LB 501 – Civil Procedure
Part ONE – Ss 1 to 158, CPC
Topic 1: Definitions
Section 2(2):- “decree” means
the formal expression of an adjudication which, so far as regards
the Court expressing it, conclusively determines the rights of the parties
with regard to all or any of the matters in controversy in the suit and may
be either preliminary or final. It shall
be deemed to include the rejection of a plaint and the determination of
any question within 1 [* * *] section 144, but shall not include-
(a) any adjudication from
which an appeal lies as an appeal from an order, or
(b) any order of dismissal
for default.
Explanation – A decree is
preliminary when further proceedings have to be taken before the suit can be
completely disposed of. It is final when such adjudication completely disposes
of the suit, it may be partly preliminary and partly final;
S 2(3):- “decree-holder”
means any person in whose favour a decree has been passed or an order capable
of execution has been made;
S 2(9):- “judgment” means the
statement given by the judge on the grounds of a decree or order;
S2 (10) “judgment-debtor”
means any person against whom a decree has been passed or an order capable of
execution has been made;
S2(11) “legal representative”
means a person who in law represents the estate of a deceased person, and
includes any person who intermeddles with the estate of the deceased and where
a party sues or is sued in a representative character the person on whom the
estate devolves on the death of the party so suing or sued;
S2(12) “means profits” of
property means those profits which the person in wrongful possession of such
property actually received or might with ordinary diligence have received
therefrom, together with interest on such profits, but shall not include
profits due to improvements made but the person in wrongful possession;
S2 (14) “order” means the
formal expression of any decision of a Civil Court
Topic 2: Jurisdictions of Courts, Principles of Res
subjudice & Res Judicata
Ss 9 to 14 & Order II,
Rules 1 & 2 – Suit to include whole claim.
Section 9. Courts to try all civil suits unless
barred.
The Courts shall (subject to
the provisions herein contained) have jurisdiction to try all suits of a civil
nature excepting suits of which their cognizance is either expressly or
impliedly barred.
1[Explanation I].- A suit in
which the right to property or to an office is contested is a suit of a civil
nature, notwithstanding that such right may depend entirely on the decision of
questions as to religious rites or ceremonies.
2[Explanation ll].- For the
purposes of this section, it is immaterial whether or not any fees are attached
to the office referred to in Explanation I or whether or not such office is
attached to a particular place.].
COMMENTS
(i) The appropriate form for
resolution of an industrial dispute is the forum constituted under Industrial
Disputes Act, 1947. Jurisdiction of Civil
Court
(ii) Telephone
bill—Jurisdiction of Civil Court—The Civil Court has jurisdiction to enforce
the right of a subscriber under section 7B of the Telegraph Act; Union of India
v. Sasi S., AIR 1999 Ker 336.
(iii) The application for
grant of interim relief would not be disposed of till decision on question of
jurisdiction although ad-interim relief can be granted in view of provisions
under section 9A(2); ICICI Ltd. v. Sri Durga Bansal Fertilizers Ltd., AIR 1999
Bom 402.
(iv) Under section 9 of the
Code of Civil Procedure, the jurisdiction of Civil Court with regard to a
particular matter can be said to be excluded if there is an express provision
or by implication it can be inferred that the jurisdiction is taken away; Union
of India v. Sasi S., AIR 1999 Ker 336.
Section 10. Stay of suit.
No Court shall proceed with the trial
of any suit in which the matter
in issue is also directly and
substantially in issue in a previously instituted suit between the same parties, or between
parties under whom they or any of them claim litigating under the same title
where such suit is pending in the same or any other Court in 1[India] having
jurisdiction to grant the relief claimed, or in any Court beyond the
limits of 1[India] established or continued by 2[the Central
Government] 3[***] and having like jurisdiction, or before 4[the
Supreme Court].
Explanation- The pendency
of a suit in a foreign Court does not preclude the Courts in 1[India
COMMENTS
(i) The language of section
10 suggests that it is referable to a suit instituted in the civil court and it
cannot apply to proceedings of other nature instituted under any other statute;
National Institute of Mental Health and Neuro-Sciences v. C. Parmeshwara, AIR
2005 SC 242.
(ii) Two suits—Between same
parties—Involving same subject‑matter and same questions—Held, subsequent suit should
be stayed; Radhika Konel Parekh v. Konel Parekh, AIR 1993 Mad 90: (1993) LW
159: (1993) 1 Mad LJ 163.
Section 11. Res judicata.
No Court shall try any suit
or issue in which the matter directly and substantially in issue has been
directly and substantially in issue in a former suit between the same
parties, or between parties under whom they or any of them claim, litigating
under the same title, in a Court competent to try such subsequent
suit or the suit in which such issue has been subsequently raised,
and has been heard and finally decided by such Court.
Explanation I- The expression
“former suit” shall denote a suit which has been decided prior to the
suit in question whether or not it was instituted prior thereto.
Explanation II.- For the
purposes of this section, the competence of a Court shall be determined
irrespective of any provisions as to a right of appeal from the decision of
such Court.
Explanation III.- The matter
above referred to must in the former suit have been alleged by one party and
either denied or admitted, expressly or impliedly, by the other.
Explanation IV.- Any
matter which might and ought to have been made ground of defence or attack in
such former suit shall be deemed to have been a matter directly and
substantially in issue in such suit.
Explanation V.- Any relief
claimed in the plaint, which is not expressly granted by the decree, shall, for
the purposes of this section, be deemed to have been refused.
Explanation VI- Where persons
litigate bona fide in respect of public right or of a private right claimed
in common for themselves and others, all persons interested in such right
shall, for the purposes of this section, be deemed to claim under the persons
so litigating.
[Explanation VII.- The
provisions of this section shall apply to a proceeding for the execution of
a decree and reference in this section to any suit, issue or former suit
shall be construed as references, respectively, to proceedings for the
execution of the decree, question arising in such proceeding and a former
proceeding for the execution of that decree.
Explanation VIII.-An issue
heard and finally decided by a Court of limited jurisdiction, competent to
decide such issue, shall operate as res judicata in as subsequent suit,
notwithstanding that such Court of limited jurisdiction was not competent to
try such subsequent suit or the suit in which such issue has been subsequently
raised.]
COMMENTS
(i) The principle of res
judicata is a procedural provision. A jurisdictional question if wrongly
decided would not attract the principles of res judicata. When an order is
passed without jurisdiction, the same becomes a nullity. When an order is a
nullity, it cannot be supported by invoking procedural principle; Management of
Sonepat Co-op. Sugar Mills Ltd. v. Ajit Singh, AIR 2005 SC 1050.
(ii) There is a distinction
between issue estoppel and res judicata. Res judicata debars a court
from exercising its jurisdiction to determine the lis if it has attained
finality whereas the doctrine of issue estoppel is invoked against the
party. If such issue is decided against him, he would be estopped from raising
the same in the latter proceedings. The doctrine of res judicata creats a
different kind of estoppel viz. estoppel by Accord; Bhanu Kumar Jain v. Archana
Kumar, AIR 2005 SC 626.
(iii) First writ petition
filed on the ground of apprehended bias and subsequent second petition
was filed on allegations of actual bias, is not barred by res judicata;
G.N. Nayak v. Goa University, AIR 2002 SC 790.
(iv) Section 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 of which
the said rule rests is founded on the consideration of public policy; Sumer
Mal v. State of Rajasthan, AIR 2000 Raj 1.
(v) The technical
principle of res judicata would not be operative more so, if substantial change
in circumstances is averred and found prima facie justified; Smt. Rehana Parveen
v. Naimuddin, AIR 2000 MP 1.
(vi) Assuming, the cause
of action in both the suits was based upon title in the suit land and was
akin in all the cases, yet, as referred to above, in as much the earlier
two suits were dismissed as withdrawn with permission to file fresh on the same
cause of action, third suit will not be barred by any principle of law;
Harbhagwan v. Smt. Punni Devi, AIR 1999 P&H 223.
(vii) Where the Sangh has
been duly represented in the previous court proceedings and were litigating
bona fidely which resulted in failure cannot be allowed to lay any objection in
execution or to plead nullity of decree hence doctrine of res judicata applies.
The decree of ejectment will bind every member of Sangh; Singhai Lal Chand Jain
v. Rashtriya Swayam Sewak Sangh, Panna, JT 1996(3) SC 64.
Section 12. Bar to further suit.
Where a plaintiff is
precluded by rules from instituting a further suit in respect of any particular
cause of action, he shall not be entitled to institute a suit in respect of
such cause of action in any Court to which this Code applies.
Section 13. When foreign judgment not conclusive.
A foreign judgment shall be conclusive as to any matter
thereby directly adjudicated upon between the same parties or
between parties under whom they or any of them claim litigating under
the same title except-
(a) where it has not been
pronounced by a Court of competent jurisdiction;
(b) where it has not been
given on the merits of the case;
(c) where it appears on the face of the proceedings
to be founded on an incorrect view
of international law or a refusal
to recognise the law of 1[India
(d) where the proceedings in
which the judgment was obtained are opposed
to natural justice;
(e) where it has been obtained by fraud;
(f) where it sustains a claim founded on a breach of any
law in force in 1[India
Section 14. Presumption as to foreign judgments.
The Court shall presume upon
the production of any document purporting to be a certified copy of a foreign
judgment that such judgment was pronounced by a Court of competent jurisdiction,
unless the contrary appears on the record; but such presumption may
be displaced by proving want of jurisdiction.
ORDER II – FRAME OF SUIT (THE FIRST SCHEDULE)
Order II Rule 1. Frame of suit
Every suit shall as far as
practicable be framed so as to afford
ground for final decision upon the subjects in dispute and to prevent further litigation concerning
them.
Order II Rule 2. Suit to include the whole claim.
(1) Every suit shall include the whole of the claim
which the plaintiff is entitled to make in respect of the cause of action; but
a plaintiff may relinquish
any portion of his claim in order to bring the suit within the
jurisdiction of any Court.
(2) Relinquishment of part of
claim-Where a plaintiff omits to sue in respect of, or intentionally
relinquishes, any portion of his claim he shall not afterwards sue in respect
of the portion so omitted or relinquished.
(3) Omission to sue for one
of several reliefs-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 so omitted.
Explanation-For the purposes
of this rule an obligation and a collateral security for its performance and
successive claims arising under the same obligation shall be deemed
respectively to constitute but one cause of action.
Illustration
A lets a house to B at a
yearly rent of Rs. 1200. The rent for the whole of the years 1905, 1906 and
1907 is due and unpaid. A sues B in 1908 only for the rent due for 1906. A
shall not afterwards sue B for the rent due for 1905 or 1907.
(More on O2 R1 & R2: http://www.legalblog.in/2011/09/relinquishment-of-claim-under-order-ii.html
)
1. Gundaji Satwaji Shinde v Ram Chandra Bhikaji Joshi, AIR 1979 SC 653
Section 63 of the Bombay
The Bombay High Court in a case coming
before it on the interpretation of s. 85 held that where in a suit in a civil
court an issue arises which has to be decided under the provisions of s. 70,
the civil court should refer the parties to the competent authority under the
Tenancy Act to get the question decided and such decision would be binding on
the civil court. Taking note of this decision s. 85A was added to the Tenancy
Act, enabling the civil court to refer the issue to the competent authority to
decide whether the jurisdiction of the civil court is barred under s. 85. The
plaintiff's suit for specific performance of a contract for sale of land was
resisted by the defendant alleging that since he (the plaintiff), was not an
agriculturist, he was prohibited by s. 63 of the Tenancy Act from purchasing
agricultural land and the contract being contrary to the provisions of the Act
is not capable of being specifically enforced.
The trial court dismissed the
plaintiff's suit on the ground that he was not an agriculturist. It
held that the issue whether or not the plaintiff was an agriculturist being
incidental in a suit for specific performance of a contract the civil court had
jurisdiction to decide such incidental issues. On appeal the High Court held
that the civil court which had jurisdiction to entertain a suit for specific
performance, it would have jurisdiction to decide the incidental issue whether
the plaintiff was an agriculturist or not.
The question before the Supreme Court was
where in a suit for specific performance, an issue arose whether the plaintiff
was an agriculturist or not on the date of agreement whether the civil court
would have jurisdiction to decide the issue or it is required to refer it to
the Mamlatdar under s. 70 read with s. 85A. Allowing the appeal and
remitting the case to the trial court for disposal.
HELD: 1. The Legislature having expressly
ousted the jurisdiction of the civil court to settle, decide or deal with any
question which is by or under the Tenancy Act required to be settled, decided
or dealt with by any of the authorities therein mentioned the authority to decide the issue whether the vendee was an
agriculturist would be the Mamlatdar as provided in s. 70(a).
2 . The expression "any issues which
are required to be settled, decided or dealt with by any authority competent to
settle, decide or deal with such issues under this Act" in s. 85A would
only mean that, if upon contest an issue which is required to be settled,
decided and dealt with by the competent authority under the Tenancy Act arises,
notwithstanding the fact that such an issue arises in a properly constituted
civil suit cognizable by the civil court, it would have to be referred to the
competent authority under the Tenancy Act.
3. Merely because jurisdiction is
conferred on the Mamlatdar to decide whether a person is an
agriculturist within the meaning of the Tenancy Act, it does not ipso facto
oust the jurisdiction of the civil court to decide that issue if it
arises before it in a civil suit. Unless the Mamlatdar is constituted an exclusive
forum to decide the question, conferment of such jurisdiction would not
oust the jurisdiction of the civil court. It is settled law that
exclusion of jurisdiction of the civil court is not to be readily inferred
but that such exclusion must
either be explicitly expressed
or clearly implied.
4. The finding of the competent
authority under the Tenancy Act is made binding on the civil court. The jurisdiction
of the civil court to settle, decide or deal with any issue which is required
to be settled, decided or dealt with by any competent authority under the Act
is totally ousted. This would lead to the conclusion that the Mamlatdar
while performing the function and discharging his duties conferred on him by s.
70 would constitute an exclusive forum. Section 70(a) requires
the Mamlatdar to decide whether a person is an, agriculturist. Therefore,
if an issue arises in a civil court whether a person is an agriculturist within
the meaning of the Tenancy Act, the Mamlatdar alone would have exclusive
jurisdiction under the Act to decide the same and the jurisdiction of the civil
court is ousted. The civil court, as required by s. 85A, will have to frame an
issue and refer it to the Mamlatdar and on the reference being answered back,
to dispose of the suit in accordance with the decision recorded by the
competent authority.
2. Indian Bank v Maharashtra State Cooperative Marketing Federation
Ltd, AIR 1998 SC 1952
A suit under Order 37 of the Code was filed and the Supreme
Court held that till the grant of leave to defend, the proceedings would remain
summary and would not be covered by Section 10 of the Code. However, after
leave to defend is granted, the proceedings may be in nature of trial
contemplated by Section 10. The observation of their Lordships in this regard
read as under:-
The provision is in the
nature of a rule of procedure and does not affect the jurisdiction of the court
to entertain and deal with the later suit nor does it create any substantive
right in the matters. It is not a bar to the institution of a suit. It has been
construed by the Court as not a bar of the passing of interlocutory orders such
an order for consolidation of the later suit with the earlier suit, or
appointment of a Receiver or an injunction or attachment before judgment. The
course of action which the Court has to follow according to Section 10 is not
to proceed with the trial of the suit but that does not mean that it cannot
deal with the subsequent suit any more or for any other purpose. In view of the
object and nature of the provision and the fairly settled legal position with
respect to passing of interlocutory orders it has to be stated that the word
"trial" in Section 10 is not used in its widest sense.
3. Iftikhar Ahmed v Syed Meharban Ali AIR 1974 SC 749
The dispute between the appellants and the
respondents, as to who were the bhumidars of certain properties, was, referred
by the Consolidation Officer under the U.P. Consolidation of Holdings Act,
1953, to the, Civil Judge, who referred it to an arbitrator appointed under the
Act. The arbitrator held that the respondents had no title as bhumidar, relying
upon a judgment of the High Court, which, according to the arbitrator operated
as res- judicata between the parties. That judgment was delivered in a suit
instituted by the appellant's predecessor and the Present respondents for a
declaration that a mortgage decree in favour of the defendant in that suit did
not affect the shares of the respondents in the properties in dispute, and the
High Court held that the appellant's predecessor alone was entitled to the
properties, accepting the contention of the defendant in that suit that the
respondents had no title whatsoever.
The Civil Judge held that the award was
manifestly wrong because, that judgment according to him did not operate as
res-judicata between the parties. He therefore set aside the award and remitted
the case to another arbitrator. The second arbitrator held that the appellant
and respondents were cobhumidars and determined the shares of the parties holding
that the judgment of the High Court did not operate as res judicata. This award
was confirmed by the Civil Judge and the High Court agreed with the Civil
Judge.
Allowing the appeal to this Court,
HELD: (a) If a judgment is to operate as
res judicata between co- defendants it is necessary to establish (i) that there
was a conflict of interest between
the co-defendants,
(ii) that it was necessary to decide
the conflict in order to give relief to the plaintiff, and
(iii) that the Court actually decided
the question. There is no reason why a previous decision could not operate
as res judicata between co-plaintiffs also if these three conditions are
satisfied mutatis mutandis.
(b) In the judgment of the High Court
which was relied upon as having operated as res judicata there was actual
conflict of interest between the present appellant on the one hand and the
present respondent on the other, they were the plaintiffs in that suit, and it
was necessary to decide that conflict in order to give relief to the defendant
in that suit; and the High Court decided that the properties belonged
exclusively to the appellant's predecessor. The effect of that judgment is that
the present respondents failed to-establish their contention that they had
title to the properties.
(c) There was no finding by the arbitrator
that by adverse possession the respondents had acquired title to the property
at any time.
(d) The Provisions of Arbitration Act
apply to proceedings before an arbitrator under the U.P. Consolidation of Holdings
Act. Therefore, if the judgment of the High Court operated in law as res
judicata it would be an error of law apparent on the face of the award if it
says that the judgment would not operate as res judicata. Hence, the Award in
the present case was liable, to be set aside under s. 30 of the Arbitration
Act.
(e) Under s. 39 of the Arbitration Act no
appeal lies from an order remitting an award to an arbitrator under s. 16 of
the Arbitration Act. Therefore, the appellant could not have challenged the order
when the Civil Judge set aside the first award and remitted the case to the
arbitrator for passing a fresh award. Hence, there is no reason why the
appellant should be precluded from challenging the correctness of that order in
this appeal and getting relief on that basis.
(f) Since, in the circumstances of the
case it would be an empty formality to remit the case again to the arbitrator
the award of the first arbitrator is restored.
4. State of UP v Nawab Hussain, AIR 1977 SC 1680
In a writ petition filed under Art. 226 of
the Constitution impugning his dismissal from service, the respondent contended
that since he had not been given a reasonable opportunity of meeting the
allegations against him, his dismissal was void. The writ petition was dismissed.
Thereupon, the respondent flied a suit in a civil court challenging his
dismissal on the ground, among others, that since he had been appointed by the
Inspector-General of Police, his dismissal by the Deputy Inspector General of
Police was wrong. The State took the plea that the suit was barred by
res-judicata. Dismissing the suit, the trial court held that it was not barred
by res-judicata. The first appellate court dismissed the respondent's appeal.
Purporting to follow a line of decisions of this Court, the High Court held
that only that issue between the parties would be res-judicata which was raised
in the earlier writ petition and was decided by the High Court after contest
and since in this case the respondent did not raise in the earlier writ petition
the plea of competence of the Deputy Inspector General of Police to dismiss
him. the parties were never at issue on it and that the High Court never considered
and decided this issue in the writ petition. On the question of invoking the
principle of constructive res- judicata by a party to the subsequent suit on
the ground that the matter might or ought to have been raised in the earlier
proceedings, the High Court held that this question was left open by the
Supreme Court in Gulabchand Chhotalal Parikh v. State of Bombay [1965] 2 SCR
547, and allowed the respondent's appeal.
Allowing the States appeal to this Court.
HELD: The High Court was wrong in its view
because the law in regard to the applicability of the principle of constructive
res-judicata having been clearly laid down in Devi Lal Modi v. Sales Tax
Officer Ratlam and Others [1965] 1 S.C.R. 686 it was not necessary to reiterate
it in Gulabchand's case as it did not arise for consideration in that case. The
clarificatory observation in Gulabchand's case was misunderstood by the High
Court in observing that the matter had been left open by this Court.
1. The doctrine of res-judicata is based
on two theories: (i) the finality and conclusiveness of judicial decisions for
the final termination of disputes in the general interest of the community as a
matter of public policy, and (ii) the interest of the individual that he should
be protected from multiplication of litigation.
2. (a) In certain cases, the same set of
facts may give rise to two or more causes of action. In such cases res-
judicata is not confined to the issues which the Court is actually asked to
decide but covers issues or facts which are so clearly part of the subject
matter of the litigation and so clearly could have been raised that it would be
an abuse of the process of the court to allow a new proceeding to be started in
respect of them. This rule has sometimes been referred to as constructive
res-judicata which is an aspect or amplification of the general principle.
(b) Section 11 of the Code of Civil
Procedure, with its six explanations, covers almost the whole field, but the
section has, in terms, no application to a petition for the issue of a high
prerogative writ.
(c) Although in the Amalgamated
Coalfields Ltd. and others v. Janapada Sabha, [1962] 1 S.C.R. 1 this Court held that
constructive res-judicata being a special and artificial form of res-judicata
should not generally be applied to writ petitions, in Devilat Modi's this Court
held that if the doctrine of constructive res judicata was not applied to writ
proceedings, it would be open to a party to take one proceeding after another
and urge new grounds every time, which was plainly inconsistent with considerations
of public policy. The principle of constructive res-judicata was, therefore,
held applicable to writ petitions as well.
3. The High Court missed the significance
of these decisions and relied upon L. Jankirama lyer and 'Others v.P.M.
Nilakanta lyer and Others [1962] Supp. 1 S.C.R. 206 which had no bearing on the
controversy. In Gulabchand's case, this Court observed that it did not consider
it necessary to examine whether the principle of constructive res-judicata
could be invoked by a party to the subsequent suit on the ground that a matter
which might or ought to have been raised in the earlier proceeding but was not
so raised therein could be raised again relying on which the High Court
concluded that the question was left open by this Court. This in turn led the
High Court to hold that the principle of res-judicata could not be made
applicable to a writ petition.
In the instant case, the respondent did
not raise the plea that he could not be dismissed by the Deputy Inspector
General of Police. This was an important plea which was within his knowledge
and could well have been taken in the writ petition. Instead he raised the plea
that he was not afforded a reasonable opportunity of meeting the case in the
departmental inquiry. It was therefore not permissible for him to take in the
subsequent suit the plea that he had been dismissed by an authority subordinate
to that by which he was appointed. That was clearly barred by the principle of
constructive res-judicata and the High Court erred in taking a contrary view.
5. C.A. Balakrishnan v Commissioner Corporation
of Madras , AIR 2003 Mad.
