Electricity Act, 2003 (36 of 2003), Section 135, 136, 137, 138, 139, 140, 150, 153 -- Theft of electricity – Civil Liability – Jurisdiction of Special Court -- Special Court constituted u/s 153 of the Act do not have jurisdiction to entertain, try and decide civil liability in absence of pendency of trial of offence referred to in Sections 135 to 140 and Section 150 of the Act.

(Para 7-9)

Specific Relief Act, 1963 (47 of 1963), Section 34 – Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 3, 10, Section 96 -- Suit for declaration that plaintiff is owner in possession -- Plaintiff while filing the suit did not implead the registered owners of the property as party defendants -- On an application by registered owner, Appellate Court ordered remanding the case back to the trial Court – Held, it would not be appropriate to decide such suit without giving opportunity to the registered owners to contest the same -- No ground to interfere.

(Para 5, 6)

Code of Civil Procedure, 1908 (V of 1908), Order 8 Rule 10 -- Non-filing of written statement -- Defence struck off – Held, it is always good for the Court to find out solution by deciding the controversy after inviting response from all the concerned parties -- Court cannot function on the principle of technicalities or in a specified mechanised manner -- Therefore, it would always be fair to impart justice after giving reasonable opportunity to all the parties to plead their stand in writing in the shape of plaint, written statement and replication -- Impugned order set aside to the extent of striking off the defense -- One more effective opportunity granted for filing written statement and then to re-frame the issues afresh, if so required, subject to cost of Rs.10,000/-.

(Para 6, 7)

Code of Civil Procedure, 1908 (V of 1908), Order 39 Rule 1 & 2 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 133 -- Temporary injunction to restrain nuisance -- Passage was left by the respondent/ plaintiff for his ingress and egress of his house -- No material adduced on record by the petitioners/ defendants suggestive of the fact that passage was constructed and thereafter maintained by the Nagar Panchayat -- Defendants had filed complaint u/s 133 Cr. P.C against plaintiff,  but same was dismissed -- Now dirty and filthy water coming from the house of defendants flows towards the house of the plaintiff – For ad-interim stay three important factors required to take into consideration i.e. prima facie case, balance of convenience and irreparable loss and they all must co-exist in favour of the party seeking restraint order -- All the afore factors co-exist in favour of the plaintiff – Interim injunction granted by Lower Courts, upheld.

(Para 6-8)

Hindu Succession Act, 1956 (30 of 1956), Section 8 -- Indian Succession Act, 1925 (39 of 1925), Section 372 – Retiral benefits of deceased employee – Legal heirs -- Succession certificate -- Deceased nowhere mentioned in his entire service record of the petitioner being his wife – Retiral benefits can be settled only after a competent Civil Court gives a declaration -- Procedure for obtaining succession certificate in this regard has been laid down under the Indian Succession Act, 1925 as well as Hindu Succession Act, 1956 -- Petitioner would have to get the said competent declaration from the competent court.

(Para 4, 6)

Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 -- Rejection of plaint -- Appropriate prayer – Ground of – Whether an appropriate prayer should have sought, is a matter to be decided in the suit and not an issue to be considered while deciding the application under Order VII Rule 11 of CPC.

(Para 4, 5)

A. Code of Civil Procedure, 1908 (V of 1908), Section 100 – Indian Evidence Act, 1872 (1 of 1872), Section 45 -- Specific performance of contract -- Regular Second appeal – Handwriting expert – Witness of scribe and marginal witness -- Report of the handwriting and finger print expert is an opinion which is not binding on the court -- Handwriting and finger print expert was engaged by the defendants -- Direct evidence namely the statement of the marginal witness as well as scribe proved the execution of the agreement to sell – In such circumstances, conclusion of the courts below while disbelieving the opinion does not require interference.

(Para 6)

B. Code of Civil Procedure, 1908 (V of 1908), Section 100 – Indian Evidence Act, 1872 (1 of 1872), Section 59, 60, 91 -- Regular Second appeal – Specific performance of contract -- Proof of payment of earnest money – Written agreement – Witness -- As regards the argument that there is a difference in the statement of the plaintiff and the scribe with regard to the payment of the amount, it may be noted that with the passage of time, the memory of a human is bound to get blurred -- There is a written contract between the parties acknowledging receipt of Rs.2,40,000/- -- Such written contract in the absence of any other evidence is required to be accepted -- Moreover, on appreciation of evidence, both the courts have already returned a finding of fact – Appeal dismissed.

