Code of Civil Procedure, 1908 (V of 1908), Order 26 Rule 9 -- Appointment of Local Commissioner – Application declined – Maintainability of revision -- Order dismissing an application for nominating a Local Commissioner to demarcate the area is not amenable to interference in the revisional jurisdiction.

(Para 1)

Code of Civil Procedure, 1908 (V of 1908), Order 21 Rule 54, 64, 66, 89, 90 -- Land Acquisition Act, 1894 (1 of 1894), Section 18 – Constitution of India, Article 300A -- Auction sale -- Setting aside of – Acquisition of land by Improvement Trust – Trust failed to pay compensation assessed by Reference Court – In Execution, Trust not appeared despite service of notice – Ex-parte warrant for sale of attached property issued and property sold to auction purchaser – No material irregularity or fraud causing substantial injury to Trust established – Objector neither deposited the decreetal amount nor the amount equal to 5% of the purchase amount for payment to the auction purchaser as is required under Order XXI Rule 89 of the said Code – Though the right in property is not a fundamental right, it is still a constitutional right under Article 300A of the Constitution of India -- A person can be deprived of the rights of the property only in a manner known to law -- Acquisition proceedings in respect of the land in question sought to deprive the owners of their land which had to be paid for in terms of the provisions of the LA Act -- Executing Court’s order affirmed, with cost of Rs. 1 lac.

(Para 5-11, 30-39)

A. Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17, Order 2 Rule 2 -- Amendment of plaint -- Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview -- Plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived.

(Para 70 (i))

B. Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17 -- Amendment of plaint -- All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side -- This is mandatory, as is apparent from the use of the word “shall”, in the latter part of Order VI Rule 17 of the CPC.

(Para 70 (ii))

C. Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17 -- Amendment of plaint -- Prayer for amendment is to be allowed:

(i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and

(ii) to avoid multiplicity of proceedings, provided

(a) the amendment does not result in injustice to the other side,

(b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and

(c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).

(Para 70 (iii))

D. Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17 -- Amendment of plaint -- Prayer for amendment is generally required to be allowed unless;

(i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration,

(ii) the amendment changes the nature of the suit,

(iii) he prayer for amendment is malafide, or

(iv) by the amendment, the other side loses a valid defence.

(Para 70 (iv))

E. Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17 -- Amendment of pleadings -- In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.

(Para 70(v))

F. Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17 – Amendment of pleadings --

-- Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.

-- Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation.

-- Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.

-- Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.

(Para 70 (vi-ix))

G. Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17 – Amendment of plaint -- Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed -- Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.

(Para 70 (x))

H. Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17 – Amendment of plaint -- Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach -- The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment -- As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed -- Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed.

(Para 70 (xi))

A. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 -- Rejection of plaint – While adjudicating upon the application under Order VII Rule 11 CPC, the defense of the defendant cannot be gone into and no other extraneous factor can be considered.

(Para 4)

B. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 -- Rejection of plaint – Limitation -- Issue of limitation would be a mixed question of law and facts, which could be and would be only decided after the parties have led their respective evidence -- Averments made in the plaint by the plaintiff as to on which date the essential facts giving rise to the cause of action came to him/her knowledge would alone have to be considered and accepted as well, while deciding an application under Order VII Rule 11 of the Code.

(Para 9)

C. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11, Order 2 Rule 2 – Rejection of plaint -- For deciding as to whether the suit is barred under Order II Rule 2 CPC or not, a reference to the contents of the earlier plaint cannot be made, rather only the averments made in the suit in question are to be considered and seen.

(Para 10)

A. Code of Civil Procedure, 1908 (V of 1908), Section 114, Order 47 Rule 1 -- Review – A review application would be maintainable on (i) discovery of new and important matters or evidence which, after exercise of due diligence, were not within the knowledge of the applicant or could not be produced by him when the decree was passed or the order made; (ii) on account of some mistake or error apparent on the face of the record; or (iii) for any other sufficient reason.

(Para 13)

B. Code of Civil Procedure, 1908 (V of 1908), Section 114, Order 47 Rule 1 -- Review – Error in judgment -- Error must be apparent on the face of the record and not one which has to be searched out.

(Para 16)

C. Code of Civil Procedure, 1908 (V of 1908), Section 114, Order 47 Rule 1 -- Review – Reappreciation of evidence – Permissibility of -- It is settled law that in exercise of review jurisdiction, the Court cannot reappreciate the evidence to arrive at a different conclusion even if two views are possible in a matter.

(Para 17)

D. Code of Civil Procedure, 1908 (V of 1908), Section 114, Order 47 Rule 1 -- Review – Scope of -- Under the garb of filing a review petition, a party cannot be permitted to repeat old and overruled arguments for reopening the conclusions arrived at in a judgment -- Power of review is not to be confused with the appellate power which enables the Superior Court to correct errors committed by a subordinate Court.

(Para 18)

E. Code of Civil Procedure, 1908 (V of 1908), Section 114, Order 47 Rule 1 -- Review – Scope of -- Court’s jurisdiction of review, is not the same as that of an appeal -- A judgment can be open to review if there is a mistake or an error apparent on the face of the record, but an error that has to be detected by a process of reasoning, cannot be described as an error apparent on the face of the record -- Court can correct a mistake but not substitute the view taken earlier merely because there is a possibility of taking two views in a matter -- A judgment may also be open to review when any new or important matter of evidence has emerged after passing of the judgment, subject to the condition that such evidence was not within the knowledge of the party seeking review or could not be produced by it when the order was made despite undertaking an exercise of due diligence -- An erroneous decision can be corrected by the Superior Court.

