Cpc Notes

Civil Procedure Code BASICS: Each state has its own legislation to deal with matters of Civil Court, Suits Valuation and Courts Fee. All these legislations plus the Limitation Act is part of the concurrent list of the Constitution. Hierarchy of civil courts in India: District Court Civil Judge Senior Division (Sub-Judge) Civil Judge Junior Division (Munsiff)

If a person has to file a suit worth Rs. X then, a. the Civil Procedure Code provides us the information about the state in which we have to approach the civil courts, b. Suits Valuation Act and Courts Fee Act tell us about the forum which we have to approach in the hierarchy of the civil courts depending upon the value of the suit, c. Civil Courts Act outlines the territorial jurisdiction of all the civil courts and it is the Civil Courts Act which tells us about the civil court which we have to finally approach, d. Civil Court Rules are notified by the High Courts and it lays down all the details which are required for the preparation of any court related document. The Civil Court Rules actually supplement the details already provided by the Civil Procedure Code regarding the preparation of the documents. For example: Plaints are prepared on the basis of Order VII of the C.P.C. and the Civil Court Rules. e. Limitation Act clarifies the period in which the plaintiff can approach the appropriate forum with jurisdiction. Decree, Order and Judgement: Judgement: Judgement is a statement given by the judge on the grounds of a decree or order. It has been defined by Section 2(9) of the Civil Procedure Code. Every judgement consists of: a. a concise statement of case b. issues which are to be determined by the court c. the reasoning behind the final decision- comprises of discussion based on issues in light of the relevant facts and law It has been held previously by the Supreme Court in a landmark case (Balraj Taneja v. Sunil Madan) that any court cannot merely declare “Suit dismissed” or “Suit decreed” as the whole process of reasoning has to come out before deciding the case.

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Decree

Order

can be passed in a suit arising only out of a plaint.

can be passed in a suit arising out of a plaint, an application or even a petition.

contains conclusive determination of a right

may or may not related to determination of rights.

It can be final, preliminary or part preliminary and part final.

There cannot be any preliminary order.

There can be only one decree or one preliminary decree and one final decree in a suit.

However there can be n numbers of orders in a suit.

Every decree is appealable unless it is expressly barred.

There are two types of order: appealable and non appealable.

A second appeal before High Court can lie on certain grounds.

No second appeal for orders.

Jurisdiction of a civil court is determined on three grounds: Territorial, Pecuniary and Subject Matter based. Territorial jurisdiction: The territorial jurisdiction of the civil courts is marked by state government issued notifications. The issue of territorial jurisdiction is to be settled first by the civil court before beginning the determination on various issues present in any case. Further, in cases of uncertainty of jurisdiction, the courts have to record the reason for uncertainty in its judgement before proceeding ahead with the issues and it doesn’t lead to nullification of the suit. The Principal Judge of the District Court has the power to issue administrative orders for interlinking of police stations and courts. Pecuniary jurisdiction Section 6 of the C.P.C. provides that unless expressly provided, each case shall be instituted before court of lowest grade with pecuniary jurisdiction. Suits are valued to determine jurisdiction as well as the courts fee. Value of a suit might be deflated to evade courts fee or inflated to directly approach a higher court. It is the tentative value of suit at the time of filing of a suit which is to be taken into consideration. It is the Court Officer who values a suit which relying on the Suits Valuation Act, 1887. The Courts have power to pass suits beyond their pecuniary jurisdiction as in some cases they cannot return the suit to appropriate forum after hearing the case for more than 10 years. If a decree is passed by a court of law without appropriate pecuniary jurisdiction, the executing court cannot refuse to execute the decree as ‘decree without jurisdiction’.

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In the case of Raizada Tpandas v. M/S Gorakhram Gokalchand, it was held that if during the trial of a case (as far as issue of jurisdiction goes) that Plaintiff lied and Defendant was correct and the case is not cognizable by the court, then in cases of Pecuniary and Territorial jurisdiction, the case will be transferred to the court with jurisdiction while in case of Subject Matter jurisdiction, the case will be straightaway dismissed. In the case of DLF vs Modi (which has been discussed later in this notes), it was held that amendment of written statement about jurisdiction is not barred in cases of subject matter jurisdiction but barred in pecuniary and territorial jurisdiction on grounds of limitation.

1. SECTION- 9 The court “shall”- The courts have positive mandate to try cases of “civil nature” as no court can refuse jurisdiction. The term “civil nature” mentioned in the section has wider scope than merely civil case. According to Black’s law dictionary, the term civil nature has been defined as anything relating to civil rights & remedies in civil actions as contrasted from criminal actions. For example, Indian Contract Act, 1872 confers so many civil rights on different parties. The right to file a civil case is an inherent right as long as there is no specific bar. Further, there are only two types of limitations: a) Express and b) Implied. A. POWER OF THE CIVIL COURT: 1. ABDUL GAFAR V.S. STATE OF UTTARAKHAND In this case, the state government had issued a public notification to acquire land to pave an approach road for a hospital. A, who was the owner of a parcel of land at the time of notification sold his parcels to B and C. Both B & C approached the High Court through a writ and claimed that the land acquisition for construction of road has no public purpose attached to it. The State Government assured that the road which for which the land is being acquired will be a public road. Subsequently, B & C got to know that the hospital is planning to build a wall around both sides of the approach road. Both B & C became apprehensive about the fact that once the wall is built they will lose direct access to main road and there will be depreciation in value of their property. B & C filed two separate suits in the district court and a writ petition in the High Court to prevent the construction of the road. The High Court ordered the District Court to dismiss both of the suits as they were based on similar issues to that of the writ petition which was present before the High Court. The order of High Court came just a week before the date on which the District Court was going to deliver its verdict on both the suits filed before it. Supreme Court: The highest court of the country began its judgement by highlighting that the issues under consideration under both the civil suits and the writ petition had similar issues but the scope was different. The Supreme Court further held that section 24 of the C.P.C. provides the High Court an extraordinary power to take up any matter pending before a court subordinate to it and either hear the case or transfer it to any other forum which it deems fit. However, it was noted that the even if a civil suit has been termed to be a redundant and unnecessary one that doesn’t mean the civil court’s jurisdiction to hear any civil suit can be barred on any such ground. The civil court continues to have a right unless the jurisdiction is

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transferred to some other forum through statutory mechanism. While relying on its previous decision in case of Ganga Bai vs Vijai Kumar, the Hon’ble Court held that a civil suit for its maintainability requires no authority of law and it is an inherent right of an individual to file a civil suit as the parties are to free to bring any suit at their peril. 2. S.A.L. NARAYAN ROW V.S. ISHWARLAL BHAGWAN DAS In this case, the Supreme Court was deciding whether the term ‘Civil Proceedings’ as mentioned under Article 133 of the Constitution can include a case relating to relief sought in case of revenue (tax) related disputes. It is to be kept in mind that neither the Constitution nor the General Clauses Act defines the term ‘Civil Proceedings’. If the authorities don’t discharge their duties properly, it amounts to violation of civil rights of any citizen and thus civil proceedings include the present case which was instituted under Article 226 of the Constitution and not as a civil suit. The Court said that in the present case the relief was claimed not by civil suit but by extraordinary jurisdiction of the High Court as the aggrieved party tried to seek relief infringement of civil rights by authorities purporting to act in exercise of power conferred by revenue statutes. The court concluded its judgement by stating that the civil proceeding as a term is not restricted only to matters arising out of civil suits filed before civil courts instead it has a wider meaning. B. RELIGIOUS DISPUTES AND JURISDICTION OF THE CIVIL COURTS: In UK there are Ecclesiastical Courts which deal with disputes relating to Church and any case relating to such disputes is not dealt by normal court. In India we don’t has ecclesiastical courts. 1. SRI SINNA RAMANUJA JEER AND OTHERS VS SRI RANGA RAMANUJA JEER The case questioned the maintainability of the suit filed by aradanaikar and trustee of temple for the declaration of the right to first theertham. The facts were regarding whether the two temples were inter-connected or independent in nature. Further, the nature of the two temples played a pivotal role in analysing the position of the theerthakar. Whether the position of the theerthakar was a position of office or not? The Court ruled that a suit to establish one's right to an office in a temple could be entertained but the essential condition for this was that its holder must be under a legal obligation to discharge duties attached to it and be liable to penalty on failure to do so - So, theerthakars could not have an independent office since they did not have obligatory duties to perform. Rationale: The learned judge agreed with the District court judge and rejected the decision of High Court. According to the SC, the only question, was whether the said facts enable a court to hold that one temple is subordinate or part of the other temple, so that the office-holders of one temple would become the office-holders of the other. The facts clearly establish that in fact and in law the two institutions are different legal entities.

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It held that existence of cordial relationship between two independent temples cannot in the eye of law make the one a part of the other. Two independent institutions legally cannot, except in the manner known to law, be amalgamated into one institution by developing merely sentimental attachment between them. Therefore, as there exists no position of office, the suits cannot be maintainable.

2. DISTRICT COUNCIL OF UNITED BASEL MISSION CHURCH V. SALVADOR, Respondents: Members of the United Basel Mission Church They were praying that the resolution that was passed proposing the merger of the Church of South India along with UBMC was void, illegal and ultra vires to the constitution of UBMC. The trial Court dismissed the suit holding that: - The trial is maintainable but the respondents were not entitled to file the suit in a representative character. - No difference between UBMC and CSI. - The resolution was not void. The respondents filed the appeal against the decision of trial court and the Additional Civil Judge dismissed the appeal, holding that: - The respondents were entitled to file the suit in a representative character. The respondents preferred a second appeal to the high court against this judgement and decree: The High Court single judge took a contrary view and allowed the appeal and held that: - There were fundamental differences in both the religions. - The resolution is void and illegal, thus impugned. Then the appellants moved to the SC. It held - The right to worship was one of a civil nature within the meaning of Section 9 of the Code and the suit was maintainable for the determination of such a right. - The scope such suits is limited to the aspects that have a direct bearing on the question of right of worship and that of civil nature. - Both the courts were Protestants Churches, fundamental doctrines appear to be same. Further, there was little or no difference in the doctrines, faith and religious views of the both. - Next, with regards to the authority of the district judge to pass the impugned resolution the court agreed that the District Church Council only had the power to pass of amendment of the constitution and no power had been conferred to pass the resolution relating to the merger. But the Synod. which was the highest authority had the power to pass the resolution permitting the District Council church to merge. - As the Synod was a representative body of the units, it stood dissolved after passing the said resolution, but until such a resolution was passed, it existed as the highest authoritative and administrative body of the UBMC. - Thus the Court while disagreeing with the High Court clearly ruled that the resolution passed was not void.

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3. P.M.A METROPOLITAN CASE: Facts: This is a case relating to a dispute between the Patriarch’s Party faction and the Catholicos’ Party faction for gaining control over positions of power in the Malankara Jacobite Syrian Church. The dispute has been going on for a very long period of time. The court in its prior rounds of judgement had noted that the “ resourcefulness of those entrenched in and of those covetous of positions of power, and we dare say, of profit, and of those who, for one reason or another, have a vested interest in the continuance of the dispute.” The Catholicos’ faction recognised Mar Thoma Mathews I as head in Kottayam, Kerala while the Patriarch faction recognised Patriarch Ignatius Zakka as head in Damascus, Syria. There is no need for us to go into long description of historical dispute between two parties. Issue: Can the court maintain the suit considering that the dispute is religious in nature? b) Are religious rights, for instance right to worship in a religious place, entry in a temple, administration of religious shrines are rights of civil nature? Judgement: The explanation I of Section 9 was added to the code while keeping in mind that there are no ecclesiastical laws or courts in country and it was necessary to confer the jurisdiction regarding the same to civil courts although to a limited extent. The attempt to bring English Ecclesiastical laws in India was not entertained by the Supreme Court as there was no such intention on part of the British. Further, the jurisdiction of the dispute was held to be local and courts of no other country can have jurisdiction over the same. The Supreme Court goes on to say that people from all religions which coexist in India have one and only one forum for adjudication of their rights, civil or of civil nature and that is civil court. The Court held that the Fundamental Rights granted under Article 24 can be enforced as civil rights in civil courts. Explanation I is not restrictive of the right or matters pertaining to religion. It only removes the doubt to enable the courts to entertain suits where dispute about religious office is involved.” 2.On the plain phraseology of the Section, therefore, it is clear that a suit filed after coming into force of the Constitution for vindication of rights related to worship of status, office or property is maintainable in civil court and it would be duty of the court to decide even purely religious questions if they have a material bearing on the right alleged in the plaint regarding worship, status or office or property.” 3.Explanation I is not restrictive of the right or matters pertaining to religion. It only removes the doubt to enable the courts to entertain suits where dispute about religious office is involved. The right to religion having become fundamental right, it would include the right to seek declaration that the Church was Episcopal. But the court may refrain from adjudicating upon purely religious matters as it may be handicapped to enter into the hazardous, hemisphere of religion. Explanation II widens it further to even those offices to which no fees are attached. 4.Nor is there any merit in the submission that Explanation I could not save suits where the right to property or to an office was not contested or where the said right depended on decisions of questions as to religious faith, belief, doctrine or creed. The emphasis on the

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expression 'is contested' used in Explanation I is not of any consequence. It widens the ambit of the Explanation and include in its fold any right which is contested to be a right of civil nature even though such right may depend on decisions of questions relating to religious rights or ceremonies. But from that it cannot be inferred that where the right to office or property is not contested it would cease to be a suit cognisable under Section 9.

4. MUHAMMED AND ORS. VS MOIDEEN HAJI AND ORS. ON 7 APRIL, 2000 “The freedom guaranteed in Article 26 to practise religion is exercised primarily with religious worship, ritual and observation and religious practices are as much a part of religion as religious faith or doctrine.”1 Facts: There was a dispute between the parties as to whether Khutuba should be performed in Malayalam along with “its essential ingredients in Arabic” or whether it should be performed only in Arabic. The plaintiff approached the trial court to seek a decree in their favour ordering the performance of Khutuba in Malayalam as well along with Arabic. There was a contention that this was not a matter for resolution by Civil Courts and therefore, the suit was not maintainable. The trial Court accepted that contention and held that such a dispute cannot be said to be "one which the Court is entitled to decide". As there was dispute on the issue among the members of the congregation, the Assistant Collector had initiated proceedings. M.C. 21/67, and had issued Ext. A 1 order that Appellant party therein shall not interfere with the performance of 'Khutuba' in Malayalam in the mosque namely Karakunnu Jumaath-Mosque. The order issued by the Assistant Collector was challenged before the trial court and injunction was also prayed for to restrain conduct of 'Khutuba' in Malayalam. On these issues the trial Court found that the plaintiffs were not entitled to get such reliefs and that translation of the text of Khutba is not against the principles of Islamic tenets followed by Shafi school of Muslims. The plaintiffs took the matter in appeal. The lower appellate Court also found that "plaintiffs have not established a practice of using Arabic Language alone in the performance of khutuba" and the findings on that aspect rendered by the trial Court were affirmed. Having this lost the suit concurrently before the Courts below, the plaintiffs are challenging that concurrent decree in this second appeal mainly raising a substantial question of law, "Whether the lower appellate Court is correct in holding that the khutuba or even a part of it could be rendered in Malayalam and such rendering in Malayalam is not liable to be restrained?" At the stage of the High Court, it was the respondents who were contending that the suit itself is not maintainable as these religious matters do not create any enforcible right to anyone and, therefore, cannot be adjudicated as a dispute of civil nature. So, the suit itself was not maintainable. The High Court relied on the case of P M A Metropolitan to hold that the freedom guaranteed in Article 26 to practise religion is exercised primarily with religious worship, ritual and observation and religious practices are as much a part of religion as 1

PMA Metropolitan

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religious faith or doctrine. Therefore, the finding of the lower appellate Court that the suit as framed was maintainable cannot be said to be incorrect. That finding is upheld and the preliminary objection raised by the respondents/defendants is overruled. The court further went into a very theological discussion based various Islamic sources including the words to Prophet Muhammad to hold that there is no reason for restraining the performance of Khutba in Malayalam as well while rendering the essential ingredients in Arabic. C. EXPRESS BAR AND IMPLIED BAR Section 9 of the C.P.C. provides that the civil court can take cognizance of any matter unless it is expressly or impliedly barred. In India courts have always leaned in favour of saying that they have jurisdiction to hear any matter. Express Bar In this case the jurisdiction of the Civil Court is expressly barred by any enactment or statutory instrument. For example, the civil court doesn’t have any jurisdiction to hear any suit regarding environmental issues as the exclusive jurisdiction has been conferred to the National Green Tribunal by a statute. The principle of Res Judicata and the rule established by Order 2 Rule 2 are also considered to be an express bar on the jurisdiction of the civil court. The civil court can hear the suit even in cases of express bar if the alternative remedy provided is found to be inadequate or if the procedure which was laid down by the statute was not followed by the alternate authority. For example, the civil court can exercise its jurisdiction if the Principles of Natural Justice was not followed in any case. The civil court has the power to decide whether it has jurisdiction over a suit while considering the questions of express or implied bar. Implied Bar A suit is said to be impliedly barred when it is not barred expressly, but yet its cognisance is barred on account of general principles of law or public policy. Act of state, political questions, matters of policy are few of the examples in which the civil court does not have jurisdiction to try the matters. The jurisdiction of the civil court has to be expressly barred or it should be capable of being clearly inferred from the statute as the exclusion of jurisdiction of civil court has to be strictly construed and exclusion is readily inferred. In cases of implied bar, if the remedy provided is adequate then the civil court has no jurisdiction but if there is mixed questions of two laws then the doctrine of election will be applicable and the civil court will be in a position to entertain the suit if it is approached by the parties. In very few cases, the courts have denied jurisdiction on public policy grounds. Eg. plaintiff lost case because a witness lied during the proceedings of the court. The court dismissed the case by saying that it lacked jurisdiction grounds of public policy. 1. DHULABHAI VS. STATE OF MADHYA PRADESH Appellants- Dealers in tobacco

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Madhya Pradesh govt, had enacted a Madhya Bharat sales tax act, came in force 1950, which made it compulsory for the importers and the manufacturers to to pay tax if their sales exceeded a certain amount. The act also had fixed the minimum and maximum rates of tax leaving it on the discretion of the government to decide and notify the actual rate. In pursuance of this power government issued a number of notifications and levied taxes in varying amounts from the appellants in different quarters. The Appellants filed for the refund of the tax on the ground that it was illegally collected and against the constitutional provision(Article 304 a). The trial court followed the judgement of Bhailal v. State of M.P. and decreed the suit. In appeal before the High COurt the state conceded that the tax imposed was illegal in nature but contended that the suits were not maintainable as the S. 17 of the act barred from the interference of the court in the assessment made under the act. The High Court held that the suits were incompetent and not maintainable. In appeal the court held the Supreme Court held that the suits were maintainable. The SC also held that an exclusion of the jurisdiction of the civil court is not readily to be inferred unless the following conditions apply: 1. In those circumstances where the statutes provides for adequate remedy to what the civil courts would normally do, then the jurisdiction of the civil courts will be construed to be excluded. But this provision does not exclude those cases where the provisions of the particular Act have not been complied with or the tribunal has not acted in conformity with the fundamental principles of judicial procedures. 2. In the second condition, where there is no express exclusion of the examination of the remedies, then the scheme of the particular act becomes necessary and the result of the inquiry is decisive. Therefore, it is necessary to see if the statute prescribes and provides for the determination of any special rights or liabilities and whether it lays down all the questions about the said rights or liabilities to be considered by the tribunals so constituted. Also, whether the remedies which are normally performed by a civil court are specifically prescribed by the statute or not. Where the decision of the authorities under the Act was merely an error in assessment capable of correction by the usual procedure of appeals etc. But the Bench observed, that in such cases, where the jurisdiction of the civil court is barred by providing an adequate machinery in the Act, it becomes 'pertinent to enquire whether remedies normally associated with actions in civil court are prescribed by the statute or not', and thus expressly left open the question as to how far the bar would operate in cases where the charging provision is ultra vires. 3. 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. 4. Where a provision is already declared unconstitutional or the constitutionality of the provision is to be challenged then, the suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.

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5. Where the particular Act contains no machinery for refund' of tax collected in excess of constitutional limits or illegally collected a suit lies. 6. Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry. 2. ISHAR SINGH VS NATIONAL FERTILIZERS AND ANOTHER , AIR 1991 SC 1546 Facts: Plaintiff was a workman under the respondent and in his service record his date of birth was initially shown as 1-7-1930 and later changed to 23-10-1933. Based on the original entry he was about to get superannuated. A little before he was about to get superannuated, the plaintiff approached the civil court and prayed for the correction of the date and asked for an injunction against superannuation. Respondent argued that the Jurisdiction of the civil court is barred and question whether a civil court can grant an injunction against superannuation? The Court held that the Section 9 is quite wide in scope and a suit for correcting the date of birth in the record would be maintainable. In fact, asking for a correction of that type may be for various purposes and need not necessarily be confined to the question of claiming the relief available under the Industrial Disputes Act. On the point: Whether the civil court would have the jurisdiction to give injunction against the supernnuation or other benefits contemplated to a worker against the employer? The Court held that the suit was in the right forum and it was wrong for the High Court to declare that the suit was not maintainable. The court took this approach because the dispute in this case was not purely statutory in nature. The Court held that the duty of the court was to ensure that the date is rectified on paper and then the worker is required to work out his own remedy in a different forum as prescribed by law. Respondent being a public sector undertaking would do well in settling the costs. 3. PREMIER AUTOMOBILES V. WADKE (1976 1 SCC 496) Facts: There were three unions of employees (U1, U2 and U3) which were recognized as per the Trade Union Act and the Industrial Disputes Act in a company called X. The unions has limited legal capacity and they have the authority to enter into negotiations to reach agreements with the management. Two of the respondents are sub-unions which were part of the erstwhile sabha union which was derecognised by the appellant and a new union was recognised by the appellant as the sabha union of all the workmen. There was a dispute regarding the inclusive of newly joined workmen in the incentive scheme by the company. Issue: Can the trial court hear the suit as approached by the unions of workmen in this case? Judgement: Industrial Disputes Act provides for recognition and special procedure for enforcement of the agreements reached bw the parties and the management of the company. There is no common law concept of trade union as it is entirely statutory in character. Common law doesn’t provide for such kinds of agreements. Industrial Disputes Act provides

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for specific forums to deal with such cases and recognises such rights, thus there is an implied bar on jurisdiction of civil courts. In cases of implied bar, if the remedy provided is adequate then the civil court has no jurisdiction but if there is mixed questions of two laws then the doctrine of election will be applicable and the civil court will be in a position to entertain the suit if it is approached by the parties. The Civil Court will have no jurisdiction to try and adjudicate upon an industrial dispute, if it concerned enforcement of certain right or liability created only under the Act. 2. RES JUDICATA-SECTION-11 Although the principle of Res Judicata is a common law principle but C.P.C. is the only statute in which the principle of Res Judicata exists in a codified form. This was done to ensure fairness and avoid multiplicity of litigation. “No court shall”: negatively worded, an injunction on the court itself. Even if the parties don’t raise the issue, the court is expected to accept it. The principle of Res Judicata doesn’t apply to purely administrative bodies. The principle of Res Judicata is also applicable on legal representatives of the parties. It is to be noted that section 11 operated on two levels: suits and issues. The court which decided the matter must be competent otherwise the decree will be held to be void and nonest and the bar of res judicata will not be applicable in such cases. For examples, if a rent control court decides on the issue of title of a property, the decree will be held to be void as the rent control court has no jurisdiction to decide on the same. As the rent control court was one without jurisdiction, the principle of Res judicata will not be applicable. Res judicata doesn’t apply to appeals as an appeal is continuation of the suit and it is not a second suit. Res Judicata will not be applicable in cases where the suit was dismissed purely on technical grounds as the principle of res judicata is applicable only in cases of a final decision in a suit. The final decision must be on merits of the case and not due to factors like absence of parties. A decision is final and binding unless there is a verdict which came out of an appeal arising from the decision. Stray observations regarding issues which were not under the consideration of the court do not operate as res judicata. Explanation I: The decision on “former suit” is taken on the basis of the time of decision and not in accordance with time of filling of such suits. Explanation II: Merely because an appeal can be filed, the finality of a decision cannot be questioned and res judicata will continue to be in operation. Explanation III: There must have been a contest between the parties on an issue. Explanation IV: If a party fails to take up an issue or a defence in the Suit 1, it cannot be allowed to please Suit 2 on same grounds as it will be considered to be a matter directly and substantially in issue in Suit 1. Explanation V (another example of constructive res judicata): In a suit there are multiple reliefs which are usually sought and if any of the reliefs is not discussed in the decree, it is deemed to be refused. This can be challenged in an appeal but it cannot form a ground for filing another suit on the same ground.

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Explanation VI: Res judicata is also applicable in cases of representative suits which are governed by Order I Rule 8. Representative suits are filed on behalf of all parties with common interest and it is not necessary to have common cause of action. For example, a representative suit filed on behalf of multiple parties affected due to pollution is a very good example where the parties don’t have common cause of action but common interest. This explanation acts as a res judicata for all people who had common interest. The application of this explanation is subject to “bona fide” intention of the party which has filed the representative suit on behalf of all parties. If it is proved that the representative suit wasn’t filed bona fide, it doesn’t act as res judicata. The fact that one or more of the persons having a common interest had no knowledge of the Representative suit being filed is not to be taken into consideration as res judicata will continue to operate even in such cases. Explanation VII: A suit arises only out a plaint filed before a court of law and it is not to be confused with executive proceedings. Explanation VIII: Res judicata will continue to be applicable even if a forum with limited jurisdiction which had to decide the issue which was incidental to the suit which was present before the forum. For example, if a land acquisition court decides on issue of title, the decree will operate as res judicata even if the issue of title was decided to determine the person who should be awarded the compensation in case of land acquisition by the state. However, this must be distinguished from the previous example of Rent Control Court, where there’s an express bar on its jurisdiction as to questions of title and any such matter should be referred to the civil court. Res judicata applies even if the decision is grossly erroneous except on grounds of subject matter jurisdiction. If a court gave two separate decrees in a matter on two different issues, it is important to appeal against both the verdicts otherwise the decree which was not appealed before the higher forum will act as res judicata for the appeal from the other decree. Representative suits are not to be confused with Public Interest Litigation as there is no requirement of locus standi for filing PILs. Although the provisions of CPC don’t govern PILs however the underlying principles such as Res judicata continue to remain applicable. Res judicata is not applicable even to orders passed by quasi judicial forums. If the interim order results in termination of the proceedings itself, then res judicata is applicable as the interim order was the final decision in this case. If the interim order of such a kind that allows for further scope of challenge → Appeal and if there is no such provision for appeal, it can be challenged when the decree itself is challenged in appeal. If there wasn’t any scope for appeal to the interlocutory order itself, the courts are less likely to apply res judicata. Any judgement or decree will not result in operation of res judicata until it results in termination of the suit. 1. About the application of the principle to writ petitions and proceedings before forums that are not strictly "civil courts" : (i) Gulabchand Chhotalal Parikh vs State Of Bombay (Now Gujarat), AIR 1965 SC 1153 (ii) Daryao And Others vs The State Of U. P. And Others, AIR 1961 SC 1457 (iii) Raj Lakshmi Dasi And Others vs Banamali Sen And Others, AIR 1953 SC 33

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1. GULABCHAND CHHOTALAL PARIKH VS STATE OF BOMBAY (NOW GUJARAT), AIR 1965 SC 1153 The appellant had filed a writ of mandamus and a writ of prohibition against the respondent (State). The High Court after hearing the petition and giving opportunity for full contest dismissed the petition on merits. After the petition was rejected the appellant filed a suit and thereupon raised the same contentions. This time the trial Court, the first appellate Court and the high court held that the suit was barred by res judicata in view of the judgement of the HC in the writ. Issue: Whether there was res-judicata? On general principles of res judicata, the decision of the High Court on a writ petition under Art. 226 of the Constitution, on the merits, on a matter, after full contest, will operate as res judicata in a subsequent regular suit between the same parties with respect to the same matter. It is not necessary that the court deciding the matter formerly be competent to decide the subsequent suit or that the former proceeding and the subsequent suit have the same subject matter. The nature of the former proceeding is immaterial. There is, therefore, no good reason to preclude such decisions on matters in controversy in writ proceedings under Arts. 226 or 32 from operating as res judicata in subsequent regular suits on the same matters in controversy, between the same parties, and thus to give limited effect to the principle of finality of decisions after full contest. The court rejected the contention that different remedies are available to both the parties under 32 and 226 and therefore res-judicata would not apply. They court opined that the difference of remedies are not to be taken into consideration as one remedy cannot bar the adoption of other remedies. The court needs to look into the finality of judgement announced and they must be regarded as binding in respect of the matters covered by them. It is not necessary that the Court deciding the matter formerly be competent to decide the subsequent suit or that the former proceeding and the subsequent suit have the same subject matter. The nature of the former proceeding is immaterial. We do not see any good reason to preclude such decisions on matters in controversy in writ proceedings under arts. 226 or 32 of the Constitution from operating as res judicata in subsequent regular suits on the same matters in controversy between the same parties and thus to give limited effect to the principle ,of the finality of decisions after full contest. We therefore hold that on the general principle of res judicata, the decision of the High Court on a writ petition under art. 226 on the merits on a matter after contest will operate as res judicata in a subsequent regular suit between the same parties with respect to the same matter.

Subbarao: Dissent: The decision of the High Court would not preclude the court before which the suit is filed from deciding the same question on merits in the suit. Subbarao presented the situation in the following manner: Res-judicata will operate when the matter has been has been dealt directly or substantially in a former suit between the same parties or parties whom they are litigating or claiming the

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same title at a competent court or in a suit in which the issue has been subsequently raised, heard and finally decided by the court. A decision in a previous suit would not be res judicata in a subsequent suit unless the stringent conditions laid down in s. 11 of the Code were satisfied; whereas a decision in a proceeding which was not a suit would be res judicata whether or not the said conditions were complied with. 2. DARYAO AND OTHERS VS THE STATE OF U. P. AND OTHERS, AIR 1961 SC 1457 In a circumstance where the court dismissed a writ petition under Article 226 based on the merits of the case holding that there was no violation of fundamental rights or that the violation was constitutionally justified. And a subsequent petition has then been filed under Article 32 of the constitution at the Supreme Court, and for the same facts and reliefs, by the same party, it will be barred by the general principle of res-judicata? Petitioners- Right to move to SC for the enforcement of the fundamental rights which is guaranteed under 32(1) is itself a fundamental right, further it would be unfair if such a fundamental right is barred by putting a technical rule of res-judicata. Respondents: Article 32(1) does not guarantee every citizen to make a petition under the article but it merely provides the right to move to the Court by appropriate proceedings. Further, they argue that in cases like this an appropriate proceeding under the instant circumstance would be a special leave petition under 136 or an Appeal. Also, 32(1) ensures the right to move but does not impose an obligation upon the Court to grant relief because as per the provisions of the Constitution the power to grant relief is discretionary. Question: The Rule of Res-judicata is merely a technical or based on high public policy? Answer: The rule of res judicata as indicated in s. 11 of the Code of Civil Procedure has no doubt, some technical aspects, for instance the rule of constructive res judicata may be said to be technical; but the basis on which the said rule rests is founded on considerations of public policy. It is in the interest of the public at large that a finality should attach to the binding decisions pronounced by Courts' of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation. Question: The next question to consider is whether it makes any difference to the application of this rule that the decision on which the plea of res judicata is raised is a decision not of this Court but of a High Court exercising its jurisdiction under Art. 226. The argument is that one of the essential requirements of s. 11 of the Code of Civil, Procedure is that the Court which tries the first suit or proceeding should be competent to try the second suit or proceeding, and since the High Court cannot, entertain an application under Art. 32 its decision cannot be treated as res judicata for the purpose of such a petition. Ratio: We, must now proceed to state our conclusion on the preliminary objection raised by the respondents. We hold that if a writ petition filed by a party under Art. 226 is considered on

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the merits as &-contested matter, and is dismissed the decision thus pronounced would continue to bind the parties unless it is otherwise modified or reversed by appeal or other appropriate proceedings permissible under the Constitution. It would not be open to a party to ignore the said judgment and move this Court under Art. 32 by an original petition made on the same facts and for obtaining the same or similar orders or writs.

3. RAJ LAKSHMI DASI AND OTHERS VS BANAMALI SEN AND OTHERS, AIR 1953 SC 33

Facts: There was a triangular contest regarding the right to the compensation of money between A, B and two other rival claimants to 4 annas share in the estate of the deceased and C, a mortgagee from one of the claimants. The three parties required the court to refer to the question of apportionment to be referred to the Court and a special judge who was appointed to decide the question of the title. The land acquisition judge as well as the high court judge decided the title in favour of B after due contest. But the Privy Council reversed the decision and decided it in favour of A. In a subsequent case between the parties the title of the parties was raised again. It was held that: (i) that the decision of the Privy Council the question of title in the land acquisition proceedings operated as res judicata as against B &a well as C, even though the Land Acquisition Judge was a Special Judge who would have had no juris diction to try the subsequent suit; (ii) that the rule of res judicata was applicable even though the subject matter of dispute in the land acquisition proceedings was the compensation money and not the property which was in dispute in the subsequent suit ; (iii) the fact that the mortgagee did not appear at the hearing before the Privy Council was immaterial as the judgments in the first two courts were given after full contest.

A. APPLICATION OF THE PRINCIPLE BETWEEN CO-DEFENDANTS: (1) Mahboob Sahab. V. Syed Ismail & Ors, (1995) 3 SCC 693 & (2) ChanduLal v. Khalilur Rahman, A.I.R. I950 P.C. 17.

1. MAHBOOB SAHAB. (A AND Z) V SYED ISMAIL & ORS,(X, Y AND M) (1995) 3 SCC 693DEFENDANTS V. PLAINTIFF

X and Y, sons of Z filed the present suit against the appellant, impleading their parents, for possession of certain lands and for mesne profits from the appellant. Their contention was that Z had executed a gift deed jointly in favour of X and Y and their mother M, who, in her

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turn, orally gifted her share to X. Being minors, Z had colluded with the Patwari and executed sale deed in favour of A. On their becoming aware of the same, they filed the suit since Z had no right, title and interest therein to alienate the lands. The sales were thus invalid, inoperative and do not bind them. A denied the validity of the gift deed from Z to M, X and Y. In a previous judgment in relation to a possessory mortgage, the Court had held that Z had jointly gifted the lands to the X, Y and M by a registered gift deed. The aforesaid finding was pleaded to operate as res judicata on A’s plea in the present suit. In the present suit, the trial court negatived the plea of res judicata as a preliminary issue but decreed the suit in favour of X and Y on merits. Though it was open to sustain the trial court decree on the basis of the doctrine of res judicata, it was not argued before the Additional Civil Judge on its basis. The Additional Civil Judge held that the alleged gifts were not proved, nor valid in law and decreed the suit in favour of A. The High Court, without disturbing any of the findings of facts recorded by the Additional Civil Judge, held that the previous suit operates as res judicata , as the parents and the respondents are co-defendants in that suit. The question, therefore, is whether the High Court was right in its conclusion that the decree in the previous suit operates as res judicata and whether reversal of the decree without disturbing the findings of fact on merits is legal. Judgment: For application of this doctrine between co-defendants four conditions must be satisfied, namely, that (1) there must be a conflict of interest between the defendants concerned; (2) it must be necessary to decide the conflict in order to give the reliefs which the plaintiff claims; (3) the question between the defendants must have been finally decided; and (4) the codefendants were necessary or proper parties in the former suit. In the previous suit for possessory mortgage, both co-defendants (X,Y,M; and Z) had admitted to a claim made by the plaintiff (in the previous suit) that the property in question had been gifted by Z to X, Y and M. Thus, there was no conflict of interest between the defendants in that suit nor was it necessary to decide about the validity of the gift said to have been executed by Z. The dispute therein was whether the possessory mortgagee was bound by the decree and the creditor could proceed against Z and the said property is liable to sale for realisation of his decree debt. In that context the relevancy or validity of the gift is immaterial. 2. CHANDU LAL AGARWALLA V. KHALILUR RAHMAN AIR I950 PC 17 (X V. Y):

Facts: The single question argued before the Board was as to the validity of the plea raised by X that the claim of Y in the present suit to be lawful heirs of one Z, who died intestate on March 11, 1924, was res judicata in a previous suit, which had been heard and determined by the

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Subordinate Judge of Jalpaiguriin 1924 in Y’s absence. The decree in the previous suit was passed in absence of Y and her sons. The appellants contended that the judgment in the previous suit operated under the principle of res judicata to preclude Y from asserting that she was the lawful wife of the deceased. Decision: The conditions for the application of the doctrine of res judicata as between parties who have been co-defendants in a previous suit are thus laid down : there must be (1) a conflict of interest between the co-defendants, (2) the necessity to decide that conflict in order to give the plaintiff the appropriate relief, and (3) a decision of that question between the codefendants. It may be added that the doctrine may apply even though the party, against whom it is sought to enforce it, did not in the previous suit think fit to enter an appearance and contest the question. However, if such a party is to be bound by a previous judgment, it must be proved clearly (and cannot be assumed) that he had or must be deemed to have had notice that the relevant question was in issue and would have to be decided. The facts of the case show that such a party in the instant situation was not at all informed regarding the issue of her identitty to be discussed in the suit. children. So far it is abundantly clear that there is no justification for attributing to Khatemmanessa knowledge that in the suit for rent brought against her co-defendants and herself the question of her status would as between herself and Tanjina Khatun have to be decided. She might indeed assume from the fact of her joinder that that question was not in issue. Therefore, it would be unfair for the parties if the court would move on with the presumption that the parties had knowledge. Hence, no res-judicata. B. APPLICATION OF THE PRINCIPLE TO SUITS JOINTLY TRIED/ WHEN THERE ARE MULTIPLE DECREES: 1. SHEODAN SINGH V SMT. DARYAO KUNWAR, 1966 SC AIR 1332 Facts: The appellant filed two suits in the Court of the Civil Judge, one for declaration of his title to the suit property and the second for other reliefs. While these suits were pending the respondent instituted two suits in the Munsif’s court against the appellant claiming joint ownership to the suit property and other reliefs. The four suits were tried together by the Civil Judge. Some of the issues were common to all the suits and one of the common issues relating to the title of the parties were found in favour of the respondent. The Civil Judge dismissed the appellant's title suit, decreed his other suit partly, and decreed the two suits of the respondent. The appellant filed appeals against the decree in each suit. The High Court dismissed the two appeals arising out of the respondent's sutis, one as time barred, and the other for failure to apply for translation and printing of the record. As the title of the respondent to the suit property had become final because such dismissal, the respondent prayed for the dismissal of the other two appeals also, as the main question involved therein, was the same. The High court agreed that the appeals were barred by res judicata and dismissed them. against these orders of dismissal, the appellant filed appeals to this Court, and contended that (ii) The Munsif's Court could not try the title suit filed by the appellant; (iii) it could not be said that appeals arising out of the respondent's suits were former suits and as such the decision therein would be res judicata and

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(iv) the two appeals dismissed-one on the ground of limitation, and the other on the ground of not printing the records, could not be said to be heard and finally decided. HELD : A plain reading of s. 11 shows that to constitute a matter res judicata, the following conditions must be satisfied, namely(i)The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue in the former suit; (ii)The former suit must have been a suit between the same parties or between, parties under whom they or any of them claim; (iii)The parties must have litigated under the same title in the former suit; The court which decided the former suit must be a court competent to try the subsequent suit or the suit in which such issue is subsequently raised; and The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the first suit. Further Explanation I shows that it is not the date on which the suit is filed that matters but the date on which the suit is decided, so that even if a suit was filed later, it will be a former suit if it has been decided earlier. In order therefore that the decision in the earlier two appeals dismissed by the High Court operates as res judicata. The appellants contended that: (i)that title to property was not directly and 1 ; (ii) that the court of the Munsif could not try the title suit No.37 of 1950; (iii) that it cannot be said that appeals arising out of suits Nos. 77 and 91 were former suits and as such the decision therein would be res judicata; (iv)that it cannot be said that the two appeals from suits Nos. 77 and 91 which were dismissed by the High Court, one on the ground of limitation and the other on the ground of not printing the records, were heard and finally decided. High Court Dismissed all theses and held that: (i) The contention that the issue as to the title was not directly or substantially in issue is rejected as the judgement of the Civil Judge clearly shows that the contention regarding the title did arise out of the pleadings of the parties. (ii) It is the court which decided the former suit whose jurisdiction to the subsequent suit has to be considered, and not the court in which the former suit may have been filed. Though the respondent’s suit has to be considered, and not the court in which the former suit may have been filed in the Munsif’s court, they were transferred to the court of the civil judge and were decided by him. Therefore, the contention that the Munsif before whom the respondent's suits were filed, could not try the subsequent title suit of the appellant had no force. (iii)The High Court's decision in the two appeals arising from the respondent's suits were undoubtedly earlier and therefore the condition that there should have been a decision in a former suit to give rise to res judicata in a subsequent suit was satisfied in the present case. (iv) The Court interpreted the dismissal of the of the appeals as a way to uphold the decision on the merits and that the HC confirmed with the judgement of the trial court on the question of the title. To hold otherwise would make res judicata impossible in cases where the trial court decides the matter on merits but the appeal court dismisses the appeal on some preliminary ground thus confirming the decision of the trial court on the merits.

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It is well-settled that where a decree on the merits is appealed from, the decision of the trial court loses its character of finality and and what was once res judicata again becomes res subjudice and it is the decree of the appeal court which will then be res judicata. But if the contention of the appellant were to be accepted and it is held that if the appeal court dismisses the appeal on any preliminary ground, like limitation or default in printing, thus confirming into the trial court's decision given on merits, the appeal court's decree cannot be res judicata, the result would be that even though the decision of the trial court given on the merits is confirmed by the dismissal of the appeal on a preliminary ground there can never be res judicata. We cannot therefore accept the contention that even though the trial court may have decided the matter on the merits there can be no res judicata if the appeal court dismisses the appeal on a preliminary ground without going into the merits, even though the result of the dismissal of the appeal by the appeal court is confirmation of the decision of the trial court given on the merits. Acceptance of such a proposition will mean that all that the losing party has to do to destroy the effect of a decision given by the trial court on the merits is to file an appeal and let that appeal be dismissed on some preliminary ground, with the result that the decision given on the merits also becomes useless as between the parties. We 30 9 are therefore of opinion that where a decision is given on the merits by the trial court and the matter is taken in appeal and the appeal is dismissed on some preliminary ground, like limitation or default in printing, it must be held that such dismissal when it confirms the decision of the trial court on the merits itself amounts to the appeal being heard and finally decided on the merits whatever may be the ground for dismissal of the appeal. It would be a different matter, however, where the decision of the appeal court does not result in the confirmation of the decision of the trial court given on the merits, as for example, where the appeal court hold that the trial court had no jurisdiction and dismisses the appeal, even though the trial court might have dismissed the suit on the merits. However as in the present case the dismissal was on prelimiary grounds, therefore, the resjudicata applies and it is established that the HC.

C. NON-APPLICATION OF THE DOCTRINE TO ERRONEOUS DECISIONS ON JURISDICTION: MATHURA PRASAD BAJOO JAISWAL & ORS VS DOSSIBAI N. B. JEEJEEBHOY, AIR 1971 SC 2355 Facts: The Appellant in this case had obtained a lease for constructing buildings for residential or business purposes. The Appellant approached the trial court determination of the standard rent for leased land. The trial court rejected the application grounds that the provisions of statute which relates to calculation of standard rent is not applicable in the present case because the statute “did not apply to open land let for constructing buildings for residence, education, business, trade or storage. This order was confirmed on September 28, 1955, by a single Judge of the Bombay High Court in a group of revision applications”. In a subsequent case the Bombay High Court held that the calculation of standard rent cannot be denied solely because open land will be used for residential or education purposed only after a structure is built on the land. The appellant filed a fresh suit in the trial court after such a

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judgement of High Court. The trial court this time held that the suit was barred by operation of res judicata because “it had been finally decided by the High Court between the same parties in respect of the same land in the earlier proceeding for fixation of standard rent.”. The judgement of the trial court was confirmed by the Bombay High Court as well and the appellant approached the Supreme Court with an appeal against the judgement of the Bombay High Court. Issue: Is the present suit barred by operation of Res Judicata? Judgement: A decision on an issue of law will be as res judicata in a subsequent proceeding between the same parties, if the cause of action of the subsequent Proceeding be the same as in the previous proceeding, but not when the cause of action is different, nor when the law has since the earlier decision been altered by a competent authority, nor when the decision relates to the jurisdiction of the Court to try the earlier proceeding, nor when the earlier decision declares valid a transaction which is prohibited by law. It is obvious that the matter in issue in a subsequent proceeding is not the same as in the previous proceeding, because the law interpreted is different. A question relating to the jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of the Court. If by an erroneous interpretation of the statute the Court holds that it has no jurisdiction, the question would not, in our judgment, operate as res judicata. Similarly by an erroneous decision if the Court assumes jurisdiction which it does. not possess under the statute, the question cannot operate as res judicata between the same parties, whether the cause of action in the subsequent litigation is the same or otherwise. 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 a subsequent proceeding between the same parties. But, where the decision is on a question 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 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. The orders passed by High Court, the Court of Small Causes and the Trial Court was set aside and the Court of First Instance was remanded the case by the Supreme Court to deal and dispose the present matter. D. THAT THE PRINCIPLE APPLIES EVEN TO ERRONEOUS DECISIONS (NOT MANDATORY TO READ THIS) SHAH SHIVRAJ GOPALJI V. ED-. APPAKADH AYIASSA AIR 1949 PC 302. Explanation II of the Section 11 of the Civil Procedure Code has already been covered along with the classroom notes above.