(Para 6-8)

A. Code of Civil Procedure, 1908 (V of 1908), Order 41 Rule 22, Section 96, 100 -- Cross objection -- Cross objections, unlike a regular appeal, are filed within an already existing appeal -- Cross objections have all the trappings of a regular appeal, and therefore, must be considered in full by the court adjudicating upon the same -- Such an obligation was not discharged while passing the judgment in appeal -- Matter is fit for remand to the High Court for fresh adjudication on the grounds raised in the cross objections during appeal.

(Para 17, 20-22)

B. Code of Civil Procedure, 1908 (V of 1908), Order 41 Rule 22, Section 96, 100 -- Cross objection -- Decree given by the court of first instance, is partly in favour of the respondent, but is also partly against the respondent, two remedies within Order 41 Rule 22 remain with the respondent, which are (i) To file their cross objections and, (ii) To support the decree in whole -- A third remedy in law also exists, which is the right to file a cross appeal.

(Para 14)

C. Code of Civil Procedure, 1908 (V of 1908), Order 41 Rule 22, Section 96 -- Cross objection --  Where the opposing party files a first appeal against part or whole of the original decree, and the respondent in the said first appeal, due to part or whole of the decree being in their favour, abstains from filing an appeal at the first instance, in such cases, to ensure that the respondent is also given a fair chance to be heard, he is given the right to file his cross objections within the appeal already so instituted by the other party, against not only the contentions raised by the other party, but also against part or whole of the decree passed by the court of first instance.

(Para 15)

D. Code of Civil Procedure, 1908 (V of 1908), Order 41 Rule 22, Section 96 -- Cross objection -- Where the other party in the first instance has preferred an appeal, apart from the remedy of cross objections, the respondent can also file a cross appeal within the limitation period so prescribed, which in essence is a separate appeal in itself, challenging part or whole of the original decree, independent of the appeal filed by the other party -- The respondent also has the right to fully support the original decree passed by the lower court in full.

(Para 16)

A. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 – Rejection of plaint -- It is trite that while deciding an application under Order VII Rule 11 CPC only the averments of the plaint are to be seen.

(Para 5)

B. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 – Suit for permanent injunction -- Rejection of plaint -- Argument of defendant that the defendant are in possession and not the plaintiff, cannot be gone into at this stage since there is a categoric averment in the plaint that the plaintiff are in possession of the suit property.

(Para 5)

C. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 – Rejection of plaint – Alternate remedy – An alternate equally efficacious remedy is available to the plaintiff cannot be gone into at the stage of deciding the application under Order VII Rule 11 CPC and would be a matter of evidence.

(Para 5)

D. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 – Rejection of plaint – Unregistered agreement -- Reliance on an unregistered agreement to sell in the suit cannot be a ground for rejection of the plaint under Order VII Rule 11 CPC.

(Para 5)

A. Code of Civil Procedure, 1908 (V of 1908), Order 47 Rule 9 -- Second review of judgment – Second review is impermissible in law.

(Para 6)

B. Code of Civil Procedure, 1908 (V of 1908), Order 47 Rule 1 Explanation – Overrule of judgment by subsequent judgment – Re-opening of overruled judgment – Permissibility of – Contention that if a judgment is overruled by a subsequent judgment, then the overruled judgment will have to be reopened and on reopening the said judgment will have to be brought in line with the subsequent judgment which had overruled it – Held, this is not permissible in law for two reasons: firstly, there has to be finality in litigation and that is in the interest of State. Secondly, a person cannot be vexed twice. This is epitomized by the following maxims:

(i) Nemo debet bis vexari pro una et eadem causa (No man should be vexed twice for the same cause);

(ii) Interest reipublicae ut sit finis litium (It is in the interest of the State that there should be an end to a litigation); and

(iii) Res judicata pro veritate occipitur (A judicial decision must be accepted as correct).

These maxims would indicate that there must be an end to litigation otherwise the rights of persons would be in an endless confusion and fluid and justice would suffer -- Explanation to Order XLVII Rule 1 which is a wholesome provision has been inserted to the Code of Civil Procedure -- It states that once there is a subsequent judgment overruling an earlier judgment on a point of law, the earlier judgment cannot be reopened or reviewed on the basis of a subsequent judgment.