(Constructive res-judicata
applied to a writ proceeding also.)
(Main Question)
7. Whether Order II, Rule 2,
applies to the writ petitions or not? The principle underlying Order II, Rule 2
being based upon public policy. A person who files a suit seeking certain
relief in respect of a cause of action and who is precluded from instituting
another suit for seeking other reliefs in respect of same cause of action under
Order II, Rule 2, CPC. Now we have a look on Order II, Rule 2, C.P.C. :
"2. Suit to include the
whole claim--(1) Every suit shall include the whole of the claim which the
plaintiff is entitled to make in respect of the cause of action; but a plaintiff
may relinquish any portion of his claim in order to bring the suit within the
jurisdiction of any Court.
(2) Relinquishment of part of
claim--Where a plaintiff omits to sue in respect of, or intentionally
relinquishes, any portion of his claim, he shall not afterwards sue in respect
of the portion so omitted or relinquished.
(3) Omission to sue for one
of several reliefs--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 so omitted.
Explanation--For the purposes
of this rule an obligation and a collateral security for its performance and
successive claims arising under the same obligation shall be deemed
respectively to constitute but one cause of action."
It is evident from Order II,
Rule 2, C.P.C. that the suit shall include the whole claim, the relinquishment
of part of claim is not permissible and omission to sue for one several reliefs
also prohibited. Hence, once a suit is filed for certain relief in respect of a
cause of action, the person who has filed is precluded from instituting another
suit for certain other reliefs with respect to the same cause of action. Hence,
the same person cannot be allowed to invoke the writ jurisdiction of this Court
for obtaining the very same reliefs. Indeed, if second suit is barred, a writ
petition would equally be barred, public policy underlying Order II, Rule 2,
CPC is attracted with equal vigour in this situation also.
8. Apex Court of India in
Devilal v. Sales Tax Officer, Ratlam, , has held in page No. 1153 as follows :
"..........
Consideration of public policy and the principle of the finality of judgments
are, important constituents of the rule of law, and they cannot be allowed to
be violated, just because a citizen contends that his fundamental rights have
been contravened by an impugned order and wants liberty to agitate the question
about its validity to agitate the question about its validity by filing one
writ petition after another....... If constructive res judicata is not applied
to such proceedings a party can file as many writ petitions as he likes and
take one or two points every time. That clearly is opposed to considerations of
public policy on which res judicata is based and would mean harassment and
hardship to the opponent. Besides, if such a course is allowed to be adopted,
the doctrine of finality of judgments pronounced by this Court would also be
materially affected. We are, therefore, satisfied that the second writ petition
filed by the appellant in the present case is barred by constructive res
judicata."
The above said decision was
followed by the Division Bench of the Andhra Pradesh High Court in K. Madhadeva
Sastry v. Director, Post Graduate Centre, Anantapur, .
"11. Now, so far as the
second situation is concerned here too there cannot be any doubt about the
general principle that Order II, Rule 2 would apply. A person who files a suit
seeking certain relief in respect of a cause of action and who is precluded
from instituting another suit for seeking other reliefs with respect to the
same cause of action, cannot be allowed to invoke the writ jurisdiction of this
Court for obtaining the very same reliefs. Indeed, if a suit is barred, a writ
petition would equally be barred, public policy underlying Order II, Rule 2,
CPC is attracted with equal vigour in this situation as well."
"13. Another factor to
be borne in mind is that by 1962, the Supreme Court had not even clarified the
position about the applicability of the rule of constructive res judicata in
writ proceedings. Indeed, the very applicability of the rule of res judicata in
writ proceedings came to be raised and discussed from Daryao's case in . It is
only later that the Supreme Court clarified in Devilal v. Sales Tax Officer,
Ratlam, that the rule of constructive res judicata also applies to writ
proceedings. It observed (at p. 1153)."
9. In view of the above said
decisions of the Apex Court
(More about constructive res
judicata: http://tinyurl.com/p8sokcf )
6. Bharat Nidhi Ltd. v Megh Raj Mahajan, AIR 1967 Del
JUDGMENT
1. On 24th August, 1949,
Bharat Nidhi Limited, then known as Bharat Bank Limited, the
plaintiff-appellant, filed a suit against Megh Raj Mahajan,
defendant-respondent for recovery of Rs.61,194/2/- being the debit balance in
the cash credit account with the plaintiff.. On 20th December, 1949, the Senior
Subordinate Judge, Sialkot , decreed the suit and
the present suit for recovery of Rs.63,004-15-00 was filed on 12th June, 1954,
on the basis of the judgment of the Senior Subordinate Judge, Sialkot Sialkot
Court Pakistan India Pakistan
2. The only question that
arises is: whether the judgment and decree were nullity having been passed by a
foreign Court? The answer will primarily depend upon whether the defendant was
a non-resident foreigner qua the Sialkot Courts on the relevant date. There has
been some controversy at the bar as to what the relevant date is. According to
Mr. Yogeshwar Dayal, the learned counsel for the appellant the relevant date
would be the date of the commencement of the action, while Mr. Whig, the
learned counsel for the defendant, maintains that the crucial date is the date
of decree. I will advert to this controversy also a little later. It is not
disputed that the defendant never submitted to the jurisdiction of the Sialkot Court Sialkot
Court
"It is denied that the
amount, if any, to the plaintiff was payable at Sialkot, or any other place in
Pakistan on the 24th August, 1949, when the defendant had since long before
ceased to reside or carry on business in Sialkot and had actually migrated to
India and become an Indian national." The plaintiff filed his replication
to the said written-statement and while dealing with paragraph 4 of the
written-statement said -
"Allegations in para 4
which are contrary to the facts mentioned in para 4 of the plaint are not
admitted to be correct and are denied."
It necessarily, follows that
the statement of the defendant about his having actually migrated to India
(2) Mr. Yogeshwar Dayal, then
pointed out that the burden of issue (iiA) which read - "whether the
Sialkot Court had no jurisdiction to pass this decree for the reasons mentioned
in paras 4, 12 and 13 of the written-statement" - was on the defendant and
the parties at the time of framing issues do not appear to have taken any
notice of the admission. Even if that be so, the defendant could very well rely
on the admission for proving one of the facts having a bearing on the issue.
That, however, is not the end of the matter. The defendant appeared as his own witness
as D.W. 5 and stated -
"Prior to Partition I
was residing at Sialkot India Sialkot India India Pakistan
or Sialkot Sialkot till
September 1947, he shifted in September 1947 to the territories comprised in India after 15th August, 1947, became a
permanent domicile and resident thereof with no intention of going back to Pakistan , and never went to Pakistan Sialkot and on the date of the judgment the defendant was
a domicile and a resident of India Sialkot
Court
3. Mr. Yogeshwar Dayal
relying on the above quoted observation in the decree passed by the Sialkot
Court about the defendant having been duly served says that it must be presumed
that the defendant was served with the summons in the Sialkot suit when
physically present in Pakistan and such presence was enough to render the
foreign decree and the judgment valid and binding on the defendant. Relying on
the Conflict of Laws by Graveson, Fifth Edition, Page 543, and Cheshire's
Private International Law, Seventh Edition, Page 547, Mr. Yogeshwar Dayal
contends that a foreign judgment obtained against a non-resident foreigner can
be enforced if the defendant is present within the jurisdiction on the date of
the institution of the proceedings even though his presence may be for only a
short time. It is not necessary to resolve this controversy because the
evidence of the defendant as D.W. 5 clearly establishes that he never visited Pakistan Sialkot decree would be justified even if the defendant
had been served in any territory outside Pakistan
4. From the evidence it must
be held that the defendant was neither a national, nor domicile, nor a citizen,
nor a resident of Pakistan Pakistan India
5. Appeal dismissed.
7. Y. Narasimha Rao v Y Venkata Lakshmi (1991) 2 SCR 821
The first appellant and the first
respondent were married at Tirupati on 27.2.1975 according to Hindu Law. They
separated in July 1978. The appellant-husband filed a petition for dissolution
of the marriage in the Sub-Court of Tirupati stating that he was a resident of South Claiborn Avenue , New Orleans , Louisiana India
and that he and his wife last resided together at New Orleans , Louisiana New Orleans ,
Louisiana and never within the jurisdiction of
th Circuit Court of St. Louis Country in the State of Missouri
The Circuit Court Missouri assumed
jurisdiction on the ground that the 1st Appellant had been a resident of the
State of Missouri Missouri Missouri ,
the appellant filed an application for dismissal of his earlier petition before
the Sub-Court of Tirupati
On 2nd November 1981 the last appellant
married appellant No. 2. Thereafter, the 1st-respondent filed a criminal
complaint against the appellants for the offence of bigamy. The appellants filed
an application for their discharge in view of the decree for dissolution of
marriage passed by the Circuit Court, Missouri
Dismissing the appeal, this Court,
HELD: 1. The decree dissolving the
marriage passed by the foreign court is without jurisdiction according to the
Hindu Marriage Act as neither the marriage was celebrated nor the parties last
resided together nor the respondent resided within the jurisdiction of that
Court. Further, irretrievable breakdown of marriage is not one of the grounds
recognised by the Act of dissolution of marriage. Hence, the decree of the
divorce passed by the foreign court was on a ground unavailable under the Act
which is applicable to the marriage. Since with regard to the jurisdiction of
the forum as well as the ground on which it is passed the foreign decree in the
present case is not in accordance with the Act under which the parties were
married, and the respondent had not submitted to the jurisdiction of the court
or consented to its passing, it cannot be recognised by the courts in this
country and is therefore, unenforceable.
2. Residence does not mean a temporary
residence for the purpose of obtaining a divorce but habitual residence or
residence which is intended to be permanent for future as well.
Smt.
Satya v. Teja Singh, [1975]
2 S.C.R. 1971, referred to.
3. The rules of Private International Law
in this country are not codified and are scattered in different enactments such
as the Civil Procedure Code, the Contract Act, the Indian Succession Act, the
Indian Divorce Act, the Special Marriage Act etc. In addition, some rules have
also been evolved by judicial decisions. In matters of status or legal capacity
of natural persons, matrimonial disputes, custody of children, adoption,
testamentary and intestate succession etc. the problem in this country is
complicated by the fact that there exist different personal laws and no uniform
rule can be laid down for all citizens. Today more than ever in the past, the
need for definitive rules for recognition of foreign judgments in personal and
family matters, and particularly in matrimonial disputes has surged to the
surface. A large number of foreign decrees in matrimonial matters is becoming
the order of the day. A time has, therefore, come to ensure certainty in the
recognition of the foreign judgments in these matters. The minimum rules of
guidance for securing the certainty need not await legislative initiative. This
Court can accomplish the modest job within the frame-work of the present statutory
provisions if they are rationally interpreted and extended to achieve the
purpose. Though the proposed rules of guidance in this area may prove
inadequate or miss some aspects which may not be present to us at this
juncture, yet a beginning has to be made as best as one can, the lacunae and
the errors being left to be filled in and corrected by future judgments.
4. The relevant provisions of Section 13
of the CPC are capable of being interpreted to secure the required certainty in
the sphere of this branch of law in conformity with public policy, justice,
equity and good conscience, and the rules so evolved will protect the sanctity
of the institution of marriage and the unity of family which are the corner
stones of our social life.
4.1 On an analysis and interpretation of
Section 13 of CPC the following rule can be deduced for recognising a foreign
matrimonial judgment in this country. The jurisdiction assumed by the foreign
court as well as the grounds on which the relief is granted must be in accordance
with the matrimonial law under which the parties are married. The exceptions to
this rule may be as follows; (i) where the matrimonial action is filed in the
forum where the respondent is domiciled or habitually and permanently resides
and the relief is granted on a ground available in the matrimonial law under
which the parties are married; (ii) where the respondent voluntarily and
effectively submits to the jurisdiction of the forum and contests the claim
which is based on a ground available under the matrimonial law under which the
parties are married; (iii) where the respondent consents to the grant of the
relief although the jurisdiction of the forum is not in accordance with the
provisions of the matrimonial law of the parties.
5. The High Court erred in setting aside
the order of the learned Magistrate only on the ground that the Photostat copy
of the decree was not admissible in evidence. In the instant case Photostat
copies of the judicial record of the Court of St. Louis is certified for th
Circuit Clerk by the Deputy clerk who is a public officer having the custody of
the document within the meaning of Section 76 of the Indian Evidence Act also
in the manner required by the provisions of the said section. Hence the Photostat
copy per se is not inadmissible in evidence. It is inadmissible because it has
not further been certified by the representative of our Central Government in
the United States
6. The Magistrate is directed to proceed
with the matter pending before him according to law as expeditiously as possible,
preferably within four months.
Topic 3: Place of Suing (Ss 15 to 21-A)
Section 15.
Court in which suits to be instituted- Every suit shall be instituted in the
court of the lowest grade competent to try it.
Section 16. Suits to be instituted where
subject matter situate.- Subject to the pecuniary or other
limitations prescribed by any law, suits—
(a) for the recovery of immovable property with or without rent or profits,
(b) for the partition of immovable
property,
(c) for foreclosure, sale or redemption in
the case of a mortgage of or charge upon immovable property,
(d) for the determination of any other
right to or interest in immovable property,
(e) for compensation for wrong to
immovable property,
(f) for the recovery of movable property
actually under distrait or attachment, shall be instituted in the Court within
the local limits of whose jurisdiction the property is situate:
Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on 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.
Explanation: In this section “property”
means property situate in India
Section 17. Suits for immovable property
situate within jurisdiction of different courts.- Where a suit is to obtain relief
respecting, or compensation for wrong to, immovable property situate within the
jurisdiction of different courts, the suit may be instituted in any Court
within the local limits of whose jurisdiction any portion of the property is
situate;
Provided that, in respect of the value of
the subject matter of the suit, the entire claim is cognizable by such court.
Section 18. Place of institution of suit
where local limits of jurisdiction of courts are uncertain.- (1) Where it is alleged to be uncertain
within the local limits of the jurisdiction of which of two or more courts any
immovable property is situate, any one of those courts, may, if satisfied that
there is ground for the alleged uncertainty, record a statement to that effect
and there upon proceed to entertain and dispose of any suit relating to that
property, and its decree in the suit shall have the same effect as if the
property were situate within the local limits of its jurisdiction:
Provided that the suit is one with respect
to which the Court is competent as regards the nature and value of the suit to
exercise jurisdiction.
(2) Where a statement has not been recorded under sub-section (1), and an objection is taken before an Appellate or Revisional Court that a decree or order in a suit relating to such property was made by a Court not having jurisdiction where the property is situate, the Appellate or Revisional Court shall not allow the objection unless in its opinion there was, at the time of the institution of the suit, no reasonable ground for uncertainty as to the court having jurisdiction with respect thereto and there has been a consequent failure of justice.
Section 19. Suits for compensation for
wrongs to person or movable.- Where a suit is for compensation for wrong
done to the person or to movable property, if the wrong was done within the
local limits of the jurisdiction of one Court and the defendant resides, or
carries on business, or personally works for gain, within the local limits of
the jurisdiction of another court, the suit may be instituted at the option of
the plaintiff in either of the said courts.
Illustrations
(a) A, residing in Delhi ,
beats B in Calcutta , B may sue A either in Calcutta or in Delhi
(b) A, residing in Delhi ,
publishes in Calcutta statements defamatory of
B. B may sue A either in Calcutta or in Delhi
Section 20. Other suits to be instituted
where defendants reside or cause of action arises .- Subject to the limitations aforesaid,
every suit shall be instituted in a Court within the local limits of whose
jurisdiction—
(a) The defendant, or each of the
defendants where there are more than one, at the time of the commencement of
the Suit, actually and voluntarily resides, or carries on business, or personally
works for gain; or
(b) any of the defendants, where there are
more than one, at the time of the commencement of the suit, actually and
voluntarily resides, or carries on business, or personally works for gain,
provided that in such case either the leave of the Court is given, or the
defendants who do not reside, or carry on business, or personally work for
gain, as aforesaid, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.
Explanation : A corporation shall be deemed to carry on business at its sole or principal office in
Illustrations:
(a) A is a tradesman in Calcutta ,
B carries on business in Delhi Calcutta Calcutta Calcutta , where the cause of
action has arisen, or in Delhi
(b) A resides at Simla, B at Calcutta and C at Delhi Calcutta ,
where B resides, or at Delhi
Section 21. Objections to jurisdiction.- (1) No objection as to the place of suing
shall be allowed by any Appellate or Revisional Court unless such objection was
taken in the Court of first instance at the earliest possible opportunity and
in all cases were issues are settled, at or before such settlement, and unless
there has been a consequent failure of justice.
(2) No objection as to the competence of a
Court with reference to the pecuniary limits of jurisdiction shall be allowed
by any Appellate or Revisional Court unless such objection was taken in the
court of first instance at the earliest possible opportunity, and, in all cases
where sues are settled, at or before such settlement, and unless there has been
a consequent failure justice.
(3) No objection as to the competence of
the executing court with reference to the local limits of its jurisdiction
shall be allowed by any Appellate or Revisional Court unless such objection
taken in the executing court at the earliest possible opportunity, and unless
there has been a consequent failure of justice.
Section 21A. Bar on Suit to set aside
decree on objection as to place of suing .- No suit shall lie challenging the validity
of a decree passed in a former suit between the same ties, or between the
parties under whom they or any of them claim, litigating under the same , on
any ground based on an objection as to the place of suing.
Explanation : The expression ‘former suit”
means a suit which has been decided prior to the decision in the suit in which
the validity of the decree is questioned, whether or not the previously decided
suit was instituted prior to the suit in which the validity of such decree is
questioned.
Topic 4: Power to Transfer Suits (Ss 22 to 25)
Section 22.
Power to transfer Suits which may be Instituted in more than one court.- 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 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.
S 23. To what court application lies.- (1) Where the several courts having
jurisdiction are subordinate to the same Appellate Court, an application under
section 22 shall be made to the Appellate Court.
(2) Where such courts are subordinate to
different Appellate Courts but to the same High Court, the application shall be
made to said High Court.
(3) Where such courts are subordinate to
different High Courts, the application shall be made the High Court within the
local limits of whose jurisdiction the court in which the suit is brought
situate.
Section 24. General power of transfer and
withdrawal.- (1) On the application of any of the
parties and after notice to the parties and after hearing such of them as
desired to be heard, or of its own motion, without such notice, the High Court
or the District Court may, at any stage,—
(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or
(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or
(b) withdraw any suit, appeal or other
proceeding pending in any court subordinate to it; and
(i) try to dispose of the same: or (ii)
transfer the same for trial or disposal to any court subordinate to it and
competent to try or dispose of the same; or (iii) re-transfer the same for
trial or disposal to the court from which it was withdrawn.
(2) Where any suit or proceeding has been
transferred or withdrawn under sub-section (1), the court which is thereafter
to try or dispose of such Suit or proceeding may, subject to any special
directions in the case of an order of transfer, either retry it or proceed from
the point at which it was transferred or withdrawn. -
(3) For the purposes of this section,—
(a) courts of Additional and Assistant Judges
shall be deemed to be subordinate to the District Court;
(b) “proceeding” includes a proceeding for
the execution of a decree or order.
(4) The court trying any suit transferred or withdrawn under this section from a court of small causes shall, for the purposes of such suit, be deemed to be a court of small causes.
(5) A suit or proceeding may be
transferred under this section from a court which has no jurisdiction to try
it.
Section 25. Power of Supreme Court to
transfer suits, etc.- (1) On the application of a party, and
after notice to the parties, and after hearing such of them as desire to be
heard, the Supreme Court may, at any stage, if satisfied that an order under
this section is expedient for the ends of justice, direct that any suit, appeal
or other proceedings be transferred from a High Court or other Civil Court in
one State to a High Court or other Civil Court in any other State.
(2) Every application under this section
shall be made by motion which shall be supported by an affidavit.
(3) The court to which such suit, appeal
or other proceeding is transferred shall, subject to any special directions in
the order of transfer, either re-try it or proceed from the stage at which it
was transferred to it.
(4) In dismissing any application under
this section, the Supreme Court may, if it is of opinion that the application
was frivolous or vexatious, order the applicant to pay by way of compensation
to any person who has opposed the application such sum, not exceeding two
thousand rupees, as it considers appropriate in the circumstances of the case.
(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.
Topic 5: Execution of Decree/Order
(Ss 51, 55, 58, 60 – 62,
Order XXI, Rules 96-106)
Section 51. Powers of court to enforce
execution.- Subject to such conditions and limitations
as may be prescribed, the court may, on the application of the decree holder,
order execution of the decree—
(a) by delivery of any property
specifically decreed;
(b) by attachment and sale or by sale
without attachment of any property;
(c) by arrest and detention in prison for
such period not exceeding the period specified in section 58, where arrest and
detention is permissible under that section;
(d) by appointing a receiver; or
(e) in such other manner as the nature of
the relief granted may require:
Provided that, where the decree is for the
payment of money, execution by detention in prison shall not be ordered unless,
after giving the judgment debtor an opportunity of showing cause why he should
not be committed to prison, the court, for reasons recorded in writing, is
satisfied—
(a) that the judgment debtor, with the
object or effect of obstructing or delaying the execution of the decree,—
(i) is likely to abscond or leave the
local limits of the jurisdiction of the Court. or
(ii) has, after the institution of the suit
in which the decree was passed, dishonestly transferred, concealed, or removed
any part of his property, or committed any other act of bad faith in relation
to his property, or
(b) that the judgment debtor has, or has
had since the date of the decree, the means to pay the amount of the decree or
some substantial part thereof and refuses or neglects or has refused or
neglected to pay the same, or
(c) that the decree is for a sum for which
the judgment debtor was bound in a fiduciary capacity to account.
Explanation : In the calculation of the
means of the judgment debtor for the purposes of clause (b), there shall be
left out of account any property which, by or under any law or custom having
the force of law for the time being in force, is exempt from attachment in
execution of the decree.
Section 55. Arrest and detention.- (1) A judgment debtor may be arrested in
execution of a decree at any hour and on any day, and shall, as soon as
practicable, be brought before the Court, and his detention may be in the civil
prison of the district in which the court ordering the detention is situate,
or, where such civil prison does not afford suitable accommodation, in any
other place which the State Government may appoint for the detention of persons
ordered by the courts of such district to be detained:
Provided, firstly that for the purpose of making an arrest under this section, no dwelling house shall be entered after sunset or before sunrise:
Provided, secondly, that, no outer door of a dwelling house shall be broken open unless such dwelling house is in the occupancy of the judgment debtor and he refuses or in any way prevents access thereto, but when the officer authorised to make the arrest has duly gained access to any dwelling house, he may break open the door of any room which he has reason to believe the judgment debtor is to be found:
Provided, thirdly, that, if the room is in the actual occupancy of a woman who is not the judgment debtor and who according to the customs of the country does not appear in public, the officer authorised to make the arrest shall give notice to her that she is at liberty to withdraw, and, after allowing a reasonable time for her to withdraw and giving her reasonable facility for withdrawing, may enter the room for the purpose of making the arrest:
Provided, fourthly, that, where the decree in execution of which a judgment debtor is arrested, is a decree for the payment of money and the judgment debtor pays the amount of the decree and the costs of the arrest to the officer arresting him, such officer shall at once release him.
