apply in respect of the dispute so referred to the Lok Adalat; (c) For judicial settlement, the court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Authorities Act, 1987 shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act; (d) For mediation, the court shall affect a compromise between the parties and shall follow such procedure as may be prescribed.” INHERENT POWERS The Code of Civil Procedure acknowledges the powers along with limitations on the courts but there are some powers, which are vested in the court but not prescribed in the code,and those are the inherent powers. The inherent powers of the court are in addition to the powers specifically conferred by the code on the court. They are complementary to those powers. The court is free to exercise them for the ends of the justice or to prevent the abuse of the process of court. The reason is obvious. The provisions of the court are not comprehensive for the simple reason that the legislature is incapable of contemplating all the possible surroundings, whichmay arise in future litigations. Inherent powers come to the rescue in such unforeseen circumstances. They can be exercised ex debito justitiae in the absence of provisions in the code. But those need to be exercised with due care and not arbitrary. Section 151 of CPC reads: Saving of inherent powers of the code: - Nothing in this code shall be deemed to limit or otherwise affect the inherent powers of the court to make such orders as may be necessary for the ends of the justice or to prevent abuse of the process of the court. Scope and use of inherent powers Alternative for No other remedy: In the absence of any special circumstances, which amount to abuse of the process of the Court, it cannot grant a relief in exercise of its inherent power when the justice can be served byanother remedy is available to the party concerned provided by the Code .

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No Powers over the Substantive Rights: The inherent powers saved by s. 151 of the Code are not over the substantive rights, which any litigant possesses. Specific powers have to be conferred on the Courts for passing such orders.

CAVEAT A Caveat is a Latin term, which means 'let a person beware’ and it may be understood as a notice, especially in probate, certain actions may not be taken. A caveat petition is a precautionary measure usually when people are having a very strong apprehension that some case is going to be filed in the Court regarding their interest in any manner.

SECTION 148A: Right to lodge a caveat: 

Where an application is expected to be made, or has been made in a suit or proceedings instituted, or about to be instituted, in a Court, any person claiming a right to appear before the Court on the hearing of such application may lodge a caveat in respect thereof.



Caveator shall serve a notice of the caveat by registered post, the Court, shall serve a notice of the application on the Caveator.

Five basic ingredients (a) Who may lodge a Caveat? Any person claiming a right to appear before the Court, Where an application is expected to be made •Where an application has already been made, in a suit or proceeding instituted in a suit or proceeding which is about to be instituted may lodge a caveat thereof. It is substantive in a nature. (b) Duties of the Caveator •Serve a notice of the Caveat by registered post, acknowledgement due on the person by whom the application has been made on the person by whom the application is expected to be made (c) Duty of the Court 61 | P a g e

After a Caveat has been lodged, if any application is filed in any suit or proceeding, the Court shall serve a notice of the application on the Caveator. This is mandatory in nature. (d) Duties of the Applicant •A copy of the application made by him. •Copies of any paper or document that has been filed by him in support of his application. •Copies of any paper or document, which may be filed by him in support of his application. (e) Life of a Caveat Petition The life of the petition is 90 days, from the date on which it was lodged. Object and Scope of the Section: The object of this section is to safeguard the interest of the Caveator, who is ready to face the suit or proceedings which is expected to be instituted by his opponent, affording an opportunity to be heard, before an ex parte order is made also, to avoid multiplicity of proceedings, so as to save the costs and conveniences of the Courts. MESNE PROFIT ‘Mesne profits’ of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence above have received there from, together with interest on such profit, but shall not include profits due to improvement. Every person has a right to possess his property, when his right is deprived he is not only entitled to restoration of possession of his property, but also damages for wrongful possession. The mesne profits are thus a compensation paid to the real owner. Object of awarding decree is to compensate the aggrieved party. Assessment: Mesne profits being in the nature of damages, no invariable rule governing their award and assessment in every case can be laid down and ‘the court may mould it according to the justice of the case.

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SUMMARY SUIT Order 37 of Civil Procedure Code provides for a summary procedure in respect of certain suits. The essence of the summary suit is that the defendant is not, as in an ordinary suit entitled to defend the suit. The object underlying the summary procedure is to prevent unreasonable obstructions by defendant who has no defence. Summary suit can be filed in the following cases:  Suits relating to Promissory Notes, Bill of Exchange Cheques, Hundis.  Suit in which the plaintiff seeks only to recover a debt. In summary suit, the defendant is not entitled to defend the suit until he enters appearance and makes an application for leave to defend the suit, within 10 days from the date of summons leave to defend may be granted to him unconditionally or upon such terms and conditions as the courts thinks fit. However, leave to defend the suit shall not be granted in the following cases:  Where the defence of the defendant is frivolous or vexations.  Where the defendant in the court has not deposited part of the amount claimed by the plaintiff and accepted by the defendant. INDIGENT PERSON Simple meaning of the word pauper is the person without is support or a destitute person who depends on aid from public welfare funds or charity. Order XXXIII Rule 1 provides for an indigent person if he is not possessed of sufficient means to enable him to pay the fees prescribed by law for the plaint in such suit or where no such fees is prescribed, when he is not entitled to property worth one thousand rupees. In both the cases, the property exempt from attachment in execution of a decree and the subject-matter of the suit should be excluded. Any property acquired by the applicant after the presentation of the application for permission to sue as an indigent person and the decisions thereon should also be taken into consideration for the deciding the question whether the applicant is an indigent person.

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It is further provided under order XXXIII that if the applicant is duly made by an indigent person with proper prescribed manner, then such an application has to be scrutinised through way of inquiry by the Chief Ministerial Officer of the court. The court has discretion to either adopt that inquiry or even conduct an inquiry of its own.  APPEAL Any person who feels aggrieved by any decree or order passed by the court may prefer an appeal in a superior court if an appeal is provided against that decree or order. The expression appeal is generally understood as the judicial examination of the decision by a higher court of the decision of a lower court. It means removal of a cause from an inferior court to a superior court for the purpose of testing the soundness of the decision of the inferior court. From any decree passed by any court exercising original jurisdiction, first appeal lies to the court authorised to hear appeals from the decision of such court unless otherwise has been expressly provided either under the Code or by any other law for the time being in force. Sections 96 to 99-A. 107 to 108 and Order 41 of the Code of Civil Procedure deal with appeals from original decrees which are known as first appeal. Right to appeal is statutory and substantive right: It is not merely appeal procedural right. Statutory right means must be conferred by statute unless it provides there won’t be any right to appeal. While right to institute a suit is not conferred by law. The right is inherent. But right to appeal has to be conferred by appeal statute. Where statute provides for right to appeal, it may constitute appeal machinery where shall the appeal lie. A civil suit has to be filed subject to condition of jurisdiction. An appeal is appeal substantive right. Right to appeal can’t be taken retrospectively because general rule of specific interpretation. Substantive law operates prospectively unless an express statute provides so. REFERENCE, REVIEW AND REVISION Reference 1. Section 113 and Order 46 of the CPC provides the provisions relating the Reference. 2. 64 | P a g e

Review

Revision

Section 114 and Order 47of the CPC provides the provisions relating the Review.

Section 115 of the CPC provides the provisions relating the Revision.

In the reference, the subordinate court refers the case to the High Court. 3. The High Court alone can decide matters on the reference. 4. It is made in the pending suit, appeal or execution proceedings

In the Review, the application In case of Revision, it can be made by the aggrieved party exercised either on the application by the aggrieved party by the High Court even A review motu Review, on the other hand, is by the court which passed the decree or made the order.

Revision can only be entertained by the High Court.

An application for review can be made for only after the decree is passed or order is made.

Revisional jurisdiction can be exercised when the case has been decided.

5. The grounds of reference The grounds for the review relate to a reasonable doubt are as follows:- (i) discovery on a question of law. of new and important matter or evidence; (ii) mistake or error apparent on the face of the record; (iii) any other sufficient reason. 6. The order granting the review is appealable.

The grounds for the revision relate to jurisdictional errors of the subordinates court.

The order passed in the exercise of revisional jurisdiction is not appealable.

7. Review can be made even when an appeal lies to the High Court.

Revision can be exercised by the High Court where no appeal lies to the High Court.

EXECUTION Execution is the last stage of any civil litigation. There are three stages in litigation- a. Institution of litigation, b. Adjudication of litigation, c. Implementation of litigation. Implementation of litigation is also known as execution. Decree means operation or conclusiveness of judgment. A 65 | P a g e

decree will be executed by the court, which has passed the judgment. In exceptional circumstances, the judgment will be implemented by other court, which is having competency in that regard. Execution enables the decree-holder to recover the fruits of the judgment. The term “execution” has not been defined in the code. The expression “execution” simply means the process for enforcing or giving effect to the judgment of the court. The principles governing execution of decree and orders are dealt with in Sections 36 to 74 and Order 21 of the Civil Procedure Code. Execution is the enforcement of a decree by a judicial process which enables the decree-holder to realize the fruits of the decree and judgment passed by the competent Court in his favour. The execution is complete when the decree-holder gets money or other thing awarded to him by the judgment, decree or order of the Court. Who may apply: All proceedings in Execution commence with the filing of an application for Execution. Following persons may file an application for Execution: 1. Decree- holder 2. Legal representative of the decree holder 3. Representative of a person claiming under the decree-holder 4. Transferee of the decree-holder, in some cases Court which may execute a decree. :Section 38 of the Code specifies that, a decree may be executed either by the Court who passed it or by the Court to which it is sent for execution. Section 37 defines the expression ‘Court which passed a decree’ while sections 39 to 45 provide for the transfer for execution of a decree by the Court which passed the decree to another Court, lay down conditions for such transfer and also deal with powers of executing Court Modes of execution: (a) By delivery of any property specifically decreed. Property may be movable or immovable

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(b) By attachment and sale of the property or by sale without attachment of the property. (c) by arrest and detention. (d) by appointing a receiver. (e) is the residuary clause and comes into play only when the decree cannot be executed in any of the modes prescribed under clause (a) to (d).

LAW OF LIMITATION Introduction: The object of the Limitation Act, 1963 is to prescribe the period within existing rights can be enforced in courts of law. The principal in which the law of limitation is base is “vigilantibus non dormientibus leges subvenient” i.e. the, law aids the diligent and not the indolent. This is because with passage of time all evidence of the facts may be lost. Limitation Bars Remedy But does not Extinguish right: The law of limitation only bars the remedy by way of the suit i.e., if the period of limitation expires, the party entitled to file a suit for the enforcement of a right is debarred from doing so. However, the original right on which the suit was to base is not barred. Thus, limitation only bars the judicial remedy but it does not extinguish the right. Limitation is the Statute of Repose, Peace and Justice: The statutes of limitation are statute of repose because they extinguish stale demands and quite titles. They lay, at rest; claims which might otherwise have disturbed the peace of community. They secure peace by ensuring security of rights and secure justice as by lapse of time evidence may have been destroyed. The basic concept of limitation is relating to fixing or prescribing of the period for barring legal actions. According to Section 2 (j) of the Limitation Act, 1963, ‘period of limitation’ means the period of limitation prescribed for any suit, appeal or application by the Schedule, and ‘prescribed period’ means the period of limitation computed in accordance with the provisions of this Act. 67 | P a g e

The Law of Limitation signifies to prevent from the last date for different legal actions which can take place against an aggrieved person and to advance the suit and seek remedy or righteous before the court. Where a suit is initiated after the bar of limitation, the law of limitation will hit it. The main and the fundamental aim of the law of limitation are to protect the lengthy process of penalizing a person indirectly without doing any offence. The law relating to Law of Limitation to India is the Limitation Act, 1859 and subsequently Limitation Act, 1963 that was enacted on 5th of October 1963 and which came into force from 1st of January, 1964 for the purpose of consolidating and amending the legal principles relating to limitation of suits and other legal proceedings. Important Limitation Periods: 1. Suit for money payable or money lent – 3 years from the time when the loan is made. 2. Suit for specific performance of contract – 3 years from the date fixed for performance. In case where no such date is fixed, 3 years shall be calculated from the date when the plaintiff has notice that the performance is refused. 3. Appeal against the sentence of death passed by the Session Court or by the High court in exercise or its original jurisdiction – 3- days. 4. Suits relating to Contract – 3 years. 5. Suit relating to movable property – 3 years. 6. Suit relating to possession of immovable property mortgaged – 12 years. 7. Suit for arrears of rent – 3 years. 8. Suits for an account and a share out of profits of a partnership firm – 3 years. 9. Suit in respect of wages due to seamen – 3 years. 10. Suit in respect of wages due to other employees – 3 years. 11. Suit in respect of price of food or drink sold by a hotel, restaurant, lodging house etc. – 3 years.

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12. Suit in respect of compensation for false imprisonment – 1 year. 13. Suit in respect of compensation for malicious prosecution – 1 year. 14. Suit to enforce payment of money secured by a mortgage – 12 years. 15. Suit for possession of immovable property – 30 years. 16. Suit for leave/ permission to appear and defend a suit under summary procedure – 10 days.

LEGAL DISABILITY A person having a legal disability is given a privilege in the Limitation Act, 1963. If a person who is entitles to file a suit, appeal or application for execution of a decree but if he falls in following three categories: 

A Minor



An insane person



An idiot person He would be allowed to make an application after his disability ceases and his timer period as specified in the Limitation Act, 1963 would began from the day his legal disability ceased. If such a person ceases to be affected by two disabilities then the period of filing a suit or making an appeal or application would began on the day when both of his disability would be ceased and not before it. If the disability of a person continues until the death of the person who has to file a suit or make an application or appeal, then after his death his legal representative can do so within time as specified. Even if the legal representative is affected by, the legal disabilities as mentioned above he will be governed with the same provisions as for the person with a legal disability. If a person under a disability dies after the disability ceases but within the time period specified for filing a suit or making an appeal or application his legal representative can file do so within time period left after the disability had been ceased. 69 | P a g e

ACKNOWLEDGMENT Sections. 18, 19& 20 of Limitation Act deals with acknowledgment. Acknowledgment of liability is the admission or owning of a liability. Hence, a stranger to a transaction cannot own or admit a liability. Acknowledgment in respect of any property or of right: i)

Must be in writing.

ii)

Must be signed by the party or by his duly authorised agent.

iii)

Must be made before the date of expiration of the period of limitation; and

iv)

Must be sufficient , i) Writing: Oral acknowledgment is not recognised. Where acknowledgment is undated oral evidence may be given of the date of signing. ii) The party or his duly authorised agent should sign the document, with date. Signature is essential. Acknowledgment by a guardian on behalf of a minor is valid. The Manager (Karta) of a Joint Hindu Family, a legal practitioner on behalf of the client may acknowledge.

iii) Before the expiry of the period: Where the period of limitation completely runs out, no acknowledgment can be made. If made, it will not revive the debt. But, a fresh promise under 8.5.25(23) contract Act may be made(Novatio). Hence, Time-barred debt cannot be acknowledged. By acknowledgment, no new right is created, but there will be extension of the period of limitation. It is a fresh starting point of the period of limitation. A conditional acknowledgment is not valid. iv)

Sufficiency: There must be an admission of a liability in acknowledgment. In English Law, reference to the exact right or the nature of the property is essential. In India, acknowledgment is sufficient though it omits to specify the same.

Acknowledgment is sufficient if: a) There is averment that time for payment has not come b) There is refusal to pay or claim a set-off. c) There is acknowledgment addressed to another person other than the person entitled

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A. Shanmugam v. Ariya K.R.K.M.N.P. Sangam (2012)6 SCC Part 3 Objective of the case: In dealing with civil cases, pleadings, title documents and relevant records play vital role and that would be ordinarily decide the fate of the case. The pleadings need to be critically examined by the judicial officers before framing the issues, Entire Journey of a judge is to discern the truth from the pleadings, documents and arguments of the parties. Section 30 of CPC would also help in ascertaining the truth. Bounden duty & obligation of the parties to investigate and satisfy themselves as to the correctness & authenticity of the pleadings Facts: •

The property in question belonged to one Muthu Naicker donated that land for construction of dharmasala, it was constructed for the benefit of the Arya Kshatriya Community. Appellant father Appadurai Pillai, watchman, he lived in the premises with family. In 1994, when society tried to dispossess the appellant by force, they filed suit for permanent injunction.

Issues in Injunction suit: •

Whether the plaintiff has the right to possession & enjoyment of the suit properly

•

Whether the plaintiff & his father have obtained right of enjoyment through adverse enjoyment

•

Whether the plaintiff is entitled to a relief of permanent injunction

•

Trial Court

– dismissed the suit…Watchman – allowed to stay in the premises….on a

monthly salary basis, Appellant is not a watchman, he concealed the vital facts, he is not entitled to get relief injunction •

1st appeal entitled

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– allowed, suit decreed…By long possession of suit property appellant is

•

2nd appeal

•

During pendency of suit Society filed a suit for declaration of the title & recovery of

- filed by society beforeH.C,Madras

possession suit Issues in declaration suit: •

Whether the plaintiff association is competent to file this case

•

Whether the plaint property belongs to plaintiff club

•

When there is a second appeal pending, Suit is sustainable

•

Is the court competent to try this case

•

Suit decreed in lower court, Aggrieved Party – preferred an appeal, 1 st Appeal – trial court order reversed suit dismissed, 2nd Appeal – by society before HC….High Court heard both the appeals together and set aside the well considered Judgments of first appellate court.

•

Supreme court: Property owned by society Watchman has no right to get injunction, H.C was fully justified. While disposing the case……stated that ….In dealing with civil cases…

•

pleadings, title documents and relevant records play vital role and

that would be

ordinarily decide the fate of the case •

The pleadings need to be critically examined by the judicial officers before framing the issues, Entire Journey of a judge is to discern the truth from the pleadings, documents and arguments of the parties

•

Section 30 of CPC would also help in ascertaining the truth

•

Bounden duty & obligation of the parties to investigate and satisfy themselves as to the correctness & authenticity of the pleadings…..Watchman, care taker or a servant employed to look after the property can never acquire interest in the property irrespective of his long possession…..Dismissed the appeal….Direct the appellant vacate the premises..Hand over peaceful possession.

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Bharat Aluminum Co. v. Kaiser Aluminum Technical services Inc. 2012 (9) SCC 552 Objective of the case: An interlocutory injunction can only be granted depending on the institutional progress of some proceeding for substantial relief; the injunction itself must be part of the substantive relief to which the plaintiff’s cause of action entitles him. The cause of action for any suit must entitle a party for a substantive relief. Since the substantive relief cannot be asked for as the dispute is to be decided by the arbitrator, the only relief that could be asked for would be to safeguard a property which the plaintiff may or may not be entitled to proceed against, depending entirely on the outcome of another proceeding, in another jurisdictionin such a suit, there would be no preexisting right to give rise to a cause of action but the right is only contingent / speculative and in the absence of an existing / subsisting cause of action, a suit cannot be filed. Facts: 

An agreement was executed between the parties,



…………to supply and install a computer based system for Shelter Modernization at Balco’s Korba Shelter.



The agreement ………an arbitration clause for resolution of disputes arising out of the contract.



Disputes arose between the parties with regard to the performance of the agreement.



Claim:…….. for return of its investment in the modernization programme, loss, profits and other sums. 

During pendency of the suit 

“to inter alia restrict the defendant from parting with properties”……..



bare suit for injunction restraining another party from parting with property.



a) an interlocutory injunction can only be granted depending on the institutional progress of some proceeding for substantial relief

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

the injunction itself must be part of the substantive relief to which the plaintiff’s cause of action entitles him.



b) the cause of action for any suit must entitle a party for a substantive relief.



Since the substantive relief cannot be asked for as the dispute is to be decided by the arbitrator, the only relief that could be asked for would be to safeguard a property which the plaintiff may or may not be entitled to proceed against, depending entirely on the outcome of another proceeding, in another jurisdiction



in such a suit, there would be no pre-existing right to give rise to a cause of action



but the right is only contingent / speculative and in the absence of an existing / subsisting cause of action, a suit cannot be filed;



(d) the absence of an existing / subsisting cause of action would entail the plaint in such a suit to be rejected under Order VII Rule 11a.



Fundamental to the maintainability of a civil suit is the existence of a cause of action in favour of the plaintiff.



Order VII Rule 1 gives the list of the particulars which have to be mandatorily included in the plaint.



Order VII Rule 1(e) mandates the plaintiff to state the facts constituting the cause of action and when it arose.



A cause of action



……….the bundle of facts which are required to be proved for obtaining relief prayed for in the suit.



The suit of the plaintiff has to be framed in accordance with Order II.



Order II Rule 1 provides that every suit shall as far as practicable be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them.



The aforesaid rule is required to be read along with Rule 2

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

which provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action;



but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any court.

Dhulabhai v. State of M.P., AIR 1969 SC 78 Objective of the case: Where the statute gives finality to the orders of the special tribunals the Civil Courts’ jurisdiction must be held to be excluded. Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court, Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals.An exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply. Facts:  ……..filed the suit for refund of the tax  on the ground that it was illegally collected from them and it was against constitution.  This was a case relating to jurisdiction of civil courts  i.e. geographical area or subject matter  to which such authority applies and the civil court has inherited power to decide its own jurisdiction  Where the statute gives a finality to the orders of the special tribunals  the Civil Courts’ jurisdiction must be held to be excluded  Where there is an express bar of the jurisdiction of the court,

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 an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court  Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act.  Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals.  An exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply.

Sidramappa v. Rajashetty & ors AIR 1970 SC1059 Facts:  Pet. Filed before the executing court to reopen the proceedings in respect of certain properties and to implead ……… the legal representative of the owner of the properties  ......claiming that as the adopted son & he was entitled to delivery of possession.  .........Court dismissed the application  ......holding that his remedy was by way of a separate suit.  ........he filed a suit for a declaration  ......was entitled to be impleaded in the execution proceedings  as legal -representative and proceed with the execution.  .......The purported cause of action for suit was ......  the dismissal of the earlier application for impleading in the execution proceedings  ….dismissed….. It was hit by s. 42 of the Specific Relief Act  Section 42 of Specific Relief Act..Injunction to perform negative agreement.— 76 | P a g e

 where a contract comprises an affirmative agreement to do a certain act,  coupled with a negative agreement, express or implied, not to do a certain act,  the circumstances that the court is unable to compel specific performance of the affirmative agreement  shall not preclude it from granting an injunction to perform the negative agreement  ……filed another suit on the basis of his title, Declare him as a LR of owner  .......trial court dismissed the suit  ......on the ground that  ……the relief in question was barred by Order or.2 R.2... Issue: 

.....whether the plaintiff's claim in respect of the properties was barred by Order 2 rule 2 of C P C?



H.C affirmed.....……..aggrieved party ………

Object of Or. II R.2:  no def.....sued and vexed ......regard to ....same cause of action  To prevent a plaintiff....  To split the claim & remedies  The High Court & trial court proceeded on the erroneous basis  ..... Former suit was ...for a declaration of the title to the properties in question.  The requirements of Order 2 rule 2 CPC.....  whole of the claim ........."cause of action."  'Cause of action' means .....  .............which the suit was brought'.

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 It cannot be said that the cause of action on which the present -suit was brought is the same as that in the previous suit.  In the instant case the cause of action on the basis of......  which the previous Suit was brought does not form the foundation of the present suit.  In that suit he could not have claimed the relief which he seeks in this suit.  Hence the trial court and the High Court were  .......not right ......in holding that the plaintiff's suit was barred

National Institute of Mental Health and Nuero Sciences v C. Parameshwara AIR 2005 SC 242 Objective of the case: The language of Section 10 suggests that it is referable to a suit instituted in the civil Court and it cannot apply to proceedings of other nature instituted under any other statute, it was not open to the High Court to bye-pass Section 10 CPC by invoking Section 151 CPC.