(Para 6-8)

A. Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 10, Section 151 -- Impleadment as party/ plaintiff – Separate orders -- Maintainability of common petition – 19/ Nineteen separate applications dismissed for impleadment of parties under Order 1 Rule 10 CPC by a common order -- Though their applications were decided by a common order, the petitioners cannot maintain a single petition to assail such order.

(Para 14)

B. Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 10 – Representative suit – Impleadment as party/ plaintiff – Petitioners had filed applications for their impleadment as plaintiffs -- Due diligence not pleaded -- Suit has been filed in representative capacity by plaintiffs -- Decree in the suit will be binding on all persons on whose behalf or for whose benefit the suit is instituted -- Suit having been filed in the representative capacity, a decree passed therein will be for the benefit of the petitioners also – Impleadment as plaintiffs not warranted.

(Para 6, 7)

Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17 – Adverse possession plea by way of amendment -- Civil Suit for possession was instituted in the year 2014 – Defendants/ petitioner had taken a specific stand in the written statement of their being owners in possession of the suit land on the basis of an oral sale -- Parties have already led evidence -- Application seeking amendment of the written statement at the stage of arguments, dismissed.

(Para 4, 5)

A. Transfer of Property Act, 1882 (4 of 1882), Section 53A, 54 -- Code of Civil Procedure. 1908 (V of 1908), Section 2(12), Order 20 Rule 12 -- Eviction – Mesne profit – Agreement to sell -- Possessory rights -- Legally agreement to sell may not be regarded as a transaction of sale or a document transferring the proprietary rights in an immovable property -- Agreement to sell and the memo of possession as well as the receipt of payment of sale consideration in favour of plaintiff-respondent is de-facto having possessory rights over the suit property in part performance of the agreement to sell not liable to be disturbed by the transferer, i.e., the defendant-appellant – Entry of the defendant-appellant over part of the suit property subsequently is simply as a licencee of the plaintiff-respondent, he does not continue to occupy it in capacity of the owner cannot be disturbed or disputed by the transferer -- Plaintiff-respondent has rightly been held to be entitled for a decree of eviction with mesne profits.

(Para 9-17)

B. Transfer of Property Act, 1882 (4 of 1882), Section 54 -- Transfer of ownership based upon Power of attorney and Will:

-- Non-execution of any document by the general power of attorney holder consequent to it renders the said general power of attorney useless.

-- Will, if any, comes into effect only after the death of the executant and not before it -- Said stage has not arrived in the case and, therefore, even the Will in no way confers any right.

In connection with the general power of attorney and the Will so executed, the practice, if any, prevalent in any State or the High Court recognizing these documents to be documents of title or documents conferring right in any immovable property is in violation of the statutory law. Any such practice or tradition prevalent would not override the specific provisions of law which require execution of a document of title or transfer and its registration so as to confer right and title in an immovable property of over Rs.100/- in value.

(Para 12-14)

A. Evidence law – Sale deed – Proof of -- It is trite that a registered sale deed is not a public document but a private document and production of the sale deed does not dispense with need for proof of execution of the document.

(Para 8)

B. Code of Civil Procedure, 1908 (V of 1908), Order 41 Rule 27 – Additional evidence – Application is totally bereft of any reason or even a whisper as to why the evidence now sought to be produced could not be led earlier -- First Appellate Court, treating the sale deeds as if they were per se admissible in evidence, has allowed the additional evidence which cannot be permitted in law -- A sale deed would have to be proved in accordance with the provisions of law -- Since the discretion exercised is not in accordance with law, revision petition allowed and the impugned order set aside.

(Para 8, 9)

A. Motor Vehicles Act, 1988 (59 of 1988), Section 166 -- Compensation in motor vehicle accident case – Third party insurance -- Once the Insurance Company has deducted premium for third party, it cannot escape its liability -- Insurance Company is liable to pay the compensation to the claimants.

(Para 16)

B. Motor Vehicles Act, 1988 (59 of 1988), Section 166, 168 – Code of Civil Procedure, 1908 (V of 1908), Order 41 Rule 33 -- Compensation in motor vehicle accident case -- Non-filing of appeal -- Section 168 of the Act casts a statutory obligation on the Tribunal as well as this Appellate Court to award a compensation which is just and reasonable – High Court, therefore, must pass an appropriate order to deliver complete justice by awarding just and reasonable compensation while exercising powers under Order XLI Rule 33, in performance of its statutory duty imposed by Section 168 of the Act -- Appeal is an extension of the proceedings before the Tribunal – High Court exercised its power and discretion under Order XLI Rule 33 of the CPC read with Section 168 of the MV Act and moulded the relief which ought to have been granted by the learned Tribunal.