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E. APPLICATION OF THE PRINCIPLE TO DIFFERENT STAGES OF THE SAME PROCEEDINGS: (1) SATYADHYAN GHOSAL AND OTHERS VS SM. DEORAJIN DEBI ,AIR 1960 SC 941 Facts: Issue: Whether the first judgement of the High Court will serve as res judicata and bar the appellant to approach the High Court in the present case? Judgement: The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter-whether on a question of fact or on a question of law-has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. The principle of res judicata applies also as between two stages in the same litigation to this extent that a court, whether the trial court or a higher court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings. Does this however mean that because at an earlier stage of the litigation a court has decided an interlocutory matter in one way and no appeal has been taken therefrom or no appeal did lie, a higher court cannot at a later stage of the same litigation consider the matter again ? As was pointed out by the Privy Council in Moheshur Singh's Case (supra) the effect of the rule that at every stage of the litigation a decision not appealed from must be held to be finally decided even in respect of the superior courts, will put on every litigant against whom an interlocutory order is decided, the burden of running to the higher courts for redress of the grievances, even though it may very well be that though the interlocutory order is against him, the final order will be in his favour and so it may not be necessary for him to go to the appeal court at all. Apart from the inevitable delay in the progress of the litigation that such a rule would cause, the interests of the other party to the litigation would also generally suffer by such repeated recourse to the higher courts in respect of every interlocutory order alleged to have been wrongly made. It is clear therefore that an interlocutory order which had not been appealed from either because no appeal lay or even though an appeal lay an appeal was not taken could be challenged in an appeal from the final decree or order. A special provision was made as regards orders of remand and that was to the effect that if an appeal lay and still the appeal was not taken the correctness of the order of remand could not later be challenged in an

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appeal from the final decision. Only those interlocutory judgements which serve as the final decision in any case operate as res judicata in any case. In our opinion the order of remand was an interlocutory judgment which did not terminate the proceedings and so the correctness thereof can be challenged in an appeal from the final order. We hold therefore that the appellant is not precluded from raising before us the question that s. 28 of the original Thika Tenancy Act was not available to the tenants after the Thika Tenancy Amendment Act came into force. On this question we have already decided, as already indicated above, in Mahadeolal Kanodia's Case(1) that section 28 after its omission by the Amending Act is not available in respect of proceedings pending on the date of the commencement of the Thika Tenancy Ordinance of 1952. We hold therefore that the view taken by the High Court in this matter was wrong and that the Munsif acted without jurisdiction in rescinding the ejectment decree. We accordingly allow the appeal, set aside the order of the High Court appealed from and also the order of the Munsif dated February 12, 1955, by which he rescinded the ejectment decree (2) ARJUN SINGH VS MOHINDRA KUMAR & ORS, AIR 1964 SC 993 Facts In the present case there were three suits pending between both the parties in which Appellant was plaintiff in one suit and defendant in other two suits. As the appellant failed to appear on one day, the suit in which appellant was in position of plaintiff was dismissed for default while the other two suits were decided ex parte by the court. On May 31, 1958 the appellant filed three applications in the three suits for setting aside the ex parte orders passed against him. The application in Suit 134 of 1956 was treated as the primary one and in support of it an affidavit was filed in which the appellant stated that after the talks for compromise had reached a decisive stage and when the appellant was 'making arrangements to implement that decision he got an attack of heat-stroke and was, therefore, unable to be present in Court when the case was called on the 29th-i.e. the day fixed for bearing. He, therefore, prayed that the order or direction to proceed ex parte passed against him in the two suits in which he was defendant may be set aside and he be 'given an opportunity to contest the suits. Needless to add that in suit 20 of 1953 which had been dismissed for default, the prayer was to set aside that dismissal. Application under Order IX Rule 7 was filed in both the suits which were proceeded ex parte by the court and the provisions of Order IX Rule 9 was relied on the plead before to set aside the dismissal of the suit in which the appellant was in the position of plaintiff. All the applications were presented before the Civil Judge who dismissed the application which was put forward to set aside the dismissal of Suit 1 in which the appellant was plaintiff. The applications filed under Order IX Rule 7 were also rejected by the court. The appellant moved an application under Order IX Rule 13 of the code which was held to be barred by res judicata after the rejection of an application filed under Order IX Rule 7. The appellant approached the Supreme Court under the provisions of Special Leave Petition. Issue Can the rejection of an application filed under Order IX Rule 7 operate as a bar on grounds of res judicata for an application filed under Order IX Rule 13? Judgement Adverting to the facts of the present appeal, this would primarily turn upon the proper construction of the terms of O. IX, r.7. The opening words of that rule are, as already seen,

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'Where the Court has adjourned the hearing of the suit ex parts'. Now, what do these words mean? Obviously they assume that there is to be "a hearing" on the date to which the suit stands adjourned. If the entirety of the "hearing" of a suit has been completed and the Court being competent to pronounce judgment then and there, adjourns the suit merely for the purpose of pronouncing judgment under O. XX, r. 1, there is clearly no adjournment of "the hearing" of the suit, for there is nothing more to be heard in the suit. It was precisely this idea that was expressed by the learned Civil judge when he stated that having regard to the stage which the suit had reached the only proceeding in which the appellant could participate was to hear the judgment pronounced and that on the terms of rules 6 & 7 he would permit him to do that. If, therefore, the hearing was completed and the suit was not "adjourned for hearing", O. IX, r.7 could have no application and the matter would stand at the stage of O. IX, r.6 to be followed up by the passing of an ex parte decree making r. 13 the only provision in order IX applicable. If this were the correct position, it would automatically follow that the learned Civil Judge would have no jurisdiction to entertain the application dated May 31, 1958 purporting to be under O. IX, r.7, or pass any order thereon on the merits. This in its turn would lead to the result that the application under O. IX, r. 13 was not only competent but had to be heard on the merits without reference to the findings contained in the previous order. In the result, the appeal is allowed and the application filed by the appellant under O. IX, r. 13 for setting aside the ex parte decree passed in suit 134 of 1956 is remanded to the trial Judge for disposal on the merits in accordance with law. 3. SECTION- 10 Section 10 states that no court should proceed with the trial of any suit in which the matter in the issue is directly and substantially in issue in a previously initiated suit/ still litigating between the same parties pending in the same or any other court beyond the limits of the established or continued by the Central Govt and having the jurisdiction or before the SC. If decision is pending in a suit, section 10 prevents the court from trying the other suit. As section 10 prevents only trial, everything else which doesn’t deal with trial such as injunction, creation of inventory of assets or appointment of receiver (for administrative purposes) can be done by the court. The test to determine what is “directly and substantially” in issue can be determined by deciding what is ancillary or incidental to the suit. According to Mulla if a relief has been sought then the question is surely “directly and substantially” in issue. The issue had to be decided for granting the reliefs.

Application of Section-10: - Where the subject matter is same and the parties are the same, the second suit is stayed. - S. 10 does not apply once the suit stands decided. (execution proceedings are therefore not within the scope) - S. 10 does not authorize one court from staying the proceedings of another court. - only applies to civil suits Scope of S. 10: - A case under Arbitration act won’t stand as a suit.

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-

Proceedings under the RDBT act wont be a suit (Vee Cee Yes Granites v. Central Bank of India) Generally the application under Section 10 is to be entertained after the written statement has been filed. Section 10 does not prevent the consolidation of the suits. Just prohibits the trial of the case. (the word trial cannot be interpreted narrowly and has to be interpreted as per the purpose of the provision) But the interlocutory orders can be passed. S. 10 applies to the summary suits as well- Indian Bank v. Maharashtra State Cooperative Marketing Federation Ltd.

1. SULOCHANA AMMA VS. NARAYANAN NAIR (1994 (2) SCC 14) The conflict was regarding the interpretation of the statutes and to bring in clarity regarding Section 11 vis-a-vis Explanation of VIII of S. 11. The major contention of the appellants was that The Amending Act of 1976 made no attempt to delete the words "Court competent to try such" suit in the main section, which would indicate that the legislature intended to retain the distinction between judgments of the court of limited pecuniary jurisdiction, which will not operate as res judicata to a later suit laid in a court of unlimited jurisdiction, on the same issue between the same parties or persons under whom they claim title or litigating under the same title. Explanation VIII only brings within the fold of Section 11, the decree or order of the courts of special jurisdiction, like probate court, land acquisition court, rent control court, etc. The non-obstante clause incorporated in Explanation VIII would be only in relation to such decrees. The purpose of the Explanation, therefore, is only to remove that anomaly. The legislature having- been aware of the law laid down by courts, that the decree of a court of limited pecuniary jurisdiction does not operate as res judicata in a subsequent suit, did not intend to alter the law by suitable amendment to the body of Section 11. This argument of the appellants was supported by certain judgements of the Calcutta High Court. The Court dismissed the contentions of the appellants and held that: -

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Section 11 of CPC helps to prevent the multiplicity of cases as it embodies the rule of conclusiveness as evidence or bars as a plea as issue tried in an earlier suit founded on a plaint in which the matter is directly and substantially in issue and became final. In a later suit between the same parties or their privies in a court competent to try Such subsequent suit in which the issue has been directly and substantially raised and decided in the judgment and decree in the former suit would operate as res judicata. Section 11 does not create any right or interest in the property, but merely operates as a bar to try the same issue once over. The view presented by the appellants was in existence before the Explanation 11 came into existence. Therefore, the amendment has not amended the body of the section but in general has extended and widened the scope of Section 11. The Law Commission in its report had recommended to remove the anomaly and thus the

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explanation serves the same purpose. Hence, there has to be a harmonious construction of both the section and explanation. The result that would flow is that an order or an issue which had arisen directly and substantially between the parties or their privies and decided finally by a competent court or tribunal, though of limited or special jurisdiction, which includes pecuniary jurisdiction, will operate as res judicata in a subsequent suit or proceeding, notwithstanding the fact that such court of limited or special jurisdiction was not a competent court to try the subsequent suit. The issue must directly and substantially arise in a later suit between the same parties or their privies. Further, the court has also rejected the narrow interpretation of the Calcutta High Court and clearly established that an explanation to a section is not a substantive provision by itself. There6fore, Therefore, the explanation normally should be so read as to harmonise with and to clear up any ambiguity in the same section.

2. UTHIVA SOMASUNDARESWARAR VS. RAJANGA (AIR 1965 MAD 355) 1. Three temples situate in the village of Vangarai in Sirkali Taluk, Tanjore Dt. represented by their trustees instituted a suit which has given rise to this appeal for an injunction restraining the respondents 1 to 4, from interfering with their possession and enjoyment of the suit properties. The suit was later converted into one for recovery of possession. 2. The properties originally formed part of the village samudayam and it is now found, and that finding has not been challenged before us, that they at an unknown period were given by the villagers to the carpenter and the barber for their services to the village community. 3. Notwithstanding this, patta for the lands continued to remain in the names of the cosharers. Even the tax is also paid by them. 4. Recently, during the year 1955 disputes arose between the cosharers and respondents 1 to 4; the former purported to dedicate the property covered by the suit to the village temples, namely, the appellants herein. Patta for the lands was also transferred in the names of the temples. 5. . Respondents 1 to 4 who were in possession of the lands apprehending that the crops standing on the lands would be removed by the trustees of the temple tiled O. S. No. 33 of 1956 on the file of the District Munsif Court, Sirkali, for an injunction against the latter restraining them from so doing. That suit was dismissed with no costs. 6. It is now pertinent to say that the relief claimed in that suit related only to the single crop standing on the lands and no question of title was involved in the case. 7. Shortly after the disposal of the suit the appellants instituted the suit that has given rise to this appeal for injunction against respondents 1 to 4 pleading their own title and stating that the respondents were let into possession of the lands by the predecessors-in-title of the co-sharers, landlords, only five years previous thereto under a permissive title and that they had surrendered possession in the year 1957 and that therefore they had no further right to disturb the appellants' lawful possession. 8. . The trial Court upheld the title of the appellants. It however found that the appellants had no possession of the property and it passed a decree for possession in their favour. 9. This decree was set aside by the learned Subordinate Judge of Kumbakonam to whose file the appeal had been transferred.

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10. . The appellate Court held that there had been no valid or lawful dedication by the cosharers, landlords of the lands in favour of the appellants and that the lands being manyam given to the contesting respondents as artisan service inams, they could not be evicted from their possession as they had the right to remain on the property so long as they rendered service to the villagers. 11. This view has been accepted on second appeal by Venkataraman, J. But the learned Judge gave a certificate under Cl. 15, Letters Patent for a further appeal. Hence this appeal.

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The trial Court upheld the title of the appellants. It however found that the appellants had no possession of the property and it passed a decree for possession in their favour.

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This decree was set aside by the learned Subordinate Judge of Kumbakonam to whose file the appeal had been transferred.

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The appellate Court held that there had been no valid or lawful dedication by the cosharers, landlords of the lands in favour of the appellants and that the lands being manyam given to the contesting respondents as artisan service inams, they could not be evicted from their possession as they had the right to remain on the property so long as they rendered service to the villagers.

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This view has been accepted on second appeal by Venkataraman, J. But the learned Judge gave a certificate under Cl. 15, Letters Patent for a further appeal. Hence this appeal. Appellants contended that:

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first contended that as the lands were given to the ancestors of respondents 1 to 4 in lieu of wages for services rendered by them they should be regarded as manyam or inam grants for services and that it should be open to the co-shares, the grantors, to recover possession of the lands whenever they chose. The appellants relying upon a judgement stated that there were two types of grants, namely (1) that was made in lieu of wages for services to be rendered and (2) possessory grant subject to the condition of the performance of service. The contention on behalf of the appellants, as we said is, that having regard to the admissions on the part of the respondents, the grant in the present case should be regarded as one coming under the first category; that therefore it was open to the landlord to terminate the services of the respondents at their pleasure and make over the lands to the temples. As pointed out by Venkataraman J, this case was not put forward either in the pleadings or before the Courts below. The learned Judge therefore, held that it was not open to the appellants to start a new case at the stage of the second appeal. But the learned judge did not dispose of the appeal on this narrow ground alone. He held that even if they were permitted to raise such a case, it has to fail for the reason that the appellants had failed to make out the right to resumption. It was then argued that in as much as the respondents' suit O. S. No. 33 of 1956 had been dismissed as not pressed, they would be precluded from agittating their title to the property in the present suit as they would be barred by res judicata.

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The Court rejected the argument and stated that : -

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Inam can only be granted by the state or sovereign, when a private individual grants a land especially in a ryotwari area under an arrangement it can never be regarded as inam. The court agrees that the land in question are of appellants but the same has been given to the respondents and there are no means to know the terms of the grants. The court also stated that: If some years after the arrangement had been entered into the villagers want to evict the service-holders and recover possession of the lands given to them in lieu of wages for service, it will be for them to make out that the arrangement was a terminable one and that it had been terminated in the manner stipulated or as provided by law. There has been no attempt in the present case to prove that the original arrangement was a terminable one. In this view we are of the opinion that the conclusion reached by the learned Judge could not be assailed. Admittedly there was a right to enjoyment created by these very landholders in favour of the village artisans since a long time past. If, now, the villagers want to go behind that arrangement and attempt to recover possession of the property it will be for them to prove what the terms of the arrangement were. The fact that they had title to the property could not be sufficient in the circumstances to prove their right to evict, for the respondents could not be regarded as trespassers. Answering the question of Res-judicata the court held that the question dealt above was regarding the possessory right of the respondents and did not involve the question of title.

A.ABOUT THE EXPRESSION MATTERS "DIRECTLY AND SUBSTANTIALLY IN ISSUE" 1. Sajjdanashin Sayed v. Musa Daddabhai Ummer, https://indiankanoon.org/doc/785915/ (this case cites the Australian and other cases that I had referred to. Reading just this case should be sufficient to understand the principle. 2. Run Bahadur Vs. Lucho Koer ( 1885) ILR 11 Cal 301 (PC) ; 3. Asrar Ahmed Vs. Durgah Committee, Ajmer (AIR 1947 PC 1) 4. N. M. Tripathi v. Dayawant, AIR 1988 Pat 123 1. SAJJDANASHIN SAYED V. MUSA DADDABHAI UMMER This case arises out of the orders passed rejecting the objection raised by the appellants. The preliminary object raised by the appellants were that the present proceedings were barred resjudicata. aggrieved by multiple litigation the appellant(who was the respondent in the main inquiry) has approached with the plea of res-judicata. The major questions that were infront of the court to decide : (i) What is meant in Section 11, CPC by an issue being collaterally or incidentally in issue as distinct from being directly and substantially in issue?

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(ii) Whether the decision of the District Judge, Surat in Appeal No.80/31 operates as res judicata in the present proceedings? (iii) Whether the decision of the Assistant Charity Commissioner dated 19.1.1967 in Inquiry No.14/64 filed by Peer Mohammed Fruitwala and Inquiry No.3/65 filed by Sayed Hasan Sayed Mohammed El- Edroos holding the properties in respect of Dargahs at Ahmedabad, Broach and Surat not to be public trust are res judicata in the present proceedings? Answers: Point No.1: The words `collaterally or incidentally in issue' have come up for interpretation in several common law jurisdictions in the context of the principle of res judicata. While the principle has been accepted that matters collaterally or incidentally in issue are not ordinarily res judicata, it has however been accepted that there are exceptions to this rule. The English, American, Australian and Indian Courts and Jurists have therefore proceeded to lay down certain tests to find out if even an earlier finding on such an issue can be res judicata in a later proceeding. There appears to be a common thread in the tests laid down in all these countries. Generally the Judiciary has interpreted the section 11 literally and has held that any matter that was in issue directly and substantially in a prior litigation and decided against a party then the decision would be res judicata in a subsequent proceeding. And in cases where the matter was collateral or incidental in issue and decided in an earlier proceeding, it would ordinarily not act as res-judicata in a matter where the matter is directly and substantially in issue. As pointed out in Halsbury's Laws of England (Vol. 16, para 1538) (4th Ed), the fundamental rule is that a judgment is not conclusive if any matter came collaterally in question. The next question that the court tried to answer was- what is a direct or substantial issue and what is a collateral or incidental issue? One test is that if the issue was 'necessary' to be decided for adjudicating on the principal issue and was decided, it would have to be treated as 'directly and substantially' in issue and if it is clear that the judgment was in fact based upon that decision, then it would be res judicata in a latter case. (Mulla, p.104) One has to examine the plaint, the written statement, the issues and the judgment to find out if the matter was directly and substantially in issue. "It is not to be assumed that matters in respect of which issues have been framed are all of them directly and substantially in issue. Nor is there any special significance to be attached to the fact that a particular issue is the first in the list of issues. Which of the matters are directly in issue and which collaterally or incidentally, must be determined on the facts of each case. A material test to be applied is whether the Court considers the adjudication of the issue material and essential for its decision" The court finally decided that "Where title to property is the basis of the right of possession, a decision on the question of possession is res judicata on the question of title to the extent that adjudication of title was essential to the judgment; but where the question of the right to possession was the only issue

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actually or necessarily involved, the judgment is not conclusive on the question of ownership or title". Point 2: The court restated the observation made by Gujarat high court that the judgement of the Wakf was treated as ‘private’ on the ground that Sajjadanashin could spend the income for the pious purposes also, namely for maintenance of members of his family. This was not allowed in the law of public Wakfs as it stood in 1928. Therefore, the 1950 Act widenend the scope of the Act. Point 3: It is well settled that an earlier decision which is binding between the parties loses its binding force if between the parties a second decision decides to the contrary. Then, in the third litigation, the decision in the second one will prevail and not the decision in the first. We may also state that the 19.1.67 decision merely relied upon the 1931 decision without noticing the change in the definition. Hence, the 19.1.67 decision cannot become res judicata. So far as the proceeding initiated in 1965, no plea of res judicata based on it was raised in the lower courts in the present proceedings. Therefore, we hold on point 3 against the appellant. The suit was dismissed.

2. RUN BAHADUR VS. LUCHO KOER ( 1885) ILR 11 CAL 301 (PC) In this case Run Bahadur Singh sued Mussumat Lucho Koer, the widow of his deceased brother, Murlidhar Singh, to recover possession of the property held by Murlidhar, on the ground that the brothers were joint in estate, and that he was entitled to the property by survivorship. The widow maintained that the brothers were separate, and claimed a Hindu widow's estate in the property. She further maintained that this question had been conclusively determined in her favour in a former suit between her and the plaintiff. The Subordinate Judge has held that the brothers were separate in estate and gave her a decree but determined the plea of res-judicata against her. The High Court held that the brothers were joint in estate and determined the res-judicata in her favour. From this decree Run Bahadur has appealed, and the widow has not appealed against the decree as it was in her favour but she has appealed against that the brothers were in joint estate. The question of res judicata arose in this way: After the death of her husband she applied for a certificate, under Act XXVII of 1860, enabling her to collect the debts of her husband. This application was opposed by the plaintiff, who set up the case of joint ownership, on which he now relies. A certificate was granted to her, and the grant was confirmed on appeal.

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Though this proceeding has been relied upon by her as constituting res judicata, counsel at their Lordships' Bar have not argued that it has this effect, inasmuch as the only question to be determined in this proceeding is one of representation, not otherwise of title. Two issues were framed (1) whether the deceased alone received the whole rent of the property in his life time, or whether the rent was received by him jointly with his brother C? (2) whether any rent was due and if so, how much was due from B? The finding on the first issue was that the deceased alone received the whole rent in his life time. Subsequently, C sued the widow for declaration that he and his brother were joint, and he claimed the property by right of survivorship. The question arose whether the deceased and C were joint or separate and the earlier finding was held not res judicata inasmuch as the matter was not 'directly and substantially' in issue in the earlier suit. It was in issue in the earlier suit only 'collaterally or incidentally', as it did not cover the entire question of C's title but related merely to the joint or separate receipt of rent.

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3. ASRAR AHMED VS. DURGAH COMMITTEE, AJMER (AIR 1947 PC 1): This suit was relating to the famous Dargah of Moinuddin Chisti, Ajmer. In a former suit of 1880 under Section of the Religious Endowments Act, 1863 filed by the President and one Member ofvthe Durgah Committee for removal of one Ameer Ali, the Mutavalli on ground of maladministration, the question as to the hereditary nature of the office was the subject matter of a specific issue and it was held that the office was hereditary, accepting the plea of the defendant. While decreeing the suit for removal of the Mutavalli, the Court however held that if the Mutavalli behaved properly, he could be reinstated as the office was hereditary. In 1918, the Dargah Committee filed a suit against Nisar Ahmed, brother of the deceased Mutawalli, whom the Commissioner proposed to recognise as legal heir and Mutawalli, thus treating the office as hereditary. But in that case the Committee claimed that the office was not hereditary. Nisar Ahmed, the defendant claimed the office as hereditary and relied upon the earlier finding. This suit however abated. Nisar Ahmed died in 1940. Then Ameer Ali's son filed a suit claiming the office to be hereditary. The suit was decreed by the District Judge but dismissed on appeal. In the plaintiff's appeal to the Privy Council, their Lordships rejected the plea of res judicata and held that the issue as to the hereditary nature of the office was irrelevant in the earlier suit and the decision was incidental to and not the substance of the earlier suit. 4. N. M. TRIPATHI V. DAYAWANT, AIR 1988 PAT 123 The case is at the Patna High Court as by an impugned order the trial court has rejected the prayer of the defendent-petitioner that the further proceedings in the suit should remain stayed till the decision of Title Suit No. 360/82, on an application made by the petitioner under S. 10, Civil P.C., (hereinafter referred to as the Code). This case was referred by a learned single judge of this court to division bench for an authoritative decision on the point that in the circumstances of the case even if it be held that the provisions of S. 10 of the Code do not apply, inherent powers of the court can be invoked under S. 151 of the Code. Hence this case before us. Issue: Merely by institution of a suit for a specific performance of contract or, for that matter, that by agreement of sale, can the petitioner say that he is remaining in possession of the premises inducted upon it by the plaintiff-opposite parties who were admittedly the owners thereof and to whom the petitioner had attorned that he had acquired title merely by entering into a deed of agreement for sale? Can it be said that he became the owner of the property and no longer remained a tenant irrespective of the fact that no title deed (sale deed) has been executed in his favour? Court Held that:

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The petitioner was leaving in the land of the defendants. The defendants were tryingn to evict him of the land. In such circumstances, the plaintiff initiated a suuit to forestall the claim of eviction as a suit of specific performance. After this an agreement to transfer the land was signed in favour of the peitioner. But the court made it explicitly clear that this suit cannot entitle the petitioner to say that the execution of the alleged deed for the agreement of sale, he could continue to remain in the right of a transferee. Moreover, the court held that is manifest that the matter directly and substantially in issue in the two suits are not the same. The question of attracting the provisions of S. 10 of the Code, therefore, does not arise at all because the matter is not even indirectly, what to talk of directly and substantially, in issue in both the suits. Regarding the use power under S 151: The Court held: It has been said therein that it is well settled that the provisions of the Code are not exhaustive, for the simple reason that the Legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them. Section 151 itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the court to make orders necessary for the ends of justice (underlining is mine for the sake of emphasis). It has further been said that when the Code itself recognizes the existence of the inherent power of the Court, there is no question of implying any powers outside the limits of the Code In this case for the purpose of forestalling the suit for ejectment that the former suit was filed. By resorting to the inherent powers under S. 151 of the Code the petitioner will be frustrating the very object and purpose of the code. It held that taking the recourse to such a procedure would not only be not subservient to the ends of justice but would be overriding the special procedure mandated by a self contained Code as the Control Act. B. WITH RESPECT TO SECTION 10: B.1. ABOUT THE PRINCIPLE THAT THE SECTION APPLIES ONLY TO SUITS : 1. INDERPAL SINGH HASSANWALIA VS BIR TIBBTAN WOOLLEN MILLS, AIR 1974 DELHI 95 Petitioner (the sole proprietor) of Wool World India. RespondentRespondents entered into an agreement with the petitioner, which appointed the petitioner as the sole selling agent of the blankets and other woolen items produced by the respondent for the period of 5 years.

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The petitioner contends that the respondents did not honour their agreement and perform their part of contract. And he also pointed out various other breaches and prayed for the arbitration clause of the agreement to be initiated and an arbitrator to be appointed. The respondents raised two points-

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The petitioner has filed a suit for he injenction in the court against the respondents based in the agreement entered by both the parties. The respondents ciontend that the court has no jurisdiction to entertain the application as the arbitration clause bars the courts under section 34 of the Arbotration Act was made to the court of Subordinate Judge, First Class and therefore, only it had the jurisdiction over the subsequent applications. Secondly, the respondents raised the application that this application is also stayed under Setion 10 of the code, in light of the suit pending in the Court of Sub-ordinate Judge First Class. The Sub-ordinate Judge, First Class, Delhi did not grant ad interim injunction and ordered that the injunction application be held over till after the decision of the application under section 34 of the Arbitration Act. Against this order of the Subordinate Judge, First Class, Delhi, the petitioner filed an appeal in the court of the Senior Sub-ordinate Judge which was dismissed on 12th of March, 1970. Against the order of Senior Subordinate Judge, the petitioner filed a Revision (C. R. 227/70) in the High Court which is pending. It is said that in this revision petition the matters are sub- stantially the same as in the present application under Section 20 of the Arbitration Act. I will take up these two pleas separately. The Court dismissed the contentions raised by the respondents and held that: -

It was observed that such an application has nothing to do with any reference. It is only intended to make an arbitration agreement effective and prevent party from going to court contrary to his own agreement that the dispute is, to be adjudicated by a private tribunal.

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It cannot be said that the matter directly and substantially in issue in the present application is directly and substantially in issue in the suit for permanent injunction or in the revision petition. In this application I am only concerned with the filing of the arbitration agreement and the reference of the disputes to the arbitrator. In the suit for injunction and in the revision petition different prayers have been made which touch the merits of the dispute. In this application under Section 20, the arbitrator will decide the merits of the dispute between the parties. In my judgment the application under Section 10 of the Code of Civil Procedure (I. A. 106/71) is wholly misconveived. I, therefore, repel the argument that the present application under Section 20 of the Arbitrattion Act and as a result dismiss.

B.2. THAT PERFECT IDENTITY OF ISSUES IS NOT REQUIRED:

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1. R. SRINIVASAN VS SOUTHERN PETROCHEMICAL, AIR 1992 MAD 363 The present applicant R. Srinivasan was working as a Project Engineer (Chemical) in the respondent Company M/s. Southern Petrochemical Industries Corporation Limited. In an earlier suit R. Srinivasanvs had instituted the action against the company for declaration A reading of the plaint in the earlier suit would indicate that he has instituted that action for declaration that the notice of termination issued by the respondent Company on 1-10-1986 is illegal and that the enquiry proceedings initiated by the Company against him are illegal, void and opposed to public policy and that the Enquiry Officer cannot proceed with the enquiry and for consequential permanent injunction restraining the respondent Company from proceeding with the enquiry or action as contemplated by them. Where as the present suit is by the company against R. Srinivasan for the recovery of the loan taken by him with the interest within/before a period of 20years. R. Srinivasan doesnot dispute the borrowing, he contends that the suit instituted by the company is covered by the Section 10 because the matter of the issue is already being dealt in another suit. Whereas the issue involved in the earlier suit relates to the validity of the termination notice. So it cannot be said that the issue directly and substantially in issue is the same in both suits. The Court opined that the question regarding the validity of the termination of the applicant from the service of the respondent Company is only incidental to the main dispute in the present suit. As we have already seen that the substantial question in dispute in this case relates to the rate of interest and the liability of the applicant herein to repay the loan amount in instalments within a period of 20 years. Therefore, Section 10 wont apply. And also there exists no scope to invoke Section 151 as by no stretch of imagination it could be held that there is an abuse of the process of the Court on the part of the Company in instituting the later suit for recovery of the Housing Loan sanctioned to the applicant.

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Section 16 specifies that the relating to from clause a) to clause f) shall be instituted in the Court within the local limits of whose jurisdiction the property is situated.

3. GENERAL DISCUSSION ON 11TH AND 12TH JANUARY 2018 Section 12 of the Code merely reiterates a principle down in Order IX Rule IX of the code. Order IX Rule 9 of the code says that if a suit was dismissed for default then the plaintiff will be precluded from filing a fresh suit while Section 12 of the code reiterates the principle that if filing of fresh suits is barred by rules (Order IX Rule 9 of the code is one of them) then the plaintiff does not have the entitlement to file a suit before any court of law. Section 15 of the Code of Civil Procedure is the only provision in CPC dealing with pecuniary jurisdiction. Section 15 of the Code of Civil Procedure confers the jurisdiction of any suit to “the court of the lowest grade competent to try it.” Section 9 to 12 of the code: Scope and limit of subject matter jurisdiction. Section 13 and 14 of the code: Provide insights on foreign judgements

Section 16 to 20 of the code: Territorial jurisdiction “Subject to” limitations prescribed by any law: 16 (a)-(e) → The court whose local limits of jurisdiction extend to the immovable property in question, has jurisdiction. It is important to note that no deviations from this principle are allowed. 16 (f) → suits relating to movable property must be filed where movable property is taken Section 17 → If an immovable property is located within jurisdiction of different courts, then the plaintiff will have the option to choose any of the courts even if an offence was

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committed in such part of the property which was under jurisdiction of a different court than the court which the plaintiff has decided to approach. Section 18 → The party has to point out the uncertainty in jurisdiction and then the court has to assess, record a finding to that effect and proceed with the case. The court must record with satisfaction that there were grounds for uncertainty. Section 19 → Section 19 encompasses rights for legal persons (such as a deity of a temple) as well to be a party to a suit. This section provides Plaintiff an option to sue the defendant either before the court which has jurisdiction over the area where the wrong was committed or before the civil court within the local limits of which the defendant resides, or carries on business or personally works for gain. Section 20 → It is a residuary clause as it applies only when section 16 to 19 are not applicable. Example: Defendants live in A, B, C, D,C, E districts and the cause of action arose in District V, then the plaintiff has the option to fill the suit in any one of these districts. What is a cause of action? In cases where more than one civil court has jurisdiction then a court can have jurisdiction in two scenarios: a) a leave of the court is obtained. b) the defendants acquiesce as to the choice of forum i.e. they actively participate in the court proceedings etc. Read Illustration b of Section 20 once as I am not very clear about the application of this section as to whether it is necessary for the P to approach various forums and seek their leave before approaching any particular forum in case any non-resident defendant objects. Section 110 of the Indian Evidence Act provides for a presumption of ownership in favour of the possessor. Criminal suits generally takes preference over Civil suits in circumstances where the suits are based on the same issue and are being contested by the same parties. (General Principle of law) For example: A criminal suit filed for theft on a particular property will be given preference over a suit for declaration of title over property and the civil suit will be stayed till the time the criminal suit is decided.

Cause of Action: Bundle of facts relied on by the plaintiff which the plaintiff needs to prove to make his prayer for relief. Where a series of acts has taken place, the cause of action may arise at all the places where such a series of acts takes place. Application of proviso of Section 16: To be written after consulting professor Menon or under the upcoming heading.

4. SECTION- 16 Section 16 of the Code: It is a general principle of interpretation that proviso, explanation etc cannot be used to expand the ambit of the provision.

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Proviso of Section 16 of the code: The relief must be obtainable through personal obedience. There is no other step, relief can be obtained by executing the decree against the defendant only. Example: In a suit for title to property, relief can’t be obtained merely by personal obedience as the court has to draw up a title, register it etc. However, if it’s a simple money decree (e.g. compensation), relief can be obtained by personal obedience of the defendant. It can also be related to property as well for e.g. compensation for damages done to property. The defendant must be “voluntarily” residing in the place e.g. if he’s been incarcerated, suit can’t be filed in that locality. A suit for eviction has to be done through the court, which can send in force etc to throw the defendant out. Stamp and Registration Stamp: for the purpose of revenue generation. If a stamp duty hasn’t been paid i.e. if the document isn’t stamped, it won’t be admitted as evidence. This defect is curable as the party which submitted the document can be allowed to do so after payment of stamp duty + penalty. Registration valides the document and also serves as a public notice.The process of registration also ensures that the parties complete due diligence on their behalf before buying property. If a mandatorily registrable document isn’t registered, the title itself doesn’t pass, the buyer doesn’t get any rights. Stamp duty can be waived by government. A court of law can admit a document that hasn’t been registered (which is mandatorily registrable) in a criminal proceeding (for e.g. for understanding means rea or the like), but not in civil proceedings.

1. BEGUM SABIHA SULTAN V. NAWAB MANSUR ALI KHAN, AIR 2007 SC 1636 Appellant/ Plaintiff Respondent/Defendant Respondent 1 and 2 are the siblings of the Appellant who is the daughter of X and Z. The case deals with whether the suit filed in Delhi is maintainable in Delhi or in Haryana. For the plaintiff’s side claims that the cause of action arose in Delhi as the will was made by her mother in Delhi and further the will was pronounced in Delhi only. And the subsequent claims of demanding partition in the lands situated in Haryana, the plaintiff claimed that for that the initial demand has to fulfilled which is declaring the oral will and the sale deed purported to have been executed on behalf of the Defendant 2 as null and void.

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Order VII Rule 10A states that the Court which did not have the jurisdiction may pass an order with the plaintiff’s permission fixing a date for the appearance of the parties in the Court in which the plaint is proposed to be presented. (Judgement of the trial judge was against the plaintiff and Order VII Rule 10A.) Appealed to the Division Bench and then to the SC.

But the defendant’s case is that in pith and substance, the plaint was for partition of the properties situate in village Pataudi in Gurgaon that lay outside the territorial jurisdiction of the court at Delhi and when that is so, the suit had to be instituted only in the court having jurisdiction over the property in question and the High Court was right in holding that Section 16(b) and (d) of the Code squarely applied to the case on hand in the light of the reliefs claimed. Counsel further submitted that the proviso to Section 16 of the Code had no application, since this was not a case where mere personal obedience to the decree would result in an effective decree. He further pointed out that Section 20 of the Code will have no application in a case where Section 16 squarely applies, since Section 20 was only a residuary provision. He ultimately submitted that the High Court has understood the plaint in a particular manner and since an effective decree for partition, which is the main relief claimed in the plaint, could more conveniently be passed by the court having jurisdiction over the properties in question, it was not a fit case where this Court ought to exercise its jurisdiction under Article 136 of the Constitution of India, since having the suit tried at Delhi would only create complications and prolong the proceedings, even assuming that this Court saw some merit in the contention that the first part of prayer (a) might come within the purview of the court at Delhi. He therefore submitted that no interference be made with the order now passed.

Section 20 subject to the limitations aforesaid, confirms that Section 20 is a residuary provision. Harshad Chiman Lal Modi Vs. DLF Universal Ltd. & Anr. [(2005) 7 S.C.C. 791]

In Messrs Moolji Jaitha & Co. Vs. The Khandesh Spinning & Weaving Mills Co. Ltd. [A.I.R. 1950 Federal Court 83], the Federal Court observed that: "The nature of the suit and its purpose have to be determined by reading the plaint as a whole."

Substance over Form of the suit. There cannot be any compartmentalization, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or

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subtraction of words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time, it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair-splitting technicalities."

Supreme Court Judgement It was further observed: "The inclusion or absence of a prayer is not decisive of the true nature of the suit, nor is the order in which the prayers are arrayed in the plaint. The substance or object of the suit has to be gathered from the averments made in the plaint and on which the reliefs asked in the prayers are based." It was further observed: "It must be borne in mind that the function of a pleading is only to state material facts and it is for the court to determine the legal result of those facts and to mould the relief in accordance with that result." This position was reiterated by this Court in T. Arivandandam Vs. T.V. Satyapal & Anr. [(1978) 1 S.C.R. 742] by stating that what was called for was a meaningful --- not formal --reading of the plaint and any illusion created by clever drafting of the plaint should be buried then and there. In Official Trustee, West Bengal & Ors. Vs. Sachindra Nath Chatterjee & Anr. [(1969) 3 S.C.R. 92], this Court approving the statement of the law by Mukherjee Acting Chief Justice in Hirday Nath Roy Vs. Ramchandra Barna Sarma, [I.L.R. 48 Calcutta 138 F.B.] held: "Before a court can be held to have 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 not sufficient that it has some jurisdiction in relation to the subject- matter of the suit. Its jurisdiction must include the power to hear and decide the questions at issue, the authority to hear and decide the particular controversy that has arisen between the parties." 11. Reading the plaint as a whole in this case, there cannot be much doubt that the suit is essentially in relation to the relief of partition and declaration in respect of the properties situate in Village Pataudi, Gurgaon, outside the jurisdiction of court at Delhi. It is no doubt true that there is an averment that an alleged oral will said to have been made at Delhi by the deceased mother and presumably relied on by defendants 1 and 2 was never made. But on our part, we fail to understand the need for claiming such a negative declaration. After all, the plaintiff can sue for partition, rendition of accounts and for setting aside the alienation effected by defendant No. 2 without the junction of the plaintiff on a claim that the plaintiff is also one of the heirs of the deceased mother. If in such a suit, the defendants propound any oral will as excluding the plaintiff from inheritance, the burden would be on them to establish the making of such an oral will and the validity thereof. The negative declaration sought for by the plaintiff appears to us to be totally superfluous and unnecessary in the circumstances of the case. It may be noted that it is not the case of the plaintiff that an oral will was made at

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Delhi. It is the case of the plaintiff that no oral will was made at Delhi. It is debatable whether in such a situation it can be said that any cause of action arose at all within the jurisdiction of the court at Delhi. On a reading of the plaint, the trial judge and the Division Bench have come to the conclusion that in substance the suit was one relating to immovable property situate outside the jurisdiction of the trial court in Delhi and hence the plaint had been presented in a court having no jurisdiction to entertain the suit. We are inclined to agree with the said understanding of the plaint by the trial judge and Division Bench, on a reading of the plaint as a whole.

Section 16 Provided that a suit to obtain relief respecting…immovable property held by or one behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain. The relief of partition, accounting and declaration of invalidity of the sale executed in respect of immovable property situate in Village Pataudi, Gurgaon, could not entirely be obtained by a personal obedience to the decree by the defendants in the suit. What is this? The personal obedience of the defendant??? The personal obedience of the defendant could be secured only if the defendant resided within the local limits of the jurisdiction of the court or carried on business within those limits. Its essential feature was that the land in respect of which the suit was brought was situate abroad, but the person of the defendant or his personal property was within the jurisdiction of the court in which the suit was brought. The land being situate abroad the decree could not be executed against the land, but the person or personal property of the defendant being within the jurisdiction of the court the decree could be executed in person. (http://www.shareyouressays.com/knowledge/legalprovisions-of-section-16-of-code-of-civil-procedure-1908-c-p-c-india/114414)

2. HARSHAD CHIMANLAL MODI V DLF UNIVERSAL LTD. & ANR. Applicant/ appellant/ Original plaintiff Suit for declaration, for specific performance of agreement, for possession of property and for permanent injunction.

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The defendants- respondents in 1989 contested the claim of the plaintiff on merits but without raising any objection as to jurisdiction of the Court. The jurisdiction of the Court was 'admitted'. Suit transferred to the District Court owing to an increase in the pecuniary jurisdiction. In 1997, issues were framed which did not include issue as to jurisdiction of the Court as it was not disputed by the defendants. After more than eight years of filing of the written statement, however, an application was filed by the defendants under Order 6, Rule 17 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code') seeking an amendment in the written statement by raising an objection as to jurisdiction of the Court. It was stated that the suit was for recovery of immovable property situated in Gurgaon District. Under Section 16 of the Code, such suit for recovery of property could only be instituted within the local limits of whose jurisdiction the property was situated. (See 9 (a) in S. 16 of the Code ) Since the property was in Gurgaon, Delhi Court had no jurisdiction in the matter. On January 16, 1998, the application was allowed and the written statement was permitted to be amended. On the basis of the amendment of written statement, however, the learned Additional District Judge framed an additional issue as under: "Whether Delhi Civil court has jurisdiction to try and entertain the present suit: OPD"? After hearing the parties, the trial court by an order dated May 25, 1998 upheld the contention of the defendants 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. The Court stated"In this view of the matter, I have no hesitation in coming to the conclusion that the suit falls within the ambit of Section 16(d)(in the Court’s opinion) of the Code of Civil Procedure and the proviso thereto has no application on the facts of the present case. In view of my above discussion, it is held that the Delhi Civil Court has no jurisdiction to try the present suit and as such, the Plaint in the present suit is returned to the Plaintiff for presentation in the Proper Court.” Being aggrieved by the said order, the appellant approached the High Court which also came to be dismissed. Against the said order, the appellant has approached this Court. Notice was issued and parties were directed to maintain status quo. Leave was granted, operation of the judgment was stayed and the Additional District Judge, Tis Hazari, Delhi, was allowed to proceed with the suit but it was stated that he would not deliver judgment "until further orders". Status quo granted earlier was ordered to be continued. The appeal has now come up for final hearing. In the Supreme Court of India, this appeal is filed by the appellant against the order passed by the Additional District Judge, Delhi and confirmed by the High Court of Delhi in Civil

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Revision Petition holding that Delhi Court has no jurisdiction to try the suit and the plaint should be returned to the plaintiff for presentation to proper court To appreciate the controversy raised in this appeal, admitted and/or undisputed facts may be noted. The appellant-original plaintiff entered into a 'plot buyer agreement' ('agreement' for short) with DLF Universal Limited, respondent No.1 original defendant No. 1 on August 14, 1985 for purchase of a residential plot in Gurgaon, Haryana. The agreement was in the Standard Form Contract of the first respondent. According to the appellant, the agreement was made in Delhi. The Head Office of respondent No.1 was situated in Delhi. Payment was to be made in Delhi. The plaintiff paid an amount of Rs.12,974/- (Rupees twelve thousand nine hundred seventy four only) towards the first instalment. It is the case of the appellant that payment was made by him in instalments as per the schedule to the agreement. In spite of the payment of amount, the first respondent unilaterally and illegally cancelled the agreement under the excuse that the appellant had not paid dues towards construction of Modular House to respondent No. 2- original defendant No. 2 - DLF Builders & Developers Pvt. Ltd. The appellant objected to the illegal action of the first respondent and sent a legal notice through an advocate calling upon the first respondent to carry out his part of the contract but respondent No.1 replied that the agreement had been cancelled and nothing could be done in the matter. The appellant, in the circumstances, was constrained to file on the Original Side of the High Court of Delhi for declaration, specific performance of the agreement, for possession of the property and for permanent injunction. The prayer of the plaintiff stateda) pass a decree of declaration to the effect that there is a valid and existing contract with regard to the plot in Gurgaon, Haryana between the plaintiff and the Defendant No. 1; b) pass a decree to the effect that the Defendant No. 1 is bound to abide by the contract, c) pass a decree of specific performance d) pass a decree of permanent injunction restraining the Defendants from allotting, selling, transferring, alienating the land to any person other than the plaintiff and further restrain them from interfering in any manner whatsoever with the possession or rights of the plaintiff after the said plot has been handed over to the plaintiff e) pass a decree of delivery of possession against the Defendant No. 1 directing him to hand over vacant and peaceful possession of the land to the plaintiff, or in the event, the said plot is already allotted and handed over to some other person by the Defendant No. 1, another plot in the same Complex of equivalent area in identical location be handed over to the plaintiff by the Defendant No. 1. 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

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jurisdiction the property is not situate has no power to deal with and decide the rights or interests in such property. In other words, a court has no jurisdiction over a dispute in which it cannot give an effective judgment. Proviso to Section 16, no doubt, states that though the court cannot, in case of immovable property situate beyond jurisdiction, grant a relief in rem still it can entertain a suit where relief sought can be obtained through the personal obedience of the defendant. The proviso is based on well known maxim "equity acts in personam, recognized by Chancery Courts in England. Equity Courts had jurisdiction to entertain certain suits respecting immovable properties situated abroad through personal obedience of the defendant. The principle on which the maxim was based was that courts could grant relief in suits respecting immovable property situated abroad by enforcing their judgments by process in personam, i.e. by arrest of defendant or by attachment of his property. Whereas the Clause 28 of the agreement between the parties reads thus; "The Delhi High Court or Courts subordinate to it, alone shall have jurisdiction in all matters arising out of touching and/or concerning this transaction." In the Court’s opinion, the submission of the learned counsel for the appellant that the parties had agreed that Delhi Court alone had jurisdiction in the matters arising out of the transaction has also no force. Such a provision, in the Court’s opinion, 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. 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 courts or more have under the Code of Civil Procedure jurisdiction to try a suit or proceeding on agreement between the parties that the dispute between them shall be tried in one of such courts is not contrary to public policy. Such an agreement does not contravene Section 28 of the Contract Act (held in one of the cases.) The question, however, is whether Delhi Court has jurisdiction in the matter. If the answer to that question is in the affirmative, the contention of the plaintiff must be upheld that since Delhi Court has also jurisdiction to entertain the suit and parties by an agreement had submitted to the jurisdiction of that court, the case is covered by Section 20 of the Code and in view of the choice of forum, the plaintiff can be compelled to approach that court as per the agreement even if other court has jurisdiction. If, on the other hand, the contention of the defendant is accepted and it is held that the case is covered by Section 16 of the Code and the proviso to Section 16 has no application, nor Section 20 would apply as a residuary clause and Delhi Court has no jurisdiction in the matter, the order impugned in the present appeal cannot be said to be contrary to law. As we have already indicated, the suit relates to specific performance of an agreement of immovable property and for possession of plot. It is, therefore, covered by the main part of Section 16. Neither proviso to Section 16 would get attracted nor Section 20 (residuary provision) would

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apply and hence Delhi Court lacks inherent jurisdiction to entertain, deal with and decide the cause. It was then contended that Section 21 of the Code, requires that the objection to the jurisdiction must be taken by the party at the earliest possible opportunity and in any case where the issues are settled at or before settlement of such issues. In the instant case, the suit was filed by the plaintiff in 1988 and written statement was filed by the defendants in 1989 wherein jurisdiction of the court was 'admitted'. On the basis of the pleadings of the parties, issues were framed by the court in February, 1997. In view of the admission of jurisdiction of court, no issue as to jurisdiction of the court was framed. It was only in 1998 that an application for amendment of written statement was filed raising a plea as to absence of jurisdiction of the court. Hence it was contended that both the courts were wholly wrong in allowing the amendment and in ignoring Section 21 of the Code. This contention was not upheld. The jurisdiction of a court may be classified into several categories. The important categories are (i) Territorial or local jurisdiction; (ii) Pecuniary jurisdiction; and (iii) Jurisdiction over the subject matter. So far as territorial and pecuniary jurisdictions are concerned, objection to such jurisdiction has to be taken at the earliest possible opportunity and in any case at or before settlement of issues. The law is well settled on the point that if such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage. Jurisdiction as to subject matter, however, is totally distinct and stands on a different footing. Where a court has no jurisdiction over the subject matter of the suit by reason of any limitation imposed by statute, charter or commission, it cannot take up the cause or matter. An order passed by a court having no jurisdiction is nullity. In Bahrein Petroleum Co., this Court also held that neither consent nor waiver nor acquiescence can confer jurisdiction upon a court, otherwise incompetent to try the suit. It is well-settled and needs no authority that 'where a court takes upon itself to exercise a jurisdiction it does not possess, its decision amounts to nothing.' A decree passed by a court having no jurisdiction is non-est and its validity can be set up whenever it is sought to be enforced as a foundation for a right, even at the stage of execution or in collateral proceedings. 3. PATEL ROADWAYS LIMITED, BOMBAY VS PRASAD TRADING COMPANY Section 20--Explanation--Suits-Institution of--Whether parties entitled to agree that only a certain court would have jurisdiction. Clauses (a) and (b) of Section 20 refer to a court within the local limits of whose jurisdiction the defendant "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.

