A. Hindu law -- Ancestral property -- Both the Courts below concurrently held that there is no evidence on record to establish ancestor property – Pedigree table in itself is no evidence of ancestry, nor can it be the basis to decide ancestral nature of property which can only be established by independent proof including the revenue records/ jamabandis -- It has to be proved beyond doubt that the property was undivided property of a Hindu family of four generations -- There is no such evidence on record -- No ground to interfere with the concurrent findings of the Courts below on this issue.

(Para 8)

B. Evidence law -- Attorney appeared as witness – Original attorney -- Plaintiff himself not appeared to testify in support of the plaint – Power of attorney holder/PW-4 failed to produce the original power of attorney on record -- Opportunities afforded, still  could not bring the original on record -- It was, therefore, held that photocopy of the power of attorney cannot be read in evidence -- As the plaintiff himself has not deposed in the case, therefore, no exception can be taken to the adverse inference drawn against him on this account.

(Para 9)

Code of Civil Procedure, 1908 (V of 1908), Section 24 -- Hindu Marriage Act, 1955 (25 of 1955), Section 13 – Transfer of Divorce petition -- Kapurthala to Fazilka -- It is well settled that 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 – Case transferred.

(Para 6, 7)

Specific Relief Act, 1963 (47 of 1963), Section 36, 37 – Code of Civil Procedure, 1908 (V of 1908), Section 9 -- Injunction simplicitor – Maintainability of -- Ratio of the judgment passed in Anathula Sudhakar’s case, Civil Appeal No.6191 of 2001, dated 25.03.2008 passed by the Supreme Court is that the relief of injunction simplicitor cannot be sought by a person whose title over the property is in dispute -- Plaintiffs’ title over the suit property was not in dispute, though the defendants made a deplorable attempt to dispute the same by concealing relevant facts from the Court – Therefore, the defendants cannot raise any plea based upon the judgment.

(Para 10)

A. Indian Succession Act, 1925 (39 of 1925), Section 63 -- Indian Evidence Act, 1872 (1 of 1872), Section 68 -- Proof of Will – Suspicious circumstances – Burden to prove -- Mere proving of a Will does not establish the same to be valid in law, in case the same is surrounded by suspicious circumstances -- The beneficiary is not only required to discharge his burden to prove the Will; but is also to satisfy the conscious of the Court that there are no suspicious circumstances or if there are any, to explain them is also on the propounder of the Will -- It is only when such responsibility is discharged by the beneficiary, the Court can accept the Will to be genuine.

(Para 7)

B. Indian Succession Act, 1925 (39 of 1925), Section 63 -- Indian Evidence Act, 1872 (1 of 1872), Section 68 -- Will – Suspicious circumstances -- It is settled proposition of law that mere exclusion or dis-heritance of a natural heir while executing a Will is not to be taken as a suspicious circumstance as the very purpose of execution of a Will is to divert from the line of natural succession -- However, it has also been settled and expounded upon by the Hon’ble Supreme Court in catena of judgments that any unnatural, improbable or unfair disposition made in the Will has to be considered as a suspicious circumstance.

(Para 9)

C. Indian Succession Act, 1925 (39 of 1925), Section 63 -- Indian Evidence Act, 1872 (1 of 1872), Section 68 -- Will – Suspicious circumstances -- Respondent happened to be the legally wedded wife of deceased, neither the testator has recorded the factum of his marriage with the respondent in the Will; nor even her name has been mentioned therein -- More than that, no provision has even been made for her maintenance particularly under the circumstances wherein it has been established/ proved on record that the relationship between the husband and wife remained amicable throughout – From cumulative effect of the aforesaid facts and circumstances, one can easily see through that the testator’s mind was not free at the time of making disposition of Will.

(Para 9-14)

Code of Civil Procedure, 1908 (V of 1908), Order 22 Rule 2 – Death of plaintiff – LR’s (Legal Representatives) impleaded in appeal against interlocutory order – Failure to get impleaded LR’s in suit – Effect of –Original plaintiff-appellant’s father passed away during the pendency of the appeal, the legal representative was brought on record by the order of the Court in the appeal -- Such impleadment will enure towards the proceedings in the suit itself -- Failure to get the appellant impleaded in the suit itself would not be fatal to the continued prosecution of the suit -- Suit, therefore, must be proceeded with and it cannot be extinguished by virtue of the abatement.