(Para 18-26)

Specific Relief Act, 1963 (47 of 1963), Section 38 – Suit for permanent injunction – Possession of suit property – Burden of proof -- In a suit filed u/s 38 of the Specific Relief Act, 1963, permanent injunction can be granted only to a person who is in actual possession of the suit property -- Burden of proof lies upon the plaintiff to prove that he was in actual and physical possession of the suit property on the date of suit -- Possession of the plaintiff cannot be based upon inferences drawn from circumstances -- Plaintiff has to prove actual possession for grant of permanent injunction.

(Para 7)

Code of Civil Procedure, 1908 (V of 1908), Order 33 Rule 2, Order 44 Rule 1 – Indigent person -- Petitioner was required to file an application supported by the affidavit to indicate as to what properties are owned by the petitioner, and the annual income of the petitioner from such properties, however, no such affidavit was filed -- As per report of the Naib Tehsildar, petitioner owns 13Kanals 14 Marlas of land -- Petitioner as DW1 has himself admitted that he has repaid the loan of Rs.1.86 lacs to the plaintiff -- From these facts, it is clear that petitioner has some resources -- Petitioner cannot be said to be an indigent person.

(Para 8)

Code of Civil Procedure, 1908 (V of 1908), Section 51 -- Execution of recovery decree -- Inspite of warrant of sale of the attached property having been issued, the Court had directly, written a letter to the Tehsildar concerned, to transfer the ownership of the attached property, in the name of decree holder, for an amount of Rs.60,20,000/- -- Requisite process for participation of the decree holder, in the auction proceedings has not been followed -- Held, the process followed by learned Executing Court is erroneous – Impugned order set aside – Case remanded back to the Executing Court, to proceed further with the execution from the stage of issuance of warrant of sale of attached property.

(Para 5)

A. Code of Civil Procedure, 1908 (V of 1908), Order 13 Rule 3 – De-exhibition of documents -- No objection raised at the time of the exhibiting of the documents – Not having raised the objection regarding the mode of admissibility prior to the endorsement being made by the Court on the document sought to be exhibited, the objection cannot be taken subsequently by moving an application for de-exhibiting of a document.

(Para 6, 7)

B. Code of Civil Procedure, 1908 (V of 1908), Order 13 Rule 1 – Exhibiting of documents -- It is trite that mere exhibition of a document does not dispense with the proof of its execution -- Veracity and genuineness of the document has to be tested at the relevant stage.

(Para 8)

Indian Evidence Act, 1872 (1 of 1872), Section 45 -- DNA test – Suit for declaration that plaintiff is daughter of defendant no.1 – Application by plaintiff for DNA test -- Parties have already led their evidence -- Defendant No.1-petitioner cannot be compelled to adduce evidence in support of the case set up by the plaintiff – Burden lies on the litigating party to prove his or her case by adducing evidence -- A DNA test cannot be ordered so as to lead to a roving enquiry -- Plaintiff-respondent No.1 failed to make out a strong prima facie case for ordering the DNA test alongwith that of the defendant No.1-petitioner -- Revision petition allowed, the impugned order ordering the DNA test set aside and the application for DNA test stands dismissed.

(Para 7)

Code of Civil Procedure, 1908 (V of 1908), Order 21, Section 2(2), 51 – Execution of decree – Summoning of Judgment debtor – Decree holder has been unable to trace out the residential address of Judgment debtor -- Application seeking directions to the bank of respondent/ judgment debtor to produce the KYC and other relevant documents of the respondent/ judgment debtor – Held, process of the Court cannot be utilized for the purposes of gathering information as to the whereabouts or the other information in respect of the respondent/ judgment debtor -- It is the primary obligation of the petitioner/decree holder itself to obtain such information from wherever it is possible.

(Para 3-7)

Code of Civil Procedure, 1908 (V of 1908), Order 21, Section 47 -- Ex-parte judgment – Execution – Objections -- Two case files sought to be summoned to substantiate the plea of impersonation of present petitioner, vis-a-vis execution of the sale deed and also documents qua impersonation, in connivance with RK, who had since been convicted by learned trial Court – Held, it shall be appropriate, if the aforesaid requisite files are summoned, which shall be of assistance to the Executing Court to decide the objections -- Executing Court directed to summon the requisite files for making reference during the time of addressing of the arguments, on the objection petition.