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Since in both the appeals made an identical question of law arises they are being decided by a common judgment. Facts in a nutshell. M/s Patel Roadways (P) Limited, the appellant in both these appeals 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 which shall hereinafter be referred to as subordinate offices. M/s Prasad Trading Company, the respondent in the Civil Appeal who is a dealer in cardamom entrusted a consignment of 851) kilograms of cardamom to the appellant at its subordinate office 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 whereof the consignee refused to take delivery. The 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. M/s Tropical Agro Systems Private Limited, the respondent in another Civil Appeal, on the other hand entrusted certain packets of pesticides insured to the appellant by the Prasad Trading Company at its subordinate office at Madras for being carried to New Delhi. According to the respondents the goods aforesaid were delivered at New Delhi in a damaged condition resulting in loss to the first respondent and a suit was instituted for recovery of the loss so sustained by the respondents in the City Civil Court, Madras. In both the suits the appellant inter alia took the plea in its defence. that in the contract entered into between them the parties had agreed that jurisdiction to decide any dispute between them would be only with the courts at Bombay and consequently the courts in Madras where the two suits referred to above had been instituted had no jurisdiction. So, are the suits instituted anywhere other than Bombay are barred by jurisdiction?? It has been urged by the learned counsel for the appellant that apart from the courts within whose territorial jurisdiction the goods were delivered to the appellant for transport, 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 situate in Bombay. According to learned counsel for the appellant since courts at two places namely Madras and Bombay had jurisdiction in the matter, the jurisdiction of the courts in Madras was ousted by the clause in the contract where under the parties had agreed that jurisdiction to decide any dispute under the contract would be only in the courts at Bombay. In Hakam Singh v. M/s. Gammon (India) Ltd., [1971] 3 SCR Page 314 it was held that "corporation" referred to in Section 20 meant not only a statutory corporation but also a

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company registered under the Indian Companies Act. It was also held that it is not open to the parties by agreement to confer jurisdiction on any court which it did not otherwise possess under the Code. But where two courts have jurisdiction under the Code to try a suit or proceeding an agreement between the parties that the dispute between them shall be tried in one of such courts is not contrary to public policy nor does such an agreement contravene Section 28 of the Contract Act. In that case also there was a clause in the agreement being clause No. 13 which provided that notwithstanding the place where the work under the contract was to be executed the contract shall be deemed to have been entered into between the parties at Bombay and the court in Bombay alone shall have jurisdiction to adjudicate thereon. The trial court had held that the entire cause of action had arisen at Varanasi and the parties could not by agreement confer jurisdiction on the courts at Bombay which they did not otherwise possess. In a civil revision filed by the respondent the Allahabad High Court held that the courts at Bombay had also jurisdiction and in view of clause 13 of the agreement the jurisdiction of the courts at Varanasi stood ousted. It is in the appeal against the said judgment of the High Court that the propositions of law referred to above were laid down by this Court. It was held that since the respondent had its head office at Bombay the courts at Bombay also had 'jurisdiction by virtue of Section 20 of the Code read with its Explanation and in view of clause 13 of the agreement between the parties the courts in Bombay alone had jurisdiction in the matter. The appeal was accordingly dismissed. This view was reiterated by this Court in Globe Transport Corporation v. Triveni Engineering Works and Another. But the Court in this case held that the courts at Bombay in the above two cases did not at all had the 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". - What has been urged with the aid of the Explanation to Section 20 of the Code is that since the appellant has its principal office in Bombay it shall be deemed to carry on business at Bombay and consequently the courts at Bombay will also have jurisdiction. - On a plain reading of the Explanation to Section 20 of the Code we find an apparent fallacy in the aforesaid argument. - The Explanation is in two parts, one before the word "or" occurring between the words "office in India" and the words "in respect of" and the other thereafter. - The first part of the Explanation applies only to such a corporation which has its sole or principal office at a particular place. In that event the courts within whose jurisdiction the sole or principal office of the defendant is situate will also have jurisdiction inasmuch as even if the defendant may not be actually 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. - The latter part of the Explanation takes care of a case where the defendant does not have a sole office but has a principal office at one place and has also a subordinate office at another place.

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The words "at such place" occurring at the end of the Explanation and the word "or" referred to above which is disjunctive clearly suggest that if the ease falls within the latter part of the Explanation it is not the Court within whose jurisdiction the principal office of the defendant is situate but 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" Had the inten- tion been that if a corporation had its principal office at one place and a subordinate office at another place and the cause of action arose at the place where it had its subordi- nate office it shall be deemed to be carrying on business at both places the language used in Explanation II would have been identical to that of Explanation I which was dealing with a case of a person having a permanent dwelling at one place and also temporary residence at another place. (Earlier there were two explanations to S 20 of the Code.) The marked difference in the language of the two Explanations clearly supports the view which we have taken with regard to the interpretation of the present Explanation to Section 20 of the Code which was Explanation II earlier as indicated above. The explanation is really an explanation to clause (a). It is in the nature of a clarification on the scope of clause (a) viz. as to where the corporation can be said to carry on business. T'his, it is clarified, will be the place where the principal office is situated (whether or not any business actually is carried on there) or the place where a business is carried on giving rise to a cause of action (even though the principal office of the corporation is not located there) so long as there is a subordinate office of the corporation situated at such place. The linking together of the place where the cause of action arises with the place where a subordinate office is located clearly shows that the intention of the legislature was that, in the case of a corporation, for the purposes of clause (a), the location of the subordinate office, within the local limits of which a cause of action arises, is to be the relevant place for the filing of a suit and not the principal place of business. If the intention was that the location of the sole or principal office as well as the location of the subordinate office (within the limits of which a cause of action arises) are to be deemed to be places where the corporation is deemed to be carrying on business, the disjunctive "or" will not be there. Instead, the second part of the explanation would have read "and in respect of any cause of action arising at any place where it has a subordinate office, also at such place". As far as we can see the interpretation which we have placed on this section does not create any practical or undue difficulties or disadvantage either to the plaintiff or a defendant corporation. 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. If a corporation desires to be protected from being dragged into litigation at some place merely because a cause of action arises there it can save itself from such a situation by an exclusion clause as has been

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done in the present case. The clear intendment of the Explanation, however, is that, where the corporation has a subordinate office in the place where the cause of action arises, it cannot be heard to say that it cannot be sued there because it does not carry on business at that place. It would be a great hardship if, in spite of the corporation having a subordinate office at the place where the cause of action arises (with which in all probability the plaintiff has had dealings), such plaintiff is to be compelled to travel to the place where the corporation has its principal place. That place should be convenient to the plaintiff; and since the corporation has an office at such place, it will also be under no disadvantage. Thus, the Explanation provides an alternative locus for the corporation's place of business, not an additional one. There may be only one extra-ordinary situation in which this interpretation may cause an apparent anomaly. This is where the plaintiff has also his/its place of business at the same place as the corporation but the cause of action has arisen at some other place. 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. But this is not really a hardship because such plaintiff must have had some nexus or connection with the place since some part of the cause of action had arisen there; if he can have dealings with the corporation at such a place giving rise to the cause of action, there is no reason why he should find it disadvantageous or difficult to file a suit at such place. Equally, the corporation, having a subordinate office at the place, will suffer no disadvantage. In this view of the matter since in the instant two cases clause (c) is not attracted to confer jurisdiction on courts at Bombay and the appellant has admittedly its subordinate offices at the respective places where the goods in these two cases were delivered to it for purpose of transport the courts at Bombay had no jurisdiction at all to entertain the suits filed by the respondents and the parties could not confer jurisdiction on the courts at Bombay by an agreement. Accordingly, no exception can be taken to the findings in this behalf recorded by the trial court and the High Court in these two cases.

A.THIS CASE TELLS US ABOUT WHAT HAPPENS WHEN RELIEFS SOUGHT IN RESPECT OF A PROPERTY IS NOT THE ONLY ISSUE THAT ARISES IN THE SUIT

1. SURESH KUMAR V. DINESH KUMAR In the given facts and circumstances, it was the burden of the appellant, who was seeking indemnity through the insurance policy to prove by positive evidence that the driver was holding a valid driving licence. The said burden not having been discharged as the appellant failed to muster any evidence, the view taken by the tribunal cannot be faulted. The mere fact that own damage claim was allowed by the insurance company, as noted in the afore-

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extracted paragraph of the view taken by the tribunal, cannot mean that the owner had duly proved that the driver was holding a valid driving licence. The burden in this regard had to be discharged not before the insurance company but during inquiry before the tribunal. https://www.casemine.com/judgement/in/5728e40ae56109277ee47cd0 it is a small case, you can read it or simply the appellant’s driver did not have an effective and valid driving license and he committed an accident, therefore the insurance company was not held liable to pay any compensation. Liability is therefore apportioned jointly and severally on the original (or previous) owner of the car, the driver and the transferee (the appellant). As per case New India Assurance Companv Ltd. v. Mandar Madhav Tambe, reported in 16 ACJ 253, 1996 (1) TAC 506 in which it has been held that:The Insurance Company would be liable only if the vehicle was being driven by a person holding a valid driving license or the permanent driving license other than learner license and if the driver was holding no license on the date of accident than the insurance company is not liable to indemnify the insured. In the case law Manoj v. Samundar Singh, 2005 ACJ 520 the division Bench of this court has held that if the driver of the offending vehicle has no license on the date of the accident then the insurance company is not liable to indemnify the insured as the vehicle was being driven in contravention of the terms and conditions of the insurance policy. The contention of the appellant essentially is that the default on the part of the driver to hand over the driving license to the investigating police officer, or omission on the part of the latter to take the necessary steps to secure the driving licence from him, cannot result in aforesaid view taken against the owner of the vehicle. On being asked, learned counsel, however, fairly conceded that no evidence has been led on his part by the appellant to show that the driving was in possession of the valid driving license on the date of the accident. He also was unable to refute the observations of the tribunal in the impugned judgment, as quoted above, that when the insurance company called upon the appellant by way of notice under order 12 rule 8 cpc to share information with regard to the driving license, no response was submitted. B. DYNAMIC OF "CARRYING ON BUSINESS" (THIS ALSO ILLUSTRATES HOW OTHER ENACTMENTS (THE COPYRIGHT ACT & THE TRADEMARKS ACT IN THIS CASE) It is important to note that at time, it is not just the code that determines jurisdiction. In some cases the courts have to rely on other statutes like Information Techonology Act, Contracts Act, Copyrights Act, Trademark Act etc to determine the appropriate forum for a suit. 1. WORLD WRESTLING ENTERTAINMENT V RESHMA. In order to claim copyright, the registration is not essential. Section 13 of the Information Technology Act Facts: In this case, Plaintiff is a company incorporated in the United States and has IP rights over certain wrestling character such as John Cena, Batista, Undertaker etc. which it exercises by selling commercial merchandises on the name of these characters. The Plaintiffs goods and services are sold to consumers in Delhi through its websites which can be accessed and operated from all over the country, including from Delhi. The appellant/ plaintiff offers a

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variety of memorabilia including, but not limited to, apparel, posters, calendars, fact books, sunglasses, water bottles, key-rings, DVD's etc. It has more than 200 licensees distributing its products in 86 countries, including India. It has been averred by the appellant/ plaintiff that it licenses out its well known trademarks and the images/characters to different parties for use on merchandise in a wide range of products. It is the allegation of the appellant/ plaintiff that the defendants, who are stationed at Mumbai, are engaged in the business of manufacture and sale of various forms of garments and apparel, such as T-shirts, wrist bands, caps and other counterfeit goods and garments bearing the reproductions of the plaintiff's talents. According to the appellant/ plaintiff, the defendants, are infringing the appellant/plaintiff's registered trademarks. It is alleged that the apparels sold by the defendants bear the images of WWE talents and, representations of the well known WWE characters are displayed prominently on the defendant's products. Issue: Whether the courts in Delhi have jurisdiction over this suit? Judgement: Is physical presence required for “carrying on business”? The court said no. If core business functions (formation of contract through websites) are being carried on by a company within the territorial jurisdiction of a court, the court will have jurisdiction in such a case. The learned Single Judge, by virtue of the impugned order, has, without issuing summons in the said suit, directed the return of the plaint to the appellant/ plaintiff by holding that the Delhi High Court would have no territorial jurisdiction insofar as the said suit was concerned. The learned Single Judge rejected the pleas raised on behalf of the appellant/ plaintiff that this Court had territorial jurisdiction to entertain the suit by virtue of the provisions of Section 134(2) of the Trademarks Act, 1999 and Section 62(2) of the Copyright Act, 1957. The main issue before us is one of considering as to whether on the basis of the averments made in the plaint, the appellant/ plaintiff carries on business in Delhi. It is nowhere pleaded in the plaint that the appellant/ plaintiff, has an agent or a manager or a servant, through whom the appellant/ plaintiff carries on business in Delhi. As pointed out above, it is also not the appellant/ plaintiff's case that it has an office in Delhi. The question then arises as to whether the third condition specified in Dhodha House (supra) is satisfied or not. If we recall, in Dhodha House (supra), the Supreme Court had observed that the expression ‗carries on business‖ , as appearing in the above two provisions, is much wider than what the expression in normal parlance connotes because of the ambit of a civil action within the meaning of Section 9 of the CPC. The Supreme Court, however, cautioned that although the expression has a very wide meaning, it is necessary that the three conditions specified in the said decision should be satisfied. 18. Insofar as the first two conditions are concerned, they relate to agents. Inasmuch as it is an admitted position that the appellant/ plaintiff has no agent in Delhi, those two conditions are clearly not fulfilled. However, it is the appellant/ plaintiff's case that it carries on business in Delhi directly inasmuch as its goods and services are sold to consumers in Delhi through its website which is accessed in Delhi. It is on this basis that the learned counsel for the

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appellant/ plaintiff submitted that the decision in Dhodha House (supra) as also in Archie Comic (supra) would really not be applicable in the present case as in those decisions webbased business models, which have been referred to as the ‗new media', were not considered. The question which then arises is whether the introduction and spread of e-commerce and business over the internet impacts the meaning of the expression ‗carries on business' at a certain place. The learned Single Judge, as we have pointed out above, felt that the introduction of the new business models of doing business over the internet was not any different from the old model of doing business over the telephone or fax. He had placed reliance on the Supreme Court decision in the case of Bhagwan Goverdhandas Kedia (supra). Considering the fact that in Dhodha House (supra), the third condition stipulated that to constitute ‗carrying on business' at a certain place, the essential part of the business must take place there, it would be necessary to examine this aspect in the backdrop of business over the internet. We are not concerned with the question of cause of action between the appellant/ plaintiff and its customers in Delhi because the defendants are not such customers and they are, in any event, all residents of Mumbai. What we are examining is whether the third condition specified in Dhodha House (supra) is satisfied or not. In other words, if the contracts and/ or transactions entered into between the appellant/ plaintiff on the one hand and its customers are being concluded in Delhi, can it not be said that the essential part of the business of the appellant/ plaintiff, insofar as its transactions with customers in Delhi are concerned, takes place in Delhi? The offers are made by customers at Delhi. The offers are subject to confirmation/ acceptance of the appellant/ plaintiff through its website. The money would emanate or be paid from Delhi. Can it not then be considered that the appellant/ plaintiff is, to a certain extent, carrying on business at Delhi? In our view, it would be so. Because of the advancements in technology and the rapid growth of new models of conducting business over the internet, it is possible for an entity to have a virtual presence in a place which is located at a distance from the place where it has a physical presence. The availability of transactions through the website at a particular place is virtually the same thing as a seller having shops in that place in the physical world. Let us assume for the sake of argument that the appellant/ plaintiff had a shop in Delhi from where it sold its various goods and services. In that case, it could not be denied that the plaintiff carried on business in Delhi. This is apart from the fact that the appellant/ plaintiff may also have been regarded as having voluntarily resided in Delhi. When the shop in the ‗physical sense' is replaced by the ‗virtual' shop because of the advancement of technology, in our view, it cannot be said that the appellant/ plaintiff would not carry on business in Delhi.

2. BANYAN TREE HOLDING V MURALI KRISHNA REDDY & ANR. Facts: The factual background in which the questions arise requires to be briefly recapitulated. A peculiar feature of the present suit which is an action for passing of is that neither the plaintiff nor the Defendants is located within the territorial jurisdiction of this Court. The Plaintiff is a company having its registered office at Singapore whereas the Defendants 1 and 2 are at Hyderabad. Defendant no. 1 is the promoter of the Defendant no. 2 company.

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3. The Plaintiff claims that it is part of a group of companies involved in the hospitality business. Since 1994 it adopted and used the word mark Banyan Tree and also the banyan tree device. It is claimed that on the account of the extensive and continuous use by the Plaintiff of the said mark and device in relation to its business, they have acquired secondary meaning, have become highly distinctive and have come to be associated with the Plaintiff and its sister concerns. The Plaintiff maintains the websites www.banyantree.com and www.banayantreespa.com since 1996. The said websites are accessible in India. 4. It is not in dispute that the Plaintiff does not hold a registration for the said mark and device in India. Its application for registration is stated to be pending. Since the year 2002, the Plaintiff has, in collaboration with the Oberoi Group, been operating 15 spas across India. In October 2007, the Plaintiff learnt that the Defendants had initiated work on a project under the name „Banyan Tree Retreat‟. The Plaintiff has averred that the word mark and the device adopted by the Defendants in relation to their retreat is deceptively similar to that of the Plaintiff. The Plaintiff states that the Defendants have advertised their project on their website www.makprojects.com/banyantree. The Plaintiff alleges that the use of the said mark and device by the Defendants was dishonest and was an attempt to encash on the reputation and goodwill of the Plaintiff and was calculated to cause confusion and deception among the public by passing off the services of the Defendants as that of the Plaintiff. Accordingly, the present suit was filed by the Plaintiff for an injunction to restrain the Defendants from the use of the said mark and device. 5. The learned single Judge has, in the referral order dated 11.8.2008, noticed that the plaintiff has in para 30 of the plaint claimed that this Court has the territorial jurisdiction under Section 20 of the Code of Civil Procedure, 1908 (CPC) to entertain the suit. According to the Plaintiff the Defendants solicit business through use of the impugned mark "BANYAN TREE RETREAT" and the Banyan device in Delhi. It is stated that "the Defendants have presence in Delhi through their website http://www.makprojects.com/banyantree.htm which is accessible in Delhi." It is further contended that "the said website is not a passive website. It not only provides contact information but also seeks feedback and inputs from its customers through an interactive web-page." Further, the Plaintiff submits that the services of the Defendants are being offered to the customers in Delhi "also because of the ubiquity, universality and utility of the features of the Internet and the World Wide Web and hence the cause of action has arisen within the jurisdiction of this Court." The referral order 6. In the referral order, the learned single Judge has examined the above claim of the Plaintiff as to the territorial jurisdiction of this Court on account of the Defendants hosting a website which is accessible in Delhi and through which not only information can be obtained by a viewer sitting in Delhi but also a feedback and input can be sent to the Defendants through the said web-page. Issue: Whether the court had jurisdiction to decide the matter in present case since the suit related to a dispute under in to the Trademark and Copyrights Act, which do not provide for exercise of jurisdiction based on internet or web-presence of such alleged infringers, even while making explicit departure from the general law as to territorial jurisdiction; 2. Whether the court can entertain the present suit, in the absence of a long arm statute, having regard to the existing state of law, particularly Section 20, CPC, and the impact, if, any of the Information Technology Act, 2009 on it?

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Judgement: For the purposes of a passing off action, or an infringement action where the Plaintiff is not carrying on business within the jurisdiction of a court, and in the absence of a long-arm statute, in order to satisfy the forum court that it has jurisdiction to entertain the suit, the Plaintiff would have to show that the Defendant "purposefully availed" itself of the jurisdiction of the forum court. For this it would have to be prima facie shown that the nature of the activity indulged in by the Defendant by the use of the website was with an intention to conclude a commercial transaction with the website user and that the specific targeting of the forum state by the Defendant resulted in an injury or harm to the Plaintiff within the forum state. For the purposes of Section 20 (c) CPC, in order to show that some part of the cause of action has arisen in the forum state by the use of the internet by the Defendant the Plaintiff will have to show prima facie that the said website, whether euphemistically termed as "passive plus" or "interactive", was specifically targeted at viewers in the forum state for commercial transactions. The Plaintiff would have to plead this and produce material to prima facie show that some commercial transaction using the website was entered into by the Defendant with a user of its website within the forum state resulting in an injury or harm to the Plaintiff within the forum state. The commercial transaction entered into by the Defendant with an internet user located within the jurisdiction of the forum court cannot possibly be a solitary trap transaction since that would not be an instance of "purposeful" availment by the Defendant. It would have to be a real commercial transaction that the Defendant has with someone not set up by the Plaintiff itself. If the only evidence is in the form of a series of trap transactions, they have to be shown as having been obtained using fair means. The Plaintiff seeking to establish jurisdiction on the basis of such trap transactions would have to aver unambiguously in the plaint, and also place along with it supporting material, to prima facie show that the trap transactions relied upon satisfy the above test. For determining if on the facts of the present suit, the Plaintiff has been able to show prima facie that this court has the jurisdiction to entertain the suit, it is placed again before the learned single Judge who will first determine that question in light of the law laid down in this judgment.

C. THAT IT IS PRIMARILY DECIDED WITH REFERENCE TO THE ALLEGATIONS IN THE PLAINT AND THAT THE INTENDED DEFENCE OF THE DEFENDANT DOES NOT PER SE ALTER IT : 1. ABDULLA V. GALLAPPA (1985) 2 SCC 54 mesne profits- the profit of an estate received by a tenant in wrongful possession and recoverable by the landlord. Profits which have accrued while there was a dispute over land ownership. if it is determined the party using the land did not have legal ownership, the true

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owner can sue for some or all the profits made in the interim by the illegal tenant, which are thus called “mesne profits.” In this case, the dispute is relating to plots, which belong to Galappa and was later purchased by the appellant’s father under a registered sale deed. Galappa was minor at the time of the execution of the sale deed and therefore the sale deed was executed by his mother in capacity of a guardian. Later on the mother filed an application in the Tahsildar alleging that she had executed only a mortgage deed and not a sale deed in the favour of the appellant’s father. the tahsildar after investigation concluded that the mother had actually executed a sale deed in favour of the appellant’s father. Went for appeal but was dismissed and was advised to approach a civil court for a proper redress of the grievances. Meanwhile, the brother of Galappa was inducted as a tenant. (defendant) The plaintiffs-appellants had initiated the proceedings for the recovery of the arrears of rent from the defendants-respondents and had also initiated a separate proceeding for the correction of the tenancy register. In both those proceedings the defendant No. 2 had denied the title of the plaintiffs-appellants. Question of jurisdiction? The trial court as well as the first appellate court decreed the suit deciding all the issues in favour of the plaintiffs-appellants. The High Court, however, set aside the judgment and decree of the courts below and held that the civil court had no jurisdiction to try the suit on the allegations of the plaintiffs in the plaint. In its opinion the plaintiffs-appellants could get the relief of possession only from the revenue court under Section 32(1) of the said Act and that Section 99 of the Hyderabad Tenancy and Agricultural Lands Act. There is no denying the fact that the allegations made in the plaint decide the forum. The jurisdiction does not depend upon the defence taken by the defendants in the written statement. On a reading of the plaint as a whole it is evident that the plaintiffs-appellants had filed the suit giving rise to the present appeal treating the defendants as trespassers as they denied the title of the plaintiffs-appellants. Now a suit against the trespasser would lie only in the civil court and not in the revenue court. The High Court, however, took the view that the plaintiffs-appellants had not claimed a declaration of title over the disputed plots and all that has been set up by them in the plaint is the relationship of landlord and tenant. In our opinion the High Court was not quite correct in observing that the suit was filed by the plaintiffs-appellants on the basis of relationship of landlord and tenant. Indeed, when the defendants denied the title of the plaintiffs and the tenancy the plaintiffs filed the present suit treating them to be trespassers and the suit is not on the basis of the relationship of landlord and tenant between the parties. It is no doubt true that the plaintiffs had alleged that the defendant No. 2 was a tenant but on the denial of the tenancy and the title of the plaintiffsappellants they filed a suit treating the defendant to be a trespasser and a suit against a trespasser would lie only in the civil court and not in the revenue court.

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The Court was therefore, of the considered opinion that on the allegations made in the plaint the suit was cognizable by the civil court and that the High Court has erred in law in nonsuiting the plaintiffs-appellants on the ground that the civil court had no jurisdiction. The learned counsel for the appellants, Shri R.B. Datar, however, contended that the trial court as well as the first appellate court had decided all the issues involved in the case in favour of the plaintiffs-appellants and in case we come to the conclusion, as indeed we have come to, that the jurisdiction of the civil court is not barred, the judgment of the first appellate court should be confirmed and there is no need to remand the case again to the High Court for deciding it afresh on merits. But, it will not be fair to the respondents to accept the finding of the first appellate court without the same being examined by the High Court. For the reasons given above the judgment of the High Court cannot be sustained. The appeal is accordingly allowed and the judgment of the High Court is set aside and the case is remanded to the High Court for deciding the other issues involved in the case on merits.

D. THAT WHAT MATTERS IS NOT THE FORM BUT THE SUBSTANCE OF THE ALLEGATIONS IN THE PLAINT: 1. RAM SINGH V. GRAM PANCHAYAT (1986) 4 SCC The Act had barred the jurisdiction of the civil court in matters dealing with the right, title or interest in any land vested or deemed to have been vested in a Panchayat. Section 11 of the Punjab Village Common Lands (Regulation) Act, 1961 conferred jurisdiction on the Collector to decide cases of persons claiming right, title or interest in any land vested or deemed to have been vested in a Panchayat, or claiming that any land has not so vested in a Panchayat and against such order an appeal was provided to the Commissioner. Under s. 12 every order of the Collector or Commissioner was final and such order could not be called in question in any Court by way of appeal or revision or in any original suit, application or execution proceedings. Section 13 of the Act provided that no civil court shall have jurisdiction to entertain or adjudicate upon any question whether any property or any right to or interest in any property is or is not vested or deemed to have been vested in a Panchayat under the Act. The plaintiffs cannot by drawing their plaint cleverly by not claiming a declaration that the land in question was not shamlat deh confer jurisdiction on the civil court when by virtue of section 13 of the Act the jurisdiction of civil courts to try such suits had been taken away. In the instant case the suit had been filed against the Panchayat and the Panchayat had expressly claimed that the land in question belonged to it as shamlat deh. It will not be

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possible in the circumstances for the civil court to make a declaration in favour of the plaintiffs without deciding the question whether the property in question was shamlat deh or not and whether it belonged to the Panchayat or not. Reliance was however placed by the learned counsel for the petitioners on a decision of the Punjab and Haryana High Court in Bhagu and Ors., v. Ram Sarup and Ors., [1985] Punjab Law Journal Page 366 in which the suit had been held to be maintainable in a civil court even though the defendant had contended that the land involved in that suit was shamlat deh. The High Court found that plaintiff in that case had only stated in the plaint that the land in question was 'Gali Sheh-re-aam' or a throughfare belonging to the Gram Panchayat which was being used by the plaintiff as an approach to his house for about 30 years and had prayed for an injunction restraining the defendant from interfering with his right. The plaintiff in that case had not claimed that the suit land belonged to him or that it did not belong to the Gram Panchayat. The crucial issue which had been framed in that case was whether the land in question over which the plaintiff had asserted his right was a street or not and whether the defendant had blocked the said street. (Therefore, the substance of the allegations made is considered and not the form, simply because in this case the land in dispute was belonging to the Gram Panchayat, the case would fall under S11 is not acceptable, because actually what the issue before the Court was not related to the right, title or interest in any land vested or deemed to have been vested in a Panchayat, instead whether the land is a street or not. Hence the substance was not indicative of dealing with S 13 of the Act.) The High Court held in the circumstances of that suit that the jurisdiction of the civil court had not been taken away by virtue of section 13 read with sections 13A and 13B of the Act which had been inserted by the Haryana Legislature into the Act. We are of the view that the above decision is clearly distinguishable from the present case since in this case the Panchayat which had been impleaded as a defendant had raised the plea that the suit land was a part of shamlat deh and that the plaintiffs had no right or title in it. This question has to be decided by the Collector only under section 11 of the Act and not by the Civil court.

2. BANK OF BARODA V MOTI BHAI The appellant, the Bank of Baroda, agreed through its Banswara Branch to sanction a demand loan facility in the sum of Rs.36,000 in favour of respondent l. In consideration thereof, respondent I executed a demand promissory note in favour of the Bank on June 18, 1973. He also executed a bond hypothecating the standing Crop of his lands situated at Khandu and Surjipada in Rajasthan Respondents 2 and 3 are the guarantors for the repayment of the loan. In order to further secure the repayment of the loan, respondent 1 executed a deed of simple mortgage in favour of the Bank, ill respect of the lands at Khandu and Surjipada. The respondents having failed to repay the loan, the appellant filed against them a suit in the court of the learned District Judge, Banswara, for recovering a sum of Rs. 52,000 and odd which was due ` on the loan transaction. Respondents raised a preliminary objection to the

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maintainability of the suit on the ground that the claim in the suit was essentially one for enforcing the mortgage executed by them in favour of the Bank and, therefore, the Revenue court had the exclusive jurisdiction to entertain the suit, by reason of the provisions contained in the Rajasthan Tenancy Act 3 of 1955, (hereinafter called "the Act"). Respondents raised a preliminary objection to the maintainability of the suit on the ground that the claim in the suit was essentially one for enforcing the mortgage executed by them in favour of the Bank and, therefore, the Revenue court had the exclusive jurisdiction to entertain the suit, by reason of the provisions contained in the Rajasthan Tenancy Act 3 of 1955, That objection was overruled by the learned District Judge but, in a civil revision application filed by the respondents, the High Court upheld it. According to the High Court, "the execution of the mortgage deed by defendant No. l in favour of the plaintiff in respect of his tenancy rights in agricultural land also forms the essential part of the cause of action of the plaintiff and as such, the suit is triable by a revenue court". The correctness of this view is questioned by the plaintiff in this appeal by special leave. A combined reading of these two sections would show that the Jurisdiction of civil courts is barred only in respect of suits and applications of the nature specified in the Third Schedule to the Act and in respect of suits or applications based on a cause of action in respect of which any relief could be obtained by means of a suit or application of the nature specified in the Third Schedule. Entry 35 is described in the Third Schedule as a "General" entry, that is to say, not relatable to any particular section of the Act. We are unable to appreciate how the suit filed by the Bank can fall under this "General" or residuary entry. The suit of the Bank to recover the loan is not in respect of any matter arising under the Act. The long title of the Act shows that it was passed in order "to consolidate and amend the law relating to tenancies of agricultural lands, and to provide for certain measures of land reforms and matters connected therewith". A loan given by a Bank to an agriculturist, which is in the nature of a commercial transaction, is outside the contemplation, of the Act and can, by no stretch of imagination be said to be in respect of any matter arising under the Act. In this particular case, the Bank lent a certain sum of money to respondent 1 in the usual course of its commercial business and nothing could be further removed from the contemplation of the Act than such a transaction. It is only by way of a collateral security that the Bank obtained a hypothecation bond and a deed of mortgage from respondent 1 find a letter of guarantee from A respondents 2 and 3. The entire judgment of the High Court is based on the assumption that the mortgage was executed in pursuance of section 43 of the Act and, therefore, residuary Entry 35 of the Third Schedule is attracted. Once it is appreciated that the mortgage executed by respondent I is outside the scope of the Act, the reasoning of the High Court has to be rejected. (Section 43 specifies that a tenant may hypothecate or mortgage his interest in the whole or part of his holding for the purpose of obtaining loan.) On the question of jurisdiction, one must always have regard to the substance of the matter and not to the form of the suit. If the matter is approached from that point of view, it would be clear that primarily and basically, the suit filed by the Bank is one for

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recovering the amount which is due to it from the respondents on the basis of the promissory note executed by respondent 1 and the guarantee given by respondents 2 and 3. The relief sought by the Bank is that the suit should be decreed for the repayment of the amount due from the respondents. By the second prayer, the Bank has asked that "in case of non-payment of the decretal amount" the mortgaged property should be brought to sale and if the proceeds of that sale are not enough to meet the decretal liability, the other movable and immovable properties of the respondents should be put at sale. The suit is not one to enforce the mortgage and, even assuming for the purpose of argument that it is, the mortgage not having been executed under Section 43 of the Act, nor being one relatable to `that section, the residuary Entry 35 can have no application. If that entry is out of way, there is no other provision in the Act, which would apply to the instant suit. The civil court has therefore, jurisdiction to entertain the suit filed by the appellant Bank.

E. THE DISTINCTION BETWEEN 'IRREGULARITY' AND 'ILLEGALITY' IN THE JURISDICTIONAL CONTEXT AND ITS CONSEQUENCES : 1. SRI BUDHIA SWAIN & ORS VS GOPINATH DEB An order of settlement was made in 1966 relating to some lands and rent schedule was issued and was accordingly paid by the respondent. there was no appeal and hence the order of settlement achieved a finality. in 1974, the appellants, 12 in number, filed an application seeking “review” of the order of settlement of 1966. The only ground for review raised in the application was that the public notice of the claim preferred by the respondent no.1 was not served in the locality as prescribed. (which later on in the case is seen as an irregularity and this does not vitiates the order pronounced in 1966.) The O.E.A. Collector purported to exercise the power of review under Section "151 CPC" (saving of inherent power of the Court.) having formed an opinion that the proclamation was not properly done in accordance with the law as the order-sheet of the case did not disclose the manner of proclamation. The respondent no.1 preferred an appeal before the Additional District Magistrate who formed an opinion that the O.E.A. Collector was not expressly conferred with any power of review but the order could be justified as one of recalling of an earlier order which had occasioned failure of justice. If the mandatory provisions were not followed then the order of 1966 is rendered a nullity. The learned ADM observed that the claim petition by respondent no.1 was filed some time in 1963, i.e.beyond the prescribed period of six months. The learned ADM also observed that the claim preferred by the respondent no.1 should have been treated as a lease case and not as a claim case. At the end, sustaining the setting aside of the order dated 2.4.1966

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the learned ADM remanded the case to the O.E.A. Collector-cum- Additional Tahsildar for disposal afresh in the light of the observations made by him. The respondent no.1 preferred a petition under Article 226/227 of the Constitution before the High Court of Orissa. The petition has been allowed and the orders of O.E.A. Collector and the ADM have both been set aside by the High Court forming an opinion that the power to review as assumed by O.E.A. Collector did not exist and the circumstances of the case did not warrant the exercise of power to recall an earlier order passed by the O.E.A. Collector which was one passed within the jurisdiction of the O.E.A. Collector being set aside, more so when the averments made in the application seeking review/recall did not go beyond alleging an irregularity merely or at the worst an illegality. The aggrieved appellants, the 12 villagers who had sought for review/recall, this appeal by special leave impugning the order of the High Court.

have filed

The Supreme Court noticed that only S 38A of the Act had a provision for review and that too only on the grounds that there has been a clerical or arithmetical mistake in the course of the proceeding. It was also conceded by the learned counsel for the appellants that the proceedings initiated by the appellants were certainly not under Section 38A. It was also conceded at the bar that the subsequent action of the O.E.A. Collector could be sustained only if supportable by the power to recall. (That is the orders now passed would be valid only if it is proved that the Collector and the ADM had the power to recall...) What is a power to recall? Inherent power to recall its own order vesting in tribunals or courts was noticed in Indian Bank Vs. M/s Satyam Fibres India Pvt. Ltd. 1996 (5) SCC 550. Vide para 23, this Court has held that the courts have inherent power to recall and set aside an order (i) obtained by fraud practised upon the Court, (ii) when the Court is misled by a party, or (iii) when the Court itself commits a mistake which prejudices a party. In A.R. Antulay Vs. R.S. Nayak & Anr. AIR 1988 SC 1531 (vide para 130), this Court has noticed motions to set aside judgments being permitted where (i) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all and was shown as served or in ignorance of the fact that a necessary party had died and the estate was not represented, (ii) a judgment was obtained by fraud, (iii) a party has had no notice and a decree was made against him and such party approaches the Court for setting aside the decision ex debito justitiae on proof of the fact that there was no service. What is a vacated judgement? “A judgement can be vacated on the grounds like invalidity of the judgement as to render it void is a valid ground for vacating it. A judgement will not be vacated on the grounds which could have been pleaded in the original action. A motion to vacate will not be entered when the proper remedy is by some

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other proceedings, such as by appeal. The right to vacation of a judgment may be lost by waiver or estoppel. Where a party injured acquiesces in the rendition of the judgment or submits to it, waiver or estoppel results. Generally, a Motion to Vacate will be granted if you are able to convince the court that you did not have a fair chance to present your case. If you had that chance already, then do not file a Motion to Vacate. It is not a way to ask the court to change its mind or reconsider the evidence or law. A Motion to Vacate is not a substitute for an appeal. An appeal, generally, must be filed within 30 days from the date a judgment or order is entered. An appeal is a request to a higher court to change the decision made by a lower court. A Motion to Vacate asks the same court to withdraw its decision. A Motion to Vacate is rarely granted. Before filing such a motion, make sure that you have solid legal grounds for the motion. If you file a Motion to Vacate without having a good legal reason to do so, the court may decide your motion is frivolous. It may order you to pay the other side’s costs, including attorney’s fees.” In our opinion a tribunal or a court may recall an order earlier made by it if (i) the proceedings culminating into an order suffer from the inherent lack of jurisdiction and such lack of jurisdiction is patent, (ii) there exists fraud or collusion in obtaining the judgment, (iii) there has been a mistake of the court prejudicing a party or (iv) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all or had died and the estate was not represented. Summarising, the power to recall a judgment will not be exercised when the ground for reopening the proceedings or vacating the judgment was available to be pleaded in the original action but was not done or where a proper remedy in some other proceeding such as by way of appeal or revision was available but was not availed. The right to seek vacation of a judgment may be lost by waiver, estoppel or acquiescence.

A distinction has to be drawn between lack of jurisdiction and a mere error in exercise of jurisdiction. The former strikes at the very root of the exercise and want of jurisdiction may vitiate the proceedings rendering them and the orders passed therein a nullity. A mere error in exercise of jurisdiction does not vitiate the legality and validity of the proceedings and the order passed thereon unless set aside in the manner known to law by laying a challenge subject to the law of limitation. In Hira Lal Patni Vs. Sri Kali Nath AIR 1962 SC 199, it was held :"...The validity of a decree can be challenged in execution proceedings only on the ground that the court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have seisin of the case because the subject matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of

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rendering the court entirely lacking in jurisdiction in respect of the subject matter of the suit or over the parties to it." As already noted, in this case, the appellants sought for review or recall of the order from the O.E.A. Collector solely by alleging that the notice which was required to be published in the locality before settling the land in favour of the respondent no.1 was not served in accordance with the manner prescribed by law. The appellants did not plead `non-service of the notice' but raised objection only with regard to `the manner of service of the notice'. The O.E.A. Collector was satisfied of the notice having been published. Assuming that the notice was not published in the manner contemplated by law, it will at best be a case of irregularity in the proceedings but certainly not a fact striking at the very jurisdiction of the authority passing the order. The Appellate Authority, i.e., the ADM has in his order noted two other contentions raised by the appellants, viz., (i) the application for settlement by the respondent no.1 was not filed within the prescribed time, and (2) the application should have been treated as an application for lease and should not have been treated as a claim case. None of the two pleas was raised by the appellants in their pleadings. None of the two was urged before O.E.A. Collector. Therefore there was no occasion to consider those pleas. Still we may make it clear that none of the two pleas could have been a ground for recalling the order which was otherwise within the jurisdiction conferred on the O.E.A. Collector. Though it is a disputed question of fact, as noted by the High Court, that the application by the respondent no.1 was filed within the prescribed time or not. Nevertheless, we are very clear in our mind that an order made on an application filed beyond the time prescribed for filing the same may be an illegal order but is certainly not an order passed without jurisdiction. A suit or proceeding entertained and decided in spite of being barred by limitation is not without jurisdiction ".....Even assuming that the suit was barred by time, it is difficult to appreciate the contention of learned counsel that the decree can be treated as a nullity and ignored in subsequent litigation. If the suit was barred by time and yet the Court decreed it, the court would be committing an illegality and therefore the aggrieved party would be entitled to have the decree set aside by preferring an appeal against it. But it is well settled that a Court having jurisdiction over the subject matter of the suit and over the parties thereto, though bound to decide right may decide wrong; and that even though it decided wrong it would not be doing something which it had no jurisdiction to do. It had the jurisdiction over the subject-matter and it had the jurisdiction over the party and, therefore, merely because it made an error in deciding a vital issue in the suit, it cannot be said that it had acted beyond its jurisdiction. As has often been said, courts have jurisdiction to decide right or to decide wrong and even though they decide wrong, the decrees rendered by them cannot be treated as nullities...." So also whether an application by way of claim petition or an application for grant by way of lease, both were entertainable by the O.E.A. Collector and it was for him to decide which

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way he chose to deal with the application. In any case, he had the jurisdiction to deal with the application. No case was made out before the O.E.A. Collector and the ADM for recalling the order of settlement dated 2.4.1966. The order did not suffer from lack of jurisdiction or from error of jurisdiction much less an inherent one. The High Court has rightly set aside the order dated 2.2.1976 passed by the O.E.A. Collector as the same was without jurisdiction. In passing the order dated 2.2.1976 O.E.A. Collector had exercised a jurisdiction which the law did not vest in him. The order could not have been sustained by the ADM in appeal.

2. ITTYAVIRA MATHAI V. VARKEY VARKEY & ANR. What was the substantial question of law here? why an appeal by certificate? Appellant was the son of Ittiyavira whom he had sold all the properties which he had made part of the consideration for the sale of 23 items of property to Ramalinga Iyer and Ramana Velayudhan. and these properties were hypothecated with them. both of these instituted a suit against Ittiyavira to obtain a decree against the realisation of the amount. the properties attached to Ramalinga Iyer in the hypothecation bond was executed in favour of Ittiyavira’s son (Appellant) by Ittiyavira. But the execution decree was transferred to one Venkiteswara Iyer. Further the properties hypothecated to Raman Velayudhan, the execution decree was purchased by one Mathai Ouseph and later sold them to the wife of the appellant. It may however, be mentioned that the appellant was not made a party to O. S. No. 59 of 1093 filed by Anantha Iyer and his brother and the contention raised by the respondents is that the sale in favour of the appellant is not a genuine transaction and therefore he was not a necessary party to the suit. After Ittiyavira died, all the suit properties was sold to the plaintiffs-respondent. The respondents, claiming that they were in possession of the suit properties, that the appellant was disputing their possession and that there was a likelihood of a breach of peace because of the attempt of the appellant to "obstruct" their possession. The above proceeding was under s 145 of the Code of Criminal Procedure. The magistrate’s decision was upheld by the High Court. Eventually, the court held that the properties were in the possession of the appellant and ordered that his possession be maintained until otherwise ordered by a competent Civil Court. (Therefore this is an order as it is not final.) Consequent upon the order made by the High Court the respondents instituted a suit out of which the appeal arose in the Supreme Court. order number 1088 the rights under this bond were sold in execution and were purchased by Anantha Iyer at the Court auction. The trial court dismissed the suit

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If the suit was barred by time and yet, the court decreed it, the court would be committing an illegality and therefore the aggrieved party would be entitled to have the decree set aside by preferring an appeal against it. But it is well settled that a court having jurisdiction over the subject matter of the suit and over the parties thereto, though bound to decide right may decide wrong; and that even though it decided wrong it would not be doing something which it had no jurisdiction to do. It had the jurisdiction over the subject-matter and it had the jurisdiction over the party and, therefore, merely because it made an error in deciding a vital issue in the suit, it cannot be said that it has acted beyond its jurisdiction. As has often been said, courts have jurisdiction to decide right or to decide wrong and even though they decide wrong, the decrees rendered by them cannot be treated as nullifies. If it fails to do its duty, it merely makes an error of law and an error of law can be corrected only in the manner laid down in the Civil Procedure Code the party aggrieved does not take appropriate steps to have that error corrected, the erroneous decree will hold good and will not be open to challenge on the basis of being a nullity.