Facts:  Respondent ……..senior pharmacist in Appellant institute  he was charge-sheeted for alleged misappropriation of drugs to the extent of Rs. 1,79,668.46.  Acc to enquiry officer report……. was responsible for shortages of drugs Disciplinary committee order  ……….removal of respondent from service  and also directed …….. to reimburse the appellant to the extent of pecuniary loss suffered 78 | P a g e

 Being aggrieved,  ……..the respondent ….. moved the appellate authority.  During pendency of the above matter…..  the appellant filed civil suit ……seeking a decree for Rs. 1,79,668.46 with interest  On failure on the part of the respondent to reimburse the loss  During pendency of civil suit  the Govt. referred the respondent’s dispute to the Labour Court ……for adjudication.  The question……..before Labour Court  whether the action of the appellant in removing the respondent from service was justified. Issue by Civil Court:  main issue being whether the Institute proves that the respondent has caused pecuniary loss of Rs. 1,79,668.46.  Labour Court order: set aside the order of removal and directed reinstatement with continuity of service ……but without back wages.  Aggrieved by the award of the Labour Court,  the appellant preferred writ petition  By interim order ….. the High Court stayed the operation of the order of reinstatement  In civil suit…the res. filed an application under Section 10  ………sought stay of the said suit till disposal of the writ petition  Petition was dismissed  Being aggrieved,  ……filed Civil Revision Petition before the High Court  High Court stayed the said civil suit

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 directed expeditious disposal of the writ petition within three months;  in the event of …..failing to dispose ….. within three months,  liberty was given to the appellant to proceed with the suit up to the stage of final orders  however, the registry was directed not to draw-up the final decree,  till the disposal of writ petition Before Supreme Court:  Whether the stay application filed by the respondent under Sec.10 read with Sec. 151 CPC was maintainable?  The language of Section 10 suggests that  it is referable to a suit instituted in the civil Court  and it cannot apply to proceedings of other nature instituted under any other statute  The appellant had initiated….. the disciplinary proceedings misappropriation of drugs.  …..was found guilty on the basis of the findings of the disciplinary enquiry, the respondent….. was removed.  The extent of the loss suffered by the appellant, as found in the disciplinary enquiry, was Rs. 1,79,668.46/-.  moved the Labour Court ……passed an award setting aside the order of removal  next the appellant instituted  …….. writ petition & also instituted civil suit for recovery of the loss  Thus, as can be seen from the above facts,  both the proceedings operated in different spheres.  The subject matter of the two proceedings is entirely distinct and different  The cause of action in filing the said suit  …….is the loss suffered by the appellant on account of the shortage of drugs. 80 | P a g e

 On the other hand, in the said writ petition ….  the management has challenged the award of the Labour Court granting reinstatement of the respondent  The cause of action in filing the said suit  …….is the loss suffered by the appellant on account of the shortage of drugs.  On the other hand, in the said writ petition ….  the management has challenged the award of the Labour Court granting reinstatement of the respondent  Acc to Sec10……  The proceedings before the Labour Court cannot be equated with the proceedings before the Civil Court.  They are not the Courts of concurrent jurisdiction.  In the circumstances, Sec.10 CPC has no application to the facts of this case.  scope of the writ petition filed by the management  entirely distinct and separate from the suit Acc to SC view…….  the High Court had erred in directing the trial Court not to proceed with the drawing up of the decree.  Section 10 CPC has no application  and consequently, it was not open to the High Court  to bye-pass Section 10 CPC by invoking Section 151 CPC.  the appeal is allowed, the impugned judgment and order of the High Court is set aside

Indian bank v. Maharashtra state Co-op fed. Ltd. 81 | P a g e

AIR 1998 SC 1952

Facts:  Bank filed Summary Suit  under Order 37 ……against the Federation  …….for recovery of an amount for Rs. 4,96,59,160/ Federation appeared before the Court  ........seeking stay of the summary suiton the ground  that it has already instituted a suit against the Bank for recovery ...3,70,52,217.88  ……prior to the filing of the summary suit.  A learned Single Judge of the Bombay High Court According to Single Judge:  .......held that the concept of trial as contained in Sec. 10  applicable only to a regular/ ordinary suit  and not to a summary suit filed under Order 37  therefore, further proceedings under Summary Suit were not required to be stayed.  .....no merit in the defence raised by the Federation.  Petition dismissed........  Aggrieved by the order of the learned Single Judge ........ Federation  Preferred an appeal....... Division bench:  ……….the word 'trial' in Section 10 has not been used in a narrow sense

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 and would mean entire proceedings  after the defendant enters his appearance, held that sec.10 applies to a summary suit also.  Summary suit .. subsequently instituted suit was required to be stayed.  set aside the orders .. stayed the summary suit Issue:  Whether the bar to proceed with the trial of subsequently instituted suit, contained in Section 10 is applicable to summary suit filed under Order 37 of the Code. Before S.C:  learned Single Judge was correct .....  Division Bench has committed an error of law in taking a contrary view. .....  if Sec.10 ..... applicable to summary suit  very object of making a separate provision for summary suits  .......will be frustrated  Sec. 10 is a general provision applicable to all categories of cases.  Order 37 apply to certain classes of suits.  One provides a bar against proceeding with the trial of a suit,  the other provides for granting of quick relief.  Both these provisions ........to be interpreted harmoniously  so that the objects of both are not frustrated.  Acc to.....37....the defendant has to file an appearance within 10 days of the service of summons and apply for leave to defend.......  .........it was not proper

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 to apply the interpretation of word 'trial' in that case while interpreting Section 10 in the context of Order 37 of the Code  Appeal allowed.

Daryao And Others v The State Of U. P. And Others AIR 1961 SC 1457 Facts: 

The petitioners and their ancestors



have been the tenants of the land for last fifty years of the respondent 3 to 5 the said proprietors of the land.



Owing to communal disturbances ….. the petitioners had to leave their village in July, 1947;



later in November, 1947, they returned



but they found that during their temporary absence



respondents 3 to 5 had entered in unlawful possession of the said land.



Consequently, petitioners filed suits for ejectment under s. 180 of the U. P. Tenancy Act, 1939.



In 1948 the trial court decreed the suit in favour of petitioners



The said decree was confirmed in appeal



In pursuance of the appellate decree the petitioners obtained possession of the land through Court.



Respondent preferred a second appeal before the Board of Revenue under s. 267 of the U. P. Tenancy Act, 1939.

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

On March 29, 1954, the Board allowed the appeal and dismissed the petitioner's suit with respect to the land described.



The decision of the Board was based on the ground



that by virtue of the U. P. Zamindary Abolition and Land Reforms (Amendment) Act XVI of 1953 respondents 3 to 5 had become entitled to the possession of the land.



Aggrieved by this decision



the petitioners moved the High Court at Allahabad under Art. 226 of the Constitution



for the issue of a writ of certiorari to quash the said judgment.



petition was dismissed on March 29, 1955.



And they moved to Supreme Court…….by way of writ



Where the High Court has already dismissed a writ petition under Art. 226 of the Constitution



after hearing the matter on the merits



on the ground that no fundamental right was proved or contravened or that its contravention was constitutionally justified,



a subsequent petition to the Supreme Court under Art. 32 of the Constitution



on the same facts



and for the same reliefs filed by the same party



would be barred by the general principle of res judicata and therefore rejected.

Patel Roadways Limited, Bombay v. Prasad Trading Company 1991 SCR (3) 391

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Objective of the case: It is true that, normally, under clauses (a) to (c), the plaintiff has a choice of forum and cannot be compelled to go to the place of residence or business of the corporation and can file a suit at a place where the cause of action arisesthis section does not create any practical or undue difficulties or disadvantage either to the plaintiff or a defendant corporation. The above interpretation would preclude him from filing a suit in that place of business common to both parties and compel him to go to a court having jurisdiction over the place where the cause of action has arisen Facts:  Appellant………. carries on the business of a carrier and transports goods on hire.  It has its principal office at Bombay  and branch offices at various other places like…Tamilnadu, Madras etc…  Respondent…..is a dealer in cardamom entrusted a consignment of 851 kilograms of cardamom to the appellant  at its subordinate office at Bodinayakanur in Tamil Nadu …..to be delivered at Delhi.  After the goods had been transported by the appellant  and kept in a godown at Delhi the same got destroyed  and damaged in a fire …as a result ………the consignee refused to take delivery  respondent instituted a suit in the Court of Subordinate Judge, Periakulam  within whose territorial jurisdiction the subordinate office of the appellant  where the goods were entrusted for transport is situate  for damages alleging that the fire was due to the negligence and carelessness on the part of the staff of the appellant  Appellant …….plea in its defence that in the contract entered into between them  the parties had agreed that jurisdiction to decide any dispute between them 86 | P a g e

 would be only with the courts at Bombay .This plea was repelled by the trial court  Before H.C….Challenge has failed  Now before Supreme Court….Appeal  urged by the appellant that  the courts at Bombay also had jurisdiction  to entertain a suit arising out of the contract between the parties  in view of the Explanation to Section 20 of the Code  inasmuch as the principal office of the appellant was situated in Bombay  sec.20: Other suits to be instituted  where defendants reside or cause of action arises:  Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction : (a) the defendant, or each of the defendants where there are more than one,  at the time of the commencement of the suit,  actually and voluntarily resides,  or carries on business, or personally works for gain; or  any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain,  provided that in such case  either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as afore- said, acquiesce in such institution; or  (c) the cause of action, wholly or in part, arises.

87 | P a g e

 Explanation:- A corporation shall be deemed to carry on business at its sole or principal office in India or  in respect of any cause of action arising at any place where it has also a subordinate office, at such place." Issue:  whether in this suit the court at Bombay also had jurisdiction apart from the courts within whose jurisdiction the goods were entrusted to the appellant for purposes of transport?  that the courts at Bombay ……. did not at all have jurisdiction  and consequently the agreement between the parties conferring exclusive jurisdiction on courts at Bombay is of no avail.  Clauses(a) and (b) of Section 20 inter alia refer to a court within the local limits of whose jurisdiction the defendant inter alia "carries on business".  Clause (c) on the other hand refers to a court within the local limits of whose jurisdiction the cause of action wholly or in part arises.  It has not been urged ……… on behalf of the appellant that the cause of action wholly or in part arose in Bombay  The words "at such place" occurring at the end of the Explanation and the word "or" referred to  the court within whose jurisdiction it has a subordinate office which alone shall have jurisdiction "in respect of any cause of action arising at any place where it has also a subordinate office".  It is true that, normally, under clauses (a) to (c), the plaintiff has a choice of forum and  cannot be compelled to go to the place of residence or business of the corporation  and can file a suit at a place where the cause of action arises  this section does not create any practical or undue difficulties or disadvantage either to the plaintiff or a defendant corporation  The above interpretation would preclude him from filing a suit in that place of business common to both parties  and compel him to go to a court having jurisdiction over the place where the cause of action has arisen  Appeal dismissed. 88 | P a g e

Harshad Chiman Lal Modi v.DLF Universal and Anr. (2005) 7 SCC 791

Objective of the case: If the court had no jurisdiction, parties by consent cannot confer jurisdiction on it. Section 16 thus recognizes a well established principle that actions against res or property should be brought in the forum where such res is situate.A court within whose territorial jurisdiction the property is not situate has no power to deal with and decide the rights or interests in such property a court has no jurisdiction over a dispute in which it cannot give an effective judgment. Facts:  The appellant..... entered into a 'plot buyer .....for purchase ..... residential plot  ..... Gurgaon, Haryana. The agreement ..... Delhi.  The Head Office of respondent.... situated in Delhi.Payment was........ Delhi   ..... Payment .... in instalments as per the schedule to the agreement  ... Res.. unilaterally and illegally...... cancelled the agreement  .......had not paid dues ......towards construction of Modular House  ..........objected to the illegal action  and sent a legal notice through an advocate  to carry out his part of the contract.......replied that the agreement had been cancelled  and nothing could be done in the matter  .....filed a suit......  Before...Delhi Court....

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 for declaration, specific performance of the agreement,  for possession of the property and for permanent injunction  .....that there is a valid and existing contract,  is bound to abide by the contract,   perform its part of the contract by withdrawing the letter  Permanent injunction restraining ….from allotting, selling, transferring, alienating......   directing him to hand over vacant and peaceful possession   During pendency of suit…def....... filed an application under Order 6, Rule 17  .......seeking amendment in the written statement  ... by raising an objection .......as to jurisdiction of Delhi Court to entertain the suit  Plea: ..... stated that the suit was for recovery of immovable property ......situated in Gurgaon District.  U/ Sec. 16 ........suit for recovery of property could only be instituted within the local limits of whose jurisdiction the property was situated.  Since the property was in Gurgaon, Delhi Court had no jurisdiction in the matter  ...... was allowed ......written statement was permitted to be amended Issue:  Whether Delhi Civil court has jurisdiction to try and entertain the present suit?  ........upheld the contention of the def.  and ruled that Delhi Court had no jurisdiction to try the suit.  The plaint was, therefore, ordered to be returned to the plaintiff for presentation to the proper court.  Being aggrieved by the said order....... the appellant approached  ..... High Court by filing Civil Revision Petition…Dismissed.......

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Before Supreme Court:  appellant contended ....that the courts below have committed an error of law  as well as of jurisdiction in allowing the amendment in the written statement and  in holding that Delhi Court had no jurisdiction.  Clause 28 of the agreement reads thus;  "The Delhi High Court or Courts subordinate to italone shall have jurisdiction in all matters arising out of touching and/or concerning this transaction."  ..........the suit relates to specific performance of agreement relating to immovable property.  ........In accordance with the provisions of Section 16...........  .........such suit can be instituted where the immovable property is situate.  ......."Section 16.Suits to be instituted where subject-matter situate......  Admittedly, the property is situate in Gurgaon (Haryana).  Delhi Court, therefore,has no jurisdiction to entertain the  suit for specific performance of agreement of purchase of a plot - immovable property situate outside Delhi.  ....... If the court had no jurisdiction, parties by consent cannot confer jurisdiction on it.  Section 16 thus recognizes ...a well established principle  that actions against res or property should be brought in the forum where such res is situate.  A court within whose territorial jurisdiction the property is not situate has no power to deal with and decide the rights or interests in such property  a court has no jurisdiction over a dispute in which it cannot give an effective judgment.  the parties had agreed that Delhi Court 91 | P a g e

 alone had jurisdiction in the matters arising out of the transaction has also no force.  Such a provision...... would apply to those cases where two or more courts have jurisdiction to entertain a suit and the parties have agreed to submit to the jurisdiction of one court.  ......deserves to be dismissed and is accordingly dismissed

New Moga Transport Company v.United India Insurance Co. Ltd. and Ors A I R 2004 S C 2154 Facts: •

......had purchased certain articles ............ Material was booked with New Moga Transport Cofor transportation to Barnala.

•

The goods were loaded in truck

•

On account of a fire

•

which took place allegedly due to electric short- circuiting

•

there was destruction of whole of the materials.......claimed that he had suffered loss and

•

..........lodged a claim for a sum of Rs.5,10,000/-

•

Since nothing was paid

•

only a non-delivery of goods certificate was issued

•

,,,,,, settled the claim for a sum of Rs.4,63,516/-

•

on the basis of the surveyor's report

•

and the amount was paid ...... due receipt was obtained.

•

In the suit ......a specific plea

•

......that the Court at Barnala had no jurisdiction to deal with the suit

•

With reference to the consignment note,

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•

it was submitted that ……Court at Udaipur alone had jurisdiction

•

trial Court did not accept the plea

•

first Appellate Court upset the verdict of the trial Court.

•

By the impugned judgment

•

the High Court restored the judgment of the trial Court

•

and held that the plaintiffs were entitled to relief and Court at Barnala had jurisdiction

Arguments before Supreme Court: •

High Court...clearly over-looked the fact that the parties by an agreement have fixed a particular Court... has the jurisdiction.

•

Without any plausible reason or basis, the High court upset the decision of the first Appellate Court.

•

Undisputedly….“The Court at Head office city shall only be the jurisdiction in respect of all claims and matters arising under the consignment at the goods entrusted for transport".

•

at the top of the consignment note the jurisdiction has been specified to be with Udaipur Court.

•

there is clear exclusion of the Courts other than the chosen one and,

•

therefore, the suit could not have been entertained at any other place.

Respondent Plea: •

consignment note was not clear

•

..... "the Court at Head Office city shall only be the jurisdiction in respect of all claims and matters arising under the consignment at the goods entrusted for transport".

•

in view of the vague indication of the court relating to jurisdiction the High Court has rightly interfered

•

Section 20 of CPC reads as.......

93 | P a g e

•

Explanation - A corporation shall be deemed to carry on business at its sole or principal office in (India) or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place."

•

The Explanation applies to a defendant, which is a Corporation which term would include even a company.

•

The first part of the Explanation applies only to such Corporation, which has its sole or principal office at a particular place.

•

In that event, the Court within whose jurisdiction the sole or principal office of the company is situate will also have jurisdiction

•

Inasmuch as even if the defendant may not actually be carrying on business at that place, it will be deemed to carry on business at that place because of the fiction created by the Explanation.

•

"in respect of any cause of action arising at any place where it has also a subordinate office".

•

Above being the factual and legal position, the inevitable conclusion is that the High Court was not justified in upsetting the order of First Appellate Court. It is not a case where the chosen Court did not have jurisdiction…Accordingly, .....set aside the judgment of the High Court and restore that of the first Appellate Court.

•

The Court at Barnala shall return the plaint to the plaintiff with appropriate endorsement

•

under its seal which shall present it within a period of four weeks from the date of such endorsement of return before the proper Court at Udaipur.

Mantoo sarkar v. Oriental Insurance company ltd (2009) 2 SCC 244

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Facts:  Appellant had been travelling as a passenger in a bus,  belonging to Madhya Pradesh Road Transport Corporation.  It met with an accident in the town of Faridpur in the District of Uttar Pradesh having collided with truck  Appellant suffered grievous injuries.  First Information Report was lodged  Respondent has a branch office at Nainital. Accident having taken place at Bareilly  The bus belonging to Gwalior depot of the Madhya Pradesh Road Transport Corporation,  The office of the owner of the truck being at Gurgaon  Office of the insurance company being at Delhi  Case filed at the Tribunal at Nainital  Section 166 (2) of the Motor Vehicles Act, 1988 in regard to territorial jurisdiction of a Tribunal is the question involved herein.  Section 166: Application for compensation  166(2)….. shall be made, at the option of the claimant,  either to the Claims Tribunal having jurisdiction over the area in which the accident occurred  or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides  Appellant working as a skilled migrant seasonal agricultural labourer.

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 He had been earning his livelihood at the relevant time by performing his job as a labourer in the work of extracting sand gravel from a river named `Hola River' near Beri Pada, Lalkuan, Dist. Nainital, Uttaranchal.  He is said to have been living for a long time at Pilibhit in the State of Uttar Pradesh.  Indisputably, after he remained in the district Hospital at Bareilly as an indoor patient up to 28th July, 2003, he was shifted to Prabhakar Hospital in Pilibhit.  He underwent several operations.  Appellant filed a claim petition before the Motor Accident Claims Tribunal, Nainital claiming a sum of Rs.23,90,000/Issue:  Respondent raised objection was lack of territorial jurisdiction on the part of the Tribunal  Tribunal order:  That the jurisdiction conferred on it, having regard to sub-section (2) of section 166 of the M.V. Act is wide and the insurance company having a branch office at Nainital, it had territorial jurisdiction to determine the claim petition. Appeal before S.C:  It is a well settled position of law that  …….the claim petition can only be entertained and filed before a court having the territorial jurisdiction to hear the matter  The claimant cannot take the matter to different State  on the pretext that his case would be disposed of expeditiously in that State or District  without having the territorial jurisdiction  Order: On the basis of the said finding  it was held that Motor Accident Claims Tribunal, Nainital had no territorial jurisdiction to entertain the said claim petition.

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 The said Act is a special statute.  The jurisdiction of the Tribunal having regard to the terminologies used therein must be held to be wider than the civil court.  A claimant has a wide option. Residence of the claimant also determines jurisdiction of the Tribunal  Appellant had been a resident of Pilibhit, it is in the State of Uttar Pradesh.  He being a migrant labourer accepts job wherever he gets and resides there.  He, admittedly, had been working in Nainital district and residing there during the period of accident.  No doubt the Tribunal must exercise jurisdiction having regard to the ingredients laid down under sub-section (2) of Section 166 of the Act.  Section 169 of the M.V Act, the Tribunal, subject to any rules, may follow a summary procedure  and the provisions of the Code of Civil Procedure under the Act has a limited application  but in terms of the rules `save and except' any specific provision made in that behalf,  the provisions of the Code of Civil Procedure would apply.   An appellate court shall not, having regard to the provisions contained in sub-section (1) of Section 21 of the Code of Civil Procedure,  entertain an appeal on the ground of lack of territorial jurisdiction on the part of the court below unless he has been prejudiced thereby.  The Tribunal is a court subordinate to the High Court.  An appeal against the Tribunal lies before the High Court.  The High Court, while exercising its appellate power, would follow the provisions contained in the Code of Civil Procedure or akin thereto.  In view of sub-section (1) of Section 21 of the Code of Civil Procedure, 97 | P a g e

 it was, therefore, obligatory on the part of the appellate court  to pose unto itself the right question, viz., whether the respondent has been able to show sufferance of any prejudice  With reference to objections relating to territorial jurisdiction,  Section 21 of the Code enacts that no objection to the place of suing should be allowed by an appellate or revisional court  …..unless there was a consequent failure of justice  For the reasons aforementioned, the impugned judgment cannot be sustained.  It is set aside accordingly and the order of the Tribunal is restored.  The appeal is allowed

Virendra Kashinath Ravant And Another v. Vinayak N.Joshi And Others AIR 1999 SC 162

Objective of the case: Procedural law is intended to facilitate and not to obstruct the course of substantive justice. Provisions relating to pleadings in civil cases are meant to give to each side intimation of the case of the other so that it may be met to enable Courts to determine what is really at issue between parties, and to prevent deviations from the course which litigation on particular causes of action must take. Facts: 

Appellants ........ Landlords



.........building situate at Benham Hall Lane, Mumbai



...... let out to Shanta Sabnis..... Original Tenant

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

After her death......Her daughter.....continued as a ......



........filed a suit for eviction ....On the ground......



that the premises were sub-let to the.....third parties



2nd Respondent..contended that ....she is the only daughter of Shanta Sabnis



and hence the tenancy right has devolved on her with the death of her mother.



She disputed the contention of the appellants that the building had been sublet to the third



.....but stated that she was allowed by her mother and grand-mother



to reside in the building for the purpose of looking after her mother



and grand-mother who were old and sick.



Ist res. .......admitted that he is in possession of the suit premises.



.....contended that he was permitted by the tenant



…………. to occupy the building on leave and license basis



Under an agreement dated 16.10.1971 and he continued in such possession on 1.2.1973 and also thereafter.



So ...... claimed protection under Section 15A of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947



Trial Court found that .........1st res… was inducted into possession ........



The claim made by……………. for protection under Section 15A of the Act was repelled



concluded that induction of....... into the building



amounted to unlawful subletting. On the strength of the above finding



…….. a decree for eviction was granted



The appellate authority .......confirmed the decree for eviction

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

Before H.C........High Court approached the issue ………..from a new angle



untouched by the trial court and the appellate authority



observed first ......that appellants have not treated the defendant as their tenant



and secondly that there is no clear averment in the plaint to the effect



that the building has been sub-let to the 1st res..



It is therefore, ...clear that in order to be entitled to a decree of eviction against the tenant



…….on the ground of unlawful sub-letting an averment in the Plaint is must that the tenant has unlawfully sub-let the suit premises.



It is clear from the allegation in the plaint that the plaintiffs were not treating any of the named defendants as their tenants.



.......the Tenant of the plaintiffs viz. Ms. Shanta had expired before institution of the suit.



Therefore, there is no question of the plaintiffs being in a position to make a statement



that the tenant inducted 3rd parties ....as unlawful subtenant.



H.C Order: In these circumstances,



a decree of eviction could not have been passed against the petitioner ....



because averments necessary for passing a decree itself were absent in the Plaint.



both the courts below have committed grave error of law in overlooking these aspects of the matter which were crucial for deciding the controversy in the matter.



Supreme Court observed The High Court was not justified



.......in non-suiting the appellants on the premise that they have "no where treated the defendant as their tenant.



" The clear averments in the plaint regarding the tenant are the following:



"One Miss Shanta B. Sabnis during her life time was Plaintiffs' monthly tenant in respect of the building bearing No. 7 on a monthly rent of Rs. 12.85.

100 | P a g e



The said Miss Shanta B. Sabnis died some time ago leaving behind her mother as the heir and legal representative.



It admits of no doubt that appellants have clearly recognised Ms. Shanta Sabnis as their tenant in respect of the suit premises.



Admission of..........subletting to the 3rd party,



the High Court has exceeded its jurisdiction by upsetting the concurrent finding of facts reached by the two fact finding courts, on a very fragile reasoning that there was no sufficient averment in the plaint



under Or.6 R.1(2) "Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved.



.........of the Rule is two-fold



First is to afford the other said intimation regarding the particular facts of his case so that the other side may meet them.



Second is to enable the court to determine what the issue between the parties is really.



a statement in a concise form" are definitely suggestive that brevity should be adhered to while drafting pleadings.



Of course brevity should not be at the cost of setting out necessary facts, but it does not mean niggling in the pleadings.



Elaboration of facts in pleadings is not the ideal measure



and that is why the sub-rule embodied the words "and contain only" just before the succeeding words "a statement in a concise form of the material facts".



"Procedural law is intended to facilitate and not to obstruct the course of substantive justice. Provisions relating to pleadings in civil cases are meant to give to each side intimation of the case of the other so that it may be met to enable Courts to determine what is really at issue between parties, and to prevent deviations from the course which litigation on particular causes of action must take.

101 | P a g e



High Court has thus erred as it exceeded its jurisdiction.



Hence ……..allow this appeal and set aside the impugned judgment of the High Court



……..and restore the order of the trial court as confirmed by the appellate court.