(Para 11, 12)

A. Negotiable Instruments Act, 1881 (26 of 1881), Section 138 -- Code of Civil Procedure, 1908 (V of 1908), Section 60(1)(i), Order 21 -- Award of Lok Adalat in complaint u/s 138 NI Act – Execution of award/ decree -- Attachment of salary -- Salary of the JD-respondent cannot be attached for a period of more than 24 months where such attachment is made in execution of one and the same decree -- Argument of DH-petitioner that the salary should be continued to be attached cannot be accepted in view of the clear provisions of Section 60(1)(i) of CPC.

(Para 7)

B. Negotiable Instruments Act, 1881 (26 of 1881), Section 138 -- Code of Civil Procedure, 1908 (V of 1908), Section 55 Order 21 Rule 30  -- Award of Lok Adalat in complaint u/s 138 NI Act – Execution of award/ decree – Arrest of Judgment Debtor/ JD -- Argument that the JD-respondent ought to be arrested for non-compliance of the order passed by the Permanent Lok Adalat cannot be accepted in view of the fact that arrest would be a measure of last resort and in the case, some property of the JD-respondent already stands attached and the Executing Court has directed the JD-respondent to file an affidavit stating all the particulars regarding his moveable and immoveable properties.

(Para 7)

C. Negotiable Instruments Act, 1881 (26 of 1881), Section 138 -- Code of Civil Procedure, 1908 (V of 1908), Order 21 – Cheque bounce case -- Award of Lok Adalat in complaint u/s 138 NI Act – Execution of award -- Award passed by the Lok Adalat would be deemed to be a decree of the Civil Court executable by the Civil Court -- There can be no quarrel with the said proposition of law.

(Para 10)

Code of Civil Procedure, 1908 (V of 1908), Section 25 – Hindu Marriage Act, 1955 (25 of 1955), Section 9 -- Transfer of restitution of conjugal rights case – Bihar to Maharashtra – Petitioner/ wife is unemployed and is dependent on her parents, coupled with the fact that three cases are already pending against the respondent(s) in the Courts at Nagpur, Maharashtra, Matrimonial Case pending before the Family Court, Bhagalpur, Bihar is ordered to be transferred to a Family/Competent Court at Nagpur, Maharashtra.

(Para 1-4)

A. Code of Civil Procedure, 1908 (V of 1908), Order 20 Rule 12 – Mesne profit -- There is no provision for assessment of mesne profits in a suit for possession without an enquiry in terms of the Order XX Rule 12 of CPC -- No such enquiry has either been conducted by trial Court – Held, no justification for the lower appellate Court to fix the mesne profits and direct the petitioner to pay the amount along with arrears.

(Para 10)

B. Code of Civil Procedure, 1908 (V of 1908), Order 20 Rule 12 – Mesne profit -- Suit property was never rented out to the petitioner, nor had its rent been assessed -- Therefore, the concept of depriving the landlord of rent during pendency of appeal does not apply -- Respondent cannot claim mesne profits based upon the law laid down by the Supreme Court in the case of M/s Atma Ram Properties (P) Ltd., 2005 (1) RCR (Civil) 212.

(Para 11)

A. Code of Civil Procedure, 1908 (V of 1908), Order 12 Rule 6 – Admission by parties – Withdrawal of admission -- Merely because the trial Court has not proceeded to pass any order or give any judgment having regard to the admission made, it affords no right to the party concerned to withdraw the admission -- Provision does not, either explicitly by necessary implication, permit the party making the admission to withdraw the same; it only enables the Court to make an order or give a judgment having regard to it.

(Para 7)

B. Code of Civil Procedure, 1908 (V of 1908), Order 12 Rule 6 -- Statement of admission -- Withdrawal of statement -- Once a statement has been made on solemn affirmation, it cannot be allowed to be withdrawn.

(Para 7, 8)

A. East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13 – Indian Evidence Act, 1872 (1 of 1872), Section 116 -- Arrear of rent – Provisional assessment of rent – Disputing Landlord’s ownership – Provisional rent was tendered without reserving any right to dispute ownership of the landlord – At the time of assessment of provisional rent also, no dispute about the ownership was raised by the tenants – Besides, after attornment they/tenants are estopped from disputing ownership of the landlord.