(Para 10-11)

Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17 -- Amendment of plaint -- Suit for Permanent Prohibitory Injunction – Plaintiff before filing of the written statement by the defendant to the suit, filed an application, seeking amendment of the plaint insofar as the Survey number of the land in question is concerned by providing Survey No. 1188/700 instead of Survey No. 1188/701 – Amendment sought by the plaintiff in no way, can said to have been changing the nature of the suit or else introducing a new case or cause of action and the defendant could have been compensated by way of costs by the trial Court in view of the nature of amendment and the stage at which the amendment was sought by the plaintiff -- Amendment of the plaint allowed, subject to payment of cost of Rs. 1500/-.

(Para 8, 9)

A. Consumer Protection Act, 1986 (68 of 1986), Section 12(1)(c) – Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 8 – Representative complaint -- Joint consumer complaint – Need for the application of Order 1 Rule 8 of the Code of Civil Procedure, 1908, which speaks of a plaintiff representing the other public as a whole would be required only in a case involving a complaint under Section 12(1)(c) of the 1986 Act – It does not have any application when similarly placed complainants jointly make a complaint seeking the very same relief -- In such a case, there is no question of Order I Rule 8 CPC being complied with as they do not represent the others, particularly when there is no larger public interest involved -- Such complainants seek reliefs for themselves and nothing beyond.

(Para 17)

B. Consumer Protection Act, 1986 (68 of 1986), Section 2(b)(i) – Consumer -- Definition of ‘complainant’ under Section 2(b)(i) of the 1986 Act, will include multiple consumers.

(Para 19)

A. Code of Civil Procedure, 1908 (V of 1908), Order 8 Rule 6A -- Limitation Act, 1963 (36 of 1963), Section 27 -- Adverse possession – Counter claim for possession -- Adverse possession can be claimed only against true owner -- Plaintiff having taken the plea of adverse possession could not have denied the title of defendants -- Plaintiff having failed to prove issue No.1 (adverse possession) in his favour, was bound to fail in his pursuits to contest the claim put forth by defendants No.1 and 2 by way of counter claim.

(Para 4, 10, 11)

B. Code of Civil Procedure, 1908 (V of 1908), Section 11 -- Limitation Act, 1963 (36 of 1963), Section 27 -- Adverse possession – Res-judicata -- Finding that the plaintiff had failed to prove acquisition of title over the suit land by way of adverse possession will operate as res judicata between the same parties in all other proceedings in which the same issue arises.

(Para 9)

Code of Civil Procedure, 1908 (V of 1908), Order 14 Rule 5 -- Additional issue – Suit for declaration to the effect that plaintiffs/ petitioners are the joint owners to the extent of 1/3rd share – Will propounded by the defendant-respondents in written statement – Held, trial Court erred in not framing an issue qua the Will -- Additional issue regarding execution of valid Will framed with onus to prove on defendant -- Revision allowed.

(Para 8)

Code of Civil Procedure, 1908 (V of 1908), Section 47, Order 21 – Nullity/ Un-executability of decree -- No objections filed from the side of JDs to the effect that decree passed in favour of the DH was a nullity, therefore the same is un-executable – Executing Court by itself without any justifiable reason has jumped to the conclusion that the decree passed in favour of DH is not executable – Held, impugned order is perverse and arbitrary and is set aside -- Execution petition ordered to be restored with a direction to the Executing Court to proceed further in the matter to ensure the execution of the decree in favour of the plaintiff/ DH.

(Para 10-12)

Motor Vehicles Act, 1988 (59 of 1988), Section 166 – Compensation in motor vehicle accident case – Non-service of respondents – Dismissal of claim petition -- Despite multiple attempts, service could not be effected – Learned Tribunal has committed manifest error in law in summarily dismissing the claim petition without recording any finding qua the correctness or otherwise of the precise address mentioned in the memo of parties – Ld. Tribunal could have given another opportunity to petitioner for taking further steps to serve both respondents – Petitioner permitted to take further steps to serve respondents No.1 and 2 including through their learned counsel who is representing them before trial Court, in case arising out of FIR -- Ld Tribunal shall also allow petitioner to serve them dasti apart from Court processes.

