Search By Topic: Civil Procedural Law

107. (P&H HC) 30-01-2024

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))

135. (P&H HC) 14-11-2023

A. Code of Civil Procedure, 1908 (V of 1908), Order 9 Rule 13 – Ex-parte proceedings – Summoning of defendants -- Notices issued received back with the report of incorrect addresses and the appellant-plaintiff was directed to furnish correct addresses -- Fresh addresses of respondents No.1 and 2/defendants No.5 and 6 were never furnished -- Finally, they were proceeded against ex-parte, while relying upon notice issued through publication in the News Paper, without making any effort to serve them through ordinary process and other means and that too without the fresh and correct addresses – Ex-parte judgment and decree set aside, matter back to the Trial Court for its fresh adjudication.

(Para 9)

B. Code of Civil Procedure, 1908 (V of 1908), Section 96, Order 9 Rule 13 – Ex-parte decree – Remedy -- Remedies under Order 9 Rule 13 CPC of filing an application for setting aside an ex-parte decree as well as an appeal under Section 96(2) of CPC can be availed consecutively.

(Para 10)

C. Code of Civil Procedure, 1908 (V of 1908), Order 9 Rule 13, Section 96 – Ex-parte decree – Setting aside of -- Appeal – Scope of -- An application filed under Order 9 Rule 13 CPC, the Court can only look into the matter as regards the validity of service upon the party who was proceeded against ex-parte, whereas in an appeal filed under Section 96(2) of CPC, the Appellate Court can even go into the merits of the ex-parte judgment and decree besides looking the aspect of service.

(Para 10)