(Para 26)

F. Code of Civil Procedure, 1908 (V of 1908), Section 114, Order 47 Rule 1 -- Review – “for any other sufficient reason” – Meaning of -- Said phrase has been explained to mean “a reason sufficient on grounds, at least analogous to those specified in the rule”.

(Para 26)

G. Code of Civil Procedure, 1908 (V of 1908), Section 114, Order 47 Rule 1 – Second review application – Maintainability of -- Recourse to successive review petitions against the same order is impermissible -- Held, second set of review petitions were nothing short of an abuse of the process of the court and ought to have been rejected by the High Court as not maintainable, without having gone into the merits of the matter.

(Para 35, 36)

A. Code of Civil Procedure, 1908 (V of 1908), Order 11 Rule 14, Order 11 Rule 21 – Production of document – Non-compliance of – Effect of -- Rule 21 has no application to an order under Rule 14 of Order XI C.P.C. directing any party to a suit to produce any document in his possession or power relating to any matter in question in such suit -- Court cannot dismiss the suit for want of prosecution or strike off the defence as if the defendant had not defended the proceedings, when there is non-compliance of an order directing the party to produce certain documents under Rule 14 of Order XI C.P.C. -- It is permissible to draw an adverse inference.

(Para 3)

B. Code of Civil Procedure, 1908 (V of 1908), Order 11 Rule 21, Order 11 Rule 11  -- Interrogatories -- Defence struck of – Power of Court -- Power and jurisdiction vested with the civil court under Rule 21 even in a case which would fall under Rule 11 can be exercised sparingly when there is wilful unjustified non-compliance of direction with the malafide intention to defeat the ends of justice by the opposite party -- It is a matter of exercise of great judicial restraint and shall not be exercised in a routine manner.

(Para 3)

A. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 – Rejection of plaint -- While considering an application under Order 7 Rule 11 of the Code, the averments in the plaint alone are to be examined and no other extraneous factor can be taken into consideration.

(Para 5)

B. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 – Rejection of plaint -- Disputed question of fact as to whether the Agreement to Sell, the Power of Attorney and the Sale Deeds are forged and fabricated documents -- Such questions are required to be decided on the basis of evidence to be led by the parties -- Forgery pleaded cannot be a ground for rejection of the plaint.

(Para 6)

Industrial Disputes Act, 1947 (14 of 1947), Section 33C(2) – Labour law -- Correction in date of birth – Jurisdiction of civil court -- Issue involved relates only to the correction of the date of birth -- Jurisdiction of the civil court is not ousted, as this is not a case relating to enforcement of a right or an obligation under the Industrial Disputes Act, 1947.

(Para 6)

Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 -- Punjab Land Revenue Act, 1887 (XVII of 1887), Section 121, 158 -- Partition of land – Jurisdiction of civil court -- Bar of Section 158 of the Land Revenue Act, 1887 -- Rejection of plaint -- Suit for declaration that the plaintiffs are the exclusive owners in possession of the suit land with declaration that the order passed by the Assistant Collector, First Grade, partitioning the property is null, void and beyond jurisdiction – Application for rejection of plaint dismissed -- Held, power under Order 7 Rule 11 of the CPC can be exercised only if the court comes to a definite conclusion that the suit is barred by law -- It is a well settled principle that under Order 7 Rule 11 of the CPC, the plaint cannot be rejected partly -- A plaint can either be rejected as a whole or not at all -- Hence, no ground to interfere is made out – Revision dismissed.

(Para 1-6)

Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 13, 13-A -- Shamilat deh – Jurisdiction of civil court -- Primary question which arises for adjudication would be, “As to whether the land meant for the construction of school playground is Shamlat deh or not?” – Section 13 bars the jurisdiction of the court to entertain or adjudicate upon any question whether any land or other immovable property is Shamlat deh or not -- Exclusive jurisdiction to decide such question vests with the Collector.

(Para 3)

Transfer of Property Act, 1882 (4 of 1882), Section 52 -- Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 10, Order 6 Rule 17 – Suit for specific performance – Subsequent purchaser as party-defendant – Amendment of plaint -- Doctrine of lis pendens – Effect of -- No doubt, by rule of lis pendens, subsequent purchaser is bound by the decree but at the same time, it cannot be said that the presence of the purchaser in the suit proceedings would be improper also – By amendment plaintiff only seeks to introduce the subsequent events relating to the alienation of the suit property -- Application filed by the petitioner/plaintiff under Order 6 Rule 17 CPC read with Order 1 Rule 10 CPC allowed.

(Para 7, 8)

Code of Civil Procedure, 1908 (V of 1908), Order 22, Rule 5 – Legal heirs on the basis of Will – Jurisdiction of civil Court – Application for impleading Lr’s dismissed on the ground that appellant was not the only legal heir of the deceased plaintiff; and that the deceased had another son and one daughter and without impleading them, the appellant was not entitled to proceed further – Appellant is admittedly the son of the deceased-plaintiff -- Thus, his entitlement, whether by way of testamentary succession or non-testamentary succession, as being the legal heir of the deceased plaintiff cannot be denied -- If any inquiry was required to be made, the Trial Court could have adopted the course envisaged by Rule 5 of Order XXII of the Code of Civil Procedure, 1908 but, in any case, the application made by the appellant could not have been dismissed altogether – Application restored for re-consideration by the Trial Court in accordance with law.

(Para 1, 2, 12)

Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11, Section 2(2), 96 – Constitution of India, Article 227 -- Decree -- Rejection of plaint – Remedy of appeal -- Maintainability of Revision – Decree would include within its ambit an order of rejection of plaint under Order 7 Rule 11 of CPC -- An order would be amenable to the remedy of appeal – Not appropriate to entertain petition under Article 227 of the Constitution of India.

