A. Code of Civil Procedure, 1908 (V of 1908), Order 5 Rule 17 – Service of summon -- When defendant refuses to accept the service or cannot be found, serving officer shall affix copy of summon on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides and carries on business or personally works for gain and shall then return the original to the court from which it was issued, with the report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so and the name and address of the person by whom the house was identified and in whose presence the copy was affixed -- Aforesaid compliance has not been made, so the trial Court was right in observing that it was not a proper service in the eyes of law.

(Para 7)

B. Code of Civil Procedure, 1908 (V of 1908), Order 5 Rule 9, 21 – Service of summons – Registered post -- Respondents were residing outside the territorial jurisdiction of the Court where the suit was instituted -- Service sought to be effected upon them by way of registered post acknowledgment due, directly by the Court where the suit was instituted, cannot be deemed to be proper service.

(Para 8)

Code of Civil Procedure, 1908 (V of 1908), Order 5 Rule 17, Order 6 Rule 2(i) – Evidence -- Pleading -- Evidence is not required to be incorporated or made part of the pleadings – Plaintiffs have filed suit for possession by way of redemption of mortgage -- They claimed to have stepped into the shoe of mortgager by virtue of a sale deed -- They want to prove that their vendor had possessed title -- Hence, the evidence sought to be led is not beyond pleadings.

(Para 12)

Code of Civil Procedure, 1908 (V of 1908), Order 21 Rule 92 – Deficiency in deposit of decreetal amount -- Clerical or arithmetical mistake – Bar of 60 days – Applicability of – No bar created for 60 days in cases where the deficiency is due to clerical or arithmetical mistake -- The court has been given enabling power to extend the time -- Second part of sub-rule (2) does not provide that the outer limit for deposit is 60 days.

(Para 12-14)

Code of Civil Procedure, 1908 (V of 1908), Order 9 Rule 13 – Ex-parte decree – Setting aside of -- Suit transferred from the courts at Gurugram to the courts at Pataudi -- For one date, two summons were issued to the counsel, the report on both the summons was different -- Summons sent for service on the respondent, Process Server visited his house it was disclosed by the respondent’s wife that her husband is serving in Delhi Police, however, no attempt was made by the plaintiff to serve the respondent at his office address -- Court has only granted an opportunity to respondent to contest the case – Revision dismissed.

(Para 5-8)

Code of Civil Procedure, 1908 (V of 1908), Order 39 Rule 1, 2 & 3, Order 43 Rule 1 (r) -- Interim injunction – Maintainability of appeal – Whether the order is passed ex-parte on an application under Order 39 Rule 1 and 2 CPC or is passed after hearing the parties, then appeal is maintainable -- Any order granting or declining an injunction cannot be passed under Rule 3 of Order 39 independently of Rule 1 or 2 CPC -- If the Court just give notice of the application under Order 39 Rule 1 and 2 CPC to the other party without expressing any opinion declining the ad interim injunction, then appeal is not maintainable -- Order declining ad interim injunction was passed after hearing the parties, so appeal against said order is maintainable under Order 43 Rule 1 (r) CPC.

(Para 5.2)

Code of Civil Procedure, 1908 (V of 1908), Order 41 Rule 27, Order 41 Rule 23A -- First appeal – Additional evidence – Remand of case -- First Appellate Court allowed the application for additional evidence and remanded the case back to the trial court for deciding afresh – No categoric appraisal of the reasons recorded by the trial court -- Appellate court to remand the case back to the lower court where re-trial of the case is considered necessary -- Order of Appellate Court’s remanding the case back to the trial Court set aside.

(Para 1, 3-5)

Code of Civil Procedure, 1908 (V of 1908), Order 21 Rule 37 -- Execution of decree – Conditional order of arrest -- Passing of order of conditional warrant of arrest without giving notice to the JD is in violation of the provisions of Order 21 Rule 37 CPC -- Court is bound to issue notice to the JD calling upon him to appear in the Court for showing cause against his detention in civil prison.