Bachhaj Nahar v. Nilima Mandal and Anr. AIR 2009 SC 1103 Objective of the case: CPC is an elaborate codification of the principles of natural justice to be applied to civil litigation. The provisions are so elaborate;fulfillment of the procedural requirements of the Code may itself contribute to delay.But any anxiety to cut the delay or further litigationshould not be a ground to float the settled fundamental rules of civil procedure.The object and purpose of pleadings and issuesis to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. Facts:  ......claimed that the suit property .......purchased by them under sale deed dated 29.12.1962.  The reliefs ...... declarations that the plaintiffs are the absolute owners  the defendants do not have any right, title or interest or possession  …..had illegally encroached and started construction in the suit property  a direction to ….. to deliver possession of the suit property  after demolishing the construction over the same  a permanent injunction restraining….from interfering with the suit property.  Def…....... resisted the suit  contending that….. purchased the property to the South of plaintiff's property 102 | P a g e

 from second defendant under sale deed dated 5.5.1982  and the suit property actually formed part of his property.  …. contended that the plaintiffs had no right, title or interest in the suit property. Issues:  Is the suit as framed maintainable?  Do the plaintiffs have any cause of action to file the suit as against these defendants?  Is the suit barred by limitation?  Whether the suit land is part and parcel of land of the plaintiff purchased through registered …….  ……..or the suit land in exclusive possession of after purchase of first defendant.  ……first defendant encroached any portion of the suit land?  …….Whether the plaintiffs got title over the suit land?  Or were they using the suit land under express permission?  To what relief or reliefs, plaintiffs are entitled? Trial Court: 

After considering the evidence,



…….. by judgment and decreed the suit in part.



It held that the suit property was part of plaintiffs' property



and that first defendant had encroached over a part of it to an extent of 15 sq. ft.



…..already put up his construction over the encroached portion and was using it,



………instead of directing him to deliver back possession



he should pay Rs. 100/- as the price of the encroached portion, to the plaintiffs



Feeling aggrieved, …….the first defendant filed an appeal.

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

Plaintiffs filed cross-objections.



The first appellate court held that the plaintiffs had failed to prove……….



………. therefore allowed the appeal

Before H.C.: 

The High Court……. held that …



the plaintiffs had failed to make out title to the suit property.

………held that plaintiffs had made out a case 

for grant of relief based on easementary right of passage



in respect of the suit property……… as they had claimed in the plaint



…….that they and their vendor had been using the suit property,



and the first defendant and witness had admitted such user. 



The High Court observed……



that if there was any encroachment over the said passage by the first defendant,



that will have to be got removed by the "process of law".



…… issued a permanent injunction restraining the plaintiffs from encroaching upon the suit property (passage)



……till the plaintiffs got a declaration of their title over the suit property by a competent court

H.C. Order: 

……..that the case based …. issue relating to an easementary right,



as the evidence available was sufficient to make out easementary right over the suit property



therefore ….granted a permanent injunction

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

restraining the first defendant



from interfering with the plaintiffs' use and enjoyment of the `right of passage' over the suit property

Before SC: 

The Appellant contends……



…….that neither in law, nor on facts, the High Court could have granted the aforesaid reliefs.



The High Court, in this case…..



……in its obvious zeal to cut delay and hardship



that may ensue by relegating the plaintiff to one more round of litigation



has rendered a judgment which violates several fundamental rules of civil procedure



No amount of evidence can be looked into….. ……upon a plea which was never put forward in the pleadings.



A question which did arise from the pleadings and which was not the subject matter of an issuecannot be decided by the court.



A Court cannot make out a case not pleaded.

SC observation: 

The court should confine its decision to the question raised in pleadings.



Nor can it grant a relief which is not claimed and



which does not flow from the facts and the cause of action alleged in the plaint.



A factual issue cannot be raised



or considered for the first time in a second appeal.



CPC…is an elaborate codification of the principles of natural justice to be applied to civil litigation

105 | P a g e



The provisions are so elaborate



…fulfillment of the procedural requirements of the Code may itself contribute to delay.



But any anxiety to cut the delay or further litigation,



……should not be a ground to float the settled fundamental rules of civil procedure.



The object and purpose of pleadings and issues



…….. is to ensure that the litigants come to trial with all issues clearly defined



and to prevent cases being expanded or grounds being shifted during trial.



object is also to ensure ………



that each side is fully alive to the questions that are likely to be raised or considered



may have an opportunity of placing the relevant evidence appropriate to the issues before the court for its consideration.



…….. the pleadings are meant to give to each side intimation of the case of the other so that it may be met,



to enable courts to determine what is really at issue between the parties,



and to prevent any deviation from the course which litigation on particular causes must take.



When there is no prayer……. for a particular relief and no pleadings to support such a relief, when defendant has no opportunity to resist or oppose such a relief,



if the court considers and grants such a relief,



it will lead to miscarriage of justice.



The High Court has ignored the aforesaid principles relating to the object and necessity of pleadings.



Even though right of easement was not pleaded or claimed by the plaintiffs,



only in regard to title and possession

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

it made out for the first time in second appeal,



a case of easement and granted relief based on an easementary right…….



without pleadings and issues,



evidence cannot be considered to make out a new case which is not pleaded.



Another aspect to be noticed,



is that the court can consider such a case not specifically pleaded,



Where neither party puts forth such a contention, the court cannot obviously make out such a case not pleaded, suo moto.



In the absence of a claim by plaintiffs…… based on an easementary right,



the first defendant did not have an opportunity to demonstrate that the plaintiffs had no easementary right.



In the absence of pleadings and an opportunity to the first defendant to deny such claim,



the High Court could not have converted a suit for title into a suit for enforcement of an easementary right



and set aside the judgment and order of the High Court



and restore the judgment of the first appellate court

Balraj Taneja v. Sunil Madan AIR 1999 SC 3381 Facts: 

Suit filed for................. in the Delhi High Court



...... for specific performance of an agreement for sale in respect of property No. W-118, First Floor, Greater Kailash-II, New Delhi.

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

.......... Summons which were issued



Appeared before court......



and prayed for eight weeks' time to file written statement



which was allowed and the suit was adjourned



 Since the Written Statement was not filed,



............. the Court decreed the suit for specific performance under order 8 rule 10.....



Acc to decree....



......  directed to deposit a sum of Rs. 3 lakhs, being the balance amount of sale consideration, within six weeks and on the amount being so deposited



...... he was given the liberty to apply to the court for appointment of a Commissioner for executing the sale deed in his favour



 The review application filed by the appellants was dismissed by the High Court



An appeal, which was filed by the appellants, before the Division Bench was dismissed



Appeal before.....Supreme Court



What is the contention of appellant?

Contention of Appellant:   High Court was not justified in passing the decree against the appellants, for specific performance merely on the ground  that Written Statement was not filed by them on the date fixed for that purpose  ........that the High Court had rejected the application for time to file Written Statement on the ground that there was a change of counsel appearing on behalf of the appellants  and no reason was indicated by them for not filing the Written Statement  which indicates that the attitude adopted by the High Court in decreeing the suit under Order 8 Rule 10 C.P.C. 108 | P a g e

 was wholly punitive in nature resulting in serious miscarriage of justice.   even if the Court had decreed the suit under Order 8 Rule 10 C.P.C.,  it ought to have written a "judgment" by stating clearly the facts of the case  and the reasons for decreeing the suit.The suit, it is contended, could not have been decreed merely for not filing of the Written Statement unless facts set out in the plaint were found proved by the High Court. Respondent contention: 

..........the appellants,........had adopted dilatory tactics and their intention, from the very beginning, was to delay the disposal of the suit so as to harass .....res.....



.....the conduct of the appellants was not proper and they were negligent throughout,



inasmuch as not only that they did not file the Written Statement,



they filed an appeal before the Division Bench which also was beyond time

Supreme Court: •

it is clear that the Court,

•

.......at no stage, can act blindly or mechanically.

•

While enabling the Court to pronounce judgment in a situation

•

where no Written Statement is filed by the defendant,

•

the Court has also been given the discretion to pass such order as it may think fit as an alternative.

•

This is also the position under Order 8 Rule 10 CPC

•

where the Court can either pronounce judgment against the defendant or pass such order as it may think fit.

•

the plaint itself indicates that there are disputed questions of fact involved in the case

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•

regarding which two different versions are set out in the plaint itself, it would not be safe for the Court to pass a judgment without requiring the plaintiff to prove the facts so as to settle the factual controversy.

•

Such a case would be covered by the expression "the Court may, in its discretion, require any such fact to be proved"

•

used in Sub-rule (2) of Rule 5 of Order 8, or the expression "may make such order in relation to the suit as it thinks fit" used in Rule 10 of Order 8.

•

 suit had been decreed only because of the failure of the defendants in filing the Written Statement.

•

This exhibits the annoyance of the Court which is natural as no Court would allow the proceedings to be delayed or procrastinated. But this should not disturb the judicial composure

•

which unfortunately is apparent in the instant case as the judgment neither sets out the facts of the case nor does

•

it record the process of reasoning by which the Court felt that the case of the plaintiff was true and stood proved.

•

 the judgment would still mean

•

the process of reasoning by which a Judge decides a case in favour of one party

•

and against the other. In judicial proceedings, there cannot be arbitrary orders

•

A Judge cannot merely say "Suit decreed" or "Suit dismissed".

•

The whole process of reasoning has to be set out for deciding the case one way or the other.

•

This infirmity in the present judgment is glaring and for that reason also the judgment cannot be sustained.

•

allow the appeal, set aside the judgment 

•

remand the case back to the Delhi High Court for a fresh decision.

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•

allow the appellants to file their Written Statement by 15th of October, 1999,

•

with a clear stipulation that if the Written Statement is not filed by that date,

•

the decree passed by the High Court shall stand.

Bihari Chowdhary & Anr v. State Of Bihar & Ors 1984 AIR 1043 SC Objective of the case: The effect of the Section 80 of CPC is clearly to impose a bar against the institution of a suit against the Government until the expiration of two months after notice in writing has been delivered the scheme of the Section it becomes obvious that the Section has been enacted as a measure of public policy with the object of ensuring that before a suit is instituted against the Government or a public officer,is afforded an opportunity to scrutinise the claim in respect of which the suit is proposed to be filed and if it be found to be a just claim, to take immediate action and thereby avoid unnecessary litigation and save public time and money by settling the claim without driving the person, who has issued the notice, to institute the suit involving considerable expenditure and delay. Facts:

 The appellants-plaintiff instituted …….... a

suit

for…..

 declaration of title and delivery of possession of immovable properties.  The

first respondent was the State Government.

 Prior to the institution of the suit …the plaintiffs, had issued notice  to the 1st respondent ……under section 80 CPC,  but without waiting for the statutory period of two months to expire,  the plaintiffs instituted the suit. 111 | P a g e

 Written Statement: Prior to the institution of the suit …  the plaintiffs, had issued notice to the 1st respondent  ……under section 80 CPC,but without waitingfor the statutory period of two months to expire, the plaintiffs instituted the suit.  The Trial court……Upheld the contentionand dismissed the suit.  The order was confirmed by the first appellate court and  the second appeal preferred by the appellants to the High Court was dismissed in limine. Issue: •

The short question that arises for consideration in this appeal concerns the true scope and application of Section 80 of the Civil Procedure Code.

•

Section 80: The effect of the Section

•

…… is clearly to impose a bar against the institution of a suit against the Government

•

……. until the expiration of two months

•

after notice in writing has been delivered

•

the scheme of the Section it becomes obvious that the Section has been enacted

•

as a measure of public policy with the object of ensuring that before a suit is instituted against the Government or a public officer,

•

…….is afforded an opportunity to scrutinise the claim in respect of which the suit is proposed to be filed

•

and if it be found to be a just claim, to take immediate action and thereby avoid unnecessary litigation

•

and save public time and money by settling the claim without driving the person,

•

who has issued the notice, to institute the suit involving considerable expenditure and delay.

112 | P a g e

•

There is clearly a public purpose

•

…..underlying the mandatory provision contained in the Section

•

insisting on the issuance of a notice setting out the particulars of the proposed suit

•

and giving two months’ time to Government or a public officer before a suit can be instituted against them.

•

The object of the Section is the advancement of justice and the securing of public good by avoidance of unnecessary litigation.

•

When the language used in the Statute is clear and unambiguous,

•

It is the plain duty of the Court to give effect to it and considerations of hardship will not be a legitimate ground for not faithfully implementing the mandate of the legislature.

•

confirm the judgment and decree of the High Court and dismiss this appeal.

G.P. Srivastava v. Shri R.K. Raizada & Ors. A I R 2000 SC 1221 Objective of the case: The 'sufficient cause' for non-appearancerefers to the date on which the absence was made a ground for proceeding ex-parteand cannot be stretched to rely upon other circumstances anterior in time. If sufficient cause' is made out for non-appearance of the defendant on the date fixed for hearing when exparte proceedings initiated against him Facts: •

....... suit for arrears of rent,

•

Ejectment and damages filed against the appellant

•

was decreed ex-parte on 10-3-1983.

•

The application for setting aside the ex-parte judgment and decree filed on 7-4-1983

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•

dismissed by the Trial Judge on 14 5 1985.

•

The revision petition .....filed by the appellant

•

..........was dismissed by the High Court

•

on the ground that the appellant had failed to establish, any just or sufficient cause

•

for his non-appearance on the date fixed

•

when the ex parte proceedings were initiated against him

Reasons for non-appearance: •

the appellant submitted that he was posted as Assistant Engineer in the Irrigation Department

•

and on account of the construction of the bridges over the casual drains

•

he had to remain at the site in the interests of public

•

Unfortunately, the young nephew of the counsel met with an accident on 10-3-1983 and expired

•

which prevented his counsel also to appear in the Court on that date.

•

It was contended that the absence of the appellant and his counsel in the trial Court was on account of the aforesaid circumstances and not intentional.

•

The application was supported by his affidavit and a medical certificate.

•

Trial court: ........did not accept the pleas raised by the appellant

•

.......and found that the absence of the appellant or his counsel in the Court

•

....... on 10-3-1983 was not for just or sufficient cause.

•

The filing of the medical certificate was not disputed

•

.........but the same was not relied on as it was found to have been obtained from a private doctor

•

and not from a Government doctor, the High Court also did not accept

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•

.......refusing to set aside the ex parte decree passed against him

•

Unless 'sufficient cause' is shown for non-appearance of the defendant in the case on the date of hearing,

•

the Court has no power to set aside an ex parte decree. 

Interpretation of Supreme Court: •

Sufficient cause for the purpose of Order 9 Rule 13

•

has to be construed as elastic expression for which no hard and fast guidelines can be prescribed.

•

The Courts have wide discretion in deciding the sufficient cause

•

keeping in view the peculiar facts and circumstances of each case. 

•

The 'sufficient cause' for non-appearance

•

refers to the date on which the absence was made a ground for proceeding ex-parte

•

and cannot be stretched to rely upon other circumstances anterior in time.

•

If sufficient cause' is made out for non-appearance of the defendant

•

on the date fixed for hearing when exparte proceedings initiated against him

•

In a case where defendant ...approaches the Court immediately and within the statutory time specified,

•

the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional.

•

For the absence of a party

•

......... in the case the other side can be compensated by adequate costs and the lis decided on merits.

•

 Both the trial Court as also the High Court have adopted a very narrow and technical approach

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•

in dealing with a matter pertaining to the eviction of the appellant

•

despite the fact that he had put a reasonable defence

•

and had approached the Court for setting aside the ex parte decree, admittedly, within the statutory period

•

Under the circumstances,

•

the appeals are allowed

•

by setting aside the order of the High Court and of the trial Court.

•

The ex parte judgment and decree passed against the appellant is set aside on payment of costs of Rs. 5,000/- to the other side.

•

The trial Court is directed to afford the appellant opportunity to prove his case

•

and expedite the disposal of the suit preferably within a period of six months from the date of receipt of the copy of this order.

Ghan Shyam Das Gupta and another v. Anant Kumar Sinha and others AIR 1991 SC 2251 Objective of the case: The numerous rules of order XXI of the Code take care of different situations,providing effective remedies not only to judgment-debtors and decree-holders but also to claimant objectors as the case may be. In an exceptional case, where provisions are rendered incapable of giving relief to an aggrieved party in adequate measure and appropriate time, the answer is a regular suit in the civil court. The remedy under the Civil Procedure Code is of superior judicial quality than what is generally available under other statutes, and the Judge being entrusted exclusively with administration of justice, is expected to do better.It will be, therefore, difficult to find a case where interference in writ jurisdiction for granting relief to a judgment-debtor or a claimant objector can be justified.

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Facts: •

The appellants are the owners of the premises in question

•

........one Dr. K.C. Sinha was a tenant.

•

After his death his son Prabhas Kumar Sinha continued in possession.

•

The writ petitioners- respondents are the sons of the brothers of Dr. K.C. Sinha,

•

and according to their case they being members of the joint Hindu Family along with Dr. K.C. Sinha are tenants in their own right under the appellants.



.........is directed against the judgment of Allahabad High Court,

 allowing the writ petition of the respondents under Article 226 of the Constitution,  and directing that they shall not be evicted from the premises in dispute  in pursuance of an eviction decree passed by the trail court Issue: •

....... which arises for decision whether in the facts and circumstances of the case the High Court was justified in entertaining the writ petition under Article 226 of the Constitution,

•

and proceeding to issue the impugned direction.

•

The case of the appellants is that

•

they were subsequently inducted in the premises as sub-tenants by Prabhas Kumar Sinha

•

and did not have any independent right.

•

The eviction suit in the small causes court was filed by the appellants

•

against Prabhas Kumar Sinha for his eviction, without impleading the writ petitioners

•

and the decree passed therein is under challenge

•

by the judgment-debtor Prabhas Kumar Sinha in revision before the High Court.

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•

In this background the respondents approached the High Court under Article 226 of the Constitution,

•

claiming that they, not being parties in the eviction case, are not bound by the decree.

The High Court: •

......has held that since the claim of the writ petitioners was not examined

•

and decided in the suit and the decree was passed against Prabhas Kumar Sinha only,

•

they cannot be evicted from the premises unless a decree is expressly passed against them.

•

It has been observed that the appellants must proceed to file a suit against the writ petitioners and obtain a decree against them if they intend to eject them.

•

......the High Court has seriously erred in law in allowing the writ petition

•

by the impugned judgment. The decision on the disputed issue was dependent on the consideration of the evidence to be led by the parties,

•

and while exercising the writ jurisdiction the High Court was not expected to go into that question.

•

In the circumstances,

•

the Court ought to have refused to dispose of the writ petition on merits,

•

leaving the writ petitioners to avail of the remedy before the civil court.

•

The remedy provided under Article 226 is not intended to supersede the modes of obtaining relief before a civil court or to deny defences legitimately open in such actions.

•

So far the question of executability of a decree is concerned, the Civil Procedure Code contains elaborate and exhaustive provisions for dealing with it in all its aspects.

•

The numerous rules of order XXI of the Code take care of different situations,

•

providing effective remedies not only to judgment-debtors and decree-holders but also to claimant objectors as the case may be.

118 | P a g e

•

In an exceptional case, where provisions are rendered incapable of giving relief to an aggrieved party in adequate measure and appropriate time,

•

the answer is a regular suit in the civil court.

•

The remedy under the Civil Procedure Code is of superior judicial quality than what is generally available under other statutes, and the Judge being entrusted exclusively with administration of justice, is expected to do better.

•

It will be, therefore, difficult to find a case where interference in writ jurisdiction for granting relief to a judgment-debtor or a claimant objector can be justified.

•

The rules 97 to 106 of order XXI….

•

envisage questions as in the present appeal to be determined on the basis of evidence to be led by the parties and after the 1976 Amendment,

•

the decision has been made appealable like a decree.

•

The High Court, in the present case,

•

therefore, ought not to have embarked upon a decision of the writ petition on merits,

•

and should have refused to exercise its special jurisdiction on the ground of alternative remedy before the civil court.

•

The High Court, in the present case,

•

therefore, ought not to have embarked upon a decision of the writ petition on merits,

•

and should have refused to exercise its special jurisdiction on the ground of alternative remedy before the civil court.

•

.......accordingly, set aside the impugned judgment

•

and dismiss the writ petition of the respondents

•

The appeal is allowed with costs, assessed at Rs.2,000.

119 | P a g e

Sangram Singh v. Election Tribunal Kotah and Another AIR 1955 SC 425 Objective of Law: Civil Procedure Code that deals with the trial of suits, it is procedure, something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not be continue in their absence and that they should not be precluded from participating in them. “One cardinal principle to be observed in trials by a Court obviously is that a party has a right to appear and plead his case on all occasions when that cause comes on for hearing”, and that “It follows that a party should not be deprived of that right and in fact the Court has no option to refuse that right, unless the Code of Civil Procedure deprives him of it”. Facts:  The second respondent Bhurey Lal filed an election petition u/s. 100 of the Representation of the People Act against the appellant Sangram Singh and two others for setting aside Sangram Singh’s election.  The proceedings commenced at Kotah and after some hearings the Tribunal made an order on 11-12-1952 that the further sittings would be at Udaipur from the 16 th to the 21st March, 1953. It was discovered later that the 16th was a public holiday, so on 5-1-1953 the dates were changed to “from the 17th March onwards” and the parties were duly notified.  On the 17th the appellant did not appear nor did any of the three counsel whom he had engaged, so the Tribunal proceeded ex parte after waiting till 1-15 P.m.  The Tribunal examined Bhurey Lal and two witnesses on the 17 th, five more witnesses on the 18th and on the 19th the case was adjourned till the 20th. On the 20the one of the

120 | P a g e

appellant’s counsel, Mr. Bharat Raj, appeared but was not allowed to take any part in the proceedings because the Tribunal said that it was proceeding ex parte at that stage.  On the following day, the 21st, the appellant made an application asking that the ex parte proceedings be set aside and asking that he be allowed to cross-examine those of Bhurey Lal’s witnesses whose evidence had already been recorded.  The Tribunal heard arguments and passed an order the same day rejecting the application on the ground that the appellant had “failed to satisfy ourselves that there was- any just or unavoidable reason preventing the appearance of respondent No. 1 himself or of any of his three learned advocates between the 17th and the 19th of March, 1953”, and it added-“at all events, when Para 10 of the affidavit makes it clear that Shri Bharatraj had already instructions to appear on 17-3-1953 there was nothing to justify his non – appearance on the 18th and 19th of March, 1953, if not, on the 17th as well”.  The appellant thereupon filed a writ petition u/art. 226 of the Constitution in the High Court of Rajasthan and further proceedings before the Tribunal were stayed. The High Court rejected the petition on 17-7-1953 on two grounds “In the first – place, the Tribunal was the authority to decide whether the reasons were sufficient or otherwise and the fact that the Tribunal came to the conclusion that the reasons set forth by counsel for the petitioner were insufficient cannot be challenged in a petition of this nature” and  “On the merits also, we feel no hesitation in holding that counsel for the petitioner were grossly negligent in not appearing on the date which had been fixed for hearing, more than two months previously”. Before the High Court:  whether the Tribunal was right in refusing to allow the appellant’s counsel to appear and take part in the proceedings on and after the 20th of March, 1953,  whether that is sufficient ground to give the High Court jurisdiction to entertain a writ petition u/art. 226 of the Constitution. Arguments:

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 It was argued that neither the High Court nor the Supreme Court can itself transgress the law in trying to set right what it considers is an error of law on the part of the Court or Tribunal whose records are under consideration.  It was submitted that the legislature intended the decisions of these tribunals to be final on all matters, whether of fact or of law, accordingly, they cannot be said to commit an error of law when, acting within the ambit of their jurisdiction, they decide and lay down what the law is, for in that sphere their decisions are absolute, as absolute as the decisions of the Supreme Court in its own sphere. Interpretation:  It was decided that s. 105 cannot take away or whittle down the powers of the High Court u/art. 226.  The jurisdiction which arts. 226 and 136 confer entitles the High Courts and this Court to examine the decisions of all Tribunals to see whether they have acted illegally.  That jurisdiction cannot be taken away by a legislative device that purports to confer power on a tribunal to act illegally by enacting a statute that its illegal acts shall become legal the moment the tribunal chooses to say they are legal. The legality of an act or conclusion is something that exists outside and apart.  Their powers are purely discretionary and though no limits can be placed upon that discretion it must be exercised along recognized lines and not arbitrarily; and one of the limitations imposed by the Courts on, themselves is that they will not exercise jurisdiction in this class of case unless substantial injustice has ensued, or is likely to ensue.  Therefore, writ petitions should not be lightly entertained in this class of case.  The procedure of these tribunals is governed by s. 90 of the Act. The portion of the section that is relevant here is sub-s. (2) which is in these terms:  “Subject to the provisions of this Act and of any rules made there under, every election petition shall be tried by the Tribunal, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (Act V of 1908) to the trial of suits”.