(Para 5-8)

Code of Civil Procedure, 1908 (V of 1908), Section 151, Order 6 Rule 17 – Amendment of written statement – Trial commenced – Due diligence -- It is incumbent upon the ld. Trial Court to return a categoric finding that “inspite of due diligence, the party could not have raised the matter before the commencement of trial.” – While allowing amendment, no such finding has been given by the ld. Trial Court – Held, ld. Trial court was in patent error in not complying with the clear mandate of the provision -- Impugned order set aside.

(Para 22-34)

Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 7 – Code of Civil Procedure, 1908 (V of 1908), Section 11 -- Gair Mumkin Gali -- Eviction – Res-judicata -- Dismissal order on the earlier petition carrying therein a cause of action or subject matter or khasra numbers similar to the ones as carried in the extant petition is not sufficient to attract to the extant petition the estopping principle of constructive resjudicata unless also in the earlier motion either the petitioner or his predecessor in interest became impleaded as a party -- One of the respondents, who became impleaded therein was the predecessor in interest, of the present petitioner – Subsequent motion was necessarily barred by the estopping principle of res-judicata.

(Para 4, 5)

Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 – Court-fees Act, 1870 (7 of 1870), Section 7 – Constitution of India, Article 227 -- Advalorem court fee – Rejection of plaint -- No doubt, respondents/ plaintiffs are not the executants of the sale deed under challenge, however, perusal of their Civil Suit clearly shows that they have filed a Civil “Suit for Declaration with consequential relief of Joint Possession” – Respondents are seeking joint possession of suit property -- Trial Court rejected the application – In revision held that Plaintiffs are liable to pay ad valorem Court fee on the suit property and 6 weeks’ time granted to make good the deficiency/deposit requisite Court fee; failing which their Civil Suit will be deemed to be rejected as per provision of Order 7 Rule 11 CPC.

(Para 10-14)

Specific Relief Act, 1963 (47 of 1963), Section 34 – Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11, Section 54 -- Suit for partition – Rejection of plaint -- Consequential relief of possession not claimed – Maintainability of suit -- When the property belongs to one co-sharer, it shall be deemed to be held by that co-sharer on behalf of the other co-sharers – Held, it is not required by the plaintiff-co-sharer to specifically claim possession as well, and thus, the suit shall not be barred under proviso to u/s 34 of the Specific Relief Act, 1963 – Suit cannot be rejected under Order 7 Rule 11 of CPC.

(Para 8)

A. Transfer of Property Act, 1882 (4 of 1882), Section 52 -- Collusive proceedings -- Principle of lis pendens – Finding that Section 52 of the Transfer of Property Act dealing with doctrine of lis pendens is not applicable as proceedings were collusive in nature, upheld.

(Para 11)

B. Indian Succession Act, 1925 (39 of 1925), Section 67, 68, 217 – Probate of Will – Consent of parties – Observation that until and unless the Will is proved, no grant of probate can be made merely by the consent of the parties, upheld.

(Para 12)

Code of Civil Procedure, 1908 (V of 1908), Order 39 Rules 1 and 2 – Temporary injunction -- Photographs to show the possession of the plaintiff-petitioners is wholly misplaced as photographs can never be proof of possession.

(Para 1, 5)

Indian Stamp Act, 1899 (2 of 1899), Section 36, 61 -- Exhibition of insufficiently stamped documents – Evidential value -- Documents already having been exhibited without any objection from the respondents-defendants as also in view of the bar contained in Section 36 of the Act and no recourse having been taken u/s 61 of the Act, impugned order holding the documents Ex.P-3 and P-4 as not readable in evidence, set aside.

(Para 8)

Contempt of Courts Act, 1971 (70 of 1971), Section 12 – Contempt of Court -- Interim order till the next date of hearing for not to leased out/rented out the building in question – Reply that since interim order was not extended on 28.2.2022, respondent remained under the impression that interim order dated 17.2.2022 has lost its efficacy -- Respondent leased out the building on 1.3.2022 – Held, no contempt can be said to have been committed by the respondents by leasing out the property to third party – Petition dismissed.