F. IMPORTANT POINTS ON JURISDICTION Illustration discussed in class: Facts: Suppose there is an event management company which operates only out of Mumbai and which is organising a music festival in Goa, the tickets for which were available on the website of the company. Plaintiff, a person residing in Chennai booked the ticket after paying the fee and received a confirmation email for successful purchase of the tickets. The tickets were supposed to be delivered via post in hard copy format. However, the ticket was not delivered on time. Issue: Which forum should the Plaintiff approach to file his suit? Discussion: The online transaction made in present case does not fall under Section 16 of the code and nor under Section 19 of the code because breach of contract doesn’t amount to a personal injury. Hence, the residuary clause Section 20 will be applicable in this case. Section 13 of the IT Acts provides that the delivery of an electronic receipt takes place when the receipt enters any other computer outside the control of the sender which in this case was delivered in Chennai as the receipt entered the designated computer resource of Plaintiff in Chennai. Since the delivery of an electronic receipt is an equivalent of an acceptance of an offer (by applying the digital rule of the contract), the contract was formed in Chennai. Plaintiff has a choice to either approach a civil court in Chennai where the contract was formed or at Bombay where the defendant is carrying on business. A forum has the jurisdiction to decide if it has jurisdiction. If a defendant claims that a civil court doesn’t have jurisdiction to hear a case then it doesn’t preclude the rights of the civil court to decide whether it has the jurisdiction or not. The defendant has to adduce evidence to prove his claim. A plaintiff is not allowed to structure a suit in such as manner so as to confer jurisdiction on a forum where no jurisdiction exists.

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Irregularity: decree on a suit barred by limitation → wrong decision (cases where the court did not follow the mandated procedure) Power to decide includes power to decide wrongfully. An appeal can lie against such instances of irregularity. Illegality: where the court could not have decided a suit at all. For example, in error relating to subject matter jurisdiction. (http://www.nja.nic.in/16%20CPC.pdf) taken from this pdf.

4. TRANSFER OF SUITS

1.SECTION 22 Where a suit may be instituted in any one of two or more Courts and is instituted in one of such Courts, any defendant, after notice to the other parties, may, at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, apply to have the suit transferred to another Court, and the Court to which such application is made, after considering the objections of the other parties (if any), shall determine in which of the several Courts having jurisdiction the suit shall proceed. As arbiter litis, has a "right to choose his own forum where he want to sue” and that right should not be interfered with except on very strong grounds. But section 22 curtails this principle. 1. The Court must be satisfied that justice could more likely be done between the parties by refusing to allow a party to continue his suit or proceedings in the forum of his choice. 2. The onus of establishing sufficient cause for the transfer lies heavily on the applicant. 3. Preponderance of balance of convenience is of prime consideration for transfer of such a matter. 4. The convenience of the parties is also a valid ground for transferring such a matter. 5. Further, the consideration in deciding the matter of transfer of suit or proceedings under Section 22 CPC is not that which is a previously instituted suit (in cases where both the parties file different suits in different forums), but the balance of convenience of the parties and in weighing and examining this course of balance of convenience, the Court would be justified in trying to find out whether a particular party has chosen a forum in utter disregard to the convenience of the other party for some ulterior object and in abuse of his position as an arbiter litis.

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The power to transfer a proceeding is in the discretion of the Court. 2. SECTION 23 Now this application of transfer needs to be made in a. if the Courts in which the suits are/is filed are subordinate to the same Appellate Court, then in this Appellate Court. b. if the Courts in which the suits are/is filed are subordinate to different Appellate Court but to the same High Court, then in this High Court. c. if the Courts in which the suits are/is filed are subordinate to different Courts. Illustration discussed in class: In a case if P (a resident of Patna) has approached a civil court within jurisdiction of Patna High Court and if D (a resident of Calcutta) wants to get the cases transferred to a civil court in Calcutta then the D will have to approach Patna High Court and not the Calcutta High Court for transfer of suit. 3. SECTION 24 Unlike Section 22 which deals with transfer of suits, Section 24 of the code deals with transfer of proceedings. The proceedings can be transferred only to subordinate judges and not superior or of equal rank. Power to transfer as well as withdraw. TRANSFER ● Any proceeding pending before it for trial or for disposal can be transferred, the expression proceedings also includes execution proceedings. ● always the transfer is made to a court subordinate to. ● Additional district judges are subordinate to the district court for this purpose. ● Always the suit can be transferred to only the court which has jurisdiction with all its three components. WITHDRAW Power to withdraw any proceeding pending in any court subordinate to it and ● try and dispose it of ● transfer to disposal to another court (subordinate to it and competent to hear it) ● retransfer it to the court from where it was withdrawn Both powers (transfer/withdrawal) can be exercised on the application of the parties, that is notice is required to be given to the other parties and they must be head as well as on its own motion, that is can be exercised even without notice.

4. SECTION 25 Supreme Court can transfer any proceeding at any stage from one Court to the other- to meet the ends of justice. • to be exercised on application of a party (supported by an affidavit)

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• costs (up to Rs. 2000) can be imposed on frivolous/ vexatious applications. Section 25 empowers the Supreme Court to transfer the case from a competent Court in one State to the Court of another State. The transfer should not be made when the proceedings in a case has reached the final stage or are likely to be concluded. While considering the application under Section 25, the Court must examine all the facts involved therein and inconvenience of a party cannot be a ground for transfer. Clause (5) : The law applicable to any suit, appeal or other proceeding transferred under this section shall be the law which the Court in which the suit, appeal or other proceeding was originally instituted ought to have applied to such suit, appeal or proceeding. (same law should apply in different States as well (Contentious??)). Supreme Court has used Article 142 of the Constitution to impose higher costs in cases of frivolous application. Article 142 cannot be used to create jurisdiction where none exists. 5. IMPORTANT POINTS Grounds for transfer area. Forum non-convenience (Suppose if too many witnesses would have to regularly transported to the appropriate forum. b. Administrative reasons: high probability of conflict of interest c. Convenience (common questions/ evidences to be involved so that it is convenient to try them together.) 1. The power is discretionary in character. 2. The transfer orders should specifically state cogent reasons for the transfer of the suit or proceeding. 3. Transfer cannot be done for the reason that the other party has no objection. 4. While transferring, excessive prejudice should not be done to one party. 5. Transfers can also be done for the purpose of consolidating suits across multiple fora where the common questions are involved. 6. Large number of matrimonial cases where transfer is sought for. • the interests of the wife is in general favoured in such cases. Well established grounds for transfer1. When the Superior Court is satisfied that the proceedings in one Court constitute an abuse of the process of the Courts. 2. When it is clear that some prejudice has been created, and that a fair hearing, and an impartial adjudication, could not be reasonably expected, even though such a state of things has been brought about by the conduct of the very party applying for the transfer.

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3. Where there is any reasonable ground for supposing that a prejudice against a party’s pleader has in any manner or measure affected the judicial attitude of the Court towards the petitioner, or his case; 4. If a party feels that he is not likely to have a fair trial before a particular Court. In such a case, however, it is true that the reasonable apprehension on the part of the litigant should receive consideration, but at the same time the apprehension must be such as a reasonable man might reasonably be expected to have. Transfer of the proceedings by the High Court before itself on the ground that a party is abusing the process of the Court or otherwise resorting to the process that other party may not succeed, stands fully fortified by the judgment of the Hon’ble Supreme Court in Abdul Rahman V. Prasony Bai & Anr., AIR 2003 SC 718. (case not mentioned anywhere just for reference. )

6. WITH RESPECT TO THE MATRIMONIAL PROCEEDINGS. Most transfer cases are w.r.t. to family law → matrimonial context. General attitude: to favour the female (not a rule but it is decided on a case to case basis) 1. SANTHINI V. VIJAYA VENKETESH In a transfer petition, no direction could be issued for video conferencing. The discretion has to rest with the Family Court to be exercised after the Court arrives at a definite conclusion that the settlement was not possible and both parties file a joint application or each party filing his/her consent memorandum seeking hearing by videoconferencing.

Issue: the concept of the territorial jurisdiction, reflecting on the issues whether transfer of a case could be avoided and alternative mode could be thought of? “In these circumstances, we are prima facie of the view that we need to consider whether we could pass a general order to the effect that in case where husband files matrimonial proceedings at place where wife does not reside, the court concerned should entertain such petition only on the condition that the husband makes appropriate deposit to bear the expenses of the wife as may be determined by the Court. The Court may also pass orders from time to time for further deposit to ensure that the wife is not handicapped to defend the proceedings. In other cases, the husband may take proceedings before the Court in whose jurisdiction the wife resides which may lessen inconvenience to the parties and avoid delay. Any other option to remedy the situation can also be considered.” As the narration would exposit, the pivotal concern of the Court was whether an order could be passed so as to provide a better alternative to each individual who is compelled to move this Court. The principle of “expedient for ends of justice” to transfer the proceedings. It was advised that the doctrine of ‘forum non conveniens” and held that it can be applied to matrimonial proceedings for advancing the interest of justice suggesting about conducting the proceedings by videoconferencing.

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“One cannot ignore the problem faced by a husband if proceedings are transferred on account of genuine difficulties faced by the wife. The husband may find it difficult to contest proceedings at a place which is convenient to the wife. Thus, transfer is not always a solution acceptable to both the parties. It may be appropriate that available technology of videoconferencing is used where both the parties have equal difficulty and there is no place which is convenient to both the parties. We understand that in every district in the country videoconferencing is now available. In any case, wherever such facility is available, it ought to be fully utilised and all the High Courts ought to issue appropriate administrative instructions to regulate the use of videoconferencing for certain category of cases. Matrimonial cases where one of the parties resides outside court’s jurisdiction is one of such categories. Wherever one or both the parties make a request for use of videoconferencing, proceedings may be conducted on videoconferencing, obviating the needs of the party to appear in person. In several cases, this Court has directed recording of evidence by video conferencing.” But the Court opined, “to what extent the confidence and confidentiality will be safeguarded and protected in video conferencing, particularly when efforts are taken by the counsellors, welfare experts, and for that matter, the court itself for reconciliation, restitution of conjugal rights or dissolution of marriage, ascertainment of the wishes of the child in custody matters, etc., is a serious issue to be considered. It is certainly difficult in video conferencing, if not impossible, to maintain confidentiality. It has also to be noted that the footage in video conferencing becomes part of the record whereas the reconciliatory efforts taken by the dutyholders referred to above are not meant to be part of the record. All that apart, in reconciliatory efforts, physical presence of the parties would make a significant difference.”

2. NAHAR INDUSTRIAL ENTERPRISES LTD. V. HONG KONG AND SHANGHAI BANKING CORPORATION “Only civil suits are subject matter of inter State transfer from one civil court to another civil court. Sub-section (5) of section 24 of CPC provides that a suit or proceeding may be transferred from a Court which has no jurisdiction to try it. The power to transfer one case from one court to another or from one tribunal to another is to be exercised if exceptional situation arises and not otherwise. Rules of procedures are intended to provide justice and not to defeat it.” 3. N.K. NAIR & ANR. V. KAVANUGALAANATTU RADHIKA The transfer should not be made when the proceedings in a case has reached the final stage or are likely to be concluded. (Using Section 25 for transferring the case from one High Court to another High Court.) 4. MADHU SAXENA V. PANKAJ SAXENA

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While considering the application under Section 25, the Court must examine all the facts involved therein and inconvenience of a party per se cannot be a ground for transfer. In this case the transfer had been sought by the wife on the ground that she has no source of income and she is completely dependent on her relatives and she is not in the position to go from Rohtas to Ujjain which involves high expenses. Even otherwise the court has been showing leniency towards the wife. Considering all the facts and circumstances of the case, the case was transferred to the District Court in Rohtas.

In Neelam Bhatia (supra), the Court declined to transfer the case and directed the husband to bear the to-and-fro travelling expenses of the wife and one person accompanying her by train whenever she actually appeared before the Court. 5. ORDER-1. SOME BASICS ON DIFFERENT ORDERS OF THE C.P.C. BEFORE WE BEGIN WITH ORDER I: How to file a suit → Order 4 Rule 1 (A suit can proceed further only after filing of a plaint Order VII → Contents of plaint Order VI → pleadings Order VIII → written statements Order I → Parties to a suit Order II → Framing of a suit (entire claim in one go etc.)

Order III → who can represent parties A party can be represented by: (i) self (ii) agent/authorised representative (power of attorney holder) A party can appoint an agent for receiving summons and notices only Power of attorney can be of two types: a) General- to file all suits or to do all acts which the person himself would’ve done b) Special- for doing one particular act (iii) Pleader (includes advocate) → written authorization (Vakalatnama) A lawyer with vakalatnama can instruct another lawyer to argue the case.

Notary/Notarisation → certifies authenticity of documents/affidavits etc

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Difference between will and codicil: Codicil is basically a modification to the will and not the original testament.

Joinder of Parties arises only where an act or transactions proceeds from two or more persons, or when it affects two or more persons. All persons may be joined in one suit as plaintiffs or defendants where any right to relief in respect of, or arising out of • the same act or transaction; or • series of acts or transactions is alleged to exist in such persons, whether jointly, severally or in the alternative; • if such persons brought separate suits, any common question of law or fact would arise. The test is not identity of the cause of action, but of the act or transaction. It is not be necessary that every defendant shall be interested as to all the relief claimed in any suit against him. It is further necessary that the defendants should be jointly interested in the main questions raised by the litigation. The Court has the right to put the plaintiffs to their election or order separate trials or make such order as may be expedient where it appears that any joinder of plaintiffs/defendants may embarrass or delay the trial of the suit.[Rule 2 and Rule 3A] A "necessary party" is one whose presence is indispensable for proceeding with the suit and for final decision thereof • i.e someone against whom there exists a right to some relief in respect of the matter involved in the proceeding in question; and it should not be possible to pass an effective decree in his absence. • it won’t be possible to pass an effective decree in absence of such a party. their presence is absolutely necessary to grant the reliefs sought for A plaintiff or petitioner is bound to implead all those who are 'necessary parties'. As this captures the principle of “natural justice” that is right to be heard or right to hear. • "proper party" is one in whose absence an effective order can be passed, but whose presence is required for effective and complete adjudication and settlement of all questions involved in the suit. He is also entitled to/at liberty to implead in a suit all parties who are 'proper parties'. Provided if a proper party is not joined, the court cannot determine the rights or liabilities of the parties in their absence and therefore its decree as a general rule shall not bind the persons who were not the parties before it.

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Order 1 Rule 9 states that No suit shall be defeated by reason of the misjoinder or nonjoinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. Provided while non-joinder of a proper party is not fatal to the suit, nonjoinder of a necessary party does prove fatal to the suit, if the plaint is not amended to implead a necessary party. If a special statute makes a person a necessary party to the proceedings and also provides that non-joinder thereof will result in dismissal of the petition, the Court cannot use the curative powers of O.1 R.10 as to avoid the consequences of non-joinder of such party. Just not the statues but also the judgement (for example that co-owners are necessary parties in a suit for possession of immovable property.) The Court has no power to join a person as a party if he could not have been originally impleaded under O.1,R.1, or R.3, Civil P.C. (he must be a necessary or proper party) Effect of non-joinder or mis-joinder of parties: -

Necessary Party-someone who ought to have been joined- Non-joinder of the same might be fatal to the case. - Proper Party- someone whose joinder is only necessary for convenience is necessarymight not be fatal - We need to look into the legal mandate (such as the special statutes- like Rent Protection Act) Laxmishankar Harishankar Bhatt vs Yashram Vasta, AIR 1993 SC 1587)] Herein the court upon considering the facts of the case decided upon the question whether the suit of the appellant was liable to be dismissed on the group of non-joinder of necessary parties. The respondents had contended that the appellant had failed to add all the parties to the suit. As in the suit for the agreement to sell of land of X (who was deceased but had 4 sons(3 alive) and many grandchildren), the appellants had only mentioned the names of the 3 alive sons and only one grandchild as a substitute of the dead son. The argument of the respondents was centred around the logic that the case is not maintainable on account of non-joinder of necessary parties as all these heirs have got right title and interest in this disputed land they are necessary party in this suit. Their pedigree is annexed herewith and the same may be considered as a part of this written statement The plaintiff's suit for obtaining possession in absence of the owner is not maintainable. And therefore, on account of the said reason also the plaintiffs suit is liable to be dismissed. The Court ruled that it not a case of non-joinder of suits as : -

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there is no clear averments as to who all are co-owners and the nature of the rights they are claiming. The statement made by the respondents is vague in nature on account of not mentioning clearly the portions of the co-owners. It has also failed to produce the revenue records to prove their contention of coowner.

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Accordingly, we conclude that in the absence of a specific finding as to whether there are other co-owners and how they are necessary parties, the suit could not have been dismissed for non-joinder of necessary parties. Objections to mis-joinderThe code makes it clear that all such objections have to be taken at earliest possible opportunity. Mostly at before the settlement of issues unless the grounds for such objection has arisen after the settlement of issues. If any such objection has not been taken shall be deemed to be waived. Wrong person suing as plaintiff-

If a suit was instituted in the name of the wrong person, then the court has the power to add/substitute as the plaintiff for the real matters in dispute. Discretion of the Court to add or strike out parties - Order 1 Rule 10(2) -

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The Code gives the Court the discretion to add or struck out parties from the suit,, upon an application by the parties or upon its own motion. But the Court can use this discretion only if the party is necessary to the suit and is absolutely necessary for the court to effectually and complete adjudication upon and settle all the questions involved in the suit. besides the Order 1 Rule 10(2) of Civil Procedure Code the Court has inherent power to order substitution of parties. This provision is an exception to the concept of domains litis as in the plaintiff is the master of the suit. As, the court without the permission of the plaintiff can add/remove/substitute parties from the suit.

1. RAZIA BEGUM V. ANWAR BEGUM, AIR 1958 SC 886. The leading case on Order 1, Rule 10, is Razia Begum v. Anwar Begum.[1] In the case, B contended that she was legally the wife of A. A had another wife named C, who contended that she must be impleaded as a party to the suit between A and B. As the suit in question dealt with the legitimacy of the marriage and would in turn affect the future of the children and even the inheritors of the property, the court of first instance decided that C was required as a party to settle the disputes effectively. Upon appeal by the other party, the high court upheld the decision and opined that in the instant case legal status of one party will carry certain legal repercussions and effect the other parties as well. Finally, when the plaintiff (B) approached the Supreme Court, the court ruled in favour of C and upheld the prior decisions. The Court established that in the suits where the outcome binds the parties of the litigation and also affects the rights of those claiming through it, then the same parties would be included. In the Razia Begum case, the Supreme Court noted that there exist two schools of thoughts regarding the joining of the parties. One of the views is wider in approach and the second one is narrower.[2] B.P. Sinha speaking for the majority stated that “the provision is not one the of the initial jurisdiction of the court but of judicial discretion.”[3] He emphasised on the issue that the discretion is subject to the facts and the circumstances in existence. Every case

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differs with the facts at hand and poses new challenges to the judiciary and the relevant statutes in existence. Delivering the minority view, [4] Jafar Imam, J. opined that the courts have been given the power under the Code to add, remove and transport the name of the parties in the suit. The difference of opinion stems from situations where the question is to judge, whether the subject matter of such actions is an entitlement of discretion or question of jurisdiction. The view differs from the Courts here vis-à-vis the Courts in England. The minority view believes that both the views are dependent on the court’s interpretation of the necessity of adding the defendant for the effective adjudication of the matter in the hand and for addressing all the issues raised. Under no circumstances, could the plaintiff be compelled to add a party who does not have a cause of action in the suit. Jafar Imam clarified that if a court using its discretion, adds a party to the trial, in whose absence also the trial could have been effectually adjudicated, then such an order should be dismissed when challenged in a superior forum. The view emphasised on the plaintiff’s discretion to add parties to the suit and its right not to be compelled to face a party which has no cause of action in the suit. 2. ANIL KUMAR SINGH VS SHIVNATH MISHRA AND GADASA GURU, (1995) 3 SCC 147 Facts: A, the father of B had filed a suit against Shivnath Misra as they had entered into an agreement for the sale of some property. After A dies, his son B being the next representative on record, made an application under Order 6, Rule 17 seeking to leave to amend the plaint and impleading C as a party to the suit. The rationale of B was that : Shivnath Misra(the defendant) had obtained a collusive decree in a certain suit as a result of which C had become co-sharers of the property that is the question of the suit and therefore, C was a necessary party. The Court held that: “In this case, since the suit is based on agreement of sale said to have been executed by the sole defendant in the suit, the subsequent interest said to have been acquired by-the respondent by virtue of a decree of the Court is not a matter arising out of or in respect of the same act or transaction or series of acts or transactions in relation to the claim made in the suit” The Court opined that the court can use its discretion and add parties under Order 1, Rule 10, only if the party is a necessary one. The object is to bring on record all the persons who are parties to the suits so as to avoid multiplicity of suits. 3. ARUN KUMAR AGARWAL VS RADHA ARUN AND ANR, ILR 2004 KAR 808 A sued his wife (B) for divorce on the ground that she was in an adulterous relationship with C. A seeks to add C as a respondent( Note: In most states, the Family Court Rules require that the adulterer be made a party in such proceedings. But, in the State where the litigation arose, this was not the case.). C resisted that he is not a necessary party.

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The Court held that : • “A person may be added as a party defendant to the suit though no relief may be claimed against him/her provided his/her presence is necessary for a complete and final decision on the question involved in the suit”. • “There can be no doubt that in a proceedings where the Court has to decide whether the spouse of the petitioner had voluntary sexual intercourse with another person, by adding such person (alleged adulterer) as a respondent, the Court would be in a better position to effectually and completely adjudicate upon the controversy.” • “Therefore, the alleged adulterer will be a proper party to a proceedings under Section 13(1)(i) of the Hindu Marriage Act.” 4. FIRM OF MAHADEVA RICE AND OIL MILLS VS CHENNIMALAI GOUNDAR, AIR 1968 MAD 287 The petitioners were co-owners of a rice mills along with Palaniappa. Palaniappa sold his part of his share to the respondent. -

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The respondent alleged that he is a co-sharer in the said mills and on that basis filed a suit for the partition of the mills and for the separate possession of his share. The petitioners submitted that the mills are a partnership property and the suit for the partition is not maintainable. During the pendency of this suit the petitioners filed a suit against the respondent and prayed for an injunction restraining the respondent from trespassing into the rice mill premises and interfering with the business of the petitioners. After the pleadings in both the suits were complete, the respondent took out an application in each of the suits pending in the Sub-Court, Erode, for impleading his vendor Palaniappa as a party to both the suits. • Can Palaniappa be added as a party in either of these suits? Respondents submitted that his vendor was both a necessary and a proper party to the suit having regard to the allegations in the pleadings. The lower court allowed the application and Palaniappa to be impleaded as a proper party. In this court, it was held : Now that the lower Court has held that the vendor of the plaintiff is not a necessary party, it is for consideration whether he is a proper party. If he is not, the lower Court erred in exercising jurisdiction which it has none by impleading the vendor, and its order would be, therefore, subject to my revisional jurisdiction. The Court in clear terms stated that for a party to be added in a already pending suit, the party has to have direct or a tangible interest in the suit. Mere convenience or benefit to a party

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applicant is not the test applicable. Avoidance of multiplicity of legal proceedings is no doubt a salient rule. Such avoidance must be in relation to the lis in question and cannot embarrass all possible conceivable litigation that the parties may indulge in later which are totally unconnected with the main issues in the suit. Another important and infallible test is that a new party can be added to decide all the questions arising in the suit or involved in the suit. As already clarified in the case of Rasis Begum, SC has held that the impleadment of a party should not be guide by commercial interest, it should have a direct relation with the adjudication of the case. In this case the petitioners are not even disputing the sale or the share of the plaintiff in the suit property. So therefore, there arises no question of avoidance of multiplicity of suit arises or effectuatte adjudication. 5. MUMBAI INTERNATIONAL AIRPORT (P) LTD. V.REGENCY CONVENTION CENTRE AND HOTELS (P) LTD. (2010) 7 SCC 417 Facts: • AAI had leased out the Mumbai Airport to X. While the lease was made, owing to pending litigation between AAI and Y, a certain parcel of land was not leased out and the lease deed stated that this parcel of land may be leased out pending the result of the litigation. • X seeks to get itself imploded in the suit between AAI and Y. Would his application succeed? • “We find that the appellant is neither a necessary party nor a proper party. As noticed above, the appellant is neither a purchaser nor the lessee of the suit property and has no right, title or interest therein. First respondent - plaintiff in the suit has not sought any relief against the appellant. The presence of the appellant is not necessary for passing an effective decree in the suit for specific performance. Nor is its presence necessary for complete and effective adjudication of the matters in issue in the suit for specific performance filed by the first respondent-plaintiff against AAI. A person who expects to get a lease from the defendant in a suit for specific performance in the event of the suit being dismissed, cannot be said to be a person having some semblance of title, in the property in dispute.” • The application was accordingly dismissed. 6. ILLUSTRATION I If a landlord files a suit against the tenant who has further sublet the property to a sub-tenant, then the question whether sub-tenant should be made a party depends upon the prayer of the landlord. If the suit is against eviction of tenant then subtenant is not required to be made a party to a suit however if the suit is against eviction of both tenant and subtenant then the sub-tenant can be made a necessary party in the suit. 7. ILLUSTRATION II

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B had entered into an agreement of sale of property with A. As B failed to perform his part, A approached the court for specific performance of the contract. C had approached the court arguing that as C has 50% share in the property (co-owner) of which the other 50 % was owned by B. The court held that even if C has interest in the property (by virtue of 50% ownership of property in question) he cannot be allowed to implead himself in a suit against the wishes of the plaintiff, who is considered to be the master of the suit. 8. ILLUSTRATION III- ELECTION PETITIONS Imagine if there were five contestants in an election W, L1, L2, L3 and L4. If L1 files a suit challenging the election of W and pleading that W’s election should be cancelled and asking for declaration that L1 has to be declared the winner then W will be a proper party and all other contestants can be at best a necessary party in the suit. Determination of necessary and proper parties: a) relief sought in the prayer b) effect of the relief c) tangible interest plus contribution towards settlement of issues.

REPRESENTATIVE SUITS: ORDER 1, RULE 8. 8. One person may sue or defend on behalf of all in same interest: (1) Where there are numerous persons having the same interest in one suit,(a) one or more of such persons may, with the permission of the Court, sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested (b) the Court may direct that one or more of such persons may sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested. The Court in all cases, where the decision is made to have a representative suit, give notice to the institution of the suit to all the persons so interested by way of personal service or public advertisement or as per the direction of the court. Read the provision completely (Order I Rule VIII). The code allows clubbing of parties to avoid multiplicity of suits and to reduce unnecessary and tedious expenditure of litigation. Numerous stands for more than 1. Conditions which has to be fulfilled before filing a representative suit: a) there has to be more than 1 party b) permission of the court c) sue or defend d) similar interest (interest not required to be identical) The court can order removal of the party representing one of the sides or one group of the sides, if the person or group is not doing the due diligence duties and the court feels that the person is not representing parties in an appropriate manner.

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If the suit was disposed without granting the permission to represent other parties with similar interests then the decree can be challenged and the appellate court can also give the permission. However, it should be noted that the permission of the court is mandatory to represent parties with similar interest. Any notice issued by a court of law: a) must disclose the nature of claims b) reliefs sought etc in order to clarify the litigation which a person is facing. Good faith→ Lack of bad faith According to Order I Rule VIII of the code it is duty of the court to follow the procedure as laid down under the same and it is immaterial whether the Defendants raised the objection in the written statement or not. Representative suits cannot be compromised without the leave of the court (Order XXIII, Rule 3B)

Representative Suits

Public Interest Litigation

Locus standi required

No requirement of locus standi

similar or overlapping interest

public interest

1. CHAIRMAN, TN HOUSING V. T.N. GANAPATHY, AIR 1990 SC 642 Facts- In pursuance of a housing scheme, TN Housing Board, Madras had allotted residential plots over the land acquired under the Land Acquisition Act, to different groups of applicants including the low-income group on terms and conditions stipulated in the lease deed Exh. B-3 sometime in the year 1963. After, the lapse of more than a decade of the allotment, fresh demands were made from the allottees in 1975, threatening dispossession in case of non- payment, which led to the filing of the suit. It is stated in the plaint that the cases of all the allottees in low- income group of Ashok Nagar made under the lease deeds are identical and the plaintiff was representing them in asking for permanent injunction restraining the Board from enforcing the belated supplementary demands.

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The defendant-Board questioned the very maintainability of the suit in a representative capacity and also pleaded that it was entitled to finally determine the correct prices for the plots after taking into account the final award of the compensation for acquired land and until then the prices were tentative. The Court held: -

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Under this rule, where there are numerous persons having the same interest in one suit, one or more of them may, with the permission of the Court, sue or be sued, on behalf of all of them. The Explanation of the section clarifies that the persons in the suit need not have the same cause of action. The Court, while considering whether leave under the Rule should be granted or not, should examine whether there is sufficient community of interest to justify the adoption of the procedure provided under the Rule. The object for which this provision is enacted is really. to facilitate the decision of questions, in which a large number of persons are interested, without recourse to the ordinary procedure. The provision must, therefore, receive an interpretation which will subserve the object for its enactment. There are no words in the Rule to limit its scope to any particular category of suits or to exclude a suit in regard to a claim for money or for injunction as the present one.

2. R. VENUGOPALA NAIDU AND ORS VS VENKATARAYULU NAIDU CHARITIES, AIR 1990 SC 444 Appellants: contended that since the suit under section 92 CPC being a representative suit, the scheme-decree binds not only the parties thereto,but all those who are interested in the trust. The contention of the Respondents was that only the two persons who filed the original suit can be considered as "parties" in terms of clause 14 of the scheme-decree and since the appellants were not plaintiffs in the suit, they have no locus-standi to file an application under clauses 13 and 14 of the scheme decree. Allowing the appeals, this Court, HELD: 1.1 A suit under Section -

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Section 92 of the Code is a suit of a special nature for the protection of Public rights in the Public Trusts and charities. The suit is fundamentally on behalf of the entire body of persons who are interested in the trust. It is for the vindication of public rights. The beneficiaries of the trust, which may consist of publicat large, may choose two or more persons amongst themselves for the purpose of filing a suit under Section 92 of the Code and the suit-title in that event would show only their names as plaintiffs. The named plaintiffs being the representatives of the public at large which is interested in the trust all such interested persons would be considered in the eyes of law to be parties to the suit.

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A suit under Section 92 of the Code is thus a representative suit and as such binds not only the parties named in the suit-title but all those who are interested in the trust. A suit whether under Section 92 of the Civil Procedure Code or under Order 1 Rule 8 of Civil Procedure Code is by the representatives of large number of persons who have a common interest. The very nature of a representative suit makes all those who have common interest in the suit as parties. In the instant case all persons who are interested in the respondent trust are parties to the original suit and as such can exercise their rights under clauses 13 and 14 of scheme-decree.

6. ORDER-2. Object of Order 2 Rule 2 is 1. to ensure that no defendant is sued and vexed twice in regard to the same cause of action. 2. to prevent plaintiff from splitting the claims and the remedies based on the same cause of action. whereas it does not bar a second suit based on a different and distinct cause of action. 3. it insists upon inclusion of the whole claim which the plaintiff is entitled to make in respect of a cause of a action put in the suit. 4. Plaintiff must include the whole of the claim in respect of a particular cause of action and if he omits to sue relinquishes any portion of the claim, he shall not sue afterwards in respect of the such portion. 5. the plaintiff is entitled to pray for several reliefs, either concurrent or alternative,and if omits to sue for all such reliefs he cannot afterwards sue for such omitted reliefs, unless he has obtained leave of the court. 6. IMPORTANT: The Court can grant a leave to the plaintiff in respect of relief, but not in respect of the portion of the claim. The same applies to a defendant who claims a set off or counterclaim. A plaintiff can reach out to the court later for an unforeseeable cause of action. For example: cases where impacts of food poisoning come out after six months rather than immediately. According to Menon sir, Order II Rule III compliments Rule IV rather than Rule II. Question: Whether a plaint can be rejected under Order 7 Rule 11 (d) of the Code of Civil Procedure, 1908 on the plea taken by the defendants that the present suit is barred under Order 2 Rule 2 of the said Code ? This question arises because the parameters of discussion under Order 7 Rule 11 are well defined. The requirements of establishing a case under Order 2 Rule 2, CPC are equally well defined. It will become clear shortly that the plea of Order 2 Rule 2, CPC cannot be established unless and until the defendants place on record the plaint of the earlier suit to conclusively prove that the cause of action in the earlier suit was indeed identical to the cause of action in the present suit. It is well settled that for the purposes of considering an application under Order 7 Rule 11 and particularly, clause (d) thereof, it is only the averments contained in the plaint which are relevant and the pleas taken by the defendants in the written statement or in any other application are wholly irrelevant.

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The plea of a bar under Order 2 Rule 2, CPC can be established only if the defendant files in evidence the pleadings of the previous suit and thereby proves to the court the identity of the causes of action in the two suits. This clearly implies that before a plea of the bar under Order 2 Rule 2, CPC can be upheld, the defendant has to file the pleadings of the previous suit as and by way of evidence to prove to the court, the identity of the causes of action in the two suits. This automatically implies that before the court can return a finding or come to a conclusion that the plea of the bar under Order 2 Rule 2, CPC is well substantiated, the court, as a rule, would have to consider the pleadings in the previous suit which require to be filed by way of evidence by the defendant. In other words, the court cannot consider the plea of Order 2 Rule 2, CPC without travelling beyond the averments made in the plaint of the subsequent suit, a limitation which is placed on Order 7 Rule 11, CPC. In Dalip Singh v. Mehar Singh Rathee and Others: 2004 (7) SCC 650, the Supreme Court noted that ―the sine qua non for applicability of Order 2 Rule 2 CPC is that a person entitled to more than one relief in respect of the same cause of action has omitted to sue for some relief without the leave of the court.‖ The Supreme Court further observed that ―when an objection regarding the bar to the filing of the suit under Order 2 Rule 2 CPC is taken, it is essential for the court to know what exactly was the cause of action which was alleged in the previous suit in order that it might be in a position to appreciate whether the cause of action alleged in the second suit is identical with the one that was the subject matter of the previous suit.‖ It is obvious, that unless the pleadings in the previous suit are looked into, the court cannot come to a conclusion with regard to the bar under Order 2 Rule 2 CPC. In Saleem Bhai and Others v. State of Maharashtra and Others: 2003 (1) SCC 557, the question which arose for consideration was-whether an application under Order 7 Rule 11, CPC ought to be decided on the allegations in the plaint and filing of the written statement by the contesting defendant was irrelevant and unnecessary ? A perusal of Order 7 Rule 11 CPC makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power under Order 7 Rule 11 CPC at any stage of the suit - before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under Clauses (a) and (d) of Rule 11 of Order 7 CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage … Clause (d) of Order 7 Rule 71 speaks of suit, as appears from the statement in the plaint to be barred by any law. Disputed questions cannot be decided at the time of considering an application filed under Order 7 Rule 11 CPC. Clause (d) of Rule 11 of Order 7 applies in those cases only where the statement made by the plaintiff in the plaint, without any doubt or dispute shows that the suit is barred by any law in force.‖ (sic); should be Order 7 Rule 11. 1. GURBUX SINGH VS BHOORALAL, 1964 SCR (7) 831 there is a conflict of judicial opinion on the question whether a suit for possession of immoveable property and a suit for the recovery of mesne profits from the same property are both based on the same cause of action, for it is only if these two reliefs are based on "the same cause of action" that the plea of 0. 2. r. 2., CPC that was raised by the appellant could succeed. (there is no concrete opinion on this issue and the Supreme Court in this case this

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issue was not considered necessary to be examined. But Order 2 Rule 4 should be considered before that and ) In the context of Order 2 Rule 2, a Constitution Bench of the Supreme Court in the case of Gurbux Singh v. Bhooralal: AIR 1964 SC 1810, observed:―In order that a plea of a bar under Order 2 Rule 2(3), Civil Procedure Code should succeed the defendant who raises the plea must make out (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based, (2) that in respect of that cause of action the plaintiff was entitled to more than one relief, (3) that being thus entitled to more than one relief the plaintiff, without leave obtained from the Court, omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar. No doubt, a relief which is sought in a plaint could ordinarily be traceable to a particular cause of action but this might, by no means, be the universal rule.‖ The Constitution Bench also held:―As the plea is a technical bar it has to be established satisfactorily and cannot be presumed merely on basis of inferential reasoning. It is for this reason that we consider that a plea of a bar under Order 2, Rule 2, Civil Procedure Code can be established only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the Court the identity of the cause of action in the two suits.‖ 11. Thus, the defendant has to establish the precise cause of action upon which the previous suit was filed and since the plea raises a technical bar, it has to be established satisfactorily and cannot be presumed merely on the basis of inferential reasoning. A Constitution Bench of Supreme Court in Gurubux Singh V. Bhooralal, held that even if a party does not pray for the relief in the earlier writ petition, which he ought to have claimed in the earlier petition, he cannot file a successive writ petition claiming that relief, as it would be barred by the principle of constructive res judicata enshrined in Explanation IV to Section 11 and Order 2 rule 2 of the Code of Civil Procedure. Thus, summing up, In the light of the above discussion, it is clear that before the bar under Order 2 Rule 2, CPC can be set up, the defendant has to produce the pleadings in the previous suit by way of evidence and the court is required to go into the pleadings of the previous suit and compare it with the pleadings in the present suit to arrive at a conclusion as to the identity of the causes of action. However, under Order 7 Rule 11,

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CPC, the court is enjoined only to look at the averments made in the plaint of the present suit and not travel to the written statement or other documents filed by the defendant. The plaint by itself must disclose that the suit is barred by law. The Constitution Bench in the case of Gurbux Singh (supra) has settled the issue that the inference as to the identity of the causes of action between the present suit and the earlier suit cannot be culled out from the plaint in the subsequent suit. It is, therefore, abundantly clear that in an application under Order 7 Rule 11, CPC, the plaint cannot be rejected on the bar of Order 2 Rule 2, CPC. The bar of Order 2 Rule 2, CPC can be raised by the defendants in the written statement and, if so raised, an issue can be framed in respect thereof. The court would then be in a position to conclusively determine the identity of the causes of action between the earlier suit and the later suit and rule on the basis of evidence led by the parties. But, such a course of action is not permissible under Order 7 Rule 11, CPC. As a result, this application is rejected. 2.BALBIR SINGH V ATMA RAM (CONTRASTED WITH 3. CASE) Atma Ram is the landlord of a certain house let out to Balbir Singh on a monthly rent. The defendant being in arrears of rent for two months, his tenancy was terminated by which the defendant was asked to vacate the premises and two months arrears of rent was demanded. The tenant neither paid the rent nor vacated the premises. Atma Ram filed a suit against Balbir Singh in the Munsif Court claiming a decree for arrears of rent and mesne profits without claiming ejectment of the defendant Balbir Singh. In the plaint the plaintiff specifically reserved his right to file a suit for ejectment of the tenant and he moved an application for leave of the court for filing a suit for ejectment subsequently. The court granted this permission to file another suit subsequently for ejectment of the applicant-tenant. In the second suit the landlord claimed a decree for ejectment and mesne profits which accrued subsequent to the earlier puit. In the second suit the defendant raised an objection that the plaintiff not having included the relief of ejectment from the house in the first suit, the subsequent suit was barred by Order 2, Rule 2 of the Civil Procedure Code. (Meanwhile the second suit was transferred to the district court because of the lack of pecuniary jurisdiction of the Munsif Court) The Additional District Judge decided this objection as a preliminary point and held that the cause of action for a suit for possession is different from the cause of action for a suit for arrears of rent and mesne profits on the basis of the terms of Order 2, Rule 4 of the Civil Procedure Code which permitted the plaintiff to combine a claim for mesne profits with a claim for ejectment. Against the judgment of the Additional District Judge the defendant filed a revision in Allahabad High Court. Contended by the plaintiffs- Order 2, Rule 4, shows that the cause of action ior a suit for recovery of immovable property or possession is not the same as the cause of action for mesne profits or arrears of rent in respect of the seme property. (Reliance placed on Shankerlal v. Gangabisen, the next case. ) One of the questions which the allahabad Bench has to decide is whether the view that Order 2, Rule 4, is an exception to Order 2, Rules 1, 2 and 3 and whether a claim for mesne profits

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and a claim for ejectment from immovable property on the basis of a contract or lease are always based on distinct causes of action and never arise from the same cause of action. However, the possibility that the claim for mesne profits may fall only under Clause (a) or for damages under Clause (b) and may relate to a distinct cause of action qua the claim for possession and ejectment cannot be overruled. Therefore, Order 2, Rule 4, may cover both kinds of suits: suits in which the claim for recovery of immovable property and claims for mesne profits/damages arising out of the same cause of action may have been combined as well as suits in which similar claims arising from distinct causes of action are combined. To say, therefore, that in enacting Order 2, Rule 4, the legislature gave expression to the intention that the causes of action for possession of immovable property and for mesne profits/ damages are always necessarily distinct is too sweeping and generalised a proposition to which I, with profound respect to the decision of the Bombay High Court in the case of Shankerlal v. Gangabisen, (AIR 1972 Bom 326) (FB) (supra), feel unable to subscribe. In my judgment it cannot be held as a matter of law that the cause of action for a suit for possession or ejectment is necessarily and always distinct from a cause of action for a claim for mesne profits or arrears of rent. The question must always depend on the facts of each case. If the claim for possession is based on title or ownership then, speaking generally, the cause of action may be distinct for such a claim but not so always when it is a suit for ejectment or possession based on a contract of lease. The interpretation of the Court in this case relating to Order 2 Rule 4 was different from the Shankaralal. 3.SHANKARLAL LAXMINARAYAN RATHI AND ORS. VS. GANGABISEN MANIKLAL SIKCHI AND ANR.,

Plaintiff Gangabisen was the owner of a theatre which was leased out by him to Shanker Lal for a period of ten years. The lease had terminated by efflux of time and the lease provided that on failure of the lessee to vacate the theatre on expiry of the period of lease he would be bound to pay damages at a certain rate. The lessee having failed to vacate the premises Gangabisen filed a first suit for damages but no relief was sought in that suit for ejectment of the lessee from the theatre, Subsequently he filed another suit for possession. One of the defences raised was that the suit for possession was barred by Order 2, Rule 2, of the Civil Procedure Code because in the earlier suit the plaintiff had failed to include the relief of ejectment or possession. While deciding this question the High Court observed that Order 2, Rule 4, was strongly relied upon on behalf of the plaintiff in order to show that the cause of action for a suit for the recovery of immovable property is different from the cause of action for either mesne profits or damages. The observation made was that Order 2, Rule 4 of the Code is an exception to the principle laid down in Order 2, Rules 1, 2 and 3 and that having regard to the language of Order 2, Rule 4, the claim for damages is a distinct and separate cause of action from the cause of action for the recovery of immovable property. No doubt an exception to Order 2, Rules 2 and 3 is created by Order 2, Rule 4. Its opening part says that no cause of action shall be joined with a suit for the recovery of immovable

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property. To that extent this provision is an exception to Rule 2 (1) and Rule 2 (3) which respectively enjoin that a plaintiff must include his whole claim in respect of a cause of action and claim all the reliefs he is entitled to in respect of the same cause of action. It is also an exception to Order 2, Rule 3 (1) which permits several causes of action to be joined by the plaintiff against the Same defendant or the same defendants jointly. Clauses (a), (b) and (c) of Order 2, Rule 4 create further exceptions to the general principle laid down in the opening part of Order 2, Rule 4; Order 2, Rule 4, therefore, deals with a specific subject, namely, claims which could be joined in a suit for the recovery of immovable property, and to the extent that special provision is so made on a special topic, its provisions qualify the general provision of both Order 2, Rule 2 and Order 2. Rule 3. In fact, Order 2. Rule 3, is expressly made subject to Order 2, Rule 4 by the use of the words 'save as otherwise provided'. Thus, though Order 2, Rule 4, is in part an exception to the general principles laid down in Order 2, Rule 3, it is also an exception to Order 2, Rules 2 (1) and 2 (3). We cannot regard it as only an exception to Order 2, Rule 3, and completely divorced from Order 2, Rule 2 4. M/S VIRGO INDUSTRIES (ENG.) P. LTD. VS M/S.VENTURE TECH SOLUTIONS P. LTD. In this case the plaintiff had earlier filed two suits for the sale deeds of two lands between the plaintiff and the defendant. In these two suits he demanded injunction restraining the defendant from alienating, encumbering or dealing with the plaint schedule properties to any other third party other than the plaintiff. In the suits filed by the plaintiff it was also stated that as the period of six months fixed for execution of the sale deeds under the agreements in question was not yet over, the plaintiff is not claiming specific performance of the agreements. The plaintiff, accordingly, sought leave of the court to omit to claim the relief of specific performance with liberty to sue for the said relief at a later point of time, if necessary. Later two more suits were filed by the plaintiff in the District Court, seeking a decree against the defendant for execution and registration of the sale deeds in respect of the same property and for delivery of possession thereof to the plaintiff. And the plaintiff mentioned that he was “under the bonafide belief that the defendants would perform the agreement” the relief of specific performance was not claimed in the aforesaid suits. THE DEFENDANTS, moved to the Madras High Court by filing two separate applications under Article 227 of the Constitution to strike off the latter plaints, on the ground that the provisions contained in Order II Rule 2 of the Civil Procedure Code, 1908 is a bar to the maintainability of both the suits. HIGH COURT’S VIEW in favour of the plaintiff. (a para below) SUPREME COURT In the instant case though leave to sue for the relief of specific performance at a later stage was claimed by the plaintiff in the former suits, admittedly, no such leave was granted by the Court.