(Para 7)

B. East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13 -- Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17, Order 14 Rule 5, Order 41 Rule 25 -- Additional issue – Disputing Landlord’ ownership -- Rent Controller declined the tenants’ application to raise additional issues disputing ownership of the landlord  -- Subsequently, by two orders, the tenants were again not permitted to amend their written statement to dispute the ownership -- Said orders have attained finality – No occasion for the tenants to agitate the issue again before High Court – It is an abuse of the process of law – Orders were passed by the Rent Controller based upon the reasoning given in the orders, declined to frame the Issues -- It cannot by any stretch of imagination, therefore, be said that the Controller has “omitted to frame or try any issue, or to determine any question of fact” --  Therefore, provisions of Order XLI Rule 25 CPC are not applicable – Held, tenants could not invoke by filing the application, beseeching the Appellate Authority to frame additional issues disputing ownership of the landlord and refer the same to the Rent Controller for recording evidence thereupon -- Nor could the tenant file the other application Order XIV Rule 5 CPC for framing of issues -- Revision dismissed with costs of Rs.50,000/-.

(Para 9-10)

Code of Civil Procedure, 1908 (V of 1908), Order 9 Rule 13, Order 22 Rule 2-B – Death of defendant  -- Legal heirs of defendant – Duty of Advocate -- It is the responsibility of the legal heirs of the defendant in a pending suit, to come on record -- An Advocate is only required to inform about the death of a party to the court.

(Para 1)

Code of Civil Procedure, 1908 (V of 1908), Order 21, Rule 32 -- Execution of injunction decree – Delivery of possession -- Attachment of property – Civil imprisonment -- “Whether, while passing an order of delivery of possession in execution of an injunction decree, the Executing Court is required to record a finding that the Judgement Debtor has had an opportunity to obey the decree and he has wilfully failed to obey it?

-- Execution petition is maintainable only if the Court comes to a conclusion that the judgment debtor has had an opportunity of obeying the decree but has wilfully failed to obey it -- Both the parts of the sentence in Order XXI Rule 32 CPC are joined by the word 'and' -- Thus, both the requirements are mandatory and co-existent.

-- Under Order XXI Rule 32 CPC, the Court not only has the power to order delivery of possession of the property but also power to attach the property of the judgment debtor and send him to civil imprisonment -- This is extra ordinary power given to the Executing court to get the decrees passed by the Courts implemented -- However, such exceptional powers should be exercised with great responsibility only after ensuring that there is material on the record which proves that the decree holder has shown the co-existence of the twin conditions laid down in Order XXI Rule 32 CPC.

(Para 1, 4, 7)

Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 11, 13 -- Gram Panchayat Deh – Shamilat deh – Ownership dispute – Jurisdiction of civil court – Rejection of plaint -- Suit to declare the plaintiff owner in possession by way of adverse possession – Civil Court refused to reject the plaint on the ground that the property is not a shamilat deh land – Held, the question as to whether the suit property is or is not shamilat deh is required to be decided by the Collector and the jurisdiction of the Civil Court has been specifically excluded -- Plaintiff claims that he has perfected his title by way of adverse possession -- Such a question exclusively falls within the domain of the Collector empowered under Section 11 of the 1961 Act -- Revision petition allowed, order passed by the trial Court set aside being unsustainable -- Plaint shall stand rejected -- However, the plaintiff shall have the liberty to file proceedings under Section 11 of the 1961 Act.

(Para 3-9)

A. Code of Civil Procedure, 1908 (V of 1908), Order 23, Rule 1 -- Withdrawal of suit -- Fresh suit for partition – Necessity of permission to file fresh suit -- Even in the absence of permission to file a fresh suit, a co-owner has a right to file a suit for partition even if his first suit has been dismissed on the ground that he did not implead all the co-owners as parties to the suit – It is not a decision on merits of the case -- In such circumstances, the permission granted is superfluous/ unnecessary.

