Motor Vehicles Act, 1988 (59 of 1988), Section 173 -- Code of Civil Procedure, 1908 (V of 1908), Order 33, Order 44 Rule 1, 3(2) – Compensation in motor vehicle accident case – Appeal as indigent person -- Whether a person being an award holder, of monetary compensation without actual receipt thereof, would be disentitled from filing an appeal seeking enhanced compensation as an indigent? -- Appellate Court did not conduct any inquiry – On both counts, one, that appellant had not yet received the money and, therefore, at the time of filing the appeal she was arguably indigent; and second, that the statutory requirement under the C.P.C., was not met, the impugned order set aside.

(Para 2, 17-19)

Code of Civil Procedure, 1908 (V of 1908), Order 39 Rule 1 & 2 -- Injunction -- Relief of injunction is an equitable relief -- It is well known maxim of law that “he who seeks equity, must do equity’ -- Plaintiff has not come to the Court with clean hands and as such, no prima facie case is made out in his favour.

(Para 14)

Code of Civil Procedure, 1908 (V of 1908), Section 96, 151, Order 21 Rule 30, 37, Order 44 Rule 3 -- Recovery decree -- Warrant of arrest issued – Appeal/ stay application pending – Indigent person/ Pauper application pending -- Learned Appellate Court requested to dispose of the application for pauper, within a period of fifteen days, from the date already fixed  -- After disposal of the pauper application, also pass any appropriate order, in accordance with law, on the stay application -- In the meanwhile, operation of the impugned order stayed.

(Para 4-8)

West Bengal Premises Tenancy Act, 1997 (XXXVII of 1997), Section 6 -- Code of Civil Procedure. 1908 (V of 1908), Section 2(12), Order 20 Rule 12 -- Eviction of tenant – Mesne profit -- Contention that there is no stay awarded, the question of such payment does not arise – It is also within the bounds of law, tenant who once entered the property in question lawfully, continues in possession after his right to do so stands extinguished, is liable to compensate the landlord for such time period after the right of occupancy expires -- Mesne profit assessed and ordered to be deposited in the registry of the Court.

(Para 18-23)

A. Limitation Act, 1963 (36 of 1963), Section 3 -- Limitation – Duty of court -- Even if the plea of limitation is not set up as a defence, the Court has to dismiss the suit if it is barred by limitation.

(Para 16)

B. Indian Partnership Act, 1932 (9 of 1932), Section 42(c) – Limitation Act, 1963 (36 of 1963), Article 113 -- Death of partner – Dissolution of FIR -- Rendition of account – Limitation -- Period of limitation for filing a suit for rendition of account is three years from the date of dissolution -- Firm dissolved in year 1984 by virtue of death of partner and thus, the suit could only have been instituted within a period of three years from that event -- Suit filed in the year 1996 was clearly time-barred.

(Para 20)

A. Constitution of India, Article 226 -- Code of Civil Procedure, 1908 (V of 1908), Section 141, Order 6 Rule 17 – Amendment of writ petition – Even though the provisions of Code of Civil Procedure are not applicable in the writ jurisdiction by virtue of the provision of Section 141 CPC, but the principle enshrined therein are applicable.

(Para 8)

B. Constitution of India, Article 226 -- Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17 – Amendment of writ petition – Amendment sought for almost 12 years after the date of the institution of the petition -- It is not the case of the petitioner that facts now sought to be pleaded by way of amendment could not be pleaded despite due diligence – No plausible grounds have been mentioned in the application as to why the amendments, which are being sought to be incorporated at this highly belated stage and why these facts could not be pleaded earlier, especially when there have been no subsequent developments -- Amendment cannot be said to be bonafide -- On the ground of delay itself, the application is required to be dismissed – Application for amendment dismissed.

(Para 9-12)

Code of Civil Procedure, 1908 (V of 1908), Order 5 Rule 20 -- Substituted service – Defendant residing aboard – Publication in local newspaper – Validity of -- Publication has to be in a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided or carried on business or personally worked for gain -- In plaint the address of the defendant is of Québec in Canada -- That being so, service by way of publication in the Bathinda Edition of the Tribune cannot in any manner be held to be valid service.

(Para 6)

Code of Civil Procedure, 1908 (V of 1908), Order 23 Rule 3 – Compromise decree – Statement w.r.t compromise in court – Effect of – Challenged on the ground that settlement between parties in not in writing -- Parties and their respective counsel suffered a joint statement in the court which was not only recorded but also signed by all of them including their respective advocates -- Such settlement is in writing and signed by the parties – Appeal dismissed.

