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), Section 96, 100 -- First appeal – Second appeal – Clubbing of appeals – Permissibility of -- Though, in a normal circumstance, to avoid contradicting decrees, the Courts would be justified in considering the matters together -- Nature of consideration in the Second Appeal as against a consideration to be made in the First Appeal entirely different in as much as the reappreciation of the evidence and interference with the finding of the fact would arise only in the First Appeal and not in the Second Appeal -- Clubbing of the proceedings not justified.

(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)

Commercial Courts Act, 2015 (4 of 2016), Section 16 – Code of Civil Procedure, 1908 (V of 1908), Order 5 Rule 1, Order 8 Rule 1 -- Constitution of India, Article 227 -- Written statement filed after one year – Application for placing on record rejected -- Revisional jurisdiction – By Sec.16 of the Commercial Courts Act, 2015, the Code of Civil Procedure stands amended, which mandates that the defendant(s) has to file the written statement within 120 days from the date of service of summons, failing which the defendant(s) right to file the written statement will stand forfeited and the Court shall not accept the written statement on record – Held, there is no error in the impugned order warranting interference by this Court under Article 227 of the Constitution of India.

(Para 6-11)

A. Code of Civil Procedure, 1908 (V of 1908), Section 24 -- Hindu Marriage Act, 1955 (25 of 1955), Section 9 -- Restitution of conjugal rights -- Transfer of case – While considering the transfer of a matrimonial dispute/case, at the instance of the wife, the Court is to consider the family condition of the wife, the custody of the minor child, economic condition of the wife, her physical health and earning capacity of the husband and most important the convenience of the wife i.e. she cannot travel alone without assistance of a male member of her family, connectivity of the place to and from her place of residence as well as bearing of the litigation charges and travelling expenses.

(Para 6)

B. Code of Civil Procedure, 1908 (V of 1908), Section 24 -- Hindu Marriage Act, 1955 (25 of 1955), Section 9 -- Restitution of conjugal rights -- Transfer of case – Ludhiana to Hoshiarpur -- Considering the fact that issuance of notice to the respondent has the consequences of staying further proceedings before the trial Court, otherwise the petitioner-wife will have to bear the litigation expenses and transportation expenses and in case, notice of motion is issued, even the respondent-husband has to bear the litigation expenses – Petition allowed.

(Para 7)

Family Courts Act, 1984 (66 of 1984), Section 19 -- Vacation of interim injunction -- Interlocutory order – Maintainability of appeal -- In terms of Section 19 of the Family Courts Act, no appeal qua an interlocutory order is maintainable -- Moreover, question of interim restraint upon the respondent from continuing with divorce proceedings at U.S.A, at the stage when said proceedings have admittedly culminated in a decree of divorce (though exparte), does not arise -- Appellant is at liberty to challenge the decree whereby divorce has been granted by the State of Connecticut Superior Court on 23.08.2022, in accordance with law.

(Para 3-7)

Limitation Act, 1963 (36 of 1963), Section 5 -- Code of Civil Procedure, 1908 (V of 1908), Section 96 -- Decree – Delay in filing appeal – Condonation of delay -- Limitation would run from the date of passing of the decree and not from any date prior to passing of the same – Seeker of condonation of delay is not required to explain the period of his absence during the trial, what is required is the period of delay which runs as per the Limitation Act and in this case the period of limitation had started from the date of decree, therefore, any delay after explaining of such limitation was only to be explained by the appellant.

(Para 15)

A. Code of Civil Procedure, 1908 (V of 1908), Section 2(2), 47 -- Decree – Execution -- Return of gold or present value – Interpretation of -- Decree of the Family Court directs the judgment debtors to return “68.937 sovereigns of gold ornaments or the present value of the same” --The word “present” indicates “the current point of time” -- When the court directed to pay its present value in case the ornaments are not returned, it can only mean that the value at the time when his failure to return the gold ornaments occurs -- DH/ respondents are entitled to get value of the gold ornaments as on the date of filing of the Execution Petition.