(Para 6)

B. Code of Civil Procedure, 1908 (V of 1908), Order 23, Rule 1 -- Withdrawal of suit with liberty to file fresh – Power of Appellate Court -- Order XXIII Rule 1 CPC enables the Court to permit the party to withdraw his suit with liberty to file a fresh one on the same cause of action -- Sub Rule 3 of Rule 1 of Order XXIII CPC envisages two different reasons for permitting the plaintiff to file a fresh suit.

-- Under clause (a), the Court can grant permission if it is satisfied that a suit must fail by reason or some formal defects.

-- Under clause (b), permission can be granted if the Court comes to a conclusion that there are sufficient grounds for allowing the plaintiff to institute a fresh suit based upon the subject matter of the original suit or part of the claim.

Such power can be exercised any time after the institution of the suit -- There is no provision that such application is only maintainable before the trial Court -- First Appellate Court is a Court of fact and is empowered to decide such an application, if filed.

(Para 7)

Code of Civil Procedure, 1908 (V of 1908), Section 80 -- Notice u/s 80 CPC – Suit against Government/ Public officer -- No claim has been made against the any public officer in the suit – Object of giving such a notice is to afford an opportunity to the Government/ public officer to reconsider the matter and to settle the claim -- The word “against” shall necessarily mean “a claim against” the Public Officer – When a suit is filed against public officer without any relief being claimed, no notice shall be required and even if the public officers are made as proforma defendants but relief is claimed, notice u/s 80 shall be required.

(Para 8-11)

Commercial Courts Act, 2015 (4 of 2016), Section 3, 10, 15, 21 – Arbitration and Conciliation Act, 1996 (26 of 1996), Section 2(1)(e), 9, 14, 34 – Arbitration matters in Commercial court -- Whether in exercise of powers u/s 3 of the Commercial Courts Act, 2015, the State Government can confer jurisdiction to hear applications u/s 9, 14 and 34 of the Arbitration and Conciliation Act, 1996, upon Commercial Courts which are subordinate to the rank of the Principal Civil Judge in the District, contrary to the provisions of Section 2(1)(e) of the Arbitration Act? – Held, the Act, 2015 is the Act later in time and therefore when the Act, 2015 has been enacted, more particularly Sections 3 & 10, there was already a provision contained in Section 2(1)(e) of the Act, 1996 -- As per settled position of law, it is to be presumed that while enacting the subsequent law, the legislature is conscious of the provisions of the Act prior in time and therefore the later Act shall prevail -- There cannot be two fora with respect to different commercial disputes.

(Para 10,11)

A. Code of Civil Procedure, 1908 (V of 1908), Section 9 -- Multiple cause of action – Civil suit – Limitation -- Suit can be filed within three years from the accrual of the initial cause of action, however, any successive violation of rights after institution of the suit would not give fresh cause of action to file a suit -- If the suit is based on multiple causes of action, the period of limitation would commence from the date when the right to sue first accrued.

(Para 13)

B. East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (50 of 1948), Section 44 -- Code of Civil Procedure, 1908 (V of 1908), Section 9 – Consolidation proceedings -- Jurisdiction of civil court -- Consolidation Authorities allotted 15 kanal 5 marla land of lesser value to the defendant as per his entitlement in lieu of 7 kanal 12 marla of standard land during consolidation -- Plaintiff till date has not challenged the order of Consolidation Authorities -- In case, the plaintiff was aggrieved by any such order, he should have challenged it before the authorities empowered under the Consolidation Act, which admittedly was not done -- Jurisdiction of the Civil Court barred -- Civil Court cannot derive jurisdiction beyond the statute by merely giving it a colour for a suit of declaration.

(Para 15)

C. Haryana Land Revenue Act, 1887 (XVII of 1887), Section 34, 44 -- Code of Civil Procedure, 1908 (V of 1908), Section 9 -- Mutation – Jurisdiction of civil Court -- Mutation is only entered to update the revenue records and it not being a document of title does not confer any right on any person whatsoever -- Correctness of mutation cannot be challenged by plaintiff in a civil suit.

(Para 16)

D. Code of Civil Procedure, 1908 (V of 1908), Section 9 -- Specific Relief Act, 1963 (47 of 1963), Section 34 -- Maintainability of suit for simplicitor declaration -- If the plaintiff is not in possession of the suit land, he cannot file a simpliciter suit for declaration and injunction without claiming possession thereof.