(Para 8)

A. Code of Civil Procedure, 1908 (V of 1908), Section 152, 153 -- Correction in prayer after decree -- Both the parties were aware of the fact that the suit has been filed with respect to two different Khasra numbers, namely, Rectangle No.3, Khasra No.11(7-12) and Rectangle No.3, Khasra No.12(8-0) as specified in para 1 of the plaint -- Defendant No. 1 while filing the counter-claim also referred to the land comprising Rectangle No. 3, Khasra No. 12(8-0) – Trial Court in issue No. 7 has also referred to land comprised in Khasra No.3//11/7-12, and Khasra No.3//12/8-0, total measuring 15 kanals and 12 marlas -- Parties were conscious of the fact that the dispute is with respect to 15 kanals and 12 marlas land, which also includes land comprising Rectangle No.3, Khasra No.12(8-0) – Held, in the prayer clause inadvertently the land comprised in Rectangle No.3, Khasra No.12 (8-0) was omitted – Amendment allowed.

(Para 4-12)

B. Code of Civil Procedure, 1908 (V of 1908), Section 153 -- Correction in prayer after decree -- Section 153 of the CPC enables the Court to exercise its general power to amend at any point in time but for such application, there is only one pre-condition that such amendment should be necessary for the purpose of determining the real question or issues raised by the parties to the dispute.

(Para 11)

A. Code of Civil Procedure, 1908 (V of 1908), Order 26 Rule 9 – Constitution of India, Article 227 -- Appointment of Local Commissioner – Maintainability of revision -- No revision would be maintainable against an order dismissing an application for appointment of a Local Commissioner -- It is trite that an order refusing to appoint a Local Commissioner does not decide any issue nor does it adjudicate any rights of the parties for the purpose of the suit and hence would not be a revisable order.

(Para 6)

B. Code of Civil Procedure, 1908 (V of 1908), Order 26 Rule 9 -- Appointment of Local Commissioner – Demarcation of land -- Prima facie there does not appear to be any dispute regarding demarcation of the land inasmuch as the suit simpliciter is for possession and mandatory injunction -- It is for the plaintiff-petitioner to prove her case and she cannot take the aid of the Court agency for creating evidence for her – Application for appointment of Local Commissioner dismissed.

(Para 8, 9)

Court Fees Act, 1870 (7 of 1870), Section 7 -- Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 – Ad-valorem court fee – Rejection of plaint -- Suit for declaration challenging sale deed -- Plaintiff-petitioner is the executant of the registered sale deed -- Merely because the plaintiff-petitioner is not seeking possession would not entitle him from escaping from the rigors of affixing ad valorem court fee – Order directing plaintiff-petitioner to affix ad valorem court fee, upheld.

(Para 2, 7, 8)

A. Code of Civil Procedure, 1908 (V of 1908), Order 39 Rule 1 & 2 – Temporary injunction against co-sharer -- Plaintiffs and defendants are joint owners in possession over land and nobody has been shown to be in the exclusive possession over the suit land -- It is trite law that the no injunction is to be granted against the other co-sharer.

(Para 9)

B. Code of Civil Procedure, 1908 (V of 1908), Order 39 Rule 1 & 2 – Temporary injunction against co-sharer -- Co-sharer cannot be restrained from raising construction over the joint land except when co-sharer results in ousting of other co-sharer or is detrimental to the rights of other co-sharers -- Possession of one co-sharer is possession of all in the eyes of law -- So, even if the respondents raise construction over some portion, it will be subject to partition and respondents cannot claim any preferential right over a particular chunk of land due to raising of construction over it.

(Para 10)

Code of Civil Procedure, 1908 (V of 1908), Order 9 Rule 13, Order 21 -- Ex-parte decree – Setting aside of – Stay of execution -- Summons sent at residential address received by brother -- Specific case of the petitioner that he is residing separately from his brother -- It is a question of evidence whether petitioner is residing in a separate house or both the brothers are residing in the same house – Amount of decree is going to be recovered by selling the property of the petitioner, it would definitely cause irreparable loss to the petitioner -- Execution of decree stayed subject to the condition that the petitioner shall deposit 50% of the amount of decree in the Executing Court within 15 days – Ld. trial Court directed to decide the application under Order 9 Rule 13 expeditiously.

(Para 6-8)

A. Will – Health of testator – Suspicious circumstances -- From the evidence of the witnesses with reference to the health of the testator Court do not find that he was not in good senses and was unable to understand his welfare or take correct decisions -- Hence, the Will cannot be held to be suspicious on the ground of the alleged ill-health of the testator at the time of the execution of the Will.

