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)

Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 – Ad-valorem Court fees – Non-fixation of -- Rejection of plaint – Contention that plaintiff has claimed the quantified compensation/damages in the said Civil Suit and therefore, he was required to affix the requisite ad-valorem court-fee on the plaint accordingly whereas he has filed this Suit while affixing the court-fee of Rs.50/- only on the plaint and it being so, the impugned order is not legally sustainable and is liable to be set-aside – Defendant had no right to move the superior Courts by way of appeal or revision petition in the eventuality of the said question having been decided against him -- Revision petition deserves dismissal. Sri Rathnavarmaraja’s case 1961 AIR (SC) 1299 relied.

(Para 4, 5)

Constitution of India, Article 227 – Deficiency in ad-valorem court fee – Maintainability of revision -- Revision petition on behalf of defendants complaining deficiency in payment of the Court fee is not maintainable.

(Para 2)

East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13 – Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17 – Rent law – Eviction petition -- Amendment in pleadings -- Once the trial has commenced, the Court should not allow amendment in pleadings -- It is not the case of the petitioner that certain new facts came to his knowledge after the commencement of the trial -- All the facts which the petitioners are wanting to incorporate were well within their knowledge -- Moreover, the amendment in the plaint has been sought by the petitioners at a highly belated stage when the case is fixed for rebuttal evidence and arguments – Application dismissed – Revision against that order dismissed.

(Para 1, 10)

Constitution of India, Article 227 – Code of Civil Procedure, 1908 (V of 1908) Order 6 Rule 17, Section 151 – Amendment of plaint -- Plaintiff dispossessed from the suit land -- Application for amendment in the wake of intervening developments and circumstances -- By way of amendment seeking addition of cause of action which had been necessitated on account of the subsequent events – Held, court must allow all such amendments which may be necessary for the purpose of determining the real controversy between the parties – Merits of the case cannot be adjudicated upon while deciding an application under Order 6 Rule 17 of the CPC – Application for amendment allowed by Lower Court – Revision challenging the same dismissed.

(Para 1, 4, 5)

Constitution of India, Article 227 -- Code of Civil Procedure, 1908 (V of 1908), Order 5 Rules 9, 17, 18, 19, 21, 23 – Service of summons -- Territorial jurisdiction -- Defendant-petitioners were residing outside the territorial jurisdiction of the Court where the suit was instituted -- Service by way of registered post acknowledgement due directly by the Court where the suit was instituted cannot be deemed to be proper service -- Procedure adopted by the Trial Court was contrary to that laid down in Order 5 Rules 9 and 21 CPC -- Impugned order set aside, petition allowed.

(Para 2, 18, 19)

East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13 – Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 -- Application under Order VII Rule 11 CPC for rejection of the petition dismissed – Eviction order passed – Challenge to order passed in application – Maintainability of – Held, once, the final order has been passed in the eviction petition, the revision petition rendered infructuous.

(Para 1, 2)

Code of Civil Procedure, 1908 (V of 1908), Order 41 Rule 25 -- Framing of additional issue by lower Appellate court – Remand of entire case for deciding it afresh to Trial Court – Held, Lower Appellate Court without setting aside the findings recorded by the Trial Court could not have set aside the judgment and decree in its entirety -- Impugned order modified to the extent that the matter would be referred to the Trial Court only to the limited extent of taking additional evidence qua the freshly framed issue, if required, and to try the freshly framed issue -- Report shall thereafter be sent to the lower Appellate Court which shall decide the appeal in accordance with law – Appeal allowed.

(Para 7-13)

Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 -- Suit for recovery – Territorial jurisdiction – Rejection of plaint – Trial Court dismissed the application under O-7, R-11 – Case is mature for disposal -- Question of territorial jurisdiction appears to be a mixed question of law and facts, which can be properly decided while hearing arguments on merits.

(Para 6-7)

Code of Civil Procedure, 1908 (V of 1908), Order 41 Rule 27 – First appeal – Application for additional evidence – Application was ordered to be heard with main appeal – Appeal dismissed without deciding the application – It is incumbent upon the lower Appellate Court to decide the application under Order 41 Rule 27 CPC along with the main appeal – Appeal allowed, case remanded back to the lower Appellate Court for deciding the appeal afresh along with the application under Order 41 Rule 27 CPC. T.N. Sahani’s case (2001) 10 SCC 619 relied.