(Para 20)

Code of Civil Procedure, 1908 (V of 1908), Order 22 Rule 2 -- Abatement of suit – Death of one of plaintiff -- Where there are more than one plaintiffs, the entire suit cannot be held to be abated on the death of one of the plaintiffs.

(Para 9)

Arbitration and Conciliation Act, 1996 (26 of 1996), Section 9(ii)(e) -- Code of Civil Procedure, 1908 (V of 1908), Order 38 Rule 5 – Interim order by Arbitrator to deposit bank guarantee -- Commercial Court passed the order u/s 9(ii)(e) of the Arbitration Act, 1996 to secure the amount in dispute, confirmed by High Court -- Held, unless and until the pre-conditions under Order XXXVIII Rule 5 of the CPC are satisfied and unless there are specific allegations with cogent material and unless prima-facie the Court is satisfied that the appellant is likely to defeat the decree/award that may be passed by the arbitrator by disposing of the properties and/or in any other manner, the Commercial Court could not have passed such an order in exercise of powers u/s 9 of the Act, 1996 -- There are very serious disputes on the amount claimed by the rival parties, which are to be adjudicated upon in the proceedings before the arbitral tribunal – Impugned judgment and order, directing the appellant to deposit the amount of performance bank guarantees quashed and set aside -- However, direction given that appellant shall furnish an undertaking backed by the Resolution of the appellant’s company before the Commercial Court that in case any award is passed by the learned Arbitrator in arbitration proceedings, the same shall be paid/honoured by the appellant subject to the challenge before the higher forum.

(Para 4, 5)

Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 (d) – Suit for cancellation of sale deed -- Issue of limitation – Rejection of plaint -- Suits filed after a period of 10 years from the date of execution of the registered sale deeds -- One suit was filed by the minor, which was filed in the year 2006, in which some of the plaintiffs herein were also party to the said suit and in the said suit, there was a specific reference to the Sale Deed dated 19.09.2005 and the said suit came to be dismissed in the year 2014 and immediately thereafter the present suits have been filed -- Thus, from the averments in the plaint and the bundle of facts stated in the plaint, Court opined that by clever drafting, the plaintiffs tried to bring the suits within the period of limitation, which otherwise are barred by limitation -- Respective plaints are required to be rejected in exercise of powers under Order VII Rule 11 CPC.

(Para 2, 7.9)

A. Code of Civil Procedure, 1908 (V of 1908), Order 14, Rule 2(1)(2)(b) -- Issue of limitation – Preliminary issue – Issue of limitation can be framed and determined as a preliminary issue in a case where it can be decided on admitted facts -- Provisions under Order XIV Rule 2(1) and Rule 2(2)(b) permit to deal with and dispose of a suit in accordance with the decision on the preliminary issue.

(Para 18, 26)

B. Limitation Act, 1963 (36 of 1963), Article 136 – Execution of decree – Limitation -- Article 136 of Limitation Act applies only when an application for execution of any decree (other than a decree granting a mandatory injunction) or order of any Civil Court is to be filed.

(Para 20)

C. Pleadings – Misquoting/ not mentioning of provision -- Misquoting or non-quoting of a provision by itself will not make an order bad so long as the relevant enabling provision is in existence and it was correctly applied though without specifically mentioning it.

(Para 25)

A. Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 9 -- Necessary party -- Necessary party is a person in whose absence no effective decree could be passed by the Court -- if a “necessary party” is not impleaded, the suit itself is liable to be dismissed.

(Para 9)

B. Constitution of India, Article 226 – Cancellation of Fair Price Dealer – Subsequent allottee – Writ petition -- Necessary party -- Even if a subsequent allottee does not have an independent right, he/she still has a right to be heard and to make submissions defending the order of cancellation -- Appellant had been selected by the Tehsil Level Selection Committee in its meeting and thereafter, he was appointed as Fair Price Dealer vide order of the Competent Authority, on a regular basis – Held, appellant was a necessary party to the proceedings before the High Court.