(Para 11-13)

B. Code of Civil Procedure, 1908 (V of 1908), Section 2(2) -- Decree – Every court shall ensure that the decrees it pronounces have sufficient clarity so as to avoid any kind of dispute in relation to the interpretation of the decrees.

(Para 14)

Code of Civil Procedure, 1908 (V of 1908), Order 37 Rule 6(b) – Recovery suit -- Leave to defend -- Indemnity/ surety bonds – Trial Court granted leave to defend to defendant with a rider to file indemnity/ surety bonds to safeguard the interest of the plaintiff – Order, upheld.

(Para 5)

Code of Civil Procedure, 1908 (V of 1908), Section 151, Order 18 Rule 17-A -- Application u/s 151 CPC for leading additional evidence – Maintainability of – Order 18 Rule 17-A CPC a specific provision in the CPC providing for leading of additional evidence had been deleted by the Legislature -- Trial Court held that provision of Section 151 CPC can be used only where there is no specific provisions in the CPC and once the provisions of additional evidence had been specifically deleted from the Code, such relief cannot be obtained by making reference to Section 151 CPC -- Impugned order passed by the trial Court does not suffer from any illegality or infirmity and is not having any element of arbitrariness or perversity.

(Para 3, 6)

Code of Civil Procedure, 1908 (V of 1908), Order 8 Rule 1 -- Delay in written statement -- Period of 90 days provided under Order 8 Rule 1 CPC is procedural and not part of substantive law -- No prejudice would be caused to the respondent in case the suit is decided on merits, after affording a proper opportunity to contest the same – One more opportunity granted to the defendant-petitioners to file the written statement within a period of 10 days subject to payment of Rs.10,000/- as costs.

(Para 9)

A. Code of Civil Procedure, 1908 (V of 1908), Order 41 Rule 23 -- Remand in appeal -- Scope of remand in terms of Rule 23 of Order XLI CPC is extremely limited.

(Para 11.2)

B. Code of Civil Procedure, 1908 (V of 1908), Order 41 Rule 23-A -- Remand by High Court in appeal – Remand correlated with Rule 23-A of Order XLI CPC and for its applicability, the necessary requirements are that “the decree is reversed in appeal and a re-trial is considered necessary” – There is no reason available in the impugned judgment as to why and on what basis the decree was reversed by the High Court -- Reversal has to be based on cogent reasons and for that matter, adverting to and dealing with the reasons that had prevailed with the Trial Court remains a sine qua non -- Thus, remand cannot be held justified even in terms of Rule 23-A of Order XLI CPC.

(Para 11.2)

C. Code of Civil Procedure, 1908 (V of 1908), Order 41 Rule 24 -- Merely because a particular evidence which ought to have been adduced but had not been adduced, the Appellate Court cannot adopt the soft course of remanding the matter.

(Para 14)

Specific Relief Act, 1963 (47 of 1963), Section 28 -- Code of Civil Procedure, 1908 (V of 1908), Section 148 -- Ex-parte decree for specific performance of agreement – Non-deposit of balance consideration -- Delay of 853 days in moving application for extension of time -- Rs. 8,00,000/- was paid as advance, balance sale consideration of Rs. 15,00,000/- was directed to be deposited/paid by the plaintiff under the ex-parte judgment and decree dated 12.10.2013, within two weeks from the said date – Application u/s 148 CPC and Section 28 of the Specific Relief Act on 7.6.2017/19.06.2017 with a huge delay of 853 days, seeking extension of time to deposit the balance sale consideration – Power u/s 28 of the Specific Relief Act is discretionary and the Court has to pass an order as the justice may require -- Trial Court erred in exercising the discretion in favour of the plaintiff and erred in extending the time in favour of the plaintiff to deposit the balance sale consideration of Rs. 15,00,000/- by condoning the huge delay of 853 days, which has not been explained sufficiently at all – However, at the same time, to strike the balance between the parties the amount of Rs. 8,00,000/- paid by the plaintiff as an advance is to be returned to the plaintiff with 12% interest per annum from 9.5.2012 till the actual payment, within a period of six weeks from today, failing which it shall carry interest @ 18% per annum.