(Para 3,9)

Code of Civil Procedure, 1908 (V of 1908), Order 26 Rule 9 – Appointment of Local Commissioner -- Suit for partition with possession and consequentially for permanent injunction -- Parties are co-owners/co-sharers of the properties in question which is unpartitioned and by moving the application is trying to ascertain as to the exact position existing at the spot and the state of affairs as to which party is in possession of the property and to report as to the construction and its extent -- Party should not be allowed to create evidence during the trial with the aid of the Court and must stand on its own legs to adduce evidence to establish its case independently.

(Para 5)

Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 10(2) – Transposition of defendant into plaintiff -- Application by Performa defendant to transpose as a co-plaintiff -- Alleges that the original plaintiff has not led any evidence to prove her case – Dispute in the case is with regard to the validity of the alleged Will executed by the predecessor in interest of the parties -- If it is proved that deceased did not leave behind a testamentary document, then all the Class-I heirs including the petitioner will be entitled to succeed to the property in accordance with the provisions of the Hindu Succession Act, 1956 – Held, valuable rights of the parties including the petitioner are to be adjudicated -- In such circumstances, it becomes incumbent to permit the parties to lead evidence in order to prove their case – Plaintiff does not oppose the prayer -- Petitioner is permitted to be transposed as plaintiff no.2.

(Para 3, 7-9)

Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 2 -- Suit for permanent injunction – Exhibition of documents -- Pleadings – Requirement of -- Application for comparison of signatures on panchayati compromise -- Court dismissed the same on the ground that such document is beyond the pleadings – Held, document sought to be produced and proved in evidence is not required to be pleaded in the pleadings -- If it is necessary to prove the case of a party to the suit, the Court will not shut its doors or debar him from producing the same only on the ground of lack of pleadings with respect to the aforesaid document -- Revision allowed.

(Para 3,8,9)

Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 -- Court-fees Act, 1870 (7 of 1970), Section 7 -- Ad valorem Court fee – Application for rejecting the plaint on account of non-payment of ad valorem Court fee -- Trial Court allowed the application and directed the plaintiff-petitioner to affix ad valorem Court fee – Relief sought by the plaintiff-petitioner is that he be declared owner of the subject matter of the sale deeds as property was purchased benami in favour of the defendant and relations between the plaintiff and the defendant have soured -- Plaintiff and defendant are husband and wife -- Plaintiff is seeking annulment of the sale deeds, which are subject matter of the suit and is, thus, required to affix ad valorem Court fee -- Held, trial Court was justified in passing the impugned order.

(Para 5)

A. East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13 -- Arrears of rent – Provisional assessment of rent – Excess of -- Rent assessed is only provisional and if the final adjudication by the Rent Controller is at variance with this provisional assessment and if the amount deposited by the petitioner-tenant is found to be in excess, the Rent Controller can direct a refund.

(Para 10)

B. East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13 -- Code of Civil Procedure, 1908 (V of 1908), Order 15 Rule 5 – Arrears of rent – Assessment of -- Argument that Rent Controller ought to have assessed the rent as laid down in Order 15 Rule 5 CPC cannot be accepted.

(Para 11)

Code of Criminal Procedure, 1973 (2 of 1974), Section 125, 126 – Maintenance to minor – Territorial jurisdiction -- Marriage of the mother of the petitioner as well as the respondent took place and they resided together at Sonepat -- Petitioner was also born in the territorial jurisdiction of Sonepat and respondent, who is in a legal professional, is staying as well as practicing at District Courts at Sonepat -- Mere fact that the petitioner is no longer residing at Sonepat, does not oust the territorial jurisdiction of the Sonepat Court to try and entertain the petition – Petition instituted by the minor petitioner at Sonepat is maintainable.

(Para 6-8)

A. Civil Proceedings – Nature of -- It is well settled that the civil proceedings are required to be decided on preponderance of probabilities.