(Para 13-15)

C. Constitution of India, Article 226 – Cancellation of Fair Price Dealer – Concealment of facts – High Court allowed the writ -- Respondent No. 9/ writ petitioner was very well aware that during the pendency of the proceedings, the appellant was appointed as a Fair Price Dealer -- Respondent No.9 has not only suppressed the fact about the subsequent allotment of the fair price shop to the appellant but has also tried to mislead the High Court that the fair price shop of respondent No.9 was attached to another fair price shop holder -- Impugned order of the High Court quashed and set aside – Order cancelling the Fair Price Shop licence of respondent No. 9 and order dismissing the appeal of respondent No.9 affirmed.

(Para 16-22)

A. Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 9 -- Necessary party – Twin test -- Necessary party is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court -- If a “necessary party” is not impleaded, the suit itself is liable to be dismissed -- For being a necessary party, the twin test has to be satisfied -- First one is that there must be a right to some relief against such party in respect of the controversies involved in the proceedings -- Second one is that no effective decree can be passed in the absence of such a party.

(Para 18-20)

B. Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 9 -- Necessary party – Since the suit property was jointly owned by the defendant along with his wife and three sons, an effective decree could not have been passed affecting the rights of the defendant’s wife and three sons without impleading them.

(Para 19)

Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 – Election matter -- Pronouncement of order -- Rejection of plaint -- Application under O7 R 11 CPC allowed – Judgment not available --  Even after more than three months from pronouncement of the order by the High Court, the reasons are not forthcoming – Order passed by the High Court in disposal of the application under Order VII Rule 11 CPC, deserves to be disapproved only for the reason that even until this date, the reasons for the said order are not available with either of the parties nor are available on the website of the High Court nor the copy of the order has been supplied despite the parties having made the applications seeking certified copy of the order.

(Para 19-22)

Adjustment of equities between the parties -- Relief inspite dismissal of suit -- A decision based on adjustment of equities between the parties will be far more beneficial than rendering a decision based on inferences drawn on contested facts and pure legalities -- Orders passed by the Trial Court, High Court as well as Supreme Court to keep aside eight acres of land was only to secure the probable share of the Appellants, in the event they succeeded -- Though, the Appellants have lost in the suit as well as in the appeal, a direction can be given for granting a portion of the said land to the Appellants so that their claim to some extent stands satisfied.  – Both contesting the case for more than two decades -- Such an order could build and revive the relationship between the close members of the family -- Appellants held entitled to three acres, out of the eight acres of land set aside under the orders passed by the Trial Court, the High Court and also by Supreme Court.

(Para 14-18)

A. Code of Civil Procedure, 1908 (V of 1908), Section 100 – Regular Second Appeal -- Substantial question of law -- Proper test for determining whether a question of law raised in the case is substantial would be, whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so, whether it is either an open question in the sense that it is not finally settled by this Court -- If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or the question raised is palpably absurd, the question would not be a substantial question of law.

(Para 31)

B. Code of Civil Procedure, 1908 (V of 1908), Section 100 – Regular Second Appeal -- Substantial question of law -- Question of law -- To be ‘substantial’, a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned -- To be a question of law "involving in the case" there must be first, a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case -- An entirely new point raised for the first time before the  High Court is not a question involved in the case unless it goes to the root of the matter -- It depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case or not, the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.

(Para 32)

C. Code of Civil Procedure, 1908 (V of 1908), Section 100 – Regular Second Appeal -- Substantial question of law -- Question of law -- Principles relating to Section 100 of the CPC may be summarised:

(i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.

(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents and involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.

(iii) The general rule is that the High Court will not interfere with findings of facts arrived at by the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.

(Para 33)

D. Code of Civil Procedure, 1908 (V of 1908), Section 96, 100 – First Appeal -- Regular Second Appeal -- Respondents in their Second Appeal before the High Court did not advert to any material evidence that had been ignored by the First Appellate Court -- Respondents also could not show that any wrong inference had been drawn by the First Appellate Court from proved facts by applying the law erroneously – Held, it cannot be said that the First Appellate Court acted on no evidence.

(Para 34)

E. Code of Civil Procedure, 1908 (V of 1908), Section 100 – Regular Second Appeal -- Substantial question of law -- Right of appeal is not automatic -- Right of appeal is conferred by statute -- When statute confers a limited right of appeal restricted only to cases which involve substantial questions of law, it is not open to Supreme Court to sit in appeal over the factual findings arrived at by the First Appellate Court.