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The question, therefore, that the Court will have to address, in the present case, is whether the cause of action for the first and second set of suits is one and the same. Order 2 Rule 2(2) contemplates where a plaintiff omits or relinquishes a part of a claim which he is entitled to make, whereas Order 2 Rule 2(3) contemplates where the plaintiff omits or relinquishes one out of the several reliefs that he could have claimed in the suit. The Rule engrafts a laudable principle that discourages/prohibits vexing the defendant again and again by multiple suits except in a situation where one of the several reliefs, though available to a plaintiff, may not have been claimed for a good reason. The cardinal requirement for application of the provisions contained in Order II Rule 2(2) and (3), therefore, is that the cause of action in the later suit must be the same as in the first suit. “Cause of Action” has been defined as meaning simply a factual situation existence of which entitles one person to obtain from the Court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. ‘Cause of action’ has also been taken to mean that particular action the part of the defendant which gives the plaintiff his cause of complaint, or the subject matter of grievance founding the action, not merely the technical cause of action." THE SUPREME COURT OBSERVED THE PLAINT AND FOUND After execution of the agreements of sale, the plaintiff received a letter from the defendant conveying the information that the Central Excise Department was contemplating issuance of a notice restraining alienation of the property. The advance amounts paid by the plaintiff to the defendant by cheques were also returned. In paragraph 5 of the plaint, it is stated that the encumbrance certificate dated 22.8.2005 made available to the plaintiff did not inspire confidence of the plaintiff as the same contained an entry dated 1.10.2004. The plaintiff, therefore, seriously doubted the claim made by the defendant regarding the proceedings initiated by the Central Excise Department. In the aforesaid paragraph of the plaint it was averred by the plaintiff that the defendant is “finding an excuse to cancel the sale agreement and sell the property to some other third party.” In the aforesaid paragraph of the plaint, it was further stated that “in this background, the plaintiff submits that the defendant is attempting to frustrate the agreement entered into between the parties.” COURT AGREED UPON The plaintiff itself had claimed that facts and events have occurred which entitled it to contend that the defendant had no intention to honour the agreements dated 27.7.2005. In the aforesaid situation it was open for the plaintiff to incorporate the relief of specific performance along with the relief of permanent injunction that formed the subject matter of above two suits. The foundation for the relief of permanent injunction claimed in the two suits furnished a complete cause of action to the plaintiff to also sue for the relief of specific performance. Yet, the said relief was omitted and no leave in this regard was obtained or granted by the Court.

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FACTUAL ANALYSIS (found interesting so added) 1. On the date when the aforesaid two suits were filed the relief of specific performance was premature inasmuch as the time for execution of the sale documents by the defendant in terms of the agreements dated 27.7.2005 had not elapsed. A suit claiming a relief to which the plaintiff may become entitled at a subsequent point of time, though may be termed as premature, yet, can not per se be dismissed to be presented on a future date. There is no universal rule to the above effect in as much as “the question of a suit being premature does not go to the root of the jurisdiction of the Court.” In the aforesaid case this Court has taken the view that whether a premature suit is required to be entertained or not is a question of discretion and unless “there is a mandatory bar created by a statute which disables the plaintiff from filing the suit on or before a particular date or the occurrence of a particular event”, the Court must weigh and balance the several competing factors that are required to be considered including the question as to whether any useful purpose would be served by dismissing the suit as premature as the same would entitle the plaintiff to file a fresh suit on a subsequent date. We may usefully add in this connection that there is no provision in the Specific Relief Act, 1963 requiring a plaintiff claiming the relief of specific performance to wait for expiry of the due date for performance of the agreement in a situation where the defendant may have made his intentions clear by his overt acts. 2. As in the present case the second set of suits were filed during the pendency of the earlier suits, it was held, on the ratio of the aforesaid decision of the Division Bench of the High Court, that the provisions of Order II, Rule 2(3) will not be attracted. “The High Court, accordingly, took the view that the provisions of Order II Rule 2 (3) of the CPC were not convinced to render the latter suits filed by the plaintiff as non- maintainable. The High Court took the view that the provisions of Order II Rule 2 (3) of the CPC would render a subsequent suit not maintainable, only, if the earlier suit has been decreed and the said provisions of the CPC will not apply if the first suit remains pending.” However, the SC did not agree with the same in view of the object behind the enactment of the provisions of Order II Rule 2 of the CPC, that is seeks to avoid multiplicity of litigations on same cause of action. The same would not stand fully subserved by holding that the provisions of Order II Rule 2 of the CPC will apply only if the first suit is disposed of and not in a situation where the second suit has been filed during the pendency of the first suit. Rather, Order II, Rule 2 of the CPC will apply to both the aforesaid situations. Hence, the judgement went in the favour of the defendant and the latter suits filed by the plaintiff were barred by Order 2 Rule 2.

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Also on comparing with the next case (Ranthavati), it is clear that in this case the cause of action was the Central Excise Department notice sent to the plaintiff by the defendant whereas in Ranthavati injunction was for a different cause of action and specific performance of the Contract was for a different cause of action. 4.RATHNAVATHI & ANR VS KAVITA GANASHAMDAS • P entered into an agreement on 15.02.1989 with D2 to purchase the suit house for Rs. 3,50,000/- and paid a sum of Rs. 50,000/- to defendant no. 2 by way of advance towards the sale consideration. • Balance consideration was paid and the P was put in possession – but sale deed was yet to be executed • ON 2.1.2000 and on 8.1.2000 D1 came to the suit property with D2, along with some goons and threatened to evict the P . P filed a suit for injunction against D1 and D2. • On 6.3.2000 P sent a legal notice to D2 asking for performance of the agreement for sale • 31.03.2000, the plaintiff filed another civil suit being OS No. 2334 of 2000 in the Court of City Civil Judge Bangalore against the defendants for specific performance of agreement dated 15.02.1989 in relation to the suit house. • Is the second suit barred? • It is not barred as cause of action for the two suits are different • “So far as the suit for permanent injunction is concerned, it was based on a threat given to the plaintiff by the defendants to dispossess her from the suit house on 2.1.2000 and 9.1.2000. This would be clear from reading Para 17 of the plaint. So far as cause of action to file suit for specific performance of agreement is concerned, the same was based on non performance of agreement dated 15.2.1989 by defendant no. 2 in plaintiff's favour despite giving legal notice dated 6.3.2000 to defendant no.2 to perform her part.” “35. We cannot accept the submission of learned senior counsel for the appellants when she contended that since both the suits were based on identical pleadings and when cause of action to sue for relief of specific performance of agreement was available to the plaintiff prior to filing of the first suit, the second suit was hit by bar contained in Order II Rule 2 of CPC. 36. The submission has a fallacy for two basic reasons. Firstly, as held above, cause of action in two suits being different, a suit for specific performance could not have been instituted on the basis of cause of action of the first suit. Secondly, merely because pleadings of both suits were similar to some extent did not give any right to the defendants to raise the plea of bar contained in Order II Rule 2 of CPC. It is the cause of action which is material to determine the applicability of bar under Order II Rule 2 and not merely the pleadings. For these reasons, it was not necessary for plaintiff to obtain any leave from the court as provided in Order II Rule 2 of CPC for filing the second suit.” 5. SYNDICATE BANK VS RAJ KUMAR TANWAR

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• landlord had filed the suit seeking ejectment of the appellant from the tenanted premises stating that the lease has come to an end by efflux of time. • A second suit was filed by the landlord claiming damages for unauthorised use and occupation. • Is the second suit barred under O2 R2? Can it be said that the recovery of damages for unauthorized use and occupation of a premises for different periods constitutes a single cause of action. To our mind it does not. Cause of action to recover rent for a premises or damages for unauthorized use and occupation would arise each month for which possession is retained by the tenant or the person in unauthorized occupation as the case may be. PRINCIPLE It was held that the rule is directed to securing the exhaustion of the relief in respect of cause of action and is not intended to include in one and the same action, different causes of action, even though they arise from the same transaction." -

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A suit for recovery of possession of property is based on a distinct cause of action from a claim for recovery of mesne profits, although a large field of controversy is common to both and overlaps. he held that in a suit for recovery of possession cause of action is complete the moment trespass has been committed and the plaintiff is required to establish his title to the property and the obligation of the defendant to surrender its possession to him. Limitation for such a suit is 12 years. On the other hand in a suit for recovery of mesne profits, the plaintiff has to allege continuous deprivation of the property for which mesne profits are claimed. In such a suit the plaintiff may also incidentally be required to prove his title and right to obtain the profits and the liability of the defendant to pay the same but the cause of action for mesne profits continues from day to day and for that reason different articles for limitation have been prescribed for each, suit for mesne profits may also be field in small Cause Court while suit for possession cannot be so filed. (THE FIRST JUSTIFICATION FOR THE SEPARATION OF THE TWO RELIEFS WAS GIVEN BY ORDER 2 RULE 4 IN SHANKARLAL. THIS IS ANOTHER JUSTIFICATION.) Thus, the Code of Civil Procedure itself clarifies that an action for recovery of immovable property is a distinct cause of action vis-a-vis a cause of action for a claim for mesne profits. If the two are different causes of action, the bar of Order 2 Rule 2 of the Code of Civil Procedure would obviously be not attracted

"21. If it was intended to claim damages and/or mesne profit, in view of Order 2 Rule 2 of the Code itself, he could have done so, but he chose not to do so. For one reason or the other, there was full knowledge about his right. Having omitted to make any claim for damages, it cannot be permitted to get the damages indirectly." The Court observed to this - In any event, if a second suit was maintainable in terms of Order 2 Rule 4 of the Code, no leave was required to be granted therefore. A civil court does

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not grant leave to file another suit. If the law permits, the plaintiff may file another suit but not on the basis of observations made by a superior court. FINAL DECISION OF THE COURT "Subject to all just exceptions including limitations, liberty is given to the plaintiff to claim relief by way of damages/mesne profits in a separate suit filed before the competent court" 6.STATE BANK OF INDIA VS GRACURE PHARMACEUTICALS When we go through the above quoted paragraph it is clear that the facts on the basis of which subsequent suit was filed, existed on the date on which the earlier suit was filed. The earlier suit was filed on 15.03.2003 and subsequent suit was filed on 21.05.2003. No fresh cause of action arose in between the first suit and the second suit. The closure of account, as already indicated, was intimated on 20.03.2002 due to the alleged fault of the respondent in not regularizing their accounts i.e. after non-receipt of payment of LC, the account became irregular. When the first suit for recovery of dues was filed i.e. on 15.03.2001 for alleged relief, damages sought for in the subsequent suit could have also been sought for. Order 2 Rule 2 provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the same cause of action. Respondent is not entitled to split the cause of action into parts by filing separate suits. We find, as such, that respondent had omitted certain reliefs which were available to it at the time of filing of the first suit and after having relinquished the same, it cannot file a separate suit in view of the provisions of subrule 2 of Order 2 Rule 2, CPC. The object of Order 2 Rule 2 is to avoid multiplicity of proceedings and not to vex the parties over and again in a litigative process. The object enunciated in Order 2 Rule 2, CPC is laudable and it has a larger public purpose to achieve by not burdening the court with repeated suits. 7.DEVA RAM AND ANOTHER VS ISHWAR CHAND, 1995 (6) SCC 733 8.SANDEEP POLYMERS PVT. LTD VS BAJAJ AUTO LTD. Under Order 2 Rule 1 of the Code which contains provisions of mandatory nature, the requirement is that the plaintiffs are duty-bound to claim the entire relief. The suit has to be so framed as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them. Rule 2 further enjoins on the plaintiff to include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. If the plaintiff omits to sue or intentionally relinquishes any portion of his claim, it is not permissible for him to sue in respect of the portion so omitted or relinquished afterwards.

A.MULLA for the plea of bar under Order 2 Rule 2 to be successful, the defendant has to establish 1. the previous and the second suit arise out of same cause of action.

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2. the cause of action on which the subsequent claim is founded had arisen to the claimant where the enforcement of the first claim has been sought 3. the earlier suit has been decided on merits. Also, if a person omits any portion of the claim in order to bring the suit within the pecuniary jurisdiction of the court, he cannot afterwards sue for such omitted portion. In the suits of SPECIFIC PERFORMANCE, one must seek relief of damages/compensation in the alternative. But this can be omitted with the leave of the Court. The leave of the court is the sine qua non for entertaining a fresh suit for the relief omitted to be claimed. Such leave may be granted at any stage of the suit, and has to be obtained in the earlier suit and not the subsequent suit. This relief applies to both, concurrent as well as the alternative reliefs. Before instituting a suit for specific performance, prior leave is to be obtained under O2 R2(3) of the Code. What happens when two suits are filed simultaneously? Bom HC, such suits should be consolidated; Other HCs (Alla., Rangoon, MP) the later suit should be dismissed, in the absence of any concrete SC decision, the view of the Bombay HC should be followed, as it is the proper procedure. Order 2 Rule 2 should apply 1. different causes of action arising from the same transaction. But, if the second suit is brought alleging the failure to carry out the terms of the decree such allegation were part of the cause of action, which was different from the cause of action in the first suit. Order 2 Rule 2 would not apply 1. relief for which the subsequent suit is filed was not in existence when the previous suit was brought 2. cause of action is different for both the suits 3. plaintiff could not have claimed the relief, which he seeks in the subsequent suit. Exceptions to the Bar under Order 2 Rule 2 • Order XXXIV, Rule 14—Mortgagee, after filing suit for recovery of mortgage debt can institute another suit for sale of the mortgaged immovable property • O. XXXIV, Rule 6—Mortgagee even after obtaining decree of sale, may apply for decree of balance sum which could not be recovered from insufficient sale proceeds • when the earlier suit is withdrawn with permission to file fresh suit (In terms of O.23)

TEST: For finding whether the subsequent suit shall be barred because of the previous suit, whether the claim in the second suit is in fact, founded on a cause of action which was the foundation of the of the former suit. Res judicata v Order 2 Rule 2

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It may not be out of place to clarify that the doctrine of res judicata differs from the rule embodied in Order 2 Rule 2, in that, the former places emphasis on the plaintiff's duty to exhaust all available grounds in support of his claim while the latter requires the plaintiff to claim all reliefs emanating from the same cause of action. Res judicata is a product of a decision of a court; while the Bar under O2 R2 is a result of (in)action of a party.

In addition to “plaintiff could not have claimed the relief, which he seeks in the subsequent suit.” (mentioned above) Now, in the fact-situation of the present case, as we have pointed out earlier, the first suit was for an injunction and not for possession of the demised property. The first suit was dismissed on the technical ground that since the plaintiff was not in de facto possession no injunction could be granted and a suit for a mere declaration of status without seeking the consequential relief for possession could not lie. Once it was found that the plaintiff was not in actual physical possession of the demised property, the suit had become infructuous. The cause of action for the former suit was not based on the allegation that the possession of the plaintiff was forcibly taken sometime in the second week of June, 1968. The allegation in the former suit was that the plaintiff was a lessee and his possession was threatened and, therefore, he sought the court's assistance to protect his possession by a prohibitory injunction. When in the course of that suit it was found that the plaintiff had in fact been dispossessed, there was no question of granting an injunction and the only relief which the court could have granted was in regard to the declaration sought which the court held could not be granted in view of the provisions of Specific Relief Act. Therefore, the cause of action for the former suit was based on an apprehension that the defendants were likely to forcibly dispossess the plaintiff. The cause of action for that suit was not on the premise that he had in fact been illegally and forcibly dispossessed and needed the court's assistance to be restored to possession. Therefore, the subsequent suit was based on a distinct cause of action not found in the former suit and hence we do not think that the High Court was right in concluding that the suit was barred by Order 2 Rule 2(3) of the Code of Civil Procedure. It may be that the subject matter of the suit was the very same property but the cause of action was distinct and so also the relief claimed in the subsequent. suit was not identical to the relief claimed in the previous suit. The High Court was, therefore, wrong in thinking that the difference in the reliefs claimed in the two suits was immaterial and irrelevant. In the previous suit the relief for possession was not claimed whereas in the second suit the relief was for restoration of possession. That makes all the difference. We are, therefore, of the opinion that the High Court was completely wrong in the view that it took based on the language of Order 2 Rule 2(3) of the Civil Procedure Code. Order 2 Rule 2 is not applicable to appeals, insolvency proceedings, execution proceedings.

>> Order 2, Rule 2, does not require that when a transaction gives rise to several causes of action they should all be combined in one suit, or that the Plaintiff must, if necessary, lay his claim alternatively in the same suit for these different causes of action.

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All that Order 2, Rule 2, provides is that where there is one and the same cause of action, the Plaintiff cannot split up his cause of action and sue for one part in onesuitandforanotherpartinanothersuit. B.JOINDER OF CAUSES The section reads “...a plaintiff may unite in the same suit several causes of action...any plaintiffs having causes of action in which they are jointly interested against the same defendant... ” Provided the “cause of action” are intimately connected with each other or when one was collateral or subordinate to the other. Respondent is said to have been using an identical colour scheme layout, arrangement of features and get up as that of the plaintiffs.

9. DABUR INDIA LTD. V. K.R. INDUSTRIES, AIR 2008 SC 3123 Appellant- manufacturer- Dabur Red Tooth Powder and Dabur Lal Dant Manjan Respondent - manufacturer - Sujata Tooth Powder The carton of the Dabur Tooth Powder is alleged by the plaintiff to be “an artistic work” within S 25-C of the Copyright Act, 1957. Reliefs claimed 1. An order of permanent injunction restraining from reproducing any of the artistic features of the plaintiff's DABUR RED TOOTH POWDER container/ packaging/pouch, including its colour combination, get up, layout or arrangement of features, printing, publishing, using or otherwise reproducing any of the artistic features thereof in any material from amounting to an infringement of copyright. 2. An order of permanent injunction restraining from manufacturing, selling, offering for sale or otherwise directly or indirectly dealing in tooth powder packed in the impugned packaging or any other packaging as may be a slavish imitation and/or a substantial reproduction of the DABUR RED TOOTH POWDER container/packaging/pouch or from committing any other act as is likely to cause confusion and deception amounting to passing off." Respondent filed an application in the suit purported to be under Order 7 Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as `the Code') contending that as the defendant is resident of Andhra Pradesh, the Delhi High Court had no jurisdiction. The plaintiff defended that he had filed under two Acts and united the causes of action and under the Copyright Act, the plaintiff could bring a suit in Delhi. (As regards the cause of action under the 1957 Act and a cause of action under the 1958 Act and or a passing off action, it was held that sub-section (2) of Section 62 would confer jurisdiction on a court

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where the plaintiff resides. The cause of action in respect of others was stated to be where the defendant resides. ) In this case Order 2 Rule 3 was interpreted and was said that “when the causes of action are united, the jurisdiction of the Court as regards the suit shall depend on the amount of value of the aggregate subject-matters at the date of instituting the suit.” but this deals only with the pecuniary jurisdiction of the Court and not the territorial jurisdiction. Therefore, the next question, however, which is more important is whether the plaintiff can combine the two causes of action one under the Copyright Act and the second under the Act of 1958 in a situation where this court has the jurisdiction in so far as cause of action under the Copyright Act is concerned but has no territorial jurisdiction to entertain the cause of action relating to Act of 1958. Noticing the provisions of Order II Rule 2 and 3 of the Code of Civil Procedure enabling the plaintiff to combine more than one cause of actions, it was opined that the said provisions relate to pecuniary jurisdiction. The said jurisdiction, however, can be exercised only in the event the court has otherwise jurisdiction in respect of the cause of action wherefore the action has been brought. What then would be meant by a composite suit? A composite suit would not entitle a court to entertain a suit in respect whereof it has no jurisdiction, territorial or otherwise. Order II Rule 3 of the Code specifically states so . In Dhoda House (supra), therefore, would mean the suit which is founded on infringement of a copyright and wherein the incidental power of the Court is required to be invoked. A plaintiff may seek a remedy which can otherwise be granted by the court. (not so important, just focus on the principle.)

C. RULE 5: No claim by or against an executor, administrator or heir, as such, shall be joined with claims by or against him personally unless • They are are alleged to arise with reference to the estate in respect of which the plaintiff or defendant sues or issued as executor, administrator or heir, • or are such as he was entitled to, or liable for, jointly with the deceased person whom he represents.

D. RULES 6 & 7 The Court can order separate trials if such joinder can “embarrass or delay the trial or is otherwise inconvenient” • But these are only separate trials and not separate suits

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All objections on the ground of misjoinder of causes of action is to be taken at the earliest possible opportunity, in any case before settlement of issues (unless the grounds have arisen after that) • If the objections are not raised, it is deemed to have been waived Where there are more than One Ps or Ds, the requirement is that they must be jointly interested in the causes of action. (Most Important.)

One suit can be instituted to recover money from • D based on two different promisory notes • Several Ds who have jointly borrowed money on different promissory notes from a P • IF Ps are joint promisees in respect of different Promisory notes from same Ds singly or same defendants jointly, one suit could be filed (But i think i read that same suits cannot be filed against the partners of a firm for the recovery of money, separate suits need to be filed. ) 10. PREM LALA NAHATA V. CHANDI PRASAD, (2007) 2 SCC 551 The appellants moved A.L.P. No. 10 of 2003 on the original side of the Calcutta High Court invoking clause 13 of the Letters Patent read with Section 24 of the Code of Civil Procedure (for short "the Code") seeking withdrawal of Money Suit No. 585 of 2001 and Money Suit No. 69 of 2002 for being tried with C.S. No. 29 of 2003 on the plea that common questions of fact and law arise in the suits and it would be in the interests of justice to try and dispose of the three suits together. The court accepted the claim and ordered the original side of Calcutta High Court to hear the suit as requested by the appellants. Thus, in a case where a plaint suffers from the defect of misjoinder of parties or misjoinder of causes of action either in terms of Order I Rule 1 and Order I Rule 3 on the one hand, or Order II Rule 3 on the other, the Code itself indicates that the perceived defect does not make the suit one barred by law or liable to rejection. This is clear from Rules 3A, 4 and 5 of Order I of the Code, and this is emphasised by Rule 9 of Order I of the Code which provides that no suit shall be defeated by reason of non- joinder or misjoinder of parties and the court may in either case deal with the matter in controversy so far as it regards the rights and interests of the parties actually before it. This is further emphasised by Rule 10 of Order I which enables the court in appropriate circumstances to substitute or add any person as a plaintiff in a suit. Order II deals with the framing of a suit and Rule 3 provides that save as otherwise provided, a plaintiff may unite in the same suit several causes of actions against the same defendant and any plaintiffs having causes of actions in which they are jointly interested against the same defendant may unite such causes of action in the same suit. Rule 6 enables the Court to order separate trials even in a case of misjoinder of causes of action in a plaint filed. The trial judge on the original side, considered the question whether the plaint filed by the appellants was liable to be rejected under Order VII Rule 11(d) of the Code on the basis that the suit appeared from the statements in the plaint to be barred by any law. The learned Judge

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took the view that there was no law barring a suit in which there was misjoinder of parties or a misjoinder of causes of action, though, of course, for the purposes of convenience, a court would avoid the misjoinder of causes of action or misjoinder of parties. But on the basis of such a defect, the plaint could not be rejected by invoking Order VII Rule 11(d) of the Code since it could not be held that a suit which suffers from the defect either of misjoinder of parties or misjoinder of causes of action or both, is barred by any law. Thus, the application filed by the respondent herein, the defendant in C.S. No. 29 of 2003, was dismissed. The division bench of the High Court set aside the order of single judge on grounds that the suit was barred by law due to misjoinder of cause of action. The Division Bench, did not reject the plaint, but, gave the appellants an opportunity to elect to proceed with the present suit at the instance of one of them and thus confine the plaint claim to one of them and the transaction relied on by that plaintiff. In the case on hand, we have also to reckon with the fact that the suits filed by the respondent against the respective appellants based on the transactions combined together by the appellants, have already been withdrawn for a joint trial with the present suit, C.S. No. 29 of 2003. In those two suits, the nature of the transaction the respective appellants had with the respondent have to be decided after trial. In the present suit, the appellants are claiming the payments which also form the basis of the claim of the respondent against the respective appellants in his two suits. In the present suit, C.S. No. 29 of 2003, all that the appellants have done is to combine their respective claims which are in the nature of counter claims or cross suits to the suits filed by the respondent. The ultimate question for decision in all the suits is the nature of the transactions that was entered into by the respondent with each of the appellants and the evidence that has to be led, in both the suits, is regarding the nature of the respective transactions entered into by the respondent with each of the appellants. To a great extent, the evidence would be common and there will be no embarrassment if the causes of action put forward by the appellants in the present suit are tried together especially in the context of the two suits filed by the respondent against them and withdrawn for a joint trial. In the case on hand, therefore, even assuming that there was a defect of misjoinder of causes of action in the plaint filed by the appellants, it is not a case where convenience of trial warrants separating of the causes of action by trying them separately. The three suits have to be jointly tried and since the evidence, according to us, would be common in any event, the Division Bench was in error in directing the appellants to elect to proceed with one of the plaintiffs and one of the claims. We do not think that on the facts and in the circumstances of the case one of the appellants should be asked to file a fresh plaint so as to put forward her claim. Even if such a plaint were to be filed, it will be a clear case for a joint trial of that plaint with the present suit and the two suits filed by the respondent. In any event, therefore, the Division Bench was not correct in interfering with the decision of the learned single judge. The effect of withdrawal of the two suits filed by the respondent against the appellants for a joint trial has not been properly appreciated by the Division Bench. So, on the facts of this case, the decision of the Division Bench is found to be unsustainable and the course adopted by it unwarranted. We are of the view that on the facts and in the circumstances of the case and the nature of the pleadings in the three suits that are now before the Original Side of the Calcutta High Court, it would be just and proper to try them together and dispose them of in accordance with law

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for which an order has already been made. A joint trial of the three suits based on the evidence to be taken, in our view, would be the proper course under the circumstances. We therefore allow this appeal and reversing the decision of the Division Bench restore the decision of the learned single judge. We request the learned single judge of the High Court to try and dispose off the three suits expeditiously in accordance with law.

7. ORDER-7-PLAINT 8. ORDER- 8- WRITTEN STATEMENT Print the slides and take them for Open book exams for both Order VII and VIII. Cases missing. Check the slides. 9. ORDER-6.(AMENDMENT OF PLEADINGS). Voluntary Amendments (O.6 R. 17) •Party whose pleading is defective can on his own revise it. •He needs to apply for the leave of the court •Amendments can be effectuated What necessitates amendments •Amendments may be necessitated because: •Reply to interrogatories •Discovery and inspection –new facts emerge •Discovery of documents not previously known •Plea of his adversary –Ex: plea of non-joinder of parties •Supervening factors, new circumstances have come into existence and they make the relief earlier claimed irrelevant. How to decide whether an amendment is to be allowed? • Consideration 1:Is there any legal prohibition on effecting the amendments sought for • Consideration 2 :Was it a fact that the applicant could have known (due diligence) • Consideration 3:What is the prejudice caused to the other party? • Consideration 4:can the prejudice be compensated by way of costs? Legal Prohibitions •By way of amendments one cannot : •change the character of the suit •introduce an entirely new cause of action

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•Introduce no new grounds or facts totally inconsistent with the previous pleading • Withdraw any admissions those were made (though you can explain them) • Undue delay in amending

THE CASES 1-4 DO NOT DEAL WITH AMENDMENTS BUT WITH MUTUALLY DESTRUCTIVE (WHICH ARE IMPERMISSIBLE) AND INCONSISTENT PLEAS (WHICH ARE PERMISSIBLE) 1. STEEL AUTHORITY OF INDIA LTD. V. UNION OF INDIA [2006 (12) SCC 233] Appellant is a Government company. In carrying out its activities of manufacture of steel and other products it appointed several contractors. Respondent are said to have been employees of the contractors. They raised a dispute before the State Government demanding their absorption as permanent employees. A writ petition came to be filed by some trade unions alleging that the workmen were direct employees of Appellant and were, thus, entitled to be absorbed as permanent workmen. The labour Court opined " This Court certainly has got no jurisdiction to pass Award in favour of the employees holding them to be the employees of principal employer namely the management. The question under reference, raised before this Court, certainly, relates to the abolition of contract labour and that question cannot be decided by this Court but by the competent appropriate Government under the provisions of Sec. 10 of the Contract Labour Act " Issue as to whether the members of the Unions were really the employees of the management and not those of the employees of the contractors was to be tried That it was not within its province to go into the question as to who the actual employer was as the same did not fall in the category of matters, which can be said to be incidental to the main dispute. the proper course and remedy available for the I party Union was not by way of reference on hand at least with the present terms, but by way of approaching the Hon'ble High Court invoking its writ jurisdiction seeking directions to the Central Government to take a decision under Section 10 of the Contract Labour Mutually destructive pleas - The workmen whether before the Labour Court or in writ proceedings were represented by the same Union. A trade union registered under the Trade Unions Act is entitled to espouse the cause of the workmen. A definite stand was taken by the employees that they had been working under the contractors. It would, thus, in our opinion, not lie in their mouth to take a contradictory and inconsistent plea that they were also the workmen of the principal employer. To raise such a mutually destructive plea is impermissible in law. Such mutually destructive plea, in our opinion, should not be allowed to be raised even in an industrial adjudication. Common law principles of estoppel, waiver and acquiescence are applicable in an industrial adjudication.

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It is interesting to note that in Modi Spinning & Weaving Mills Company Ltd. & Another v. Ladha Ram & Co. [(1976) 4 SCC 320], this Court opined that when an admission has been made in the pleadings, even an amendment thereof would not be permitted.

It is now well settled that an amendment of a plaint and amendment of a written statement are not necessarily governed by exactly the same principle. It is true that some general principles are certainly common to both, but the rules that the plaintiff cannot be allowed to amend his pleadings so as to alter materially or substitute his cause of action or the nature of his claim has necessarily no counterpart in the law relating to amendment of the written statement. Adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering or substituting a new cause of action. Accordingly, in the case of amendment of written statement, the courts are inclined to be more liberal in allowing amendment of the written statement than of plaint and question of prejudice is less likely to operate with same rigour in the former than in the latter case. This Court held that the workmen having taken a definite stand that they were working under the contractors, and as the dispute that was referred was one which arose under the CLRA Act, the workmen could not, by amending the claim statement filed before the Labour Court, take a contradictory and inconsistent plea that the contract between VISL and the contractor was sham and bogus and they were the direct employees of VISL. This Court observed that it was impermissible to raise such mutually destructive pleas in law, having regard to the principles of estoppel, waiver and acquiescence which were also applicable in industrial adjudication. We have referred to the factual situation in detail to demonstrate that the said observations made in the context of the peculiar facts of that case, where the reference by the state government under the ID Act was in regard to a specific dispute that they were employees of the contractor and that after prohibiting the contract labour system under section 10 of the CLRA Act, they should be absorbed as direct employees of VISL. This court therefore held that in such a reference under ID Act, raising a contention that the contract between VISL and the contractor was bogus and sham and that they were direct employees of principal employer contradicted the case on the basis of which the reference was sought and reference was made, and the two contentions being mutually destructive, such a plea which would destroy the very reference could not be permitted to be raised. 2.SARVA SHRAMIK SANGH VS INDIAN OIL CORPORATION LTD ● The appellant union represents the canteen workers of the contractor engaged by Indian Oil Corporation Ltd. ● The appellant union filed W.P.No.1267/1999 in the Bombay High Court on behalf of the said workers seeking the following reliefs: (i) a direction to the Central Advisory Contract Labour Board and Union of India to hold an investigation under section 10 of the Contract Labour (Regulation and Abolition) Act, 1970 ('CLRA Act' for short), on its application dated 29.12.1998 and make an order abolishing the contract labour system in regard to workmen in the canteen of Marketing division of IOC; and (b) a

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direction to IOC to absorb/regularize the services of the said workers. The writ petition was dismissed for want of prosecution on 11.11.2003. Appellant again approached the High Court in W.P.No.853/2004 contending that the contracts between IOC and the canteen contractor was sham and bogus and seeking a direction to the Union of India to make a reference of the dispute raised by them in regard to the demand for permanency of the canteen workers to the Industrial Tribunal. The said writ petition was dismissed by the High Court by the impugned order dated 19.8.2006 on the following two grounds : (i) The appellant had earlier filed WP No.1267/1999 for abolition of contract labour in the canteen in the establishment of IOC. The said earlier petition (W.P.No.1267/1999) was dismissed on 11.11.2003 for non- prosecution and attained finality; and once having sought the relief of abolition of contract labour, the appellant was estopped from seeking any other relief by contending that the contract was sham and not genuine. Whether in view of the stand taken by the appellant in WP No.1267 of 1999 , the appellant was estopped from taking a different stand in the subsequent writ petition (WP 1673/2005). The assumption that the appellant had taken inconsistent stands in the two writ petitions is not correct. Even in the first writ petition, the appellant had contended that though the contractors changed from time to time, the workers in the canteen remained the same with continuity of service; that IOC had mala fide and illegally kept the workers as contract labour in order to keep them in a permanent state of insecurity and to deny them the wages and privileges available to permanent workers; that IOC was actually controlling, and supervising the canteen; and that only as a camouflage, the contractor was shown as running the canteen to create a pretence that the workmen of IOC were the workers of the contractor, when in fact they were the employees of IOC. In short, the appellant had contended that the contract was sham and nominal, in the first petition. Even in the second writ petition (WP No. 1673/2005) the contention was that the contract was sham and a camouflage to avoid extending benefits of regular employees to the canteen workers. Therefore, the High Court committed a serious error in assuming that in the first writ petition, the appellant had conceded that the contract between the IOC and the canteen contractor was valid and genuine and that in the second writ petition the appellant had taken a contrary stand that the contract was sham and a camouflage. But before the decision of a Constitution Bench of this Court in Steel Authority of India Ltd. v. National Union Waterfront Workers (SAIL-I), it was thought that the appropriate relief available was to seek an investigation and abolition of contract labour under the CLRA Act and consequently seek absorption. When it became clear after the constitution bench decision in SAIL-I that if the case of the workmen is that the contract between the principal employer and the contractor was sham and merely a camouflage to deny benefits to the workers, then they could raise a dispute and approach the industrial adjudicator, the appellant sought a reference of the dispute to the industrial adjudicator, and when such a reference was refused, rightly approached the High Court by way of second writ petition. This means that the appellant had prayed for a particular relief in the first writ petition, and

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when such relief was found to be inappropriate and the law was clarified in SAIL-I, on the same fact raised a dispute which was the proper remedy, and as the dispute was not referred to the Industrial Tribunal, approached the High Court seeking a direction to the Central Government for making a reference. There is thus neither inconsistency nor any estoppel. The assumption that there is an absolute bar on inconsistent pleas being taken by a party, is also not sound. What is impermissible is taking of an inconsistent plea by way of amendment thereby denying the other side, the benefit of an admission contained in the earlier pleading. Mutually repugnant and contradictory pleas, destructive of each other may not be permitted to be urged simultaneously. But when there is no inconsistency in the facts alleged, a party is not prohibited from taking alternative pleas available in law. Similarly, on the same facts, different or alternative reliefs can also be claimed. The contention of IOC that on account of the dismissal of the first petition, the second petition for a different relief was barred either by principle of res judicata or by principle of estoppel is liable to be rejected. What was held to be impermissible in SAIL-I was raising inconsistent and mutually destructive pleas in the same proceedings. It does not bar a particular relief being sought in a writ petition, and when it is found that such a relief was inappropriate, then seeking appropriate relief in a different proceedings.

● 3.MOHAN LAL V. MIRZA ABDUL [AIR 1996 SC 910] Appellant had come into possession of the suit-lands pursuant to an agreement of sale dated March 8, 1956. He paid part consideration of Rs. 500/- and obtained possession of the lands. Subsequently, the respondent purchased the lands by sale deed dated March 23, 1960. In the meanwhile, the appellant's suit for specific performance of the contract for sale was dismissed and became final. The respondent filed the suit for possession which has given rise to this appeal. The trial Court decreed the suit. On appeal, it was reversed and dismissed. In second appeal, the High Court set aside the judgment and decree of the appellate Court and restored the decree of the trial Court. Thus this appeal by special leave. The only question is whether the appellant is entitled to retain possession of the suit property? Entitled to retain his possession by operation of Section 53-A of the Transfer of Property Act, 1882(ADVERSE POSSESSION)? As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., upto completing the period of his title by prescription nec vi nec clam nec precario. () Since the appellant's claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in

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possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the (sale) agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., up to completing the period his title by prescription nec vi, nec clam, nec precario (not by violence, not by stealth, not by permission). Since the appellant's claim is founded on section 53A (of Transfer of Property Act, 1882), it goes without saying that he admits by implication that he came into possession of land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant." The legal position is no doubt well settled. To establish a claim of title by prescription, that is adverse possession for 12 years or more, the possession of the claimant must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding twelve years.

4.L.N. ASWATHAMA V. P. PRAKASH The case of the appellants - plaintiffs is as follows: The suit property was purchased by one Hanumakka, from the state government in the year 1940. She sold the said site to one Bellary Muniswamy Pillai under a sale deed dated 23.9.1940, who in turn sold it to appellants' father Narayanaswamappa under sale deed dated 21.4.1950. The said Narayanaswamappa was registered as the owner of the said plot in the village records and was paying the taxes therefor. Narayana swamappa suffered a stroke and after a prolonged illness died in December 1966 leaving all his properties to his sons (plaintiffs) under his will dated 15.7.1956. The plaintiffs were unaware that their father owned the said plot, as before and at the time of his death, they were prosecuting their studies and were not conversant with their father's affairs. Their father had taken some loan from Canara Bank and as security therefor had mortgaged the said site and other properties. The Bank obtained a decree for sale of the mortgaged properties. The plaintiffs became aware of the suit property only after they cleared the loan due to the Bank and got back the various title deeds deposited with the Bank on 9.1.1984. Thereafter, they took steps to trace the suit property and collect the necessary papers and found that the defendant who had no right or title was in possession of the said property by putting some temporary unauthorized structure for tethering cattle. The appellants, therefore, filed the said suit.

Whether defendant has perfected his title by adverse possession and therefore the suit is barred by limitation? The plaintiffs contended that the plea of adverse possession put forth by the defendant should fail in view of the inconsistent stands taken by the defendant. It is pointed out that the

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defendant had specifically contended that he was the tenant of the schedule property from 1962 until he purchased the property on 18.11.1985. According to plaintiffs, this was a case of permissive possession and not adverse possession. It is submitted that the defendant having put forth a case of permissive possession, cannot put forth a plea of adverse possession. It was submitted that even assuming that there was a long and continuous possession for more than 12 years, that by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi. According to them, the two pleas being mutually inconsistent, the latter plea could not even begin to operate until the former was renounced. It is also well settled that long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi. The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. We are however of the view that the decision in Mohan Lal (supra) relied on by the plaintiffs is inapplicable, as the defendant therein had pleaded that he was in possession, having obtained possession in part performance of a sale agreement. As the defendant therein admitted that he came into possession lawfully under an agreement of sale and continued to remain in such possession, there was no adverse possession. This case is different, as the defendant did not contend that he entered possession under or through the plaintiffs. His case was that he was in possession as a tenant under Gowramma from 1962 and he became the owner by purchasing the plot from Gowramma in 1985. He alternatively contended that if Gowramma did not have title and consequently his claim based on title was rejected, then having regard to the fact that he had been in possession by setting up title in Gowramma and later in himself, his possession was hostile to the true owner; and if he was able to make out such hostile possession continued for more than 12 years, he could claim to have perfected his title by adverse possession. There is considerable force in the contention of defendant provided he is able to establish adverse possession for more than 12 years. When a person is in possession asserting to be the owner, even if he fails to establish his title, his possession would still be adverse to the true owner. Therefore, the two pleas put forth by the defendant in this case are not inconsistent pleas but alternative pleas available on the same facts. Therefore, the contention of the plaintiffs that the plea of adverse possession is not available to defendant is rejected. But then the question is if the defendant did not make out his title, whether adverse possession of defendant for a period of more than 12 years prior to the suit has been established? It is also well settled that long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi. The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Unless the person possessing the property has the requisite animus to possess the property hostile to the title of the true owner, the period for prescription (limitation period) will not commence. One important point that emerged out of this issue in this case was just

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the decision of the Court, when the defendant of this case, was found to be in the possession of the plot, the Court granted an injunction against the Bangalore City Corporation, on the ground that even a trespasser was entitled to protect his possession. When defendant claimed title and that was proved to be false or fabricated, then the burden is heavy upon him to prove actual, exclusive, open, uninterrupted possession for 12 years. In this case we have already held that he did not make out such possession for 12 years prior to the suit. While the plaintiffs have made out a clear and absolute title of the property, the defendant has not been able to make out title or adverse possession for more than 12 years.

5.JAI JAI RAM MANOHAR LAL VS NATIONAL BUILDING MATERIAL, 1969 AIR SC 1267 Manohar Lal s/o Jai Jai Ram commenced an action in the Court of the Subordinate Judge, Nanital, for a decree equivalent to the value of timber supplied to the defendant-the National Building Material Supply, Gurgaon. The action was instituted in the name of "Jai Jai Ram Manohar Lal" which was the name in which the business was carried on. The defendant by its written statement contended that the plaintiff was an unregistered firm and on that account incompetent to sue. the plaintiff applied for leave to amend the plaint.The Subordinate Judge granted leave to amend the plaint. The plaintiff on those averments applied for leave to describe himself in the cause title as "Manohar Lal proprietor of Jai Jai Ram Manohar Lal" The High Court opined on appeal against the decree by the trial Court "The suit instituted by the joint Hindu family business in the name of an assumed business title was a suit by a person, who did not exist and was, therefore, a nullity. Hence there could be no amendment of the description of such a plaintiff who did not exist in the eye of law. The court below was in obvious error in thinking otherwise and allowing the name of Manohar Lal to be added as proprietor of the original plaintiff Jai Jai Ram Manohar Lal which was neither a legal entity nor an existing person who could have validly instituted the suit." The High Court was also of the opinion that the substitution of the name of Manohar Lal as a plaintiff during the pendency of the action took effect from July 18, 1952, and the action must be deemed to be instituted on that date the amendment could not take effect retrospectively and on the date of the amendment the action was barred by the law of limitation. The plaintiff has appealed to the Supreme Court with special leave. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting

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mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However negligent or careless may have been the first omission, and, however late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side.

"...... the question whether there should be an amendment or not really turns upon whether the name in which the suit is brought in the name of a non-existent person or whether it is merely a misdescription of existing persons. If the former is the case, the suit is a nullity and no amendment can cure it. If the latter is the case, prima facie, there ought to be an amendment because the general rule, subject no doubt to certain exceptions, is that the Court should always allow an amendment where any loss to the opposing party can be compensated for by costs." In Amulakchand Mewaram's case(1) a Hindu undivided family sued in its business name. It was not appreciated at an early stage of the suit that in fact the firm name was not of a partnership, but was the name of a joint Hindu family. An objection was raised by the defendant that the suit as filed was not maintainable. An application to amend, the plaint, by substituting the names of the three members of the joint family for the name of the family firm as plaintiffs. High Court observed that a suit brought in the name of a firm in a case not within 0. 30 C.P. Code being in fact a case of misdescription of existing persons, leave to amend ought to have been given. The Supreme Court has observed "Since, however, a firm is not a legal entity the privilege of suing in the name of a firm is permissible only to those persons who, as partners, are doing business in India. Such privilege is not extended to persons who are doing business as partners outside India. In their case they still have to sue in their individual names. If, however, under some misapprehension, persons doing business as partners outside India do file a plaint in the name of their firm they are mis-describing themselves, as the suit instituted is by them, they being known collectively as a firm. It seems, therefore, that a plaint filed in a court in India in the name of a firm doing business outside India is not by itself a nullity. It is a plaint by all the partners of the firm with a defective description of themselves for the purpose of the Code of Civil Procedure. in these circumstances, a civil court could permit, under the provisions of s. 153 of the Code (or possibly under 0. VI, r. 17) an amendment of the plaint to enable a proper description of the plaintiffs to appear in it in order to assist the Court in determining the real question or issue between the parties." (Additional - Order 30 Civil Procedure Code. "The introduction of this provision in the Code was an enabling one which permitted partners constituting a firm to sue or be sued in the name of the firm. This enabling provision, however, accorded no such facility or privilege to partners constituting a firm doing business outside India. The existence of the provisions of O. XXX in the Code does not mean that a plaint filed in the name of a firm doing business outside India is not a suit in fact by the partners of that firm individually". )

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Therefore, the well-settled rule is that all amendments should be permitted as may be necessary for the purpose of determining the real question in controversy between the parties, unless by permitting the amendment injustice may result to the other side. In the present case, the plaintiff was carrying on business as commission agent in the name of "Jai Jai Ram Manohar Lal. The plaintiff was competent to sue in his own name as Manager of the Hindu undivided family to which the business belonged; he says he sued on behalf of the family in the business 'name. The observations made by the High Court that the application for amendment of the plaint could not be granted, because there was no averment therein that the misdescription was on account of a bona fide mistake, and on that account the suit must fail, cannot be accepted. (By the Supreme Court.) In our view, there is no rule that unless in an application for amendment of the plaint it is expressly averred that the error, omission or misdescription is due to a bona fide mistake, the Court has no power to grant leave to amend the plaint. The power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations. Since the name in which the action was instituted was merely a misdescription of the original plaintiff, no question of limitation arises: the plaint must be deemed on amendment to have been instituted in the name of the real plaintiff, on the date on which it was originally instituted.

6.MODI SPINNING & WEAVING MILLS CO.

VS LADHARAM & CO, 1977 AIR SC 680

As Special Leave. The appellants are defendants and the respondent is the plaintiff in suit out of which this appeal arises. In a suit for decree for Rs. 1,30,000/- instituted by the respondent/plaintiff in May, 1971, the appellants/defendants filed their written statement admitting that by virtue of an agreement dated April 7, 1967, the plaintiff worked as their Stockist-cum-Distributor. After three years the defendants filed an interlocutory application under Order VI, Rule 17 to amend the written statement by substituting paragraphs 25 and 26 with a new paragraph in which they took the fresh plea that the plaintiff was a mercantile agent-cum-purchaser.

The trial court said that "the repudiation of the clear admission is motivated to deprive the plaintiff of the valuable right accrued to him and it is against law." The High Court on revision affirmed the judgment of the trial court and said that by means of amendment the defendants wanted to introduce an entirely different case and if such amendments were permitted it would prejudice the other side. Supreme Court- The defendants cannot be allowed to change completely the case made in paragraphs 25 and 26 of the written statement and substitute an entirely different and new case. It is true that inconsistent pleas can be made in pleadings but the effect of substitution of paragraphs 25 and 26 is not making inconsistent and alternative pleadings but it is

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seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement. If such amendments are allowed the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants.