(Para 5)

B. East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13-B – NRI landlord – Bonafide need -- British Passport – Effect of -- Right is given only once in the lifetime of an owner -- Argument that since the respondent applied for British Passport after filing the petition therefore, the Court must draw an adverse inference that he is not serious to return India – Held, there is no occasion to such an inference in absence of material to that effect merely, because the respondent (landlord) applied for and was issued a British Passport does not necessarily carry on assumption, that the respondent is not interested in coming back to India.

(Para 7)

Code of Civil Procedure, 1908 (V of 1908), Section 24 -- Guardians and Wards Act, 1890 (8 of 1890), Sections 19, 24, 25 – Transfer of case -- Custody of the minor child – Child residing with her maternal grandparent after the demise of her mother -- In case the matter is transferred out of District Rupnagar the maternal grandparent, who is 72 years of age, would need to travel a long distance along with the minor child – Evidence has partially been recorded – Transfer petition dismissed.

(Para 13)

Code of Civil Procedure, 1908 (V of 1908), Section 50(1) – Judgment debtor died – Legal representatives – Requirement of -- Decree holder ‘may apply to the Court’ for execution of the decree against LRs of a deceased-judgment debtor – Language indicates that the provision is not mandatory – Judgment debtor himself was served and his property has been attached for sale – There was, thus, no need to implead his LRs.

(Para 1-3)

Code of Civil Procedure, 1908 (V of 1908), Section 24 -- Hindu Marriage Act, 1955 (25 of 1955), Section 9 – Transfer of petition from Sirsa to Mohali -- Restitution of conjugal rights petition -- Applicant/ petitioner is residing at Mohali -- Complaint under Domestic Violence Act, 2005 and complaint u/s 498-A of IPC are already pending at Mohali, it would be proper, appropriate and in the interest of justice if all cases are tried and decided at one place -- Transfer application allowed.

(Para 3, 6-8)

Code of Civil Procedure, 1908 (V of 1908), Order 26 Rule 9 – Constitution of India, Article 227 -- Refusal to appoint Local Commissioner – Revisional jurisdiction -- Challenge to the order passed by the trial Court while refusing to appoint Local Commissioner, the revision petition itself is not maintainable. Rajender Prasad’s case 1979 PLJ 562 and Malkiat Singh’s case 1990(2) PLR 191 relied.

(Para 6)

A. Specific Relief Act, 1963 (47 of 1963), Section 16 – Agreement to sell – Proof of -- Evidence required -- Non-examination of scribe – Effect of -- Execution of the agreement to sell proved from the evidence of the plaintiff as well as by attesting witness -- It has been proved by stamp vendor that the defendant purchased the stamp paper and signed in his note book -- Defendant failed to impeach credibility of the aforesaid witness in the cross examination – Non-examination of the scribe cannot result in dismissal of the suit particularly when the plaintiff has already led sufficient evidence to prove the execution of the agreement to sell.

(Para 9)

B. Specific Relief Act, 1963 (47 of 1963), Section 14 – Code of Civil Procedure, 1908 (V of 1908), Section 100 -- Suit for specific performance – Ground of delay in suit -- Readiness and willingness -- Plaintiff filed the suit after a period of 1 year and 5 months from the date fixed for registration of the sale deed -- Plaintiff has pleaded that he was always ready and willing -- Defendant was given opportunity to cross examine the witness, however failed to impeach his credibility – Both the Courts, on appreciation of evidence, have recorded a finding of the fact that the plaintiff is ready and willing to perform his part of the contract -- No ground to interfere in the impugned judgments is made out.

(Para 10-12)

East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13, 15 -- Code of Civil Procedure, 1908 (V of 1908), Order 20 Rule 12 -- Eviction of tenant – Appeal by tenant -- Mesne profit – Right of -- Effect of lockdown/Covid-19 -- Interim protection from eviction and direction to the petitioner to pay the mesne profit @ Rs.5000/- -- Held, once the petitioner has been ordered to be evicted, the Appellate Authority has the power to determine the mesne profit -- Once the petitioner continues to be in possession, he is required to compensate the Landlord -- Petitioner cannot be permitted to avoid payment of mesne profit only on the ground that there was lockdown due to outbreak of Covid-19.