(2) The State Government may, by
notification in the Official Gazette, declare that any person or class of
persons whose arrest might be attended with danger or inconvenience to the
public shall not be liable to arrest in execution of a decree otherwise than in
accordance with such procedure as may be prescribed by the State Government in
this behalf.
(3)Where a judgment debtor is arrested in
execution of a decree for the payment of money and brought before the court,
the court shall inform him that he may apply to be declared insolvent, and that
he may be discharged if he has not committed any act of bad faith regarding the
subject of the application and if he complies with the provisions of the law of
insolvency for the time being in force.
(4) Where a judgment debtor expresses his
intention to apply to be declared an insolvent and furnishes security, to the
satisfaction of the court, that he will within one month so apply, and that he
will appear, when called upon, in any proceeding upon the application or upon
the decree in execution of which he was arrested, the court may release him
from arrest, and, if he fails so to apply and to appear, the court may either
direct the security to be realised or commit him to the civil prison in
execution of the decree.
Section 58. Detention and release.- (1) Every person detained in the civil
prison in execution of a decree shall be so detained,—
(a) where the decree is for the payment of
a sum of money exceeding 1 [fiye thousand rupees], for a period not exceeding
three months, and,
(b) where the decree is for the payment of
a sum of money exceeding two thousand rupees, but not exceeding five thousand
rupees, for a period not exceeding six weeks:
Provided that he shall be released from such detention before the expiration of the said period of detention—
(i) on the amount mentioned in the warrant
for his detention being paid to the officer in charge of the civil prison, or
(ii) on the decree against him being otherwise
fully satisfied, or
(iii) on the request of the person on
whose application he has been so detained, or
(iv) on the omission by the person, on
whose application he has been so detained, to pay subsistence allowance:
Provided, also, that he shall not be
released from such detention under clause (ii) or clause (iii), without the
order of the court.
(1A) For the removal of doubts, it is
hereby declared that no order for detention of the judgment debtor in civil
prison in execution of a decree for the payment of money shall be made, where
the total amount of the decree does not exceed two thousand rupees.
(2) A judgment debtor released from
detention under this section shall not merely by reason of his release be
discharged from his debt, but he shall not be liable to be re-arrested under
the decree in execution of which he was detained in the civil prison.
S 60. Property liable to attachment and
sale in execution of decree.- (1) The following property is liable to
attachment and sale in execution of a decree, namely, lands, houses or other
buildings, goods, money, bank notes cheques, bills of exchange, hundis,
promissory notes, Government securities, bonds or other securities for money,
debts, shares in a corporation and, save as hereinafter mentioned, all other
saleable property, movable or immovable, belonging to the judgment debtor, or
over which, or the profits of which, he has a disposing power which he may
exercise for his own benefit, whether the same be held in the name of the
judgment debtor or by another person in trust for him or on his behalf:
Provided that the following particulars shall not be liable to such attachment or sale, namely:—
(a) the necessary wearing apparel, cooking
vessels, beds and bedding of the judgment debtor, his wife and children, and
such personal ornaments as, in accordance with religious usage, cannot be
parted with by any woman;
(b) tools of artisans, and, where the
judgment debtor is an agriculturist, his implements of husbandry and such
cattle and seed grain as may in the opinion of the court, be necessary to
enable him to earn his livelihood as such, and such portion of agricultural
produce or of any class of agricultural produce as may have been declared to be
free from liability under the provisions of the next following section;
(c) houses and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to an agriculturist or a labourer or a domestic servant and occupied by him;
(d) books of account;
(e) a mere right to sue for damages;
(f) any right of personal service;
(g) stipends and gratuities allowed to
pensioners of the Government or of a local authority or of any other employer,
or payable out of any service family pension fund notified in the Official
Gazette by the Central Government or the State Government in this behalf, and
political pension;
(h) the wages of labourers and domestic
servants, whether payable in money or in kind;
(i) salary to the extent of the first one
thousand rupees and two-thirds of the remainder in execution of any decree
other than a decree for maintenance:
Provided that where any part of such
portion of the salary as is liable to attachment has been under attachment,
whether continuously or intermittently, for a total period of twenty four
months, such portion shall be exempt from attachment until the expiry of a
further period of twelve months, and, where such attachment has been made in
execution of one and the same decree, shall, after the attachment has continued
for a total period of twenty four months, be finally exempt from attachment in
execution of that decree;
(ia) one-third of the salary in execution
of any decree for maintenance;
(j) the pay and allowances of persons to
whom the Air Force Act, 1950, or the Army Act, 1950, or the Navy Act, 1957,
applies;
(k) all compulsory deposits and other sums
in or derived from any fund to which the Provident Funds Act, 1925 (19 of
1925), for the time being applies, in so far as they are declared by the said
Act not be liable to attachment;
(ka) all deposits and other sums in or
derived from any fund to which the Public Provident Fund Act, 1968 (23 of
1968), for the time being applies, in so far as they are declared by the said
Act as not to be liable to attachment;
(kb) all moneys payable under a policy of
insurance on the life of the judgment debtor;
(kc) the interest of a lessee of a
residential building to which the provisions of law for the time being in force
relating to control of rents and accommodation apply;
(I) any allowance forming part of the
emoluments of any servant of the Government or of any servant of a railway
company or local authority which the appropriate Government may, by
notification in the Official Gazette, declare to be exempt from attachment, and
any subsistence grant or allowance made to any such servant while under
suspension;
(m) an expectancy of succession by
survivorship or other merely contingent or possible right or interest;
(n) a right to future maintenance;
(o) any allowance declared by any Indian
law to be exempt from liability to attachment or sale in execution of a decree;
and
(p) where the judgment debtor is a person
liable for the payment of land revenue, any movable property which, under any
law for the time being applicable to him, is exempt from sale for the recovery
of an arrear of such revenue.
Explanation I.—The moneys payable in
relation to the matters mentioned in clauses (g), (h), (I), (Ia), (j), (I) and
(0) are exempt from attachment or sale, whether before or after they are
actually payable, and, in the case of salary, the attachable portion thereof is
liable to attachment, whether before or after it is actually payable.
Explanation II,—In clauses (I) and (ia),
“salary” means the total monthly emoluments, excluding any allowance declared
exempt from attachment under the provisions of clause (I), derived by a person
from his employment whether on duty or on leave.
Explanation III.—ln clause (I)
“appropriate Government” means—
(i) as respects any person in the service
of the Central Government, or any servant of a Railway Administration or of a
cantonment authority or of the port authority of a major port, the Central
Government;
[Clause (ii) omitted by AO 1948]
(iii) as respects any other servant of the
Government or a servant of any others local authority, the State Government.
Explanation I V—For the purposes of this
proviso, “wages” includes bonus, and “labourer” includes a skilled, unskilled
or semi skilled labourer.
Explanation V: For the purposes of this
proviso, the expression “agriculturist” means a person who cultivates land
personally and who depends for his livelihood mainly on the income from
agricultural land, whether as owner, tenant, partner or agricultural labourer.
Explanation VI: For the purposes of
Explanation V, an agriculturist shall be deemed to cultivate land personally,
if he cultivates land—
(a) by his own labour, or
(a) by his own labour, or
(b) by the labour of any member of his
family, or
(c) by servants or labourers on wages
payable in cash or in kind (not being as a share of the produce), or both.
(1A) Notwithstanding anything contained in
any other law for the time being in force, an agreement by which a person
agrees to waive the benefit of any exemption under this section shall be void.
(2) Nothing in this section shall be
deemed to exempt houses and other buildings (with the materials and the sites
thereof and the lands immediately appurtenant thereto and necessary for their
enjoyment) from attachment or sale in execution of decrees for rent of any such
house, building, site or land.
61. Partial exemption of agricultural
produce.- The State Government may, by general or
special order published in the Official Gazette, declare that such portion of
agricultural produce, or of any class of agricultural produce, as may appear to
the State Government to be necessary for the purpose of providing until the
next harvest for the due cultivation of the land and for the support of the
judgment debtor and his family, shall, in the case of all agriculturists or of
any class of agriculturists, be exempted from liability to attachment or sale
in execution of a decree.
62. Seizure of property in dwelling house.- (1) No person executing any process under this Code directing or authorizing seizure of movable property shall enter any dwelling house after sunset and before sunrise.
(2) No outer door of a dwelling house
shall be broken open unless such dwelling house is in the occupancy of the
judgment debtor and he refuses or in any way prevents access thereto, but when
the person executing any such process has duly gained access to any dwelling
house, he may break open the door of any room in which he has reason to believe
any such property to be.
(3) Where a room in a dwelling house is in
the actual occupancy of a woman who, according to the customs of the country,
does not appear in public, the person executing the process shall give notice
to such woman that she is at liberty to withdraw; and, after allowing
reasonable time for her to withdraw and giving her reasonable facility for
withdrawing, he may enter such room for the purpose of seizing the property,
using at the same time every precaution, consistent with these provisions, to
prevent its clandestine removal.
Order XXI Rule 96.
Delivery of property in occupancy of tenant.- Where the property sold is in the occupancy of a tenant or
other person entitled to occupy the same and a certificate in respect thereof
has been granted under rule 94, the court shall, on the application of the
purchaser, Order delivery to be made by affixing a copy of the certificate of
sale in some conspicuous place on the property, and proclaiming to the occupant
by beat of drum or other customary mode, at some convenient place, that the
interest of the judgment debtor has been transferred to the purchaser.
Order XXI Rule 97.
Resistance or obstruction to possession of immovable property.- (1) Where the holder of a decree for the possession of
immovable property or the purchaser of any such property sold in execution of a
decree is resisted or obstructed by any person in obtaining possession of the
property, he may make an application to the Court complaining of such
resistance or obstruction.
(2) Where any application is made under
sub-rule (1), the court shall proceed to adjudicate upon the application in
accordance with the provisions herein contained.
Order XXI Rule 98. Orders after adjudication.- (1) Upon the determination of the questions referred to in rule 101, the court shall, in accordance with such determination and subject to the provisions of sub-rule (2),—
(a) make an Order allowing the application
and directing that the applicant be put into the possession of the property or
dismissing the application; or
(b) pass such other Order as, in the
circumstances of the case, ft may deem fit.
(2) Where, upon such determination, the
court is satisfied that the resistance or obstruction was occasioned without
any just cause by the judgment-debtor or by some other person at his
instigation or on his behalf, or by any transferee, where such transfer was
made during the pendency of the suit or execution proceeding, it shall direct
that the applicant be put into possession of the property, and where the
applicant is still resisted or obstructed in obtaining possession, the court
may also, at the instance of the applicant, Order the judgment debtor, or any
person acting at his instigation or on his behalf, to be detained in the civil
prison for a term which may extend to thirty days.
Order XXI Rule 99. Dispossession by decree holder or purchaser.- (1) Where any person other than the judgment debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the court complaining of such dispossession.
(2) Where any such application is made, the court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.
Order XXI Rule 100.
Order to be passed upon application complaining of dispossession.- Upon the determination of the questions referred to in rule
101, the court shall, in accordance with such determination,—
(a) make an Order allowing the application
and directing that the applicant be put into the possession of the property or
dismissing the application; or
(b) pass such other Order as, iii the
circumstances of the case, it may deem fit.
Order XXI Rule 101.
Question to be determined.- All questions
(including questions relating to right, title or interest in the property)
arising between the parties to a proceeding on an application under rule 97 or
rule 99 or their representatives, and relevant to the adjudication of the
application, shall be determined by the court dealing with the application, and
not by a separate suit and for this purpose, the court shall, notwithstanding
anything to the contrary contained in any other law for the time being in
force, be deemed to have jurisdiction to decide such questions.
Order XXI Rule 102.
Rules not applicable to transferee pendente lite.- Nothing in rules 98 and 100 shall apply to resistance or
obstruction in execution of a decree for the possession of immovable property
by a person to whom the judgment debtor has transferred the property after the
institution of the suit in which the decree was passed or to the dispossession
of any such person.
Explanation: In this rule, “transfer” includes a transfer by operation of law.
Order XXI Rule 103. Orders to be treated as decrees.- Where any application has been adjudicated upon under rule
98 or rule 100, the Order made thereon shall have the same force and be subject
to the same conditions as to an appeal or otherwise as if it were a decree.
Order XXI Rule 104. Order under rule 101 or rule 103 to be subject
to the result of pending suit.- Every
Order made under rule 101 or rule 103 shall be subject to the result of any
suit that may be pending on the date of commencement of the proceeding in which
such Order is made, if in such Suit the party against whom the Order under rule
101 or rule 103 is made has sought to establish a right which he claims to the
present possession of the property.
Order XXI Rule 105.
Hearing of application.- (1) The
court, before which an application under any of the foregoing rules of this
Order is pending, may fix a day for the hearing of the application.
(2) Where on the day fixed or on any other
day to which the hearing may be adjourned the applicant does not appear when
the case is called on for hearing, the court may make an Order that the
application be dismissed.
(3) Where the applicant appears and the
opposite party to whom the notice has been issued by the court does not appear,
the court may hear the application ex parte and pass such Order as it thinks
fit.
Explanation : An application referred to
in sub-rule (1) includes a claim or objection made under rule 58.
Order XXI Rule 106.
Setting aside orders passed ex parte, etc.- (1) The applicant, against whom an Order is made under
sub-rule (2) of rule 105 or the opposite party against whom an Order is passed
ex parte under sub-rule (3) of that rule or under sub-rule (1) of rule 23, may
apply to the court to set aside the order, and if he satisfies the court that
there was sufficient cause for his non-appearance when the application was
called on for hearing, the court shall set aside the order on such terms as to
costs or otherwise as it thinks fit, and shall appoint a day for the further
hearing of the application.
(2) No Order shall be made on an application under sub-rule (1) unless notice of the application has been served on the other party.
(2) No Order shall be made on an application under sub-rule (1) unless notice of the application has been served on the other party.
(3) An application under sub-rule (1)
shall be made within thirty days from the date of the order, or where, in the
case of an ex parte order, the notice was not duly served, within thirty days
from the date when the applicant had knowledge of the order.]
Topic 6: Suits by or against Government (Ss 79, 80)
S 79. Suits by or against Government.- In a Suit by or against the Government,
the authority to be named as plaintiff or defendant, as the case may be, shall
be—
(a) in the case of a suit by or against
the Central Government, the Union of India, and
(b) in the case of a suit by or against a
State Government, the State.
S 80. Notice.- (1) Save as otherwise provided in sub-section
(2), no suit shall be instituted against the Government (including the
Government of the State of Jammu and Kashmir) or against a public officer in
respect of any act purporting to be done by such public officer in his official
capacity, until the expiration of two months next after notice in writing has
been delivered to, or left at the office of—
(a) in the case of a suit against the
Central Government, except where it relates to a railway, a Secretary to that
Government;
(b) in the case of a suit against the
Central Government where it relates to a railway, the General Manager of that
railway;
(bb) in the case of a suit against the
Government of the State of Jammu and Kashmir, the Chief Secretary to that
Government or any other officer authorised by that Government in this behalf;
(c) in the case of a suit against any
other State Government, a Secretary to that Government or the Collector of the
district;
and, in the case of a public officer,
delivered to him or left at his office, stating the cause of action, the name,
description and place of residence of the plaintiff and the relief which he
claims; and the plaint shall contain a statement that such notice has been so
delivered or left.
(2) A suit to obtain an urgent or
immediate relief against the Government (including the Government of the State
of Jammu and Kashmir) or any public officer in respect of any act purporting to
be done by such public officer in his official capacity, may be instituted ,
with the leave of the court, without serving any notice as required by
sub-section (1); but the court shall not grant relief in the suit, whether
interim or otherwise, except after giving to the government or public officer,
as the case may be, a reasonable opportunity of showing cause in respect of the
relief prayed for in the suit:
Provided that the court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of sub-section (1).
(3) No suit instituted against the government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity shall be dismissed merely by reason of any error or defect in the notice referred to in sub-section (1), if in such notice—
(a) the name, description and the
residence of the plaintiff had been so given as to enable the appropriate
authority or the public officer to identify the person serving the notice and
such notice had been delivered or left at the office of the appropriate
authority specified in sub-section (1), and
(b) the cause of action and the relief
claimed by the plaintiff had been substantially indicated.
Topic 7: Settlement of a Dispute: ADR as a mode of Settlement (S 89)
S 89. Settlement of disputes outside the
Court.- (1) Where it appears to the court that
there exist elements of a settlement which may be acceptable to the parties,
the court shall formulate the terms of settlement and give them to the parties
for their observations and after receiving the observations of the parties, the
court may reformulate the terms of a possible settlement and refer the same
for—
(a) arbitration;
(b) conciliation;
(c) judicial settlement including
settlement through Lok Adalat; or
(d) mediation.
(2) Where a dispute has been referred—
(a) for arbitration of conciliation, the
provisions of the Arbitration and Conciliation Act, 1996 shall apply as if the
proceedings for arbitration or conciliation were referred for settlement under
the provisions of that Act;
(b) to Lok Adalat, the court shall refer
the same to the Lok Adalat in accordance with the provisions of sub-section (1)
of section 20 of the Legal Services Authority Act, 1987 and all other
provisions of that Act shall apply in respect of the dispute so referred to the
Lok Adalat;
(c) for judicial settlement, the court
shall refer the same to a suitable institution or person and such institution
or person shall be deemed to be a Lok Adalat and all the provisions of the
Legal Services Authority Act, 1987 shall apply as if the dispute were referred
to a Lok Adalat under the provisions of that Act;
(d) for mediation, the court shall effect
a compromise between the parties and shall follow such procedure as may be
prescribed.
8. Ajit Ranjan v State, 2007 RLR 539 (Del HC) (Not relevant)
9. B.P.M Sevamandir v A.M. Kutty Hassan, 2009 RLR
123(SC)
2. The appellants were the
defendants in a suit for declaration and mandatory injunction. Having lost
before the trial court and the first appellate court, the appellants filed a
second appeal before the High Court of Kerala on 6.2.2005. The appeal was
admitted and an interim stay of execution was granted in the said appeal on
1.6.2005. The pending second appeal was referred to the Lok Adalat organized by
the Kerala High Court Legal Services Committee on 25.5.2007. Before the Lok
Adalat, parties apparently arrived at a tentative settlement. The Lok Adalat
consisting of two retired Judges of the High Court purported to pass the following
`award' dated 25.5.2007 in the appeal :
AWARD
Counsel for the parties and
the appellants and respondent present.
The parties have settled the
dispute and agreed to file a memorandum of settlement before the High Court to
obtain orders for disposal of this appeal and for refund of court fee.
A plan of the property is
produced by the appellant and it is received. The plan used will form part of
this order. The appellant will vacate the buildings in plot A to the respondent
on or before 31st July, 2007. On such surrender, plot B will belong to the
appellant and a compromise deed to this effect will be drawn by the parties and
file before the court; Post before the court on or before 31st July, 2007.
3. The appellants allege that
the parties could not finalise the terms of settlement as it was found that
there was no access to the portion to which they had to move, and therefore no
compromise petition was drawn up or filed. As the settlement was not reported,
the High Court, by order dated 10.4.2008 made a second reference to the Lok
Adalat. The parties and counsel again appeared before Lok Adalat. Further
negotiations were unsuccessful and the Lok Adalat sent the following failure
report dated 3.4.2008 to the court :
“We have discussed the matter
with the counsel and their parties and considering the nature of demand made by
the appellants, there is no chance of settlement.”
4. The second appeal was
thereafter listed for the final hearing on 19.8.2008 before a learned Single
Judge. When the matter reached hearing in the post-lunch session, an advocate
attached to the office of the appellants' counsel submitted that the appeal was
to be argued by his colleague Mrs. Sarita, that due to personal inconvenience
she could not be present during that session, and that therefore the matter may
be adjourned to the next day. The learned Single Judge rejected the request and
dismissed the appeal. The operative portion of the order dated 19.8.2008 is
extracted below :
“I see no reason why any
further adjournment is to be granted in the appeal of 2005 when the parties are
wilfully abstaining from arriving at any settlement despite an award passed at
the Adalath on agreement. In the result, I dismiss this appeal for
default." (emphasis supplied)
5. The very next day, that is
on 20.8.2008, an application was filed for restoration of the appeal supported
by the affidavit of the counsel (Mrs. Saritha) giving the following reason for
her absence at the post- lunch session on 19.8.2008 :
“I am an advocate attached to
the office of the counsel for the petitioner. I was entrusted to argue the
aforementioned second appeal and I was prepared for the same since the matter
was listed. The case was taken up as item no.504 in Court I-C in the afternoon
session on 19.8.2008. I was present in the court in the forenoon session and
unfortunately I developed severe ear pain and had to leave the court. I had
entrusted my colleague to appear before the Hon'ble Court
The said application was
dismissed by the learned Single Judge on 29.8.2008. The relevant portion of the
said order is extracted below : “The order passed on 25.5.2007 by the mediators
show that the parties and already settled the dispute and they only wanted to
file a memorandum of settlement before this Court to obtain orders disposing of
the appeal refunding court fee and it is after having agreed to the terms as
stated in the award that untenable and unreasonable contentions are advanced
now and that too coming forward with a petition to restore the appeal when the
appeal itself was dismissed for reason of absence of counsel. I see no reason
to allow the MJC in the circumstances, so as to enable a cantankerous litigant
to continue protracting the litigation even after an award is passed at the
Adalat.”
6. The said orders dated
19.8.2008 and 29.8.2008 of the High Court are challenged in these appeals by
special leave. We have heard Sri P.Krishna Murthy, learned senior counsel for
appellants and Sri C.S.Rajan, learned senior counsel for respondent.
7. It is unfortunate that the
learned members of the Lok Adalat and the learned Single Judge totally lost
sight of the purpose and scope of Lok Adalats. We may conveniently recall what
this Court has said about the scope of Lok Adalats, (after referring to the
relevant provisions of the Legal Services Authorities Act, 1987), in State of Punjab
8. When a case is
referred to the Lok Adalat for settlement, two courses are open to it :
(a) if a
compromise or a settlement is arrived at between the parties, to make an award,
incorporating such compromise or settlement (which when signed by the parties
and countersigned by the members of the Lok Adalat, has the force of a decree);
or
(b) if there is no
compromise or settlement, to return the record with a failure report to the
court. There can be no third hybrid order by the Lok Adalat containing
directions to the parties by way of final decision, with a further direction to
the parties to settle the case in terms of such directions. In fact, there
cannot be an `award' when there is no settlement. Nor can there be any
`directions' by the Lok Adalat determining the rights/obligations/title of
parties, when there is no settlement. The settlement should precede the award
and not vice versa. When the Lok Adalat records the minutes of a proceeding
referring to certain terms and directs the parties to draw a compromise deed or
a memorandum of settlement and file it before the court, it means that there is
no final or concluded settlement and the Lok Adalat is only making tentative
suggestions for settlement; and such a proceeding recorded by the Lok Adalat,
even if it is termed as an `award', is not an `award of the Lok Adalat'.