7.GANESH TRADING CO VS MOJI RAM, AIR 1978 SC 484 Order 6, rule 2 Civil Procedure Code says: "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, and shall, when necessary, be divided into paragraphs, numbered consecutively. Dates, sums and numbers shall be expressed in figures". Order 6, rule 4 indicates cases in which particulars of its pleading must be set out by a party. Order 6, rule 6 requires only such conditions precedent to be distinctly specified in a pleading as a party wants to put in issue. Order 6, rule 5 provides for such "further and better statement of the nature of the claim or defence, or further and better particulars of any matter stated in any pleading...... as the Court may order, and "upon such terms, as 'to costs and otherwise, as may be just". Order 6, rule 7, contains a prohibition against departure of proof from the pleadings except by way of amendment of pleadings. After some provisions relating to special cases and circumstances, and for signing, verification and striking out of pleadings, comes Order 6, rule 17 which reads as follows : "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".

It is clear from the foregoing summary of the main rules of pleadings that provisions for the amendment of pleadings, subject to such terms as to costs and giving of all parties concerned necessary opportunities to meet just situations resulting from amendments, are intended for promoting the ends of justice and not for defeating them. It is true that, if a plaintiff seeks to alter the cause of action itself and to introduce indirectly, through an amendment of his pleadings, an entirely new or inconsistent cause of action, amounting virtually to the substitution of a new plaint or a new cause of action in place of what was originally there, the Court will refuse to permit it if it amounts to depriving the party against which a suit is pending of any right which may have accrued in its favour due to lapse of time. But, mere failure to set out even an essential fact does not, by itself, constitute a new cause of action. A cause of action is constituted by the whole bundle of essential facts which the

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plaintiff must prove before he can succeed in his suit. It must be antecedent to the institution of the suit. If any essential fact is lacking from averments in the plaint the cause of action will be defective. In that case, an attempt to supply the omission has been and could sometimes be viewed as equivalent to an introduction of a new cause of action which, if cured of its shortcomings, has really become a good cause of action. Defective pleadings are generally curable if the cause of action sought to be brought out was not ab initio completely absent. Even very defective pleadings may be permitted to be cured. So as to constitute a cause of action where there was none, provided necessary conditions, such as payment of either any additional court fees, which may be payable, or, of costs of the other side are complied with. It is only if lapse of time has barred the remedy on a newly constituted cause of action that the Courts should, ordinarily, refuse prayers for amendment of pleadings. In this case, the appellant-plaintiff M/s. Ganesh Trading Co. ' Karnal, had filed a suit "through Shri Jai Parkash", a partner of that firm, based on a promissory note, dated 25th August 1970, for recovery of Rs. 68,000/-. The non-payment of money due under the promissory note was the real basis. The suit was filed on 24th August 1973, just before the expiry of the period of limitation for the claim for payment. The written statement was filed on 5th June 1974, denying the assertions made in the plaint. It was also asserted that the suit was incompetent for want of registration of the firm and was struck by the provisions of section 69 of the Indian Partnership Act. (Remember reading JAI JAI RAM MANOHAR LAL VS NATIONAL BUILDING MATERIAL?) The plaintiff filed an amendment application wherein it was stated that the plaintiff had "inadvertently omitted certain material facts which are necessary to incorporate in the plaint so as to enable the Hon'ble Court to consider and decide the subject matter of. the suit in its true perspective and which it is necessary to do in order to meet ends of justice". the omission consisted of a failure to mention that the plaintiff firm, Ganesh Trading Co. Karnal, had been actually dissolved. It is on the basis of these averments that title of the suit is sought to be changed from M/s. Ganesh Trading Company, Karnal, through Shri Jai Parkash son of Shri Hari Ram, resident of Railway Road, Karnal, to dissolved firm, through Shri Jai Parkash son of Shri Hari Ram, resident of Railway Road, Kamal, ex- partner of the said firm. (The amendment proposed by the plaintiff.) In the case before us also, the suit having been instituted by one of the partners of a dissolved firm the mere specification of the capacity in which the suit was filed could not change the character of the suit or the case. It made no difference to the rest of the pleadings or to the cause of action. Indeed, the amendment only sought to give notice to the defendant of facts which the plaintiff' would and could have tried to prove in any case. This notice was being given, out of abundant caution, so that no technical objection may be taken that what was sought to be proved was outside the pleadings. "O. 30, R.I. Civil P.C. indicates that a suit can be filed in the name of the firm by some of the, partners only if the partnership is existing at the date of the, filing of the suit. The

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argument has no force in view of the finding that the firm was not dissolved by reason of the insolvency of one of its partners. But even if it has been dissolved, the effect of dissolution is not to render the firm non-existent. It continues to exist for all purposes necessary for its winding up. One of these is of course the recovery of moneys due to it by suit or otherwise". We think that the amendment sought does not alter the cause of action. It only brings out correctly the capacity of the plaintiff suing. It does not change the identity of the plaintiff who remains the same. A new claim made on a new basis constituted by new facts. The expression 'cause of action' in the present context does not mean 'every fact which it is material to be proved to entitle the plaintiff to succeed' in a different context, for if it were so, no material fact could ever be amended or added and, of course, no one would want to change or add an immaterial allegation by amendment. A new claim made on a new basis constituted by new facts. (Our focus should thus be only on this line.)

8.A. K. GUPTA AND SONS VS DAMODAR VALLEY CORPORATION, AIR 1967 SC 96 The question raised in this appeal is whether the High Court was in error in refusing permission to the appellant to amend its plaint. (it was in the opinion of the Supreme Court.) "This quotation is based on prevailing labour rate of Rs. 1-4-0 per cooly but if there is increase of labour rate of more than 10% in any particular month, the proportionate increase in rate will be charged". Subsequent to the making of the contract there was an increase in the labour rate per cooly by 20%. The appellant claimed that under the clause it was entitled to the whole amount of the increase while the respondent contended that it was entitled to a part of it only. Before the learned trial Judge several issues were raised but it is necessary to mention only two. One issue was as to the maintainability of the suit in the form in which it had been framed and the other issue was as to the proper interpretation of the clause. The first of these issues was not pressed at the hearing. The other issue having been decided by the trial Court in favour of the appellant, the suit was decreed. The other issues which had been raised, had also not been pressed. The Court had further given the appellant leave under 0. 2 r. 2 of the Code of Civil Procedure to sue later for the amount due under the contract. The respondent then went up in appeal to the High Court at Patna. There the issue as to the maintainability of the suit was resuscitated and pressed and it was decided in the respondent's favour because of the terms of the proviso to s. 42 of the Specific Relief Act, 1877. The

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correctness of this view is not challenged in this Court. In the result the High Court dismissed the suit. Now, the appellant bad in view of the High Court's decision as to the maintainability of the suit, sought its leave to amend the plaint by adding an extra relief in the following words : "That a decree for Rs. 65,000 or such other amount which may be found due on proper account being taken may be passed in favour of the plaintiff against the defendant". The amendment having been refused the present appeal has been preferred. The expression "cause of action" in the present context does not mean "every fact which it is material to be proved to entitle the plaintiff to succeed" as was said in Cooke v. Gill(1) in a ,different context, for if it were so, no material fact could ever be amended or added and, of course, no one would want to change or add an immaterial allegation by amendment. That expression for the present purpose only means, a new claim made on a new basis constituted by new facts Now, how does the present case stand on these principles ? Does the amendment introduce a new cause of action or a new case? (the court thought this amendment does not breach the principle.) It sought the interpretation of a clause in the contract only for a decision of the rights of the parties under it and for no other purpose. It was the contract which formed the cause of action on which the suit was based. The amendment seeks to introduce a claim based on the same cause of action, that is, the same contract. It introduces no new case or facts. Indeed the facts on which the money claim sought to be added is based are not in dispute. Even the amount of the claim now sought to be made by amendment, was mentioned in the plaint in stating the valuation of the suit for the purpose of jurisdiction. The respondent had notice of it. It is quite clear that the interpretation of the clause was sought only for quantifying the money claim. In the written statement the respondent specifically expressed its willingness to pay the appellant's legitimate dues which could only mean such amount as might be due according to the rates applicable on a proper interpretation of the clause. The respondent was fully aware that the ultimate object of the appellant in filing the suit was to obtain the payment of that amount. It was equally aware that the amount had not been specifically claimed in the suit because the respondent had led the appellant to believe that it would pay whatever the court legitimately found to be due. It in fact said so in the written statement. If there was any case where the respondent was not entitled to the benefit of the law of limitation, the present is that one. The respondent cannot legitimately claim that the amendment will prejudicially effect his right under that law for really be had no such right. It is a case in which the claim for money was in substance in the plaint from the beginning though it had not formally been made. This, therefore, seems to us to be preeminently a case for allowing the amendment. The authorities also lead us to the same view. In L. J. Leach & Co.s case(1) a suit for damages for conversion was by amendment allowed to be converted into a suit for damages for breach of contract after that claim had become barred, the necessary facts as in the case in hand, being already in the plaint.

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In Charan Das's case(2) an amendment adding a claim for possession after a suit for such claim had become barred was allowed in a suit which originally had only claimed a declaration of a right to pre- empt. In the last mentioned case, the plaintiff bad in spite of warning at the earliest stage refused to make the amendment which he later sought and got. It was, therefore, a case where the plaintiff had initially deliberately refused to make a claim and an amendment being allowed later permitting that claim to be raised after it had become barred. It was in a sense a stronger case than the present one where the plaintiff had omitted to make the claim initially on a wrong notion and a wrong legal advice. Punishing of mistakes is, of course, not administration of justice. Besides, in Pirgonda Hongonda Patil's case(1), in a suit for a declaration of title, this Court permitted an amendment setting out the detailed facts on which the title was claimed after the suit had become time barred. The absence of the details of the work does not furnish a legitimate ground for refusing the amendment. It is now well-settled that the Court has power to allow amendments in connection with claims which had become time- barred, if special circumstances exist and it be in the interests of justice. In this case the plaintiff had sought a declaration of his rights under the terms of a contract. The suit was decreed. But, as the first appellate Court had reversed the decree on the ground that section 42 of the Specific Relief Act barred the grant of a mere declaratory decree in such a case, the appellant had sought leave, by filing an amendment application in its second appeal before the High Court seeking to add a relief to recover such monies as may be found due to him on proper accounting. By a majority, the view expressed by this Court was that the amendment should be allowed although the Court affirmed the principle that, as a rule, a party should not be allowed, by means of an amendment, to set up a new cause of action particularly when a suit on the new case or cause of action is barred by time. Dissenting Opinion Before referring to the cases, I may set out the provisions of the Code which empower the Court to allow amendment of pleadings. Section 153 and O. 6, r. 17, deal with the matter. Section 153 reads : "The Court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding." Rule 17 of 0. 6 reads : "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."

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These indicate that the amendment should be in such manner as may be just and that, as a rule, all such amendments shall be made as be necessary for the purpose of determining the real questions in controversy between the parties. No amendment would be just if it so prejudices the interests of the other party for which that party cannot get any relief from the Court. The amendments which must be allowed can be those in the absence of which the Court may not be able to determine the real question in controversy between the parties. The real question in controversy must be gathered only from the plaint and to some extent from the allegations in the written statement. If the point to be decided as a result of the amendment is not covered by the controversy raised by the plaint and the written statement,, the amendment is not to be allowed necessarily, for the simple reason that it is unnecessary for determining the real questions in controversy between the parties. It follows that the amendments to be allowed relate to such matters which, due to bad drafting of the plaint, could not be clearly and precisely expressed, though the parties did really intend to have those matters determined by the Court. The object of the amendment of the pleadings is to clarify the pleadings for bringing into prominence the real controversy between the parties and not for helping a party by making such amendments which be beneficial to him in connection with some dispute between the parties, a dispute which has not been really taken to the Court for decision and which the parties did not really intend to be decided in that suit. This seems to me to be the real basis for an order of the Court in connection with such amendments sought by a party in its pleadings as would raise a claim which has become time- barred. In Kisandas's case, "Falling back, then, upon the words of the Rule, I cannot follow the argument that there would be any injustice to the appellants in allowing the amendment, for the only effect of it is to enforce their liability for a debt which was claimed, disputed, and found to be due long before the defence of limitation was available." Earlier, after referring to the provisions of O. 6, r. 17, he had said at p. 649 : "From the imperative character of the last sentence of the rule it seems to me clear that, at any stage of the proceedings, all amendments ought to be allowed which satisfy the two conditions (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties."

I may now consider whether the fact,% of the present case are such as would justify the amendment of the plaint sought by the plaintiff-appellant. The plaint in the present case gives no facts which are necessary to establish before the plaintiff can get a decree for Rs. 65,000 or which may justify a decree for accounting. The schedule attached to the tender, Annexure A, shows that different rates of payment were agreed upon different basic, as unit of calculation for different type of work. The plaint nowhere B indicates the amount of work done under each category and unless the plaintiff sets out the amount of work done he cannot certainly make out any claim for payment to him. It is said that the amount due to the plaintiff can be worked out on accounting on the basis of the bills tendered by him and to which the defendant had not raised any objection. No reference to such bills has been made in the

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plaint. Nothing is said in the plaint that the defendant had agreed to the bills tendered. To allow the amendment of the plaint would necessarily lead to a further request for the furnishing of these details about the work done and that would necessarily lead to the defendants being afforded an opportunity to put in a further written statement in connection with the fresh facts which would come on the record. In fact the amendment sought would necessitate practically a de navo trial on the question as to what amount the plaintiff is entitled from the defendant on account of the work done. The amended claim cannot be decreed on the facts on the record. When the plaintiff cannot get the relief, sought to be added as a result of the amendment on the facts mentioned in the plaint originally, it is clear that the cause of action for a decree for Rs. 65,000 is different from the cause of action on which the suit for declaration was founded. For the suit as originally instituted the plaintiff had merely to prove the terms of the contract between the parties and to show that his interpretation of these terms was the correct one and that interpretation justified the declaration sought. A suit based on one cause of action cannot be allowed to be changed into a suit based on another cause of action. It cannot be said that the plaintiff intended to sue the defendant for the recovery of Rs. 65,000 but failed to express himself clearly in the plaint and that therefore he be allowed to make the plaint precise and clear in that regard. The plaintiff knew that he could make a claim for money and in para 14 reserved the right under O. 2, r. 2 C.P.C. to omit to sue in respect of that amount that be found due upon interpretation placed by him on cl. 17 of the tender. This indicates that he did not intend to sue for the amount due to him and that he anticipated the possibility of later suing for the recovery of the amount deliberately not sued for in the suit. This circumstance also justifies the rejection of his prayer for amendment. The fact that the trial Court, by its judgment, allowed leave under O. 2, r. 2 of the Code to sue for the amount due subsequently is no circumstance to justify the amendment now sought. The omission of the dependent to press any objection against the prayer of the plaintiff for leave under O. 2, r. 2 is not such a special circumstance which should justify the amendment sought. Leave under O. 2, r. 2 can be sought by the plaintiff and can be given by the Court with respect to a plaintiff's not suing for certain relief arising out of the same cause of action as subr. (3) provides that a person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs. But if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not, afterwards, sue for any relief omitted. It has been shown above that the cause of action for the relief of declaration was different from the cause of action for the claim of money. The relief for the money due did not arise from the cause of action on which the relief for declaration was based.

9.L. J. LEACH AND COMPANY LTD VS JARDINE SKINNER, AIR 1957 SC 357 The appellants filed a suit for damages for conversion against the respondents on the allegations that the respondents were the agents of the appellants, that the- appellants had placed orders for certain goods with the respondents, and that the respondents had actually imported the goods but refused to deliver them to the appellants. The suit was dismissed on the findings that the parties stood in the relationship of seller and purchaser, and not

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agent and principal and that the title in the goods could only pass to the appellants when the respondents appropriated them to the appellants' contracts. In appeal before the Supreme Court, the appellants applied for amendment of the plaint by raising, in the alternative, a claim for damages for breach of contract for non-delivery of the goods. All the allegations necessary for sustaining a claim for damages for breach of contract were already present in the plaint and the only allegation lacking was that the appellants were, in the alternative, entitled to claim damages for breach of contract by the non-delivery of the goods. "a different or additional approach to the same facts" could be allowed by amendment even after the expiry of the statutory period of limitation. It had pointed out that the object of rules of procedure is to decide the rights of the parties and not to punish them for their mistakes or shortcoming. It also said that no question of limitation, strictly speaking, arose in such cases because what was sought to be brought in was merely a clarification of what was already there. “as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the court to order it (jurisdictional issues), if that is required in the interests of justice.” (always the counter) That there was full power to make the amendment cannot be disputed, and though such a power should not as a, rule be exercised where the effect is to take away from a defendants, legal right which has accrued to him by lapse of time. Cases in which this lapse of time has been outweighedApart from the contents of the plaint already set out, there is the fact that the defendants cancelled the contract without strictly complying with the terms of cl. 14. The ground on which they repudiated the contract was that the second plaintiff had assigned his interests to the first plaintiff ; but the record shows that subsequent to the assignment the defendants had business transactions with both the plaintiffs and therefore the ground for cancellation appears to have been a mere device to deprive the plaintiffs of the benefits of the orders which they had placed. We are of opinion that the justice of the case requires that the amendment should be granted. In the present case, the amendment should be allowed. the plaintiffs have applied to this Court for amendment of the plaint by raising, in the alternative, a claim for damages for breach of contract for non- delivery of the goods. The respondents resist the application. They contend that the amendment introduces a new cause of action, that a suit on that cause of action could now be barred by limitation, that the plaintiffs had ample opportunity to amend their plaint but that they failed to do so, and that owing to lapse of time the defendants would be seriously prejudiced if this new claim were allowed to be raised. There is considerable force in the objections. But after giving due weight to them, we are of opinion that this is a fit case in which the amendment ought to be allowed. The plaintiffs do not claim any damages for wrongful termination of the agreement, Ex. A, by the notice dated June 13, 1945. What they claim is only damages for non-delivery

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of goods in respect of orders placed by them and accepted by the defendants prior to the termination of the agreement by that notice. Clause 14 of the agreement expressly reserves that right to the plaintiffs. The suit being founded on Ex. A, a claim based on Cl. 14 thereof cannot be said to be foreign to the scope of the suit. Schedule E to the plaint mentions the several indents in respect of which the defendants had committed default by refusing to deliver the goods, and the damages claimed are also stated therein. The plaintiffs seek by their amendment only to claim damages in respect of those consignments. The prayer in the plaint is itself general and merely claims damages. Thus, all the allegations which are necessary for sustaining a claim for damages for breach of contract are already in the plaint. What is lacking is only the allegation that the plaintiffs are, in the alternative, entitled to claim damages for breach of contract by the defendants in not delivering the goods. Observations •This is a wide power,exercised in the interests of justice. • Usually not allowed after commencement of trial, except in exceptional cases. • Not a matter of right,but a matter of judicial discretion. • Very hard to arrive at a hard and fast rule on amendments. There are large number of cases where the courts have held that amendments are to be liberally allowed as the ultimate purpose of the suit is to decide the rights between the parties and everything that facilitates this must be permitted. •All amendments that do not: •Cause working injustice to the other side. •And that is necessary to determine the real questions of controversy between the parties are to be allowed. •So additional facts or explanations or new explanations of acts can be permitted. In general •The court should not allow the party to raise a completely new case that changes the character of the suit/withdraw admissions made. Express Denial is very important as otherwise it amounts to acceptance. The general rule is to permit an amendment - refusal is the exception.

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10. ORDER-5 (ISSUE AND SERVICE OF SUMMONS) Summons is a legal document issued by a court of law requiring a party to appear before a judge or magistrate, or the writ containing such an order. Section 27 of the code read with Order V Rule I state that: When a suit has been duly instituted a summons may be issued to the defendant to appear and answer the claim on a day to be therein specified a) No summons to be issued where the D has appeared and admitted to the claim. b) The summons may also direct the D to file his written statement on the date of appearance c) The summons is signed by the judge and shall carry the seal of the court. A summons issued by the court of law to call defendant or witness to the court is basically the same document but they have very different outcomes in cases of non appearances or defaults in other manners. This is to permit the defendant to appear and answer the claim of the plaintiff. Without service of summons, ordinarily no action can be taken against the defendant. Ad interim injunction- Temporary Interim Injunction or the interim interim injunction :) Types of summons Purpose of summoning

Who needs to appear

For disposal of suits

Appearance by self/agent/pleader

For settlement of issues

Personal appearance

The discretion to decide on type of summons which is to be issued lies with the judge. In determining whether the summons shall be for the settlement of issues only, or for the final disposal of the case, the Court must be guided by: a) the nature of the suit b) the probability or otherwise of the facts stated in the plaint being disputed by the defendant on grounds which will require the production of much evidence or will involve much contention. Where the case appears simple, and it seems probable that a correct judgment can be formed at the first hearing from the examination of the parties or their agents; and such evidence, oral or documentary, as they can bring with them, the summons should be for the final disposal of the case.

Summons for personal appearance

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Where the Court sees reason to require the personal appearance of the defendant, the summons shall order him to appear in person in Court on the day therein specified. The plaintiff can also be ordered to appear on that day. This order can be passed only if the defendant: a) Resides within the local limits of ordinary original jurisdiction of the court. b) Beyond such limits, but at place less than fifty or (where there is railway or steamer communication or other established public conveyance for five-sixths of the distance between the place where he resides and the place where the Court is situate) less than two hundred miles distance from the court-house. What should the Summons Contain? A copy of the summons has been attached in the slides by sir. a) A summons should state title of Court issuing summons; name, description and place of residence; name of person instituting suit, purpose for which it is issued; date and time for appearance. It shall state that, in case of failure to appear, suit will be heard and determined in his absence.[ Appendix B for Summons for disposal of suit.] b) Every summons must be accompanied with a copy of plaint or a concise statement. (O5, R2) c) It should state whether it is for disposal of suit or for settlement of issues/ personal appearance or other wise (O5, R5) d) The summons to appeal and answer shall order the defendant to produce all documents in his possession or power upon which he intends to rely in support of his case (O5, R7) e) Where the summons is for the final disposal of the suit, it shall also direct the defendant to produce, on the day fixed for his appearance, all witnesses upon whose evidence he intends to relay in support of his case. (O5, R8) Service of summons Service of summons to the parties is the most tricky part about the summons as parties resort to different sort to tactics to avoid receipt of summons. Mode of Service (R.10, 11) a) Service of summons shall be made by delivering or tendering a copy thereof signed by the Judge or such officer as he appoints in this behalf, and sealed with the seal of Court. b) If there are more defendants, summons shall be served on each defendants. c) Defendant, after receiving copy of summons, is required to sign acknowledgement on original summons. Delivery or transmission of summons • (1) Where the defendant resides within the jurisdiction of the Court in which the suit is instituted, or has an agent resident within that jurisdiction who is empowered to accept the service of the summons, the summons shall, unless the Court otherwise directs, be delivered

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or sent to the proper officer to be served by him or one of his subordinates. • (2) The proper officer may be an officer of a Court other than that in which the suit is instituted, and, where he is such an officer, the summons may be sent to him by post or in such other manner as the Court may direct. Whom to serve it on? (R.12) Wherever it is practicable service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient. Service on agent (1) Where suit is in relation to business or work against person who does not reside within the local limits of the Court from which summons is to be served; service may be made on his manager or agent, who is actually working at that time. (2) Where suit is to obtain relief respecting or compensation for wrong to immovable property, service of summon cannot be made on defendant in person; service may be made on agent of the defendant in charge of the property. [ Order V, Rule 13, 14] Service on adult member of family Where defendant is absent at the time when service of summons is to be effected and there is no likelihood of his being found at the residence within a reasonable time and he has no agent; then service may be made on any adult member of the family, whether male or female. A servant is not considered as family member.[ Order V, Rule 15] Receipt of summons to be acknowledged (O5, R.16) Where the serving officer delivers or tenders a copy of the summons to the defendant personally, or to an agent or other person on his behalf, he shall require the signature of the person to whom the copy is so delivered or tendered to an acknowledgement of service endorsed on the original summons. Service by affixation (O5, R17) Service of summons by affixing is resorted to when: a) defendant or his agent or such other person refuses to sign acknowledge; or b) where the serving officer after due diligence cannot find defendant and there is no agent to accept summons; nor any other person on whom service can be made, In such cases, the serving office shall affix a copy of the summons on the a) outer door; or b) some other conspicuous (noticeable) part of the house in which defendant ordinarily resides or carries on business or personally works for gain He shall return the original to the Court from which it was issued with an endorsement as to that effect. Substituted Service (05, R.20) Where Court is satisfied that there is reason to believe that, • the defendant is keeping out of the way for the purpose of avoiding service, or

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• that for any other reason the summons cannot be served in the ordinary way; the Court shall order the summons to be served by affixing a copy thereof • in some conspicuous place in the Court house, and • also upon any conspicuous part of the house in which the defendant is known to have last resided or carried on business or personally worked for gain or • in such other manner as the Court thinks fit. Substituted service may also be effected by • Newspaper advertisement in a newspaper circulating in the locality in which the defendant is last resided or carried on business or personally worked for gain. • In substituted service Court has wide power to cause service of summons; and Court can use one or more modes of service of summons. • Service substituted by order of Court shall be as effectual as if it had been made on the defendant personally. Court shall fix such time for the appearance of the defendant as the case may require. In certain areas of our country, courts do rely on methods like beating of drums for the purpose of public announcement. Other cases: a) Where the defendant is confined in a prison, the summons shall be delivered or sent by post or otherwise to the officer in charge of the prison for service on the defendant. [Order V Rule 24] b) Where the defendant resides out of India and has no agent in India empowered to accept service, the summons shall be addressed to the defendant at the place where he is residing and sent to him by post, if there is postal communication between such place and the place where the Court is situate. [Order V Rule 25] c) Where the defendant is a public officer (not belonging to the Indian military naval or air forces), or is the servant of a railway company or local authority, the Court may, if it appears to it that the summons may be most conveniently so served, send it for service on the defendant to the head of the office in which he is employed together with a copy to be retained by the defendant.[Order V Rule 27] d) Where the defendant is a soldier, sailor or airman, the Court shall send the summons for service to his commanding officer together with a copy to be retained by the defendant. [Order V Rule 28]

Service through foreign office Where the Central Government has, by notification in the Official Gazette, declared in respect of any foreign territory that summonses to be served on defendants residing/working for gain in such foreign territory a) the summonses may be sent to such officer, through the Ministry of the Government of India dealing with foreign affairs or in such other manner as may be specified by the Central Government;

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b) with foreign affairs or in such other manner as may be specified by the Central Government; and if such officer ,any such summons with an endorsement purporting to have been made by him that the summons has been served on the defendant, such endorsement shall be deemed to be evidence of service Substitution of letter for summons Instead of summons, a letter signed by the Judge (or such officer as he may appoint in this behalf) can be issued where the defendant is, in the opinion of the Court, of a rank entitling him to such mark of consideration. (Rarely used in India) Service on Corporations (Order XXIX, R2) Where the suit is against a corporation, the summons may be served (a) on the secretary, or on any director, or other principal officer of the corporation, or (b) by leaving it or sending it by post addressed to the corporation at the registered office, or if there is no registered office then at the place where the corporation carries on business. Service on Firms (O.XXX, R.3) Where persons are sued as partners in the name of their firm, the summons shall be served either • (a) upon any one or more of the partners, or • (b) at the principal place at which the partnership business is carried on within India,upon any person having, at the time of service, the control or management of the partnership business, there, • as the Court may direct; and such service shall be deemed good service upon the firm so sued, whether all or any of the partners are within or without India Provided that, in the case of a partnership which has been dissolved to the knowledge of the plaintiff before the institution of the suit, the summons shall be served upon every person within India whom it is sought to make liable. Service on Government (O. XXVII, R.4) The Government pleader in any Court shall be the agent of the Government for the purpose of receiving processes against the Government issued by such Court.

Service on Military, Naval men or airmen ( O XXVIII) Processes served upon any person authorized by an officer soldier sailor or airman under Rule 1 (of Order XXVIII) or upon any pleader appointed as aforesaid by such person shall be as effectual as if they had been served on the party in person. Under Rule 1, the military personnel can authorise another person to institute suits/ defend suits on his behalf. Service on Pleaders (O3, R5)

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Any process served on the pleader who has been duly appointed to act in Court for any party] or left at the office or ordinary residence of such pleader, and whether the same is for the personal appearance of the party or not, shall be presumed to be duly communicated and made known to the party whom the pleader represents, and, unless the Court otherwise directs, shall be as effectual for all purposes as if same had been given to or served on the party in person. Methods of Service 1. Registered post with acknowledgement due 2. Speed post 3. Courier Service (where it is notified by the district courts) 4. Service through special messenger/ plaintiff serving the defendant 5. Substituted service Service by electronic means Summons can also be served by way of an electronic mail or fax, provided the concerned High Court has made specific rules for this. Although many High Courts have made their rules but some High Courts are yet to come out with their rules on service of summons by electronic means. The rules laid down by various High Courts are not uniform as while some rules require presence of authorized digital signature but not in others. According to some rules, express permission of court is required to serve summons through digital means. In the state of Gujarat, the other party is required to acknowledge the receipt of summons. Courts in some cases have allowed to serve summons by other means of electronic communications such as Whatsapp and Facebook because the approach in such cases appears to be to focus on the factum of effecting service rather than the particular mode of service.

Presumption of Service C.C. ALAVI HAJI VS. PALAPETTY MUHAMMED & ANR. (2007) 6 SCC 555 Facts: Not required for this case. Judgement: Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to

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further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement refused or not available in the house or house locked or shop closed or addressee not in station, due service has to be presumed. [Vide Jagdish Singh Vs. Natthu Singh ; State of M.P. Vs. Hiralal & Ors. and V.Raja Kumari Vs. P.Subbarama Naidu & Anr. ] It is, therefore, manifest that in view of the presumption available under Section 27 of the Act, it is not necessary to aver in the complaint under Section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved. Insofar as the question of disclosure of necessary particulars with regard to the issue of notice in terms of proviso (b) of Section 138 of the Act, in order to enable the Court to draw presumption or inference either under Section 27 of the G.C. Act or Section 114 of the Evidence Act, is concerned, there is no material difference between the two provisions. In our opinion, therefore, when the notice is sent by registered post by correctly addressing the drawer of the cheque, the mandatory requirement of issue of notice in terms of Clause (b) of proviso to Section 138 of the Act stands complied with. It is needless to emphasise that the complaint must contain basic facts regarding the mode and manner of the issuance of notice to the drawer of the cheque. It is well settled that at the time of taking cognizance of the complaint under Section 138 of the Act, the Court is required to be prima facie satisfied that a case under the said Section is made out and the aforenoted mandatory statutory procedural requirements have been complied with. It is then for the drawer to rebut the presumption about the service of notice and show that he had no knowledge that the notice was brought to his address or that the address mentioned on the cover was incorrect or that the letter was never tendered or that the report of the postman was incorrect. In our opinion, this interpretation of the provision would effectuate the object and purpose for which proviso to Section 138 was enacted, namely, to avoid unnecessary hardship to an honest drawer of a cheque and to provide him an opportunity to make amends.

Approach of the Court The court have taken a stand that it is the service of summons to party which is importance and not the technicalities surrounding the mode of summons. SUNIL PODDAR & ORS VS UNION BANK OF INDIA Facts: In the present case, a civil suit was going on before a civil court for the recovery of debt from the appellant in this case. While the suit was ongoing, the appellant had communicated to the civil court about the change in their address and they had requested the court to use the new address for all purposes of future summons. The appellant had responded to the summons issued by the civil court regularly and had engaged a counsel to defend himself in the case. After the enactment of RDBT Act, all suits relating to recovery of debt were transferred to the DRT and DRAT was supposed to be the appellate forum for such cases. As per the provisions of the act, the case which was pending against the appellant was

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also transferred to the DRT. As the proceedings began, the DRT issued summons on the old address and not on the new address which was communicated to the trial court. The DRT passed an ex parte decree against the appellant for not appearing before the court after repeated issuance of summons. The appellant approached the DRT claiming that the ex parte decree is ought to be set aside as no summons were duly served to them. Even the DRAT and the High Court refused to set aside the ex parte decree in the present case. Issue: Can the appellant claim that he was never served a summon after the case was transferred to the DRT even when he was aware of the fact that the case has been transferred to the DRT from the civil court? Judgement: The Supreme Court took notice of the fact that the appellants in present case “have suppressed the fact of their filing of written statement in the case while it was proceeding in the Civil Court and were being represented by their lawyer till the date of its transfer to the Tribunal at Jabalpur”. The Supreme Court agreed the judgement of DRAT which had said that “even if it is taken to be true that the appellants did not receive notice from the DRT, it was their duty to make necessary inquiry in the proceedings when the case had been transferred to the DRT from the civil court where the appellant was already party to the ongoing proceedings and had also hired a lawyer to represent him.” As the appellant has approached the Supreme Court under Article 136 of the Constitution, the Supreme Court dismissed appeal by stating that the parties had not come before the court with clean hands and they didn’t chose to appear before the DRT even when they were aware of the transfer of the case and the ongoing suit. Thus, the appeal filed under discretionary and equitable jurisdiction of Article 136 is ought to be set aside as there was no miscarriage of justice in this case.

RAMA DEVI AND ANR. VS RAM PRAKASH AND ORS. Judgement: If a party successfully rebutted the presumption of service of summons, then the liability to prove otherwise that the presumption still stands falls back on the opposite party. MUKESH KUMAR RICHARIYA VS SMT. MADHU RICHARIYA Facts: The petitioner/husband had filed a petition registered as Civil Suit No. 161-A/96 against the respondent/wife. Service report of summons of the said petition on the respondent /wife indicated that she refused to take summons. The Trial Court after recording evidence led by the petitioner/husband passed an ex parte judgment and decree of divorce.The respondent/wife filed an application under Order 9, Rule 13 of C.P.C. for setting aside the ex parte judgment and decree making an averment that the summons was never tendered to him, and that she never refused to accept the same. The learned Trial Court after recording evidence on the said application found that the averments made by the respondent/wife that the summons was never tendered to her and that she did not refuse to accept the same, appear to be acceptable and, therefore, set aside the ex parte judgment and decree and ordered the trial to proceed bi parte.

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Judgement: The High Court upheld the trial court’s decision to set aside the ex parte decree because the postman who had claimed to have tendered summons to the respondent/wife in present case could not recognise her during the process of cross examination. It would thus be clear that due service of summons on the respondent was not proved. It is, therefore, clear that the Trial Court is justified in holding that the service of summons was never affected on the respondent/wife and that she did not refuse to accept the same. It is, therefore, clear that interference in the impugned order setting aside the ex parte judgment and decree is not called for.

11. ORDER-9- APPEARANCE OF PARTIES AND CONSEQUENCES OF NONAPPEARANCE: PLAINTIFF’S NON-APPEARANCE OR DEFAULTS: ● The suit can be dismissed if the plaintiff does not appear. ● The suit can be dismissed if the plaintiff has not taken steps (non-payment of process fees) for issuance of summons, the suit can be dismissed. In such cases ,the plaintiff can apply for restoration of the suit (provided he can show reasonable cause)/ file a fresh suit (subject to law of limitation). ● Ths suit can be dismissed if ,the plaintiff fails to take out fresh summons within 30 Days of return of earlier summons, unless the plaintiff shows that: He tried his best but still failed -

The defendant is avoiding the service There is sufficient cause behind extending time- like the plaintiff has brought a fresh suit subject to law of limitations

CONSEQUENCES OF NON-APPEARANCE OF THE DEFENDANT ·

If the summons haven’t been served, they are to be re-issued

·

If despite the requiste service, he has not appeared, then-

Case- 1 – He has not appeared because there was inadequate tine after the service of summons- then he is further granted time to appear Case-2- He has not appeared despite the adequate service, then, o he can be set ex-parte. o The defendant has to apply to the court for the order/decree to be set aside, provided he can show sufficient cause(Cost can be added by the court).

· But to set aside the ex-parte decree, the defendant must demonstrate that the summons were not duly served or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing.

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no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim

● Can be done only with notice to the plaintiff: - Where there has been an appeal against a decree passed ex parte, and the appeal has been disposed of an any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree. ● When neither of the parties show up for hearing, the Court may order to dismiss the suit. (A fresh suit may be brought in such cases subject to limitation.) Once the defendant has appeared: ● IF the P does not appear - The suit can be dismissed for default. - Where the defendant admits the claim or part thereof: - the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder. ● In such cases the P is precluded from filing a fresh suit - He needs to apply for setting aside the order of dismissal, - sufficient casue he has to show for non appearance - Costs can be imposed - All this can be done only with the notice to the D. ● Where there are more than one plaintiffs/ defendants and one or more of them appear, and the others do not appear, the suit shall proceed, and the Court shall, at the time of pronouncing judgment, make such order as it thinks fit with respect to the defendants who do not appear. ● “Sufficient cause” - "sufficient" = "adequate" or "enough", in as much as may be necessary to answer the purpose intended. - "sufficient cause" means that party had not acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or "remaining inactive". - Something for which he cannot be blamed.

12. ORDER 10: EXAMINATION OF PARTIES BY THE COURT ● At the first hearing of the suit the Court shall ascertain from each party or his pleader whether he admits or denies such allegations of fact asare made in the plaint or written statement (if any) of the opposite party, and as are not expressly or by necessary implication admitted or denied by the party against whom they are made. The Court shall record such admissions and denials.

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● The court shall with a view to elucidating matters in controversy in the suit examine orally such of the parties to the suit appearing in person or present in Court, as it deems fit; ● The court may orally examine any person, able to answer any material question relating to the suit, by whom any party appearing in person or present in Court or his pleader is accompanied. ● The Court may, if it thinks fit, put in the course of an examination under this rule questions suggested by either party ● The substance of the examination shall be reduced to writing by the Judge, and shall form part of the record. Consequences of not answering or inability to answer: ● Where the pleader or the party refuses or is unable to answer any material question relating to the suit which the Court is of opinion that the party whom he represents ought to answer, and is likely to be able to answer if interrogated in person, the Court maypostpone the hearing of the suit to a future day and direct that such party shall appear in person on such day. ● If such party fails without lawful excuse to appear in person on the day so appointed, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit.

13. ORDER 26 (SECTION 75)- COMMISSIONS Read the Slides. (just 9 slides, some important points are mentioned.) (open the slides and read side by side these notes.) The Court passes commission to get the Court’s work done and that person should be impartial. this person acts as an agent of the Court, Since the court or the judge sitting cannot investigate personally every facts claimed by the parties in the Court and hence the Court needs the help. and hence commission is issued. For example, partitioning a party after the Court’s decision. The commission can be issued suo moto. The general way is that a witness’s statement is taken in open court, but in the situation when a witness is sick, or the witness has a danger to his life. Commission can be issued. For Interrogatories the Commission can be issued, if he lives outside the jurisdiction of the Court, also police, doctors etc. who have essential work at theri duty hence they cannot appear then in this case also the commission can be issued. In the case If a person claims that there is no tenant living on his land, the Court can issue commission to get such claims cross-checked. Commissions issued to make a local investigation; • Issued where the court deems it to be fit tor proper to make a local investigation

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• The commission may be issued for : • for the purpose of elucidating any matter in dispute • ascertaining the market-value of any property • amount of any mesne profits or damages or annual net profits • can be issued to such person as it thinks fit • Local inspections are generally made with notice to the other party, unless otherwise mandated by the court. • After conducting the local investigation, in terms of the commission warrant, “and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him” • His report and his evidence (but not the evidence without the report) shall be part of the record of the case • The commissioner can be examined in court as to the contents of the report and the manner in which he conducted the investigation • 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.

Order XXVI Rule 4-A has been inserted by Amendment Act, 1999. It empowers the court that in order to have a expeditious disposal of a case, the court can issue the commission of any person residing within the local limits of its jurisdiction and evidence so recorded shall be read in evidence. It may be necessary in case of recording of the evidence of a person who is not capable to come to the court.

May be also issued for examining • A person who resides beyond the local limits of jurisdiction of the court • any person who is about to leave such limits before the date on which he is required to be examined in Court • any person in the service of the Government who cannot in the opinion of the Court, attend without detriment to the public service • A witness who is not within India Commission for performing ministerial act

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ministerial act is a government action "performed according to legal authority, established procedures or instructions from a superior, without exercising any individual judgment."[1] It can be any act a functionary or bureaucrat performs in a prescribed manner, without exercising any individual judgment or discretion.[2] Under law, this would be classified under the rubric of public policy. The expressions 'ministerial', 'ministerial office', 'ministerial act', and 'ministerial duty' have been defined by Black's Law Dictionary as under: "Ministerial, Adj. (16c) of our relating to an act that involves obedience to instructions or laws instead of discretion, judgment, or skill the court clerk's ministerial duties include recording judgments on the docket. Execution of any such instructions by an inferior officer sometimes called ministerial officer may also be treated as a ministerial officer may also be treated as a ministerial function. ● ● ● ● ● ● ● ●

the entry of an order of the court by a clerk of the court,[3] notarization (acknowledgement) by a notary public,[4] mechanical processing of an income tax return[5] determining the existence of facts and applying them as required by law, without any discretion[6] issuance of a building permit[7] approval of a subdivision real estate[8] approval of a demolition permit[9] a court's remand for "the correction of language in a judgment or the entry of a judgment in accordance with a mandate"[10]

Actions that are not ministerial would include: ●

a decision about application of a tax law, auditing of an income tax return, determining facts and applying law to those facts, and prioritizing such returns[11]

The act of publishing in the official gazette is a ministerial act. It does not involve any exercise of discretion. It is only a mechanical one to be carried out in the course of day to day administration. The distinction between "judicial" and "ministerial acts" is: If a Judge dealing with a particular matter has to exercise his discretion in arriving at a decision, he is acting judicially; if on the other hand, he is merely required to do a particular act and is precluded from entering into the merits of the matter, he is said to be acting ministerially. (pp. 1013-14). A ministerial act, on the other hand, may be defined to be one which a person performs in a given state of facts, in a prescribed manner, in obedience to the mandate of a legal authority, without regard to, or the exercise of, his own judgment upon the propriety of the act done. In ministerial duty nothing is left to discretion; it is a simple, definite duty."

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MUTATIS MUTANDIS- making necessary alterations while not affecting the main point at issue making necessary alterations while not affecting the main point at issue. (in the slide; All provisions relating to attendance and summoning of witnesses apply mutatis mutandis in the case of an examination of a witness by a commission.) Commission can be issued to courts Situate In A State Other Than The State In Which The Court Of Issue Is Situate And Having Jurisdiction In The Place In Which The Person To Be Examined Reside (s. 76). Under Section 75 purposes for which the commission can be issued is enlisted and this is exhaustive, using Section 151 inherent powers of the Court, the Court cannot use this power to expand the scope of the Section 75. But HCs and SC can extend the ambit of issuing commissions, was held in Bandhuva Mukti Morcha v UoI 1984. ● Powers - issue summon to the parties, witness can be summoned, documents can be called for, ex-parte reports, enter any land or building which is given in the order ● Expenses of the commission (as fixed by the court) is to be paid to court by the party at whose instance/for whose benefit the commission is being taken out (R. 15) • Can be paid directly to the commissioner too! ● The Commission’s function is for assistance of the Court and it is not a judicial body. ● But the value of a property is decided by the Court the Commission can just bring in the dimensions, market value etc. ● Commission’s findings and reports are prima facie evidence, important piece of evidence and criticisms brought by the other party does not affect much the report of the commission. ● Rules 19-22 deal with procedure for Commissions issued at the instance of foreign Tribunals, (Read the provisions and its that the High Court is satisfied.) • It is dealt with by the High Court.

14. ORDER-11-DISCOVERY AND INSPECTION Discovery is the obtaining by one party to an action or suit of information on oath from another party. It can be done in two ways: 1. Serve Interrogatories- In law, interrogatories (also known as requests for further information) are a formal set of written questions propounded by one litigant and required to be answered by an adversary in order to clarify matters of fact and help to determine in advance what facts will be presented at any trial in the case. 2. Discovery of documents relating to the matters in the action and in the possession of the party. Helps/Enables in: -

Admissions from the opponents help to facilitate proof for one’s own case

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Helps in knowing the nature of the opponent’s case, so that he has some prior knowledge of what he is supposed to face in the court room. to secure admissions DISCOVERY BY INTERROGATORIES:

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Either of the parties may put the interrogatories to each other. no party shall deliver more than one set of interrogatories to the same party without an order from the court interrogatories which do not relate to any matters in question in the suit shall be deemed irrelevant, notwithstanding that they might be admissible on the oral crossexamination of a witness. Court while deciding upon the decision to grant leave , shall take into account any offer made by the party sought to be interrogated to deliver particulars , or to make admissions, or produce documents relating to the matters in question or any of them. All such leave shall be given only if the Court considers them necessary for disposing fairly of the suit or saving costs. the questions posed must be very specific. (As this should not be used to fish out information from the opposite party) As a general rule, interrogatories are to be allowed whenever the answer to them will serve either to maintain the case of the party administering them or to destroy the case of the adversary When the party is a corporation and interrogatories are sought against it, “any opposite party may apply for an order allowing him to deliver interrogatories to any member or officer of such corporation or body” Discovery by interrogatories are not allowed to:

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for obtaining discovery of facts which constitute exclusively the evidence of his adversary’s case of title as to any confidential communications between his opponent and his legal advisers. would involve disclosures injurious to public interests. Answer to the interrogatories:

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Answers must be provided by way of an affidavit. It must be answered within 10 days or within such further time as the court may allow. The party answering the interrogatory may take the objection (Objections are also raised by way of an affidavit) on the following grounds : • scandalous or • irrelevant or • not exhibited bona fide for the purpose of the suit, or

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• that the matters inquired into are not sufficiently material at that stage, or • on the ground of privilege or • may take any other ground. -

Any application for setting aside or striking out interrogatories may be made within seven days after service of the interrogatories. When any person interrogated omits to answer or answers insufficiently, the party interrogating may obtain orders from the court requiring him to answer further either by way of an affidavit or by way of viva examination. DISCOVERY OF DOCUMENTS:

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A party may apply to the court or an order directing any other party to any suit to make discovery on oath of the documents which are or have been in his possession or power, for any matter relating to the suit. After hearing the such application the Court may decide to to the following things: -either refuse or adjourn the same, if satisfied that such discovery is not necessary or -make such order, either generally or limited to certain classes of documents, as may, in its discretion be thought fit

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The order is refused when it is not necessary either for the disposing fairly of the suit or for savings cost. The court can, at any stage, order a party to produce a document in his possession or power, relating to any matter in question in the suit/. (Response must be in an affidavit) INSPECTION OF DOCUMENTS:

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Any document that is referred to in the pleadings or produced with the pleadings can be inspected by the other party. - A notice may be served in that purpose- Within ten days of receipt of notice, the applicant must be informed of a time for inspection of the documents, within 3 days of delivery of the reply. - Must be allowed to inspect the documents in the office of the pleader, or “n the cas of bankers books or other books of account or books in constant use for the purposes of any trade or business,” – at the usual place of their custody - If he has objections, the objections must be stated in the reply. - In circumstances where the notice is not complied with the guidelines of the court, the court may order for permitting inspection or order verified copes to be given - Copies of the document can be taken by the other party If the notice is not complied with, he is prevented from putting such document in evidence

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Unless he can demonstrate to the court that there was sufficient cause which prevented him from complying with the notice; or that such documents relates only to his own title, he being a defendant to the suit.