122 | P a g e

 Civil Procedure Code that deals with the trial of suits, It is procedure, something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up.  Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not be continue in their absence and that they should not be precluded from participating in them.  “One cardinal principle to be observed in trials by a Court obviously is that a party has a right to appear and plead his case on all occasions when that cause comes on for hearing”, and that “It follows that a party should not be deprived of that right and in fact the Court has no option to refuse that right, unless the Code of Civil Procedure deprives him of it”.  S. 27 of the Code provides that “Where a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim”. S. 30 gives the Court power to “(b) issue summonses to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid”.  “a summons may be issued to the defendant to appear and answer the claim on a. day to be therein specified”.  This summons must state whether the hearing is to be for settlement of issues only or for final hearing (rule 5). If it is for final hearing, then (rule 8):  “it shall also direct the defendant to produce, on the day fixed for his appearance, all witnesses upon whose evidence he intends to rely in support of his case”.  Order VIII, rule 1 which expressly speaks of “the first hearing”. Order IX follows and is headed “Appearance of parties and consequence of non-appearance”.  Now the word “consequence” as opposed to the word “penalty” used in s. 32 is significant.  The use of the word “penalty” is scrupulously avoided. All that the plaintiff has to do here is to pay the costs occasioned by the postponement which in practice usually means the cost of a fresh summons and the diet money and so forth for such of the witnesses as are present; and these costs the plaintiff must pay irrespective of the result. 123 | P a g e

 Rule 1 of Order IX starts by saying-“On the day fixed in the summons for the defendant to appear and answer”And the rest of the rules in that Order are consequential on that. This is emphasized by the use of the word “postponement” in rule 6 (1) (c), of “adjournment” in rule 7 and of “adjournment” in rule 1, “(a) the Court may proceed ex parte”.  that ex parte merely means in the absence of the other party, and on the other side means that the Court is at liberty to proceed without the defendant till the termination of the proceedings unless the defendant shows good cause for his non-appearance.  On the other hand, if it is for final hearing, an ex parte decree can be passed, and if it is passed, then Order IX, rule 13 comes into play and before the decree is set aside the Court is required to make an order to set it aside.  Then comes rule 7, which provides that if at an adjourned hearing the defendant appears and shows good cause for his “previous non-appearance”, he can be heard in answer to the suit.  Then dealt with in Order XVII. Rule I (1) empowers the Court to adjourn the hearing and whenever it does so it must fix a day “for the further hearing of the suit”, except that once the hearing of the evidence has begun it must go on from day to day till all the witnesses in attendance have been examined unless the Court considers, for reasons to be recorded in writing, that a further adjournment is necessary.  Now rule 2 only applies when one or both of the parties do not appear on the day fixed far the adjourned hearing. In that event, the Court is thrown back to Order IX with the additional power to make “such order as it thinks fit”. 

Therefore, if a party does appear on “the day to which the hearing of the suit is adjourned”, he cannot be stopped from participating in the proceedings simply because he did not appear on the first or some other hearing.

 But though he has the right to appear at an adjourned hearing, he has no right to set back the hands of the clock. Order IX, rule 7 makes that clear.  Therefore, unless he can show good cause, he must accept all that has gone before and be content to proceed from the stage at which he comes in.  We have already seen that when a summons is issued to the defendant it must state whether the hearing is for the settlement of issues only or for the final disposal of the suit 124 | P a g e

(Order V, rule 5). In either event, Order VIII, rule I comes into play and if the defendant does not present a written statement of his defence, the Court can insist that he shall; and if, on being required to do so, he fails to comply The Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit”. (Order VIII, rule 10).  This invests the Court with the widest possible discretion and enables it to see that justice is done to both sides; and also to witnesses if they are present: a matter on which we shall dwell later.  We have seen that if the defendant does not appearat the first hearing, the Court can proceed exparte, which means that it can proceed without a written statement; and Order IX, rule 7 makes it clear that unless good cause is shown the defendant cannot be relegated to the position that he would have occupied if he had appeared.  Now when we speak of the ends of justice, we mean justice not only to the defendant and to the other side but also to witnesses and others who may be inconvenienced.  It is an unfortunate fact that the convenience of the witness is ordinarily lost sight of in this class of case and yet be is the one that deserves the greatest consideration.  As a rule, he is not particularly interested in the dispute but he is vitally interested in his own affairs which he is compelled to abandon because a Court orders him to come to the assistance of one or other of the parties to a dispute.  Justice strongly demands that this unfortunate section of the general public compelled to discharge public duties, usually at loss and inconvenience to themselves, should not be ignored in the overall picture of what will best serve the ends of justice and it may well be a sound exercise of discretion in a given case to refuse an adjournment and permit the plaintiff to examine the witnesses present and not allow the defendant to cross-examine them, still less to adduce his own evidence.  “No appeal shall lie from a judgment passed exparte against a defendant who has not appeared”.  “The general rule is that an appeal lies to the High Court from a decision of a civil or subordinate Judge, and a defendant ought not to be deprived of the right of appeal, except by express words or necessary implication”.

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 The general rule, founded on principles of natural justice, that proceedings in a Court of justice should not be conducted behind the back of a party in the absence of an express provision to that effect is no less compelling.  It would be anomalous to hold that the efficacy of the so-called ex parte order expends itself in the first Court and that thereafter a defendant can be allowed to appear in the appellate Court and can be beard and can be permitted to urge in that Court the very matters he is shut out from urging in the trial Court; and in the event that the appellate Court considers a remand necessary he can be permitted to do the very things he was precluded from doing in the first instance without wetting the ex parte order set aside under Order IX, rule 7.  If the defendant does not appear at the adjourned hearing (irrespective of whether or not he appeared at the first hearing) Order XVII, rule 2 applies and the Court is given the widest possible discretion either “to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit”.  In the present case, we are satisfied that the Tribunal did not exercise its discretion because it considered that it had none and thought that until the ex parte order was set aside the defendant could not appear either personally or through counsel.  We agree with the Tribunal, and with the High Court, that no good cause was shown and so the defendant had no right to be relegated to the position that he would have occupied if he had appeared on 17-3-1953, but that he had a right to appear through counsel on 203-1953 and take part in the proceeding-from the stage at which they had then reached, subject to such terms and conditions as the Tribunal might think fit to impose, is we think, undoubted.  But this assumes that the petitioner was misled and closed his case “after offering as little evidence as he thought was just necessary to get his petition disposed of ex parte”. Finally…….

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 disagreeing with the High Court which has upheld the Tribunal’s order, quash the order of the Tribunal and direct it to exercise the discretion vested in it by law along the lines we have indicated. 

In doing so the Tribunal will consider whether the plaintiff was in fact misled or could have been misled if he had acted with due diligence and caution.

 The Tribunal will also consider and determine whether it will be proper in the circumstances of this case to allow the appellant to adduce his own evidence.  The Tribunal will now reconsider its orders of the 20 th, the 21st and the 23rd of March 1953 in the light of our observations and will proceed accordingly.  The records will be sent to the Election Commission with direction to that authority to reconstitute the Tribunal, if necessary, and to direct it to proceed with this matter along lines indicated above There will be no order about costs.

Satya v. Teja Singh AIR 1975 SC 105 Facts:  Satya, the appellant herein, married the respondent Teja Singh on July 1, 1955 according to Hindu rites.  Both were Indian citizens and were domiciled in India at the time of their marriage.  The marriage was performed at Jullundur in the State of Punjab., Two children were born of the marriage, a boy in 1956 and a girl in 1958. On January 23, 1959 the respondent, who was working as a Forest Range Officer at Gurdaspur, left for U.S.A. for higher studies in Forestry. He spent a year in a New York University and then joined the Utah State University where he studied for about 4 years for a Doctorate in Forestry. On the conclusion of his studies, he secured a job in Utah on a salary of the equivalent of about 2500 rupees per month. During these 5 years the appellant continued to live in India with her minor children. She did not ever join the respondent in America as, so it seems, he promised to return to India on completing his studies. 127 | P a g e

 This appeal by special leave arises out of an application made by the appellant under section 488, Code of Criminal Procedure, 1898. Issue:  It raises issues for beyond the normal compass of a summary maintenance proceeding designed primarily to give quick relief to a neglected wife and children. Are Indian courts bound to give recognition to divorce decrees granted by foreign courts? That, broadly, is the question for decision.  On January 21, 1965 the appellant moved an application under section 488. Criminal Procedure Code, alleging that the respondent had neglected to maintain her and the two minor children. She prayed that he should be directed to pay a sum of Rs. 1000/- per month for their maintenance.  Respondent appeared through a counsel and demurred that his marriage with the appellant was dissolved on December 30, 1964 by a decree of divorce granted by the Second Judicial District Court of the State of Nevada and for the County of Washoe, U.S.A.  He contended that the appellant had ceased to be his wife by virtue of that decree and, therefore, he was not liable to maintain her any longer. He expressed his willingness to take charge of the children and maintain them.  The Judicial Magistrate, First Class, Jullundur held by the judgment dated December 17, 1966 that the decree of divorce was not binding on the appellant as the respondent had not “permanently settled” in the State of Nevada and that the marriage between the appellant and the respondent could be dissolved only under the Hindu Marriage Act, 1955. The learned Magistrate directed the respondent to pay a sum of Rs. 300/- per month for the maintenance of the appellant and Rs. 100/- per month for each child. This order was confirmed in revision by the Additional Session Judge, Jullundur, on the ground that the marriage could be dissolved only under the Hindu Marriage Act.  In the third round of litigation, the husband succeeded in a Revision Application foiled by him in the High Court of Punjab and Haryana.

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 A learned single Judge of that Court found that “at the crucial time of the commencement of the proceedings for divorce before the Court in Nevada, the petitioner was domiciled within that State in united States of America”.  This finding is the corner stone of the judgment of the High Court. Applying the old English rule that during marriage the domicile of the wife, without exception, follows the domicile of the husband, the learned Judge held that since the respondent was domiciled in Nevada so was the appellant in the eye of law. The Nevada court had, therefore, jurisdiction to pass the decree of divorce  Is the decree of divorce passed by the Nevada Court in U.S.A., entitled to recognition in India?  The question is a vexed one to decide and it raises issues that transcend the immediate interest which the parties have in this litigation. Marriage and divorce are matters of social significance.  The answer to the question as regards the recognition to be accorded to the Nevada decree must depend principally on the rules of our Private International Law.  It is thus a truism to say that whether it is a problem of municipal law or of Conflict decided in accordance with Indian law. It is another matter that the Indian conflict of laws may require that the law of a foreign country ought to be applied in a given situation for deciding a case which contains a foreign element. Such a recognition is accorded not as an act of courtesy but on considerations of justice. It is implicit in that process, that the foreign law must not offend against our public policy.  The respondent petitioned for divorce in the Nevada court on November 9, 1964. The judgment of the Nevada court consists of four parts: (i)

The preliminary recitals;

(ii)

“Findings of Fact”;

(iii)

“Conclusions of Law”; and

(iv)

The operative portion, the Decree of Divorce”.

The preliminary recitals show that the respondent appeared personally and through his attorney, that the appellant “failed to appear or to file her answer or other responsive pleadings within the time required by law after having been duly and regularly served 129 | P a g e

with process by publication And mailings as required by law”, that the case came on for trial on December 30, 1964 and that evidence was submitted to the court for its decision. The next part of the judgment, “Findings of Fact”, consists of five paragraphs which, with minor modifications, are a verbatim reproduction of the averments contained in the respondent’s petition for divorce. The relevant portion of that petition is extracted above. The first paragraph of this part may usefully be reproduced: “That for more than six weeks preceding the commencement of this action, the plaintiff was, and now-is, a bona fide resident of and domiciled in the County of Washoe, State of Nevada with the intent to make the State of Nevada his –home for an indefinite period of time, and that he has been actually, physically and corporeally present in said county in said county and State for more than six weeks. The second paragraph of the part refers to the factum of marriage between the appellant and the respondent, the third contains the finding that 7.50 Dollars per month for each of the two minor children was a “reasonable sum for plaintiff to pay to defendant as and for the support, care, maintenance and education of the said minor children”, the fourth recites that there was no community property to be adjudicated by the Court and the fifth contains the findings: “That the plaintiff and defendant have lived separate and apart for more than three (3) consecutive years without co-habitation, and that there is no possibility of reconciliation between them.” The part of the Judgment headed “Conclusions of Law” consists of two paragraphs. The first paragraph states: “That this Court has jurisdiction over the plaintiff and over the subject matter of this section.” The second paragraph says: “That the plaintiff is entitled to the relief hereinafter granted.” The operative portion of the Judgment, “Decree of Divorce” says by its first paragraph: “That plaintiff, Teja Singh, be and he hereby is, given and granted a final and absolute 130 | P a g e

divorce from defendant, Satya Singh on the ground of their having lived separate and apart for more than three (3) consecutive years without cohabitation. Three being no possibility of reconciliation between them…… The second paragraph contains the provision for the payment of maintenance to the minor children. It is clear from the key recitals of the petition and the judgment that the Nevada Court derived jurisdiction to entertain and hear the divorce petition because it was alleged and held that the respondent was “a bona fide resident of and domiciled in the County of Washoe, State of Nevada, with the intent to make the State of Nevada his home for an indefinite period of time”.  Since we are concerned with recognition of a divorce decree granted by an American court, a look at the American law in a similar jurisdiction would be useful. It will serve a two-fold purpose: a perception of principles on which foreign decrees of divorce are accorded recognition in America and a brief acquaintance with the divorce jurisdiction in Nevada.  Foreign, decrees of divorce including decrees of sister States save been, either accorded recognition or have been treated as invalid, depending on the circumstances of each particular case. But if a decree of divorce is to be accorded full faith and credit in the courts of another jurisdiction it is necessary that the court granting the decree has jurisdiction over the proceedings. A decree of divorce is thus treated as a conclusive adjudication of all matters in controversy except the jurisdictional facts on which it is founded. Domicil is such a jurisdictional fact.  A. foreign divorce decree is therefore subject to collateral attack for lack of jurisdiction even where the decree contains the, findings or recitals of jurisdiction facts  To confer jurisdiction on the ground of plaintiff’s residence and entitle the decree to extraterritorial recognition, the residence must be actual and genuine, and accompanied by intent to make the State his home. A mere sojourn or temporary residence as distinguished from legal domicile is not sufficient.

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 A foreign decree of divorce is subject to collateral attack for fraud or for want of jurisdiction either of the, subject matter or of the parties provided that the attacking party is not stopped from doing S.  A foreign decree of divorce, obtained by fraud is void. Fraudulent simulation of domicile for the sole purpose who goes to a States or country other than that of the matrimonial domicile for the sole purpose of obtaining a divorce perpetrates a found, and the judgment is not binding on the courts of other States  Accordingly, a husband who did not become a bona fide resident of Nevada, who continued lease of his New Jersey apartment, who failed to transfer his accounts, who continued his business activities in New York City, and who departed from Nevada almost immediately after entry of divorce decree, was held never to have intended to estabilish a fixed and permanent residence in Nevada, and, therefore any proof, which he submitted to Nevada court in his divorce action, and on which such finding by court of bona fide residence was besed was held to constitute a fraud on such court (Idleman vs. Edelman, 161 N.Y. S. 2d 717).  Those decrees would not be lawful unless the Nevada court had jurisdiction to pass them. The jurisdiction of the Nevada court depended on whether Mr. Williams and Mrs. Hendrix were domiciled in Nevada at the time of the divorce proceedings. The existence of domicil in Nevada thus became the decisive issue.  While upholding the conviction recorded in North Carolina, Frankfurter J., speaking for the majority, said, (i)

A judgment in one State is conviction upon the merits in every other State, only if the court of the first State had jurisdiction to render the judgment;

(ii)

A decree of divorce passed in one State can be impeached collaterally in another State on proof that the court had no jurisdiction even when the record purports to show that it had jurisdiction;

(iii)

Under the American system of law. Judicial power of jurisdiction to grant. A divorce is founded on domicile; and

(iv)

Domicile implies a nexus between person and place of such permanence as to control the creation of legal relations and responsibilities of the utmost significance.

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The learned Judge observed:  “We conclude that North Carolina was to require yielding her State policy because a Nevada court found that petitioners were domiciled in Nevada when it granted them decrees of divorce.  North Carolina was entitled to find, as she did, that they did not acquire domiciles in Nevada and that the Nevada court was therefore without power to liberate the petitioners from amenability to the laws of North Carolina governing domestic relations.  “Murphy J. in his concurring judgment said: “No justifiable purpose is served by imparting constitutional sanctity to the efforts of petitioners to establish a false and fictitious domicile in Nevada….. And Nevada has no interest that we can respect in issuing divorce, decrees with extraterritorial effect to those who are domiciled elsewhere and who secure sham domiciles in Nevada solely for divorce purposes.”  Therefore, a foreign divorce decree may be attacked, and its invalidity shown, by proof that plaintiff did not have, or that neither party had, a domicile or bona fide residence in the State or country where the decree was rendered.  In order to render a foreign decree subject to a collateral attack on the ground of fraud, the fraud in procurement of the judgment must go to the jurisdiction of the court. It is necessary and sufficient that there was a fraudulent representation designed and intended to mislead and resulting in damaging deception. In America, in most of the states, the wife can have a separate domicile for divorce and it is easy enough for anyone, man or woman, to acquire a domicile of choice in another State.  The wife’s choice of a domicile may be fettered by the husband’s domicile but that means by a real, not a feigned domicile.  The period of over a century and half is marked by a variety of views showing how true it is that there is scarcely a doctrine of law which as regards a formal and exact statement is in a more uncertain condition than that which relates to the question as to what effect should be given by courts of one nation to the judgments rendered by the courts of another nation.

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 The wife was resident in the United States for a period of six years but United States for a period of six years but the domicile of the spouses, in the strict sense, was in England. The Nevada decree could be recognized as valid by the other States in American Constitution, there was no justification for the English courts to deny recognition to that decree. English courts have thus been attempting to free the law of divorce from the stranglehold of the Council rule.  The decree of divorce obtained by the respondent from the Nevada court is, prima facie, a complete answer to the appellant’s claim for maintenance under section 488, Code of Criminal Procedure. If that decree is valid the appellant’s claim for maintenance. But was the decree of divorce procured by fraud and if so, is it entitled to recognition here? That is the essence of the matter.  The Nevada court assumed and exercised jurisdiction to pass the divorce decree on the basis that the respondent was a bona fide resident of and was domiciled in Nevada. Domicile being a jurisdiction fact, the decree is open to the collateral attack that the respondent was not a bona fide resident of Nevada, much less was he domiciled in Nevada. 

The recital is the judgment of the Nevada court that the respondent was a bona fide resident of and was domiciled in Nevada is not conclusive and can be contradicted by satisfactory proof. The appellant did not appear in the Nevada court, was unrepresented and did not submit to the jurisdiction of that court.

 The record of the present proceeding establishes certain important facts:  The respondent left India for the United States of America ‘On January 23, 1959. He spent a year in a New York University. He then joined the Utah State University where he studied for his doctorate for 4 years. In 1964, on the conclusion of his studies he secured a job in Utah. On August 17, 1964 he wrote a letter (Ex. RW 7/1) to his father Gian Singh from “791 North, 6 East Logan, Utah”, U.S.A.  The respondent filed his petition for divorce in the Nevada court on November 9, 1964 and obtained a decree on December 30, 1964.  Prior to the institution of the divorce proceedings the rest) respondent might have stayed, but never lived. In Nevada. He made a false representation to the Nevada Court that he was a, bona fide resident of Nevada. Having secured the divorce decree, he left Nevada 134 | P a g e

almost immediately thereafter rendering it false again that he had “the intent to make the State of Nevada his home for an indefinite period of time’.  The appellant filed the maintenance petition on January 21, 1965. On November 4, 1965 the respondent applied exemption from personal appearance in those proceedings mentioning his address as “791 North, 6 East Logan, Utah, 228, 4 th, U.S.A.” The letter dated December 13, 1965 from the Under Secretary, Ministry of External Affairs, Government of India to one Lakhi Singh Chaudhuri, a Member of the Punjab Vidhan Sabha, shows that by then the respondent had taken a job as Research Officer in the Department of Forestry, Alberta, Canada.  The trial court decided the maintenance proceeding against the respondent on December 17, 1966. Early in 1967, the respondent filed a revision application in the Sessions Court, Jullundur mentioning his then address as “Dept. of Forestry, Public Building, Calgary, Alberta (Canada)”. The revision was dismissed on June 15, 1968. The respondent filed a further revision application in the High Court of Punjab & Haryana and gave the same Canada address.  Thus, from 1960 to 1964 the respondent was living in Utah and since 1965 he has been in Canada. It requires no great persuasion to hold that the respondent went to Nevada as a bird-of-passage, resorted to the court there solely to found jurisdiction and procured a decree of divorce on a misrepresentation that he was domiciled in Nevada.  In this view, the Le Measurer doctrine on which he High Court drew loses its relevance. The Privy Council held in that “the domicile for the time being of the married pair affords the only true test of jurisdiction to dissolve their marriage”. The High Court assumed that the respondent was domiciled in Nevada. It then applied the old English rule that the wife’s domicile in all events follows the domicile of the husband.  Deducing that the appellant must also be deemed to have been domiciled in Nevada, the High Court concluded that the Nevada court had jurisdiction to pass the decree of divorce.  To an extent, the appellant is to blame for her failure to put the plea of fraud in the forefront. If the fact-, referred to by us were pointed out to the High Court, it would probably have seen the futility of relying on the rule in Le Measurer and then in applying the principle that the wife takes the domicile of the husband. But facts on which we have 135 | P a g e

relied to show a lack of jurisdiction in the Nevada court are mostly facts to be found in the pleadings and documents of the respondent himself. Those incontrovertible facts establish that Nevada was not and could not be the home, the permanent home of the respondent. If the High Court were invited to consider the conduct and projects of the respondent it would have perceived that the respondent had merely simulated a domicile in Nevada. In that event, even applying the Le Measurer doctrine the Nevada court would have had no jurisdiction to pass the decree of divorce.  S.13 (a) of the Code of Civil Procedure, 1908 makes a foreign judgment conclusive as to any matter thereby directly adjudicated upon except “where it has not been pronounced by a court of competent jurisdiction”.  Learned counsel for the respondent urged that this provision occurring in the, Civil Procedure, Code cannot govern criminal proceedings and therefore the want of jurisdiction in the Nevada court to pass the decree of divorce can be no answer to an application for maintenance under section 488, criminal Procedure Code. This argument is misconceived.  The judgment of the Nevada court was rendered in civil proceedings and therefore its validity in India must be determined on the terms of s. 13. It is beside the point that the validity of that judgment is questioned in a criminal court and not in a civil court. If the judgment falls under any of the cls. (a) To (e) of section 13, it will cease to be conclusive as to any matter thereby adjudicated upon. The judgment will then be open to a collateral attack on the grounds mentioned in the five clauses of s. 13.  U/s. 13(e), Civil Procedure Code, the foreign judgment is open to challenge “where it has been obtained by fraud”. Fraud as to the merits of the respondent’s case may be ignored and his allegation that he and his wife “lived separate and apart for more than, three (3) consecutive years without cohabitation and that there is no possibility of a reconciliation” may be assumed to be true. But fraud as to the jurisdiction of the Nevada court is a vital consideration in the recognition of the decree passed by that court. It is therefore relevant that the respondent successfully invoked the jurisdiction of the Nevada court by lying to it on jurisdictional facts

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 Learned counsel for the respondent argued that judgments on status ire judgments in rem, that such is the character of Nevada judgment and therefore that judgment is binding on the whole world.  S. 41 of the Indian Evidence Act provides, to the extent material, that a. final judgment of a competent court in the exercise of matrimonial jurisdiction is conclusive proof that the legal character which it confers or takes away accrued or ceased at the time declared in the judgment for that purpose. But the judgment has to be of a “competent Court”, that is, a court having jurisdiction over the parties and the subject matter. Even a judgment in rem is therefore open to attack on the ground that the court which gave it had no jurisdiction to do so.  Unhappily, the marriage between the appellant and respondent has to limp. They will be treated as divorced in Nevada but their bond of matrimony will remain unsnapped in India, the country of their domicile. This view, it is urged for the respondent, will lead to difficulties. It may. But “these rules of private international law are made for men and women – not the other way round –and a nice tidy logical perfection can never be achieved” .  In the result we allow the appeal with costs set aside the judgment of the High Court and restore that of the trial court. Appeal allowed.

C. RavichandranIyer v. Justice A.M. Bhattacharjee 1995 SCC (5) 457  Supreme Court drew attention to the issue of "the hiatus between bad behaviour and impeachable behaviour."The case had to do with the allegation of unjustifiably high payments from a publisher to Chief Justice A.M. Bhattacharjee of the Bombay High Court. While Bhattacharjee resigned following an uproar, the Supreme Court emphasized the need to evolve a method of self-regulation by the judiciary in such cases of alleged misconduct.

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 According to the list of values articulated by the Courtjudges are expected not to contest elections to any office of a club, society or other association;to eschew close association with individual members of the Bar, particularly those who practice in the same court;not to permit any member of their immediate family, if he or she is a member of the Bar, to appear before them or even be associated in any manner with a case to be dealt with by them.  Judges are also expected to prohibit the use of their official residences or other facilities by members of their families who are members of the Bar, and to avoid hearing and deciding matters that involve members of their families or their friends.  Judges should practice a degree of aloofness consistent with the dignity of their office and avoid giving interviews to the media.  Also, judges are required to avoid speculating in shares or stocks or receiving gifts from persons other than their relatives and friends.  The Court also resolved that judges should make declarations in confidence to the CJI (in the case of the CJI, for the record) of all their assets in the form of real estate or investments (held by them in their own names or in the names of their spouses or persons dependent on them) within a reasonable time of assuming office.  In the case of sitting judges, the declaration was to be made within a reasonable time of adoption of the resolution.If any acquisition of a substantial nature was made thereafter, it was to be disclosed within a reasonable time.  The Supreme Court's experiment with its internal corrective mechanism began in May, when it set up a seven-member in-house disciplinary committee (whose composition is a secret).  It was not clear how it would deal with complaints of a serious nature against judges.If it found any allegation valid, then an option before the committee was to request the judge concerned to quit office.  In the event of his or her refusal, the Court would refuse to assign work to him or her, as it did in the Ramaswami case.  Only Parliament has the power to remove a judge of the Supreme Court or a State Assembly has the power to remove a judge of a High Court, by means of an impeachment motion. 138 | P a g e

 The court said that the role of the judge is not merely to interpret the law but also to lay new norms of law and to mould the law to suit the changing social and economic scenario to make the ideals enshrined in the Constitution meaningful and a reality. The society demands active judicial roles which formerly were considered exceptional but now a routine.