(Para 36)

A. Code of Civil Procedure, 1908 (V of 1908), Order 17, Rule 1, 2 -- Suit for declaration, possession and permanent injunction by State – Examination of State witness -- Forest Range Officer PW-1 who had given his examination-in-chief was supposed to appear for cross-examination, he did not appear on the date -- There could have been many reasons for his non-appearance both genuine and ingenuine -- In a state machinery, it takes reasonable time to nominate and arrange for another officer to come and give evidence in court -- Trial Court ought to have given adequate opportunity to the State -- Time for producing a witness to prove the plaint averments as also other supporting material ought to have been extended in the interest of justice -- Matter remanded to the Trial Court for afresh decision after affording due opportunity of leading evidence.

(Para 17, 20)

B. Code of Civil Procedure, 1908 (V of 1908), Order 41 Rule 27 -- Additional evidence in appeal -- State wanted to place on record documents relating to the survey conducted on the strength of the Order of the High Court dated 13.06.2012 passed in criminal petitions u/s 482 CrPC quashing the FIRs -- Exercise having been undertaken after the judgment of the Trial Court dated 08.03.2012 the survey report and the other material related to it ought to have been allowed by the High Court to be admitted as evidence as it was relevant for the proper adjudication for the issues arising in the suit, of course with the rider that the respondent would have a right of rebuttal -- High Court in erred in rejecting the IA -- Impugned judgment of the High Court and Trial Court set aside – Matter remanded to the Trial Court for afresh decision after affording due opportunity of leading evidence.

(Para 18, 19)

Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 -- Haryana Co-operative Societies Act, 1984 (22 of 1984), Section 102, 128 – Jurisdiction of civil Court – Rejection of plaint -- Question of law is whether in view of Section 102 read with Section 128 of the Haryana Cooperative Societies  Act, 1984, the jurisdiction of the Civil Court is barred? – Prayer is to grant a decree of mandatory injunction directing defendant No.1 to hand over the complete documents with a consequential relief of declaration that conveyance deed in favour of defendants No.1 to 3 is illegal and liable to be set aside.

-- Though the trial Court allowed the application, however, the lower appellate Court recorded a finding that since in the civil suit, there is pleading of fraud with regard to execution of the conveyance deed, on the basis of certain documents, which were prepared by the defendants in collusion with each other, therefore, the Civil Court will have jurisdiction and the plaint is not liable to be rejected under Order 7 Rule 11 CPC.

-- The lower appellate Court also recorded a finding that Section 102 read with Sections 128 & 130 of the Act deals with reference of the dispute to an Arbitrator and regarding bar of jurisdiction of the Courts, however, nothing is stated under Section 128 of the Act that jurisdiction of the Civil Court will be barred, if a suit is filed on the basis of fraud.

-- At the stage of deciding the application under Order 7 Rule 11 CPC, the Court is primarily to see the pleadings in the plaint or the documents attached with the plaint.

In the plaint, it is specifically pleaded that conveyance deed has been executed in favour of defendant No.2 by playing fraud -- Therefore, question of law decided in favour of respondent No.1-plaintiff -- No illegality or infirmity with the impugned judgment and decree passed by the lower appellate Court.

(Para 2-8)

Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 10 – Subsequent purchaser as party-defendant -- Suit for declaration, permanent injunction and recovery of possession -- As per the settled position of law, the plaintiffs are the domius litis -- Unless the court suo motu directs to join any other person not party to the suit for effective decree and/or for proper adjudication as per Order 1 Rule 10 CPC, nobody can be permitted to be impleaded as defendants against the wish of the plaintiffs -- Appeal allowed, Impugned judgment and order passed by the High Court and that of the trial Court allowing application under Order 1 Rule 10 CPC quashed and set aside.

(Para 5-8)

East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13 – Code of Civil Procedure, 1908 (V of 1908), Section 11 – Eviction of tenant -- Personal necessity – Resjudicata -- Previous petition was for seeking eviction on account of the personal necessity qua the son of the petitioner, whereas in the present petition, which is filed after 07 years, personal necessity is pleaded on account of the fact that the petitioner himself has retired and has already shifted to Mohali for which he requires his house – Petitioner-tenant failed to prove that the present petition is barred by the principle of res judicata -- Eviction order upheld.