(Para 9.5)

B. Will – Genuineness of -- Testator left behind about 8 acres of land and three houses -- Respondent is bequeathed merely 3.5 Acres of land -- Meaning thereby the balance property is in possession of widow and daughter -- This is how the interest of the natural legal heirs has been taken care of -- Expenses for his last rites were borne by the husband of the respondent who was taking care of the land of the testator -- Nothing on record to suggest that the appellants were taking care of the property left by the testator immediately after his death or that any steps were taken by them to get the same mutated in their favour – Will found to be genuine – Judgment upheld.

(Para 2, 15)

C. Code of Civil Procedure, 1908 (V of 1908), Order 8 Rule 3, 5 -- Pleadings – Admission and denial in written statement -- Order VIII Rules 3 and 5 CPC clearly provides for specific admission and denial of the pleadings in the plaint -- A general or evasive denial is not treated as sufficient -- Proviso to Order VIII Rule 5 CPC provides that even the admitted facts may not be treated to be admitted, still in its discretion the Court may require those facts to be proved -- This is an exception to the general rule --  General rule is that the facts admitted, are not required to be proved.

(Para 15.1)

Limitation Act, 1963 (36 of 1963), Section 27, Article 64, 65 -- Suit for possession – Limitation of 12 years -- Adverse possession -- Defendant/ appellant has not set up the plea that his possession was adverse -- In the earlier case, defendant took the plea that suit property was given by his father in the family settlement, which, he failed to prove -- Possession of defendant is permissive possession and suit cannot be held to be barred by limitation -- An owner of the property cannot be deprived to get possession of the property.

(Para 19)

Code of Civil Procedure, 1908 (V of 1908), Order 41 Rule 27, Section 96 – Additional evidence in appeal -- It is incumbent upon learned Appellate Court to consider the application for additional evidence along with the hearing of the appeal on merits -- Addl. District Judge decided the application without deciding the appeal -- Impugned order set aside.

(Para 12-14)

Code of Civil Procedure, 1908 (V of 1908), Section 96, Order 42 Rule 5 -- First Appeal – Stay application – Non-decisioning upon – Warrant of possession by Executing Court -- Executing Court directed to suspend the order of issuance of warrant of possession and postpone it for another fifteen days – Ld. Appellate Court directed to decide the stay applications on the date already fixed, or any other date convenient to the Court but not beyond fifteen days thereafter.

(Para 10)

Court Fees Act, 1870 (7 of 1870), Section 7 -- Ad-valorem court fee -- Suit for declaration qua the suit property to be coparcenary property of Joint Hindu Family of the parties and also challenged to the transfer deed -- Relief of permanent injunction also sought – Transfer deed was not executed by the petitioners/ plaintiffs and possession was not sought -- No ad valorem Court fee, is required to be filed.

(Para 2, 12, 13)

Code of Civil Procedure, 1908 (V of 1908), Order 41 Rule 27 -- Additional evidence in appeal -- First Appellate Court dismissed the application on the ground that these documents were already in the knowledge of the petitioner and therefore, the same cannot be permitted to be led in evidence -- Documents are relevant and crucial to the decision of the case -- Rules or procedures are handmaids of justice -- Even if the documents were in the knowledge of the petitioner, the same could be allowed, subject to payment of some cost in order to advance the cause of justice -- Revision petition allowed, impugned order set aside.

(Para 1-10)

Court Fees Act, 1870 (7 of 1870), Section 7(i) – Advalorem court fee -- Suit for damages of specific amount – Court fee is payable according to the amount claimed.

(Para 12)

Hindu Marriage Act, 1955 (25 of 1955), Section 13(1)(ia) -- Code of Civil Procedure, 1908 (V of 1908), Section 25 -- Transfer of divorce petition – Jharkhand to Bihar – Petitioner employed at Bengaluru -- Stated that it would be difficult for her to defend the subject-case at Ranchi, Jharkhand as she has no family support either at Bengaluru or at Ranchi -- It is specifically submitted that most of the time, she is working from Katihar, where her parental home is situated -- It would be expedient for the ends of justice to transfer the subject-case as asked for by the petitioner -- Transfer Petition allowed.