S. P. Gupta v. President of India AIR 1982 SC 149 The court observed: 

The interpretation of every statutory provision must keep pace with changing concept’s and values and it must, to the extent to which its language permits or rather does not prohibit, suffer adjustments through judicial interpretation so as to accord with the requirements of the fast changing society which is undergoing rapid social and economic transformation.



The court also went on to say that, “...law does not operate in a vacuum. It is therefore intended to serve a social purpose and it cannot be interpreted without taking into account the social, economic and political setting in which it is intended to operate. It is here that the Judge is called upon to perform a creative function. He has to inject flesh and blood in the dry skeleton provided by the legislature and by a process of dynamic interpretation, invest, it with a meaning which will harmonise the law with the prevailing concepts and values and make it an effective instrument for delivery of justice.”



It is clear from the above statements that, not only constitutional interpretation, but also statutes have to be interpreted with the changing times and it is here that the creative role of the judge appears, thus the judge clearly contributes to the process of legal development.



The courts do not always follow the precedent blindly and do not always consider themselves bound by the given principles. The court does evolve new principles. However, the courts do always have to follow within the limits of the constitution and they cannot exceed the constitutional limits. “When new societal conditions and factual

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situations demand the Judges to speak, they, without professing the tradition of judicial lock-jaw, must speak out.”

M.C. Mehta v. Union of India (Shriram - Oleum Gas case) A I R 1987 SC 965 The court said that with the development, fast changing society the law could not remain static, and that the law has to develop its own new principles. The above decision reflects that the courts do make law, they frame new principles; interpret the statutes and the constitution with the changing times. Finally, it can be summed up that, “The courts must not shy away from discharging their constitutional obligation to protect and enforce human rights of the citizens and while acting within the bounds of law must always arise to the occasion as ‘guardians of the constitution’, criticism of judicial activism notwithstanding.”

Sukhbir Singh & Ors. v.Brij Pal Singh & Ors. AIR 1996 SC 2510

Facts:  Suit for specific performance of the agreement  The first petitioner is a purchaser from the respondent of the land under registered sale deed dated March 10, 1975 with a contemporaneous agreement of reconveyance to the respondent within a period of two years from the said date.  The first respondent laid suit for specific performance pleading that despite his readiness and willingness the petitioner had avoided to sell back the property.  he pleaded that despite his making several requests to execute the sale deed on receiving sale consideration, the petitioner went on assuring to do the same but failed to execute the sale deed. 140 | P a g e

 Ultimately, when the petitioners had agreed to have the sale deed executed and get it registered in the office of the Sub-Registrar at Muzaffarnagar on March 9, 1997, the respondents kept waiting on that date for the petitioners to come and execute the sale deed but the petitioners did not turn up.  On an application moved by the respondents of their presence, the Sub-Registrar had entered their attendance in his office register on March 9, 1997.  Though the respondents tried to reach out the petitioners on March 10, 1997 the petitioners intentionally avoided to execute the sale deed in their favour.  Consequently, their efforts to have the property reconveyed failed.  The petitioners pleaded that though they had executed agreement of reconveyance, the same was cancelled by another agreement dated June 4, 1975, Ex. A-1.  They also pleaded that they were always ready and willing to perform their par of the agreement.  The respondents did not have sufficient means to pay the sale consideration of Rs. 47,6000/-.  The respondents filed the suit only to blackmail the petitioners.  The trial Court dismissed the suit holding that the respondents had failed to prove that they were willing to perform their part of the contract nor have they enough funds to repurchase the lands in dispute.  But on appeal, the additional District Judge in C.A.No.72/1992 allowed and decreed the suit on May 22, 1995 and decreed the suit andthe second appeal came to be dismissed by the High Court by the impugned order. Supreme court:  The respondents have not pleaded, as enjoined in Section 16 (1) (c) of the Specified Reliefs Act, 1963 (for short, the "Act) that the respondents had ready money for getting the sale deed executed. The decrees of the appellate Court as well as of the High Court are, therefore, bad in law.  The procedure is the hand-maid to the substantive rights of the parties.When the respondents had pleaded and proved by the by the Sub-Registrar's endorsement that the respondents were present in the office of the Sub-Registrar for having the sale deed 141 | P a g e

executed and registered by the petitioners, it would be explicit that the respondents were ready and willing to perform their part of the agreement., The facts that the petitioners did not attend the office would prove positively that the petitioners had avoided execution of the sale deed.  Law is not in doubt and it is not a condition that the respondents should have ready cash with them. The fact they attended the Sub-Registrar's office to have the sale deed executed and waited for the petitioners to attend the office of the Sub-Registrar is a positive fact to prove that they had necessary funds to pass on consideration and had with them the needed money with them for payment at the time of registration.  It is sufficient for the respondents to establish that they had the capacity to pay the sale consideration. it is not necessary to pay the sale consideration. It is not necessary that they should always carry the money with them from the date of the suit till date of the decree. It would, therefore, be clear that the courts below have appropriately exercised their discretion for granting the relief of specific performance to the respondents on sound principles of law.  The special leave petition is accordingly dismissed.

Satyadhan Goshal v Deorjin AIR 1960 SC 941

Facts:  In this case, a landlord won a decree against the tenants for eviction fromthe property but was not able to get possession and further then the act ofCalcutta Thikka Tenancy came into force.  An application was made by tenantsunder section 28 of the same act saying they were thikka tenants and theMunsiff ruled they were not and decree was not rescinded. By the time therevision came to place the ordinance and amendment of act omitting section 28had already come forward.

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 The court saw section1 clause 2 to see whether application under section 28 was still alive and answered in positive, held theappellants were Thikka tenants, allowed the revision application and remanded the case for Munsiff to decide according to law. Munsiff took back the earlierdecree after remand. High court then rejected the landlord's application against Munsif's orders and his question of applicability of section 28 was unsuccessful as thejudge held there was Res Judicata between the parties. Issue Does the fact that in an earlier stage a court has decided an interlocutorymatter in one way and no appeal has been taken therefore or appeal did lie anda higher court at a later stage of the same litigation consider the same matteragain? Principle of Judgment:  An interlocutory order which did not terminate theProceedings and which had not been appealed from either because no appeal was present or even though an appeal was present an appeal was not taken would be challenged in an appeal from the final decree or order.  Remand was anInterlocutory judgment which did not terminate the proceedings and so thecorrectness of it can be challenged in an appeal from the final order.

Bhanu Kumar Jain v. Archana Kumar   AIR 2005 SC 626

 Facts:  One Shri N.N. Mukherjee was the owner of the premises in suit. He died leaving behind his wife SmtSuchorita Mukherjee (original Defendant 1), son Shri P.P. Mukherjee (original plaintiff) and daughter SmtArchana Kumar (original Defendant 2).  The family is said to be governed by Dayabhaga school of Hindu law. The original plaintiff filed a suit for partition in the year 1976. The original defendants filed their 143 | P a g e

written statements. Respondent 2 herein, SurenderNath Kumar who is husband of SmtArchana Kumar, Respondent 1 herein also filed a written statement and counterclaim by setting up a plea of mortgage by deposit of title deeds in respect of property in suit said to have been created by his mother-in-law (original Defendant 1).  Smt. Suchorita Mukherjee died on 15-9-1984 whereupon Respondent 1 herein was transposed as Defendant 1, whereas Respondent 2 was transposed as Defendant 2 therein. In the suit, Defendant 1 did not file any document. Respondent 2 also did not file any document in support of his purported counterclaim. Issues:  (a) Whether partition of property owned by late Shri N.N. Mukherjee had taken place during his lifetime?  (b) If so, what property was available for partition?  (c) What were the shares allotted to the plaintiff and Defendant 1 in the said partition?  (d) Whether the plaintiff had separated from his father during his lifetime and was in separate possession of his share in the property?  Whether the plaintiff is entitled to 1/2 share and separate possession of his share in the property described in para 3 of the plaint?  Whether the plaintiff is entitled to claim mesne profits for the income derived by Defendant 1 from the share in the property? If so, at what rate and to what sum? Whether the claim in suit is barred by limitation?  Whether the decision in Civil Suit No. 63-A of 1972 decided on 22-11-1975 by IInd Civil Judge, Class II, Jabalpur will operate as res judicata in the present case?  Whether the suit is not maintainable as no relief has been sought against Defendant 2? ( b) Whether at the request of Defendant 1, Defendant 3 spent Rs 21,000 till 31-101974 on construction and alteration of the suit property and the interest as on 31-101974 came to Rs 10,000.00?  Whether in order to secure the above amount Defendant 1 deposited the title deeds of the suit property with Defendant 2 and created a mortgage by deposit of title deeds in favour of Defendant 3 and the suit property stands mortgaged with Defendant 3?

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(d) Whether Defendant 3 further spent Rs 9500 in the years 1976, 1977 and 1980 and Defendant 2 spent Rs 10,500.00?  (e) Whether Defendant 3 is entitled to get declaration shown as in paras 6(A), (B) and (C) of the written statement of Defendant 3?  ( f) Whether the mother of Defendant 2 had made Will in favour of Defendant 2 and thus, after the death of the mother, Defendant 2 became absolute owner and the plaintiff has no right?  ( g) Whether the plaintiff had already separated in the year 1951 and thus he has no right over the suit property?  Relief and costs?”  The respondents herein filed an application under Order 9 Rule 13 of the Code. The said application was dismissed holding that the defendants failed to prove good and sufficient cause for their absence on 7-10-1985. An appeal was also dismissed.  A civil revision application was also filed challenging the order dated 31-10-1985 whereby and whereunder the respondents’ application under Order 9 Rule 7 of the Code was dismissed. The said petition was also dismissed.  By reason of the impugned judgment, the High Court allowed First Appeal No. 109 of 1986 holding: o That the trial Judge has grossly erred in law by proceeding ex parte against the defendants. o The learned counsel further canvassed that Appellant 2 Surender Kumar, filed the counterclaim and therefore it was incumbent upon the learned trial Judge to decide the counterclaim filed by the defendant in view of the mandate contained in Order 8 Rule 6-D of the Code.  MrAnoop G. Chaudhari, learned Senior Counsel appearing on behalf of the appellant would submit that as the counterclaim filed by the defendants under Order 8 Rule 6-D of the Code was dismissed by the learned trial Judge, the first appeal should not have been entertained by the High Court at the instance of Respondent 2 and, thus, the impugned judgment must be set aside.

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 The learned counsel would urge that the subject matter of an application under Order 9 Rule 13 of the Code and the subject matter of the appeal being same, it is against public policy to allow two parallel proceedings to continue simultaneously.  As regards the counterclaim of Respondent 2 herein, MrChaudhari would contend that the same was directed only against his mother-in-law being the original Defendant 1, and, thus, it could not have been enforced against the plaintiff. The learned counsel in this connection has drawn our attention to Issue 5 framed by the learned trial Judge. Drawing our attention to the judgment of the learned trial Judge, it was argued that the High Court committed a manifest error in coming to the conclusion that the learned trial Judge did not determine the counterclaim, which in fact was done.  MrRanjitKumar, learned Senior Counsel appearing on behalf of the respondents, on the other hand, would contend that the respondents were entitled to maintain an appeal against the ex parte decree in terms of Section 96(2) of the Code. The learned counsel would argue that the High Court in its impugned judgment having arrived at a conclusion that the suit was directed to be proceeded ex parte only against Respondent 1 and not against Respondent 2; he was entitled to raise a contention as regards the legality or validity of the order dated 31-10-1985.  It was further submitted that in any event, the respondents herein were entitled to assail the judgment on merit of the matter. Drawing our attention to the provisions of Order 8 Rule 10 of the Code, the learned counsel would contend that even in a case where no written statement is filed, the court may direct the parties to adduce evidence in which event the court must pass a decree only upon recording a satisfaction that the plaintiff has been able to prove his case. If on the basis of the materials on record, MrRanjit Kumar would urge, the plaintiff fails to prove his case, the judgment would be subject to an appeal in terms of Section 96(2) of the Code which confers an unrestricted statutory right upon a party to a suit.  The learned counsel would further contend that the appellant herein has no locus standi to maintain this appeal as upon the death of the original plaintiff he was not substituted in his place. MrRanjit Kumar would submit that, in the event if it be held that the respondents are not entitled to question the order of the learned trial Judge to pass an ex

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parte decree against both the respondents, the matter may be remitted to the High Court for a decision on merit of the matter.  Order 9 Rule 7 of the Code postulates an application for allowing a defendant to be heard in answer to the suit when an order posting a suit for ex parte hearing was passed, only in the event, the suit had not been heard; as in a case where hearing of the suit was complete and the court had adjourned a suit for pronouncing the judgment, an application under Order 9 Rule 7 would not be maintainable.  It is true that the suit was not directed to be heard ex parte against Respondent 2 herein but it remains undisputed that both the respondents filed application for setting aside the ex parte decree before the learned trial Judge, preferred appeal against the judgment dismissing the same as also filed a revision application against the order dated 31-101985 setting the suit for ex parte hearing. The said applications and appeal had been dismissed. Even a special leave petition filed was dismissed as withdrawn. In that view of the matter it is not permissible for the respondents now to contend that it was open to Respondent 2 to re-agitate the matter before the High Court. The contention which has been raised by Respondent 2 before the High Court in the first appeal, furthermore, was not raised in the said application under Order 9 Rule 13 of the Code and even in the miscellaneous petition and the revision application filed in the High Court. Such a question having not been raised, in our opinion, the respondents disentitled themselves from raising the said contention yet again before the High Court in the first appeal.  An appeal against an ex parte decree in terms of Section 96(2) of the Code could be filed on the following grounds: o the materials on record brought on record in the ex parte proceedings in the suit by the plaintiff would not entail a decree in his favour, and o the suit could not have been posted for ex parte hearing.  In an application under Order 9 Rule 13 of the Code, however, apart from questioning the correctness or otherwise of an order posting the case for ex parte hearing, it is open to the defendant to contend that he had sufficient and cogent reasons for not being able to attend the hearing of the suit on the relevant date.  26.  When an ex parte decree is passed, the defendant (apart from filing a review petition and a suit for setting aside the ex parte decree on the ground of fraud) has two clear 147 | P a g e

options, one, to file an appeal and another to file an application for setting aside the order in terms of Order 9 Rule 13 of the Code.  He can take recourse to both the proceedings simultaneously but in the event the appeal is dismissed as a result whereof the ex parte decree passed by the trial court merges with the order passed by the appellate court, having regard to Explanation appended to Order 9 Rule 13 of the Code a petition under Order 9 Rule 13 would not be maintainable. However, Explanation I appended to the said provision does not suggest that the converse is also true.  In an appeal filed in terms of Section 96 of the Code having regard to Section 105 thereof, it is also permissible for an appellant to raise a contention as regards correctness or otherwise of an interlocutory order passed in the suit, subject to the conditions laid down therein.  It is true that although there may not be a statutory bar to avail two remedies simultaneously and an appeal as also an application for setting aside the ex parte decree can be filed; one after the other; on the ground of public policy the right of appeal conferred upon a suitor under a provision of statute cannot be taken away if the same is not in derogation or contrary to any other statutory provisions.  There is a distinction between “issue estoppel” and “res judicata”. Res judicata debars a court from exercising its jurisdiction to determine the lis if it has attained finality between the parties whereas the doctrine issue estoppel is invoked against the party. If such an issue is decided against him, he would be estopped from raising the same in the latter proceeding. The doctrine of res judicata creates a different kind of estoppel viz. estoppel by accord.  However, it appears that in none of the aforementioned cases, the question as regards the right of the defendant to assail the judgment and decree on merits of the suit did not (sic) fall for consideration. A right to question the correctness of the decree in a first appeal is a statutory right. Such a right shall not be curtailed nor shall any embargo be fixed thereupon unless the statute expressly or by necessary implication says so.  We have, however, no doubt in our mind that when an application under Order 9 Rule 13 of the Code is dismissed, the defendant can only avail a remedy available thereagainst viz. to prefer an appeal in terms of Order 43 Rule 1 of the Code. Once such an appeal is 148 | P a g e

dismissed, the appellant cannot raise the same contention in the first appeal. If it be held that such a contention can be raised both in the first appeal as also in the proceedings arising from an application under Order 9 Rule 13, it may lead to conflict of decisions which is not contemplated in law.  The dichotomy, in our opinion, can be resolved by holding that whereas the defendant would not be permitted to raise a contention as regards the correctness or otherwise of the order posting the suit for ex parte hearing by the trial court and/or existence of a sufficient case for non-appearance of the defendant before it, it would be open to him to argue in the first appeal filed by him under Section 96(2) of the Code on the merits of the suit so as to enable him to contend that the materials brought on record by the plaintiffs were 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. .  We, therefore, are of the opinion that although the judgment of the High Court cannot be sustained on the premise on which the same is based, the respondents herein are entitled to raise their contentions as regards merit of the plaintiff’s case in the said appeal confining their contentions to the materials which are on record of the case.   For the reasons aforementioned, we are of the opinion that although the judgment of the High Court is not sustainable, as the reasons in support thereof cannot be accepted, the High Court for the reasons assigned hereinbefore must examine the respondents’ claim on merits of the matter.  The appeal is, therefore, allowed, the impugned judgment is set aside and the case remitted to the High Court for consideration of the case of the parties on merit of the matter. As the suit is pending since 1976, we would request the High Court to dispose of the appeal at an early date and preferably within a period of three months from the date of communication of this order. No costs.

Bhagwandas Goverdhandas Kedia v. Giridharlal Purushottham das 1996 SCR (1) 656 149 | P a g e

Facts: Plaintiff offered to get certain goods supplied at Ahmedabad to defendants who acceptedthe offer at Khamgaon.  On defendants' failure to supply requisite goods, the plaintiff suedthem at Ahmedabad. A dispute arose as to where was contract formed at Khamgaon.  Where acceptance was given by defendants or at Ahmedabad where plaintiffs received acceptance. Issue: Whether the contract was formed at the place of acceptance or at the place where acceptance was received? Holding: The court held that the contract act does not expressly deal with the place where at contract is made.  The conversation over the telephone is analogous to the conversation.  When the parties are in presence of each other, where the negotiations are concluded by instantaneous speech in case of correspondence by post or telegram.  A third agencyintervenes which is responsible for effective transmission of letters at every instance.  However, in case of telephonic conversation once the connection has been established.  There is no need of any third agency to transmit the correspondence between the parties.  Hence as against cases of correspondence by post or telegram, in the present casewhere there was correspondence by telephone, a contract was formed when acceptance was duly communicated to the offeror and hence at Ahmedabad. 

Sopan Sukhdeo Sable and Ors. v.  Assistant Charity Commissioner and Ors. AIR 2004 SC1801 Facts: o Plaintiffs are claimed to be tenants under respondent No. 2. Shaneshwar Deosthan Trust. o ......Its trustees and the Assistant Charity Commissioner were the other defendants. 150 | P a g e

o Plaintiffs claimed that they were tenants of the trust of which the defendants Nos. 3 to 13 were the trustees. o

Alleging that they have been forcibly evicted notwithstanding continuance of the tenancy,

o ......declared as the tenants of the properties...... belonging to temple Trust, o .........permanently restrained by an order of injunction o ..........not to evict forcibly with the help of police o and also not to interfere in their business being carried on by them in suit shops, o and not to interfere in the possession of suit shops in any manner-whatsoever   o Defendant No. 1 be directed to enquire into the illegal acts, committed by other defendants and issue appropriate direction to that effect. Plea of Defendants: o There was no forcible dispossession as claimed o An application was filed by the trust o .......raising a preliminary plea o ....... plaint is liable to be rejected under Order VII Rule 11 of the Code. o

Acc to ...... Section 80 of the Bombay Public Trusts Act, 1950

o it was urged that o .........no Civil court had jurisdiction to decide or deal with any question o

which by or under the Act is to be decided or dealt with by any officer or authority under the Act

o and in respect of which the decision or order of such officer of authority has been made final and conclusive.

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Preliminary Issues:  whether the suit was liable to be rejected for want of cause of action?  whether the suit was enable against all the defendants Finding of Trail Court:  

....... in respect of the preliminary issues were recorded against the plaintiffs. ............the plaint does not disclose any cause of action



the jurisdiction vests only with the District Court to give direction to Commissioner



and in any event Section 80 of the Act took away jurisdiction of the Civil Court and the plaint was rejected. 



Challenged the judgment and decree



.............an appeal was preferred before the District court



The appeal dismissed & trial court order confirmed



The matter was carried in Second Appeal



......... before the High Court which by the impugned judgment upheld the findings recorded by the Courts below

Before Supreme Court 

.......... it was contended by the appellants that Sections 50, 51 and 80 of the Act



.......had no application and the lease being for 11 years



...........the action of the trust in dispossessing the plaintiffs forcibly cannot have the approval of law.



The stand of the trust was to the effect that the plaintiffs have not approached the Court with clean hands.



......Order VII Rule 11 of the Code



....... to keep out of courts irresponsible law suits.

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

Therefore, the Order X of the Code is a tool in the hands of the Courts by resorting to which and by searching examination of the party



in case the Court is prima facie of the view that the suit is an abuse of the process of the court



in the sense that it is a bogus and irresponsible litigation,



the jurisdiction under Order VII Rule 11 of the Code can be exercised.

Contention of Respondent: 

The plaint......... clearly overlooks the basic distinction between statements of the facts disclosing cause of action



and the reliefs sought for. The reliefs claimed do not constitute the cause of action.



This is a matter which can be considered in the trial itself so far as it is relevant.



.....further submitted.....



in any event the District Court was the only Court having jurisdiction



and not the Court where the suit was filed.



This aspect does not appear to have been specifically urged before the Courts below

Finally  The question of forcible possession as claimed is also a matter  which can be pressed into service by the parties before the trial Court  and if raised the Court shall  deal with it considering its relevance to the suit and accept it  or otherwise reject the plea in accordance with law.  Looking into the nature of dispute ......  it would be appropriate...

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 if the trial Court makes an effort to complete the trial within six months  .... from the date of the judgment.  The parties are directed to cooperate for disposal of the suit early within the stipulated time.  The appeal is allowed to the extent indicated without any order as to costs.

Revateeju builders & Developers v. Narayanaswamy & sons (2009)10 SCC 814 Facts: 

……… for recovery of Rs. 52,97,111/- with interest at the rate of 18% per annum from the date of filing of suit till payment.



…… alternatively had taken the plea that if the court for any reason comes to the conclusion that a decree for a sum of Rs. 52,97,111/- cannot be passed as prayed by the appellant against respondents



then the court may at least pass a decree for Rs. 19,12,500/- with interest at the rate of 18% from the date of suit till the date of realization ……



claimed that it be declared absolute owner of the scheduled property



on the basis of the sale deed dated 30.9.1987.



The sale deed was executed by the respondents



after obtaining permission from



the State of Karnataka under the provisions of the Urban Land (Ceiling & Regulation) Act, 1976.

During pendency of suit  A petition in public interest was filed by one S. Vasudeva 154 | P a g e



………challenging the aforementioned transfer of land.



……… in those proceedings



held that the sale deed executed by the respondent in favour of the appellant on 30.9.1987 is held…… invalid and inoperative.



It may be pertinent to mention that



……..after the institution of the suit, the Urban Land (Ceiling and Regulation) Act, 1976



…… has been repealed.



………after the Act has been repealed……



the appellant filed an application under Order VI Rule 17



…….seeking leave of the trial court to add few prayers



and to delete certain paragraphs in the plaint and also to delete the prayer



to declare that ………the defendants are trespassers



…… mandatory injunction directing the defendants to vacate and deliver to the plaintiff,



………vacant and peaceful possession of the building within 30 days; and



to issue a permanent injunction restraining the defendants



The trial court…….allowed application for amendment filed under Order VI Rule 17 CPC.



The respondents aggrieved by the said order



……. Preferred…… writ petition



ground that the amendment as sought and granted has changed the entire nature of the suit and cause of action.



……… also submitted that



the fact of allowing amendment would be taking away admissions in the plaint by the appellant

155 | P a g e



and such an amendment cannot be permitted by any court of law

Before High Court 

The respondents submitted........



....... the original suit was instituted for recovery of Rs. 52,97,111/-.



Alternatively, .... Declare......... absolute owner



based on the basis of sale deed dated 30.9.1987



and direct the respondents to deliver vacant possession of the plaint schedule property.



.... that means......the respondents are in possession of the entire suit property.



by virtue of the amendment........



.........the appellant is trying to contend



...... that the respondents are to be treated as trespassers



...... and unauthorized occupants of the building in question



..........trying to introduce a new case



……..which would certainly affect the rights of the respondents



when the appellant had earlier requested the court to pass a decree



….for possession of the entire property.