9. Although the members of
Lok Adalats have been doing a commendable job, sometime they tend to act as
Judges, forgetting that while functioning as members of Lok Adalats, they are
only statutory conciliators and have no judicial role. Any overbearing attitude
on their part, or any attempt by them to pressurize or coerce parties to settle
matters before the Lok Adalat (by implying that if the litigant does not agree
for settlement before the Lok Adalat, his case will be prejudiced when heard in
court), will bring disrepute to Lok Adalats as an alternative dispute
resolution process (for short `ADR process') and will also tend to bring down
the trust and confidence of the public in the Judiciary.
10. In this case the
proceedings dated 25.5.2007 is termed as an `award'. It is also described as an
`order' and `directs' the appellant to vacate certain buildings on or before
31.7.2007 and further directs that on such surrender, another portion shall
belong to the appellants. Such an `award' could have been made by the Lok
Adalat only when there was a final settlement between the parties. The
procedure adopted by the Lok Adalat on 25.5.2007, was clearly erroneous and
illegal. The learned counsel for the respondent stated that the Lok Adalat
followed the said procedure of passing an `Award' dated 25.5.2007 and directing
parties to file a compromise in the court, only to enable the appellants to get
refund of court fee. We fail to understand how the question of refund of court
fee can have any bearing on the compliance with the statutory requirements
relating to a settlement and award by a Lok Adalat.
11. Such strange orders by
Lok Adalats are the result of lack of appropriate rules or guidelines.
Thousands of Lok Adalats are held all over the country every year. Many members
of Lok Adalats are not judicially trained. There is no fixed procedure for the
Lok Adalats and each Adalat adopts its own procedure. Different formats are
used by different Lok Adalats when they settle the matters and make awards. We
have come across Lok Adalats passing `orders', issuing `directions' and even
granting declaratory relief, which are purely in the realm of courts or
specified Tribunals, that too when there is no settlement. As an award of a Lok
Adalat is an executable decree, it is necessary for the Lok Adalats to have an
uniform procedure, prescribed Registers and standardized formats of awards and
permanent record of the awards, to avoid misuse or abuse of the ADR process. We
suggest that the National Legal Services Authority as the apex body, should
issue uniform guidelines for the effective functioning of the Lok Adalats. The
principles underlying following provisions in the Arbitration and Conciliation
Act, 1996 relating to conciliators, may also be treated as guidelines to
members of Lok Adalats, till uniform guidelines are issued : section 67
relating to role of conciliators; section 75 relating to confidentiality; and
section 86 relating to admissibility of evidence in other proceedings.
12. Lok Adalats should also
desist from the temptation of finding fault with any particular litigant, or
making a record of the conduct of any litigant during the negotiations, in
their failure report submitted to the court, lest it should prejudice the mind
of the court while hearing the case. For instance, the observation in the
failure report dated 3.4.2008 of the Lok Adalat in this case (extracted in para
3 above) that there is no chance of settlement on account of the
"nature of demands made by the appellants", implied that such
demands by the appellant were unreasonable. This apparently affected the mind
of the learned Single Judge who assumed that the appellants were cantankerous,
when the second appeal and application for restoration came up for hearing
before the court.
13. We may now turn to the
role of courts with reference to Lok Adalats. Lok Adalats is an alternative
dispute resolution mechanism. Having regard to section 89 of Code of Civil
Procedure, it is the duty of court to ensure that parties have recourse to the
Alternative Dispute Resolution (for short `ADR') processes and to encourage
litigants to settle their disputes in an amicable manner. But there should be
no pressure, force, coercion or threat to the litigants to settle disputes
against their wishes. Judges also require some training in selecting and
referring cases to Lok Adalats or other ADR processes. Mechanical reference to
unsuited mode of ADR process may well be counter productive. A plaintiff who
comes to court alleging unlawful encroachment by a neighbour may well ask what
kind of settlement he should have with an encroacher in a Lok Adalat. He cannot
obviously be asked to sacrifice a part of his land for purposes of amicable
settlement thereby perpetuating the illegality of an encroachment. A plaintiff
alleging fraud and forgery of documents against a defendant may well ask what
settlement he can have with a fraudster or forger through ADR process as any
settlement may mean yielding to or accepting fraud or forgery.
14. When a case is to be
heard and decided on merits by a court, the conduct of the party before the Lok
Adalat or other ADR fora, howsoever stubborn or unreasonable, is totally
irrelevant. A court should not permit any prejudice to creep into its judicial
mind, on account of what it perceives as unreasonable conduct of a litigant
before the Lok Adalat. Nor can its judgment be `affected' by the cantankerous
conduct of a litigant. It cannot carry `ill- will' against a litigant, because
he did not settle his case. It is needless to remind the oath of office, which
a Judge takes when assuming office. He is required to perform his duties
without fear or favour, affection or ill-will. Any settlement before the Lok
Adalat should be voluntary. No party can be punished
for failing to reach the settlement before the Lok Adalat. Section 20(5) of the
Act statutorily recognizes the right of a party whose case is not settled
before the Lok Adalat to have his case continued before the court and have a
decision on merits. Any admission made, any tentative agreement reached, or any
concession made during the negotiation process before the Lok Adalat cannot be
used either in favour of a party or against a party when the matter comes back
to the court on failure of the settlement process. To deny hearing to a party
on the ground that his behaviour before the Lok Adalat was cantankerous or
unreasonable would amount to denial of justice. When deciding a matter
on merits of a case, if a court carries any prejudice against a party on
account of his conduct before an ADR forum, it will violate the inviolable
guarantee against prejudice or bias in decision making process. Such conduct
can neither be permitted nor be tolerated and requires to be strongly
deprecated. Every Judge should constantly guard against prejudice, bias and
prejudging, in whatever form. Judges should not only be unbiased, but seem to
be unbiased. Judiciary can serve the nation only on the trust, faith and
confidence of the public in its impartiality and integrity.
15. When a counsel who is
ready in the pre-lunch session, seeks accommodation in the post-lunch session
on the ground of a sudden illness or physical ailment, the court cannot refuse
a short accommodation and dismiss the appeal on the ground that his client was
cantankerous and unreasonable before the Lok Adalat. The two issues have no
relation to each other and such dismissal can only be attributed to prejudice.
The observation by the High Court that the parties having arrived at a
settlement before the Lok Adalat, could not refuse to file a compromise
petition in court, is also erroneous. If there was a final settlement before
the Lok Adalat, there would have been an award and there was no need for the
matter to come before the court for further hearing. If parties state that
before the Lok Adalat that they will enter into an agreement and file it before
the court, it only means that there was only a tentative settlement before the
Lok Adalat.
16. In view of the above, the
appeals are allowed. The impugned orders of the High Court are set aside. The
second appeal is restored to the file of the High Court for being disposed of
on merits in accordance with law. We request the Hon. Chief Justice to assign
the appeal to some other learned Judge of the High Court. Whatever is stated
above is not intended to be a reflection on the judicial integrity of the
learned Judge, nor intended to impute any personal prejudice or bias.
Topic 8: Appeals
Appeal from Orders &
Decrees, Second Appeal & Power of Appellate Court (Ss 96 to 107) &
Production of additional evidence at appellate stage; Order XL1, Rule 27
S 96 Appeal from original decree
(1) Save where otherwise
expressly provided in the body of this Code or by any other law for the time
being in force, an appeal shall lie from every decree passed by any Court
exercising original jurisdiction the Court authorized to hear appeals from the
decisions of such Court
(2) An appeal may lie from an
original decree passed ex pane
(3) No appeal shall lie from
a decree passed by the Court with the consent of parties
1[(4) No appeal shall lie,
except on a question of law, from a decree in any suit of the nature cognisable
by Courts of Small Cause, when the amount or value of the subject-matter of the
original suit does not exceed 2[ten thousand rupees]]
COMMENTS
(i) When an ex parte decree
is passed the defendant has two clear options One to file an appeal and another
to file an application under O 9, R 13 to set aside the order Once application
under O 9, R 13 is dismissed, he cannot by filing first appeal dispute the
correctness of order posting suit for ex parte hearing or show cause for his
non-appearance; Bhanu Kumar Jain v Archana Kumar, AIR 2005 SC 626
(ii) The subsequent events in
first and second appeals cannot be taken indiscriminately into account It may
be permitted to be taken into account by appellate court by means of amendment
of pleadings, in order to avoid multiplicity of proceedings but not where such
amendment could cause prejudice to vested right of plaintiff and render him
remedied; Shyam Sunder v Ram Kumar, (2001) 8 SCC 24
(iii) New plea relating to
question of fact cannot be allowed to be raised for the first time before the
Ist appellate court; K Shivalingaiah v BV Chandra Shekara Gowda, AIR 1993 Kant
29: 1992 (2) Kant LJ 536: ILR (Kar) (1992) 1996
S97 Appeal from final decree where no appeal from
preliminary decree
Where any party aggrieved by
a preliminary decree passed after the commencement of this Code does not appeal
from such decree, he shall be precluded from disputing its correctness in any
appeal which may be preferred from the final decree
S 98 (1) Where an appeal is heard by a Bench
of two or more Judges, the appeal shall be decided in accordance with the
opinion of such Judges or of the majority (if any) of such Judges.
(2)
Where there is no such majority which concurs in a judgment varying or
reversing the decree appealed from, such decree shall be confirmed:
Provided that where the
Bench hearing the appeal is composed of two Judges belonging to a Court
consisting of more than two Judges, and the Judges composing the Bench differ
in opinion on a point of law, they may state the point of law upon which they
differ and the appeal shall then be heard upon that point only by one or more
of the other Judges, and such point shall be decided according to the opinion
of the majority (if any) of the Judges who have heard the appeal, including
those who first heard it.
{Ins.by
Act 18 of 1928, s.2 and Sch.I.} [(3) Nothing in this section shall be deemed to
alter or otherwise affect any provision of the letters patent of any High
Court.]
S 99 No decree to be reversed or modified for
error or irregularity not affecting merit or jurisdiction.
No
decree shall be reversed or substantially varied, nor shall any case be
remanded, in appeal on account of any misjoinder 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.
S 99A No order under section 47 to be reversed or modified unless
decision of the case is prejudicially affected .- Without prejudice to the generality of the provisions of
section 99, no order under section 47 shall be reversed or substantially
varied, on account of any error, defect or irregularity in any proceeding
relating to such order, unless such error, defect or irregularity has
prejudicially affected the decision of the case.
S 100.Second appeal.
(1) Save where
otherwise expressly provided in the body of this Code or by any other law for
the time being in force, an appeal shall lie to the High Court from every
decree passed in appeal by any Court subordinate to a High Court, on any of the
following grounds, namely:-
(a)
the decision being contrary to law or to some usage having the force of law;
(b)
the decision having failed to determine some material issue of law or usage
having the force of law;
(c) a
substantial error or defect in the procedure provided by this Code or by any
other law for the time being in force, which may possibly have produced error
or defect in the decision of the case upon the merits.
(2) An appeal
may lie under this section from an appellate decree passed ex parse.
S 100A No further appeal in certain cases.- Notwithstanding anything contained in any Letters
Patent for any High Court or in any instrument having the force of law or in
any other law for the time being in force, where any appeal from an original or
appellate decree or order is heard and decided by a Single Judge of a High
Court no further appeal shall lie from the judgment and decree of such Single
Judge.
S 101.Second
appeal on no other grounds.- No second appeal shall lie except on
the grounds mentioned in section 100.
S 102 .No second appeal in certain suits.- 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 five hundred rupees.
S 103.Power
of High Court to determine issues of fact.- In any second
appeal, the High Court may, if the evidence P, on the record is sufficient,
deter-mine any issue of fact necessary for the disposal of the appeal {Subs. by
Act 6 of 1926, s.2, for "but not determined by the lower Appellate Court
".} [which has not been determined by the lower Appellate Court or which
has been wrongly determined by such Court by reason of any illegality,
omission, error or defect such as is referred to in sub-section (1) of section
100
S
104 .Orders from which appeal lies.-
(1) An appeal
shall lie from the following orders, and save as otherwise expressly provided
in the body of this Code or by any law for the time being in force, from no
other orders:-
{Cls.(a) to (f)
rep. by Act 10 of 1940, s.49 and Sch.III.}
{Ins.by Act 9 of
1922, s, 3.See also fool, note to s.35A, supra.} [(ff) an order under section
35A ;]
(g)
an order under section 95;
(h)
an order under any of the provisions of this Code imposing a fine or directing
the arrest or detention in the civil prison of any person except where such
arrest or detention is in execution of a decree;
(i)
any order made under rules from which an appeal is expressly allowed by rules:
{Ins.by
Act 9 of 1922, s, 3.See also fool, note to s.35A, supra.} [Provided that no
appeal shall lie against any order specified in clause (ff) save on the ground
that no order, or an order for the payment of a less amount, ought to have been
made.]
(2) No appeal
shall lie from any order passed in appeal under this section.
S 105.Other
orders.-
(1) Save as
otherwise expressly provided, no appeal shall die from any order made by a
Court in the exercise of its original or appellate jurisdiction; but, 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 cf objection
in the memorandum of appeal.
(2)
Notwithstanding anything contained in sub-section (1), where any party
aggrieved by an order of remand made after the commencement of this Code from
which an appeal lies does not appeal there from, he shall thereafter be
precluded from disputing its correctness.
S 106.What
Courts to hear appeals.-
Where an appeal
from any order is allowed it shall lie to the Court to which an appeal would
lie from the decree in the suit in which such order was made, or where such
order is made by a Court (not being a High Court) in the exercise of appellate
jurisdiction, then to the High Court.
S 107.Power
of Appellate court.-
(1) Subject to
such conditions and limitations as may be prescribed, an Appellate Court shall
have power-
(a)
to determine a case finally;
(b)
to remand a case;
(c)
to frame issues and refer them for trial;
(d)
to take additional evidence or to require such evidence to be taken.
(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.
Order XLI Rule 27. Production of additional evidence
in Appellate Court.- (1) The parties
to an appeal shall not be entitled to produce additional evidence, whether oral
or documentary, in the Appellate Court. But if—
(a) the court from whose
decree the appeal is preferred has refused to admit evidence which ought to have
been admitted, or
(aa) the party seeking to
produce additional evidence, establishes that notwithstanding the exercise of
due diligence, such evidence was not within his knowledge or could not, after
the exercise of due diligence, be produced by him at the time when the decree
appealed against was passed, or
(b) the Appellate Court
requires any document to be produced or any witness to be examined to enable it
to pronounce judgment, or for any other substantial cause, the Appellate Court
may allow such evidence or document to be produced, or witness to be exam med.
(2) Whenever additional
evidence is allowed to the produced, by an Appellate Court, the court shall
record the reason for its admission.
10. Chunilal Mehta v Century Spring & Manufacturing Co. Ltd, AIR 1962
SC 1314
The appellants were appointed managing
agents of the respondents for 21 years. Under cl. 10 of the agreement the
appellants were entitled to remuneration equal to 10% of the gross profits of
the respondents subject to a minimum of Rs. 6,000 per month. Clause 14 provided
that if the agreement was terminated otherwise in accordance with the provisions
thereof the appellants would be entitled to liquidated damages "of not
less than Rs. 6,000" per month for the unexpired portion of the agreement.
The respondent wrong- fully terminated the agreement before the expiry of the
stipulated period. The appellants filed a suit for recovery of damages for
breach of contract on the basis of 10% of the gross profits of the respondents.
The trial judge granted a decree for Rs. 2,34,000 calculating the amount at Rs.
6,000 per month. On appeal by the appellants the High Court affirmed the
decree. The appellants applied 'to the High Court for a certificate of fitness
for appeal to the Supreme Court but it declined to grant the same on the ground
that though the question involved in the case relating to the interpretation of
the agreement was a question of law it was not a substantial question of law as
required by Art. 13(1) of the Constitution.
Held, that the case involved a substantial
question of law and the appellants were entitled to the certificate as of
right. A substantial question of law is one which is of general public
importance or which directly and substantially affects the rights of the parties
and which have not been finally settled by the Supreme Court, the Privy Council
or the Federal Court or which is not free from difficulty or which calls for
discussion of alternative views. The question involved in the present case as
to the construction of the agreement was not only one I of law but' it was
neither simple nor free from doubt and was a substantial question of law within
the meaning of Art. 133(1).
11. Koppi Setty V Ratnam v. Pamarti Venka 2009 RLR 27
(NSC)
12. Gill & Co v Bimala Kumari, 1986 RLR 370
(Jurisdiction of the High
Court in 2nd Appeal is confined to the determination of substantial
question of law and not to reverse the findings of fact. Hence High Court in 2nd
appeal cannot re-appreciate the evidence and interfere with the findings of
fact reached by the lower appellant court, unless of course, it can be shown
that there was an error of law in arriving at it or that it was based on no
evidence at all or was arbitrary, unreasonable or perverse. The High Court was
incompetent to re-assess the evidence afresh and it was bound by the decision
of the Tribunal on questions of fact. )
Eviction notice to M/S Gill
& Co on grounds of
(a) non-payment of rent;
(b)misuse ,
(c) bona fide requirement as
residence for herself and members of her family ;
(d) Sub-letting,
The eviction petition was
contested hotly by the appellants on various grounds. Eventually, however, an
order of eviction was made by an Additional Rent Controller, Delhi
During the pendency of the
first appeal, the appellants made an application dated 24th March 1981 under Order
XLI Rule 27 read with Section 151, Code of Civil Procedure (hereinafter
referred to as 'the Code') for permission to produce some additional evidence
viz documents and accounts books etc.
The application for
production of additional evidence was opposed tooth and nail by the respondent
who pointed out that reliance was never placed by the appellants on any of the
documents sought to be produced by them at the appellate stage. Further, no
effect was made to produce the said evidence or cause the same to be produced
through income-tax department although several opportunities were afforded to
the appellants for producing their evidence. It was further contended that
whatever evidence was sought to be produced by the appellants was allowed by
the trial Court and they could not make any grievance with regard to the same
Thus, according to them, the fault, if any, in not producing the said documents
was of the appellants themselves and they were simply adopting dilatory tactics
and to fill up the gaps in their evidence which they deliberately omitted to
produce in the trial Court. On a consideration of the matter the learned Rent
Control Tribunal disallowed the said application for reasons slated in the
impugned order itself.
(6) The general rule is that
an appellate court shall decide an appeal on the evidence led by the parties
before the lower Court and shall not admit additional evidence for the purpose
of disposal of an appeal. Rule 27 of Order XLI of the Code opens with the words,
"The parties to an appeal shall not be entitled to produce additional
evidence, whether oral or documentary, in the Appellate Court." However,
it empowers the Appellate Court to admit additional evidence in appeal under
certain circumstances specified therein, namely, (i) where the lower Court has
improperly refused to admit evidence ; (ii) where such additional evidence was
not within the knowledge of the party or could not after the exercise of due
diligence be produced by him at the time when the lower Court passed the decree
; or (iii) where the Appellate Court itself requires the evidence (a) To enable
it to pronounce the judgment, or (b) for any other substantial cause. This
provision has been repeatedly considered by the Privy Council as well as the
Supreme Court and the law a(r) to the reception of evidence not produced before
the trial Court is now well settled. The discretion given to the Appellate
Court to receive and admit additional evidence is not arbitrary but is judicial
one circumscribed by the limitations specified in Rule 27 itself. Evidently it
is not a case where the lower Court had improperly refused to admit evidence.
It was never tendered. Likewise, it is not the case of the appellants that the
additional evidence sought to be produced by them at the appellate stage was
not within their knowledge or that the same could not be produced after
exercise of due diligence They were well aware that their records had been
seized by the income-tax department and, therefore, it was open to them to
requisition the records from the said department by summoning the concerned
official. No such effort seems to have been made. Indeed, the learned counsel
for the appellants frankly conceded that they woke up to the need for producing
additional evidence because of the finding of the trial Court that they did not
produce the same despite service of notice under Order Xii Rule 8 of the Code
on them. Indeed, the documents sought to be placed on record and proved by way
of additional evidence are not the ones of from amongst these which had been
seized by the income-tax department, rather it would appear from a perusal of
the affidavit dated 20th March 1981 of the Secretary of appellant No. 1 and the
application itself that these documents are being produced from their own
possession because the documents seized by the income-tax department had not
been released till the date of the application under Order Xli Rule 27 of the
Code to them. So, the only question which falls for consideration is whether
the additional evidence was required by the Appellate Court for enabling it to
pronounce judgment or was there any other substantial cause for allowing the
same.
(7) In Parsotim Thakur &
others v. Lal Mohar Thakur & others, Air 1931 Privy Council 143, the
Judicial Committee observed that :
"THE provisions of
Section 107 as elucidated by Order Xli Rule 27, are clearly not intended to
allow a litigant who has been unsuccessful in the lower Court to patch up the
weak pans of his. case and fill up omissions in the Court of appeal. Under Rule
27, Clause (1)(b) it is only where, the appellate Court "requires" it
(i.e. finds it needful) that additional evidence can be admitted. It may be
required to enabled the Court to pronounce judgment, or for any other
substantial cause, but in cither case it must be the Court that requires it.
The legitimate occasion for the exercise of this discretion is not whenever
before the appeal is heard a party applies to adduce fresh evidence, but
"when on examining the evidence as it stands, some inherent lacuna or
defect becomes apparrent."
(8) Reliance is, however,
placed by the learned counsel for the appellants on the decision of the Supreme
Court in K. Venkataramiah v A. Seetharama Reddy & others, wherein the
Supreme
Court held that:
"THERE may well be cases
where even though the Court finds that it is able to pronounce judgment, on the
state of record as it is, and so it cannot strictly say that it requires
additional evidence to enable it to pronounce judgment, it still considers that
in the interest of justice something which remains obscure should be filled up
so that it can pronounce its judgment in a more satisfactory manner. Such a
case will be one for allowing additional evidence for any other substantial
cause under Rule 27(1)(b) of the Code. Such requirement of the court is not
likely to arise ordinarily unless some inherent lacuna or defect becomes
apparent on an examination of the evidence."
(9) It is, therefore, urged
that the Rent Control Tribunal ought to have allowed additional evidence on the
ground of substantial cause as postulated in Rule 27 (1) (b) of Order Xli of
the Code. However, this argument is totally misconceived in as much as it
overlooks the fact that the requirement of law is not that the Court should
readily permit a party to fill up the lacuna in the evidence which it
deliberately chose not to produce at the trial stage. The basic idea underlying
the above observations of the Supreme Court is that in case the Court fells
that the evidence already on record suffers from such inherent obscurity or
ambiguity that it should be cleared, if possible, by production of additional
evidence it may require production of such evidence. But it is not permissible
to do so merely because the additional evidence may help the appellate Court to
pronounce judgment in a particular way. A five Judges Bench of the Supreme
Court elucidated the legal position further in The Municipal Corporation of
Greater Bombay v. Lala Pancham and others, , saying that :
"BUT the requirement of
the said Court must be limited to those cases where it found it necessary to
obtain such evidence for enabling it to pronounce judgment. This provision does
not entitle the appellate Court to let in fresh evidence at the appellate stage
where even without such evidence it can pronounce judgment in a case. It does
not entitle the appellate Court to let in fresh evidence only for the purpose
of pronouncing judgment in a particular way. In other words, it is only for
removing a lacuna in the evidence that the appellate Court is empowered to
admit additional evidence."