(Para 3-7)

Specific Relief Act, 1963 (47 of 1963), Section 22 – Interpretation of Section 22 of Specific Relief Act, 1963 --  Suit for specific relief – Alternative relief -- It enshrines the over-riding effect of this section over the provisions of the Code of Civil Procedure, 1908 – It enabled any person suing for specific performance of a contract to also seek additional relief of possession, partition and any other relief to which he may be entitled to including refund of earnest money or deposit, paid or made by him – Such alternative relief does not in any way adversely impact the primary relief i.e. specific performance of the agreement to sell -- Alternative relief is granted by the Court only in a case where the Court does not find it appropriate to grant the primary relief -- However, the alternative relief does not substitute the primary relief -- Language of Section 22 brings forth the clear intention of the legislature to enable the plaintiff to seek additional as well as alternative relief in the same suit.

(Para 15)

Code of Civil Procedure, 1908 (V of 1908), Section 100 – Punjab Courts Act, 1918 (6 of 1918), Section 41 -- Regular Second appeal – Substantial question of law -- Concurrent findings rendered by the Courts below -- High Court without undertaking any exercise, by a cryptic order allowed the appeal holding that there is no need for framing substantial question of law in view of Section 41 of the Punjab Courts Act, 1918 -- By merely giving a reason that the allegations made in the pleadings are bald and the evidence adduced is not sufficient, the appeal was allowed – It can be stated that there is no need for framing substantial question of law, the issues will have to be considered in their right perspective, including the legal contentions -- Until and unless the findings of facts were found to be perverse, the High Court cannot set aside the same and, that too, without giving adequate reasoning.

(Para 7, 8)

A. Punjab Courts Act, 1918 (6 of 1918), Section 41 – Code of Civil Procedure, 1908 (V of 1908), Section 100 – Regular Second Appeal – Interference in finding on facts – Sub-clause No.(c) of Section 41 (1) of the Punjab Courts Act, 1918, enables the High Court for the States of Punjab, Haryana and Union Territory, Chandigarh, to reappreciate the evidence, if the decision is suffering from substantial error or defect resulting in defect in the decision of the case -- Consequently, it is permissible for the Court while deciding second appeal to re-appreciate the evidence if the decisions of the Courts suffer from perversity --  However, it is not permissible to interfere if two views are possible -- Interference in the second appeal has to be restricted to rare and exceptional cases where the court finds that the findings of fact stand vitiated by erroneous approach based on miss application of evidence or reliance on inadmissible evidence.

(Para 14, 15)

B. Indian Evidence Act, 1872 (1 of 1872), Section 45, 73 – Agreement to sell – Handwriting expert -- It is well settled that invariably the Handwriting and Finger Print Expert gives a favourable opinion to the person who has engaged him – U/s 73 of the Indian Evidence Act, 1872, the Presiding Judge is not debarred from carefully comparing the signatures and finger prints on various documents -- Adverse inference could not be drawn against the defendants for failure to examine Handwriting and Fingerprint Expert.

(Para 27(17))

C. Indian Evidence Act, 1872 (1 of 1872), Section 32, 33 – Code of Criminal Procedure, 1973 (2 of 1974), Section 313 -- Statement u/s 313 Cr.P.C was neither relevant nor admissible in evidence as the plaintiff failed to fulfill the requirements of Section 32 and 33 of the Indian Evidence Act, 1872.

(Para 27(18))

D. Agreement to sell -- Examination of the regular scribe was important.

(Para 27(21))

A. Code of Civil Procedure, 1908 (V of 1908), Section 96 – First Appeal -- First Appellate Court is a court of fact and law both.

(Para 8)

B. Code of Civil Procedure, 1908 (V of 1908), Section 96, Order 41 Rule 23A -- First Appeal – Remand of case -- Enabling power to remand the case back to the lower court is required to be exercised in rate and exceptional cases -- Before passing the order of remand back to the lower court in a civil case, the First Appellate Court is required to fulfill twin conditions, namely, the judgment passed by the trial court is set aside and the re-trial of the case is considered necessary -- Unless these two mandatory conditions are fulfilled, it is not appropriate for the appellate court to remand the case back to the trial court.