High Court Order 

.........conclusion....... that the appellant while seeking permission to amend the plaint is trying to introduce a new case



which was not his case in the original plaint and



proposed amendment if allowed would certainly affect the rights of the respondents adversely.



in the impugned judgment,

156 | P a g e



……..High Court also held that



…….the appellant cannot be permitted to withdraw the admissions made in the plaint



……….as it would affect the rights of the respondents



further ….held that any such amendment.......



 which changes the entire character of the plaint cannot be permitted ........



........ set aside the order of the trial court which allowed the amendment under Order VI Rule 17 CPC.



Being aggrieved by the impugned judgment,

Preferred an appeal....... 

..........was only for refund of sale consideration and alternatively for possession.



........ also submitted that the relief for possession was always there



although it was in respect of the entire land which is sought to be amended



........ that the amendment is necessary to elucidate the real points in controversy.



 ......the amendment ......will not cause any prejudice



..... stand taken up by the respondents is totally dishonest, wrong and not bona fide.



.........that the court should be liberal in allowing amendments



and the respondents be compensated by costs.



The original plaint expressly so avers and relies



.......on Section 65 of the Contract Act



....clearly admitting that the sale deed has become void.



This admission is now sought to be got rid off and the sale deed is sought to be asserted as valid.



It was submitted that the appellant cannot, therefore, seek any amendment of the plaint

157 | P a g e



relying on the circumstances as to the earlier decision having been overruled by seeking amendment of the plaint.



This has the effect of changing the character of the suit and also omitting an admission made



Respondents filed written statement to the original plaint.



They prayed the court to pass a decree in favour of the appellant for a sum of Rs. 27,30,339.45/.



This is an admission of the respondents in favour of the appellant to an extent of Rs. 27,30,339.45/-.



The appellant now cannot be permitted to take a complete somersault.



All Rules of the Court..…….intended to secure the proper administration of justice,



and it is therefore essential that they should be made to serve and be subordinate to that purpose,



so that full powers of amendment must be enjoyed and should always be liberally exercised



but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another,



nor to change, by means of amendment, the subject-matter of the suit.



The first condition which must be satisfied before the amendment can be allowed by the court is



whether such amendment is necessary for the determination of the real question in controversy.



If that condition is not satisfied, the amendment cannot be allowed.



This is the basic test which should govern the courts' discretion in grant or refusal of the amendment.



The other important condition

158 | P a g e



which should govern the discretion of the Court is the potentiality of prejudice or injustice which is likely to be caused to other side.



whether the amendment sought is imperative for proper and effective adjudication of the case;



whether the application for amendment is bona fide or mala fide;



the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money



refusing amendment would in fact lead to injustice or lead to multiple litigation;



whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and 



as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.



These are some of the important factors



which may be kept in mind



while dealing with application filed under Order 6 Rule 17.



These are only illustrative and not exhaustive." 



………very serious judicial exercise and the said exercise should never be undertaken in a casual manner.



while deciding applications for amendments



the courts must not refuse bona fide, legitimate, honest and necessary amendments



and should never permit mala fide, worthless and/or dishonest amendments



apply these parameters to the present case,



then the application for amendment deserves to be dismissed



with costs of Rs. 1,00,000/-



because the respondents were compelled to oppose the amendment application before different Courts.

159 | P a g e



This appeal being devoid of any merit is accordingly dismissed with costs.

Kailash v. Nanhku AIR 2005 SC 2441 Facts:  .....Elections of Uttar Pradesh Legislative Council were held pursuant to the Presidential notification dated 7.11.2003.  The appellant was declared elected.  Respondent filed an election petition  under Section 80 of the Representation of the People Act, 1951  ........laying challenge to the election of the appellant.  ........ was served with the summons, .....accompanied by a copy  ...........requiring his appearance before the Court on 6.4.2004.  ..........On the appointed day,  the appellant appeared through his counsel  and sought for one month's time ....  ............for filing the written statement  ........ allowed time till 13.5.2004 for filing w/s.....  On 13.5.2004, .... again filed an application seeking further time for filing .........  ........on the ground that copies of several documents were required to be obtained.  The Court adjourned the hearing to 3.7.2004  in between, from 13.5.2004 to 2.7.2004,  .......The high Court was closed for summer vacation. 160 | P a g e

 On 22.6.2004, appellant's advocate's nephew expired.  However, the written statement was drafted and kept ready for filing.  The registered clerk of the advocate was deputed for filing the same in the Court on the appointed day.  .......on account of lack of understanding on the part of the registered clerk,  the written statement could not be filed on 3.7.2004  .....but the same was filed on 8.7.2004 .....along with application for Condonation of delay .....  .......On 23.8.2004, the High Court rejected the application  .........filed by the appellant and refused to take the written statement on record  .........for the reason that the same was filed beyond a period of 90 days from the date of service of summons  Feeling aggrieved by the said order,  the winning candidate ........ before ........, S.C......  has filed this appeal Issue......  Whether the time limit of 90 days as prescribed by the Proviso appended to Rule 1 of Order VIII of the CPC is mandatory or directory in nature?  Order VIII....does not deal with the power of the court  and also does not specifically take away the power of the court  to take the written statement on record  Though.. filed beyond the time as provided for...  ....the nature of the provision contained in Order VIII, Rule 1 is procedural.  .......It is not a part of the substantive law 161 | P a g e

 the object behind substituting Order VIII, Rule 1  ....... in the present shape is to curb the mischief of unscrupulous defendants  .......adopting dilatory tactics, ........delaying the disposal of cases  much to the chagrin of the plaintiffs ....... .......approaching the court for quick relief and  also to the serious inconvenience of the court faced with frequent prayers for adjournments.  ....is to expedite the hearing and not to scuttle the same.  The process of justice may be speeded up and hurried  ......but the fairness which is a basic element of justice cannot be permitted to be buried  .....Considering the object and purpose behind enacting Rule 1 of Order VIII in the present form and the context in which the provision is placed,  ...... opinion that the provision has to be construed as directory and not mandatory.  Ordinarily, the time schedule prescribed by Order VIII, Rule 1 has to be honoured.  The defendant should be vigilant.....  The extension of time sought for by the defendant from the court whether within 30 days or 90 days,  should not be granted just as a matter of routine  ......when the period of 90 days has expired.  The extension can be only by way of an exception  ......and for reasons assigned by the defendant  and also recorded in writing by the Court to its satisfaction.  The extension of time shall be  .........only by way of exception ...and for reasons to be recorded in writing

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 The court may impose costs for dual purpose  i) to deter the defendant from seeking any extension of time just for asking and  (ii) to compensate the plaintiff for the delay and inconvenience caused to him.  ...... hold that Order VIII Rule 1,  though couched in mandatory form,  ......is directory being a provision in the domain of processual law.  The purpose of providing the time schedule for  ........ is to expedite and not to scuttle the hearing.  The provision spells out a disability on the defendant.  It does not impose an embargo on the power of the Court to extend the time.  Though, the language of the proviso to Rule 1 of Order VIII of the CPC is couched in negative form,  it does not specify any penal consequences flowing from the non- compliance.  The provision being in the domain of the Procedural Law,  it has to be held directory and not mandatory.  The power of the Court  to extend time for filing the written statement  beyond the time schedule  provided by Order VIII, Rule 1 of the CPC is not completely taken away  Extension of time may be allowed  if it was needed to be given for the circumstances which are exceptional,  occasioned by reasons beyond the control of the defendant  and grave injustice would be occasioned if the time was not extended 163 | P a g e

 written statement shall now be taken on record  but subject to payment of Rs.5000/- by way of costs payable by the appellant herein to respondent  ...Appeal allowed

SMT. ISABELLA JOHNSON v. M.A. SUSAI 1991 AIR 993

Facts:  The Respondent-landlord filed a suit under the Andhra Pradesh Rent Control Act for recovery of possession and for mesne profits.  The appellant-defendant raised a preliminary objection that the City Civil Court had no jurisdiction to entertain the suit. In the two eviction petitions filed earlier by the appellant, the Respondent took the plea that since Section 3 of the A.P. Rent Control Act hit the alleged tenancy, eviction suit was not entertainable by the Rent Controller.  Decreeing the suit in favour of the appellant, the trial Court held that it was not open to the Respondent to take such inconsistent plea regarding jurisdiction; that he cannot be allowed to approbate and reprobate and he was estopped from doing so.  On appeal by respondent, the First Appellate Court upheld the decision.  On a second appeal preferred by the respondent, the High Court reversed the trial court’s order. Aggrieved by the decision of the High Court, the appellant preferred this appeal, by special leave, contending that the principles of Res Judicata and estoppel were applicable.  Dismissing the appeal, this Court, held: 

A court, which has no jurisdiction in law, cannot be conferred with the jurisdiction by applying principles of res judicata. It is well settled that there can be no estoppel on a pure question of law.



In the instant case, the question of jurisdiction is a pure question of law. The High Court was right in its conclusions that in matters of jurisdiction to entertain the suit, doctrine of estoppel could not be invoked; and that the

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City Civil Court had no jurisdiction to entertain the suit, as it lay exclusively within the jurisdiction of the Rent Controller.  The Court observed: "It is true that in determining the application of the rule of res judicata the Court is not concerned with the correctness or otherwise of the earlier judgment.  The matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened.  A mixed question of law and fact determined in the earlier proceeding between the same parties may not, for the same reason, be questioned in a subsequent proceeding between the same parties.  But, where the decision is on a question of law, i.e. the interpretation of a statute, it will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same, for the expression "the matter in issue" in S. 11 of the Code of Civil Procedure means the right litigated between the parties, i.e. the facts on which the right is claimed or denied and the law applicable to the determination of that issue.  Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule of res judicata, for a rule of procedure cannot supersede the law of the land."  According to SC opinion a court which has no jurisdiction in law cannot be conferred with the jurisdiction by applying principles of res judicata. It is well settled that there can be no estoppel on a pure question of law and in this case, the question of jurisdiction is a pure question of law. In our view, therefore, the High Court was, with respect, right in its conclusions arrived at and the appeal must be dismissed. The appeal is dismissed. Looking to the facts and circumstances of the case there will be no order as to costs.

Sushil Kumar Mehta v. Gobind Ram Bohra (dead) through his Lrs., 165 | P a g e

[1990] 1 SCC 193. Facts In this case, the respondent filed a suit (before senior sub-judge) for the ejection of the appellant and also the arrears due to his non-payment of rent. The decision to the suit was given ex parte.  The

application

under

Order

9,

Rule

13

C.PC

to

set

aside

the

ex.

parte decree was dismissed and was confirmed on appeal and later in revision by the High Court. When the respondent came for execution of ejectment the appellant  objected that according to him the Controller under the Act was the competent authority.  regarding claims for ejectment and by necessary implication, the civil Court was divested of jurisdiction to take cognizance and pass a decree for ejectment.  That objection was overruled on a further revision to the High Court also failed.  Simultaneously the appellant had also filed a writ petition under article 227 of the Constitution which was alsodismissed.  The plaintiff then filed an appeal by special leave to the Supreme Court Issue Whether the doctrine of res judicata applies to a case of a decree of nullity?. Judgment  A question related to jurisdiction of a court or interpretation of provisions of a statute cannot be deemed to have been finally determined by an erroneous decision of a court.  Therefore, the doctrine of res judicata does not apply to a case of a decree of nullity of the court inherently lacks jurisdictionand consent cannot confer jurisdiction. Where 166 | P a g e

certain statutory rights in welfare legislation are created, the doctrine of waiver also does notapply to a case of decree where the court inherently lacks jurisdiction.  Therefore, in the instant case though the decree was passed and the jurisdiction of the court was gone into an issue at the ex parte trial, the decree thereunder is a nullity and does not bind theappellant. Therefore, it does not operate as res judicata. .

Oriental Aroma Chemical Industries Ltd. v Gujarat Industrial Development Corporation MANU /SC/0141/2010 Issue: •

Whether the Division Bench of Gujarat High Court was justified in condoning more than four years' delay in filing of appeal by the respondents against judgment and decree dated 30.10.2004 passed by Civil Judge

Facts: •

The appellant was allotted a piece of land for setting up an industrial unit at Ankleshwar

•

subject to the terms and conditions embodied in agreement of licence dated 2.4.1976

•

demanded Rs.2,69,895/- towards water charges.

•

For next 10 years, the parties entered into long correspondence on the issue of levy of water charges, etc.

•

Finally, respondent issued bill dated 13.1.1996 requiring the appellant to pay Rs.22,96,207/- towards water charges.

•

The appellant challenged the same and filed a suit.

•

The summons issued by the trial Court were duly served upon the respondents

•

but no written statement was filed on their behalf to controvert the averments contained in the plaint and

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•

none appeared on the dates of hearing despite the fact that the case was adjourned on more than one occasion.

•

The suit was finally decreed on 30.10.2004 and it was declared that the appellant is not liable to pay Rs.22,96,207/- by way of minimum charges for water for the period between 1978 and 16.4.2001

•

On 18-11- 2008 respondents filed an appeal against judgment and decree dated 30.10.2004

•

They also filed an application under Order 41 Rule 3A of the Code of Civil Procedure read with Section 5 of the Limitation Act for condonation of delay

•

it seems that because of numerous transfers as well as it is also possible that the party might have arranged or joined hands with some employee of the Corporation and thereby after engaging advocate, nobody has gone to the advocate for the purpose of giving instruction or filing the written statement and as a result thereof, decree is passed

•

That a long span from 30.10.2004 to 18.11.2008, practically four years time is passed and this has happened only because of some mistake or mischief on the part of the staff and, therefore, the appeal could not be preferred

•

application for condonation of delay under Order 41 Rule (3A) read with Section 5 of the Limitation Act. As a matter of fact, the petitioner company being a Government Corporation is bound to follow the rules and regulations as it is and cannot deviate itself from the provisions of law. As a matter of fact in filing the present First Appeal there is a delay of more than 4 years. Moreover, in the second suit, the decree and judgment is already passed and thereafter now the petitioner has no right to challenge the order

•

But for the reasons best known to the appellant the correct number of days has not been mentioned in the condonation of delay application. As a matter of fact, the petitioner being a Government Corporation has to follow the rules and regulations strictly and is required to give proper explanation as to why the Appeal has not been preferred within the time frame

•

said application is required to be dismissed in limine.

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High Court order: •

satisfied that sufficient cause is made out by the applicant for condonation of delay. Over and above, in view of the fact that reasons mentioned in this application have not been controverted by the other side and also in view of the principles governing the discretionary exercise of power under Section 5 of the Limitation Act, 1963, we are of the view that sufficient cause has been stated for not filing the appeal in time and hence, delay caused in filing appeal is to be condoned and the application is required to be allowed

•

the respondents should not be penalized simply because the advocates appointed by the Corporation did not bother to file written statement and appear before the trial Court on the dates of hearing.

•

The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay

•

The expression "sufficient cause" employed in Section 5 of the Indian Limitation Act, 1963 and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice.

Before Supreme Court: •

it is to be seen whether the respondents had offered any plausible/tangible explanation for the long delay of more than four years in filing of appeal and the High Court was justified in condoning the delay.

•

impugned order makes it clear that the High Court did make a bald reference to the application for condonation of delay filed by the respondents but allowed the same without adverting to the averments contained therein and the reply filed on behalf of the appellant.

•

set aside the impugned order and remitted the case to the High Court for fresh disposal of the application filed by the respondents under Section 5 of the Limitation Act but, do not

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consider it proper to adopt that course, because as will be seen hereinafter, the respondents did not approach the High Court with clean hands •

the High Court committed grave error by condoning more than four years' delay in filing of appeal ignoring the judicially accepted parameters for exercise of discretion under Section 5 of the Limitation Act.

•

In the result, the appeal is allowed

C.F. Angadi v. Hirannayya AIR 1972 S.C 239 Facts:  Sale agreement executed between the plaintiff and defendant  Suit filed by the plaintiff for specific performance ........  Trail court decreed the suit.....  Defendant filed an appeal before H.C....  During pendency of appeal......  As matter in controversy between the parties  ……….in the appeal turns upon the construction of the compromise decree,  The defendant agrees to receive from the plaintiff a lakh of rupees paid as consideration for the sale of the property  The period of time fixed for the payment by the plaintiff to the defendant of-this amount stated above is from 10-3-1947 till 1-1-1960.  The plaintiff agrees to deposit the amount in court for payment to the defendant  On failure of the plaintiff to deposit the amount in court by 1-1-1960 his suit now in appeal will be dismissed with costs throughout.  It is agreed by the parties that time is the essence of the contract and no further extension of time would be allowed and the dismissal of the suit with costs would be automatic 170 | P a g e

 The respondent applied for challan on 22-12-1959 to deposit the amount  and a challan was issued to him on 24-12-1959,  the last working day before the court closed for Christmas holidays.  December 31, 1959 and January 1, 1960, were holidays.  Neither the lower courts nor the banks were open on these days.  The respondent made the deposit on 2-1-1960  ……and sought to enforce his right under the decree  by compelling the appellant to execute the conveyance in terms of the compromise decree by filing execution case No. 25 of 1960  The appellant also filed execution case No. 45 of 1960 ……. for cost on the basis that the suit stood dismissed as per the provision in the decree on the failure of the respondent to deposit the amount by 1-1-1960.  These two petitions were heard together,  and the court passed an order 

holding that the respondent had made the deposit in substantial compliance with the decree and allowing execution case No. 25 of 1960 and dismissing execution case No. 45 of 1960.

 Against this order, the appellant filed Appeals ……before the High Court of Mysore.  A Division Bench of the High Court, by its judgment ……. dismissed the appeals with costs Issue: •

whether the deposit made by the respondent on 2-1-1960 was within the time specified in the compromise decree

•

and would enable him to compel the appellant to execute the sale deed in accordance with the provisions of the compromise decree.

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Arguments of the Appellant •

………. that the respondent had practically six month's time to deposit the amount,

•

that he should not have waited for the last day of the period allowed to him by the decree

•

to deposit the amount

•

and if he was not diligent to deposit the amount earlier,

•

he must suffer the consequences if the court happened to be closed on the last day on which he should have made the deposit

Respondent Arguments: •

………..said that there is a distinction between a case where under a decree

•

an act has to be performed by a party on a day certain

•

and a case where the party has the liberty to perform the act within a certain time or by a certain day;

•

that in the former case, if the act cannot be performed by reason of circumstances beyond his control,

•

he will be relieved against the consequences of his default by reason of the maxim Lex non cogit ad impossibility (the law does not compel a man to do that which he cannot possibly perform)

•

if he performs the act at the next available opportunity

•

but where he has to perform an act within a certain period or by a certain date as in this case,

•

the law will not take notice of the circumstance that the act became incapable of performance by reason of circumstances beyond his control on the last day of the period.

•

Whether there is any logical or reasonable basis for making the distinction,

•

…….. clear that in this case the respondent had the right or, perhaps, more accurately, the liberty to deposit the amount in court till and including 1-1-1960.

172 | P a g e

•

……….the execution court has the right to construe a decree in the light of the applicable provisions of law

•

and if in this case on a construction of the decree in the light of the applicable provision of law,

•

it found that the deposit made by the respondent on 2-1-1960 was according to law a deposit in compliance with the terms of the decree,

•

then the execution court was not varying the terms of the decree but executing the decree as it stood after considering the effect of the deposit in the light of the relevant law.

•

……there is no evidence in this case that at the time when the compromise was entered into,

•

………..either of the parties knew that the 31st of December, 1959 and the 1st of January, 1960, would be holidays.

•

In these circumstances ………that the deposit made by the respondent on 2-1-1960 was in substance and in effect a deposit made in terms of the compromise decree

•

and that the High Court was right in its conclusion.

•

…….dismiss the appeals but in the circumstances without any order as to costs.

Basawaraj v. Land Acquisition Officer (2013) 14 SCC 81 Facts: •

An appeal for enhancement of compensation

•

in land acquisition matters

•

Appellant-landowners preferring appeal before High Court

•

after delay of five and a half years for enhancement of compensation

•

- High Court rejected

173 | P a g e

•

the application for condonation of delay

•

and consequently appeal of the appellant-landowners

•

- Before Supreme Court

•

they contended that ….High Court erred in not condoning delay

•

whereas in earlier cases it had condoned delay by depriving landowners from interest for the delay period

•

Approach of courts while condoning delay

•

Held, discretion to condone delayhas to be exercised judiciously

•

based on facts and circumstances of each case

•

`Sufficient cause' cannot be liberally interpreted if negligence, inaction or lack of bona fides is attributed to the party -

•

Even though limitation may harshly affect rights of a party

•

but it has to be applied with all its rigour when prescribed by statute –

•

Courts have no choice but to give effect to the same –

•

Result flowing from statutory provision is never an evil –

•

Inconvenience not ground for interpreting a statute - Courts do not have power to extend period of limitation based on equitable grounds -

•

If courts start substituting period of limitation

•

then it would amount to legislation, which is impermissible

•

If party acted with negligence, lack of bona fides or inaction then there cannot be any justified ground for condoning the delay

•

There is no justification in condoning delay by imposing conditions

•

Each application for condonation of delay

•

has to be decided within the framework laid down by Supreme Court –

174 | P a g e

•

If courts start condoning delay where no sufficient cause was made out

•

by imposing conditions then that would amount to violation of statutory principles and showing utter disregard to legislature,

•

Distinction between sufficient cause and good cause

•

Held, sufficient cause means a cause for which a party could not be blamed for his absence –

•

A party should not have acted with negligence or lack of bona fides –

•

Degree of proof is less in case of good cause whereas it is higher in case of sufficient cause

•

Held, it is founded on public policy with aim of securing peace,

•

to suppress fraud and perjury,

•

to quicken diligence and

•

to prevent oppression –

•

It seeks to bury all acts of the past which have not been agitated unexplainably and have become stale due to lapse of time,

•

Held, any order on condonation of delay without considering sufficient cause unwarranted - Under these circumstances High Courts must appreciate that they were deciding an application under Limitation Act and not writ petitions where condonation of inordinate delay in exceptional circumstances is permissible.

•

Benefit of illegal or irregular order cannot be extended to those who are similarly situated As appellant-landowners had not made out sufficient cause, rejection of their application for condonation of delay was justified.

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G. Ratna Raj (d) by Lrs. v. Muthukumarasamy Permanent Fund Ltd., JT 2019 (3) SC 524 Facts:  The original appellantG Ratna Raj (since dead and now represented by his legal representatives) was the plaintiff whereas respondent No.1 was defendant No.1 in the civil suit out of which these appeals arise.  Respondent No.2 is impleaded as party respondent in this Court by order dated 06.02.2014.  The original plaintiff (appellant herein)G Ratna Raj filed a Civil Suit No.131/1999 against the defendants (Sri Muthukumaraswamy Fund Ltd.Respondent No.1 herein and Balajee & Ors.) in the High Court of Madras on its original side jurisdiction for redemption of mortgage and for permanent injunction in relation to the mortgaged property.

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 The defendants on being served entered their appearance and filed their written statement. The Trial Court, on the basis of pleadings, framed the issues. The plaintiff examined himself as PW1. The defendants cross-examined the plaintiff. Thereafter, the plaintiff closed his case. The case was accordingly posted for recording defendants' evidence.  At that stage of the proceedings, the defendants did not appear in the suit and, therefore, the Court proceeded ex parte against them. The proceedings in the suit then continued as ex parte against the defendants. The plaintiff then got himself reexamined in the proceedings. He, however, could not be recross-examined by the defendants because they were already proceeded ex parte in the proceedings.  The Trial Court (Single Judge) by judgment/decree dated 25.02.2003 passed a preliminary decree against the defendants in relation to the suit property.  Defendants filed for condonation of delay in filing the application under Order 9 Rule 13 of the Code.

 the Single Judge dismissed both the applications and held that the application filed by defendant No.1 under Order 9 Rule 13 of the Code was not maintainable because the preliminary decree dated 25.02.2003 was not an "ex parte decree".  Defendant No.1 felt aggrieved and filed appeals before the Division Bench of the High Court. By impugned order, the Division Bench allowed the appeals and set aside the order of the Single Judge.  The Division Bench held that the preliminary decree dated 25.02.2003 was an ex parte decree passed in the civil suit by the Trial Court (Single Judge) and, therefore, the application filed by defendant No.1 under Order 9 Rule 13 of the Code was maintainable

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with a view to find out as to whether such decree could be set aside under Order 9 Rule 13 of the Code or not.  The Division Bench, therefore, allowed the application filed by defendant No.1 under Order 9 Rule 13 of the Code subject to their paying a cost of Rs.10,000/- to the plaintiff. The civil suit was accordingly restored to its original file for its disposal on merits in accordance with law. It is against this order, the plaintiff has felt aggrieved and filed the present appeals by way of special leave in this Court. Question raised…..  Whether the Division Bench was justified in setting aside the preliminary decree dated 25.02.2003 by holding the 6 same to be an "ex parte decree" for the purpose of Order 9 Rule 13 of the Code.  Heard learned counsel for the parties.  Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in these appeals.  In our opinion, the question involved in these appeals is required to be decided keeping in view the provisions of Order 9 Rule 6 (a) and Order 17 Rules 2 and 3 of the Code.  "Order 9 Rule 6 (1)(a) 6. Procedure when only plaintiff appears (1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then( a) When summons duly served - If it is proved that the summons was duly served, the Court may make an order that the suit be heard ex parte;"  Rule 6(1)(a) provides that where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then if the summons is held duly served on the defendant, the Court may make an order that the suit be heard ex parte.  The crucial expression in the Explanation is "where the evidence or a substantial portion of the evidence of a party". 178 | P a g e

 There is a positive purpose in this legislative expression. It obviously means that the evidence on record is sufficient to substantiate the absentee party's stand and for disposal of the suit. The absentee party is deemed to be present for this obvious purpose.  The court while acting under the Explanation may proceed with the case if that prima facie is the position.  The court has to be satisfied on the facts of each case about this requisite aspect. It would be also imperative for the court to record its satisfaction in that perspective. It cannot be said that the requirement of substantial portion of the evidence or the evidence having been led for applying the Explanation is without any purpose. 