(Para 10, 11)

A. Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17 – Amendment of plaint – Misjoinder of cause of action -- Nature of suit – Change in – Effect of -- If, by permitting plaintiffs to amend the plaint including a prayer clause nature of the suit is likely to be changed, in that case, the Court would not be justified in allowing the amendment -- It would also result in misjoinder of causes of action.

(Para 8)

B. Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 10 -- Necessary parties -- Proper parties -- Principle dominus litus – Principle shall be applicable only in a case where parties sought to be added as defendants are necessary and/ or proper parties – Plaintiffs cannot be permitted to join any party as a defendant who may not be necessary and/ or proper parties at all on the ground that the plaintiffs is the dominus litus.

(Para 9)

A. Code of Civil Procedure, 1908 (V of 1908), Section 11 – Res-judicata -- General principle of res judicata u/s 11 of the Code contains rules of conclusiveness of judgment, but for res judicata to apply, the matter directly and substantially in issue in the subsequent suit must be the same matter which was directly and substantially in issue in the former suit -- Further, the suit should have been decided on merits and the decision should have attained finality -- Where the former suit is dismissed by the trial court for want of jurisdiction, or for default of the plaintiff’s appearance, or on the ground of non-joinder or mis-joinder of parties or multifariousness, or on the ground that the suit was badly framed, or on the ground of a technical mistake, or for failure on the part of the plaintiff to produce probate or letter of administration or succession certificate when the same is required by law to entitle the plaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation, or for failure to pay additional court fee on a plaint which was undervalued, or for want of cause of action, or on the ground that it is premature and the dismissal is confirmed in appeal (if any), the decision, not being on the merits, would not be res judicata in a subsequent suit.

(Para 31)

B. Code of Civil Procedure, 1908 (V of 1908), Section 11 – Res-judicata -- To succeed and establish a prayer for res judicata, the party taking the said prayer must place on record a copy of the pleadings and the judgments passed, including the appellate judgment which has attained finality.

(Para 32)

C. Code of Civil Procedure, 1908 (V of 1908), Order 2 Rule 2 – Constructive res-judicata -- Second appeal filed by the respondent was dismissed, giving liberty to the respondent to file a fresh suit with a prayer of declaration of title/endowment in respect of the suit jewellery -- Liberty granted was not challenged by the appellant -- Right to file a fresh suit to the Temple, therefore, should not be denied -- Bar of constructive res judicata/ Order II Rule 2 of the Code is not attracted.

(Para 32)

D. Code of Civil Procedure, 1908 (V of 1908), Order 2 Rule 2 – Constructive res-judicata – Pleading, evidence and judgment/ decree of previous suit -- Party claiming and raising the plea of constructive res judicata/Order II Rule 2 of the Code must place on record in evidence the pleadings of the previous suit and establish the identity of the cause of actions, which cannot be established in the absence of record of judgment and decree which is pleaded to operate as estoppel.

(Para 33)

E. Code of Civil Procedure, 1908 (V of 1908), Order 2 Rule 2 – Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (22 of 1959), Section 29(d), 108, 116(2)(xii) -- Decree of injunction – Constructive res-judicata -- High Court, in the impugned order directed the appellant to hand over the keys to the Joint Commissioner, who would perform the necessary responsibility of handing over the jewels during the Adipooram festival – Held, decree or direction is beyond what was sought by the respondent/ Temple in the plaint – Clarified and passed the decree restraining the appellant from interfering in any manner with the right of the Temple authorities to take out the suit jewellery from the Kudavarai whenever the occasion demands – In case the appellant fails to honour the commitment made and followed, that is, to open the doors of the Kudavarai and the safe to take out the suit jewellery whenever required by the Temple, it will be open to the respondent to take steps and initiate proceedings under the 1959 Act or by way of a civil suit as permitted in law – In which event the authorities/court would consider passing an order directing the appellant to hand over the keys of the door of the Kudavarai and the iron safe; as any failure to abide by the convention and ‘the charge’, which forms the basis of this order, would be a fresh or recurring cause of action, and the plea of limitation or Order II Rule 2 of the Code would not apply.

(Para 36-38)

Code of Civil Procedure, 1908 (V of 1908), Order 22 Rule 1, 2, 3, 4 -- Land Acquisition Act, 1894 (1 of 1894), Section 54 – Land acquisition case – Appeal to High Court -- Death of defendant/ respondent -- Non-bringing on record the legal representatives – Abetment of appeal -- High Court has mechanically and without holding any further enquiry simply dismissed the entire appeal as having abated due to non-bringing on record the legal representatives of some of the respondents/ the original defendants who, as such, neither contested the suit nor filed the written statements -- When the original plaintiffs/two co-owners instituted the suit with respect to the entire suit land jointly owned by the plaintiffs as well as defendants nos. 9 to 39 and when some of the defendants/respondents in appeal died, it can be said that estate is represented by others, more particularly the plaintiffs/heirs of the plaintiffs and it cannot be said that on not bringing the legal representatives of the some of the co-sharers/ defendants/ respondents in appeal the appeal would abate as a whole -- Impugned judgment and order passed by the High Court dismissing the appeal as a whole as having abated set aside -- High Court to consider the Appeal in accordance with law and on its own merits.

(Para 9.4-10)

A. Code of Civil Procedure, 1908 (V of 1908), Order 12 Rule 6 – Object and the purport of Order 12 Rule 6 -- Provision has been brought with intent that if admission of facts raised by one side is admitted by other, and the Court is satisfied to the nature of admission, then the parties are not compelled for full-fledged trial and the judgment and order can be directed without taking any evidence -- Therefore, to save the time and money of the Court and respective parties, the said provision has been brought in the statute.