(Para 8)

A. Code of Civil Procedure, 1908 (V of 1908), Order 15 Rule 5 – Non-payment of due rent -- Defence struck off -- Obligation upon the lessee to make payment of the entire amount admitted by him to be due together with interest on the first date of hearing, failing which the court has the power to strike off the defence of the defendant -- An obligation is cast upon him to pay throughout the continuation of the suit such monthly amount which is due within a week from the date of its accrual, failing which the Court has got the power to strike off the defence.

(Para 7)

B. Code of Civil Procedure, 1908 (V of 1908), Order 15 Rule 5 – Non-payment of due rent -- Defence struck off -- Petitioner/ defendant has failed to deposit the monthly rent due, during pendency of the suit, the learned Trial Court is perfectly justified in striking off the defence of the petitioner/defendant – Revision petition dismissed.

(Para 7,  8)

Code of Civil Procedure, 1908 (V of 1908), Section 9 – Limitation Act, 1963 (36 of 1963), Section 27 -- Suit/ Plea by plaintiff for adverse possession – Maintainability of -- High Court allowed the second appeal only on the ground that a plea of the adverse possession cannot be taken by the plaintiff -- Review application also dismissed – Settled law is that a plaintiff can seek declaration of title by adverse possession -- Judgment and order of the High Court in RSA and Review Application set aside – Appeals allowed.

(Para 4-6)

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, (54 of 2002), Section 13, 17, 34 -- Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11, Order 39 Rule 1 & 2 -- SARFAESI  proceedings – Rejection of plaint – Jurisdiction of civil court -- Temporary injunction -- An injunction can be granted only after applying three well known tests:- i. Prima facie case; ii. Balance of convenience in favour of the plaintiffs; and iii. Irreparable loss and injury, which the party is likely to suffer -- Without applying these three tests, the Courts are not expected to grant injunction, particularly against financial creditors, who are already facing lot of difficulties in recovery of the defaulted amount -- Plaint rejected while relegating the plaintiffs to the remedy u/s 17 of the 2002 Act before Debt Recovery Tribunal.

(Para 13)

Hindu Marriage Act, 1955 (25 of 1955), Section 13, 13-B -- Code of Civil Procedure, 1908 (V of 1908), Section 25 – Constitution of India, Article 142 -- Divorce – Transfer petition -- Settlement arrived between parties – Pending cases quashed -- Joint Application filed by the parties under Article 142 of the Constitution -- Terms of the settlement are lawful and there is no legal impediment in accepting the same -- Consequently, invoking jurisdiction under Article 142 of the Constitution of India, the marriage between the parties dissolved by a decree of divorce by mutual consent -- Transfer Petition disposed of.

(Para 8-16)

Negotiable Instruments Act, 1881 (26 of 1881), Section 4 -- Pronote – Attesting witness not examined – Recovery suit decreed by Trial court -- One of the marginal witnesses died, whereas the second was won over by the appellant -- In order to prove the pronote and the receipt, the plaintiff himself has stepped into the witness box and examined the Scribe who has proved the entry of the pronote in his note book which is also signed by the appellant -- Moreover, while filing the written statement, the defendant admits that he was called in the Tehsil Complex and on request of the plaintiff, he appended his signatures on certain documents -- No ground is made out to interfere with the concurrent findings of facts arrived at by both the Courts below, consequently, appeal dismissed.

(Para 2, 7, 8)

Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11, Section 149 -- Rejection of plaint – Late deposit of court fee -- Plaintiff furnished/ filed the Court-fee, as asserted/ alleged by the defendant in his application to be deficit -- Even trial Court had the occasion to pass any order for making the alleged deficiency good and to grant him the time for doing so – Application for rejection of plaint dismissed – Revision not maintainable.

(Para 2-7)

Code of Civil Procedure, 1908 (V of 1908), Order 14 Rule 5 -- Suit for specific performance and possession – Agreement alleged to be forged and fabricated document -- Issue “Whether the agreement to sell dated 14.02.2014 and its endorsement dated 18.02.2014 are forged and fabricated and result of fraud? OPD”, onus to prove was on the defendants – To prove her case, the petitioner moved an application for permission to inspect the file and Handwriting and Fingerprints Expert be allowed to take photographs of the signatures and thumb impressions -- Ld. ACJ rejected the application – Held, this would amount to rejecting the petitioner to prove his case – Impugned order set aside, application allowed.