(Para 5-8)

A. East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13, 15 -- Code of Civil Procedure. 1908 (V of 1908), Section 2(12), Order 20 Rule 12 -- Mesne profit – Eviction of tenant -- Registered lease deed in vicinity showing rent of Rs.1,57,500/- p.m. -- Solely on account of the same, no specific assessment of the mesne profits can be made -- Age of the building, nature of construction and the extent of building to be user friendly, has to be taken into consideration -- Location of showrooms also to be looked into – Rs.85,000/- per month, as mesne profits, held to be appropriate.

(Para 17-19)

B. East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13, 15 -- Code of Civil Procedure. 1908 (V of 1908), Section 2(12), Order 20 Rule 12 -- Mesne profit – Eviction of tenant – Appeal -- Mere preferring of an appeal does not operate as stay on the eviction order -- Till the decision of the appeal, the Courts are supposed to watch the interest of the landlord also -- Courts are required to strike a balance between the two and fix the extent of mesne profits, which should not be exorbitant, to such an extent that the tenant is forced to quit his claim and be deprived of the fruits of his success, in the event of appeal, being allowed.

(Para 18)

Code of Civil Procedure, 1908 (V of 1908), Order 18 Rule 17-A – Additional evidence – Change of Counsel – Ground of -- Merely by change of a counsel, a litigant does not get any right to adduce further evidence for the reason that the earlier counsel had not advised him to produce that evidence earlier.

(Para 7)

Land Acquisition Act, 1894 (1 of 1894), Section 54 – Code of Civil Procedure, 1908 (V of 1908), Section 100-A -- Land Acquisition case – Maintainability of Letter Patent Appeal – Appeal lies to High Court against an Award and from the decree of High Court an appeal lies to the Supreme Court – Section 100-A was incorporated on 01.07.2002 – Appeals which have been filed before 01.07.2002 would not affect the accrued right of appeal vested in a suitor, who had actually filed the appeal before the said date, but those who had yet to file the appeal on or after 01.07.2002 would not be entitled to maintain the same – Though the appeals were originally filed on 05.04.2002, but various objections were raised by the office -- Appeals were then finally filed on 17.07.2002 -- Appeals were never complete in all prospects and filed after 01.07.2002 and listed for the first time before the Bench on 22.07.2002 – LPA not maintainable, dismissed.

(Para 4-10)

Constitution of India, Article 136 -- Interim order by Single judge – Letter Patent Appeal against interim order – Special Leave Petition -- It would be appropriate that the main dispute itself pending adjudication before the learned single Judge be decided on merits -- Pendency of the LPA before the Division Bench of the High Court against an interim order will serve no useful purpose -- LPA stands dismissed, Ld. Single Judge of the High Court requested to decide the proceedings on its own merits expeditiously preferably within a period of three months -- Status quo ordered to be maintained.

(Para 2-6)

National Green Tribunal Act, 2010 (19 of 2010), Section 25, 26 -- Execution of NGT order – Non-implementation of – Imposition of penalty – Whether sub-serve the purpose -- Observation of the Tribunal that there was no case for executing the earlier order u/s 25 is misconceived -- Tribunal is entrusted with the wholesome power to ensure that its orders are complied with -- Absence of sewerage facilities is an important aspect which would merit the exercise of powers by the Tribunal u/s 25 -- Invocation of the power to levy a penalty u/s 26 will not necessarily sub-serve the purpose.