(Para 16)

B. Code of Civil Procedure, 1908 (V of 1908), Order 12 Rule 6 – Judgment on admission – Stage of – To pass a judgment on admission, the Court if thinks fit may pass an order at any stage of the suit.

(Para 16)

C. Code of Civil Procedure, 1908 (V of 1908), Order 12 Rule 6 – Judgment on admission – Discretion of court – Power is discretionary which should be only exercised when specific, clear and categorical admission of facts and documents are on record, otherwise the Court can refuse to invoke the power of Order XII Rule 6 – Power cannot be claimed as a matter of right. S.M. Asif’s case (2015) 9 SCC 287 relied.

(Para 16-18)

A. Code of Civil Procedure, 1908 (V of 1908), Order 21 Rule 97 -- Bonafide purchaser – Right to file objections -- It is only the ‘decree holder’ who is entitled to make an application in case where he is offered resistance or obstruction by ‘any person’ -- Appellant is a bonafide purchaser of the property and not the ‘decree holder’ – Held, appellant cannot take shelter of Rule 97 to raise objections against execution of decree passed in favour of respondent.

(Para 15)

B. Code of Civil Procedure, 1908 (V of 1908), Order 21 Rule 99 -- Bonafide purchaser – Right to file objections -- Rule 99 pertains to making a complaint to the Court against ‘dispossession’ of the immovable property by the person in ‘possession’ of the property by the holder of a decree or purchaser thereof -- Appellant purchased property vide sale deed dated 12.04.2004 and has been in vacant and physical possession of the property since then -- Had it been the case that the appellant was dispossessed by the respondent trust in execution of decree dated 02.09.2003, the appellant would have been well within the ambit of Rule 99 to make an application seeking appropriate relief to be put back in possession – Appellant cannot be said to be entitled to make an application under Rule 99 raising objections in execution proceedings since he has never been dispossessed as required under Rule 99.

(Para 15)

C. Code of Civil Procedure, 1908 (V of 1908), Order 21, Rule 97, 99, 101 -- Bonafide purchaser – Right to file objections -- Applications under Rule 97 and Rule 99 are subject to Rule 101 which provides for determination of questions relating to disputes as to right, title or interest in the property arising between the parties to the proceedings or their representatives on an application made under Rule 97 or Rule 99 – Order XXI Rule 101 has no applicability as the appellant is neither entitled to make an application under Rule 97 nor Rule 99.

(Para 16)

A. Code of Civil Procedure, 1908 (V of 1908), Section 96 – Civil suit –First appeal – Nature of -- Appeal is a continuation of the proceedings of the original court -- Ordinarily, in the first appeal, the appellate jurisdiction involves a rehearing on law as well as on fact as invoked by an aggrieved person -- First appeal is a valuable right of the appellant and therein all questions of fact and law are open for consideration by reappreciating the material and evidence -- Therefore, the first appellate court is required to address on all the issues and decide the appeal assigning valid reasons either in support or against by reappraisal -- Court of first appeal must record its findings dealing all the issues, considering oral as well as documentary evidence led by the parties.

(Para 8)

B. Code of Civil Procedure, 1908 (V of 1908), Section 96 – Joint appeal  Application seeking permission to file joint appeal – Admission of appeal – Effect of – First appeal dismissed accepting the preliminary objection regarding maintainability applying the principle of res-judicata – Application seeking permission not decided – Held approach adopted by the High Court in dismissing the admitted first appeal after a lapse of decade without deciding the application has effectively deprived the appellant of its right to take its recourse by rectifying the defect and to be heard on merits – Matter remanded back to High Court with a request to decide the application, prior to deciding the preliminary objection of maintainability.

(Para 10, 11)

C. Code of Civil Procedure, 1908 (V of 1908), Section 96 – Joint appeal against common judgment and two decrees -- Procedural defects – Substantial justice -- It is a trite law that the procedural defect may fall within the purview of irregularity and capable of being cured, but it should not be allowed to defeat the substantive right accrued to the litigant without affording reasonable opportunity.

(Para 11)

Code of Civil Procedure, 1908 (V of 1908), Section 96 – Suit decreed by Trial Court -- Duty, scope and powers of the First Appellate Court -- High Court committed a serious error in neither forming the points for determination nor considering the evidence on record, in particular which had been relied upon by the Trial Court – Impugned judgment of the High Court is thus unsustainable in law and liable to be set aside -- Suit was instituted in the year 1991, more than three decades ago; the evidence discussed by the Trial Court is neither disputed nor demolished by the learned Counsel for the respondent – As such Court do not find any good reason to remand the matter to the High Court -- In order to put a quietus to the litigation and relieve the parties from any further harassment judgment of the High Court set aside and judgment and decree of the Trial Court confirmed to the extent that the appellant and the respondent would be entitled to ½ share each in the said property -- Trial Court shall accordingly proceed to draw out the proceedings for final decree of partition.

(Para 30, 31)

A. Indian Evidence Act, 1872 (1 of 1872), Section 114 -- Long years living as husband and wife – Birth of child – Presumption of -- It is well settled that if a man and a woman live together for long years as husband and wife, there would be a presumption in favour of wedlock -- Such a presumption could be drawn under Section 114 of the Evidence Act -- Although, the presumption is rebuttable, a heavy burden lies on him who seek to deprive the relationship of legal origin to prove that no marriage took place.

(Para 15)

B. Code of Civil Procedure, 1908 (V of 1908), Order 20 Rule 18 – Partition suit – Preliminary Decree – Final Decree – Role of -- Preliminary decree declares the rights or shares of the parties to the partition -- Once the shares have been declared and a further inquiry still remains to be done for actually partitioning the property and placing the parties in separate possession of the divided property, then such inquiry shall be held and pursuant to the result of further inquiry, a final decree shall be passed.