(10) Reference in this
context may also be made with advantage to Natha Singh & others v. The
Financial Commissioner, Taxation, Punjab &
others, , wherein the Supreme Court held that : "it
did not experience any inherent
lacuna or obscurity which was required to be filled up or removed or any other
difficulty in rendering the judgment on the material already before the
Court" and, therefore, it disallowed reception of additional evidence It
may be noticed that in K. Venkataramiah (supra) the Supreme Court declined to
re-assess the need for additional evidence saying that:
"THE requirement, it has
to be remembered, was the requirement of the High Court, and it will not be
right for us to examine the evidence to find out whether we would have required
such additional evidence to enable "us" to pronounce judgment"
(11) So, it was primarily for
the Appellate Court to decide whether it required the additional evidence for
pronouncing the judgment in a more satisfactory way or not and it would not be
just and proper for this Court to examine for itself and come to its own
conclusion whether the Appellate Court did require additional evidence to steer
clear of any ambiguity or obscurity from which the evidence existing on record
suffered, if at all. Indeed, as shall be presently seen, the evidence already
on record is quite sufficient for recording a proper and satisfactory judgment.
13. Shivajirao Nilangekar Patil v Dr. Mahesh Madhav
Gosavi AIR 1987 SC 294
Dr.Mahesh Madhay Gosavi
appellant in CA 4453/86 and respondent in CA 4452/86 was a failed
candidate at the M.D. examination in the speciality of Gynaecology and
Obstetrics held in the year 1985. He filed a writ petition under Article 226 of
the Constitution of India in the High Court of Bombay challenging the results
of the M.D. examination held in November' 85. He alleged that favouritism was
shown by one Dr. Rawal who went to the extent of tampering with grade sheets of the examinees so as to clear unsuccessful
candidates and in particular Smt. Chandrakala Patil daughter of the Chief
Minister of Maharashtra appellant in CA
4452/86 and respondent in cross appeal CA 4453/86. In support of the writ
petition alleging how the malpractice took place, he filed an affidavit (hearsay
evidence) of one Dr. Manikant Mishra, who is supposed to have heard certain
talks that took place between Dr. Rawal and Smt. Chandrakala Patil at Dr.
Rawals' Chambers and that what the deponent heard came to be proved by the M.D.
(Gynae) results in which one Dr. Smita Thakkar and Smt. Chandrakala Patil who
could not clear the said examination thrice were shown to have passed. It was
alleged that the tampering of the grade sheets were done by Dr. Rawal at the
behest of the appellant in C.A.
The learned Single Judge
held:
(i) that the evidence of
Respondent Madhav Gosavi as well as of Dr. Mishra were unsatisfactory &
unreliable:
(ii) that it was impossible
to place any reliance on the evidence of Dr. Mishra as it was not known how he
came to contact Dr. Gosavi or why he did not choose to file affidavit till
28.2.1986 when the appellant Patil
had already filed his affidavit on 26.1.86;
(iii) that the allegation and
the averments made in para- graph 14 of the writ petition were wholly
unsatisfactory and insufficient because the Respondent--petitioner had not disclosed from whom he derived
them;
(iv) that there was tampering
with grade sheets of Respondents 4 to 15 by Dr. Rawal and
(v) that in the facts and
circumstances of this it could reasonably be inferred that the alteration was
done at the behest of the appellant in CA 4452/86 and her daughter Chandrakala.
This was because Dr. Rawal was an experienced examiner, not young or immature
and a person like him would not proceed to do a criminal act and tamper with
the record of the examination on his own with a view merely to please the
people in power. The risk involved in what Dr. Rawal had done was so enormous
that it was difficult to conceive that he did it on his own. Accordingly he
allowed the writ peti- tion, passed some structures against Dr. Rawal and the
appellant in CA 4452/86 and gave certain directions about examination of 12
other candidates whose results were also affected by the conduct of Dr. Rawal.
An application made before
the Judge for adducing certain additional evidence was rejected. After the
judgment the Vice Chancellor and the Chief Minister resigned from their posts.
Three appeals, No. 214/86 by
Dr. Rawal No. 215/86 by Dr. Chaodrakala Patil and No. 216/86 by the appellant
Shivaji Rao Patil, were heard and disposed of by the Division Bench consisting
of the Acting Chief Justice Kania and Shah J. of the Bombay High Court on 16th
June, 1986.
So far as appeal No. 216 of
1986 is concerned, according to the Division Bench; (i) there was no direct
evidence that the alterations in the grades of Chandrakala Patil were made at
the instance of the appellant; (ii) the reasoning of the trial Judge in coming to
the conclusion that respondents No. 3 and 4 the original petition were
responsible for getting Dr. Rawal to alter the grades was based on certain
contingencies and were too tenuous for the conclusion based on such reasoning
to amount to a positive finding; (iii) Merely because respondent No. 3 to the
original petition held a position of great power and would have been happy to see
that his daughter had passed the M.D. examination, it was difficult to
conclude, as a finding of fact that he must have influenced Dr. Rawal to alter
the grades of his daughter; (iv) it was true that a seasoned examiner like Dr.
Rawal would not have taken the risk involved in altering the grades except
under a great pressure or persuasion, but it cannot be ruled out the
possibility of various motives which might have induced Dr. Rawal to take the
risk of altering the grades; (v) however in all probability Dr. Rawal would not
have acted unless he had made him assured that the appellant Shivaji Rao Patil
was behind the person who persuaded him 'to alter the grades; (vi) that when
allegation of this type is made against anyone holding a position of prestige
and power, it was necessary that the evidence should be closely examined before
holding such allegation well founded. Therefore the Bench observed that the
remarks made against the appellant. Nilangekar Patil cannot be supported as
conclusions arrived at against him but these can be regarded as adverse
comments and not finding of fact and such comments were not wholly unjustified
in the facts of this case. However, the Division Bench refused to entertain an
application to introduce additional evidence as part of the claim of public
interest litigation. Hence the appeal by Nilangekar Patii against the adverse
comments were allowed to remain and there was a cross appeal by Dr; Madhav
Gosavi against refusal to accept additional evidence.
Dismissing the appeals by
special leave, the Court, HELD:
1.1 The basic principle of
admission of additional evidence is that the person seeking the admission of
additional evidence should be able to establish that with the best efforts such
additional evidence could not have been adduced at the first instance. Secondly
the party affected by the admission of additional evidence should have an
opportunity to rebut such additional evidence. Thirdly that additional evidence
was relevant for the determination of the issue.
Here, the additional evidence
sought to be introduced mainly consist of alleged instances when the appellant
on previous occasions had in respect of some criminal proceedings and other
matters pending used his influence to drop those proceedings. Applying the
principle as to admission of "similar fact evidence" it must be held
that the allegations of the alleged conduct of the appellant in similar cases
would not be a safe basis upon which to admit additional evidence in this case
having regard to the issues involved and nature of the issues involved in these
matters and at the stage when these were sought to be introduced.
2. The mere fact that several
infirmities were noticed in the affidavit of Dr. Mishra upon which the original
petitioner Dr. Gosavi based his own petition could not lead to the argument
that the entertainment of the petition itself was
wrong. The allegations made in the petition disclose a lamentable state of
affairs in one of the premier universities of India Bombay University
3.1 It is true that exercise
of the power under Article 136 of the Constitution is discretionary. There is
no ques- tion in this case of giving any clean chit to the appellant in the first appeal. It leaves a great deal of
suspicion that tampering was done to please Shri Patil or at his behest. It is
true that there is no direct evidence. It is also true that there is no
evidence to link him up with tampering. Tampering is established. The
relationship is established. The reluctance to face a public enquiry is also
apparent. Apparently Shri Patii, though holding a public office does not
believe that "ceaser's wife must be above suspicion". The erstwhile
Chief Minister in respect of his conduct did not wish or invite an enquiry to
be conducted by a body nominated by the Chief Justice of the High Court. The
facts disclose a sorry state of affairs. Attempt was made to pass the, daughter
of the erstwhile chief Minister who had failed thrice before by tampering the
record. The person who did it was an employee of the Corporation. It speaks of
a sorry state of affairs and though there is no distinction between comment and
a finding and there is no legal basis for such a comment.
3.2 The court cannot be
oblivious that there has been a steady decline of public standards or public morals and public morale. It is necessary to cleanse public life in
this country along with or even before cleaning the physical atmosphere. The
pollution in the values and standards is an equally grave menace as the
pollution of the environment. Where such
situations cry out the Courts should not
and cannot remain mute and dumb.
3.3 Where allegations of mala
fide were made, the Court must be cautious. It is true that allegation of mala
fides and of improper motives on the part of those in power are frequently made and their
frequency has increased in recent times. In this task which is cast on the
courts, it will be conducive to have disposal and consideration of them if
those against whom allegations are made came forward to place before the court
either the denials or their version
of the matter so that the courts might be in a position to judge whether the
onus that lay upon those who make
allegations of mala fides on the part of the authorities had been discharged in
proving it. It is true that the basis of the allegations being the affidavit of
Dr. Mishra was considered to be thoroughly unreliable. In this case there was
specific and categorical denial by the erstwhile Chief Minister that tampering
was done at his behest. Therefore, while the court should be conscious to deal
with the allegations of mala fide or cast aspirations on holders of high office and power, the court cannot
ignore the probabilities arising from proven circumstances.
3.4 Where evidence was
adduced by affidavits, such affidavits might be properly verified either on
knowledge or from sources. Here it is true that undoubtedly the affidavit and
the petition were defective, but the court has taken cognizance of the matter and
certain inferences followed from the inherent nature of facts apparent from the
facts brought before the court.
Topic 9: Reference – S113 – Revision, S115 – Review S114 rw Order XLVII
S 113. Reference to High
Court.- 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:
Provided that where the court
is satisfied that a case pending before it involves a question as to the
validity of any Act, Ordinance or Regulation or of any provision contained in
an Act, Ordinance or Regulation, the determination of which is necessary for
the disposal of the case, and is of opinion that such Act, Ordinance, Regulation
or provision is invalid or inoperative, but has not been so declared by the
High Court to which that Court is subordinate or by the Supreme Court, the
Court shall state a case setting out its opinion and the reasons therefore, and
refer the same for the opinion of the High Court.
Explanation: In this section,
“Regulation” means any Regulation of Bengal, Bombay or Madras Code of
Regulation as defined in the General Clauses Act, 1897 (10 of 1897), or in the
General Clauses Act of a State.
S115. Revision.- (1) The High Court may call for the record
of any case which has been decide 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:—
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.
(2) 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.
(3) A revision shall not operate as a stay
of suitor other proceeding before the Court except where such suit or other
proceeding is stayed by the High Court.
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.
S 114. Review.- Subject as aforesaid, 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 Code, or
(C) by a decision on a reference from a
court of small causes, which passed the decree or made the order, and the court
may make such order thereon as it thinks fit, may apply for a review of judgment
to the court.
Order XLVII – Rule 1.
Application for review of judgment.- (1) Any person considering himself aggrieved,—
(a) by a decree or order from which an
appeal is allowed, but from which no appeal has been preferred,
(b) by a decree or order from which no
appeal is allowed, or
(C) by a decision on a reference from a
Court of Small Causes,
and who, from 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, 6r on account of some mistake or error
apparent on the face of the record, or for any other sufficient reason, desires
to obtain a review of the decree passed or order made against him, may apply
for a review of judgment to the Court which passed the decree or made the
order.
(2) A party who is not appealing from a
decree or order may apply for a review of judgment 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.
Explanation : The fact that the decision
on a question of law on which the judgment 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 judgment.
Order XLVII – Rule 3. Form of applications for review.- The provisions as to the form of preferring appeals shall
apply mutatis mutandis, to applications for review.
Order XLVII – Rule 4.
Application where rejected.- (1) Where it
appears to the court that there is no sufficient ground for review, it shall
reject the application.
(2) Application where granted—Where the
court is of opinion that the application for review should be granted, it shall
grant the same:
Provided that—
(a) no such application shall be granted
without previous notice to the opposite party, to enable him to appear and be
heard in support of the decree or order, a review of which is applied for; and
(b) no such application shall be granted
on the ground of discovery of new matter or evidence which the applicant
alleges was not within his knowledge, or could not be adduced by him when the
decree or order was passed or made, without strict proof of such allegation.
Order XLVII – Rule 5. Application for review in court consisting of two or
more Judges.- Where the
Judge or Judges, or any one of the Judges, who passed the decree or made the
order, a review of which is applied for, continues or continue attached to the
court at the time when the application for a review is presented, and is not or
are not precluded by absence or other cause for a period of six months next
after the application from considering the decree or order to which the
application refers, such Judge or Judges or any of them shall hear the
application, and no other Judge or Judges of the Court shall hear the same.
Order XLVII – Rule 6.
Application where rejected.- (1) Where the
application for a review is heard by more than one Judge and the Court is
equally divided, the application shall be rejected.
(2) Where there is a majority, the
decision shall be according to the opinion of the majority.
Order XLVII – Rule 7.
Order of rejection not appealable—Objections to order granting application.- (1) An order of the court rejecting the application shall
not be appealable; but an order granting the application may be objected to at
once ‘ an appeal from the order granting the application or in an appeal from
the decree or order finally passed or made in the suit.
(2) Where the application has been rejected in consequence of the failure of the applicant to appear, he may apply for an order to have the rejected application restored to the file, and, where it is proved to the satisfaction of the court that he was prevented by any sufficient cause from appearing when such application was called on for hearing, the court shall order it to be restored to the file upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for hearing the same.
(2) Where the application has been rejected in consequence of the failure of the applicant to appear, he may apply for an order to have the rejected application restored to the file, and, where it is proved to the satisfaction of the court that he was prevented by any sufficient cause from appearing when such application was called on for hearing, the court shall order it to be restored to the file upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for hearing the same.
(3) No order shall be made under sub-rule
(2) unless notice of the application has been served on the opposite party.
Order XLVII – Rule 8. Registry of application granted, and order for
re-hearing.- When an
application for review is granted, a note thereof shall be made in the register
and the court may at once re-hear the case or make such order in regard to the
re-hearing as it thinks fit.
Order XLVII – Rule 9. Bar of certain applications.- No application to review an order made on an application
for a review or a decree or order passed or made on a review shall be
entertained.
14. Hari Das v Smt. Usha Rani Banik, 2006(3) SCALE 287
In order to appreciate the
scope of a review, Section 114 of the CPC has to be read, but this section does
not even adumbrate the ambit of interference expected of the Court since it
merely states that it may make such order thereon as it thinks fit. The parameters
are prescribed in Order XLVII of the CPC and for the purposes of this lis,
permit the defendant to press for a rehearing on account of some mistake or
error apparent on the face of the records or for any other sufficient reason.
The former part of the rule deals with a situation attributable to the
applicant, and the latter to a jural action which is manifestly incorrect or on
which two conclusions are not possible. Neither of them postulate a rehearing
of the dispute because a party had not highlighted all the aspects of the case
or could perhaps have argued them more forcefully and/or cited binding
precedents to the Court and thereby enjoyed a favourable verdict. This is amply
evident from the explanation in Rule 1 of the Order XLVII which states that the
fact that the decision on a question of law on which the judgment 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 judgment.
Where the order in question is appealable the aggrieved party has adequate and
efficacious remedy and the Court should exercise the power to review its order
with the greatest circumspection.
This Court in M/s.
Thungabhadra Industries Ltd. (in all the Appeals) v. The Government of Andhra
Pradesh represented by the Deputy Commissioner of Commercial Taxes, Anantapur,
[AIR 1964 1372] held as follows:
"There is a distinction
which is real, though it might not always be capable of exposition, between a
mere erroneous decision and a decision which could be characterized as vitiated
by "error apparent". A review is by no means an appeal in disguise
whereby an erroneous decision is reheard and corrected, but lies only for
patent error. Where without any elaborate argument one could point to the error
and say here is a substantial point of law which states one in the face and
there could reasonably be no two opinions entertained about it, a clear case of
error apparent on the face of the record would be made out."
A perusal of the Order XLVII,
Rule 1 show that review of a judgment or an order could be sought : (a) from
the discovery of new and important matters or evidence which after the exercise
of due diligence was not within the knowledge of the applicant; (b) such
important matter or evidence could not be produced by the applicant at the time
when the decree was passed or order made; and (c) on account of some mistake or
error apparent on the face of record or any other sufficient reason.
In Aribam Tuleshwar Sharma v.
Aribam Pishak Sharma (AIR 1979 SC 1047) this Court held that there are definite
limits to the exercise of power of review. In that case, an application under
Order XLVII, Rule 1 read with Section 151 of the Code was filed which was
allowed and the order passed by the judicial Commissioner was set aside and the
writ petition was dismissed. On an appeal to this Court it was held as under:
"It is true as observed
by this Court in Shivdeo Singh v. State of Punjab (AIR 1963 SC1908) there is
nothing in Article 226 of the Constitution to preclude a High Court from
exercising the power of review which inherent in every Court of plenary
jurisdiction to prevent miscarriage of justice or to correct grave and palpable
errors committed by it. But, there are definitive limits to the exercise of the
power of review. The power of review may be exercised on the discovery of new
and important matter of evidence which, after the exercise of due diligence was
not within the knowledge of the person seeking the review or could not be produced
by him at the time when the order was made, it may be exercised where some
mistake or error apparent on the face of the record is found; it may also be
exercised on any analogous ground. But, it may not be exercised on the ground
that the decision was erroneous on merits. That would be the province of a
Court of appeal. A power of review is not to be confused with appellate power
which may enable an Appellate Court to correct all manner of errors committed
by the Subordinate Court
Topic 10 –
(i) Enlargement of Time
(S148)
S 148.
Enlargement of time.- Where any period is fixed or granted by
the Court for the doing of any act prescribed or allowed by this Code, the
court may, in its discretion, from time to time, enlarge such period, not
exceeding thirty days in total, even though the period originally fixed or
granted may have expired.
(ii) Power to make up
deficiency of Court fees (S149)
S 149.
Power to make up deficiency of court fees.- Where the whole or any part of any fee
prescribed for any document by the law for the time being in force relating to
court fees has not been paid, the court may, in its discretion, at any stage,
allow the person, by whom such fee is payable, to pay the whole or part, as the
case may be, of such court fee; and upon such payment the document, in respect
of which such fee is payable, shall have the same force and effect as if such
fee had been paid in the first instance.
(iii) Inherent Power of Court
(S151)
S 151. Saving of inherent powers of court.- Nothing in this Code shall be deemed to limit or otherwise
affect the inherent power of the court to make such orders as may be necessary
for the ends of justice, or to prevent abuse of the process of the court.
(iv) Correction of Judgment,
Orders or Decrees (S152)
S 152.
Amendment of judgments, decrees or orders.- Clerical or arithmetical mistakes in
judgments, decrees or orders or errors arising therein from any accidental slip
or omission may at any time be corrected by the court either of its own motion
or on the application of any of the parties.
15. Mahant Ram Dass v Mahant Ganga Dass, AIR 1961 SC 882
The High Court passed a
peremptory order that " the appeal will stand dismissed " if a
certain amount of court fee was not paid within the time granted by the court.
The appellant being unable to find money made an application for extension of
time before the expiry of the time granted, and offering to make a partial
payment asked for further time, The application was heard after the expiry of
the time and was dismissed on the ground that the appeal had already "
stood dismissed " owing to non-payment within the time allowed. The appellant's
applications under s. 151 and O. 47, r. 1 of the CPC were also dismissed on the same ground although the court
expressed sympathy for the appellant. On appeal with a certificate of High
Court:
Held, that such procedural orders
though peremptory (conditional decrees apart) are, in essence, in terrorem, so that
dilatory litigants might put themselves in order and avoid delay but they do
not completely estop a court from taking note of events and circumstances which
happen within the time fixed and time should have been extended in the circumstances of the case and the
court was not powerless to deal with events happening after the peremptory
order. S 148 of the CPC, in terms, allows extension of time, even if the original
period fixed expired and S. 149 is equally liberal; the High Court had ample
power to apply those sections and to exercise its inherent powers under S. 151
in order to do justice to a litigant for whom it had expressed considerable
sympathy.
16. Samrendra Nath Sinha v Krishan Kumar Nag, AIR 1967 SC 1440
A
piece of land with some constructions on it situated in district Howrah
HELD
: (i) The High Court had held that the respondent had a locus standi in the
matter and had directed that he was to be allowed in the remand proceedings to
plead that the final decree should be one for sale thus reopening the question
of redemption of the mortgage which' had been extinguished by the final decree.
The High Court's order as regards these' matters was certainly a final order
and therefore the pro- priety of the certificate under Art. 133 granted to the
appellants could not be questioned.
(ii)There
is 'an inherent power in the -court which passes the judgment to correct a
clerical mistake or an error arising from an accidental slip or omission and to
vary its judgment so as to give effect to its meaning and intention. On the
facts of the present case there could be little doubt that the court had no
occasion to pass a preliminary decree for sale and that it was through an
accidental slip or inadvertence that in the penultimate part of its judgment
the court used the phraseology proper in a mortgage decree for sale. Once this
error had crept in the judgment it was repeated in the preliminary decree. This
being the position the trial court had the power under s. 151 and s. 152 of the
Code of Civil procedure to correct its own error which had crept in the
judgment and the preliminary decree and to pass a proper final decree for
foreclosure as intended by it.
iii)
On the facts of the case it could not be said that the decree represented a
wrong decision of the Court.
(iv)
The principle of lis pendens applies even to involuntary alienations like court
sales. The respondent having purchased the mortgaged property while the appeal
against the preliminary decree in respect of the property was pending in the
High Court, the doctrine of lis pendens must apply to his purchase and he was
therefore bound by the result of the suit.
17. Dwarka Das v State of M.P.
The Respondent State
HELD : 1. The
omission in not granting the pendente lite interest could not be held to be an
accidental omission or mistake as was wrongly done by the trial court. The High
Court was, therefore, justified in setting aside the
2. The High Court
was not justified in disallowing the claim of the appellant for Rs. 20,000 on
account of damages as expected profit out of the contract which was found to
have been illegally rescinded. The grant of damages by the Trial Court which
was 10% of the contract price was reasonable and permissible particularly when
the High Court had con-curred with the finding of the trial court regarding
breach of contract.