(Para 1-5)

Code of Civil Procedure, 1908 (V of 1908), Section 151, Order 7 Rule 11 -- Rejection of plaint – Advalorem court fee -- Suit for declaration that release deed in favour of respondents-defendants No.1 and 2 is null and void – It is not the sale deed, which is challenged by the petitioner-plaintiff, but in fact, it is the release deed – Specific assertion in the plaint, about the release deed, to have been illegally and fraudulently got executed and registered without consideration -- Moreover, the stamp duty to be paid for registration of the such release deed of immoveable property in blood relation has also been waived off by the Haryana Government -- Even, the possession has also not been claimed by the petitioner-plaintiff – Petitioner-plaintiff is not required to pay ad valorem Court fee – Order allowing application under Order 7 Rule 11 set aside.

(Para 1, 11-15)

Code of Civil Procedure, 1908 (V of 1908), Order 26 Rule 9 -- Appointment of Local Commissioner – Evidence stage -- There is no absolute proposition of law that Local Commissioner could not be appointed before the evidence stage -- Local Commissioner has been appointed only to prepare a report about the existing status of the premises which had been leased out and his report would facilitate the Court in the adjudication of the matter – No illegality in the order.

(Para 8, 9)

Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11(a)(e), Section 151 -- Defamation – Rejection of plaint -- Simply averring in the plaint that defamatory and derogatory statements have been made would not amount to disclosure of cause of action -- Contents of the plaint do not disclose any cause of action -- Revision allowed, application u/s Order 7 Rule 11 read with Section 151 CPC allowed and the plaint in civil suit ordered to be rejected under Order 7 Rule 11(a) and (d) on the grounds of not disclosing any cause of action and being barred by law.

(Para 7-10)

Code of Civil Procedure, 1908 (V  of 1908), Section 115, 151, Order 7 Rule 11 -- Suit for damages – Cause of action – Rejection of plaint -- None of the facts constituting the cause of action i.e. defamation are forthcoming from the plaint -- Simply averring in the plaint that defamatory and derogatory statements have been made would not amount to disclosure of cause of action -- Plaint does not disclose any dates on which the cause of action is stated to have arisen -- Revision allowed, consequently, the application under Order 7 Rule 11 read with Section 151 CPC filed by the defendant-petitioner stands allowed and the plaint in civil suit ordered to be rejected under Order 7 Rule 11(a) and (d) on the grounds of not disclosing any cause of action and being barred by law.

(Para 7, 10)

Code of Civil Procedure, 1908 (V of 1908), Section 24 -- Transfer of divorce petition – Mangaluru to Mumbai -- Wife permanent resident of Canada must be travelling abroad regularly -- Petitioner was in Canada throughout the mediation process and attended the proceedings online -- No child born out of wedlock to be taken care of -- Both the parties are well educated and engaged in their own jobs and professions -- She can travel to Mangaluru to attend the hearing of the case and can also seek exemption from appearance whenever required – No case is made out for transfer of the petition from Mangaluru to Mumbai – Transfer  petition dismissed.

(Para 20-23)

Code of Civil Procedure, 1908 (V of 1908), Section 11 – Limitation Act, 1963 (36 of 1963), Section 5 – Resjudicata -- In the earlier round of litigation direction to the defendant-respondents was to remove at their own expenses the L.T. pole installed in the courtyard of the plaintiff-appellant within a month -- However, as per the undertaking, it was made clear that the plaintiff-appellant would not be entitled to any compensation for the transformer and poles erected in his property – Plaintiff-appellant wanted to reagitate the matter which is directly and substantially the same as in the previous litigation -- Plaintiff-appellant not able to convince that the findings in the earlier round of litigation would not operate as res judicata -- There is extra-ordinary delay of 2936 days in filing the appeal for which no cogent reasons are forthcoming – Appeal dismissed on the ground of delay as well as on merits.

(Para 6-8)

Code of Civil Procedure, 1908 (V of 1908), Section 151, Order 39 Rule 1 and 2 -- Electricity Act, 2003 (36 of 2003), Section 126, 127, 135 -- Theft of electricity – Ad-interim injunction for electricity connection -- Suit for mandatory injunction seeking new electricity connection – Arguments qua theft in abstract are admissible only when the theft has been proved by any competent Court below -- Merely, registration of an FIR does not amount to any conclusive proof of the theft, as has been pleaded – Application allowed by Trial court affirmed in appeal – Held, orders passed by ld. Courts below being interim in nature are subject to outcome of the trial, no grounds to interfere.