(Para 29, 30)

C. Code of Civil Procedure, 1908 (V of 1908), Order 20 Rule 18 – Preliminary decree -- Final decree – Limitation – Nature of -- Final decree proceedings can be initiated at any point of time -- There is no limitation for initiating final decree proceedings -- Either of the parties to the suit can move an application for preparation of a final decree and, any of the defendants can also move application for the purpose -- By mere passing of a preliminary decree the suit is not disposed of.

(Para 31)

D. Code of Civil Procedure, 1908 (V of 1908), Order 20 Rule 18 -- Preliminary decree – Final decree – Directions issued to Trial Courts -- Once a preliminary decree is passed by the Trial Court, the court should proceed with the case for drawing up the final decree suo motu -- After passing of the preliminary decree, the Trial Court has to list the matter for taking steps under Order XX Rule 18 of the CPC -- The courts should not adjourn the matter sine die -- There is also no need to file a separate final decree proceedings -- In the same suit, the court should allow the concerned party to file an appropriate application for drawing up the final decree – Suit comes to an end only when a final decree is drawn – Directions given to Trial Courts to list the matter for taking steps under Order XX Rule 18 of the CPC soon after passing of the preliminary decree for partition and separate possession of the property, suo motu and without requiring initiation of any separate proceedings.

(Para 32, 33)

A. Code of Civil Procedure, 1908 (V of 1908), Section 96 – First Appeal – Grounds of appeal -- Arguments raised that the Firm which is the owner of the property was not impleaded as a party as well as one of the vendees was not impleaded as a party -- Further, the argument raised that the suit was not maintainable in the present form -- None of the said arguments were specifically raised before the lower Appellate Court and are also not detailed in the memorandum of appeal filed before the lower Appellate Court -- Hence, the same deserve to be rejected.

(Para 8)

B. Code of Civil Procedure, 1908 (V of 1908), Order 8 Rule 3 -- Cause of action – Pleading – Simplicitor denial – Specific denial – Effect of – Paragraph in the plaint qua the content as to when the cause of action arose would be deemed to having been admitted by the defendant inasmuch as a perusal of the written statement reveals that there is a simpliciter denial to the said paragraph – In the absence of any specific denial, the contents of the paragraph would be deemed to be admitted.

(Para 8)

A. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 -- Rejection of plaint – Ground of -- Order 7 Rule 11 CPC can be invoked when on the face of it i.e. on a meaningful reading of the plaint and the documents attached therewith, the suit does not disclose a cause of action; is undervalued; has been filed on insufficiently stamped papers; where it appears to be barred by any law; where it is not filed in duplicate; or where the plaintiff does not comply with the provisions of Rule 9.

(Para 9)

B. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11, Section 11 -- Rejection of plaint – Res-judicata – Plea of -- Order 7 Rule 11(d) CPC has limited application -- On a reading of the plaint it should be apparent that the suit is barred by any law -- When the plea of res-judicata is raised, the same being a mixed question of law and fact, it cannot be gone into without there being any evidence on the record and, thus, such a case is not one that can be dismissed on an application under Order 7 Rule 11 CPC.

(Para 10)

Code of Civil Procedure, 1908 (V of 1908), Order 26 Rule 9 -- Constitution of India, Article 227 -- Appointment of Local Commissioner – Dismissal of application – Revision against – Maintainability of -- 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 9)

A. East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13 -- Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17 CPC – Eviction petition -- Amendment in written statement – Rent Controller permitted the respondent to amend the written statement without examining the effect thereof -- In the original written statement, he admitted the relationship of landlord and tenant between the parties to the petition -- However, by way of the proposed amendment, he now wants to take a destructively contradictory stand, he claims that there is no relationship of landlord and the tenant between the parties to the petition -- Order permitting the amendment to the extent of denying relationship of landlord and tenant is set aside.

(Para 3-7)

B. East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13, 15 -- Long pendency of rent petition -- Rent petition remained pending for the last 13 years -- Rent Controller directed to conclude the proceedings within a period of 6 months.

(Para 8)

Code of Civil Procedure, 1908 (V of 1908), Section 24 – Hindu Marriage Act, 1955 (25 of 1955), Section 9 – Restitution of conjugal rights petition – Transfer from Bathinda Camp at Phul to Faridkot – Distance between two town is 60 K.M – Both the towns adjoin each other and are interconnected by the well metalled road with all types of conveyance and facilities -- Being a civil matter, presence of the applicant is not required and the husband is trying to seek restoration of his rights of matrimonial relationship and the wife is trying to evade her obligations rather goes against the very conduct of the wife – Transfer application dismissed.

(Para 1-4)

Code of Civil Procedure, 1908 (V of 1908), Order 14 Rule 5 -- Constitution of India, Article 227 -- Additional issue at the stage of arguments -- Trial Court held that issue No.1 was wide enough to cover the entire controversy, dismissed the application -- It is trite that an additional issue can be framed at any point of time, however, both the parties were fully aware about the controversy involved in the suit and have led evidence to prove their respective pleas -- Issue nos.1 and 2 are broad enough to cover the entire controversy in issue – No illegality or infirmity in the impugned order passed by the Trial Court – Revision petition dismissed.

(Para 6-8)

Real Estate (Regulation and Development) Act, 2016 (16 of 2016), Section 58 – Code of Civil Procedure, 1908 (V of 1908), Section 100 -- RERA Appeal in High Court – Substantial question of law -- Appeal u/s 58 of the RERA, 2016, is maintainable only on one or more grounds specified in Section 100 of the CPC which provides for the substantial question of law.