Part TWO – Orders I to LI
Topic 11: Parties to Suits (Order I, Rules 1,2 and 3) Order 1, Rule 10 rw Order
XXII, Rule 10 & Interpreter suits Order XXXV
Order I Rule 1. Who may be joined as plaintiffs.- All persons may be joined in one
suit as plaintiffs where—
(a) 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; and
.(b) if such persons brought
separate suits, any common question of law or fact would arise.
Order I Rule 2 Power of court to order separate
trials.-
Where it appears to the court
that any joinder of plaintiffs may embarrass or delay the trial of the suit,
the court may put the plaintiffs to their election or order separate trials or
make such other order as may be expedient.
Order I Rule 3 Who may be joined as defendants.-
All persons may be joined in
one suit as defendants where—
(a) 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 against such persons, whether jointly,
severally or in the alternative; and
(b) if separate suits were
brought against such persons, any common question of law or fact would arise.
Order I Rule 10 Suit in name of wrong plaintiff.-
(1) Where a suit has been
instituted in the name of the wrong person as plaintiff or where it is doubtful
whether it has been instituted in the name of the right plaintiff, the court
may at any stage of the suit, if satisfied that the Suit has been instituted
through a bone fide mistake, and that it is necessary for the determination of
the real matter in dispute so to do, order any other person to be substituted
or added as plaintiff upon such terms as the court thinks just.
(2) Court may strike out or
add parties—The court may at any stage of the proceedings, either upon or
without the application of either party, and on such terms as may appear to the
court to be just, order that the name of any party improperly joined, whether
as plaintiff or defendant, be struck out, and that the name of any person who
ought to have been joined, whether as plaintiff or defendant, or whose presence
before the court may be necessary in order to enable the court effectually and
completely to adjudicate upon and settle all the questions involved in the
suit, be added.
(3) No person shall be added
as a plaintiff suing without a next friend or as the next friend of a plaintiff
under any disability without his consent.
(4) Where defendant added,
plaint to be amended—Where a defendant is added, the plaint shall, unless the
court otherwise directs, be amended in such manner as may be necessary, and
amended copies of the summons and of the plaint shall be served on the new
defendant and, if the court thinks fit, on the original defendant.
(5) Subject to the provisions
of the Indian Limitation Act, 1877 (15 of 1877), section 22, the proceedings as
against any person added as defendant shall be deemed to have begun only on the
service of the summons.
Order XXII Rule 10
10. Procedure in case of
assignment before final order in suit.- (1) In other cases of an assignment,
creation or devolution of any interest during the pendency of a Suit, the suit
may, by leave of the court, be continued by or against the person to or upon
whom such interest has come or devolved.
(2) The attachment of a
decree pending an appeal there from shall be deemed to be an interest entitling
the person who procured such attachment to the benefit of sub-rule (1).
Order XXXV - INTERPLEADER SUITS
1. Plaint in interpleaded
suit.- In every suit of interpleaded the plaint shall, in addition to the other
statements necessary for plaints, state—
(a) that the plaintiff claims
no interest in the subject matter in dispute other than for charges or costs;
(b) the claims made by the
defendants severally; and
(c) that there is no
collusion between the plaintiff and any of the defendants.
2. Payment of thing claimed
into court.- Where the thing claimed is capable of being paid into court or
placed in the custody of the court, the plaintiff may be required to so pay or
place it before he can be entitled to any Order in the suit.
3. Procedure where defendant
is suing plaintiff.- Where any of the defendants in an interpleader suit is
actually suing the plaintiff in respect of the subject matter of such suit, the
court in which the suit against the plaintiff is pending shall, on being informed
by the court in which the interpleader suit has been instituted, stay the
proceedings as against him; and his costs in the suit so stayed may be provided
for in such suit; but if, and in so far as, they are not provided for in that
suit, they may be added to his costs incurred in the interpleader suit.
4. Procedure at first
hearing.- (1) At the first hearing the court may—
(a) declare that the
plaintiff is discharged from all liability to the defendants in respect of the
thing claimed, award him his costs, and dismiss him from the suit; or
(b) If it thinks that justice
or convenience so require, retain all parties until the final disposal of the
suit.
(2) Where the court finds
that the admission of the parties or other evidence enable it to do so, it may
adjudicate the title to the thing claimed.
(3) Where the admissions of
the parties do not enable the court so to adjudicate, it may direct—
(a) that an issue or issues
between the parties be framed and tried, and
(b) that any claimant be made
a plaintiff in lieu of or in addition to the original plaintiff, and shall
proceed to try the suit in the ordinary manner.
5. Agents and tenants may not
institute Interpleader suits.- Nothing in this Order shall be deemed to enable
to sue their principals, or tenants to sue their landlords, for the purpose of
compelling them to interplead with any persons other than persons making claim
through such principal or landlords.
IIIustrations
(a) A deposits a box of
jewels with B as his agent. C alleges that the jewels were wrongfully obtained
from him by A, and claims them from B. B cannot institute an interpleader suit
against A and C.
(b) A deposits a box of
jewels with B as his agent. He then writes to C for the purpose of making the
jewels a security for a debt due from himself to C. A afterwards alleges that
C’s debt is satisfied, and C alleges the contrary. Both claim the jewels from
B. B may institute an interpleader suit against A and C.
6. Charge for plaintiff's
cost.- Where the suit is properly institued the court may provide for the costs
of the original plaintiff by giving him a charge on the thing claimed or in
some other effectual way.
Topic 12: Amendment of Pleadings (Order VI, Rule 17)
Order VI Rule 17.
Amendment of Pleadings.- the Court may
at any stage at 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:
Provided that no application for amendment
shall be allowed after the trial has commenced, unless the court comes to the
conclusion that in spite of due diligence, the party could not have raised the
matter before the commencement of trial.
18. Jai Jai Ram Manohar Lal v National Building
Material Supply Co. AIR 1969 S.C. 1267
Manoharlal s/o Jai Jai Ram
commenced an action in the Court of the Subordinate Judge, for valuer of timber
supplied to the defendant. 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
plaintiff signed and verified the plaint as 'Jai Jai Ram Manohar Lal, by the
pen of Manohar lal.' Later he applied to the Court for leave to amend the
plaint. In the application he averred that
the business carried on under the name Jai Jai Ram Manohar Lal was a joint
Hindu family business and the name was not an assumed or fictitious one as it
contained his-name and that of his father. On these averments he prayed that he
be allowed to describe him-' self in the cause title as Manohar Lal proprietor
of Jai Jai Ram Manohar Lal and in paragraph 1 to state that he carried on the
business in timber in the name
of 'Jai Jai Ram Manohar Lal'. The application
was 'allowed by the trial Judge. The
defendant then filed a supplementary written statement raising two additional
contentions:
(1) that the plaintiff was
not the sole owner of the business and that his other brothers were also the owners of
the business; and
(2) that the amendment took effect from the' date on
which it was made and if so, the suit was barred by limitation. The trial court
rejecting these contentions decreed the suit. The High Court in appeal took the
view that the action having been instituted in the name of a non existing
person', and Manohar Lal having failed to
aver in the application for amendment that the action was instituted in the
name of 'Jai Jai Ram Manohar Lal' on account of a bona fide mistake or
omission, the Subordinate Judge was incompetent to grant leave to amend the
plaint. The High Court further held that the amendment allowed by the trial
Court took effect only from the date of amendment, and the action was barred by
limitation. Against the judgment of the High Court the plaintiff, by special
leave, appealed to this Court.
HELD : (i) The order passed
by the High Court could not be sustained. Rules of procedure
are, intended to, be a handmaid to the administration of justice. A
party cannot be refused relief merely- because of
same 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 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.
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 claimed to have filed the
suit 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 mis description was 'On account of a bona fide mistake, and on
that account the suit must fail, could not be accepted. 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.
(ii) Since the name in which
the action was instituted was merely a misdescription of the original
plaintiff, no question of limitation arose and 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.
(iii)The defendant raised and
persisted in a plea which had no merit even after the amendment was allowed by
the trial court. In the
circumstances he must pay the costs in this Court and the High Court.
19. M/s Ganesh Trading Co. v Moji Ram, AIR 1978 SC 484
The appellant-plaintiff firm
had filed a suit through one of its partners, for
recovery of Rs. 68,000/- due under a promissory note. After the written statement
had been duly filed, an amendment of the plaint was applied for, on the ground that the plaintiff had inadvertently
omitted to mention the essential fact that the firm had actually been dissolved
before the institution of the suit.
The Trial Court, and the High Court, in revision, refused to allow the
amendment on the ground that it would amount to the introduction of a new time
barred cause of action. Allowing the appeal the Court,
HELD: In a suit 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. Even where an essential fact is lacking from averments in the plaint, the
cause of action will be defective but this does not, by itself, necessarily constitute a new cause of
action if the plaint is amended.
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
subject to conditions such as payment of costs.
Procedural law is intended to
facilitate and not to obstruct the course of substantive justice. Provisions
relating to pleadings in civil cases are meant to give to each side intimation of the case of the other so
that it may be met, to enable
Courts to determine what is really at issue between the parties, and to prevent deviation
from the course which litigation on
particular causes Must take.
20. Dalip Kaur v Major Singh, AIR 1996 P&H 107
1. In a suit for possession
of land measuring 21 kanals 10 marlas and for permanent injunction restraining
the defendants from alienating the land by way of sale, exchange, gift etc.,
the plaintiff filed an application under Order 6, Rule 17 of the Code of Civil
Procedure, 1908 seeking amendment of the plaint by making a prayer for
declaring the judgment and decree dated 20-7-1993 passed in Civil Suit No. 135
of 6-2-1990 entitled 'Major Singh v. Balbir Kaur' as null and void and
ineffective against the rights of the plaintiff. The application for amendment
was dismissed mainly on the ground that the samE has been filed without
explaining the alleged inordinate delay. It was further held that the proposed
amendment of the plaint was likely to change the foundation of the suit by
introducing the distinct cause of action.
3. The purpose and object of
Order 6, RuLe 17, C.P.C. is to allow either party to alter or amend his
pleadings in such manner and on such terms as may be just. The power to allow
the amendment is wide and can be exercised at any stage of the proceedings in
the interest of justice on the basis of guidelines laid down by various High
Courts and the Hon'ble Supreme Court of India. It was held in AIR 1967 SC 96,
AIR 1974 SC 1126, AIR 1978 SC 484 that the object of the rule was to decide the
rights of the parties and not to punish them for their mistakes, by allowing
the amendment of the pleadings in the appropriate cases. The exercise of such
far-reaching discretionary power is governed by judicial considerations and
wider the discretion; greater has to be the care and circumspection on the part
of the Court.
On the basis of
the different judgments it is settled that the following principles should be
kept in mind in dealing with the applications for amendment of the pleadings:--
(i) All amendments
should be allowed which are necessary for determination of the real
controversies in the suit;
(ii) The proposed
amendment should not alter and be a substitute of the cause of action on the
basis of which the original Us was raised;
(iii) Inconsistent
and contradictory allegations in negation to the admitted position of facts or
mutually destructive allegations of facts would not be allowed to be
incorporated by means of amendment
(iv) Proposed
amendments should not cause prejudice to the other side which cannot be
compensated by means of costs;
(v) amendment of a
claim or relief barred by time should not be allowed;
(vi) no amendment
should be allowed which amounts to or results in defeating a legal right to the
opposite party on account of lapse of time;
(vii) no party
should suffer on account of the technicalities of law and the amendment should
be allowed to minimize the litigation between the parties;
(viii) the delay
in filing the petitions for amendment of the pleadings should be properly
compensated by costs;
(ix) error or
mistake which if not fraudulent should not be made on ground for rejecting the
application for amendments of pleadings.
4. It is true that amendment
cannot be claimed as a matter of right and under all circumstances. The
circumstances under which the prayer for amendment of the pleadings is to be
allowed, as indicated hereinabove, are general and not exhaustive. The
circumstances may differ from case to case and it would depend upon the facts
of each individual case keeping in view the object that the Courts are to do
substantial justice and not to punish a party on technical grounds. If the
result of the application is only to force a party to start fresh litigation,
such an approach must be discouraged and the parties allowed to litigate in the
same lis with respect to the subject matter of the dispute without changing its
basic character of the nature of the litigation.
5. It has been conceded by
the learned counsel for the respondents that the plaintiff can file a fresh
suit challenging the judgment and decree dated 20-7-1993 passed in Civil Suit
No. 135 of 6-2-1990. It follows, therefore, that the relief claimed is not
barred by time and by the proposed amendment no vested right of the respondent
would be taken away. The amendment does not defeat any legal right allegedly
having accrued to the opposite party and the delay in filing the petition for
amendment can properly be compensated by costs. Keeping in view the principles
required to be kept in mind while dealing with the application for amendment as
enumerated herein above, I am of the opinion that the Court below was not
justified in rejecting the application of the petitioner-plaintiff vide the
order impugned in this petition. The delay in seeking amendment could well be
compensated by awarding costs.
6. Under the circumstances,
the order impugned in the revision petition is set aside and the plaintiff is
permitted to amend the plaint subject to payment of Rs. 1000/- as costs.
21. B.K. Narayana Pillai v. Parameswaran Pillai,
(2000) 1 SCC 712
The purpose and object of
Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in
such manner and on such terms as may be just. The power to allow the amendment
is wide and can be exercised at any stage of the proceedings in the interests
of justice on the basis of guidelines laid down by various High Courts and this
Court. It is true that the amendment cannot be claimed as a matter of right and
under all circumstances. But it is equally true that the Courts while deciding
such prayers should not adopt a hypertechnical approach. Liberal approach
should be the general rule particularly in cases where the other side can be
compensated with the costs. Technicalities of law should not be permitted to
hamper the Courts in the administration of justice between the parties.
Amendments are allowed in the pleadings to avoid uncalled for multiplicity of
litigation.
Topic 13: Rejection of Plaint (Order VII, Rule 11)
Order VII Rule 11.
Rejection of plaint.- The
plaint shall be rejected in the following cases:—
(a) where it does not disclose a cause of
action;
(b) where the relief claimed is
undervalued, and the plaintiff, on being required by the court to correct the
valuation within a time to be fixed by the court, fails to do so;
(c) where the relief claimed is properly
valued, but the plaint is written upon paper insufficiently stamped, and the
plaintiff, on being required by the court to supply the requisite stamp paper
within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the
statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails comply with
the provision of Rule 9.
Provided that the time fixed by the court
for the correction of the valuation or supplying of the requisite stamp papers
shall not be extended unless the court, for reasons to be recorded, is
satisfied that the plaintiff was prevented by any cause of an exceptional
nature from correcting the valuation or supplying the requisite stamp papers,
as the case may be within the time fixed by the court and that refusal to
extend such time would cause grave injustice to the plaintiff.
22. Saleem Bhai v State of Maharashtra, AIR 2003 SC
759
4. The appellant filed an
application under Order VII Rule 11 of the Code of Civil Procedure, 1908 (for
short, 'the C.P.C.') in the suits praying the court to dismiss the suits on the
ground stated therein. Before us, it is stated that the plaint is liable to be
rejected under Clauses (a) and (d) of Rule 11 of Order VII C.P.C. While so, the
said respondents also filed the application under Order VIII Rule 10 C.P.C. to
pronounce judgment in the suits as the appellant did not file his written
statement. There was also an application by the appellant under Section 151
C.P.C. praying the court to decide first the application under Order VII Rule
11 C.P.C. By order dated 8th December, 2001, the learned Trial Judge dismissed
the application under Order VIII Rule 10 as well as the application filed under
Section 151 C.P.C.
Insofar as the application
under Order VII Rule 11 C.P.C. is concerned, the learned Judge directed the
appellant to file his written statement. Aggrieved thereby, the appellant filed
afore-mentioned revision petitions before the High Court of Madhya Pradesh
[Indore Bench]. On May 7, 2002, the High Court, while confirming the order of
the learned Trial Judge reiterated the direction given by the learned Trial
Judge that the appellant should file his written statement and observed that
the trial court shall frame issues of law and facts arising out of pleadings
and that the trial court should record its finding on the preliminary issue in
accordance with law before proceeding to try the suit on facts. It is against
this order of the High Court that the present appeals have been preferred.
5. Mr. T.R. Andhyarujina,
learned senior counsel appearing for the appellant in the appeal arising out of
S.L.C. (C) No. 13234 of 2002 and Mr. R.F. Nariman, learned senior counsel
appearing for the appellant in the appeal arising out of S.L.P. (C) No. 14577
of 2002 have contended that having regard to the very nature of the relief
claimed by the plaintiffs, the plaints are liable to be rejected under Order
VII Rule 11 C.P.C. and that the court ought to have considered the said
application or merits instead of giving direction to file written statement
which would amount to not exercising the jurisdiction vested in the court. It
is further contended that the High Court also did not appreciate that the
plaints do not show any cause of action and that the plaint ought to have been
rejected as the suit is barred by the principles of res judicata and lis
pendense.
6. Mr. K.K. Venugopal,
learned senior counsel appearing for the respondents, on the other hand, drew
our attention to various orders passed in earlier proceedings to show that the
subject-matter of the property, items 51 and 52 of the relinquishment deed were
not the suit properties in the earlier judgements, including the order passed
by this Court and, therefore, neither the principle of res judicata nor the
principle of Lis pendense is attracted.
7. The short common question
that arises for consideration in these appeals is, whether an application under
Order VII Rule 11 C.P.C. ought to be decided on the allegations in the plaint
and filing of the written statement by the constesting defendant is irrelevant
and unnecessary.
8. Order VII Rule
11 C.P.C. reads as under:
"11.
Rejection of plaint.--The plaint shall be rejected in the following cases:--
(a) where it does
not disclose a cause of action;
(b) where the
relief claimed is undervalued, and the plaintiff, on being required by the
Court to correct the valuation within a time to be fixed by the court, fails to
do so;
(c) where the
relief claimed is properly valued by the plaint is written upon paper
insufficiently stamped, and the plaintiff, on being required by the Court to
supply the requisite stamp-paper within a time to be fixed by the Court, failed
to do so;
(d) where the suit
appears from the statement in the plaint to be barred by any law;
(e) where it is
not filed in duplicate;
(f) where the
plaintiff fails to comply with the provisions of Rule 9;
Provided that the
time fixed by the Court for the correction of the valuation or supplying of the
requisite stamp-paper shall not be extended unless the Court, for reasons to be
recorded, is satisfied that the plaintiff was prevented by any cause of an
exceptional nature for correcting the valuation or supplying the requisite
stamp-paper, as the case may be, within the time fixed by the Court and that
refusal to extend such time would cause great injustice to the plaintiff."
9. A perusal of Order VII
Rule 11 C.P.C. 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 VII Rule 11 C.P.C. at any
state 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 VII
C.P.C., the averments in the plaint are germane; the pleas taken by the
defendant in the written statement would be wholly irrelevant at that stage,
therefore, a direction to file the written statement without deciding the
application under Order VII Rule 11 C.P.C. cannot but be procedural
irregularity touching the exercise of jurisdiction by the trial court. The
order, therefore, suffers from non-exercising of the jurisdiction vested in the
court as well as procedural irregularity. The High Court, however, did not
advert to these aspects.
10. We are, therefore, of the
view that for the afore-mentioned reasons, the common order under challenge is
liable to be set aside and we, accordingly, do so. We remit the cases to the
trial court for deciding the application under Order VII Rule 11 C.P.C. on the
basis of the averments in the plaint, after affording an opportunity of being
heard to the parties in accordance with law.
11. The civil appeals are,
accordingly, allowed. There shall be no order as to costs.
Topic 14: Appearance of Parties & Consequences of
Non-appearance
(Order IX, Rules 6, 7 &
13)
Order IX
Rule 6.
Procedure when only plaintiff appears.- (1) Where the plaintiff appears and the
defendant does not appear when the suit Is called on for hearing, then
(a) When summons duly served—lf it Is proved that the summons was duly
served, the court may make an Order that the suit be heard ex parte;
(b) When summons not duly served—if it is not proved that the summons was
duly served, the court shall direct a second summons to be issued and served on
the defendant;
(c) When summons served but not in due
time—if it is proved
that the summons was served on the defendant, but not insufficient time to
enable him to appear and answer on the day fixed in the summons, the court
shall postpone the hearing of the Suit to a future day to be fixed by the
court, and shall direct notice of such day to be given to the defendant.
(2) Where it is owning to the plaintiff’s
default that the summons was not duly served or was not served in sufficient
time, the court shall Order the plaintiff to pay the costs occasioned by the
postponement.
Order IX Rule 7. Procedure where defendant appears on day of adjourned
hearing and assigns good cause for previous non appearance.- Where the court has adjourned the hearing of the Suit ex
parte, and the defendant, at or before such hearing, appears and assigns good
cause for his previous non appearance, he may, upon such terms as the court
directs as to costs or otherwise, be heard in answer to the suit as if he had
appeared on the day fixed for his appearance.
Order IX Rule 13.
Setting aside decree ex parte against defendant.- In any case in which a decree is passed ex parte against a
defendant, he may apply to the court by which the decree was passed for an
Order to set it aside; and if he satisfies the court that the summons was not
duly served, or that he was prevented by any sufficient cause from appearing
when the suit was called on for hearing, the court shall make an Order setting
aside the decree as against him upon such terms as to costs, payment into court
or otherwise as it thinks fit, and shall appoint a day for proceeding with the
suit:
Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be sent aside as against all or any of the other defendant also:
Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be sent aside as against all or any of the other defendant also:
Provided further that 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.
Explanation : Where there has been an
appeal against a decree passed ex parte under this rule, and the appeal has
been disposed of on any ground other than the ground that the appellant has
withdrawn the appeal, no application shall lie under this rule of setting aside
the ex parte decree.
23. Sangram Singh v Election Tribunal, AIR 1955 SC 425
Notwithstanding the provision in section 105 of the
Representation of the People Act (Act XLIII) of 1951 that every order of an
Election Tribunal made under the Act shall be final and conclusive, the High
Court and the Supreme Court have unfettered
jurisdiction to examine whether the tribunal, in the exercise of its undoubted
jurisdiction, has acted legally or otherwise, This jurisdiction cannot be taken
away by a legislative device that purports to confer power on a tribunal to act
illegally. The legality of an act or conclusion is something that exists
outside and apart from the decision of an inferior tribunal. It is a part of
the law of the land which cannot be finally determined or altered by any tribunal
of limited jurisdiction. The High Courts and
the Supreme Court alone can determine what
the law of the land is vis-a-vis all other Courts and tribunals and they alone
can pronounce with authority and finality on what is legal and what is not. All
that an inferior tribunal can do is to reach a tentative conclusion which is
subject to review under Articles 226 and 136 of the Constitution. The
jurisdiction of the High Courts under Article 226, with that of the Supreme
Court above them remain to the fullest extent despite section 105 of the
Representation of the People Act. Limitations on the exercise of, such jurisdiction can only be
imposed by the Constitution. The powers of the High Courts under Article 226 of the Constitution are discretionary and,
though no limits can be placed upon that discretion, it must be exercised along
recognised lines and not arbitrarily. In the exercise of their jurisdiction
under Article 226, the High Courts should not act as Courts of Appeal or
revision to correct mere errors of law which do not occasion injustice in a
broad and general sense. It is a sound exercise of discretion to bear in mind
the policy of the legislature to have disputes about special rights, as in
election cases, decided as speedily as may be. The High Courts should not therefore
entertain petitions for prerogative writs lightly in this class of case.