(Para 2, 5-8)

A. Code of Civil Procedure, 1908 (V of 1908), Order 26 Rule 9 – Constitution of India, Article 227 -- Appointment of Local Commissioner – Dismissal of application -- Maintainability of revision -- It is trite that an order refusing to appoint a Local Commissioner does not decide any issue nor does it adjudicate any rights of the parties for the purpose of the suit and hence would not be a revisable order.

(Para 6)

B. Code of Civil Procedure, 1908 (V of 1908), Order 26 Rule 9 – Appointment of Local Commissioner – Demarcation of possession – Suit for permanent injunction restraining the defendant-respondent from interfering in the peaceful possession of the plaintiff-petitioner -- That being so, it is for the plaintiff-petitioner to prove his case and he cannot take aid of the Court agency for creating evidence for him.

(Para 8)

A. Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17 --  Amendment of plaint based upon inheritance -- Limitation -- Bar of limitation is not available when a suit is filed on the basis of inheritance, as inheritance does not remain in abeyance.

(Para 10)

B. Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17 --  Amendment of plaint – Suit for declaration on the basis of inheritance of estate – Amendment is to add one more property along with other properties already mentioned in the plaint – It is fundamental principle of law that parties should be allowed to bring all the material facts that may enable the Court to decide the controversy completely and judiciously -- Purpose of amendment is to narrow down the controversy by placing all material facts clearly on the record -- One effective opportunity granted to the petitioner to file the amended plaint.

(Para 10-15)

C. Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17 --  Amendment of plaint – Inefficiency of party/ Counsel – If a party or its Counsel is inefficient in setting out its case initially the shortcoming can certainly be removed generally by appropriate steps taken by a party which must pay costs for the inconvenience or expense caused to the other side from its omissions.

(Para 12)

Code of Civil Procedure, 1908 (V of 1908), Order 39, Rule 3A -- Ex parte interim injunction – Where ex parte injunction granted, the injunction application has to be decided within a period of 30 days -- Direction given to the Commercial Court to hear arguments on the injunction application on the date fixed and decide the same preferably on the same day -- If for some reasons, the Court is not in a position to hear arguments and decide the application, it may defer the hearing while complying with the provisions of Order XXXIX Rule 3A CPC.

(Para 12-14)

Code of Civil Procedure, 1908 (V of 1909), Order 39, Rule 1 & 2 – Temporary injunction against co-owner – Exclusive possession -- From the revenue record, it transpires that parties are in separate possession of the suit land – Held, when exclusive possession of the plaintiffs over the suit land is evident from the revenue records, then the defendants have been rightly restrained from interfering into their exclusive possession over the suit land.

(Para 7)

Code of Civil Procedure, 1908 (V of 1908), Section 151 -- Additional evidence -- By proposed additional evidence, the petitioner intends to produce copy of Registration, Memorandum and Article of Association, pertaining to Gaushala --  Application moved at the stage of rebuttal and arguments -- Nowhere, in the pleadings as well as in the testimony of witnesses, any reference was made to the aforesaid documents -- These documents were very much in the active knowledge of the petitioner, at the time of recording of the evidence -- Application for additional evidence dismissed.

(Para 9, 10)

A. Code of Civil Procedure, 1908 (V of 1908), Order 8 Rule 10 – Non-filing of written statement -- Passing of judgment in favour of plaintiff is subject to the satisfaction of the Court that there are no disputed facts in the plaint and judgment can be passed without asking the plaintiff to lead evidence -- If Court comes to the conclusion that evidence is required to be led by the plaintiff to prove the claim, then it cannot pass a judgment in favour of the plaintiff by invoking provisions of Order 8 Rule 10 CPC.

(Para 14, 15)

B. Code of Civil Procedure, 1908 (V of 1908), Order 8 Rule 10 – Non-filing of written statement -- Suit for partition -- Trial Court without application of mind whether plaintiff is required to lead evidence or not, adjourned the case for evidence of the plaintiff -- Trial Court was required to record its satisfaction whether suit deserves to be decreed on the basis of pleadings supported by documents annexed with the plaint or the plaintiff was required to prove its claim by leading evidence – Part of the order whereby case was adjourned for leading evidence of the plaintiff, is not sustainable in the eyes of law – Revision allowed to that extent.

(Para 16)

Code of Civil Procedure, 1908 (V of 1908), Section 10 -- Stay of second suit – Mandatory nature of Section 10 of CPC -- The use of negative expression in Section 10 of the Code i.e. “no court shall proceed with the trial of any suit” makes the provision mandatory and the court in which the subsequent suit has been filed is prohibited from proceeding with the trial of that suit if the conditions laid down in Section 10 of the Code are satisfied.