(Para 2-5)

A. Code of Civil Procedure, 1908 (V of 1908), Order 8 Rule 1 – Delay in written statement – Condonation of delay – Discretion of court -- Provision is directory in nature, however, at the same time the Courts must exercise their discretion to condone the delay, if any, in filing the written statement after exercising due circumspection and in case there appears to be an attempt on the part of the defendant to engage in dilatory tactics, the Courts should nip the same unhesitatingly.

(Para 5)

B. Code of Civil Procedure, 1908 (V of 1908), Order 8 Rule 1 – Delay in written statement – Miscarriage of justice -- Petitioners granted four opportunities to file their written statement, however, they failed to do so -- If the petitioners are not granted one more opportunity, they would suffer irreparable loss which in turn would result in miscarriage of justice -- Therefore, for just and proper adjudication of the case, this Court deemed it appropriate to grant one last effective opportunity to the petitioners to file their written statement subject to payment of costs in the sum of Rs.5,000/- to be paid to the respondent which shall be a condition precedent.

(Para 6, 7)

Code of Civil Procedure, 1908 (V of 1908), Order 8 Rule 1 – Production of additional documents – Delay in -- It is well settled that rules of procedure are hand-maid of justice and, therefore, even if there is some delay, the trial Court should have imposed some costs rather than to decline the production of the documents itself -- Appellants/defendant Nos. 2 to 5 permitted to file the documents and to prove the same in accordance with law.

(Para 4-7)

Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 8 – Representative suit for partition – Non-impleading of all co-owners – Permissibility of – Trial court permitted notice via publication in accordance with Order I Rule 8 CPC – Held, in a suit for partition, every party, be it the plaintiff or the defendant, has his own interest to secure – Order set aside, trial Court requested to direct the plaintiff to implead all the co-owners as party-defendants and thereafter, proceed with the matter.

(Para 4)

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 – Requirement of -- There is no requirement for framing of substantial questions of law.

(Para 10)

B. Registration Act, 1908 (16 of 1908), Section 17(1)(b), 49 – Transfer of immovable property – Compulsory registration – Requirement of -- Transfer of immovable property by way of sale can only be by a deed of conveyance / sale deed -- Without a stamped and registered deed of conveyance / sale deed, no right, title or interest in immovable property can be transferred -- Under the provisions of Section 17 of the Registration Act, 1908 where immovable property of the value of more than 100/- is conveyed, such sale could only be effected by a document of sale duly registered -- Section 17(1)(b) mandates that any document which has the effect of creating and taking away the rights in respect of an immovable property must be registered and Section 49 of the said Act imposes a bar on the admissibility of an unregistered document and deals with the documents that are required to be registered u/s 17.

(Para 14, 15)

C. Registration Act, 1908 (16 of 1908), Section 17(1)(b) – Transfer of immovable property by Pratigya Patra – Compulsory registration of – Requirement of -- Since, the ‘Pratigya Patras’ have the effect of creating and taking away the rights in respect of the suit property, they required registration under Section 17 of the Registration Act, 1908 -- Since both the ‘Pratigya Patras’ have not been registered, they cannot be taken into account to the extent of the transfer of the suit property.

(Para 15)

Code of Civil Procedure, 1908 (V of 1908), Order 41 Rule 1 -- Limitation Act, 1963 (36 of 1963), Section 5 -- Delay of 318 days in preferring appeal – Condonation of delay – Contended that out of the delay of 318 days, 126 days' delay satisfactorily explained, qua the remaining 192 days the delay had not been entirely explained, however, it had been caused due to the sanction and approval from the quarters concerned not being given in time on account of the long departmental procedure – Held, Courts should adopt a liberal, pragmatic and justice oriented approach and a litigant should not be made to suffer for the misdemeanour or inaction on the part of his counsel – Appellate Court dismissed the application for condonation of delay -- Impugned order set aside with costs of Rs.10,000/-.

(Para 1-7)

Code of Civil Procedure, 1908 (V of 1908), Order 26 Rule 9 -- Appointment of Local Commissioner – Suit for rendition of accounts of rent -- Dispute revolved around the exact location of the two shops in dispute – Held, burden of proof rests on the party which asserts the existence of some fact -- Therefore, it is the respective parties who would have to discharge the burden by leading cogent evidence in support of their assertion and pleaded case – Held, petitioner cannot be allowed to collect evidence through the Court by levelling allegations of aggressive behaviour of the respondents.

(Para 2-6)

Code of Civil Procedure, 1908 (V of 1908), Section 96(1), Order 23, Rule 3, Order 43 Rule 1A -- Compromise decree – Application for setting aside of decree – Fraud and collusion – Plea of -- Trial Court returned a finding that such application is not maintainable and such view was affirmed by the High Court – Held, appellants had the right to avail either the remedy of appeal in terms of Order 43 Rule 1A CPC or by way of an application before the court granting decree -- Therefore, the application filed by the appellants before the Court which granted the decree cannot be said to be without jurisdiction -- Order passed by the High Court set aside -- Matter remitted back to the High Court for fresh decision on the application and the same will be decided on merits in accordance with law.

(Para 3-6)

Code of Civil Procedure, 1908 (V of 1908), Section 24 -- Hindu Marriage Act, 1955 (25 of 1955), Section 13(i)(b) – Transfer of divorce petition from Panchkula to U.T. Chandigarh – Primary reasons for the wife that it was difficult for her and not convenient to attend the hearings in Panchkula on each and every date of hearing in view of the fact that her husband is a police constable – Panchkula and Chandigarh are adjoining to each other and alongwith Mohali are termed as tri-city and are interconnected and there is not much of a difference between the two what to talk of the distance which could be a cause for inconvenience and hardship for the wife -- Section 24 of the CPC cannot be so loosely construed so as to come to the aid of the wife on frivolous and flimsy reasons for getting the matter transferred -- Petition is nothing but a pure misuse of the process of the law and there being no merits stands dismissed.