If the evidence on record is sufficient for disposal of the suit, there is no need for adjourning the suit or deferring the decision."

 In this case, the party, who was absent and was proceeded ex parte was the "defendants" and they had not led any evidence whereas it was the plaintiff, who was present and had led his evidence.  In other words, if the plaintiff had remained absent and was found to have led evidence, the Court could have invoked its powers under Explanation to Order 17 Rule 2 of the Code treating the plaintiff as "present" for passing appropriate orders. Such is, however, not the case here.  Similarly, in converse situation, if the defendants had remained absent (as has happened in this case) on that date and if it would have noticed that they had adduced the evidence either fully or substantially prior to the date on which they were proceeded ex parte, the Court could have invoked its powers under Explanation to Order 17 Rule 2 of the Code treating the defendants as "present" on that day for passing appropriate orders in the suit. Such is, however, again not the case here.  We are, therefore, of the view that since the defendants were proceeded ex parte and were found not to have led any evidence in the suit, the Court could only proceed under Order

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17 Rule 3 (b) read with Order 17 Rule 2 of the Code for disposal of the suit by taking recourse to one of the modes directed in that behalf by Order 9 of the Code or could have made any other order as it thinks fit.  As mentioned above, the Trial Court did proceed to hear the suit ex parte by taking recourse to the Order 9 Rule 6 (a) in terms of Order 17 Rule 2 of the Code because on that day, the plaintiff was present when the suit was called on for hearing whereas the defendants were absent despite service of summons and accordingly the Trial Court passed 16 the preliminary decree. Such decree, in our opinion, was an "ex parte decree" within the meaning of Order 9 Rule 6 (a) read with Order 9 Rule 13 of the Code and, therefore, could be set aside under Order 9 Rule 13 on making out a sufficient ground by the defendants.  In view of the foregoing discussion, we are of the view that the Division Bench was justified in allowing the applications filed by defendant No.1 under Order 9 Rule 13 of the Code and, in consequence, was justified in setting aside the preliminary decree dated 25.02.2003 passed in O.S. No.131/1999 treating the said decree as "ex parte decree".  So far as the finding on the question of sufficient ground for setting aside of the ex parte decree is concerned, suffice it to say, it being a pure question of fact, the same does not call for any 17 interference by this Court. A finding on such question is binding on this Court. Moreover, we find that the Division Bench imposed a cost of Rs.10,000/on defendant No.1 payable to the plaintiff as condition for setting aside the ex parte decree. Defendant No.1, therefore, must pay the cost to the plaintiff.  As a result of the foregoing discussion, we find no merit in these appeals, which are accordingly dismissed.  The Trial Court (Single Judge) is now directed to decide the Original Suit No. 131/1999 on merits in accordance with law preferably within a period of one year as an outer limit. Since the original plaintiff has died and his legal representatives are already brought on record in these appeals, the Trial Court will permit the plaintiff to amend the cause title in

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the plaint and bring on record the legal representatives (appellants herein) to enable them to prosecute the suit on merits in accordance with law.

Asharfi Devi (D) through LRS. v. State of Uttar Pradesh & Ors. AIR 2019 SC 832 Facts:  The appellants herein are the legal representatives of the original appellant, who was the writ petitioner and the review petitioner whereas the respondents herein were the respondents in the writ petition and the review application.  The original appellant was the owner of certain lands. These lands were subjected to ceiling proceedings under the Urban Land (Ceiling and Regulation) Act, 1976. The ceiling proceedings eventually resulted in declaring some lands in excess of ceiling limits as surplus. The State claims to have taken possession of the surplus land way back in the year 1982. The Ceiling Act was repealed for the State of UP on 22.03.1999.  In the year 2002, the original appellant filed a writ petition against the respondents State of UP and its authorities in the Allahabad High Court claiming therein that since the original appellant continued to remain in possession of the surplus land even after the Repeal Act came into force, all the ceiling proceedings against her in relation to the lands in question stood lapsed in terms of Repeal Act.  This writ petition was dismissed by order dated 14.03.2008. The original appellant (writ petitioner) felt aggrieved by the dismissal of her writ petition and filed Review Application, the High Court dismissed the review application.  The original appellant felt aggrieved and filed the present appeal by way of special leave against the review order dated 16.12.2008 in this Court. Appellant’s arguments:

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 that this Court should invoke the powers under Article 142 of the Constitution and permit the appellants to challenge the main order. We find no merit in this submission for three reasons.  First, the original appellant did not assign any reason as to what prevented her in the last almost 11 years in not filing the SLP against the main order  Second, there was no legal impediment on the appellants' right to file the SLP in this Court as soon as the main order dated 14.03.2008 was passed and lastly, when the present SLP was filed in the year 2010 against the review order, the original appellant again did not challenge the main order dated 14.03.2008.  15. In the light of these three reasons, we find no good ground to invoke extraordinary powers under Article 142 of the Constitution and permit the appellants(legal representatives of original appellant) to question the legality of main order dated 14.03.2008 in this appeal. Question:  Whether the High Court was right in dismissing the review application filed by the original appellant holding that there was no error apparent on the face of the main order dated 14.03.2008 within the meaning of Order 47 Rule 1 of the CPC? Supreme Court:  no merit in this appeal.  While examining the legality of the review order, we cannot examine the legality of main order dated 14.03.2008 on its merits because, as mentioned above, this appeal does not arise out of the main order. Therefore, we have to confine our inquiry with a view to find out whether the review order is legally sustainable or not.

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 On perusal of the main order dated 14.03.2008, we find that the High Court dismissed the writ petition holding that the writ petitioner (original appellant herein) failed to prove her possession over the land in question on the date of repeal.  It was held that the State had taken possession of the land in the year 1982 as per the panchanama prepared by the State.  In review, the High Court held that while recording the aforementioned finding in the main order, no apparent error, whether on facts or law within the meaning of Order 47 Rule 1 of the Code, was committed attracting the rigor of Order 47 Rule 1 of the Code.  It is a settled law that every error whether factual or legal cannot be made subject matter of review under Order 47 Rule 1 of the Code though it can be made subject matter of appeal arising out of such order.  We find no merit in any of his submissions for more than one reason. First, as mentioned above, this appeal does not arise out of the main order but arises out of review order only and, therefore, we cannot examine the legality and correctness of the main order in this appeal like an Appellate Court.  Second, we examined the matter only with a view to find out as to whether the High Court was right in dismissing the review application and thereby justified in upholding the main order dated 14.03.2008 holding that it did not contain any error/mistake apparent on the face of the record.  In other words, we examined the issue only with a view to find out as to whether the review order, which is subject matter of this appeal, was passed in conformity with the requirements of Order 47 Rule 1 of the Code or not.  the High Court rightly concluded that the main order impugned in the review application did not contain any factual or/and legal error(s) within the meaning of Order 47 of the Code so as to entitle the review Court to recall the same in its review jurisdiction.

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 And lastly, once the finding was recorded by the High Court in the writ petition that the writ petitioner (original appellant) failed to prove her actual possession on the land in question on the date of repeal, such finding could not have been examined de novo in review jurisdiction by the same Court like an Appellate Court on the facts and evidence.  In view of the foregoing discussion, we concur with the reasoning and the conclusion arrived at by the High Court (Review Court) in the impugned order and find no merit in this appeal.  The appeal thus fails and is accordingly dismissed.

Tek Singh v. Shashi Verma, AIR 2019 SC 1047 Facts:  The Respondent No.1 filed a Civil Suit dated 05.03.2013 before the Civil Judge, Senior Division, Solan under Section 6 of the Specific Relief Act in which the following reliefs were claimed:  "(a) Declaring that the effect the plaintiff was running business in Shop No. 3 in the name and style M/s Om Garments owned by proforma Defendant No. 2 in Anand Complex, The Mall Solan w.e.f. 28.01.2013 on the basis of partnership deed of the said date with proforma Defendant No. 2 and the plaintiff has been wrongly dispossessed by the Defendant No. 1 from the Shop No. 3 in the intervening night of 03.03.2013 - 04.03.2013 illegally, wrongfully, without the consent of the plaintiff or proforma Defendant No. 2.  (b) Decree for permanent prohibitory injunction restraining the Defendant No. 1 from causing any interference on any portion of suit premises/Shop No. 3 mentioned above." Written Statement:  Appellant herein denying the averments made in the Suit and stating that he has been in possession since 2004 as a tenant of the landlady, who is Respondent No.2

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 The landlady also filed a written statement dated 05.07.2013 in which she stated that apart from the partnership entered into with Respondent No.1, the petitioner was her tenant w.e.f. 2004.  An Order 39 Rule 1 application was filed which was dismissed by the learned Single Judge on 21.04.2015 saying that the relief asked for could not be granted at this stage as it would amount to decreeing the Suit itself. An appeal filed before the Additional District Judge met with the same fate. By the judgment dated 19.12.2016, the appellate Court held:  "However, when it is an admitted case of Defendant No. 2 admittedly land lady of the suit shop that she has rented the suit shop to Defendant No. 1/Respondent and has set up counter defence that in fact Defendant No. 1 has sublet the suit shop to the plaintiff which is not at all the case of the plaintiff primafacie it is clear on record that suit shop was rented by Defendant No. 2 to respondent/defendant No. 1 and Defendant No. 1 has been running suit shop since 17.09.2004 when both the Defendants have also reduced rent agreement into writing, copy of which is also available in the case file.  As per rent agreement, the tenancy had commenced w.e.f. 01.09.2004. Nothing has come on record, if Defendant No. 1/respondent had ever vacated/surrendered the possession of the shop in favour of landlady nor it is the case of Defendant No. 2 that she ever sought eviction of Defendant No. 1 from the suit shop.  It appears from the copy of partnership deed having been relied upon by the applicant that both applicant and Defendant No. 2 had connived 3 with each other in order to oust Respondent No. 1 who is tenant over the suit shop and filed the suit as well as application for temporary and mandatory injunction in the Court.  Moreover, when the applicant herself has come with the plea that she is out of possession of the suit shop and she has prayed that possession in her favour be restored qua the suit shop by way of temporary injunction and at the same time the applicant has failed to prove on record that she has primafacie case of balance of convenience lies in her favour or that she is going to suffer irreparable loss as discussed above hence by allowing of the application as prayed by applicant would amount to decree of the suit in favour of the applicant without giving the parties to prove their respective claims by leading evidence.

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 Even when it has come on record that Respondent No. 1 is in actual possession of the suit property which was rented out to him by Defendant No. 2 landlady in the year 2004 and nothing has come on record that the Defendant No. 1 had ever been evicted from the suit shop in accordance with law or he ever surrendered the possession of the suit property in favour of defendant No. 2, it is clear on record that Respondent No. 1 has primafacie case and balance of convenience also lies in her favour."  By the impugned judgment dated 10.04.2018, a learned Single Judge of the High Court of Himachal Pradesh set aside the concurrent findings of fact and allowed a revision petition. This was done without dealing with any of the aspects set out by the first Appellate Court. From what one is able to gather, given the language used in the judgment, it appears that the learned Judge was swayed by the fact that a police compliant had been filed on 03.02.2013 in which dispossession was acquiesced in.  A 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. A reading of this proviso will show that, after 1999, revision petitions filed under Section 115 CPC are not maintainable against interlocutory orders.  Even otherwise, it is well settled that the revisional jurisdiction under Section 115 CPC is to be exercised to correct jurisdictional errors only.  But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are:

The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.



It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.



The balance of convenience is in favour of the one seeking such relief." This judgment also makes it clear that when a mandatory injunction is granted at the interim stage much more than a mere prima facie case has to

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be made out. None of the aforesaid statutory provisions or judgments have either been adverted to or heeded by the impugned judgment.  We, therefore, set aside the impugned judgment and restore the judgment of the Courts below.  Since the suit filed is a Section 6 suit which is a summary proceeding in itself, the trial Court should endeavour to dispose of the Suit itself within a period of six months from today.  The appeal is allowed in the aforesaid terms.

Ram Lal v. Salig Ram AIR 2019 SC 729 Facts:  the plaintiffs-appellants filed a suit for prohibitory injunction and in the alternative, for recovery of possession of the land in dispute.  the plaintiffs-appellants had alleged attempted encroachment over the land in question by the defendants.  The Trial Court dismissed the suit.  However, the First Appellate Court remitted additional issues for finding by the Trial Court on the question as to whether defendants had encroached over the land in question and to what extent; and for this purpose,  the Trial Court was directed to appoint a Local Commissioner and to decide the matter after inviting objections on the report of the Commissioner.  After report by the Commissioner, the defendants respondents raised objections which were rejected and thereafter, the Trial Court returned its findings on the additional issues in favour of the plaintiffs.  Thereafter, the Appellate Court allowed the appeal and decreed the suit.  However, in second appeal by the defendants, the High Court found that the Local Commissioner had not carried out demarcation in accordance with the applicable 187 | P a g e

instructions; and while ruling that such report could not be relied upon and while further holding that there was no other evidence that the defendants had encroached over the land of the plaintiffs, proceeded to allow the appeal. Trial Court issues:  Whether the plaintiffs are owners in possession over the suit land as alleged?  If issue No. 1 is proved in affirmative, whether the defendants are interfering over the suit land as alleged?  Whether the suit is not maintainable as alleged?  Whether the suit is not within time as alleged?  Whether the suit is not properly valued as alleged?  Relief."  Whether the defendants encroached upon the suit land, if so, to what extent and manner and since when its effect?  2-B. In case issue No. 2-A is proved, whether the plaintiff is entitled to the alternative relief of possession?  The Trial Court was also directed to appoint a Local Commissioner and after inviting objections in regard to the report of Commissioner, to record its findings and to return the same to the Appellate Court.  The Trial Court, accordingly, appointed a Local Commissioner; invited objections on the Commissioner's report; and after confirming the report, returned the findings on the aforesaid additional issues in favour of the plaintiffs on 25.09.1991. First Appellate Court:  Whether High Court was justified in setting aside the decree of First Appellate Court on the ground that the Local Commissioner had not carried out demarcation in accordance with the applicable instructions?  After examining the pleadings of parties as also the oral and documentary evidence adduced by them coupled with the report of Local Commissioner, the First Appellate Court came to the conclusion that the disputed construction had been raised over the suit

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land and the plaintiffs were entitled to the relief of possession as claimed in the alternative.  The Appellate Court also rejected the submissions of the defendants respondents that they were ready to pay the price of the land in question or to exchange the land.  The First Appellate Court, therefore, reversed the decree of the Trial Court and decreed the suit as under: Defendants are given two months time to remove the construction, failing which the plaintiffs shall be entitled to get the relief through process of Court. Decree-sheet be prepared accordingly. The appeal is allowed along with costs, throughout. The file be consigned to record room."  The High Court admitted the second appeal against the decree so passed by the First Appellate Court on the following substantial questions of law: "1. Whether the learned courts below were justified in rejecting the appellants' objections on local commissioner's report?  2. Whether the demarcation report of the Local Commissioner, without considering MUSABI and other revenue record, was not illegal?  Whether the learned District Judge was justified in remanding the case?  Whether the learned courts were justified in ignoring the defendants' evidence which goes to the root of the case."  The Local Commissioner has not carried out demarcation in accordance with the instructions for carrying out the demarcation, therefore, demarcation report Ex. C-1 is not a legal piece of evidence, and cannot be relied for decreeing the suit of the plaintiffsrespondents. There is no other evidence on record to show that the appellants- defendants have encroached any portion of khasra No. 146 owned and possessed by the respondentsplaintiffs.  The learned lower appellate court has erred in relying the Local Commissioner's report. The substantial questions of law No. 1 and 2 are answered in favour of the appellantsdefendants and against the respondents/plaintiffs."  After answering the aforesaid questions in favour of the defendants and while observing that there was no other evidence on record to show that the defendants had encroached

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over any portion of Khasra No. 146, the High Court proceeded to allow the appeal and to dismiss the suit.  Assailing the impugned judgment of the High Court, learned counsel for the plaintiffappellant has strenuously argued that the demarcation was carried out by the Local Commissioner in the presence of parties and after hearing them; and his report, when accepted by the Trial Court and the First Appellate Court, could not have been discarded by the High Court only on the ground of the so-called want of fixing three permanent points. Learned counsel has also argued that apart from the report of Local Commissioner, there had been oral and documentary evidence on record to prove the encroachment by the defendants and as such, the High Court had been in error in assuming that there was no other evidence besides the Local Commissioner's report on the question of encroachment by the defendants.  Per Contra, learned counsel for the defendants-respondents, while referring to the decision in Laxmi Nand (supra), has contended that the Local Commissioner having not carried out demarcation in accordance with law, the report in question was not a legal piece of evidence and could not have been relied upon. According to the learned counsel, there being no other evidence on record to show that the defendants have encroached over any portion of Khasra No. 146, the High Court has rightly allowed the second appeal and dismissed the baseless suit filed by the plaintiffs-appellants.  Having given anxious consideration to the rival submissions, we are clearly of the view that the impugned judgment, on its final conclusion for dismissal of the suit cannot be sustained and the entire matter deserves to be remanded to the Trial Court for consideration afresh.  As noticed, in essence, the case of the plaintiffs has been that the defendants were interfering with, and encroaching over, a part of their land comprised in Khasra No. 146. The Trial Court dismissed the suit but the First Appellate Court, at the initial stage, found it just and proper that further issues be determined on the question/s as to whether the defendants had encroached over the suit land and, if so, the extent and the manner thereof. The Trial Court was further directed to appoint a Commissioner and to hear the parties on objections, if any, and then to return the findings on additionally framed issue Nos. 2-A and 2-B. The Trial Court did appoint a Commissioner who carried out 190 | P a g e

demarcation; the objections to his report were rejected; and thereafter, the Trial Court returned the findings in favour of the plaintiffs.  After receiving findings from the Trial Court, the First Appellate Court decided the appeal by its detailed judgment dated 06.06.1995.  The First Appellate Court referred not only to the Commissioner's report but also to the oral and documentary evidence adduced by the parties.  The First Appellate Court also observed that the Commissioner had made an exhaustive report after carrying out demarcation properly and there was nothing on record to show that the report could not be accepted.  It appears from the observations made by the High Court in the present case that the Local Commissioner omitted to scrupulously follow the applicable instructions for carrying out such demarcation and particularly omitted to fix three reference points on different sides of the land in question.  However, the report made by the Local Commissioner was accepted by the Trial Court as also by the First Appellate Court. Before Supreme Court:  The question is: If the Local Commissioner's report was suffering from want of compliance of the applicable instructions, what course was to be adopted by the High Court?  An appropriate answer to the question aforesaid is not far to seek. In the course of a civil suit, by way of incidental proceedings, the Court could issue a Commission, inter alia, for making local investigation, as per Section 75 of the Code of Civil Procedure ("the Code" hereafter).  The procedure in relation to such Commission for local investigation is specified in Rules 9 and 9 10 of Order XXVI of the Code. Suffice it to notice for the present purpose that, as per clause (3) of Rule 10 of Order XXVI, where the Court is dissatisfied with the proceedings of such a Local Commissioner, it could direct such further inquiry to be made as considered fit. This clause (3) of Rule 10 of Order XXVI of the Code reads as under:- "Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit." 191 | P a g e

 The fact that the Local Commissioner's report, and for that matter a properly drawn up report, is requisite in the present case for the purpose of elucidating the matter in dispute is not of any debate, for the order dated 24.01.1991 passed by the First Appellate Court having attained finality whereby, additional issues were remitted for finding on the basis of Local Commissioner's report.  In the given set of facts and circumstances, we are clearly of the view that if the report of the Local Commissioner was suffering from an irregularity i.e., want of following the applicable instructions, the proper course for the High Court was either to issue a fresh commission or to remand the matter for reconsideration but the entire suit could not have been dismissed for any irregularity on the part of Local Commissioner.  To put it differently, we are clearly of the view that if the Local Commissioner's report was found wanting in compliance of applicable instructions for the purpose of demarcation, it was only a matter of irregularity and could have only resulted in discarding of such a report and requiring a fresh report but any such flaw, by itself, could have neither resulted in nullifying the order requiring appointment of Local Commissioner and for recording a finding after taking his report nor in dismissal of the suit.  Hence, we are unable to approve the approach of High Court, where after rejecting the Commissioner's report, the High Court straightway proceeded to dismiss the suit.  The plaintiffs have been asserting encroachment by the defendants on their land and have also adduced oral and documentary evidence in that regard. As noticed, the First Appellate Court had allowed the appeal and decreed the suit filed by the plaintiff not only with reference to the Commissioner's report but also with reference to the other evidence of the parties. Unfortunately, the High Court appears to have overlooked the other evidence on record.  In the totality of circumstances, in our view, for just and effectual determination of all the questions involved in the matter, the proper course is of issuing a fresh Commission and for direction to the Trial Court to decide the entire suit afresh on the issues as originally framed as also on the additional issues after taking the report of the Local Commissioner afresh and affording an opportunity to the parties to submit their objections, if any.

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 Accordingly, this appeal is allowed in the manner that the judgment and decree is set aside but the said appeal is disposed of by setting aside the judgment and decree of the subordinate Courts; and the suit filed by the plaintiffs-appellants is restored for reconsideration by the Trial Court keeping in view the observations and requirements foregoing.  The parties through their respective counsel shall stand at notice to appear before the Trial Court on 05.03.2019.  The Trial Court shall be expected to issue a fresh Commission immediately and after examining the objections, if any, to the Commissioner's report, to dispose of the suit afresh expeditiously and preferably within a period of three months from the date of appearance of the parties. Costs of the proceedings shall follow the final decision of the suit.

Commissioner, Mysore Urban Development Authority vs. S.S. Sarvesh 2019 (2) MLJ 350

Facts:  The appellantMysore Development Authority is the defendant whereas the respondent is the plaintiff in the suit out of which this appeal arises.  The respondent filed a civil suit against the appellantAuthority for declaration of title and permanent injunction in relation to the land  The appellantAuthority, on being served filed their written statement.  The parties adduced their evidence.  By judgment/decree dated 20.03.2012, the Trial Court decreed the respondent's suit and passed a decree against the appellant Authority in relation to the suit land.

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 The appellantAuthority felt aggrieved and filed first appeal under Section 96 of the Code of Civil Procedure, 1908  This appeal was listed for hearing on 25.04.2014. On that day, the appellant's counsel did not appear when the appeal was called on for hearing and, therefore, the Appellate Court dismissed the appeal in default.  The appellantAuthority, therefore, filed an application before the Appellate Court praying for recall of the order dated 25.04.2014 and sought restoration of their appeal for its hearing on themerits.  By order dated 29.06.2016, the Appellate Court dismissed the application, which gave rise to filing of the writ petition by the appellantAuthority under Article 227 of the Constitution of India .  By impugned order, the High Court dismissed the writ petition and affirmed the order of the Appellate Court, which has given rise to filing of this appeal by way of special leave by the defendant in this Court. Question raised before Supreme Court:  whether the Appellate Court and the High Court were justified in dismissing the application (M.A.No.77/2014) filed by the appellantAuthority(defendant)  Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal, set aside the impugned order and also recall the order passed by the Appellate Court.  The first appeal filed by the appellantAuthority suffered dismissal in defaulton 25.04.2014 because on that day none appeared for them when the appeal was called on for hearing.  Such dismissal attracted the provisions of Order 41 Rule 19 of the Code and, therefore, the appeal could be readmitted for hearing at the instance of the appellantAuthority only 194 | P a g e

by taking recourse to the provisions of Order 41 Rule 19 and subject to their making out a sufficient cause which prevented them from appearing on 25.04.2014 when the appeal was called on for hearing.  An order of refusal to readmit the appeal passed by the Appellate Court under Order 41 Rule 19 of the Code is made expressly appealable under Order 43 Rule 1(t) of the Code to the High Court.  In this case, since the Appellate Court refused to re admit the appeal and dismissed the application filed by the appellantAuthority, the remedy of the appellantAuthority was to file an appeal in the High Court against the order dated 29.06.2016 under Order 43 Rule 1 (t) of the Code.  The appellantAuthority instead of filing the appeal under Order 43 Rule 1(t) of the Code filed the writ petition under Article 227 of the Constitution against the order dated 29.06.2016.  It was an error on the part of the appellantAuthority and the High Court should have declined to entertain the writ petition and instead either converted the writ petition into the appeal under Order 43 Rule 1(t) of the Code or permitted the appellantAuthority to withdraw the writ petition with a liberty to file an appeal under Order 43 Rule 1(t) of the Code, as the case may be, in its discretion. It was, however, not noticed and the High Court dismissed the writ petition on merits.  clarify the legal position that the appeal lies under Order 43 Rule 1(t) of the Code to the High Court against the order dated29.06.2016 passed by the Appellate Court which dismissed the application made under Order 41 Rule 19 of the Code.  Be that as it may, in our considered opinion, the High Court erred in dismissing the writ petition. The High Court should have allowed the writ petition and the appellant Authority should have been given the indulgence of hearing of their appeal on merits.