(Para 3-6)

East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13 -- Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17 – Eviction petition -- Amendment of written statement -- Written statement filed on May 2021 -- When the matter was fixed for rebuttal evidence, on 23.10.2023 the application was filed for amendment of the written statement -- Only ground for amendment is that there was no denial to the averments made in para No.4(e), (f) and (g) and infact there was no reply to the said paras – Held, amendment now sought at a belated stage cannot be permitted to fill lacuna -- Petition dismissed.

(Para 5, 6)

Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17, Order 2 Rule 2 -- Amendment of suit – Bar of Order 2 Rule 2 CPC -- No merit in the contention that the amendment application was rightly rejected by applying the bar contained under Order 2 Rule 2 of the Code, which cannot be applied to an amendment which is sought on an existing Suit -- Amendment sought before commencement of the trial, the Court is required to be liberal in its approach – Ld. Trial Court directed to take on record the amended plaint for further proceedings.

(Para 14-17)

A. Code of Civil Procedure, 1908 (V of 1908), Order 26 Rule 9 – Appointment of Local Commissioner – Evidence -- Petitioner/ plaintiff has to stand on his own legs by adducing cogent, independent and reliable evidence and he could not invoke the provisions of Order 26 Rule 9 CPC to ask the Court concerned to collect, garner or generate evidence for him.

(Para 10)

B. Code of Civil Procedure, 1908 (V of 1908), Order 26 Rule 9 – Appointment of Local Commissioner – Evidence -- Plea of the petitioner/ plaintiff  is that he is the owner of the suit property but the same is in illegal possession of the respondents who are having no right, title or interest in the said property -- Possession of the site in dispute is a matter to be decided by the Court on the basis of oral and documentary evidence to be adduced by the parties -- The exercise cannot be relegated to the Court Commissioner to find out as to who is in possession and who has encroached the property in question and to what extent.

(Para 11-13)

A. Code of Civil Procedure, 1908 (V of 1908), Section 100 – Punjab Courts Act, 1918 (6 of 1918), Section 41 – Regular Second Appeal – Substantial question of law -- In the States of Punjab and Haryana, it is the provisions of the Punjab Courts Act, 1918 would be applicable and, therefore, Section 100 CPC would not hold the field -- There would be no requirement of framing substantial questions of law in second appeal.

(Para 15)

B. Hindu Succession Act, 1956 (30 of 1956), Section 6, 8 – Ancestral property – Once the property had been acquired by way of succession, it would lose its ancestral character.

(Para 16)

A. Possession of property -- For possession of property, a person is not required to stay in such property for 24x7 -- A person residing at one place, but having right to own and possess the property at another place, is not only in deemed or constructive possession but in actual possession of such property -- For absence of a person for a long time, he cannot be deprived from his property by treating him to be dispossessed from his property owned and possessed by him.

(Para 10)

B. Specific Relief Act, 1963 (47 of 1963), Section 34 – Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 – Bar of Section 34 of SRA – Rejection of plaint -- Suit claiming plaintiffs as owners in possession of the suit property -- Suit filed by the respondents-plaintiffs is not a suit merely for declaration, but consequential relief, as considered necessary and fit, including suit for permanent prohibitory injunction and damages, has also been sought --  Therefore, it is wrong to allege that it is a suit for mere declaration without consequential relief – Such issue is to be decided at the time of conclusion of trial -- Provisions of proviso to Section 34 of the Act are not attracted -- Plaint is not liable to be rejected under Order 7 Rule 11 (d) CPC.

(Para 11-14)

A. Code of Civil Procedure, 1908 (V of 1908), Order 16 Rule 14, 21, Order 18 Rule 13A – Indian Evidence Act, 1872 (1 of 1872), Section 120, 137, 138, 139, 154, 155 – Parties to suit – Witnesses -- Function performed by either a witness or a party to a suit when in the witness box is the same -- Examination in chief, cross-examination and re-examination are all facets of a trial which can be availed by a party or the adversary, for both the party to a suit as a witness and also for other witnesses called by the party -- Held, there is no difference between a party to a suit as a witness and a witness simpliciter.