The appellant filed an election
petition under section 100 of the Representation of the People Act. He appeared
on the first and 'Subsequent hearing at Kotah. The proceedings were then
adjourned for certain hearings at Udaipur
Held, (1) Under section 90(2)
of the Representation of the People Act the procedure for the trial of election
petitions is to be, as near as may be, the same as in the trial of suits under
the Civil Procedure Code;
(2) Under the CPC there is no
such thing as an ex parte order for non-appearance which precludes further
appearance at an adjourned hearing until the Order is set aside. If a party
appears at an adjourned hearing the court has a discretion (which must be
exercised judicially) either to allow him to appear on such terms as it thinks
fit, or to disallow further appearance; but
(3) if he is allowed to
appear then, unless good cause is shown under Order 9, rule 7 for the earlier
non-appearance the proceedings must continue from the stage at which the later
appearance is entered and the party so appearing cannot be relegated to the
position he would have occupied if he had appeared at the earlier hearing or
hearings; also,
(4) in exercising its discretion
the court must see that justice is done to all concerned, including the
witnesses Rule 6 (1) (a) of Order 9 of the Civil Procedure Code is confined to
the first hearing of the suit and does not apply, per se to subsequent
hearings. O. 9, r. 7 gives a party a right to be relegated to the position he
would have occupied if he had appeared at the earlier hearing or hearings if he
shows good cause. It does not per se prevent further appearance when no good
cause is shown. O. 17, r. 2 applies at the adjourned hearing and there, the
Court is given a wide discretion to make such order as it thinks fit.
A code of procedure is a body
of law designed to facilitate justice and further its ends, and should not be
treated as an enactment providing for punishments and penalties. The laws of
procedure are grounded on the principle of natural justice which requires
that men should not be condemned unheard, that decisions should not be reached
behind their backs, that proceedings that affect their lives and property should
not continue in their absence and that they should not be precluded from
participating in them. Subject to clearly defined exceptions the laws of
procedure should be construed wherever reasonably possible, in the light of
that principle. The court is invested with the widest possible discretion to
see that justice is done to all concerned. No hard and fast rule can be laid
down; and the court in the exercise of its judicial discretion will have, in a
given case, to determine what consequences are to follow from non- appearance.
An order awarding costs, or an adjournment, or the consideration of the written
statement and the framing of the issues on the spot, can in some cases meet the
ends of justice. In other cases, more drastic action may be called for.
By "ends of justice"
is meant not only justice to the parties but also to witnesses and others who
may be inconvenienced. The
convenience of the witnesses, which deserves the greatest consideration is
ordinarily lost sight of in this class of case. Justice strongly demands that
this unfortunate section of the general public compelled to discharge public
duties, usually at loss and inconvenience to themselves should not be ignored
in the over-all picture of what will best serve the ends of justice; and it may
well be a sound exercise of discretion in a particular case to refuse an
adjournment and permit the plaintiff to examine the witnesses present and not
allow the defendant to cross-examine them. But broadly speaking, after all the
various factors have been taken into
consideration and carefully weighed, the endeavour should be to avoid snap
decisions and to afford the parties a real
opportunity of fighting out their cases fairly squarely. The Court must in
every case exercise the discretion given to it. Its hands are not tied by a
so-called "ex parts order", and, if it thinks they are tied by rule 7
of Order 9 of the Code, then it is not exercising the discretion which the law
says it should, and in a given case interference may be called for.
Held, that the Election
Tribunal did not exercise the discretion given to it by law because of a
misapprehension that it had none. It was directed to do so now and to proceed
with the further hearing of the case in accordance with law.
24. Rajni Kumar v Suresh Kumar Malhotra, 2003(3) SCALE 434
Leave is granted.
In this appeal, from the
Judgment and Order of the High Court of Delhi in C.R. No.138 of 2001 dated
October 15, 2001, the short point that arises for consideration is : whether
the High Court committed jurisdictional error in declining to set aside the ex
parte decree on the application of the appellant under Rule 4 of Order 37, on
the ground that he failed to disclose facts sufficient to entitle him to defend
the suit. The facts relevant for the disposal of this appeal may be noted here.
The appellant-tenant had
taken on rent residential flat No.C 470, Sarita Vihar, Ground Floor, New Delhi
- 110 004, from the respondent-landlord for a period of nine months under an
agreement of lease reduced to writing on November 26, 1993. After the expiry of
the term of tenancy she continued to occupy the said premises as tenant till
January 11, 1997. Alleging that the appellant did not pay the electricity and
water consumption charges for the period starting from November 26, 1993 to
January 11, 1997, the respondent filed suit No.597 of 1997 in the Court of
Senior Civil Judge, Delhi
Mr.A.Sharan, learned senior
counsel appearing for the appellant, strenuously contended that there was no
proof or record to show that any notice by registered post with acknowledgment
due was issued to the appellant by the respondent who had taken the notice from
the court but did not file any proof of issuing the notice to the appellant,
therefore, there was special reason for the appellant not to appear in response
to the summons for judgment. He argued that sufficient amount was deposited
with the respondent as advance and that Order 37 C.P.C. was not applicable to
the facts of the case, therefore, the appellant had good defence to the suit.
The trial court as well as the High Court, submitted Mr.Sharan, erred in
dismissing the application under Rule 4 of Order 37 C.P.C.
The respondent appeared
in-person and argued his case with precision and perfection. He submitted that
summons for judgment was issued on April 21, 1999 and that the court had
rightly drawn presumption of service on the appellant; that nowhere in her
application had the appellant stated anything about her defence to the suit and
therefore the order under challenge was rightly passed by the courts below. To
appreciate the contentions of the parties it would be useful to refer to Rule 4
of Order 37 C.P.C. which is in the following terms:
"Order XXXVII -Summary
Procedure Rule (4) Power to set aside decree - After decree the Court may,
under special circumstances, set aside the decree, and if necessary stay or set
aside execution, and may give leave to the defendant to appear to the summons
and to defend the suit, if it seems reasonable to the Court so to do, and on
such terms as the Court thinks fit."
A careful reading of Rule 4
shows that it empowers, under special circumstances, the court which passed an
ex parte decree under Order 37 to set aside the decree and grant one or both of
the following reliefs, if it seems reasonable to the court so to do and on such
terms as the court thinks fit :
(i) to stay or set aside
execution and
(ii) to give leave to the
defendant (a) to appear to the summons and (b) to defend the suit.
The expression 'special
circumstances' is not defined in the C.P.C. nor is it capable of any precise
definition by the court because problems of human beings are so varied and
complex. In its ordinary dictionary meaning it connotes something exceptional
in character, extra-ordinary, significant, and uncommon. It is an antonym of
common, ordinary and general. It is neither practicable nor advisable to
enumerate such circumstances. Non-service of summons will undoubtedly be a
special circumstance.
In an application under Order
37, Rule 4, the court has to determine the question, on the facts of each case,
as to whether circumstances pleaded are so unusual or extra ordinary as to
justify putting the clock back by setting aside the decree; to grant further
relief in regard to post-decree matters, namely, staying or setting aside the
execution and also in regard to pre decree matters viz., to give leave to the
defendant to appear to the summons and to defend the suit.
In considering an application
to set aside ex parte decree, it is necessary to bear in mind the distinction
between suits instituted in the ordinary manner and suits filed under Order 37
C.P.C. Rule 7 of Order 37 says that except as provided there under the
procedure in suits under Order 37 shall be the same as the procedure in suits
instituted in the ordinary manner.
Rule 4 of Order 37
specifically provides for setting aside decree, therefore, provisions of Rule
13 of Order 9 will not apply to a suit filed under Order 37.
In a suit filed in the
ordinary manner a defendant has the right to contest the suit as a matter of
course. Nonetheless, he may be declared ex parte if he does not appear in
response to summons, or after entering appearance before framing issues; or
during or after trial. Though addressing arguments is part of trial, one can
loosely say that a defendant who remains absent at the stage of argument, is
declared ex parte after the trial. In an application under Order 9 Rule 11, if
a defendant is set ex parte and that order is set aside, he would be entitled
to participate in the proceedings from the stage he was set ex parte.
But an application under
Order 9 Rule 13 could be filed on any of the grounds mentioned there under only
after a decree is passed ex parte against defendant.
If the court is satisfied
that (1) summons was not duly served, or (2) he was prevented by sufficient cause from
appearing when the suit was called for hearing, it has to make an order setting
aside the decree against him on such terms as to cost or payment into court or
otherwise as it thinks fit and thereafter on the day fixed for hearing by
court, the suit would proceed as if no ex parte decree had been passed.
But in a suit under Order 37
the procedure for appearance of defendant is governed by provisions of Rule 3
thereof. A defendant is not entitled to defend the suit unless he enters
appearance within ten days of service of summons either in person or by a
pleader and files in court an address for service of notices on him. In default
of his entering an appearance, the plaintiff becomes entitled to a decree for
any sum not exceeding the sum mentioned in the summons together with interest
at the rate specified, if any, upto the date of the decree together with costs.
The plaintiff will also be
entitled to judgment in terms of sub-rule (6) of Rule 3. If the defendant
enters an appearance, the plaintiff is required to serve on the defendant a
summons for judgment in the prescribed form. Within ten days from the service
of such summons for judgment, the defendant may seek leave of the court to
defend the suit, which will be granted on disclosing such facts as may be
deemed sufficient to entitle him to defend and such leave may be granted to him
either unconditionally or on such terms as the court may deem fit. Normally the
court will not refuse leave unless the court is satisfied that facts disclosed
by the defendant do not indicate substantial defence or that defence intended
to be put up is frivolous or vexatious. Where a part of the amount claimed by
the plaintiff is admitted by the defendant to be due from him, no leave to
defend the suit can be granted unless the admitted amount is deposited by him
in Court. Inasmuch as Order 37 does not speak of the procedure when leave to
defend the suit is granted, the procedure applicable to suits instituted in the
ordinary manner, will apply. It is important to note here that the power under
Rule 4 of Order 37 is not confined to setting aside the ex parte decree, it
extends to staying or setting aside the execution and giving leave to appear to
the summons and to defend the suit. We
may point out that as the very purpose of Order 37 is to ensure an expeditious
hearing and disposal of the suit filed thereunder, Rule 4 empowers the court to
grant leave to the defendant to appear to summons and defend the suit if the
Court considers it reasonable so to do, on such terms as court thinks fit in
addition to setting aside the decree. Where on an application, more than one
among the specified reliefs may be granted by the Court all such reliefs must
be claimed in one application. It is not permissible to claim such reliefs in
successive petitions as it would be contrary to the letter and spirit of the
provision. That is why where an application under Rule 4 of Order 37 is filed
to set aside a decree either because the defendant did not appear in response
to summons and limitation expired, or having appeared, did not apply for leave
to defend the suit in the prescribed period, the court is empowered to grant
leave to defendant to appear to the summons and to defend the suit in the same
application. It is, therefore, not enough for the defendant to show special
circumstances which prevented him from appearing or applying for leave to
defend, he has also to show by affidavit or otherwise, facts which would
entitle him leave to defend the suit. In this respect, Rule 4 of Order 37 is
different from Rule 13 of Order 9.
Now adverting to the facts of
this case, though appellant has shown sufficient cause for his absence on the
date of passing ex parte decree, he failed to disclose facts which would entitle
him to defend the case. The respondent was right in his submission that in the
application under Rule 4 of order 37, the appellant did not say a word about
any amount being in deposit with the respondent or that the suit was not
maintainable under Order 37. From a perusal of the order under challenge, it
appears to us that the High Court was right in accepting existence of special
circumstances justifying his not seeking leave of the court to defend, but in
declining to grant relief since he had mentioned no circumstances justifying
any defence.
In this view of the matter,
we do not find any illegality much less jurisdictional error in the order under
challenge to warrant interference of this Court. In as much as having regard to
the provisions of Section 34 of the C.P.C. and the facts of the case that the
liability does not arise out of a commercial transaction, we are of the view
that the grievance of the appellant with regard to rate of interest is
justified. We, therefore, reduce the
rate of interest from 18 per cent to 6 per cent per annum.
We directed the appellant to
deposit the decree amount to serve as security for the suit amount in the event
of this Court granting him leave to defend the suit. Since that relief is not
granted to him, it will be open to him to withdraw the said amount or have it
adjusted in satisfaction of the decree. Subject to above modification of the
order of the trial court as confirmed by the High Court the appeal is
dismissed.
No costs
25. Bhanu Kumar Jain v. Archana Kumar, AIR 2005, SC
626
Plaintiff filed suit for
partition of suit premises. On the date fixed for evidence, nobody appeared for
the defendants even after adjournments where after application was filed by the
plaintiff that he had closed hisevidence. Cost of Rs. 200 was imposed on the
defendants with a stipulation that it cost was not paid, the right of
cross-examination will be closed.
On the next date defendant
No. 1 was again absent, the case was posted ex parte against her and, cost
having not been paid, the right to cross examine was forfeited. On the date
fixed for final argument, the defendant No. 1 did not appear and the case was
posted for delivery of judgment, on which date an application under O9 r7 was
filed by the defendants (Respondents herein) for setting aside the order by
which the suit was posted for ex parte hearing. The said application was
rejected and a preliminary decree for partition in favour of the plaintiff was
passed.
Application under O9 r13 for
setting aside the ex parte decree was dismissed and the appeal under O43 rl
thereagainst as well. The special leave petition filed against the appellate
order came to be dismissed as withdrawn. Thereafter, the defendants filed
regular First appeal in the High Court which was allowed. In the meanwhile the
plaintiff transferred his right, title and interest in favour of the present
appellant. Hence, this appeal.
It was contended by the
appellant that subject matter of the application under O9 R13 and the regular
First appeal being the same, allowing two parallel to continue is against
public policy and, in any event, the claim of the respondent was hit by the
Doctrine of issue estoppel. As regards the counter claim of the respondent No.
2 it was contended that it was directed only against his mother in law and thus
it could not have been enforced against plaintiff.
The respondents, on the other
hand, contended that they were entitled to maintain an appeal against the ex
parte decree and, in any event, were entitled to assail the judgment on merit
of the matter. As regards the counter claim of respondent No. 2, it was
contended that even if no written statement was filed the court may direct the
parties to adduce evidence in which event the court may pass a decree only upon
the satisfaction that the plaintiff has been able to prove his case. The
restricted statutory right
upon a party to the suit
under Section 96(2) will always be available to assail the judgment if the plaintiff
fails to prove his case. Contention on the issue that the appellant has no
locus standi to maintain this appeal, as upon the death of the original
plaintiff he has not been substituted in his place (in the proceeding pending
before the High Court) was also advanced.
Held:
1.1. Order 9 Rule 7 of the
Code postulates an application for allowing a defendant to be heard in answer
to the suit when an order posting a suit for ex-parte hearing was passed only
in the event the suit had not been heard as in a case where hearing of the suit
was complete and the court had adjourned a suit for pronouncing the judgment,
an application under Order 9 Rule 7 would not be maintainable.
1.2. In an application under
Order 9 Rule 13 of the Code, however, apart from questioning the correctness or
otherwise of an order posting the case for ex-parte hearing, it is open to the
defendant to contend that he had sufficient and cogent reasons for not being
able to attend the hearing of the suit on the relevant date.
2.1. The contention raised
before the High Court in the first Appeal, having not been raised in the
earlier application under Order 9, Rule 13 of the Code and even in the Misc.
Petition and the Revision Application filed in the High Court, such a question
having not been raised the appellant is disentitled from raising the said
contention yet against before the High Court in the First Appeal.
2.2. An appeal against an
ex-parte decree in terms of Section 96(2) of the Code could be filed on the
following grounds :
(i) The materials on record
brought on record in the ex-parte proceedings in the suit by the plaintiff
would not entail a decree in his favour, and
(ii) The suit could not have
been posted for ex-parte hearing.
2.3. When an ex-parte decree
is passed, the defendant (apart from filing a review petition and a suit for
setting aside the ex-parte decree on the ground of fraud) has two clear
options, one, to file an appeal and another to file an application for setting
aside the order in terms of Order 9, Rule 13 of the Code. He can take recourse
to both the proceedings simultaneously but in the event the appeal is dismissed
as a result whereof the ex-pane decree passed by the Trial Court merges with
the order passed by the appellate court, having regard to Explanation appended
to Order 9, Rule 13 of the Code a petition under Order 9, Rule 13 would not be maintainable.
However, when an application under Order 9, Rule 13 of the Code is dismissed,
the defendant can only avail a remedy available there against, viz, to prefer
an appeal in terms of Order 43, Rule 1 of the Code. Once such an appeal is
dismissed, the Appellant cannot raise the same contention in the First Appeal.
2.4. There may not be a
statutory bar to avail two remedies simultaneously and an appeal as also an
application for setting aside the ex-parte decree can be filed, one after the
other; on the ground of public policy the right of appeal conferred upon a
suitor under a provision of statute cannot be
taken away if the same is not
in derogation or contrary to any other statutory provisions. A right to
question the correctness of the decree in a First Appeal is a statutory right.
Such a right shall not be curtailed nor any embargo thereupon shall be fixed
unless the statute expressly or by necessary implication say so.
2.5. Defendant would not be
permitted to raise a contention as regards the correctness or otherwise of the
order posting the suit for ex-parte hearing by the Trial Court and/or existence
of a sufficient case for non-appearance of the defendant before it, it would be
open to him to argue in the First Appeal filed by him against Section 96(2) of
the Code on the merit of the suit so as to enable him to contend that the
materials brought on record by the plaintiffs were not sufficient for passing a
decree in his favour or
the suit was otherwise not
maintainable. Lack of jurisdiction of the court can also be a possible plea in
such an appeal. The `Explanation' appended to Order 9 Rule 13 of the Code,
however, has to be strictly construed.
3.1. It is now well-settled
that principles of res-judicata applies in different stages of the same
proceedings.
3.2. Res judicata debars a
court from exercising its jurisdiction to determine the lis if it has attained
finality between the parties. It creates a different kind of estoppel viz.
Estoppel by Accord.
4.1. Doctrine issue estoppel
is invoked against the party. If such an issue is decided against him, he would
be estopped from raising the same in the latter proceeding.
4.2. "Cause of action
estoppel" prevents a party to an action from asserting or denying, as
against the other party, the existence of a particular cause of action, the
non-existence or existence of which has
been determined by a court of
competent jurisdiction in previous litigation between the same parties.
5.1. In terms of Order 22,
Rule 10 of the Code of the transferee from the plaintiff can be substituted in
place of the plaintiff. Even if not substituted in terms of the aforementioned
provision, an application under Order 1, Rule 10 of the Code his behalf was
maintainable, as he become the legal representative of the original plaintiff.
Topic 18: Summary Procedure (Order XXXVII Rules 1 to 4)
OXXXVII Rule 1. Courts and classes of
suits to which the Order is to apply.- (1) This Order shall apply to the
following courts, namely:—
(a) High Courts, City Civil Courts and
Courts of Small Causes; and
(b) other courts;
Provided that in respect of the courts
referred to in clause (b), the High Court may, by notification in the Official
Gazette, restrict the operation of this order only to such categories of suits
as it deems proper, and may also, from time to time, as the circumstances of
the case may require, by subsequent notification in the Official Gazette,
further restrict, enlarge or vary, the categories of suits to be brought under
the operation of this order as it deems proper.
(2) Subject to the provisions of sub-rule (1), the order applies to the following classes of Suits, namely:
(2) Subject to the provisions of sub-rule (1), the order applies to the following classes of Suits, namely:
(a) suit upon bills of exchange, hundies
and promissory notes;
(b) suits in which the plaintiff seeks
only to recover a debt or liquidated demand in money payable by the defendant,
with or without interest arising-
(i) on a written contract; or
(ii) on an enactment, where the sum sought
to be recovered is a fixed sum of money or in the nature of a debt(other than a
penalty; or
(iii) on a guarantee, where the claim
against the principal is in respect of a debt or liquidated demand only.
Order XXXVII Rule 2.
Institution of summary Suits.- (1) A suit, to which this Order applies, may, it the
plaintiff desires to proceed hereunder, be instituted by presenting a plaint
which shall contain,—
(a) a specific averment to the effect that
the suit is filed under this Order;
(b) that no relief, which does not fall
within the ambit of this rule, has been claimed in the plaint; and
(c) the following inscription, immediately
below the number of the suit in the title of the suit, namely:—
(Under Order XXXVII of the Code of Civil
Procedure, 1908)”.
(2) The summons of the suit shall be in
form No. 4 in Appendix B or in such other Form as may , from time to time, be
prescribed.
(3) The defendant shall not defend the
suit referred to in sub-rule (1) unless he enters an appearance and in default
of his entering an appearance the allegations in the plaint shall be deemed to
be admitted and the plaintiff shall be entitled to a decree for any sum, not
exceeding the sum mentioned in the summons, together with interest at the rate
specified, if any, up to the date of the decree and such sum for costs as may
be determined by the High Court from time to time by rules made in that behalf
and such decree may be executed forthwith.
Order XXXVII Rule 3.
Procedure for the appearance of defendant.- (1) In a suit to which this Order applies, the plaintiff
shall, together with the summons under rule 2, serve on the defendant a copy of
the plaint and annexure thereto and the defendant may, at any time within ten
days of such service, enter an appearance either in person or by pleader and,
in either case, he shall file in court an address for service of notice on him.
(2) Unless otherwise ordered, all
summonses, notices and other judicial processes, required to be served on the
defendant, shall be deemed to have been duly served on him if they are left at
the address given by him for such service.
(3) On the day of entering the appearance,
notice of such appearance shall be given by the defendant to the plaintiff’s
pleader, or, if the plaintiff sues in person, to the plaintiff himself, either
by notice delivered at or sent by a prepaid letter directed to the address of
the plaintiff’s pleader or of the plaintiff, as the case may be.
(4) If the defendant enters an appearance,
the plaintiff shall thereafter serve on the defendant a summons for judgment in
Form No. 4A in Appendix B or such other Form as may be prescribed fr6m time to
time, returnable not less than ten days from the 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.
(5) The defendant may at any time within
ten days from the service of such summons for It's affidavit or otherwise d
such facts as may be deemed sufficient to entitle him to defend , apply on such
summons for leave to defend such suit, and leave to defend may be granted to
him unconditionally or upon such terms as may appear to the court or judge to
be just:
Provided that leave to defend shall not be refused unless the court-is-satisfied.*hat 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:
Provided that leave to defend shall not be refused unless the court-is-satisfied.*hat 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:
Provided further that, where a part of the
amount claimed by the plaintiff is admitted by the defendant to be due from
him, leave to defend the suit shall not be granted unless the amount so
admitted to be due is deposited by the defendant in court.