(Para 1-4)

East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13 -- Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17 – Amendment of rent petition -- Ejectment petition at the very initial stage inasmuch as issues are yet to be framed -- Landlord-respondent has sought the eviction of the tenant-petitioner on the ground of personal bona fide necessity of himself and his wife and in the petition it has been mentioned that he has not vacated any such building in the urban area concerned without any sufficient cause after the commencement of the East Punjab Urban Rent Restriction Act, 1949 – Amendment sought is that wife has also not vacated any building in the urban area concern without sufficient cause after the commencement of the Act-III, 1949 in the urban area concern nor she is occupying any other building in the urban area concern – Amendment allowed by Rent Controller – Revision by tenant dismissed

(Para 5-9)

Code of Civil Procedure, 1908 (V of 1908), Order 18 Rule 3 -- Additional evidence – Rebuttal evidence -- Plaintiffs intended to examine HS as witness in their additional evidence which was dismissed – Plaintiffs then moved application to examine the same person in their rebuttal evidence -- Plaintiffs have left no stone unturned to fill up the lacunae in their affirmative evidence and now, under the garb of seeking permission to examine the said plaintiff as witness in their rebuttal evidence, they have made another attempt for this purpose which is not permissible.

(Para 7)

Code of Civil Procedure, 1908, (V of 1908), Order 39 Rule 4 – Constitution of India, Article 227 -- Ex-parte injunction – Setting aside of – Non-decisioning on application – Revisional jurisdiction -- Trial Court adjourning the application for setting aside ex-parte injunction order and extending the ad-interim order without deciding the application – Revision disposed of with directions to the trial Court to decide and dispose of the application under Order 39 Rule 4 CPC expeditiously preferably on the next date of hearing fixed before it, in accordance with law.

(Para 1-3)

A. Code of Civil Procedure, 1908 (V of 198), Order 7 Rule 11 – Limitation – Application for rejection of plaint – On a plain reading of the plaint it cannot be inferred or deduced that the suit is barred by limitation – On the face of it, the averments made in the plaint make out a case, within limitation, against the defendant-petitioners – Application dismissed.

(Para 8)

B. Code of Civil Procedure, 1908 (V of 198), Order 7 Rule 11 – Rejection of plaint – Scope of – Exercise of powers under Order VII Rule 11 CPC are drastic ones and a duty is cast on the Court to determine whether the plaint on a plain reading along with documents discloses a cause of action – No other document, be it a written statement or application for rejection of the plaint, can be looked into at this stage.

(Para 8)

Court-fees Act, 1870 (7 of 1970), Section 7 -- Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 – Suit for declaration – Challenge to sale deed alleging security document – Ad-valorem court fees – Requirement of -- Rejection of plaint – Application was allowed and it has been held that the plaintiff-petitioner is bound to pay ad-valorem court fee and granted one opportunity to make good the deficient court fee and if on the given date he would not do so then the plaint shall be rejected – Held, plaintiff-petitioner is the executant of the sale deed -- It is also the admitted fact that the sale deed bears his signatures and is a registered document – Argument that since the plaintiff-petitioner is in possession of the property and, hence, it is merely a decree of declaration and ad-valorem court fee is not to be affixed, is wholly untenable in law.

(Para 7, 8)

A. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 13, 13-A (Haryana) -- Shamilat deh/ Gram Panchayat land – Title dispute – Jurisdiction of civil Court -- Jurisdiction to decide any dispute as to whether any right, title or interest in any land or immovable property vests in the Gram Panchayat or not, would exclusively lie with the Collector, to the exclusion of the Civil Court.

(Para 9)

B. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 13, 13-A (Haryana) -- Shamilat deh/ Gram Panchayat land – Title dispute – Suit for injunction -- Relief claimed in the civil suit involves the adjudication of rights of the parties over the suit property, hence, the jurisdiction of the Civil Court over the matter would, therefore, be barred u/s  13 of the Act.

(Para 10)

C. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 13-A(1)(2) (Haryana) -- Shamilat deh/ Gram Panchayat land -- Injunction – Power of Collector – Contention that there was no alternative remedy available to plaintiffs for restraining the defendants, is devoid of any merit -- Section 13-A(2) of the Act provides for deciding the suits under Section 13-A(1) in the same manner, as is provided for, in the Code of Civil Procedure (CPC) -- Hence, the Collector also does have all such incidental powers to decide the suit effectively and also has the powers to grant injunction.

(Para 11)

D. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 – Rejection of plaint – Power of – Nature of – Stage of -- Trial Court erred in observing that since the evidence had commenced, an application under Order 7 Rule 11 of CPC was not maintainable -- Powers of the Court conferred under Order 7 Rule 11 of CPC are mandatory in nature and can be exercised at any stage of the suit, but before the conclusion of the trial.

(Para 13)

Motor Vehicles Act, 1988 (59 of 1988), Section 166 – Code of Civil Procedure, 1908 (V of 1908), Order 26, Rule 1, 4 -- Compensation in motor vehicle accident case – Appointment of Local Commissioner for recording statement of eye-witness to accident – Report of the Process Server that the said witness is unwell and is undergoing dialysis -- No reason to disbelieve the report -- Petitioners cannot be expected to have the medical history of an eye-witness of the accident – Tribunal directed to appoint a Local Commissioner to record the statement of the said eye-witness.