(Para 2-6)

Code of Civil Procedure, 1908 (V of 1908), Order 37 Rule 3(5) – Suit for cheque amount against sale of gold ornaments -- Leave to defend – Trial Court granted leave to defend – Held, it is for the trial Court to exercise its discretion to ascertain as to whether or not, the evidence is required to be adduced qua the money claims to be adjudicated by way of trial – Revision challenging the same dismissed.

(Para 4)

Code of Civil Procedure, 1908 (V of 1908), Order 41 Rule 28 – Additional evidence at appellate stage -- Suit for specific performance and permanent injunction dismissed -- Application for additional evidence in First appeal – Plaintiff was allowed to examine Fingerprints Expert after comparison of the thumb impressions of deceased on the agreement to sell with his admitted thumb impressions on the case file at his own expenses with cost of Rs.3,000/- to meet the delay -- Reasonable opportunity was directed to be afforded to respondent/defendant -- Case was remanded to the trial Court for fresh adjudication on the issues formulated after taking additional evidence – Held, judgment is certainly not perverse or passed in an arbitrary manner and there is no reason to interfere with the same.

(Para 1-4)

Hindu Marriage Act, 1955 (25 of 1955), Section 13 -- Code of Civil Procedure, 1908 (V of 1908), Order 9 Rule 13 -- Ex-parte decree of divorce  – On application ex-parte judgment-decree set aside -- It is always desirable to decide a lis on merits rather than non-suiting a party on technical grounds -- Trial Court while decreeing the divorce petition had only examined the case set up by the husband before it and version of the respondent-wife was not there -- It is always better to arrive at a conclusion after considering the versions set up by the contesting parties, rather than taking into view the case presented before the Court by one litigant only – Court did not see any reason to upset the impugned order and same is upheld.

(Para 2, 7)

Electricity Act, 2003 (36 of 2003), Section 126, 135 – Specific Relief Act, 1963 (47 of 1963), Section 39 -- Code of Civil Procedure, 1908 (V of 1908), Section 9 -- Theft of electricity – Compounding of offence – Legality of -- Suit for mandatory injunction -- Memo demanding Rs.85,158/- allegedly committing offence of theft u/s 135 of Electricity Act – Another memo for compounding the offence on deposit of Rs.8,000/- as compounding fee – Lower Appellate Court found that it is not the case of the appellants-defendants-Vidyut Nigam  that the plaintiff was found to be abstracting the electricity energy by unauthorized means; So, there was no case of electricity theft by the plaintiff; M&T report show that the working of the meter is within limit; However, despite this fact, the instructions for dealing with the cases of theft of electricity vide sale circular No.U-15/2014 have not been complied with; Section 126 of the Indian Electricity Act, 2003 provides that any theft of electricity energy shall be communicated in the shape of order of provisional assessment to the person who may be aggrieved; Requirement of Section 126 for the assessment of amount for theft of electricity has not been complied with by the defendants; Defendants-Vidyut Nigam are not entitled for the recovery of assessment vide impugned notice; However, there is no illegality in service of notice u/s 135 of Electricity Act as the same was issued for the compounding fee, which is permissible under the provisions of Electricity Act – Held, there seems no perversity or illegality in the concurrent findings of facts returned by the Courts below -- No interference called for to disturb the said concurrent findings.

(Para 3, 8, 9)

Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17 -- Amendment of affidavit tendered in evidence – Held, Order 6 Rule 17 CPC deals with amendment of pleadings -- Affidavit to be tendered in evidence is not covered by definition of pleadings -- There is no question of any error having crept in the affidavit on account of typographical mistake -- If the affidavit filed on behalf of the defendant is not in consonance with his pleadings, he may suffer for his lapse -- No correction could be allowed to be made in the affidavit by way of amendment -- Application rightly declined by the trial Court.