CONSEQUENCES OF NOT COMPLYING WITH THE ORDERS -

Where any party fails to comply with any order to answer interrogatories or for the discovery or inspection of documents, - When it is the Plaintiff :the suit can be dismissed for the want of prosecution: - A fresh suit for the same cause is barred. - When it is the defendant: his defence can be struck off

15. ORDER- 12-ADMISSIONS: - Admissions can be sought for: Any party to a suit may give notice, by his pleading, or otherwise in writing, that he admits the truth of the whole or any part of the case of any other party. • A party may give notice to the other for • Admitting Documents - If not denied, it is deemed as admission - Unreasonably not admitting a document can invite an order of costs - Court may nevertheless, in its discretion require a document to be proved • Admitting facts (Form 10, Appendix C) -

refusal or neglect to admit the same within six days after service of such notice, or within such further time as may be allowed by the Court, the costs of proving such fact or facts shall be paid by the party so neglecting or refusing - Any admission made here is limited that suit in which it is made - Parties are permitted to withdraw the admission • A judgment can be passed based on the admission

16. ORDER 38,39 (SECTION 94 AND 151)- TEMPORARY INJUNCTIONS AND INTERLOCUTORY ORDERS When can it be granted? -

When the property in a suit is in danger of being, wasted damaged or alienated in a execution of a decree. the defendant threatens, or intends, to remove or dispose of his property with a view to defrauding his creditors,

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defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit Plaints + Prayer for interlocutory order (2) + Affidavits (facts) (3) Notice must be given for (2) and (3) to the other party who can file a counter affidavit disputing the plaintiff’s cause for interim order. (Again time consuming) Ad interim injunction → Interim interim injunction Injunction→ granted right away for a limited period of time Courts usually hear parties for interlocutory orders first. Ad interim injunctions (which is a kind of interlocutory orders) operates when it is served on defendant and not from when order is passed → has to be served within 24 hours. This is done to pressurise the plaintiff so that he ensures that summons are filed etc.

Law of Injunction→ Specific Relief Act Section 37 → granting of injunction, procedure etc regulated by CPC A perpetual injunction can only be granted by the decree made at the hearing and upon the merits 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 rights of the plaintiff. S.41, SR Act, 1963 Injunctions cannot be granted for the following acts: a) to restrain someone from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless the restraint is sought to prevent multiplicity of proceedings. b) to restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought; c) to restrain any person from applying to any legislative body; d) to restrain any person from instituting or prosecuting any proceeding in a criminal matter; e) to prevent the breach of a contract the performance of which would not be specifically enforced; f) to prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance; g) to prevent a continuing breach in which the plaintiff has acquiesced; h) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust; i) when the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the court; j) when the plaintiff has no personal interest in the matter. Purpose of Temporary Injunctions: To ensure that:

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the rights of the parties to the litigation are preserved; decree that may be passed is an executable decree. The framework

• Section 94: Creates the Power to Grant TIs • Order 38 : Arrest and Attachment before Judgment • Order 39: Preservation of Property, Sale of Properties as an interim measure, arresting the breach of contracts • ORDER 40 : Appointment of Receivers • Section 151 (inherent powers of the court) : Used along with other provisions to deal with situations not explicitly covered in the aforesaid provisions

Section 94 of the Code • In order to prevent the ends of justice from being, defeated the Court may, if it is so prescribed: (a) issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not give security for his appearance, and if he fails to comply with any order for security commit him to the civil prison; (b) direct the defendant to furnish security to produce any property belonging to him and to place the same at the disposal of the Court or order the attachment of any property; (c) grant a temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold; (d) appoint a receiver of any property and enforce the performance of his duties by attaching and selling his property; (e) make such other interlocutory orders as may appear to the Court to be just and convenient.

Temporary Injunction in cases of immovable properties: • any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in a execution of a decree, or • the defendant threatens, or intends, to remove or dispose of his property with a view to defrauding his creditors, • defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit • the Court may be order grant a temporary injunction to restrain such act, or • make such other order as the court thinks fit for the purpose of staying and preventing • the wasting, damaging, alienation, sale, removal or disposition of the property

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• or dispossession of the plaintiff or otherwise causing him injury in relation to the property in dispute • They are effective until the disposal of the suit or until further orders • They can be varied at any time on the application of a party (R4) • Where it was given after hearing the other party, it is not to be varied or set aside on the application of that party, unless necessitated by a change in the circumstances, or unless the Court is satisfied that the order has caused undue hardship to that party (R4)

Grant of temporary injunction in cases of movable properties: • Movables that are subject to natural and speedy decay, or which for any other just and sufficient cause it may be desirable to have sold at once ,can be ordered to be sold off. Terms and conditions can be imposed while doing so (R.6) • On such terms and conditions that the court considers to be fit, the court can order For detention preservation or inspection of any property which is the subject-matter of such suit or, as to which any question may arise therein; for this purpose, the court can authorize a person to • Enter any building or premises; and • Take samples This is to be ordinarily done with notice to the other party, unless this can defeat the objectives of the order (R. 8 (2) • IF the property in question is attached and sold of for non-payment of government dues, the party who has interest in this property can pay those dues and he shall be immediately put in possession of that property. • Adjustments are made at the time of decreeing the suit • Where the subject-matter of a suit is money or some other thing capable of delivery and any party thereto admits that he holds such money or other thing as a trustee for another party, or that it belongs or is due to another party, the Court may order the same to be deposited in Court or delivered to such last-named party, with or without security, subject to the further direction of the Court. Grant of temporary injunction in cases of contracts Condition : In any suit for restraining the defendant from committing breach contract or other injury of any kind, whether or not any compensation is claimed What can be asked for : The P may at any time after commencement of suit (either before or after judgment) apply to the court for • a temporary injunction to • restrain the defendant from committing the breach of contract or injury complained, of, or • any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right.

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The Court may order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as the Court thinks fit Conditions for granting an ad interim injunction (R3) • except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, the other party is to be given notice of the motion for injunction • Where an injunction is granted ad interim : • Reasons are to be recorded for the same • Immediately send him or deliver to him a copy of the motion for injunction along with copies of affidavits, the plaint and other documents relied on by the plaintiff • the applicant needs to file an affidavit that the above has been complied with • The Application for injunction to be finally disposed of within 30 days • Can be vacated if the applicant had made false or misleading statements and it was granted without notice to the other party • Unless the court is of the opinion that it is not necessary to do so in the interests of justice An injunction directed to a corporation is binding not only on the corporation itself, but also on all members and officers of the corporation whose personal action it seeks to restrain. (R5) Consequences of disobedience • Attachment of property • this does not remain in force for more than a year. • If the breach continues, the property may be sold off. • Out of the proceeds a compensation can be paid to the plaintiff and the balance (if any) is paid to the party who is entitled to it • Detention in civil prison (not for more than three months)

Court can rely on inherent powers of the court (S.151) to grant an injunction for situations not covered by O.39 Conditions for grant of temporary injunctions • Prima facie case • There is a serious disputed question to be tried in the court and that an act, on the facts before the court, there is probability of his being entitled to the relief asked for by the plaintiff/defendant. It means that the contentions that he is raising require consideration in merit and are not to be rejected summarily

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• prima facie case means that there is a substantial question raised, bona fide, which needs investigation and a decision on merits • Balance of convenience • That the comparative hardship on mischief or inconvenience which is likely to occur from withholding the injunction will be greater than that would be likely to acted from granting it • The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that it is likely to be caused to the other side if the injunction is granted. • Irreparable injury or loss to the party demanding it • The Court's interference is necessary to protect the party from the species of injury. In other words irreparable injury or danger would ensue before the legal right would be established at trial • Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. Observations • This is an equitable remedy • Bona fides, coming to the court with clean hands, laches etc. are material considerations • You can file multiple applications for TIs • There are many injuries incapable of being repaired but a court of equity does not regard them as 'irreparable'. • Ex: cause which outrage the feeling or loss of things of sentimental value. • On the other hand there are injuries which in their nature may be repaired but still treated as irreparable. • Ex: a person who is inflicting or threatening them is insolvent or unable to pay damages. • An injury is irreparable where it is continuous and repeated or where it is remediable at law only by a multiplicity of suits. • Sometime the term irreparable damage refers to the difficulty of measuring the amount of damages inflicted. However, a mere difficulty in proving injury does not establish irreparable injury. Does res judicata apply to interlocutory orders? • Interlocutory orders are of different kinds. Some maintain the status quo pending the litigation. They do not decide the merits of the issues in the suit. Some orders are certainly capable of being altered or varied by subsequent applications for the same relief, though normally only on proof of new facts or new situations which subsequently emerge. As they do not impinge upon the legal rights of parties, the principle of res judicata does not apply.

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The other category of interlocutory order consists of those designed to ensure the just, smooth, orderly, and expeditious disposal of the suit. They are interlocutory in the sense that they do not decide any matter in issue in the suit. Here too, res judicata will not apply, but the court would reject a subsequent application based on the same facts on the same grounds on which the original application was refused. • Arjun Singh v Mohindra Kumar AIR 1964 SC 996, para 13

A. INJUNCTION WITH RESPECT TO ENVIRONMENTAL MATTERS These matters are rarely litigated. In the 1970s, a number of injunctions were refused due to insufficient evidence. → Correlation ≠ Causation (no cause-effect relationship was proved in such cases) Stockholm Declaration → Precautionary principle was laid down and it was accepted that scientific uncertainty should not be used as an excuse in environmental cases → Supreme Court adopted the principle. Based on risk assessment, effect on economy etc., varies within societies. 1. MANOHAR LAL CHOPRA VS. RAI BAHADUR, AIR 1962 SC 527 M filed a suit at Asansol against H for the recovery of money. Later H files a counter suit at Indore against M for the recovery of money. In the Asansol suit, H raised the defence that Asansol court had no jurisdiction to entertain the suit and applied to the court to stay the suit. But the asansol court refused the prayer. H filed an appeal against the order of Asansol HC at Calcutta High Court, which was also dismissed with the direction that the preliminary issue of jurisdiction should be disposed of by the trial court immediately. Then H applied at Indore Court for an injunction to restrain M from proceeding with the Asansol suit. The Indore High Court acting under order 39 granted the injuction. M appealed against this Injunction to the Madhya Pradesh(Bharat) high court to declare that the injunction to be dismissed. The High Court dismissed the appeal holding that though order 39 was not applicable to the case, the order of the injuction can be made under the inherent powers of the court under S. 151 CPC. Supreme Court Held: That the Order of injuction was wrongly granted and should be vacated. Rationale: Wanchoo, Das Gupta and Dayal JJ.-

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-

The Civil courts had inherent power to issue temporary injunctions in cases which were not covered by the provisions of O. 39 Civil Procedure Code. The provisions of the Code were not exhaustive. - Meaning that there was no absoluely no prohibition under Section 94 against the grant of injuction under those circumstances not covered under Order 39. - But the inherent powers granted under Section 151 are not to be utlisised when they are in conflict with the express provisions of the code or against the intention of the legislature. - The power those are granted under Section 151 have to be utilized in very exceptional circumstances. - A plaintiff of a suit in another jurisdiction could only be restrained from proceeding with his suit if the suit was vexatious and useless. It was not so in the present case. It was proper that the issue as to jurisdiction should be decided by the Asansol court as directed by the Calcutta High Court. The Indore court could not decide this issue. Beside, it was open to the Asansol court to ignore the order of the Indore court and to proceed with the suit. This would place M in an impossible position. An order of a court should not lead to such a result. J. Shah: -

The Civil Courts do not have inherent jurisdiction to issue injunctions in the cases not covered by Order 39, R 1 and 2 of the CPC. The power of the civil courts other than the Chartered High Courts to issue injunctions must be found within the terms of Section 94 and Order 39, R 1 and 2. Where an express provision exists to deal with a particular situation, any deviation from the same is not permissible. Where the Code deals expressly with a particular matter the provision for the same must be regarded as exhaustive. 2. DHANESHWAR NATH TEWARI VS GHANSHYAM DHAR MISRA

P files suit as a pauper (leave to sue yet to be granted) and sought for an injunction pending grant of leave. Order 39 requires that a suit be in existence before granting of an injunction under that order & the pauper suit comes onto existence only after the leave is granted. Can a TI be granted? • Yes it can – by relying on S.151 of the Code he Courts have therefore in many cases, where the circumstances require it, to proceed upon the assumption of the possession of inherent power to act ex debito justitia and to do that real and substantial justice for the administration of which alone they exist. It is obvious that the law cannot make express provisions against all contingencies, and it has therefore been held that it is the duty of the Court to apply the provisions of the law not only to what appears to be regulated by them expressly but to all the cases to which a just application of them may be made and which appear to be comprehended either within the express sense of the law or within the consequences that may be gathered from it. 3. BUDDHA FILMS PVT. LTD. VS PRASAR BHARATI AIR 2001 DELHI 488, 92 (2001) DLT 224

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Facts: Appellant had entered into an agreement with Prasar Bharati to get an exclusive air time for cricket matches to be held over a period of 5-6 years. The appellants were expected to pay Rs. 450 crore as minimum assured revenue to Prasar Bharati for the same. Subsequently, DD Sports was made an encrypted channel by Prasar Bharati while earlier it used to be a free on air channel. After the channel has become encrypted/pay channel, apprehension of the appellant is that the viewership would be affected thereby and in turn it would have adverse effect on the sale of air time to prospective advertisers which will reduce the revenue/income of the appellant. The decision of Prasar Bharati to make DD Sports an encrypted channel limited its viewership only to those viewers who have access to satellite or cable connection. Appellant argued that the terms of agreement provided for a free on air channel and the defendant have contravened the terms of agreement. Respondents, while rebutting the allegations of Appellant said that the terms of contract only had a mention about the fact that DD Sports is a free on air channel and it didn’t impose any restriction of Prasar Bharati to not make it an encrypted channel if it wishes to do so. The learned Counsel also referred to documents showing that there were complaints of red action in viewership after DD Sports Channel had become encrypted channel. No doubt, according to him, the viewership was increasing steadily as it has increased for 6 to 10 millions and then 12 to 13 million over a period of time, it was still much less than 70 millions the figure projected in the tender enquiry. It was submitted that the principle of Estoppel by representation applied and Prasar Bharati was estopped from converting the channel into encrypted channel. There were complaints about the quality of picture as compared to other Sports Channels and the steps taken by Prasar Bharati were in right direction and in public interest and for the benefit of public. The transmission was sought to be brought to international quality which all the sport channels have. The appellant approached the court to pass an order against the Prasar Bharati to make DD Sports a free on air channel till the time, the damage which has been suffered by appellants is accessed by a separate arbitration tribunal. Issue: Should the court pass an interim order against Prasar Bharati when the balance of convenience will go against it? Judgement: When all other Sports Channels are pay channels it is not prudent to direct Prasar Bharati to revert back to free to air channel, that too by way of interim measure and pending arbitration which would ultimately decide the respective rights of the parties under the contract. The court took notice of the fact that any decision by the court ordering Prasar Bharati to revert back to free on air mode of broadcasting of DD Sports will harm the contractual relations of Prasar Bharati with multiple national and international agencies and Prasar Bharati will have to face multiple suits filed against it for breach of various contracts. The court also recorded in its judgement that Prasar Bharati had all rights to improve its broadcasting quality by switching to digital modes of broadcasting which was done to put it at par with other competing channels. Thus directing the Prasar Bharati to revert back to free to air channel will lead to more complications, chaos, unforeseen hardships and other difficulties including claims from various authorities on Prasar Bharati plus multiplicity of litigation. On the other hand if the channel is allowed to continue as encrypted channel and the appellant ultimately succeeds in the arbitration, the Arbitral Tribunal can suitable compensate the appellant. Considerations

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regarding balance of convenience and irreparable loss and injury persuade us not to pass nay order for interim relief. In the facts of the case we are confident that the Arbitral Tribunal will be able to ultimately do complete justice. At this stage no interim directions are called for.

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4.CHITRA SENGUPTA VS DHRUBA JYOTI SENGUPTA Issue: Can the court issue a temporary injunction even if Order 39 doesn’t provide for it? But there should also be no doubt, particularly after the decision of the Supreme Court in Manohar Lal v. Seth Hiralal, , that even in a case not covered by the provisions of Order 39 of the Code, a Court can issue temporary injunction in the interest of justice in exercise of its inherent power if a proper case is made out therefore. Wife filed an appeal against a decree of divorce obtained against her by her husband, has filed this application for maintenance pendente lite and cost of litigation under Section 24, Hindu Marriage Act. She also filed for TI restraining him from marrying again during the pendency of the appeal. Although it cannot be granted under O.39(1) which is for property is suit or other property which the other party may dispose of. O.39(2) will also not apply because that is for restraining commission of breach of contract or any such injury of such kind. However, the court can use its inherent powers in the interest of justice if a case is not covered by O.39. The husband argued that because the second marriage will be void if the wife’s appeal succeeds there was no need to restrain him from doing so at this point of time. The court said that even though the marriage will be void it would have caused great mental agony and much social ignominy to the wife. Any issue born out of such marriage would, however, be legitimate under Section 16, Hindu Marriage Act with full right to inherit the husband's properties. We are inclined to think that the mental agony, the social ignominy and the legal wrangle and complication which such marriage would cause to the wife, in case her appeal succeeds, are sufficient to make out a case for an interlocutory injunction restraining such marriage during the pendency of the appeal. 5.DALPAT KUMAR AND ANOTHER VS PRAHLAD SINGH AND OTHERS ● the first appellant claimed to have entered into an agreement to purchase the residential house situated in Jaipur for a consideration. He laid the suit for specific performance and the suit was decreed ex parte. ● the sale deed was executed through court. ● the respondent's wife sought for temporary injunction from dispossession. ● the Trial Court rejected the application for ad interim injunction which was confirmed, on appeal, by the High Court. ● The first appellant filed Execution Application No. 6/85 in which the respondent filed five unsuccessful objections. ● The third round of litigation was started at the behest of his sons claiming to be the joint family property and for a declaration that the sale does not bind them and they sought for partition. ● They also sought for ad interim injunction which was rejected.

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● The 4th round of litigation was started by the respondent in filing the present suit that his counsel played fraud on him. He also sought for an interim injunction from dispossession. ● In the meanwhile a part of the property, namely, shops were obtained as symbolical possession by the first appellant. ● The High Court allowed the applications and granted ad interim injunction restraining the appellants from taking possession of the residential portion. ● Order 39, Rule l(c) provides that temporary injunction may be granted where, in any suit, it is proved by the affidavit or otherwise, that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the court may by order grant a temporary injunction to restrain such act or make such other order for the purpose of staying and preventing...or dispossession of the plaintiff or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the court thinks fit until the disposal of the suit or until further orders. ● No express power except the inherent power under Section 151, C.P.C. to grant ad interim injunction against dispossession. ● Injunction is a judicial process by which a party is required to do or to refrain from doing any particular act. It is in the nature of preventive relief to a litigant to prevent future possible injury. In other words, the court in exercise of the power of granting ad interim injunction is to preserve the subject matter of the suit in the status quo for the time being. It is settled law that the grant of injunction is a discretionary relief. ● The exercise thereof is subject to the court satisfying that (1) there is a serious disputed question to be tried in the suit and that an act, on the facts before the court, there is probability of his being entitled to the relief asked for by the plaintiff/defendant; (2) the court's interference is necessary to protect the party from the species of injury. In other words, irreparable injury or damage would ensue before the legal right would be established at trial; and (3) that the comparative hardship or mischief or inconvenience which is likely to occur from withholding the injunction will be greater than that would be likely to arise from granting it. ● the burden is on the plaintiff by evidence aliunde by affidavit or otherwise that there is "a prima facie case" in his favour which needs adjudication at the trial. ● The existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established, on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. ● The Court further has to satisfy that non-interference by the Court would result in "irreparable injury" to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. ● Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages.

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● The third condition also is that "the balance of convenience" The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that it is likely to be caused to the other side if the injunction is granted. ● In a suit seeking to set aside the decree, the subject-matter in the earlier suit, though became final, the Court would in an appropriate case grant ad interim injunction when the party seeks to set aside the decree on the ground of fraud pleaded in the suit or for want of jurisdiction in the Court which passed the decree. ● The phrases "prima facie case"; "balance of convenience" and "irreparable loss" are not rhetoric phrases for incantation, but words of width and elasticity, to meet myriad situations presented by man's ingenuity in given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of justice. ● 6. M/S GUJARAT BOTTLING CO.LTD. & ORS VS THE COCA COLA CO. & ORS, 1995 (5) SCC 545 Facts The appellant company is a company incorporated under the Companies Act and whose share capital is divided between Ahmedabad Advertising and Marketing Corporation (21%) and Mr Pinakin K Shah (79%). The company has bottling plants in Rajkot and and Ahmedabad. The respondent company is a multinational company, who is engaged in the production of aerated drinks. The respondent company was present in India till 1977, after which it was asked to leave, as per the changed policy of the government. The market for aerated drinks was taken up be a local businessman (Parle Group) and produced drinks such as Golds Spot, Thums Up, Limca, Maaza etc ..... On returning to the country, the respondent company bought the rights to these products and was the holders of the trademarks in this regard. In 1993 the respondent and the appellant entered into an agreement, where the former would give to the latter rights to prepare, bottle, sell and distribute their products: Golds Spot, Thums Up, Limca, Maaza and Rim Zim. Citra was excluded due to litigation in that regard. The agreement was to last till 1998 and could be terminated with one years notice by one parties, or earlier by mutual consent. Furthermore as per paragraph 14 of the agreement, a negative covenant existed where GBC was not entitled to “manufacture, bottle sell, deal or otherwise be concerned with the products beverages or any trade marks during the subsistence of the agreement and the one year period. Furthermore under paragraph 19 Coca Cola could discontinue the supply of syrup and ingredients if there was breach of the 14 clause. In 1994 the respondent and appellant entered into another agreement where Coca Cola granted to GBC a non exclusive license to use the trademarks mentioned for “Thums up, Gold Spot, Limca, Maaza, Citra”. Under the terms of the agreement, both parties were to

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make application under the Trade and Merchandise Act, 1958 to procure the registration of the licensee (GBC) . As per this agreement, there was no limit later than which the agreement would not be effectual and the time for informing of the dissolution of the contract was reduced to 3 months notice. The contracts were properly concluded and the parties were properly performing. However after the execution of these agreements, there was a requirement of an up gradation of the plants of GBC at Rajkot and Ahmedabad. There was certain requirement of investment into crates bottles and other infrastructure, which Coke asked GBC to undertake. However GBC refused to do so out of its own pocket and asked if a certain stake could be sold and out of the money generated the investment could be made. Coca Cola consented to this arrangement, under the conditions that the persons who is so buying the stock must be approved by coke and further GBC must not lose control in the Company. Through the sale of stock in GBC, Pepsi took over the company and under clause 7 of the 1994 agreement terminated the contract it was also their allegation that the 1993 agreement stood replaced by the 1994 agreement, hence the period of termination stood at 3 months. Coke sought GBC to be refrained from dealing with the beverages of Pepsi for the period of 1 yr. of termination notice. Issue: Should the court grant temporary injunction in the present case? Judgement: Having regard to the negative covenant contained in paragraph 14 of the 1993 Agreement which is subsisting, Coca Cola has made out a prima facie case for grant of an injunction. As a result of the interim injunction granted by the High Court the two plants of GBC cannot be used for manufacture of Pepsi products till January 25, 1996 and the effort of Pepsi to gain an advantage over Coca Cola by reducing the availability of products of Coca Cola and increasing the availability of Pepsi products in the areas covered by the 1993 Agreement has been frustrated to a certain extent inasmuch as the increase in the availability of Pepsi products has been prevented. In the absence of such an order Pepsi would have been free to use the plants of GBC at Ahmedabad and Rajkot for the manufacture of their products. This would have resulted in reduction of the share of Coca Cola in the Beverages market and the resultant loss in goodwill and profits could not be adequately compensated by damages. In so far as loss that may be caused to GBC as a result of grant of interim injunction, we are of the view that the loss that may be sustained by GBC can be assessed and GBC can be compensated by award of damages which can be recovered from coca Cola in view of the undertaking that Coca Cola is required to give under Rule 148 of the Bombay High Court (Original Side) Rules, 1980. It has not been suggested that Coca Cola do not have the financial capacity to pay the amount that is found payable. The interim injunction granted by the High Courthas been assailed by the appellants on the ground that as a result of refusal by Coca Cola to continue with the supply of essence/syrup and/or materials the bottling plants of GBC at Ahmedabad and Rajkot would remain idle and a large number of workmen who were employed in the said plants would be rendered unemployed. We cannot lose sight of the fact that this complaint is being made by Pepsi through the mouth of the appellants. it is difficult to appreciate how Pepsi can ask coca Cola to Part with its trade secrets to its business rival by supplying the essence.syrup etc. for which Coca Cola holds the trade marks to GBC which

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is under effective control of Pepsi. Pepsi took a deliberate decision to take over GBCX with the full knowledge of the terms of the 1993 Agreement. It did so with a view to paralyse the operations of Coca Cola in that region and promote its products . GBC, who was a party to the 1993 Agreement, has not acted in conformity with the terms set out in the said agreement. It was itself, Prima facie, responsible for the breach of the agreement, as would be evident from the facts set out earlier. Neither the consent of Coca Cola was obtained for transfer of shares of GBC not Coca Cola informed of the names of persons to whom the shares were proposed to be transferred. Coca Cola, therefore, had the right to terminate the agreement but it did not do so. On the contrary, GBC itself issued the notice for terminating the agreements by giving three months notice. It is contended by Shri Nariman and, in our opinion, rightly, that the GBC, having itself acted in violation of the terms of agreement and having breached the contract, cannot legally claim that the order or injunction be vacated particularly as th GBC itself is primarily responsible for having brought about the state of things complained of by it. Since GBC has acted in an unfair and inequitable manner in its dealings with Coca Cola, there was hardly and any occasion to vacant the injunction order and the order passed by the Bombay High Court cannot be interfered with not even on the ground of closure of factory, as the party responsible, prima facie, for breach of contract cannot be permitted to raise this grievance. The grant of an interlocutory injunction during the pendency of legal proceedings is a matter requiring the exercise of discretion of the court. While exercising the discretion the court. While exercising the discretion the court applies the following tests (i) whether the plaintiff has a prima facie case; (ii) whether the balance of convenience is in favour of the plaintiff; and (iii) whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed. The decision whether or not to grant an interlocutory injunction has to be taken at a time when the existence of the legal right assailed by the plaintiff and its alleged violation are both contested and uncertain and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. Relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection has, however, to be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The court must weigh one need against another and determine where the 'balance of convenience' lies. In order to protect the defendant while granting an interlocutory injunction in his favour the Court can require the plaintiff to furnish an undertaking so that the defendant can be adequately compensated if the uncertainty were resolved in his favour at the trial.

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Under order 39 of the Code of Civil Procedure, jurisdiction of the Court to interfere with an order of interlocutory or temporary injunction is purely equitable and, therefore, the Court, on being approached, will, apart from other considerations, also look to the conduct of the party invoking the jurisdiction of the Court, and may refuse to interfere unless his conduct was free from blame. Since the relief is sholly equitable in nature, the party invoking the jurisdiction of the court has to show that he himself was not at fault and that he himself was not responsible for bringing about the state of things complained of and that he was not unfair or inequitable in his dealings with the party against whom he was seeking relief. His conduct should be fair and honest. These considerations will arise not only in respect of the person who seeks an order of injunction under order 39 Rule 1 or Rule 2 of the Code of Civil Procedure, but also in respect of the party approaching the Court for vacating the ad-interim or temporary injunction order already granted in the pending suit or proceedings.

7. PRAKASH SINGH V/S STATE OF HARYANA 2002 (4) CIVIL L.J. 71 (P.H.) Facts: There was a dispute between the civic authorities and the plaintiff (who has approached the court to pass an interim relief in his favour) over title of a house in which the plaintiff claims to have been living for past 30 years since a large scale settlement process done by the state government after construction of a dam. Although there were no government record to suggest that the Plaintiff had ownership over the property, all the lower courts had observed in their judgement that the Plaintiff was right while contending that he was living the house for quite some time as he had a regular electricity connection and he used to pay certain taxes on regular basis as well. The counsel for defendants had argued that the plaintiff is a trespasser and he has no right over the property and hence no interim injunction can be issued in favour of him. Issue: Determination of prima facie case Judgement: Prima facie case means that he has a case which is not liable to be thrown at the out-set but which requires to be given consideration. Prima facie case does not mean that the plaintiff should have a cent percent case which will in all probability succeed at the trial, prima facie case means that the contentions which the plaintiff is raising merit consideration and are not liable to be rejected summarily. Balance of convenience is also in favour of the plaintiff. Plaintiff is in possession. If he remains in possession for some time more on the strength of the grant of injunction, heavens are not going to fail. Plaintiff will suffer irreparable loss, if he is thrown out of possession now inasmuch as he will be on the road. 8. VIRMANI, ROY & KUTTY V ANSAL PROPERTIES AND INDUSTRIES LTD AIR 2003 DEL 158 Facts: The plaintiff, a registered partnership firm approached the court to seek injunction against construction of cellular network towers on the roof of a property which was owned by D1 in this case on grounds that the radiation produced by cellular network towers is very harmful to health and the construction is obstructing functioning of their office as well. Judgement: The court in this case refused to issue any injunction against D1 and D2 till the time of disposal of the suit as requested by the appellant because the appellant had failed to

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make a prima facie case as the new structure which was being raised by the D1 was at a distance from Plaintiff’s office and there is no consensus among various as to whether the radiation emitted by the towers is harmful to human health or not. 9. LARK LABORATORIES (INDIA) LTD V MEDICO INTERPHARMA LTD AIR 2002 GUJ 368 Facts: Dispute over trademark of a medicine Judgement: It is also well settled principles of law that injunction can be granted only if three important material ingredients are satisfied by the plaintiff at a time. It is not sufficient that if only one ingredient is satisfied, other two ingredients are presumed to have been satisfied by the plaintiff automatically. Under the circumstances, the impugned order is contrary to settled principles of law relating to grant or refusal of interim injunction, and therefore, this is a fit case in which the appellate Court should interfere with the impugned order. In view of the above, the impugned order suffers from serious infirmity because of the lapses committed by the learned Judge of the trial Court. Had he discussed material on record to come to a conclusion with regard to balance of convenience, the decision of this Court would be otherwise. Similarly, the learned Judge of the trial Court has completely failed to discuss the material on record for coming to a conclusion on the point of irreparable injury. Because of the lapses committed by the learned Judge of the trial Court, the impugned order is found to be contrary to well settled principles of law regulating to grant or refusal of interlocutory injunction. This Court is of the view that the party should not suffer for lapse committed by the learned Judge of the trial Court, and therefore, to do a complete justice, impugned order is required to be set aside and application Ex. 6 is required to be remanded for hearing afresh by the learned Judge of the trial Court.

17. ARREST AND ATTACHMENT BEFORE JUDGEMENT (ORDER 38). In order to prevent any attempt by the defendant to defeat the execution of decree and to enable the plaintiff to realise a decree in the event of the decree being passed in his favour, the Code provides for the arrest of a defendant or the attachment of his property, in certain circumstances before the delivery of the judgement. The power to arrest the defendant or attachment of his property is an extraordinary remedy, and must be exercised sparingly and with utmost care. Purposes • Powers to secure the presence of a person & • Powers to ensure that there are assets against which the P can proceed against the execute the decree

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Rules 1-4 deal with the arrest before judgement and Rules 5-12 deal with Attachment before judgement. To secure presence of a person: When to use and conditions When the D has : (1) with the intention to delay the suit or (2) to avoid the process of the court + (3.a) has/is about to abscond from the local limits of the jurisdiction of the court ; or (3.b) has disposed of/ removed his property (or a part of it) from local limits of jurisdiction of the court

That the D is about to leave India under circumstances affording reasonable probability that the plaintiff may thereby be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit. “An application to arrest may be made by the plaintiff at any time after the plaint is presented, even before the service of summons is effected on the defendant.” No arrest before the judgement is allowed in a suit for land or immovable property. Arrest made for security, procedure on application by security to be discharged, procedure where defendant fails to furnish security or find fresh security, under O.38, R 2,3, or 6 are appealable under O. 43 R.1(q). ATTACHMENT BEFORE JUDGEMENT The affidavit filed in the support of the contention should not be vague and should clearly establish that the defendant, with an intent to obstruct or delay the execution of the decree that may be passed against him is about to dispose of the whole or any part of his property. In order to secure the attachment of property before judgement in a money suit, it is not necessary to consider whether the suit property is the subject-matter of suit and that it is within or beyond the jurisdiction of the Court.

18. PROCEDURES FOR CHALLENGING ORDERS, DECREES ETC. There are two kind of appeals: a) Appeals against decrees/judgments; (Ss. 96 & S.100) and b) Appeal against order (S.104). There is no natural right to appeal. It is a purely statutory right. However, if there is a statutory provision, first appeal is usually considered to be a substantive right. Against every decree, one can automatically file first appeal, every point of law and fact can be agitated and even new evidence can be produced. For second appeal, there must be a substantial question of law , → Pecuniary unit specified. Therefore, 2nd appeal is not automatic, not a matter of

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routine. The court of 2nd appeal is always the High Court while the 1st appellate court depends on subject-matter. Full court fees to be paid at each stage of trial. Appeal against order: can be filed only against orders listed out in Section 104 + Order 43. However, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal. If an order was appealable and a party failed to do so, he is subsequently precluded from challenging its correctness. The court which has jurisdiction to hear the appeals from decrees hears the appeals against the orders. Procedure Decree of lower court → Appeal Memorandum + Condonation of delay (if required in any case) → Summons to respondents APPEALS AGAINST DECREES & JUDGMENTS • IF the decree in the preliminary decree is not challenged, there cannot be any challenge of the same in the appeal from the final decree • No decree is to be reversed, substantially varied or remanded on account of any misjoinder or non-joinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court: 1. S. 100 : SECOND APPEAL (R/W O. 41 & O.42) • an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. • the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. • The high court must formulate the substantial question of law • the appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not Involve such question : • S. 100A: where any appeal from an appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment, decision or order or such single Judge in such appeal or from any decree passed in such appeal. • No second appeal shall. lie in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed three thousand rupees In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal, (a) which has not been determined by the lower Appellate Court or both by the Court of first instance and the lower Appellate Court, or (b) Which has been wrongly determined by such Court or Courts by reason of a decision on such question of law as is referred to in section 100.]

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PROCEDURE IN APPEALS

• O. 41 lays down the procedure for : • How to file the appeal • The petitions for condonation of delay in filing the appeal • Grounds that may be taken in appeal and effect of not taking a ground • Amendment of appeal memorandums • Procedure of the appellate forum etc. • An appeal can be dismissed in limine • The power of the appellete court to stay the operation of the decree/ proceedings/ execution (O.41 R. 5) • Mere filing of the appeal does not operate as a stay • he Appellate Court may for sufficient cause order stay of execution of such decree. • The order of stay is effective from the date of communication of such order to the Court of first instance • No order for stay of execution shall be made unless the Court making it is satisfied• (a) that substantial loss may result to the party applying for stay of execution unless the order is made; • (b) that the application has been made without unreasonable delay; and • (c) that security has been given by the applicant far the due performance of such decree or order as may ultimately be binding upon him. • The Court may make an ex parte order for stay of execution pending the hearing of the application. • O.41 R. 22 • In the appeal respondent may object to decree as if he had preferred a separate appeal • that the finding against him in the Court below in respect of any issue ought to have been in his favour • May take cross objections (within one month) 2. SCOPE OF POWERS OF THE APPELLATE COURT (S. 107) 1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power (a) to determine a case finally; (r/w O. 41 R. 24)

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(b) to remand a case; (R/w O. 41 Rules 23-26) (c) to frame issues and refer them for trial; (r/w O. 41 R.5) (d) to take additional evidence or to require such evidence to be taken. (O. 41 R.27) (2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein. 3. REVIEW [S. 114 R/W O.47 R.1] • any person considering himself aggrieved (a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred. (b) by a decree or order from which no appeal is allowed by this Court, or (c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit. A party who is not appealing from a decree or order may apply for a review of judgement notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review. The fact that the decision on a question of law on which the judgement of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgement -

Conditions for review (o.47)

• Review can be asked for on the ground • the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made • on account of some mistake or error apparent on the face of the record • for any other sufficient reason

• Note : ”sufficient reason” must be analogous to the ones stated before that -

Observations

• One needs to choose between review and appeal – both cannot be simultaneously pursued

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• Needs to be done with notice to the other party • Review by the supreme court is under Article 137 and the power of review under 137 is not curtailed by the CPC • Review petition to be heard by the same judge that passed the judgment, unless he is not available • Where the application for a review is heard by more than one judge and the Court is equally divided, the application shall be rejected. • An order of the Court rejecting the application shall not be appealable; • the condition precedent for entertaining the review would be to record the finding as to whether at the initial stage, the party has acted with due diligence • “Due” means just and proper in view of the facts and circumstances of the case. “Review literally and even judicially means re-examination or re- consideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law, the courts and even the Statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice ... ... ... The expression, `for any other sufficient reason’ in the clause has been given an expanded meaning and a decree or order passed under misapprehension of true state of circumstances has been held to be sufficient ground to exercise the power” • S. Nagraj & Ors. V. State of Karnataka & Anr., 1993 Supp (4) SCC 595

4. REVISION (S.115) The High Court may call for the record of an case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears— (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) (to have acted in the exercise of its jurisdiction illegally or with material irregularity the High Court may make such order in the case as it thinks fit Explanation.—In this section, the expression "any case which has been decided" includes any order made, or any order deciding an issue in the course of a suit or other proceeding.] Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings, or The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto. -

Observations

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• A revision is available only when no appeal lies • Basic purpose is to examine jurisdictional questions. Revision can be sought for in cases of : • Exercised a jurisdiction that it is not vested with • Failed to exercise jurisdiction vested in it • Acted in exercise of its jurisdiction illegally or with material irregularity • There cannot be any interference on findings of fact (unless it relates to jurisdictional questions) • Pothina Narasamma V. Narupilla Ammaji, (2006) 9 SCC 749 • There cannot be any interference on any other ground except jurisdictional ones, no matter how absurd the finding of fact or law is. “illegality or material irregularity” refers to the manner in which the decision is arrived at, not the decision itself. • Procedural mistakes that result in injustice • Breach of procedure/ material defects that affects the ultimate decision • The key question is whether the order in favour of the party apply for revision would have given finality for the suit or proceeding • The revision is maintainable only if the answer is yes • The same principle applies in the case of interim orders • Finality does not necessarily mean the suit coming to an end!! • Ex: a trial court dismisses a suit on an application from the D, on the ground that it is barred by limitation. This is an order that can be subjected to revision. • The grounds on which a revision can be entertained are narrow, but there is wide discretion conferred on the court regarding the orders that may be passed in exercise of the revisional jurisdiction. • There is some conflict of views on the impact of the expression “case decided -

What is error apparent?

“The error apparent signifies as an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. In case the error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of review” • Haryana State Industrial Development Corporation & Ors. Etc. etc. V. Mansi & Ors etc. etc., (2012) 7 SCC 200 • Apparent error on the face of record has been explained to include • failure to apply the law of limitation to the facts found by the Court

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• failure to consider a particular provision of a Statute or a part thereof • a statutory provision has been applied though it was not in operation. • Not considering a judgment that was binding on the court • an error of procedure apparent on the face of the record -

ARTICLE 227 of the CONSTITUTION

↳ It is a supervisory jurisdiction which requires the physical presence of a lower court within a high court’s jurisdiction to pass any order under this article. ↳ It deals with illegalities (but in reality, High Court looks at irregularities as well) ↳ This is a writ. Court adopts summary procedure (in theory at least) ↳ The power of superintendence so conferred on the High Court is administrative as well as judicial, and is capable of being invoked at the instance of any person aggrieved or may even be exercised suo motu. ↳ Though the power is akin to that of an ordinary court of appeal, yet the power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. ↳ The power may be exercised in cases occasioning grave injustice or failure of justice such as when (i) the court or tribunal has assumed a jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and (iii) the jurisdiction though available is being exercised in a manner which tantamounts to overstepping the limits of jurisdiction. • Under 227, the Court can : • quash or set aside the impugned proceedings, judgment or order; • make such directions as the facts and circumstances of the case may warrant • may substitute such a decision of its own in place of the impugned decision • The Limitations on this power are self imposed • Not exercised when there is an alternate efficacious remedy • Chandrasekhar Singh & Ors. Vs. Siva Ram Singh & Ors., (1979) 3 SCC 118; • “the scope of interference by the High Court under Article 227 is restricted. The power of superintendence conferred by Article 227 is to be exercised sparingly and only in appropriate cases in order to keep the subordinate Courts within the bounds of their authority and not for correcting mere errors”

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• “the power of superintendence under Article 227 of the Constitution cannot be invoked to correct an error of fact which only a superior Court can do in exercise of its statutory power as the Court of Appeal; the High Court cannot, in exercise of its jurisdiction under Article 227, convert itself into a Court of Appeal” The powers conferred on the High Court under Art. 227 of the Constitution cannot in any way be curtailed by the provisions of the Criminal Procedure Code. Therefore the powers of the High Court under Art. 227 of the Constitution can be invoked in spite of the restrictions placed under s. 146 (TD) of the Criminal Procedure Code.

• “if the findings of fact had been arrived at by non-consideration of the relevant and material documents, the consideration of which could have led to an opposite conclusion, the High Court can interfere with that order under Article 227” The High court had still powers under Article 227 of the Constitution of India to quash the orders passed by the tribunals if the findings of fact had been arrived at by non-consideration of the relevant and material documents the consideration of which could have led to an opposite conclusion. This power of the High court under the Constitution of India is always in addition to the powers of revision under Section 103 of the Act. In that view of the matter the High Court rightly set aside the orders of the tribunals. We do not, therefore, interfere under Article 136 of the constitution of India. The appeals fail and are dismissed. • Baby Vs. Travancore Devaswom Board & Ors., (1998) 8 SCC 310; Surya Dev Rai vs Ram Chander Rai & Ors

5. REFERENCE (S.113) • Subject to such conditions and limitations as may be prescribed , any Court may state a case and refer the same for the opinion of the High Court, and the High Court may make such order thereon as it thinks fit • Where the court is satisfied that a case pending before it involves a question as to validity of any law, the Court shall state a case setting out its opinion and the reasons therefor, and refer the same for the opinion of the High Court. 19. ORDER- XXVIIA • IN any suit where there is a substantial question of law as to the interpretation of any law the court shall not proceed to determine that question unless a notice is given to attorney general (in case of central acts) or advocate general (in case of state laws) • in suits involving validity of any statutory instrument the Court shall not proceed to determine that question except after giving notice • (a) to the Government pleader, if the question concerns the Government, or • (b) to the authority which issued the statutory instrument, if the question concerns an authority other than Government.]

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• The Court may at any stage of the proceedings order that the Central Government or a State Government shall be added as a defendant in any suit involving a substantial question of law

20. ORDER- 22 1. Abatement of suits meaning that the suit has become redundant on account of any person ceasing to exist. 2. This concept applies in respect of both the defendants as well as the plaintiffs. 3. Assuming there are three cases: - A v. B; - A and B v.C; - A v. C and D 4. What happens on the death of any of the parties to the aforesaid suits before decree. 5. Suppose, in the first case A dies pending the suit. Can his legal representative prosecute the suit? 6. Ans- Depends if the right to sue exists. 7. “Right to sue” = right to bring a suit or the right to seek relief. And if this right exists then A’s legal representative may prosecute the suit. If he does not, the suit abates and cannot be proceeded with further. 8. If the suit claim was founded entirely on contract then the suit was required to proceed to trial in its entirety and be adjudicated upon. 9. The right to sue survives in all the cases except where the suit is for damages for defamation or assault, and cases where, after the death of the parties, the relief sought could not be enjoyed or granting it would be nugatory. 10. In each case the application to bring the legal representative of the deceased on the record must be made within 90 days from the date of the death of the deceased, otherwise the suit will abate. 11. Rule 9(1) of the Order 22 bars a fresh suit on the same cause of action. 12. An application to set aside abatement must be made within 60 days (mulla; LA Art. 121), 90 days (slides) [check once...] 13. An application to set aside abatement is the duty of the legal representative who had knowledge about the pending proceedings to engage a counsel and if any of them fails, the said legal representative is responsible for his lapse. 14. Provided that there was any sufficient cause of preventing substitution within time. 15. Pleader’s duty to report party’s death (R. 10A) – once he has come to know of the same. SUBSTITUTION 1. A Party dying during Suit pendancy substituted by his Legal heirs;

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2. Right to sue survives if after death of any plaintiff or defendant, the surviving parties alone retain interest in the matter (R. 2); 3. Any plaintiff or defendant may be substituted by his legal heirs within 90 days of his death (Rs. 4 & 5 ); 4. In default, suit abates in respect of such deceased 5. Court may proceed in absence of a person representing the deceased’s estate if there is no legal representative; 6. It can also appoint Administrator General or any Court Officer or other person, to represent the deceased (R. 4 A); 7. Any subsequent Judgement or decision of Court will bind estate of deceased; •There will not be any abatement once the hearing has commenced!!