(Para 6)

A. Code of Civil Procedure, 1908 (V of 1908), Order 21 Rule 97, Section 151 -- Decree for permanent injunction – Police help for enforcement – Right of – Objection as to co-sharer and availability of remedy for partition – Once the suit for permanent injunction stood decreed the Executing Court could not render the said decree nugatory by holding that the petitioner ought to file a suit for partition -- A perusal of the judgement passed by the Trial Court while decreeing the suit for permanent injunction shows that at no point was a defence raised by respondent no.1 that he is a co-sharer in the suit land – Executing Court held that respondent no.1 is a co-sharer in the suit property and, hence, the only remedy with the petitioner/decree-holder would be to file for partition and dismissed the application – Held, Executing Court permitted the respondent no.1 to set-up a case beyond that pleaded by him in the suit itself – Impugned order is illegal and suffers from jurisdictional errors -- Revision allowed -- Impugned order set aside, application for providing police help for enforcement of the judgment and decree allowed and the objections filed by the respondent are dismissed.

(Para 1, 12-19)

B. Code of Civil Procedure, 1908 (V of 1908), Order 21 Rule 97, Section 151 -- Decree for permanent injunction – Police help for enforcement – Additional documents in Execution – Reliance upon – Legality of -- Executing Court relied upon certain revenue documents to non-suit the petitioner -- However, these revenue documents were not part of any evidence and were merely produced by respondent no.1 -- Without any issues having been framed and evidence being led, the Executing Court could not accept any document merely produced by any party -- Procedure adopted by the Executing Court cannot be accepted -- Procedure adopted by the Executing Court cannot be accepted.

(Para 15)

Code of Civil Procedure, 1908 (V of 1908), Order 9 Rule13 – Ex-parte judgment and decree – Setting aside of – Entire decretal amount deposited by the appellants to show their bonafide, bank is secured -- If the appellants are given one additional opportunity to defend the suit it will be in the fitness of things and meet the ends of justice -- Exparte decree quashed and set aside, original suit restored -- Appellants-original defendants to file written statements within a period of four weeks from the first appearance -- It will be open for the respondent-Bank/original-plaintiff to withdraw the same and keep it in an interest bearing fixed deposit subject to the ultimate outcome of the suit.

(Para 3-4.2)

Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 10 -- Civil suit for recovery – Application by defendant for impleadment of new defendant -- Necessary party -- Privity of contract – Effect of -- Proposed defendant was not a party to the transaction between the petitioners and respondent No.1-plaintiff -- Petitioners were to deliver the said goods of respondent No.1-plaintiff to proforma respondents No.2 and 3 and they are stated to have engaged the proposed defendant No.5 to transport the same -- Thus, there was no privity of contract between respondent No.1-plaintiff and the said proposed defendant – Held, proposed defendant Company cannot be construed to be a necessary party for proper and effective decision -- Plaintiff enjoys the status of dominus litis and has every right to pursue his claim against anyone he thinks fit – Application dismissed by Trial Court – Revision against dismissed.

(Para 1, 5, 6)

East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13B -- Punjab Rent Act, 1995 (13 of 2012), Section 24 -- Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17 -- NRI landlord -- Ejectment petition under 1949 Act -- Amendment seeking deletion of the provisions “u/s 13-B of the East Punjab Urban Rent Restriction Act, 1949” and to replace it with the words “u/s 24(3) of the Punjab Rent Act, 1995” wherever it was so mentioned and further to add the words that the petitioner has since then returned to India permanently – Rent controller allowed the amendment – Court below considering that the plea of tenant whether the landlord has come permanently and settled in India or not, is subject to the decision of the Court on merits after evidence – Order under assail needs to be upheld.

(Para 2-8)

Code of Civil Procedure, 1908 (V of 1908), Order 23 Rule 1, Proviso – Suit challenging the will – Suit permitted to withdraw with liberty to file a fresh without any application and without recording any reason – Held, a suit, after its institution, can be permitted to be withdrawn in accordance with the Order 23 Rule 1 CPC – Plaintiff was required to establish that the suit suffers from a formal defect or there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the same subject matter -- Court, while passing the impugned order, did not examine the proviso of Order 23 Rule 1 CPC -- Petition allowed and the order under challenge set aside.

(Para 2-4)

Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 11, 13 – Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11,  Section 9 – Common land -- Title dispute – Jurisdiction of Civil court -- Plaint rejected as the plaintiffs sought a decree of declaration that the various orders passed by the authorities while deciding the suit u/s 11 of the 1961 and other orders are illegal, null and void -- Section 13 of the 1961 Act specifically bars the jurisdiction of the Civil Court with respect to the correctness of the orders passed by the authorities nominated under the 1961 Act – No ground to interfere is made out.

(Para 1, 2)

A. Code of Civil Procedure, 1908 (V of 1908), Order 8 Rule 1 – Delay in written statement – Condonation of delay -- Provision is directory in nature, however, the Courts must exercise its discretion to condone the delay, if any, in filing of written statements after exercising due circumspection and also should nip any attempts which may be discernible to unduly prolong a suit/case.

(Para 4)

B. Code of Civil Procedure, 1908 (V of 1908), Order 8 Rule 1 – Unexplained delay in written statement – Defence struck off – Challenged in revision -- Defendant entered appearance through his counsel on 23.01.2017 -- Petitioner-defendant was granted repeated opportunities to file his written statement including a last opportunity which was given on 21.09.2017 -- Defence was ordered to be struck off -- No cogent reason shown for failing to file written statement within stipulated time period even though the Court below granted him numerous opportunities – Nothing on record to suggest that the petitioner-defendant had been prevented from filing his written statement for reasons beyond his control – High Court does not find any illegality much less perversity in the impugned order.

(Para 4-7)