(Para 7)

Code of Civil Procedure, 1908 (V of 1908), Order 39 Rule 1 & 2 -- Specific Relief Act, 1963 (47 of 1963), Section 12 -- Ad-interim injunction – Agreement to sell -- Trial Court dismissed the application, observing that since defendant No.1 has not admitted entering into any transaction with the plaintiff and defendant No.2 has also alleged that the agreement to sell and receipt set up by the plaintiff are forged and fabricated documents, the plaintiff had failed to prove prima facie case in her favour and balance of convenience also does not in her favour and she would also not suffer any irreparable loss if the injunction is not granted – Plaintiff’s appeal dismissed – Revision disposed of with observation that if on conclusion of trial, the plaintiff is able to prove her case then in terms of Section 144 CPC, she would be able to get possession of the plot in question after removal of construction, if any, raised by defendant No.2 and if the plot is sold further, that would be hit by principle of lis pendens and therefore, no necessity of grant of any ad-interim injunction to the plaintiff is there.

(Para 3-6)

Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 6, 6A, 6C – Counter claim – Issues framed -- Application for separation of suit by defendant – Maintainability of -- Trial court dismissed the application being legally not maintainable and is nothing more than a dilatory tactic – Held, no interference with the order by way of exercising revisional jurisdiction is called for, order does not from any illegality or infirmity.

(Para 6, 7)

Code of Civil Procedure, 1908 (V of 1908), Order 33 Rule 1 – Order 44 -- Appeals by Indigent Persons -- Petitioner is a senior citizen and in possession of only one room in the family house -- Liberal approach has to be taken, keeping in view the provisions of Order 33 Rule 1 CPC -- Report of the Tehsildar would also go on to show that she does not possess any other immoveable property and therefore, merely because a report has come that the house was newly constructed, it would not imply that the petitioner had sufficient means, as such -- She is drawing Old Age Pension of Rs.2000/- per month would also go on to show the indigence of the petitioner and thus, requiring social security from the State on account of her weak financial position -- Petitioner, thus, does not seem to be of such means whereby she can be held to have the capacity to raise the money to pay the Court fees --  If the same is not permitted, her right to file a first appeal against the suit decreed for recovery would be taken away -- Access to justice cannot be denied to an individual merely because he does not have the means to pay the prescribed fee -- Application under Order 33 CPC allowed.

(Para 6, 7)

A. Specific Relief Act, 1963 (47 of 1963), Section 37 -- Suit for permanent injunction -- Question of title – Requirement of – In suit for grant of permanent injunction, where the main thing to be seen is as to whether the plaintiff has been in established possession of the suit land -- Question of title is not to be decided in such type of suit -- Nevertheless, the document of title to the suit property produced in evidence on behalf of any of the parties can certainly be taken into consideration to find out the nature of possession.

(Para 10)

B. Code of Civil Procedure, 1908 (v of 1908), Section 151 -- Exhibition of documents – Replacement by original – Permissibility of -- Plaintiff placed on record copy of the sale deed, duly attested by Notary Public, which had been exhibited, though, it was subject to objection with regard to mode of proof and admissibility raised on behalf of the defendant -- Plaintiff sought to place on record the original sale deed and to exhibit it just to remove the technical objection -- Trial Court considering all the aspects of the case, exercising powers u/s 151 CPC had allowed that application -- Such exercise of power by the trial Court can certainly be not termed as arbitrary or perverse, rather, it comes out that such power has been exercised in a judicious manner for proper adjudication of the controversy between the parties.

(Para 10)

C. Code of Civil Procedure, 1908 (v of 1908), Section 151 -- Inherent power of civil Court – Nature of -- It is a very vast power, which can be exercised by the Court for achieving ends of justice and to prevent abuse of process of the Court -- Unnecessary interference in exercise of such power by the trial Court is uncalled for.

(Para 11)

Code of Civil Procedure, 1908 (V of 1908), Section 11, Order 7 Rule 11 – Res-judicata – Rejection of plaint -- Trial Court held that the dispute pending before High Court in RSA is not between the same parties and the pendency of the said case would not bar the instant suit; Earlier suit between the same parties was withdrawn before the Lok Adalat and there was no final decision; Order would not act as res judicata as there was no final decision on merits; Suit being an injunction suit, can be filed as and when the cause of action arises; It is not the case of the petitioners that the plaint does not disclose a cause of action; Consequently, application under Order 7, Rule 11 C.P.C dismissed by Trial court -- Petitioners/defendants not able to show that the findings of the learned trial Court are erroneous in any manner, the revision petition deserves dismissal.