(Para 13-16, 32)

B. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 14(4), Order 8 Rule 1-A(4)(a), Order 13 Rule 1(3) – Withholding of documents -- Production of documents for both a party to the suit and a witness as the case may be, at the stage of cross-examination, is permissible within law.

(Para 17-32)

C. Code of Civil Procedure, 1908 (V of 1908), Order 6 -- Arguments without pleadings -- It is settled law that what is not pleaded cannot be argued, as for the purposes of adjudication, it is necessary for the other party to know the contours of the case it is required to meet -- It is equally well settled that the requirement of having to plead a particular argument does not include exhaustively doing so.

(Para 28)

Code of Civil Procedure, 1908 (V of 1908), Order 12 Rule 2 – Admission and denial -- Order 12 of CPC deals with admission and denial -- As per Rule 2 of Order 12 of CPC, either party may call upon the other party to admit any document and in case of refusal or neglect to admit, the costs of proving any such document shall be paid by the party so neglecting or refusing, whatever the result of the suit may be.

(Para 7)

Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17 – Amendment of plaint/ cause of action -- Plaintiff, by way of amendment, wants to replace the heading of the plaint to: suit for declaration, mandatory & permanent injunction and possession by way of specific performance of the contract -- Plaintiff/ petitioner wants to substitute new cause of action with the previous one – Entire nature of the suit would change including cause of action if amendment is allowed as the plaintiff/ petitioner wants to substitute the suit with a new suit – Trial Court has rightly dismissed the application for amendment -- No reason to interfere – Revision dismissed.

(Para 14-16)

Specific Relief Act, 1963 (47 of 1963), Section 16, 28 -- Decree of specific performance – Extension of time – Rescinding of agreement -- Court can grant extension of time after passing decree for specific performance of agreement and the Trial Court has its power and jurisdiction to deal with such matters till the decree is fully satisfied -- Petitioner did not give notice to the judgment-debtor to receive the balance sale consideration -- He did not move any application for permission to deposit the balance sale consideration -- Petitioner failed to pay the balance sale consideration despite getting so many adjournments -- Although order of rescinding the contract for sale of immovable property, the specific performance of which has been decreed, is a harsh order but decree-holder intentionally failed to pay the balance amount of consideration – Held, the learned Court below is justified to rescind the agreement – Order upheld.

(Para 12, 13)

Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11, Order 6 Rule 17 – Rejection of plaint – Amendment of plaint – Ad-valorem court fee – From the plaint, it could not be made out as to whether the petitioner is in actual physical possession of the suit property -- It is not clear as to whether the petitioner is in possession of the suit property or as to if he has also sought relief of possession of the said property – Revision dismissed as withdrawn with liberty to the petitioner to file an application seeking amendment of the plaint with regard to relief regarding the suit property -- Trial Court should decide afresh the question of Court fees on the basis of the amended pleadings in the plaint.

(Para 4-7)

Code of Civil Procedure, 1908 (V of 1908), Order 8 Rule 1 -- Written statement not filed – Defence struck off -- Since written statement is a basic document to substantiate the cause of a particular litigating party, petitioner deserves to be permitted to file written statement and reply to stay application for which, of course she can be burdened with costs -- Impugned order set aside -- Trial court directed to grant one effective opportunity subject to payment of costs of Rs.5000/-.

(Para 5)

Code of Civil Procedure, 1908 (V of 1908), Order 8 Rule 1 -- Written statement not filed – Defence struck off -- It is always convenient for the Court to decide the controversy before it, after acknowledging the stand of both the sides -- By granting permission to file written statement, there is no wastage of time because proceeding in suit is still at the stage of service of notice upon defendant No.2 – One more effective opportunity granted to the petitioner/ defendant No.1 for filing his written statement and reply to the stay application.

(Para 10)

A. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 – Rejection of plaint -- Only the averments made in the plaint are to be considered -- Defence taken by the other party in the written statement or otherwise would be wholly irrelevant at this stage -- There cannot be any dissection or segregation of the language of various paragraphs in the plaint.