(Para 18,19)

A. Arbitration and Conciliation Act, 1996 (26 of 1996), Section 9, 36 – Code of Civil Procedure, 1908 (V of 1908), Order 38 Rule 5 -- Securing the amount -- Attachment before judgment – Absence of averment -- Section 9 of the Arbitration Act confers wide power on the Court to pass orders securing the amount in dispute in arbitration, whether before the commencement of the arbitral proceedings, during the arbitral proceedings or at any time after making of the arbitral award, but before its enforcement in accordance with Section 36 of the Arbitration Act – Court exercising power u/s 9 of the Arbitration Act should not withhold relief on the mere technicality of absence of averments, incorporating the grounds for attachment before judgment under Order 38 Rule 5 of the CPC.

(Para 49)

B. Arbitration and Conciliation Act, 1996 (26 of 1996), Section 9 – Code of Civil Procedure, 1908 (V of 1908), Order 38 Rule 5 -- Securing the amount – Interim relief -- Attachment before judgment – Proof of actual attempts to deal with, remove or dispose of the property with a view to defeat or delay the realisation of an impending Arbitral Award is not imperative for grant of relief u/s 9 of the Arbitration Act -- A strong possibility of diminution of assets would suffice.

(Para 50)

C. Arbitration and Conciliation Act, 1996 (26 of 1996), Section 9, 37 – Code of Civil Procedure, 1908 (V of 1908), Order 38 Rule 5 -- Securing the amount by interim relief -- Essar House Private directed to deposit an amount of Rs.35.5 crores with the Prothonotary and Senior Master of the High Court or, in the alternative, to furnish bank guarantee of any nationalised bank for the entire amount along with interest thereon – Prima facie, the refundable security deposit is not being released to Arcellor on the purported ground of a convoluted series of internal arrangements between group companies for diversion of the security deposits towards liquidation of alleged dues of Essar Steel to third parties -- No infirmity in the well-reasoned judgment and order of the Division Bench -- Appeals dismissed.

(Para 2, 51)

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, (54 of 2002), Section 17(4A), 34 -- Code of Civil Procedure, 1908 (V of 1908), Order VII Rule 11 – SARFAAESI proceedings – Lessee rights -- Rejection of plaint – Jurisdiction of civil Court – Once there is a specific amendment enabling the persons claiming tenancy or lease hold rights to file a petition before the Debt Recovery Tribunal, the Civil Court has erred in rejecting the application -- Even the period of lease has already expired -- Civil Court directed to return the plaint to the plaintiff with liberty to file a petition before the Debt Recovery Tribunal.

(Para 1-4)

Code of Civil Procedure, 1908 (V of 1908), Section 39(4) – Transfer of decree -- Respondent is a resident of Sri Ganga Nagar -- Since the respondent is residing beyond the territorial jurisdiction of the learned Tribunal, the award could not have been possibly executed by it -- Hence, the learned Tribunal rightly transferred the execution application to the District Judge at Sri Ganga Nagar for due execution of the award.

(Para 6)

Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 – Special Marriage Act, 1954 (43 of 1954), Section 28, 38 -- Hindu Minority and Guardianship Act, 1956 (32 of 1956), Section 6 -- Guardians and Wards Act, 1890 (8 of 1890), Section 25 -- Suit for custody of child -- Rejection of plaint – Consideration of pleading other than plaint – Permissibility of – Previously divorce by mutual consent between the parties – Voluntarily statement of father for giving the custody of the child to the mother -- Though it is well settled principle of law that for the purpose of deciding an application under Order VII Rule 11 CPC, the contents of the plaint/petition is to be seen, however it is a case of not deciding the rights of the parents but the custody of minor child, therefore welfare of the child should be the paramount consideration -- Circumstances from the date of birth of the child till date needs to be appreciated -- Respondent-husband has remedy to approach the said Court, which has passed the decree of divorce if any terms and condition were violated -- Petition u/s 25 of the Guardian and Wards Act held not maintainable and rejected, leaving the respondent-husband to avail alternative remedy, in accordance with law -- Application under Order VII Rule 11 C.P.C. allowed.

(Para 21-23)

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)