(Para 2-6)

Electricity Act, 2003 (36 of 2003), Section 126, 127, 135 – Theft of electricity – Assessment of penalty – Challenged to -- Jurisdiction of civil Court – Civil Court decreed the suit – Legality of -- Once proceedings u/s 135 of Electricity Act were initiated, the Assessing Officer had no authority to pass any order regarding the liability and penalty -- Consumer cannot be left remediless and he can invoke the jurisdiction of the Civil Court – Held, there is no illegality or infirmity in the orders passed by the Courts below which would warrant interference in a Regular Second Appeal -- Appeal dismissed in limine. Jaswant @ Jaibir’s case 2017 (2) LAR 465 relied.

(Para 2, 11, 12)

Code of Civil Procedure, 1908 (V of 1908), Order 18 Rule 3 – Constitution of India, Article 227 -- Suit for Permanent injunction – Handwriting and finger print expert in rebuttal evidence – Permissibility of – Defendants denied signatures on documents – Application to examine expert in rebuttal evidence -- Trial Court has rightly observed that the plaintiff had an opportunity to examine hand writing expert while leading evidence in affirmative -- Furthermore he could have called upon the defendants to admit or deny the documents in question which is not said to have been done -- He had an occasion to prove such documents during the course of his evidence -- He could not have possibly presumed that the documents would admit their signatures on family settlement and defendant No. 2 would concede the signatures on demarcation report -- Nature of the suit is one for grant of permanent injunction wherein main thing is to be seen is as to whether the plaintiff is in established possession of a particular piece of land and question of title is not to be decided – Revision dismissed.

(Para 2-5)

Code of Civil Procedure, 1908 (V of 1908), Order 9 Rule13 – Ex-parte judgment and decree – Setting aside of – Service through registered post and publication – Value of -- Trial Court while dismissing the application has observed that notice of the suit was sent to respondent as per registered AD post, which was not received back even after 30 days, therefore, presumption of service was drawn but as a matter of extra caution, notice to defendant was ordered to be given by way of publication in the newspaper “The Tribune” -- Publication was effected on 20.02.2010 but the defendant did not appear and was proceeded against ex parte -- Therefore, there was no reason for setting aside of ex parte order and ex parte decree -- Learned Addl. District Judge agreed with learned trial Court – Held, orders passed by the Courts below are quite detailed and well-reasoned, they do not suffer from any illegality or infirmity, much less the same being arbitrary or in violation of settled legal position -- No ground to interfere.

(Para 6-8)

Code of Civil Procedure, 1908 (V of 1908), Order 41 Rule 27 – Additional evidence at appellate stage – Judgment of earlier litigation – Relevancy of -- Contention of Plaintiff that the application was wrongly allowed which was for placing a judgement of the High Court on record arose out of the judgment in O.S. No.22 of 1970, which was not a part of the record in the Civil Court – Held no prejudice is caused to the Plaintiff by the judgment being permitted to be adduced as additional evidence in the appeal -- High Court thoroughly discussed the entire evidence to come to a conclusion that the Plaintiff has not made out any case for declaration of title over the disputed property in her favour -- Judgement of the learned Single Judge was upheld by the Division Bench of the High Court on appreciation of the evidence, with which we agree. Accordingly, the Appeal is dismissed.

(Para 11, 12)

Code of Civil Procedure, 1908, (V of 1908), Order 6 Rule 2 – Amendment of plaint -- Application moved by the plaintiffs for amendment does not relate to pleading of a material fact, rather talks of an admission by defendant -- Plaintiffs are required to prove their own case, though, they may seek some help from admission made by one of the defendants but then the Court shall have to see as to under what circumstances, the admission was made, whether it binds the other defendants or not and what weightage is to be given to the same -- At the most, the plaintiffs may come up with a plea of estoppel, however, under the circumstances, the amendment of the plaint is not found to be necessary for just decision of the case.

(Para 5)