-- electricity being a basic requirement, cannot be deprived to a consumer when allegations qua his being an erring party are yet to be adjudicated.

-- balance of convenience, at this stage, is in favour of consumer and no irreparable loss would be caused as the outstanding dues, needless to say, will be recoverable from the consumer, in case the same are found admissible as per claim of petitioner-Nigam.

(Para 1-4)

Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 -- Undervalued court fees – Ground of rejection of plaint -- Maintainability of revision -- By impugned order an application under Order 7 Rule 11 of the CPC has been dismissed and the plea raised that Court fee appended is undervalued, has not been accepted -- Revision petition is not maintainable.

(Para 5)

Code of Civil Procedure, 1908 (V of 1908), Order 22 Rule 1 – Suit seeking damages on account of murder of son – Death of plaintiff – Right of Legal representatives/ LR’s -- It would be too harsh, if the suit is dismissed, rejecting the application moved by son of deceased/plaintiff who is none else but real brother of victim to be brought on record -- Revision allowed, with a direction to permit legal representative of deceased plaintiff to come on record and then proceed further with the suit from the stage when it was ordered to abate.

(Para 1, 5-7)

A. Code of Civil Procedure, 1908 (V of 1908), Order 5 Rule 17, Order 9 Rule 13 -- Service of summons through munadi – Non-witness by anyone – Ex-parte decree – Setting aside of -- A perusal of the report of the summons by the Process Server as well as the munadi report clearly reveals that the same have not been witnessed by anyone -- In the absence of any witness, it cannot be said that the defendant-respondents stood duly served -- Impugned order setting aside the exparte order as well as the ex-parte impugned judgment and decree is upheld.

(Para 5-9)

B. Code of Civil Procedure, 1908 (V of 1908), Order 5 Rule 17, Order 9 Rule 13 – Ex-parte decree against minor – Maintainability of application for setting aside by minor -- Service munadi not as per Rule --  A minor is entitled to an indulgent consideration so far as procedural lapses are concerned at the hands of the Court -- Application under Order 9 Rule 13 CPC was maintainable on behalf of the minors.

(Para 5-9)

Code of Civil Procedure, 1908 (V of 1908), Section 9 -- Suit for damages on account of defamation -- Malicious prosecution – Death of plaintiff – Right of legal representative -- Cause of action to claim damages for malicious prosecution is a personal cause of action and, therefore, on the death of the plaintiff-appellant the right to sue does not survive to his legal representatives.

(Para 10)

East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13 -- Code of Civil Procedure, 1908 (V of 1908), Order 9 Rule 13 – Ex-parte eviction order – Application for setting aside of ex-parte order – Speaking order – Requirement of -- Without adverting to the evidence on record and without any discussion, the application dismissed by a cryptic and totally non-speaking order -- Once the evidence was available on the record the Rent Controller ought to have dealt with the same before deciding the application under Order 9 Rule 13 CPC -- Impugned order is perverse and un-sustainable in law and accordingly set aside -- Matter remanded to the Rent Controller to decide the application afresh in accordance with law.

(Para 6)

Code of Civil Procedure, 1908 (V of 1908), Section 96, Order 41 Rule 31 -- First appeal – Duty of First appellate Court -- First appeal being a valuable statutory right, all questions of fact and law being open for consideration, the Appellate Court required to specifically dealt with all the issues and contentions raised by the appellants by recording reasons in support thereof also being the requirement of Order 41 Rule 31 CPC -- Appellate Court failed to record its independent reasons while upholding the findings recorded by the trial Court -- Matter remanded back to the first Appellate Court.

(Para 16-19)

A. Indian Succession Act, 1925 (39 of 1925), Section 63(c) -- Indian Evidence Act, 1872 (1 of 1872), Section 68, 90 – Will – Presumption as to 30 year old document – Applicability of -- Wills cannot be proved only on the basis of their age -- Presumption u/s 90 as to the regularity of documents more than 30 years of age is inapplicable when it comes to proof of wills, which have to be proved in terms of Sections 63(c) of the Succession Act, 1925, and Section 68 of the Evidence Act, 1872.

(Para 13)

B. Indian Evidence Act, 1872 (1 of 1872), Section 69 -- Will -- Attesting witness – Non-availability of -- In the event where attesting witnesses may have died, or cannot be found, the propounder is not helpless, as Section 69 of the Evidence Act, 1872 is applicable.

(Para 17)