(Para 4-6)

Haryana Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 5, 13, 15 -- Haryana Village Common Lands (Regulation) Rules, 1964, Rule 5 -- Exchange of shamilat land – Jurisdiction of civil court -- Word 'benefit of inhabitants of the village' does not mean for the benefit of one or two persons amongst the inhabitants, but is for the benefit of entire village proprietary body -- Further-more, there is no prior approval of the State Government enabling the Sarpanch to file written statement admitting the claim of private respondents -- Exchange is result of collusion between the office bearers of Gram Panchayat and the private respondents -- Even otherwise, there is a specific jurisdictional bar created in Section 13 of the Act of 1961 against the civil court to entertain such a claim -- Thus, the said civil suit was ill constituted besides the award as made thereon by the Daily Lok Adalat concerned, is also vitiated by the vice of jurisdictional incompetence -- Award is a nullity.

(Para 6-8)

Code of Civil Procedure, 1908 (V of 1908), Order 21 Rule 32 -- Decree for permanent injunction – Execution of – Warrant of possession – Permissibility of -- Defendants were restrained from demolishing the Rasta/Gohar in illegal and forcibly manner – Executing court was to ensure that the rasta was made available to the plaintiff without any obstruction and not to deliver possession of Rasta/Gohar to the decree holder/plaintiff – Warrant of possession by Executing Court, order is not sustainable, set aside -- Trial Court directed to proceed in light of Order 21 Rule 32 CPC.

(Para 10)

Code of Civil Procedure, 1908 (V of 1908), Order 18, Rule 17A – Additional evidence in rebuttal -- Categoric stand of the defendant in the written statement was that the agreement to sell was false, frivolous and a fabricated document -- Onus to prove the agreement to sell was on the plaintiff -- Attorney of the defendant-respondent stepped into the witness box and the documents were not put to the said attorney -- Held, bonafides on the part of the plaintiff-petitioner are questionable, he chose not to produce them in the affirmative -- No valid or cogent reasons are coming forth for not producing the documents earlier – Order dismissing application for leading additional evidence moved by plaintiff-petitioner affirmed.

(Para 5-7)

Code of Civil Procedure, 1908 (V of 1908), Order 39 Rule 1 and 2 – Suit for declaration and mandatory injunction – Grant of temporary Injunction against co-sharer -- Electricity connection existing in the joint land, originally in the name of common ancestor -- Mandatory injunction sought to retransfer the said connection in the name of plaintiffs and other co-sharers of land -- Temporary injunction granted by the trial Court only facilitates its joint use -- Discretion vested in the trial Court has been validly exercised on sound principles of law by granting the temporary injunction.

(Para 1-2, 10-13)

Specific Relief Act, 1963 (47 of 1963), Section 34 -- Limitation Act, 1963 (36 of 1963), Article 65, 113 -- Suit for declaration and possession -- Limitation – Limitation to file a suit for possession on the basis of title is twelve years -- Declaratory relief for title of the property is sine qua non for seeking possession over it -- The former, therefore, cannot be held to take away the essential characteristics of a suit for possession -- One of the reliefs sought of declaration will not mean that the prescribed period of limitation will not be applicable.

(Para 2, 8-10)

A. Code of Civil Procedure, 1908 (V of 1908), Order 21 Rule 84, 85 – Execution of decree -- Auction sale of property by court – Non-deposit of purchase money in time – Vitiation of sale -- Auction purchaser was required to deposit 25% of the amount the day on which he was declared purchaser i.e., 18.10.2011 -- Even the balance 75% of the amount has not been deposited as prescribe under Order 21 Rule 85 within time -- There is non-compliance of mandatory provisions of Order 21 Rule 84 and Order 21 Rule 85, therefore the sale vitiated.

(Para 7.4-8)

B. Code of Civil Procedure, 1908 (V of 1908), Order 21 Rule 64, 84, 85, 86 – Execution of money decree -- Auction sale of property by court – Executing court decided to sell the property of Judgment debtor – Appellant/ Objector purchased the property in question much before the auction of the property -- At the relevant time the property in question was not the subject matter of suit -- While ad-interim injunction, the property in question was not the subject matter of suit -- Ad-interim injunction cannot be pressed into service against the appellant – Therefore, at the time when the property was put to auction, the judgment debtor was not the owner and therefore, the same could not have been put to auction.