(6) At the hearing of such summons for
judgment,—
(a) if the defendant has not applied for leave
to defend, or if such application has been made and is refused, the plaintiff
shall be entitled to judgment forthwith; or
(b) if the defendant is permitted to
defend as to the whole or any part of the claim, the court or judge may direct
him to give such security and within such time as may be fixed by the court of
judge and that, on failure to give such security within the time specified by
the court or judge or to carry out such other directions as may have been given
by the court or judge, the plaintiff shall be entitled to judgment forthwith.
(7) The court or judge may, for sufficient
cause shown by the defendant, excuse the delay the defendant in entering an
appearance or in applying for leave to defend the suit.
Order XXXVII Rule 4. Power to set aside decree.- under special circumstances, set aside the decree, and if
necessary stay or set aside execution, and may give leave to the defendant to
appear to the summons and to defend the suit, if it seems reasonable to the
court so to do, and on such terms as the court thinks fit.
(More on Summary Procedure: http://www.scribd.com/doc/22467852/SUMMARY-SUITS
)
29. Santosh Kumar v Bhai Mool Singh, AIR 1958, S.C. 321
The respondent filed a suit
against the appellant under O. xxxvII of the CPC on the basis of a cheque for
Rs. 60,000 drawn by the appellant in favour of the respondent which, on
presentation to the Bank, had been
dishonoured. The appellant applied under r. 3 of O.XXXVII for leave to appear
and defend the suit on the ground that the cheque had been given only as a
collateral security for
the price of goods supplied, that the goods had been paid for by cash payments and by other cheques and that therefore
the cheque in question had served its end and was without consideration. The
Court held that the defence raised a triable issue but that the defence was vague and was not bona fide as the
appellant had produced no evidence to prove his assertions and consequently
granted leave to defend the suit on the condition of the appellant giving security
for the suit amount and the costs of
the suit:
Held, that the imposition of
the condition was illegal and the appellant was entitled to defend the suit
without giving the security. The object
of the special procedure under O. XXXVII of the
Code is to see that a defendant does not unnecessarily prolong the litigation
by raising untenable and frivolous defences. 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 and given
unconditionally.
Held, further, that the Court
was wrong in imposing the condition about giving security on the ground that
for want of production of
documentary evidence the defence was vague and not bona fide as the stage of
proof can only arise after leave to appeal and defend has been granted. Though
the Court is given a discretion about imposing conditions it must be exercised
judicially and in consonance with principles of natural justice. If the
discretion is exercised arbitrarily, or
is based on a misunderstanding of the principles that govern 'its exercise,
then interference is called for
if there has been a resultant failure of justice.
30. M/s Mechalec Engineers & Manufacturers v Basic Equipment
Corporation, AIR 1977 SC 577
The appellant issued the
respondent a cheque which was dishonoured. The respondent alleged that the
cheque was the consideration for goods supplied. The appellant admitted issuing the cheque but denied by
privity of contract. The respondent filed a suit under order 37 C.P.C., and the
appellant applied for the required leave to defend, which was granted by the
trial Court unconditionally. On revision under section 115 C.P.C., the High
Court held that triable issues arose for adjudication, but, it considered the
defence to be dishonest. If allowed the revision petition and gave conditional
leave to defend on the ground that the defences were not bona fide.
Allowing the appeal, the
Court
HELD: It is only in cases
where the defence is patently dishonest or so unreasonable that it could not
reasonably be expected to succeed that the exercise of discretion by the Trial
Court to grant leave unconditionally may
be questioned. In other cases, it is not fair to pronounce a categorical
opinion on such a matter before the evidence of the parties is taken so that
its effects could be examined. High Court's interference under sec. 115 C.P.C.
with the correct exercise of its discretion by the
trial Court was patently erroneous.
31. ONGC Ltd. v State Bank of India
ONGC[1] had awarded a large
gas pipeline contract to an Italian consortium S[2] at a certain contract price
(CP). The work was to be executed within a given date else S was liable to pay
certain percentage of C.P. S was also obliged to furnish a bank guarantee (BG)
not later than 4 months prior to the scheduled completion date. Failure in this
regard entitled ONGC to encash the performance guarantee. In case of delay, S
was to get validity of BG extended. In any dispute the jurisdiction was that of
India
B had issued BG in favour of
ONGC against the counter guarantee of an Italian Bank (I)[4] and S had obtained
an order of injunction from I from making any payment to B under the counter
guarantee.
Rupee payment under BG can be
made only on receipt of re-imbursement from I in an approved manner.[5]
The matter being subjudice,
ONGC should wait until the issue is resolved.
HELD:
High Court (Bombay
The Court granted
unconditional leave to defend the suit on the following terms
While invoking BG, the amount
of liquidated damage was not stated.
As per BG, a clear notice of
demand towards liquidated damage was to be given;
The notice of invocation was
not a legal notice to communicate the liquidated damages
Arbitration proceedings
pending; Italian Court
SUPREME COURT:
Issues
Whether a confirmed bank
guarantee can be interfered by the court?
Whether encashment of
unconditional bank guarantee depends on adjudication of disputes?
What effect the counter
guarantee will have in this case?
Contention (ONGC): None of
the grounds stated by the HC provided any basis for granting an unconditional
leave to defend.
S. RAJENDRA BABU, J. (Appeal
allowed)
(.w.r.t 1st issue)As per
precedents, confirmed bank guarantee/ irrevocable letters of credit cannot be
interfered with unless there is fraud and irretrievable injustice involved.
Mere irretrievable injustice without prima facie case of established fraud is
inconsequential. Sic there is no such fraud and irretrievable injustice
involved in this case, BG can be invoked by ONGC without interference.
w.r.t 2nd issue) Encashment
of an unconditional bank guarantee does not depend upon the adjudication of
disputes. In the absence of a plea of fraud, guarantee had to be given effect
to.[6]
Arrangement of counter
guarantee was between the B and I and non payment by I in no way affected the
rights of the beneficiary ONGC to obtain money under the guarantee issued by
the Bank. A bank cannot decline payment under a bank guarantee on the ground
that the counter guarantee was restrained by a foreign court, when there was no
other impediment to payment under exchange control regulations.
Topic 19: Temporary Injunctions & Interlocutory
Orders
(Order XXXIX, Rules 1 to 5)
Order XXXIX Rule 1.
Cases in which temporary injunction may be granted.- Where in any Suit it is proved by affidavit or otherwise—
(a) that 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 execution of a decree, or
(b) that the defendant threatens, or
intends, to remove or dispose of his property with a view to defrauding his
creditors,
(c) 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 the wasting, damaging, alienation, sale, removal or
disposition of the property 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.
Order XXXIX Rule 2.
Injunction to restrain repetition or continuance of breach.- (1) In any suit for restraining the defendant from
committing a breach of contract or other injury of any kind, whether
compensation is claimed in the suit or not, the plaintiff may, at any time
after the commencement of the suit, and 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.
(2) The court may by 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.
Sub-rules (3) and (4) omitted by Act 104
of 1976, w.e.f. 1-2-1977.
Order XXXIX Rule 2A.Consequence
of disobedience or breach of injunction.- (1) In the case of disobedience of any injunction granted
or other Order made under rule 1 or 2 or breach of any of the terms on which
the injunction was granted or the Order made, the court granting the injunction
or making the order, or any court to which the Suit or proceeding is
transferred, may Order the property of the person guilty of such disobedience
or breach to be attached, and may also Order such person to be detained in the
civil prison for a term not exceeding three months, unless in the meantime the
court directs his release.
(2) No attachment made under this rule
shall remain in force for more than tone year at the end of which time, if the
disobedience or breach continues, the property attached may be sold and out of
the proceeds, the court may award such compensation as it thinks fit to the
injured party and shall pay the balance, if any, to the party entitled thereto.
Order XXXIX Rule 3.
Before granting injunction, court to direct notice to opposite party.- The court shall in all cases, except where it appears that
the object of granting the injunction would be defeated by the delay, before
granting an injunction, direct notice of the application for the same to be
given to the opposite party:
Provided that, where it is proposed to
grant an injunction without giving notice of the application to the opposite
party, the court shall record the reasons for its opinion that the object of
granting the injunction would be defeated by delay, and require the applicant—
(a) to deliver to the opposite party, or
to send to him by registered post, immediately after the Order granting the
injunction has been made, a copy of the application for injunction together
with—
(i) a copy of the affidavit filed in
support of the application;
(ii) a copy of the plaint; and
(iii) copies of documents on which the
applicant relies, and
(b) to file, on the day on which such injunction is
granted or on the day immediately following that day, an affidavit stating that
the copies aforesaid have been so delivered or Sent.
Order XXXIX Rule 3A. Court to dispose of application for injunction within
thirty days.- Where an
injunction has been granted without giving notice to the opposite party, the
court shall make an endeavour to finally dispose of the application within
thirty days from the date on which the injunction was granted; and where it is
unable so to do, it shall record its reasons for such inability.
Order XXXIX Rule 4.
Order for injunction may be discharged, varied or set aside.- Any Order for an injunction may be discharged, or varied,
or set aside by the court, on application made thereto by any party
dissatisfied with such order:
Provided that if in an application for
temporary injunction or in any affidavit supporting such application, a party
has knowingly made a false or misleading statement in relation to a material
particular arid the injunction was granted without giving notice to the
opposite party, the court shall vacate the injunction unless, for reasons to be
recorded, it considers that it is not necessary so to do in the interests of
justice:
Provided further that where an Order for
injunction has been passed after giving to a party an opportunity of being
heard, the Order shall not be discharged, varied or set aside on the
application of that party except where such discharge, variation or setting
aside has been necessitated by a change in the circumstances, or unless the
court is satisfied that the Order has caused undue hardship to that party.
Order XXXIX Rule 5. Injunction to corporation binding on its officers.- 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.
32. Monohar Lal v. Seth Hira Lal AIR 1962 SC 527
M filed a suit at Asansol
against H for recovery of money. Later, H filed a counter suit at Indore Indore
court for an injunction to restrain M from proceeding with the Asansol suit pending
the disposal of the Indore
Held, that the order of injunction was wrongly granted
and should be vacated. Per, Wanchoo, Das Gupta, and
Dayal,JJ.-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. There was no prohibition in s. 94
against the grant of a temporary injunction in circumstances not covered by O.
39. But inherent powers were not
to be exercised when their
exercise was in conflict
with the express provisions of
the Code or was against the
intention of the legislature. Such powers were to be exercised 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 Indore
Per, Shah, J.-Civil courts
have no inherent power to issue injunctions in case not covered by O. 39, rr. 1 and 2 Code of Civil Procedure. The power
of civil courts, other than Chartered High Courts, to issue injunctions must be
found within the terms of s. 94 and O. 39, rr. 1 and 2. Where an express
provision is made to meet a particular situation the Code must be observed and
departure therefrom is not permissible. Where the Code deals expressly with a
particular matter the provision should normally be regarded as exhaustive.
33. Dalpat Kumar v Prahlad Singh, AIR 1993 SC 276
On June 14, 1979 the first
appellant claimed to have entered into an agreement to purchase the residential
house situated in Jaipur for a consideration of Rs. 51,000/-. He laid the suit
for specific performance and the suit was decreed ex parte. On August 10, 1983,
the sale deed was executed through court. On April 28. 1984, the respondent's
wife filed Suit No. 83 of 1984 and also sought for temporary injunction from
dispossession. In May 1984, the Trial Court rejected the application for ad
interim injunction which was confirmed, on appeal, by the High Court on July
14, 1987. Thereafter the suit was got dismissed for non-prosecution. The first
appellant filed Execution Application No. 6/85 in which the respondent filed
five unsuccessful objections. The first was dismissed on March 4, 1987. The
second one on December 4, 1987, which was confirmed on revision by the High
Court on January 20, 1988. The third one on October 4, 1987 and fourth one on
January 17, 1989. Even thereafter 5th objection was filed on May 23, 1989 which
was dismissed on October 24, 1989. This was also confirmed by the High Court in
Civil Revision No. 109/90 dated August 7, 1990. The third round of litigation
was started at the behest of his sons in O.S. No. 278/88 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 on July 7, 1988. On appeal, the High Court in Misc. Appeal No. 177/88
confirmed it by the order dated July 26, 1988. The 4th round of litigation was
started by the respondent in filing the present suit on December 7, 1988
pleading, that the first appellant being his counsel played fraud on him, in
paragraphs 9 and 10, the details of which are not material for the purpose of
this case. 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 Trial Court by order dated November 3,
1990 dismissed the application. On appeal, the High Court in Misc. Appeals Nos.
498/90 and 501/90 by the impugned order dated February 26, 1991 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.
Pursuant to the recommendation of the Law Commission Clause (c) was brought on
statute by Section 88(i)(c) of the Amending Act 104 of 1966 with effect from
February 1, 1977. Earlier thereto there was no express power except the
inherent power under Section 151, C.P.C. to grant ad interim injunction against
dispossession. Rule 1 primarily concerns with the preservation of the property
in dispute till legal rights are adjudicated. 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.
5. Therefore, 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. Satisfaction that there is a prima facie case by itself is
not sufficient to grant injunction. 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. The third condition
also is that "the balance of convenience" must be in favour of
granting injunction. 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. If on weighing competing possibilities
or probabilities of likelihood of injury and if the Court considers that
pending the suit, the subject-matter should be maintained in status quo, an
injunction would be issued. Thus the Court has to exercise its sound judicial
discretion in granting or refusing the relief of ad interim injunction pending
the suit.
6. Undoubtedly, 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. But the Court would be circumspect before granting the injunction and
look to the conduct of the party, the probable injuries to either party and
whether the plaintiff could be adequately compensated if injunction is refused.
This case demonstrates (we are not expressing any opinion on the plea of fraud
or their relative merits in the case or the validity of the decree impugned),
suffice to state that the conduct of the respondent militates against the bona
fides. At present there is a sale deed executed by the Court in favour of the
first appellant. If ultimately the respondent succeeds at the trial. They can
be adequately compensated by awarding damages for use and occupation from the
date of dispossession till date of restitution. Repeatedly the Civil Court
7. In our considered view,
the High Court committed manifest error of law in jumping to the above
conclusion to allow the appeal. This appeal is, accordingly, allowed. The order
of the High Court is set aside and that of the trial Court is confirmed. It is
made clear that any observations made either by the trial Court or the High
Court or of this Court should be taken to be not relevant at the trial on
merits. These are our only prima facie observations, subject to adduction of
evidence and proof at the trial on merits in the suit. The parties are directed
to bear their own costs.
Topic 20: Amendment to CPC by CPC(Amendment) Act (22
of 2002)
Sl. No.
|
Stages
of Litigation
|
Corresponding
Amendments made by the Act of 2002.
|
I)
|
PRE-TRIAL PROCEEDINGS
|
|
(a)
|
Institution of plaint, along with documents relied on
|
Under the amended Order, Rules 17
& 18 of the CPC Any documents that the plaintiff wants to rely on which
have not been either attached along with the plaint or stated in the list
can’t be subsequently introduced without the leave of the court. This provision would lead to greater
efficiency if followed strictly. The position under the amendment introduced
in 1999 was that new documents could only be introduced for the purpose of
cross examination or to refresh the witness’s memory
In cases where there’s delay in
production of documents due to no fault of the client, the Court may consider
that as a sufficient reason and allow the subsequent production of documents.
|
(b)
|
Service of summons to the opposite
party (defendant) to submit their written statement.
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Amendment to Rule 9, Order V: Summons
shall be delivered by the proper officer of the court in the ordinary course,
as opposed to the pre- amendment position, where in some cases, the plaintiff
or her agent could deliver the summons. Now the plaintiff only has to provide
the required number of copies of the plaint and to pay the costs of delivery.
If this is not done within the stipulated period of 7 days then the suit
shall be dismissed (Amended Rule 2 of the first schedule of Order IX ),
Rule 2 of Order IX as amended. However,
on application to the court, the plaintiff may be allowed to issue summons
herself. (Rule 9-A)
Summons may now be delivered through
Fax, or email also.
In cases where the defendant resides
outside the jurisdiction of the court where the suit is filed, such court can
direct service of summons through any one of the courier services approved by
it. An improvement over the 1999 Act insofar as the local court has now got
power to approve the courier service, whereas earlier only the HC had the
power to do so. The decentralisation should speed up the litigation. However
all this is subject to the Rules made by the High Court. what kind of rules
are made by the High Court are yet to be sseen and only then can the efficacy
of this provision be commented on. .
If the Defendant. refuses to accept
summons (which is till now a
common problem), whether it is
served personally by the proper officer through any of the new modes
introduced, the court on being intimated, can issue a declaration to the
effect that the summons have been duly served. Rule 9 (5) (what is the effect
of such a declaration? - contempt of court?)
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(c )
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Filing of Defendants written statement
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The defendant has to submit the
written statement within 30 days of the service of summons. This may be extended
upon an application to the court, up to a maximum of 90 days Reasons for
granting extension to be recorded in writing (as per amended Rule 1 sub rule
(i), Schedule I of Order V,).
Regarding the introduction of
additional. documents at a later stage the similar rule applies to the
defendant. as to the plaintiff mentioned above.
If the defendantt. fails to file the
written statement within the given time the court may pass any order against
the erring party or a judgment / decree. Amended
Order VIII Rule
This provision would definitely
further the cause of speedy justice..
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II
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TRIAL PROCEEDINGS
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a)
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Hearings in Court
ADJOURNMENTS !
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Once the hearing is commenced both the
plaintiff and defendant shall not be given leave by the court to amend the
suit unless the court is decides that in spite of due diligence being
exercised the party could not have raised the matter. Rule 17 of Order VI
Further if the party does not amend the suit within the given time then she
shall not be allowed to unless the court extends the time. Rule 18 Of Order
Vi
The Act of 2002 has reintroduced the
power of the Court to amend /strike out issues for the purpose of determining
the matter in controversy between the parties. (Rule V of Order XIV). This power was taken away by the
1999 amendment.
The court shall not grant more than
three adjournments to either party to the suit. Any adjournment shall only be
granted after the party requesting time shows sufficient cause. In each
adjournment, the court shall make an order as to costs faced by the other
party as a result of the adjournment. The court may also award higher costs
if its thinks fit. Possibly a punitive measure
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i)
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Presentation of oral arguments
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The court may fix a time limit for
oral arguments of either of the parties as it thinks fit. (Sub Rule 3- D Rule
2, Order XVIII, First Schedule)
Sometimes oral arguments tend to drag
on for hours together. However there is also a provision by which written
arguments can be submitted. This is a useful provision, because it offsets
any possible injustice owing to the refusal of the Court to hear the
arguments.
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ii)
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Examination in chief cross –
examination by the other side. of both parties witnesses.
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The examination in chief of the
witnesses of both parties shall be rendered via affidavit and furnished to
the court. The evidence (re-examination and Cross examination) may be taken
by a commissioner appointed by the court for this purpose, on the same day.
However usually (even after the new act, time is
granted for cross examination)
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b)
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Pronouncement of Judgment and
Decree/Order
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Judgement to be ordinarily pronounced
within 30 days subject to a maximum time limit of 60 days ( for extraordinary
reasons) But this is also not absolute….( per
amended Order XX)
In cases where the court orders sale
of the defendants property in pursuance of the claim awarded to the
plaintiffs. As per the amendment, the defendant now has 60 days (as opposed
to the earlier 30 days) for depositing the suit money in court. The amendment
removes the anomaly between the Code and the limitation act, which granted 60
days to the defendant before making the sale absolute. The amendment is
particularly beneficial for poorer litigants who now have additional time to
come up with the funds.
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c)
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Revision of Lower courts Order
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Section 115 has been amended to the
disadvantage of litigants. Under the amended provision, when a party files a
Civil Revision Petition aggrieved by the Order of a lower Court, the High
Court cannot reverse such Order except where the Order, if it had been made
in favour of the Revisioner, would have had the effect of finally disposing
of the proceedings. For example, if a Plaintiff in a suit wishes to make an
amendment to the Plaint and the Trial Court rejects the application, the High
Court cannot reverse this order, as it would not have finally disposed of the
case if the Order had been in favour of the Plaintiff
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d).
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Appeal
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The appeal process has been limited so
that hence forth no appeal shall lie from the judgment of a single judge of a
High court and no second appeal in any suit (irrespective of whether it comes
up before the high court or a lower court) where the subject value of the
original suit is up to
Rs. 25,000/- (Substituted
new section 102)
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III.
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SETTLEMENT OF DISPUTES OUTSIDE OF
COURT
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The Act of 1999, has introduced a new
provision (S.89) where the court may by itself, proactively refer a dispute
for alternative dispute resolution methods if it appears that elements of a
settlement exist, which may be acceptable to the parties to the dispute. The
Provision is a good one provided that it does not in any way prevent the
parties themselves withdrawing the case so that they may settle through any
mode of alternate dispute resolution that is acceptable to both parties.
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(Source: http://arvindadvocatesupremecourt.blogspot.in/2009/02/note-on-civil-procedure-code-amendment.html
36. Iridium India Telecom Ltd v Motorola Inc (2005) 2
SCC 145
Issue: Whether the
proceedings in the Chartered High Courts of Calcutta, Bombay
and Madras
Order 8 Rule 1. Written
statement - The defendant shall, within thirty days from the date of service of
summons on him, present a written statement of his defence:
Provided that where the
defendant fails to file the written statement within the said period of thirty
day, he shall be allowed to file the same on such other day, as may be
specified by the Court, for reasons to be recorded in writing, but which shall
not be later than ninety days from the date of service of summons.
Section 129 CPC - Power of
High Courts to make rules as to their original civil procedure.-
Notwithstanding anything in this Code, any High Court not being the Court of a
Judicial Commissioner may make such rules not inconsistent with the Letters
Patent or order or other law establishing it, to regulate its own procedure in
the exercise of its original civil Jurisdiction as it shall think fit, and
nothing herein contained shall affect the validity of any such rules in force
at the commencement of this Code.
The Apex Court
(i) The historical
developments as to the application of the CPC to the proceedings in the
Chartered High Courts are illuminating. The Legislature recognized
(ii) Letters patent not a
subordinate piece of legislation. Letters patent is a charter of the High
Court. Further it is settled law that between a special law and a general law
that special law will always prevail. Letters patent (a special law), CPC ( a
general law)
(iii) Amendments to CPC, 2002
leave unscathed the provisions of S129.
(iv) S129 ends with “and nothing herein contained shall affect the validity of any such
rules in force at the commencement of this Code.”
(v) S 129 invests the High
Court with the powers to make their own procedure which may be inconsistent
with the procedure of the CPC.
(vi) S4 of the CPC nothing in
the Code shall limit or affect any special law. As set out in Sec 4, CPC only a
specific provision to the contrary can exclude the special law. The specific
provision would be a provision like S100-A.
(vii) It seems that the real
reason why a distinction was drawn between the proceedings in Original
Jurisdiction was maintained right from the time the Letter patents was issued,
and has not been disturbed by the CPC, 1908.