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 Keeping the aforementioned statement of law in consideration and applying the same to the facts of this case, we have no hesitation in allowing this appeal and set aside the impugned order.  In our view, the Courts below should have seen that the first appeal is a valuable right of the appellant and, therefore, the appellantAuthority was entitled for an opportunity to prosecute their appeal on merits. If the appellant’s advocate did not appear may be for myriad reasons, the Court could have imposed some cost on them for restoration of their appeal to compensate the respondent(plaintiff) instead of depriving them of their valuable right to prosecute the appeal on merits.  We have perused the application made by the appellantAuthority for recalling of the order and we find that it constitutes a sufficient cause within the meaning of Order 41 Rule 19 of the Code. The application, therefore, deserves to be allowed.  However, it is subject to payment of cost of Rs.10,000/ payable by the appellantAuthority to the respondent(plaintiff). Let the cost be paid before hearing of the appeal.  In view of the foregoing discussion, the appeal succeeds and is accordingly allowed. The impugned order is set aside. As a consequence, the application filed by the appellant is allowed and accordingly restored to its original number for its hearing on merits in accordance with law.  Parties are directed to appear before the concerned Appellate Court on 05.03.2019 to enable the Appellate Court to fix a date for hearing of the appeal on merits uninfluenced by any of our observations on the merits. Let the appeal be heard and disposed of as expeditiously as possible preferably within six months from the date of this order.

Shivnarayan (d) by LRs v. Maniklal 2019 (2) ALT 35 Facts:

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 The appellant filed Civil Suit for declaring various transfer documents as null and void with regard to suit property.  Plaintiff also prayed for declaration that suit properties are Joint Family to 3 and plaintiff is entitled to receive 1/3rd part of the suit property.  A Will executed by one Lt. Smt. Vimal Vaidya was also sought to be declared to be null and void  The plaintiff sought relief with regard to two properties (hereinafter referred to as Indore property, situate at Indore, State of Madhya Pradesh and Mumbai property situate at Mumbai, State of Maharashtra).  Plaintiff’s case in the plaint was that Indore Property was purchased by plaintiff’s father in the year 1968-1969. Plaintiff’s father died on 15.08.1969. Thereafter, Indore property was joint family property of the plaintiff and defendant Nos. 1 to 3. Plaintiff’s brother Babulal shifted to Pune.  Babulal was allotted Mumbai property under a Government Scheme for extraordinary persons like writers and educationist. Babulal died in the year 1975.  Thereafter, the Mumbai property, on the basis of succession certificate issued by Court of Civil Judge (Senior Division), Pune came in the name of widow of Babulal, Smt. Vimal Vaidya.  Smt. Vimal Vaidya transferred the Mumbai flat by sale deed dated 15.10.2007 in favour of defendant Nos. 7 and 8.  It was further pleaded in the plaint that Smt. Vimal Vaidya also dealt with Indore Property. The name of Smt. Vimal Vaidya was mutated in the year 1986 in the Indore property and thereafter she transferred the Indore property in favour of defendant Nos. 9  On application filed striking out the some paras related to immovable properties, the Trail court allowed. 197 | P a g e

 Challenged that order by defendants and High court confirmed the trial court order  High Court did not correctly interpret Section 17 of the Code of Civil Procedure. The partition suit filed by the appellant with regard to Mumbai and Indore properties was fully maintainable.  He submits that Order II Rule 2 of CPC mandates that the plaintiff must include the whole claim in respect of a cause of action in the suit. The cause of action claimed by the plaintiff was denial of the plaintiff’s right to share in the Joint Family Property. Restrictive interpretation of Section 17 will do violence to the mandate of Order II Rule 2 Respondent Arguments:  It is submitted that Section 17 of the CPC contemplate filing of a suit with respect to immovable property situated in jurisdiction of different courts only when any portion of the property is situated in the jurisdiction of a Court, where suit has to be filed.  The word “any portion of the property” indicate that property has to be one whose different portions may be situated in jurisdiction of two or more Courts.  He further submits that there is no common causes of action with regard to property situate at Indore and property situate at Mumbai. Transfer deeds with regard to Indore Property as well as transfer deeds of Mumbai property are different. The purchasers of both the properties, i.e. Indore property and Mumbai property are also different. Supreme Court:  S C observed that Section 17 uses the words ‘the suit may be instituted in any Court’.  The use of word in Section 17 makes it permissive leaving discretion in some cases not to file one suit with regard to immovable property situated in local jurisdiction of more than one court. One of the exceptions to the rule is cases of partial partition where parties agree to keep some property joint and get partition of some of the properties.

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 Sections 16 and 17 of the C.P.C. are part of the one statutory scheme. Section 16 contains general principle that suits are to be instituted where  subject-matter is situate whereas Section 17 engrafts an exception to the general rule as occurring in Section 16.  The word ‘property’ occurring in Section 17 although has been used in ‘singular’ but by virtue of Section 13 of the General Clauses Act it may also be read as ‘plural’, i.e., ”properties”.  (ii) The expression any portion of the property can be read as portion of one or more properties situated in jurisdiction of different courts and can be also read as portion of several properties situated in jurisdiction of different courts.  (iii) A suit in respect to immovable property or properties situate in jurisdiction of different courts may be instituted in any court within whose local limits of jurisdiction, any portion of the property or one or more properties may be situated.  A suit in respect to more than one property situated in jurisdiction of different courts can be instituted in a court within local limits of jurisdiction where one or more properties are situated provided suit is based on same cause of action with respect to the  properties situated in jurisdiction of different courts.  The plaint encompasses different causes of action with different set of defendants.  The cause of action relating to Indore property and Bombay property were entirely different with different set of defendants.  The suit filed by the plaintiff for Indore property as well as Bombay property was based on different causes of action and could not have been clubbed together.  The suit as framed with regard to Bombay property was clearly not maintainable in the Indore Courts.  The trial court did not commit any error in striking out the pleadings and relief pertaining to Bombay property 199 | P a g e

 It is relevant to notice in the application filed by defendant Nos. 7 and 8, the heading of the application itself referred to “mis-joinder of parties and causes of action”.  In Para (1) of the application, it was categorically mentioned that there was mis-joinder of parties and causes of action.  The trial court in its order dated 17.08.2011 has also clearly held that plaintiff has clubbed different causes of action which is to be deleted from the present suit.  The trial court further held that the plaintiff is not justified in including different properties and separate cause of actions combining in single suit.  We, thus, are of the view that the trial court has rightly allowed the application filed by the defendant Nos.7 and 8. The High court did not commit any error in dismissing the writ petition filed by the appellant challenging the order of the trial court and the appeal is dismissed accordingly.

JUDICIAL INTERPRETATIONS

Saiyad Mohammad Bakerv. Abul Habib Hasan AIR 1998 SC 1624 Nothing can be given by a procedural law that is not sought to be given by a substantive law. The rules of procedure must be construed liberally and in such manner so as to render the enforcement of substantive rights effective.

Indiaum Indian Telecom v Motorola Inc. 200 | P a g e

(2005) 2 SCC 145 The code was enacted with the object of consolidating and amending the laws relating to the procedure of the courts of civil judicature. It is a completed code in itself as regards the subject it deals with. It would govern all actions of a civil nature, unless otherwise provided for and thus, its provisions are to be construed as exhaustive with regard the matters dealt with in it.

Manohar Lal v. Rao Bahadar Rao Hiralal AIR 1962 SC 527 Supreme Court held that, when there is no specific (code) provision in the code, courts must be guided by the principles of justice, equity and good science. Some of the provisions do make certain exceptions and it is necessary to notice them.

Sukhir Singh v. Briji pal singh AIR 1996 SC 2510 The procedural rules are not mere technicalities and it is a misconception to ignore them altogether as several other rules of procedure serve the very ends of justice under the substantive law and some rules are needed for proper resources, time management and public policy. However, procedural law is always subservient to substantive law. The procedure is handmaiden to the substantive rights of the parties.

Nani Gopal Mitra v. State of Bihar AIR 1970 SC 1636 The code, being a procedural law, is retrospective in operation and its provisions apply to the proceedings pending at the time of its having come into force. However, the procedure correctly adopted and concluded under the previous law (repealed) cannot be reopened for the purposes of applying new procedure.

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Mohan Lal v. Sawai Man Singh AIR 1962 SC 73 Retrospective operation of the code shall not affect the vested rights except where the amendment has been expressly or by necessary implication been made retrospective.

Jet plywood Pvt. Ltd. v. Madhukar Nowlakha AIR 2006 SC 1260 The code recognizes the inherent powers of the court and specifically provides that nothing is to limit or otherwise affect the inherent powers of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.Where the court is silent regarding a procedural aspect, the inherent power of the court can come to its aid to act ex depito justictiae for doing real and substantial justice between the parties.

State of Moharastra v. Hindustan Construction Company AIR 2010 SC 1299 Since the function of procedural law or adjective law is to ‘facilitate justice and further its end’ Thus, a hyper – technical view must not be adopted by courts in interpreting procedural laws. Law of civil procedure plays an important role of adjective law by forming an indispensable part of the machinery of justice and operates as an essential tool towards. (i)

Enforcing legal rights and claims

(ii)

Redressing and preventing legal wrongs

(iii)

Asserting legal defences

(iv)

Other ancillary purposes, not withstanding its apparent complexity and its occasional technicality.

Bhagwati Developers v. The Peerless 2013 (5) SCALE 378 202 | P a g e

The law of civil procedure code plays a crucial role in expediting the adjudication of civil cases or disputed. The right to secure protection in case of violation of substantive right is a statutory right. It is a well known principle of law that ‘where there is a right, there is a remedy’ derived from the maxim ‘ubi jus ibi remedium’ Apex court observed: if a man has a right, he must have the means to vindicate and maintain it, and also a remedy, if he is injured in the exercise and enjoyment of the said right, and that it is indeed, a vain thing to imagine a right without a remedy, for the want of right and the want of a remedy, are reciprocal. Thus, the procedural law puts life into substantive law by providing a remedy.

Official Trustee, West Bengal v. Sachindranath Chattarje AIR 1969 SC 823 Jurisdiction means the extent of power of a court to entertain suits and applications. It signifies the power, authority and competency of the court to adjudicate disputes presented before it. It refers to the right of administering justice by means of law.

Bharat Aluminum co. v. Kaiser Aluminum Technical 2012 (9) SCC 552 Court held that for instituting a suit two pre – requisites must be fulfilled. The first requirement is ‘fundamental to the maintainability of a civil suit the existence of a cause of action. The cause of action must be live, neither dead nor in the womb. The cause of action should not be contingent or speculative. If the plaint does not disclose the cause of action, it shall be rejected at the threshold under Order 7 Rule 11 (a) C.P.C. Suit only for temporary injunction is not maintainable. The other pre requisite for instituting suit is that plaintiff must have right to sue.

Shiv Kumar Sharma v. Santosh Kumar AIR 2008 SC 171 203 | P a g e

Regarding exercise of equitable jurisdiction by courts in India it has been held that, In England, the court of equity exercises jurisdiction in equity. The courts of India (exercise) do not possess any such exclusive jurisdiction. The courts in India exercise jurisdiction both in equity as well as law but exercise of equity jurisdiction is always subject to the provisions of law. It can be exercised only when no law operates in the field. A Court of law cannot exercise its discretionary jurisdiction dehors the statutory law. Its discretion must be exercised in terms of the existing statute. A civil court does not grant leave to file another suit. It the law permits, the plaintiff may file another suit but not on the basis of observations made by a superior court.

Foreshore Co – Operative Housing Society Limited v. Praveen D. Desai AIR 2015 SC 2006 It is a fundamental principle well established that a decree passed by a court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial or whether it is in respect of the subject – matter of action, strikes at the very authority of the court. To pass any decree, and such a defect cannot be cured even by consent of parties.

Dwaraka Prasad Agarwal and another v. Ramesh Chandra Agrawal & ors. AIR 2003 SC 2696 The supreme Court held that the normal rule of law is that civil suits of civil nature except those of which cognizance by them is either expressly or impliedly excluded as provided under sec. 9 of the code of civil procedure but such exclusion is not readily inferred and the resumption to be drawn must be in favour of the existence rather than exclusion of jurisdiction of the civil courts to try civil suit.

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State of Andhra Pradesh v. Manjeti Laxmi Kantha Rao AIR 2000 SC 2220 The Supreme Court held that the jurisdiction of civil court must be expressly excluded by Legislature or by special Acts to deal with special subject matters Therefore, the code of civil procedure defines the matters for adjudication and prescribes basic rules for fixing jurisdiction, in particular territorial jurisdiction of civil courts. The civil courts are permitted to entertain all suits of civil nature if, in the first place, the cause of action of the suit has arisen within the territorial limits of the courts; secondly, suit value falls within the pecuniary limits of the courts and finally, assumption of jurisdiction over the suit by the civil courts is not barred by any statute.

M/s Kusum Ingots & Alloys v. Union of India AIR 2004 SC 2321 The appellant is a company registered under the Indian companies Act, its registered office is at Mumbai. It obtained a loan from the Bhopal branch of State Bank of India. TheBank issued a notice for repayment of the said loan from Bhopal purported to be in terms of the provisions of SARFAESI Act. Issue: Whether the seat of the parliament or the legislature of a state would be a relevant factor for determining the territorial jurisdiction of a High Court to entertain a writ petition under Act. 226 of the Indian constitution?. Place of residence of plaintiff/applicant is irrelevant for purpose of jurisdiction.

Mohanakumaran Nair v. Janyakumaran Nair AIR 2008 SC 213

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Residence of defendant referred in sec. 20 is preceded by the words ‘at the time of commencement of suit’ accordingly it at the time of institution of the suit defendant was not residing within the jurisdiction of the court, his subsequent act of residing there would not bring the suit with territorial jurisdiction of that court. Order 4 Rule 1 (1) is as follows: suits to be commenced by plaint: (1) Every suit shall be instituted by presenting a plaint in duplicate to the court. Accordingly commencement of suit and institution of the suit is the same thing.

R.S.D. Finance Co. v. Shree Vallabh glass Marks AIR 1993 SC 2094 Sec. 21 imposes three conditions 1) Objection to jurisdiction shall be taken before the trial court 2) It should be taken at or before framing of issues 3) That there should be consequent failure of justice In the above case the first two conditions are satisfied but the third condition of failure of justice is mentioned that there was no dispute regarding the merits of claim. The defendant had admitted the deposit of Rs. 1, 00,000/- by the plaintiff as well as issuance of 5 cheques. Further held that if the court holds that it has got no jurisdiction then instead of dismissing the suit on that count, plant should be returned for filing before appropriate court (or.7 R.16)

Hakam Singh v. Gamon (India) Ltd. AIR 1971 SC 740 Supreme Court held that ‘it is not open to the parties by agreement to confer by their agreement jurisdiction on a court which it does not possess under the code. But where two court or more have jurisdiction according to CPC to try a suit or proceeding on agreement between then shall be tried one of such courts is not contrary to public policy.

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Sheoparsan Singh v. Ramandan singh AIR 1916 PC 78 The Rule of res judicata, while founded on ancient precedents is dictated by a wisdom which is for all time ….. Though the rule of the code may be traced to an English source, it embodies a doctrine in no way opposed to the spirit of the law as expounded by the Hindu commentators.

Ramji Gupta v. Gopi Krishan AIR 2013 SC 3099 It is held by the Apex court held ‘under the code of civil procedure, certain specific orders mentioned in sec. 104 and order 43 Rule 1 of CPC are only appealable and no appeal shall lie from any other orders. Therefore, the order made under section 151 of CPC being not included in the category of appealable orders, no appeal is maintainable against such orders.

Rithesh Tiwari & another v. State of Uttarpradesh & another (2010) SCC 677 The court held that ‘every trial is a voyage of discovery in which truth is the quest. In the above said authority the lordships have further observed that ‘the entire journey of judge is to discern the truth from the pleadings, documents and arguments of the parties. Truth constitutes integral part of the justice delivery system. The truth should be the guiding star in the judicial process. Truth alone has to be the foundation of justice. The entire judicial system has been created only to discern and find out the real truth judges at all levels have to seriously engage them in the journey of discovering the truth. That is their mandate, obligation and bounder duty. The procedural code relies on full disclosure by the parties managerial power of the judge has to be displayed to ensure that the scope of the factual contrary is minimized.

Salem Advocates Bar Assn. v. Union of India 207 | P a g e

(2005) 6 SCC 344 The challenge made to the constitutional validity of amendments made to the code of civil procedure by amendments Act of 1999 and 2002 was rejected by Hon’ble Apex Court in salem Advocates Bar Association, Tamilnadu vs union of India (2003) 1 SCC 49 but it was noticed in the judgment that the modalities have to be formulated for the manner in which sec.89 of the code and for that matter, the other provisions which have been introduced by way of amendment, may have to be operated. Report 1 contains the consideration of the various grievances relating to the amendment to the code and recommendations of the committee. Report 2 contains the consideration with draft rules for ADR and mediation as envisaged by sec. 89 of the code R/W order X Rule 1A, 1B and 1C. It also contains model rules; report 3 contains a conceptual appraisal of case management. This case is a land mark case in the history of Indian Judiciary. This set of two cases former one laying down amendments and the latter one providing a report on the amendments feasibility have laid down the foundations of providing, quick financially accessible and proper justice. This basically intends to reduce the number of suits filed in the court every year. The case has been referred to in numerous cases of civil nature. Moreover, the model provided to be followed by the trial court is an easily practicable model and bestow the ‘bright light of proper justice in the darkness of innumerable cases’. The rules provided in the model are appropriate for the system of Indian judiciary and hence should be properly followed.

M/s Shiv cotex v. Tirgun Auto plast P. Ltd 2011 AIR SCW page 578 Hon’ble Lordships of our Apex court have observed that ‘Adjournments at the drop of the hat. In the cases where the judges are little pro-active and refuse to accede to the request of unnecessary adjournments, the litigants deploy all sorts of methods in protracting the litigation. It is not surprising that civil disputes drag on and on. It is high time that courts become sensitive to delays in justice delivery system and realize that adjournments to dent the efficacy of judicial process and if this menace is not 208 | P a g e

controlled adequately, the litigant public may lose faith in the system sooner than late particularly trial courts, must ensure that on every date of hearing, effective progress takes place in the suit. No litigant has a right to abuse the procedure provided in the CPC. Adjournments have grown like cancer corroding the entire body of justice delivery system. It is true that cap on adjournments to a party during the hearing of the suit provided in proviso and in a suitable case, on justifiable cause, the court may grant more than three adjournments to a party for its evidence but ordinarily the cap provided in the proviso of CPC should be maintained. ‘Justifiable cause’ means a cause which is not only ‘sufficient cause’ as contemplated under proviso of CPC but a cause which makes the request for adjournment by a party during the hearing of suit beyond three adjournments unavoidable and sort of a compelling necessity. Illness of litigant or the family of anyone of them, natural calamity, Accident are the justifiable and sufficient causes. The past conduct of a party in the conduct of the proceedings is an important circumstance which the courts must keep in view whenever a request for adjournment is made. A party to the suit is not at liberty to proceed with the trial at its leisure and pleasure and has no right to determine when the evidence would be let in by it or the matter should be heard.

Ramrameshwari Devi v.Nirmala Devi 2011 (8) SCC 249 Hon’ble Supreme Court in the above matter after observing the prolonged trail following guidelines were laid down for speedy trial: 1. Pleadings are the foundation of the claims of the parties. Civil litigation is largely based on documents. It is the bounden duty and obligation of the trial judge to carefully scrutinize, check and verify the pleadings and the documents filed by the parties. 2. The court should resort to discovery and production of documents and interrogaraties at the earliest according to the object of the Act. 3. Imposition of actual, realistic or proper costs and ordering prosecution would go a long way in controlling the tendency of introducing false pleadings, forged and

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fabricated documents by the litigants. Imposition of heavy costs would also control unnecessary adjournments by the parties. 4. The court must adopt realistic and pragmatic approach in granting mesne profits. 5. The court should be extremely careful and cautious in granting experts ad interim injunctions or stay orders. 6. No one should be allowed to abuse the process of the court. 7. The principle of restitution be fully applied in a pragmatic manner in order to do real and substantial justice. 8. Every case emanates from a human or a commercial problem and the court must make serious endeavor to resolve the problem within the frame work of law and in accordance with the well settled principles of law and justice. 9. At the time of filing of the plaint the trial court should prepare complete schedule and fix dates for all the stages of the suit and the courts should strictly adhere to the said dates.

Kailash v. Nanhku & ors AIR 2005 SC 2441 The Supreme Court held that …. Ordinarily time schedule prescribed by order VIII Rule 1 has to be honoured. The defendant should be vigilant. No sooner the writ of summons is served on him he should take steps for drafting his defence and filing the written statement on the appointed date of hearing without waiting for the arrival of the date appointed in the summons for his appearance in the court. The extension of the time sought by the defendant from the court whether within 30 days or 90 days, as the case may be, should not be granted just as a matter of routine and merely for the asking, more so when the period of 90 days expired. The extension can be only by way of an exception and for the reasons assigned by the defendant and also recorded in writing by the court to its satisfaction. The process of justice may be speeded up and hurried but the fairness which is a basic element of justice cannot be permitted to be buried.

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The court further observed that while extending the time beyond the stipulated period of 90 days, the courts may impose costs as a mean to (a) deter the defendant and (b) compensate the plaintiff. The court also held that the defendant seeking extension may be required to furnish affidavit and other documents.

JOURNAL INDEX SL.NO 1 2 3 4

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TITLE AUTHOR Delay in filing of written statement: An analysis Amit Sachdeva of Order VIII Rule 1 of CPC Executability & Enforceability of Foreign Rishi Agarwal Judgments & Decrees in India: Judicial Trends Framing of Issues and Judgment writing Recording of Additional Evidence in Appeals Res judicata and collateral Estoppels Beneath the corporate veil Law of Injunctions

S. Atheque Ahmad Nellore Judicial Work Shop

Officers

Glenn M .Gottilieb Justice R.R.K. Trivedi

7 8 9 10 11

Deregulation & Judicial Review

Harvard Law Review http:// heinonline.org Merrick B. Garland Judging Fairness in Class Action Settlement Catherine Piche http:// heinonline.org Appointment of Receiver- Guiding Principles Y. Srinivasa Rao Manupatra Representative Suit Mayuresh Srivastav Manupatra Rethinking Theoretical Foundations of the code J.K.Das of civil procedure: Prospect and Retrospect Journal of Indian Institute Vol.53

Law

CONCLUSION

The Judiciary forms an integral part of the organisation of the state. Its chief importance lies in the fact that it is specially charged with the duty of preserving and protecting those liberties, privileges and rights which the state itself confers upon its individual citizens. There are two possible dangers of invasion on the civil right. A private citizen may act contrary to law and endeavour to assert his superiority against a weaker victim, or the same crime may be committed by officials of the state. Justice may be fully vindicated in both the cases. It is the function ofthe judiciary to study the law, to interpret it and to see that is correctly applied. Judicial commands must effectively prevail even against the highest authority ofthe state of the most wealthy classes ofit’s citizens, it is proved that they are guilty of illegal action. Such a guarantee constitutes one of the best safeguard for the preservation of a democratic society. 212 | P a g e

Civil Procedural Code has been very important in the legal framework owing to its various procedural aspects as well as its objective of pursuing of an efficient justice system through fair trial, free provision of legal aid and speedy justice among other ideals. An analysis of all the above has been done in the paper and it can be concluded that these ideals are being properly followed through the innumerable efforts in the Code towards the objective of natural justice. The Code engendered various innovative measures to achieve its goal of speedy trials like that of arbitration and measures of settlement which helps reduce the backlog of cases and provides fair trial to people in a more efficient manner. Not only these, there are other forms of efforts being taken for fair trial to be followed in Indian Judicial process such as Open and Public trial. All the principles of appeal and review of decisions have been properly enshrined in the framework to create a robust system that is largely unfailing. The principles of natural justice have constantly been referred to and every amendment that have taken place clearly has been through such understanding As a conclusion, there will be no denying to say that the jurisprudential aspect of the Code of Civil Procedure carries with itself the essence of the civil procedural rights of the citizens which enables them to claim their right and cause of action with its violation thereof expediently and with best effort till end of the suit to meet the ends of justice. The civil procedure therefore walks hand in hand and shoulder to shoulder with the spirits of social process and society at large and cannot be ignored keeping in view, it rather protects the procedural interests of the citizens for a better social arena.Judiciary proves as a valuable instrument for safeguarding the rights and privileges of the people against encroachment from any quarters.

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