(Para 9)

Code of Civil Procedure, 1908 (V of 1908), Section 25 -- Hindu Marriage Act, 1955 (25 of 1955), Section 13 -- Transfer of divorce petition – Jaipur to Kurukshetra -- Petitioner and the respondent both are in Government service and are posted at Jaipur -- Petitioner is currently posted as Deputy Director in National Health Mission, Jaipur and a Class-I, Officer remained posted in Rajasthan since 2011 – Transfer Petition on the ground that her father-in-law was Assistant Superintendent of Police in Rajasthan (now retired), is a very influential person in Jaipur and that at his behest, threats have been extended to the petitioner, in respect whereof, some complaints have been made by her to the authorities -- Son of the petitioner is living and studying in Kurukshetra, Haryana, where he has initiated proceedings for maintenance u/s 125 of the Cr.P.C against the respondents – Held, extension of some threats as alleged may be a danger to her personal security but that may not be sufficient or a good ground for the transfer of the petition -- The complaints alleging such threats are all subsequent to the filing of the divorce petition and may be for creating a ground for seeking transfer of the divorce petition -- Even the initiation of the proceedings by the son at Kurukshetra in Haryana are subsequent to the filing of the divorce petition and appears to be an afterthought – Held, it is not just and proper to transfer the case outside Rajasthan to a remote place like Kurukshetra in Haryana.

(Para 3-6)

A. Representation of the People Act, 1951 (43 of 1951), Section 80, 80-A, 83, 87, 123 -- Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 -- Election petition -- Corrupt practice – Pleadings -- Rejection of plaint -- When an election is sought to be challenged by way of an election petition before the High Court it has to contain specific and unambiguous pleadings in relation to the alleged corrupt practices – High Court has to look into the pleadings and allegations raised, whether the allegations are vague or specific enough to allow the election petition to continue, as without specific details of alleged corrupt practices i.e. time, date and place and the names of persons involved in the alleged corrupt practices, the election petition would not be maintainable -- In such eventuality, proceeding with the same would be sheer waste of time.

(Para 9)

B. Representation of the People Act, 1951 (43 of 1951), Section 80, 80-A, 83, 87, 123 – Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 -- Election petition -- Corrupt practice – Pleadings – Rejection of plaint -- Petition must contain concise material facts – Entire set of allegations as raised in the election petition is that expenditure incurred has not been accounted for and that would constitute ‘corrupt practice’ in terms of Section 77 read with Section 123(B) of the Act of 1951 -- Petitioner miserably failed to discharge the primary onus to prove the charges to the satisfaction of the Court as allegation of corrupt practice is quasi criminal in nature and material facts and full particulars in respect of even one corrupt practice are not stated in the election petition -- Therefore, failure to state even a single material fact will entail dismissal of election petition summarily as it does not furnish any cause of action -- Consequently, the application filed under Order VII Rule 11 CPC is allowed and the election petition stands rejected.

(Para 9-15)

Jammu and Kashmir Hindu Marriage Act, 1980 (IV of 1980), Section 13 -- Code of Civil Procedure, 1908 (V of 1908), Order 5 Rule 15, Order 9 Rule 13 – Divorce petition -- Ex-parte decree -- Service of summons on father – Father accepted the summons informing the Process Server that he would convey the same to the appellant did -- Father did not disclose to the Process Server that the appellant was not residing with him nor did he come in the witness box before the trial court to state so -- It is not the case of the appellant that she had empowered any agent to accept service of summons on her behalf -- Thus, conditions mentioned in Order V Rule 15 of the CPC were satisfied and accordingly, learned trial court rightly declared that the appellant has been duly served with the summons -- Once she did not appear, no option left before the trial court but to proceed ex parte against her and to pass ex parte judgment and decree on the basis of ex parte evidence led by the respondent/ plaintiff – Application for setting aside ex-parte judgment and decree dismissed, order upheld.

(Para 1, 18, 19)