ABATEMENT OF SUITS 1. The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives •This was interpreted as equivalent to right to seek relief. (Gopal v Ramachandra)

CASES WHERE THE RIGHT TO SUE SURVIVES 1. Section 37 of the Indian Contract Act provides that “promises bind the legal representatives of the promisors in case of the death of such promisors before performance unless a contrary intention appears from the contract.” - Such a contrary intention appears in contracts involving the exercise of special skill or involving personal confidence. 2. Section 306 of Indian Succession Act -

All demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his decease, survive to and against his executors or administrators; - except causes of action for defamation, assault, as defined in the Indian Penal Code,(45 of 1860.)or other personal injuries not causing the death of the party; and except also cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory. 3. The right to sue survives in such actions as suits for damages for breach of contract, suits for recovery of property, suits for recovery of debt, etc. 4. The right to sue does not survive in suits to recover damages for breach of contract of marriage etc. 5. Death of the applicant for leave to sue in forma pauperis also causes abatement.

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EFFECT OF MARRIAGE 1. Suit not abated by marriage of female party (R. 7); 2. Decree against a female defendant would be executable against her alone (1); 3. If the husband is legally liable for debts of wife, decree may be executed against him also; 4. Likewise, decree in favour of wife may be executed by husband with Court’s permission (2); EFFECT OF INSOLVENCY The P’s insolvency does not cause the suit to abate ● unless such assignee or receiver declines to continue the suit or (unless for any special reason the Court otherwise directs) to give security for the costs thereof within such time as the Court may direct. Where the assignee or receiver neglects or refuses to continue the suit and to give such security within the times ordered, ● the defendant may apply for the dismissal of the suit on the ground of the plaintiff's insolvency;and ● the Court may make an order dismissing it Where a suit abates or is dismissed under this order, no fresh suit can be brought on the same cause of action. But the court may, for sufficient cause, set aside the abatement or dismissal. The expression “sufficient cause” implies the presence of legal and adequate reason. the word “sufficient” means adequate enough as much as may be necessary to answer the purpose intended. The sufficient cause should be such as it would persuade the court, in exercise of its judicial discretion, to try the delay as an excusable one.

21. SUMMARY SUITS ORDER 37 This suit is filed in the situations of business where the transactions in the business should continue to flow and therefore an expeditious remedy has been provided.

1. The plaintiff must ● State under the suit number “Under Order XXXVII of the Code of Civil Procedure, 1908.” ● specifically aver in the plaint that ● He is proceeding under O. 37

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● That he is not claiming any relief that does not fall within the ambit of this rule. (READ O37 Rule 31. ) (I would suggest you to go through the slides once side by side.)

1. RAMKARANDAS RADHAVALLABH VS BHAGWANDAS DWARKADAS -

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The appellant was the tenant of the respondent of a third floor flat in Bombay. The tenancy was governed by the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947, hereafter referred to as the Rents Act. We will refer to the appellant as the tenant and the respondent as the landlord. The landlord obtained a decree in ejectment against the tenant in a suit filed under Or. 37 of the Code of Civil Procedure and the present appeal arises out of an application made by the tenant to set aside that decree under r. 4 of that Order. The question is, should the decree be set aside ? The suit was filed in the Court of Small Causes, Bombay on November 1, 1960 for ejectment on two grounds, namely, (1) a certain default in payment of rent and (2) unlawful subletting of the demised premises. The Rents Act permits ejectment if these grounds are proved. The tenant entered an appearance to the suit on December 3, 1960. On March 23, 1961, the landlord took out a summons for judgment under Or. 37 r. 2 and the tenant opposed that summons by an affidavit, setting out various defences to the claim for ejectment. "The inherent powers are to be exercised by the Court in very exceptional circumstances, for which the Code lays down no procedure." This is a well recognised principle. Rule 4 of Or. 37 expressly gives power to a Court to set aside a decree passed under the provisions of that Order. Express provision is thus made for setting aside a decree passed under Or. 37 and hence if a case does not come within the provisions of that rule, there is no scope to resort to s. 151 for setting aside such a decree.” It is by virtue of this rule that the decree in the present case was passed without permitting the tenant to be heard. This was because the tenant had been given leave to defend on May 2, 1961 on a condition that it paid the arrears of rent by instalments as prescribed in the order. This order had been made by consent and the tenant had failed to perform that condition, the result of which was to deprive him of the leave to defend earlier granted; the case became one as if no leave to defend had been given to the tenant and upon which the landlord became entitled to a decree under sub-r. (2) of r. 2 of Or. 37. “What sub-r. (2) of r. 2 of Or. 37 contemplates is that the Court will accept the statements in the plaint as correct and on those statements pass such decree as the plaintiff may in law be entitled to. If, for example, the plaint discloses no cause of action, the Court cannot pass any decree in favour of the plaintiff.” [SLIDE]

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2. GOVIND BHAI DAYAL MANGEV VIJAYKUMAR BALKISHAN AGARWAL & ANR. 1. D borrowed Rs. 1,00,00 Lakh from the P and a cheque was given as security for the same. • Only Rs. 10,000 was been re-paid. 2. P filed a summary suit for Rs. 1,39,496/- on the basis of a cheque issued to him by the D (for Rs. 1,00,000) which was dishonored. • The suit was summarily decreed as the D did not appear. 3. The P had also initiated a prosecution u/s 138 of the NI Act where the D was convicted and punished (imprisonment + fine of Rs. 1,00,000 out of which 90K was to be paid to the P) • This amount was deposited and 90K was paid to the P. 4. The D preferred an appeal against the judgment in the suit. • As a precondition to hear the appeal the court ordered deposit of Rs. 75k, which the P withdrew. 5. The P has thus been paid Rs. Rs. 1,65,000/ 6. In order to get exparte decree to be set aside under Order 37, Rule 4 of the Civil Procedure Code, the appellant is required to prove that he had sufficient cause for remaining absent and is also required to prove that he has a reasonably good defence on merits on the basis of which appellant can be granted leave to defend. 7. As regards the sufficient cause for remaining absent, the appellant has stated in the affidavit in support of the notice of motion that after the service of the writ of summons he approached the respondent who told him that the suit was filed by mistake and assured him that he would contact his Advocate and instruct him to withdraw the suit and that the appellant should forget that such a suit has been filed against him. Even though this was denied, we are satisfied that there could have been such a talk in view of the fact that the respondents had paid to the appellant a sum of Rs. 10,000/- in the past. 8. In our view, therefore, the assurance given by the respondent that he would withdraw the suit and the appellant should forget about the suit, constituted sufficient cause for the appellant to remain absent. 9. As regards the appellant being required to show reasonably good defence in the suit, it is not in dispute that the respondent has already received a sum of Rs. 75,000/ - which he has withdrawn from this Court. It is also not in dispute that the appellant has received a sum of Rs. 90,000/- towards compensation in pursuance of the order under Section 138 of the Negotiable Instrument Act. Whether the appellant is entitled to the credit of the amount which he has paid in pursuance of the order under Section 138 of the Negotiable Instruments Act and whether the respondent is required to account for the amount received by him as compensation is a question which requires consideration. Appellant, therefore, has reasonable defence to the claim of the respondents. The appellant, therefore, will be entitled to a leave to defend. In our view, the appellant has made out a case that he has a reasonable defence to the suit. In the circumstances, we are of the view that

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motion should have been allowed and the exparte decree should have been set aside with permission to the appellant to defend the suit. 10. The appellant is granted unconditional leave to defend. The appellant shall file the written statement within a period of eight weeks. 3. MADHUSUDAN SHRIKRISHNA V M/S EMKAY EXPORTS & ORS 2008 (5) BOM CR R 938. Ex-parte decrees under this order will be set aside only if there was sufficient cause (for nonappearance) AND if he has a good case to defend on merits

4. IDBI TRUSTEESHIP SERVICES LTD. V/S HUBTOWN LTD 1. The necessary averments made in the plaint would disclose the cause of action of the suit as well as the facts necessary to decide this appeal. 2. The Plaintiff is India’s largest Trusteeship Company and provides a wide spectrum of Trusteeship Services. 3. The Plaintiff states that in order to secure the said OPCDs, and to ensure the due and punctual payment by Amazia and Rubix of all dues to Vinca under the Debenture Guarantee Deeds, the Defendant has, inter alia vide the Corporate Guarantee Deed, dated 9th December, 2009, issued an unconditional, absolute and irrevocable corporate guarantee in favour of the Plaintiff, inter alia for the benefit of Vinca (hereinafter referred to as the “Guarantee”). (FACTS NOT TO NECESSARY CAN BE SKIPPED.) 4. The Plaintiff submits that inter alia the following defaults were committed by Amazia and Rubix, inter alia under the said Debenture Trust Deeds 5. The Plaintiff therefore prays: this Hon’ble Court be pleased to order and decree the Defendant to pay to the Plaintiff a sum of Rs.532,11,29,364.05/6. The affidavit-in-reply to the aforesaid Summons for Judgment raised the following defence. which need not be mentioned here. 7. in Immami Appa Rao vs. G. Ramalingamurthi, (1962) 3 SCR 739, and stating that where two persons may be party to an illegality, the court would be justified, in the larger public interest, in not lending the court’s aid to a person who comes to court to enforce such illegality. That this may incidentally benefit the defendant is of no moment, and therefore the Ld. Single Judge was correct in prima facie coming to the conclusion that the suit was to lend assistance to the plaintiff in enforcing something illegal, the Corporate Guarantee being part of the larger illegal transaction. But, the Court held in this case (IDBI Trusteeship) that the judgment in Immami Appa Rao’s case would be attracted only if the illegal purpose is fully carried out, and not otherwise. 8. If the defendant enters an appearance, the plaintiff shall thereafter serve on the defendant a summons for judgment returnable not less than ten clear days from the

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date of service supported by an affidavit verifying the cause of action and the amount claimed and stating that in his belief there is no defence to the suit. 9. The defendant may at any time within ten days from the service of such summons for judgment by affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle him to defend, apply on such summons for leave to defend the suit. Leave to defend may be granted to him unconditionally or upon such terms as to the Judge appear just.” 10. Learned counsel relied upon a decision of this court in Santosh Kumar v. Bhai Mool Singh [ (1958) SCR 1211] and particularly upon a passage at p. 1216. That was a case in which the Court of Commercial Subordinate Judge, Delhi, had held that the defence raised a triable issue but that defence was vague and was not bona fide because the defendant had produced no evidence to prove his assertion. For these reasons the court granted leave to defend the suit on the condition of the defendant giving security for the entire claim in the suit and costs thereon. This court held that the test is to see whether the defence raises a real issue and not a sham one, in the sense that, if the facts alleged by the defendant are established, there would be a good, or even a plausible defence on those facts. If the court is satisfied about that, leave must be given unconditionally. This Court further held that the trial court was wrong in imposing a condition about giving security on the ground that documentary evidence had not been adduced by the defendant. This Court pointed out that the stage of proof can only arise after leave to defend has been granted and that the omission to adduce documentary evidence would not justify the inference the defence sought to be raised was vague and not bona fide. 11. Taken by and large, the object is to see that the defendant does not unnecessarily prolong the litigation and prevent the plaintiff from obtaining an early decree by raising untenable and frivolous defences in a class of cases where speedy decisions are desirable in the interests of trade and commerce. In general, therefore, the test is to see whether the defence raises a real issue and not a sham one, in the sense that, if the facts alleged by the defendant are established, there would be a good, or even a plausible, defence on those facts.” The latter part of the observations of the learned Judge have to be understood in the background of the facts of the case this Court was called upon to consider. The trial Judge being already satisfied that the defence raised a triable issue was not justified in imposing a condition to the effect that the defendant must deposit security because he had not adduced any documentary evidence in support of the defence. The stage for evidence had not been reached. Whether the defence raises a triable issue or not has to be ascertained by the court from the pleadings before it and the affidavits of parties and it is not open to it to call for evidence at that stage. If upon consideration of material placed before it the court comes to the conclusion that the defence is a sham one or is fantastic or highly improbable it would be justified in putting the defendant upon terms before granting leave to defend. Even when a defence is plausible but is improbable the court would be justified in coming to the conclusion that the issue is not a triable issue and put the defendant on terms while granting leave to defend. To hold otherwise would make it

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impossible to give effect to the provisions of Order 37 which have been enacted, as rightly pointed out by Bose, J., to ensure speedy decision in cases of certain types. It will be seen that Order 37 Rule 2 is applicable to what may be compendiously described as commercial causes. Trading and commercial operations are liable to be seriously impeded if, in particular, money disputes between the parties are not adjudicated upon expeditiously. It is these considerations which have to be borne in mind for the purpose of deciding whether leave to defend should be given or withheld and if given should be subjected to a condition. 12. It will be seen that Order 37 Rule 2 is applicable to what may be compendiously described as commercial causes. Trading and commercial operations are liable to be seriously impeded if, in particular, money disputes between the parties are not adjudicated upon expeditiously. It is these considerations which have to be borne in mind for the purpose of deciding whether leave to defend should be given or withheld and if given should be subjected to a condition. 13. in Rawalpindi Theatres Private Ltd. v. Film Group Bombay [ (1958) BLR 1373 at p 1374] may well be borne in mind by the court sitting in appeal upon the order of the trial Judge granting conditional leave to defend. It is indeed not easy to say in many cases whether the defence is a genuine one or not and therefore it should be left to the discretion of the trial Judge who has experience of such matters both at the bar and the bench to form his own tentative conclusion about the quality or nature of the defence and determine the conditions upon which leave to defend may be granted. If the Judge is of opinion that the case raises a triable issue, then leave should ordinarily be granted unconditionally. On the other hand, if he is of opinion that the defence raised is frivolous, or false, or sham, he should refuse leave to defend altogether. Unfortunately, however, the majority of cases cannot be dealt with in a clear cut way like this and the judge may entertain a genuine doubt on the question as to whether the defence is genuine or sham or in other words whether it raises a triable issue or not. It is to meet such cases that the amendment to Order 37 Rule 2 made by the Bombay High Court contemplates that even in cases where an apparently triable issue is raised the Judge may impose conditions in granting leave to defend. Thus this is a matter in the discretion of the trial Judge and in dealing with it, he ought to exercise his discretion judiciously. Care must be taken to see that the object of the rule to assist the expeditious disposal of commercial causes to which the Order applies, is not defeated. Care must also be taken to see that real and genuine triable issues are not shut out by unduly severe orders as to deposit. In a matter of this kind, it would be undesirable and inexpedient to lay down any rule of general application.” 14. Following principles – “While giving leave to defend the suit the court shall observe the following principles: a. If the court is of the opinion that the case raises a triable issue then leave to defend should ordinarily be granted unconditionally. The question whether the defence raises a triable issue or not has to be ascertained by the court from the pleadings before it and the affidavits of parties. b. If the court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or that the defence intended to be put up by the defendant is frivolous or vexatious it may refuse leave to defend altogether.

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c. In cases where the court entertains a genuine doubt on the question as to whether the defence is genuine or sham or whether it raises a triable issue or not, the court may impose conditions in granting leave to defend.” 10. Whereas in the unamended provisions of Rule 3, there was no compulsion for making any deposit as a condition precedent to grant of leave to defend a suit by virtue of the second proviso to sub-rule (5), the said provision was altered to the extent that the deposit of any admitted amount is now a condition precedent for grant of leave to defend a suit filed under Order 37 of the Code. A distinction has been made in respect of any part of the claim, which is admitted. The second proviso to sub-rule (5) of Rule 3 makes it very clear that leave to defend a suit shall not be granted unless the amount as admitted to be due by the defendant is deposited in court. 11. The position in law now is that the trial Judge is vested with a discretion which has to result in justice being done on the facts of each case. But Justice, like Equality, another cardinal constitutional value, on the one hand, and arbitrariness on the other, are sworn enemies. The discretion that a Judge exercises under Order XXXVII to refuse leave to defend or to grant conditional or unconditional leave to defend is a discretion akin to Joseph’s multicolored coat – a large number of baffling alternatives present themselves. The life of the law not being logic but the experience of the trial Judge, is what comes to the rescue in these cases; but at the same time informed by guidelines or principles that we propose to lay down to obviate exercise of judicial discretion in an arbitrary manner. 12. If the defendant satisfies the Court that he has a substantial defence, that is, a defence that is likely to succeed, the plaintiff is not entitled to leave to sign judgment, and the defendant is entitled to unconditional leave to defend the suit; -

if the defendant raises triable issues indicating that he has a fair or reasonable defence, although not a positively good defence, the plaintiff is not entitled to sign judgment, and the defendant is ordinarily entitled to unconditional leave to defend;

-

even if the defendant raises triable issues, if a doubt is left with the trial judge about the defendant’s good faith, or the genuineness of the triable issues, the trial judge may impose conditions both as to time or mode of trial, as well as payment into court or furnishing security. Care must be taken to see that the object of the provisions to assist expeditious disposal of commercial causes is not defeated. Care must also be taken to see that such triable issues are not shut out by unduly severe orders as to deposit or security;

-

if the Defendant raises a defence which is plausible but improbable, the trial Judge may impose conditions as to time or mode of trial, as well as payment into court, or furnishing security. As such a defence does not raise triable issues, conditions as to deposit or security or both can extend to the entire principal sum together with such interest as the court feels the justice of the case requires.

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-

if the Defendant has no substantial defence and/or raises no genuine triable issues, and the court finds such defence to be frivolous or vexatious, then leave to defend the suit shall be refused, and the plaintiff is entitled to judgment forthwith;

-

if any part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit, (even if triable issues or a substantial defence is raised), shall not be granted unless the amount so admitted to be due is deposited by the defendant in court.

DECISION IN THE CURRENT CASE -

it cannot be said that the defendant has raised a substantial defence to the claim made in the suit. Arguably at the highest, as held by the learned Single Judge, even if a triable issue may be said to arise on the application of the FEMA Regulations, nevertheless, we are left with a real doubt about the Defendant’s good faith and the genuineness of such a triable issue. 418 crores has been stated to be utilized and submerged in a building construction project, with payments under the structured arrangement mentioned above admittedly being made by the concerned parties until 2011, after which payments stopped being made by them. The defence thus raised appears to us to be in the realm of being ‘plausible but improbable’. This being the case, the plaintiff needs to be protected. In our opinion, the defendant will be granted leave to defend the suit only if it deposits in the Bombay High Court the principal sum of 418 crores invested by FMO, or gives security for the said amount of 418 crores, to the satisfaction of the Prothonotary and Senior Master, Bombay High Court within a period of three months from today. The appeal is accordingly allowed, and the judgment of the Bombay High Court is set aside. HOW DO WE UNDERSTAND “SPECIAL CIRCUMSTANCES”? 5. KARUMILLI BHARATHI V. PRICHIKALA VENKATACHALAM, AIR 1999 A.P. 427

“Special circumstances” means something of higher gravity than `sufficient cause’, something beyond control of the person concerned or absolutely unavoidable circumstance. Thus, it is not synonymous with sufficient cause. “It is certain for the reasons offered to explain the special circumstances, should be such that a person absolutely had no possibility of appearing before the Court on a relevant day ... ...

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Thus, a special circumstance would take with it a cause ‘or’ reason which prevented a person in such a way, that it is almost difficult for him to attend the Court or to perform certain acts which he is required to do. Thus, the reason `or’ cause found in `special circumstances’ is more strict or more stringent than `sufficient cause’. What would constitute a special circumstance would depend upon facts of each case 6. MOHAN LAL V. OM PRAKASH, AIR 1989 RAJ. 132 “The gravity of the reasons is more high in case of `special circumstances’ as provided under R.4 of O.37” BUT………. 7. RAJA V. SHA RIKHABDAS SURESH KUMAR, 1986 MLJ 108 “In invoking O.37 R.4, the defendant will have to satisfy two conditions; viz (1) there was no due service of summons in the Suit or that he was prevented by sufficient cause from getting leave to defend the Suit and (2) that he has a substantial defence to raise in the Suit. Special circumstances mentioned in O.37 R.4 only contemplate the aforesaid conditions which the defendant must satisfy to entitle him to have the decree set aside and get leave to defend the action”

22. ORDER- 21- SECTION 36-74 Decrees and Orders are enforced/ implemented” through execution proceedings • Substantive Law - Part II of the Code (Ss.36 to 74); • Procedural Aspects - O. XXI; SECTION- 37

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-

-

The court which passed a decree; Generally the court that passed the decree(the court of original jurisdiction) which executes it. If the decree is passed in exercise of appellate jurisdiction- The Court of first instance or; - Notional first instance Section 38-mandates a Transferee Court to also be an Executing Court;

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TRANSFER OF DECREE FOR EXECUTION(S. 39) From Court passing decree to another Court• In whose jurisdiction judgement debtor is based; • Or where he holds sufficient property to satisfy decree; • If subject matter is sale / delivery of property situated in the local jurisdiction of Transferee Court; • For any other reason to be recorded by Court; Scope & Powers of Executing Court to decide controversies • All questions relating to execution, discharge or satisfaction of decree to be determined by Executing Court, and not by separate suit (S. 47); • Executing Court cannot “go behind the decree” except when the decree is a nullity; • Decree is a nullity if:• Passed against a dead man; • The Court passing it lacks “Inherent Jurisdiction”; • Fraud (???) • Clause (2) makes such a proceeding (u/s 47) a suit POWERS OF COURT TO ENFORCE EXECUTION (S. 51) • Means of Execution:• Delivery of property specifically decreed; • Attachment & sale / sale without attachment; • Arrest and detention in prison ; • By appointment of receiver; • In any other manner as the nature of relief granted may require; • Decree enforceable against legal representatives / ancestral property (Ss. 52 & 53);

Procedure

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-

-

-

Rule-10 states that all the proceedings in execution are to be commenced by an application for execution. Rule- 11(2) states that the application for the execution must be made in cases of decree, other than a decree granting a mandatory injunction, within 12 years from the date of the decree and in cases of decree for a mandatory injunction within 3 years from the date of decree. The application must be in writing: - Except when the decree is for payment of money and the JD is in the precints of the court when decree is passed. In such cases, the court may order immediate execution on the oral application of the DH at the time of passing of the decree [R. 11 (1)] The application must comply with the requirements of Rr. 11- 14. • If there is compliance, court will direct execution to issue [R.24]. • If not, it can reject the application or direct amendment [R.17]. • If rejected, a fresh application can be made. Who can apply for the execution? • The Decree Holder [DH] • The transferee [R.16] • Where there are more than one DHs, one of the DHs [R.15] [S. 146] • If the DH is dead, his LR [S. 146]

Against Whom? • If the Judgement Debtor is alive, then against him- Section 50 • If he is dead, against his Legal Representative • In this case, the execution cannot be against the person, but only against the property of the JD which has come to the hands of the LR and which he has not disposed off [S.50] Notice Before Ordering Execution [R.22] • Law does not require any notice on execution to be issued to the party against whom it is sort [Rule 22], except when the execution application is made • more than two years after the date of decree; or more than two years after the last order made in the previous application for execution.

• against the LR of the JD (the two year rule- with respect to previous application for execution applies here too) • against the assignee or receiver in insolvency, where the party to the decree has been adjudged to be an insolvent

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In these cases, it is mandatory for the court to issue notice to the person against whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him • If such notice would cause unreasonable delay or would defeat the ends of justice, the court may dispense with the notice • If the JD (or his LRs) does not appear after service of notice, the court can proceed with execution • If there are objections raised by the JD (or his LR), the court can pass such order as it thinks fit Execution Proceedings • May be by proceeding against a person (by arrest and detention) and by proceeding against the property (attachment & sale) [R. 30] • The court, it its discretion, may refuse execution at the same time both against person and property (r.21) EXECUTION AGAINST PERSON : ARREST AND DETENTION (S. 55 ) • Judgement debtor may be arrested in execution of decree at any hour on any day (subject to compliance of prescribed formalities); • To be brought before Court as soon as practicable • Women exempted from arrest or detention in execution for payment of money (S. 56); PERIOD OF DETENTION-SECTION 58 • Up to 3 months if value of decree exceeds Rs. 5,000/-; • Up to 6 weeks if value exceeds Rs. 2,000/-; • No detention if decretal amount is below Rs. 2,000/- [S.58 (1A)]; • The detention to be put to an end if the decree amount is paid during the period of detention or if it is otherwise satisfied [S.58].

Arrest & detention: procedures • In cases of money decree, a notice under R. 37 asking him to show cause to be issued, instead of issuing warrant for his arrest. • If he can demonstrate that he does not have the resources to honour the decree out of poverty or such other causes, the court is to dis-allow the application for execution by way of arrest and detention.

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• If the JD appears and fails to show cause to the satisfaction of the court or if he does not appear, a warrant may be issued. • Warrant must specify the decree amount • Warrant to be executed by an officer appointed on that behalf [RR. 24- 25] • If the JD pays the decree amount to the arresting officer, no arrest to be done. • If the warrant was issued without Rule 37 notice, then the arrested person to be brought before a court as soon as practicable. • On production an opportunity is to be given to the JD to demonstrate that he lacks the means to pay • If the court is not satisfied with his explanation and if he is unable to pay, he is committed to a civil prison. • He can be released on the application of the DH • The JD cannot be arrested and detained for the execution of the same decree again • However, the liability does not cease. The decree may be executed against the property • Arrest and detention can be a mode of execution for other types of decrees too [Rules 31, 32]. IN such cases • Warrant to be issued on the application of the DH [S.54] • The JD is to be arrested and brought before the court as soon as practicable [S.55] • The court then makes an order committing him to the civil prison, for not more than six weeks [S.58] • He is to be released • on satisfaction of the decree, if that happens while he is in prison; or • On the request of the DH; or • If the DH fails to pay the subsistence allowance

Jolly George Verghese & Anr vs The Bank Of Cochin, AIR 1980 SC 470 “A simple default to discharge is not enough. There must be some element of bad faith beyond mere indifference to pay, som deliberate or recusant disposition in the past or alternatively current means to pay the decree or a substantial part of it.”

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“The provision emphasises the need to establish not mere omission to pay but an attitude of refusal on demand verging on dishonest disowning of the obligation under the decree. Considerations of the debtor's other pressing needs and straitened circumstances will play prominently.” ATTACHMENT- SECTION-60 -

-

Concept of “Attachment” envisages taking over the properties / assets of judgement debtor to satisfy decree; Properties liable to be Attached (S. 60):• All conceivable movable and immovable properties such as lands, buildings / houses, goods, money, bank accounts, Government securities, bonds, Corporate shares, salaries, rents etc. held by judgement debtor, or someone else on his behalf ; Properties exempt fromAttachment (examples) (s.60) :• What is required for substance/ survival with minimal dignity

Ø Include necessary personal items including those of wife and children; Ø The tools of artisans / implements of cultivators; Ø Houses /buildings of agriculturists, labourers or domestic servants; Ø pensions of government servents Ø Salaries of military personnel Ø Moneys in provident fund Ø Salaries up to Rs. 1,000/- and 2/3 of the remainder except in maintenance cases; Ø Moneys payable under insurance policy on judgment debtor’s life etc.; • What has some religious/customary significance Ø Ornaments worn by a women as a part of religious customs etc.

• What is not counted as property Ø Rights of personal service; Ø Wages of laborers and domestic servants; Ø Right to sue Under Rule-41 Under R.41 the JD can be examined for ascertaining “whether any or what debts are owing to the judgement-debtor and whether the judgment-debtor has any and what other property or means of satisfying the decree”

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• There are specific procedures prescribed for attachment of different kinds of property • Ex: RR 43, 43A for movables; R44 for agricultural produce; R.46 for debts, shares and properties not in the posession of the JD; R47 for share in movables; R.48 for salaries and allowances of government servant and 48A for that of private employees; R.53 for attachment of decrees; etc. Under Rule-58 • Rule 58 : Adjudication of claims to, or objections to attachment of, property • Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to adjudicate upon the claim or objection in accordance with the provisions herein contained. • Such claims are not entertained • where, before the claim is preferred or objection is made, the property attached has already been sold; or • where the Court considers that the claim or objection was designedly or unnecessarily delayed. All questions (including questions relating to right, title or interest in the property attached) arising between the parties to a proceeding or their representatives relevant to the adjudication of the claim or objection, shall be determined by the Court dealing with the claim or objection and not by a separate suit.

Sale of attached property • Any Court executing a decree may order that any property attached by it and liable to sale, or such portion thereof as may see necessary to satisfy the decree, shall he sold, and that the proceeds of such sale, or a sufficient portion thereof, shall be paid to the party entitled under the decree to receive the same [R.60] • The sale is to be conducted by an officer of the court or by a person appointed by the court [R.61] Procedure for Sale : • A sale proclamation in terms of R.66 must be drawn up and published in terms of R.67 • Actual sale to be conducted in terms of the time period mentioned in Rule 68

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• Decree holder/ Mortgagee cannot bid without the prior permission of the court [R.72] • Court may at any time order stay or postpone the sale Procedure for sale of movables: • Procedures depend on the kind of immovable being sold [Ex: Rule 74 for sale of agricultural produce; Rule 75 (provisions relating to standing crops); 76 (negotiable instruments and shares in corporate entity; etc.) • Rule 77 provides that sale must be by way of public auction • Rule 79 : delivery of property • Procedure for sale of immovables • R. 83 : allows court to postpone the sale to enable the JD to raise amount of decree • R84: purchaser must deposit 25% of price immediately and balancewithin 15 days if he does not do so, then the property is resold and the deposit money is appropriated by the government Under Rule 90 • (1) Where any immovable property has been sold in execution of a decree, the decreeholder, or the purchaser, or any other person entitled to share in a ratable distribution of assets or whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it. • (2) No sale shall be set aside on the ground of irregularity or fraud in publishing or conducting it unless, upon the facts proved, the Court is satisfied that the applicant has sustained substantial injury by reason of such h irregularity or fraud. Under Rule 91 • The purchaser at any such sale in execution of a decree-may apply to the Court to set aside the sale, on the ground that the judgment-debtor had no saleable interest in the property sold. Under Rule 92 • confirmation of sale OTHER MODES OF EXECUTION • Delivery of Property [R.31 (movables); R35 (immovables)] • Decree for execution of document, or endorsement of negotiable instrument [R. 34] – the court can execute/ endorse the document

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• Delivery of possession of immovable property [R.35] Stay of Execution (R. 26) • Execution may be stayed by Executing Court• On sufficient cause being shown; • To enable judgment debtor to approach Original Court which passed decree or; • To approach Appellate Court; • Executing Court may order restitution of any property seized. • Executing Court to require appropriate security or impose conditions upon judgment-debtor before ordering stay; Resistance /Obstruction to possession of Immovable Property (R.97) •Decree holder /purchaser of decretal property may apply to Court if resisted or obstructed by any person in obtaining possession; • In such cases Court expected to pass orders which would take into account recurrence of such resistance for effecting execution again; Dispossession of Third Party by Decree Holder / Purchaser (R. 99) •Court may direct restoration of possession (R. 100); •All such questions to be determined by the executing Court itself, and not through a separate suit (R. 101); MODES OF PAYING MONEY UNDER A DECREE (RULE 1) All money, payable under a decree shall be paid as follows, namely1. by deposit into the Court whose duty it is to execute the decree, or to that Court by postal money order or through a bank; or 2. out of Court, to the decree-holder by postal money order or through a bank or by any other mode wherein payment is evidence in writing ; or 3. otherwise, as the Court which made the decree, directs. • Where payment is made by way of (1) or (3), some steps are to be taken (notice to be given to DH) • interest shall cease to run from date of service of notice

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• In case of (2) interest shall cease to run from date of payment • Payment has to be made in these terms!! Appropriation of deposited money to different heads The rule of appropriation in Order XXXIV, R1 of the Code (suits relating to mortgages) are applied in the case of execution too • Rule 1: a defendant in a suit for recovery of a debt may at any stage of the suit deposit in court such sum of money as he considers a satisfaction in full of the claim in the plaint. • Rule 2 provides for issue of notice of deposit to the plaintiff through the court and for payment out of the amounts to the plaintiff if he applies for the same. • Rule 3 specifically states that no interest shall be allowed to the plaintiff on any sum deposited by the defendant from the date of such deposit, whether the sum deposited is in full discharge of the claim or it falls short thereof. • Rule 4 enables the plaintiff to accept the deposit as satisfaction in part and allows him to pursue his suit for what he claims to be the balance due, subject to the consequences provided for therein regarding costs.

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Appropriation of money (for deposits in terms of R.1 of O.21) • The deposited amount is appropriated in the following order (unless the JD has indicated the specified heads to which the money is to be appropriated) : • Interest • Costs • Principal Gurpreet Singh v. Union of India (https://indiankanoon.org/doc/1736128/) If money is paid into Court by a judgment-debtor, no interest should be allowed to the decree holder on the amount so paid, although such amount may not in fact be the whole amount due under the decree. the scheme does not contemplate a reopening of the satisfaction to the extent it has occurred by the deposit. No further interest would run on the sum appropriated towards the principal.

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BASICS:

1

1. SECTION- 9

3

A. Power of the Civil Court:

3

1. Abdul Gafar v.s. State of Uttarakhand

3

2. S.A.L. Narayan Row v.s. Ishwarlal Bhagwan Das

4

B. Religious Disputes and Jurisdiction of the Civil Courts:

4

1. Sri Sinna Ramanuja Jeer And Others vs Sri Ranga Ramanuja Jeer

4

2. District Council of United Basel Mission Church v. Salvador,

5

3. P.M.A Metropolitan Case:

6

4. Muhammed And Ors. vs Moideen Haji And Ors. on 7 April, 2000

7

C. Express Bar and Implied Bar

8

1. Dhulabhai vs. State of Madhya Pradesh

8

2. Ishar Singh vs National Fertilizers And Another , AIR 1991 SC 1546

10

3. Premier Automobiles v. Wadke (1976 1 SCC 496)

10

2. RES JUDICATA-SECTION-11

11

1. Gulabchand Chhotalal Parikh vs State Of Bombay (Now Gujarat), AIR 1965 SC 1153 13 2. Daryao And Others vs The State Of U. P. And Others, AIR 1961 SC 1457

14

3. Raj Lakshmi Dasi And Others vs Banamali Sen And Others, AIR 1953 SC 33

15

A. Application of the principle between co-defendants:

15

1. Mahboob Sahab. (A and Z) v Syed Ismail & Ors,(X, Y and M) (1995) 3 SCC 693Defendants v. Plaintiff 15 2. Chandu Lal Agarwalla v. Khalilur Rahman AIR I950 PC 17 (X v. Y):

16

B. Application of the principle to suits jointly tried/ when there are multiple decrees: 17 1. Sheodan Singh v Smt. Daryao Kunwar, 1966 SC AIR 1332

17

C. Non-Application of the doctrine to erroneous decisions on jurisdiction:

19

Mathura Prasad Bajoo Jaiswal & Ors vs Dossibai N. B. Jeejeebhoy, AIR 1971 SC 2355 19 D. That the principle applies even to erroneous decisions (not mandatory to read this) 20 Shah Shivraj Gopalji v. ED-. Appakadh Ayiassa AIR 1949 PC 302.

20

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E. Application of the principle to different stages of the same proceedings:

21

(1) Satyadhyan Ghosal And Others vs Sm. Deorajin Debi ,AIR 1960 SC 941

21

(2) Arjun Singh vs Mohindra Kumar & Ors, AIR 1964 SC 993

22

3. SECTION- 10

23

1. Sulochana Amma Vs. Narayanan Nair (1994 (2) SCC 14)

24

2. Uthiva Somasundareswarar Vs. Rajanga (AIR 1965 Mad 355) Error! Bookmark not defined. A.About the expression matters "directly and substantially in issue"

27

1. Sajjdanashin Sayed v. Musa Daddabhai Ummer

27

2. Run Bahadur Vs. Lucho Koer ( 1885) ILR 11 Cal 301 (PC)

29

3. Asrar Ahmed Vs. Durgah Committee, Ajmer (AIR 1947 PC 1):

31

4. N. M. Tripathi v. Dayawant, AIR 1988 Pat 123

31

B. With respect to Section 10:

32

B.1. About the principle that the section applies only to suits :

32

1. Inderpal Singh Hassanwalia vs Bir Tibbtan Woollen Mills, AIR 1974 Delhi 95 B.2. That perfect identity of issues is not required: 1. R. Srinivasan vs Southern Petrochemical, AIR 1992 Mad 363

32 33 34

3. General Discussion on 11th and 12th January 2018

35

4. SECTION- 16

36

1. Begum Sabiha Sultan v. Nawab Mansur Ali Khan, AIR 2007 SC 1636

37

2. Harshad Chimanlal Modi v DLF Universal Ltd. & Anr.

40

3. Patel Roadways Limited, Bombay vs Prasad Trading Company

44

A.This case tells us about what happens when reliefs sought in respect of a property is not the only issue that arises in the suit 48 1. Suresh Kumar v. Dinesh Kumar

48

B. dynamic of "carrying on business" (this also illustrates how other enactments (The Copyright Act & the Trademarks Act in this case) 49 1. World Wrestling Entertainment v Reshma.

49

2. Banyan Tree Holding v Murali Krishna Reddy & Anr.

51

C. That it is primarily decided with reference to the allegations in the plaint and that the intended defence of the defendant does not per se alter it : 53 1. Abdulla v. Gallappa (1985) 2 SCC 54

53

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D. That what matters is not the form but the substance of the allegations in the plaint:55 1. Ram Singh v. Gram Panchayat (1986) 4 SCC

55

2. Bank of Baroda v Moti Bhai

56

E. The distinction between 'irregularity' and 'illegality' in the jurisdictional context and its consequences : 58 1. Sri Budhia Swain & Ors vs Gopinath Deb

58

2. Ittyavira Mathai v. Varkey Varkey & Anr.

62

F. Important points on jurisdiction

63

4. TRANSFER OF SUITS

64

1.Section 22

64

2. Section 23

65

3. Section 24

65

4. Section 25

65

5. Important points

66

6. With respect to the matrimonial proceedings.

67

1. Santhini v. Vijaya Venketesh

67

2. Nahar Industrial Enterprises Ltd. v. Hong Kong and Shanghai Banking Corporation 68 3. N.K. Nair & Anr. V. Kavanugalaanattu Radhika

68

4. Madhu Saxena V. Pankaj Saxena

68

5. ORDER-1.

69

Some basics on different orders of the C.P.C. before we begin with Order I:

69

1. Razia Begum v. Anwar Begum, AIR 1958 SC 886.

72

2. Anil Kumar Singh vs Shivnath Mishra And Gadasa Guru, (1995) 3 SCC 147

73

3. Arun Kumar Agarwal vs Radha Arun And Anr, ILR 2004 KAR 808

73

4. Firm Of Mahadeva Rice And Oil Mills vs Chennimalai Goundar, AIR 1968 Mad 287 74 5. Mumbai International Airport (P) Ltd. v.Regency Convention Centre and Hotels (P) Ltd. (2010) 7 SCC 417 75 6. Illustration I

75

7. Illustration II

75

8. Illustration III- Election petitions

76

Representative Suits: Order 1, Rule 8.

76

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1. Chairman, TN Housing v. T.N. Ganapathy, AIR 1990 SC 642

77

2. R. Venugopala Naidu And Ors vs Venkatarayulu Naidu Charities, AIR 1990 SC 444 78 6. ORDER-2.

79

1. Gurbux Singh vs Bhooralal, 1964 SCR (7) 831

80

2.Balbir Singh v Atma Ram (Contrasted with 3. case)

82

3.Shankarlal Laxminarayan Rathi and Ors. vs. Gangabisen Maniklal Sikchi and Anr., 83 4. M/s Virgo Industries (Eng.) P. Ltd. Vs M/s.Venture tech Solutions P. Ltd.

84

4.Rathnavathi & Anr vs Kavita Ganashamdas

87

5. Syndicate Bank vs Raj Kumar Tanwar

87

6.State Bank Of India vs Gracure Pharmaceuticals

89

7.Deva Ram And Another vs Ishwar Chand, 1995 (6) SCC 733

89

8.Sandeep Polymers Pvt. Ltd vs Bajaj Auto Ltd.

89

A.MULLA

89

B.JOINDER OF CAUSES

92

9. Dabur India Ltd. V. K.R. Industries, AIR 2008 SC 3123

92

C. Rule 5:

93

D. Rules 6 & 7

93

10. Prem Lala Nahata v. Chandi Prasad, (2007) 2 SCC 551

94

7. ORDER-7-PLAINT

96

8. ORDER- 8- WRITTEN STATEMENT

96

9. ORDER-6.(Amendment of Pleadings).

96

1. Steel Authority of India Ltd. v. Union of India [2006 (12) SCC 233]

97

2.Sarva Shramik Sangh vs Indian Oil Corporation Ltd

98

3.Mohan Lal v. Mirza Abdul [AIR 1996 SC 910]

100

4.L.N. Aswathama v. P. Prakash

101

5.Jai Jai Ram Manohar Lal vs National Building Material, 1969 AIR SC 1267

103

6.Modi Spinning & Weaving Mills Co. vs LadhaRam & Co, 1977 AIR SC 680

105

7.Ganesh Trading Co vs Moji Ram, AIR 1978 SC 484

106

8.A. K. Gupta And Sons vs Damodar Valley Corporation, AIR 1967 SC 96

108

9.L. J. Leach And Company Ltd vs Jardine Skinner, AIR 1957 SC 357

112

10. ORDER-5 (ISSUE AND SERVICE OF SUMMONS)

115

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C.C. Alavi Haji Vs. Palapetty Muhammed & Anr. (2007) 6 SCC 555

120

Sunil Poddar & Ors vs Union Bank Of India

121

Rama Devi And Anr. vs Ram Prakash And Ors.

122

Mukesh Kumar Richariya vs Smt. Madhu Richariya

122

11. ORDER-9- APPEARANCE OF PARTIES AND CONSEQUENCES OF NONAPPEARANCE:

123

12. ORDER 10: EXAMINATION OF PARTIES BY THE COURT

124

13. ORDER 26 (SECTION 75)- COMMISSIONS

125

14. ORDER-11-DISCOVERY AND INSPECTION

128

Discovery by Interrogatories:

129

Discovery by interrogatories are not allowed to:

129

Answer to the interrogatories:

129

Discovery of Documents:

130

Inspection of Documents:

130

Consequences of not complying with the orders

131

15. ORDER- 12-ADMISSIONS:

131

16. ORDER 38,39 (SECTION 94 AND 151)- TEMPORARY INJUNCTIONS AND INTERLOCUTORY ORDERS 131 A. Injunction with respect to environmental matters

137

1. Manohar Lal Chopra vs. Rai Bahadur, AIR 1962 SC 527

137

2. Dhaneshwar Nath Tewari vs Ghanshyam Dhar Misra

138

3. Buddha Films Pvt. Ltd. vs Prasar Bharati AIR 2001 Delhi 488, 92 (2001) DLT 224 138 4.Chitra Sengupta vs Dhruba Jyoti Sengupta

141

5.Dalpat Kumar And Another vs Prahlad Singh And Others

141

6. M/S Gujarat Bottling Co.Ltd. & Ors vs The Coca Cola Co. & Ors, 1995 (5) SCC 545 143 7. Prakash Singh V/s State of Haryana 2002 (4) Civil L.J. 71 (P.H.)

146

8. Virmani, Roy & Kutty v Ansal Properties and Industries Ltd AIR 2003 Del 158

146

9. Lark Laboratories (India) Ltd v Medico Interpharma Ltd AIR 2002 Guj 368

147

17. ARREST AND ATTACHMENT BEFORE JUDGEMENT (ORDER 38). Attachment before Judgement 18. PROCEDURES FOR CHALLENGING ORDERS, DECREES ETC.

147 148 148

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1. S. 100 : Second Appeal (r/w O. 41 & O.42)

149

PROCEDURE IN APPEALS

150

2. SCOPE OF POWERS OF THE APPELLATE COURT (S. 107)

150

3. REVIEW [S. 114 r/w O.47 R.1]

151

Conditions for review (o.47)

151

Observations

151

4. REVISION (S.115)

152

Observations

152

What is error apparent?

153

ARTICLE 227 of the CONSTITUTION

154

5. REFERENCE (S.113)

155

19. ORDER- XXVIIA

155

20. ORDER- 22

156

SUBSTITUTION

156

Abatement of Suits

157

Cases where the right to sue survives

157

Effect of Marriage

158

Effect of Insolvency

158

21. Summary Suits Order 37

158

1. Ramkarandas Radhavallabh vs Bhagwandas Dwarkadas

159

2. Govind bhai dayal mangev Vijaykumar Balkishan Agarwal & Anr.

160

3. Madhusudan Shrikrishna v M/s Emkay Exports & Ors 2008 (5) Bom CR R 938.

161

4. IDBI Trusteeship Services Ltd. v/s Hubtown Ltd

161

How do we understand “special circumstances”?

165

5. Karumilli Bharathi V. Prichikala Venkatachalam, AIR 1999 A.P. 427

165

6. Mohan Lal V. Om Prakash, AIR 1989 Raj. 132

166

7. Raja V. Sha Rikhabdas Suresh Kumar, 1986 MLJ 108

166

22. ORDER- 21- SECTION 36-74

166

Section- 37

166

Transfer of Decree for Execution(S. 39)

168

From Court passing decree to another Court-

168

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Scope & Powers of Executing Court to decide controversies

168

Powers of Court to enforce Execution (S. 51)

168

Procedure

168

Who can apply for the execution?

169

Against Whom?

169

Notice Before Ordering Execution [R.22]

169

Execution Proceedings

170

Execution against person : Arrest and Detention (S. 55 )

170

Period of Detention-Section 58

170

Jolly George Verghese & Anr vs The Bank Of Cochin, AIR 1980 SC 470 Attachment- Section-60

171 172

Under Rule-41

172

Under Rule-58

173

Sale of attached property

173

Procedure for Sale :

173

Procedure for sale of movables:

174

• Procedure for sale of immovables

174

Under Rule 90

174

Under Rule 91

174

Under Rule 92

174

Other Modes of Execution

174

Stay of Execution (R. 26)

175

Resistance /Obstruction to possession of Immovable Property (R.97)

175

Dispossession of Third Party by Decree Holder / Purchaser (R. 99)

175

Modes of Paying money under a decree (Rule 1)

175

Appropriation of deposited money to different heads

176

Appropriation of money (for deposits in terms of R.1 of O.21)

177

Gurpreet Singh v. Union of India (https://indiankanoon.org/doc/1736128/)

177

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