(Para 9)

B. Court Fees Act, 1870 (7 of 1870), Section 7 – Ad-valorem court fee -- Petitioners were not executants of the sale deeds and power of attorney in question -- Petitioners have sought declaration to the effect that they are joint owners and in joint possession of the suit property, which was ancestral in the hands of their father qua them -- Petitioners have also sought decree for permanent injunction to restrain the respondents from creating charge over the suit property and further restraining them from interfering in the peaceful possession of petitioners over the suit property -- Reading of plaint, nowhere suggests that the petitioners being ousted from the suit property are claiming its possession/ joint possession -- Petitioners cannot be asked to affix advolrem Court fee.

(Para 10-13)

Motor Vehicles Act, 1988 (59 of 1988), Section 166 – Claim petition under MV Act -- Written statement -- Defence struck off -- Non-filing of written statement despite availing several opportunities -- Everyone has right of hearing and, thus, no one should be condemned unheard -- Since written statement is a basic document to substantiate the cause of a particular litigating party, petitioners should be permitted to file written statement -- Impugned order set aside, learned Tribunal would grant only one effective opportunity to petitioners to file written statement and the said opportunity would only be available to petitioners, subject to deposit of costs of Rs.5000/-.

(Para 1, 5)

Code of Civil Procedure, 1908 (V of 1908), Order 16 Rule 1, 1-A -- List of witnesses not provided within 15 days -- Procedural law is meant for advancement of justice and not to subvert the same -- Courts should give preference to the cause of substantive justice over the procedural technicalities -- Provision of Order 16 Rule 1 CPC cannot be said to be mandatory but only directory -- Liberty given to the petitioner to summon two official witnesses with assistance of the Court and on their appearance they should be examined by the learned trial Court without any delay with opportunity to the other party to cross-examine them.

(Para 6)

Code of Civil Procedure, 1908 (V of 1908), Order 8 Rule 1 – Delay in written statement – Defence struck off -- Provisions contained in Order VIII Rule 1 CPC though ought to be adhered to but learned Court below could have still permitted petitioner to file written statement subject to certain penalty as a deterrent -- Court should not be too harsh to disallow filing of written statement -- Petitioners/defendants No.2 & 3 granted one last opportunity to file reply/ written statement subject to payment of costs of Rs.25,000/- to be paid to the plaintiff/ respondent.

(Para 12)

A. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 – Rejection of plaint -- In order to reject a plaint for the suit by invoking provisions of Order 7 Rule 11 CPC, the Court needs to be guided only by the averments in the plaint and not by the defence taken by the defendants.

(Para 11)

B. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 – Suit for permanent injunction and recovery – Cause of action – Necessary party -- Rejection of plaint -- Transactions were directly made by respondent No.1/ plaintiff with a sole proprietorship firm through its proprietor respondent No.3 who is father of the petitioners – Petitioners received and acknowledged the goods under the invoices issued by respondent No.1 and petitioners made part payment of the due amount from time to time -- No contract between petitioners and respondent No.1 and undertaking with regard to payment of disputed amount -- Petitioners are neither necessary nor proper party for the purpose of proper adjudication of the suit -- No cause of action to file the suit by respondent No.1 against the petitioners -- Application under Order 7 Rule 11 CPC to reject the plaint against them allowed.

(Para 2, 11-13)

Code of Civil Procedure, 1908 (V of 1908), Order 41 Rule 27, Section 151 -- Additional evidence -- Original sale deeds were handed over to the counsel who failed to produce and prove the same whereas photostat copies of sale deeds were produced -- Said evidence is necessary for doing complete justice to the parties – Trial Court allowed the application -- No infirmity in the order passed by the court below, revision petition dismissed.

(Para 9)

Code of Civil Procedure, 1908 (V of 1908), Order 39 Rule 1 & 2, Section 151 – Temporary injunction – Appointment of Receiver -- Part of the suit property is owned by Shamlat, which vests in Gram Panchayat and Gram Panchayat has handed over the management of the Dera to the plaintiffs -- Nothing to show that the Dera is not being managed properly -- A Receiver cannot be appointed to deprive a party of a de facto possession -- Appointment of Receiver is considered to be very harsh remedy and such jurisdiction should be exercised only in extreme case with utmost care and caution -- Order of appointment of Receiver set aside -- Defendants restrained from interfering in the management of Dera/suit property except in due course of law.

(Para 19-21)