(Para 5)

Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 -- Benami Transactions (Prohibition) Act, 1988 (45 of 1988), Section 4 – Rejection of plaint -- Benami property – Bar to recover benami property -- On a meaningful reading of the plaint, it cannot be ascertained as to whether the matter would be covered u/s 4 of the Benami Transactions Act -- Question whether the suit is barred u/s 4 of the Benami Transactions Act would be a matter of trial – Application for rejection of plaint dismissed.

(Para 1, 7)

Code of Civil Procedure, 1908 (V of 1908), Section 11 -- Order 7 Rule 11 – Second application for rejection of plaint – Res-judicata -- Earlier application under Order 7 Rule 11 CPC had been filed by the petitioner which had been dismissed by the trial Court, said order has attained finality -- Now this second application under Order 7 Rule 11 CPC on the ground that the instant suit is barred as per provisions of Order 23 Rule 1(4) CPC -- Present application filed for same relief by moulding the averments cannot be accepted.

(Para 11-13)

Specific Relief Act, 1963 (47 of 1963), Section 37 -- Suit for permanent injunction -- Using the suit property for storing cow dung etc. and lien was used for preparing lime mortar for building material -- No date mentioned when this property was being used for preparing lime mortar -- Mere storing cow dung and wooden sticks does not prove a case in favour of the plaintiff -- Since the plaintiff himself has failed to prove his possession over the suit property, he is not entitled for injunction.

(Para 13)

East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13 – Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17 -- Eviction petition – Amendment of written statement -- Amendment sought is to clarify the location and the area of the demised premises -- Court should assist the parties in bringing on record the complete facts than to prevent them from exercising their rights on rigid technicalities -- Rent Controller, directed to provide one effective opportunity to the petitioners/ defendants to file their amended written statement.

(Para 7-9)

Specific Relief Act, 1963 (47 of 1963), Section 37 -- Suit for permanent injunction -- Admission – Photocopy of sale  deed – Evidential value -- Once the defendants had categorically admitted that plaintiff was the owner of the land on which she had raised the construction of a building, there was no question to doubt the title of the plaintiff in this regard simply for the reason that only the copy of the sale deed was produced and not the original sale deed.

(Para 13)

Indian Evidence Act, 1872 (1 of 1872), Section 45 – DNA test of witness – Permissibility of -- Suit for declaration with consequential relief of permanent injunction -- When the person is not a party to the lis and is deposing in the Court, as only witness, his/her DNA examination cannot be allowed -- Application for seeking DNA examination, dismissed.

(Para 7, 11, 12)

A. Code of Civil Procedure, 1908 (V of 1908), Section 39 Rule 1, 2 & 3 – Temporary injunction – Notice to opposite party – Requirement of -- It is mandatory for the Court to direct notice of the application filed under Rules 1 and 2 of Order 39 to be given to the opposite party except where it appears to the Court that object of granting injunction would be defeated by delay -- Notice mandated under Rule 3 cannot be a mere formality -- It has to be reasonable notice and the opposite party is entitled to make itself response within reasonable period.

(Para 26)

B. Code of Civil Procedure, 1908 (V of 1908), Section 39 Rule 1, 2 & 3 – Interim mandatory injunction – Installation of electric connection as interim relief -- Ld. trial Court hastened to pass an interim order in mandatory form which in fact is peri-materia to the prayer as made in the main suit -- Impugned order does not record any reason as to what urgency was seen by the learned trial Court in passing the impugned order on the same day on which the application was filed -- Thus, there is serious non-compliance of Rule 3, Order 39 of the CPC and the manner in which learned trial Court has conducted itself definitely is not confirming to the basis principles of judicial procedure and propriety -- Impugned order set aside with direction to the parties to maintain status quo ante as on the date of passing of the impugned order with respect to the installation of electricity connection.

(Para 10, 26, 27)

Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 -- Suit for compensation – Limitation – Rejection of plaint -- Exercise of powers under Order 7 Rule 11 CPC are drastic ones and a duty is caste on the Court to determine as to whether the plaint, on a plain reading along with document annexed thereto, discloses a cause of action -- No other document is to be seen at this stage -- Question of limitation would be a mix question of law and fact, the same cannot be decided in an application under Order 7 Rule 11 CPC.

(Para 8)

Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11(d), Order 14 Rule 1 -- Motor Vehicles Act, 1988 (59 of 1988), Section 166 -- Compensation in motor vehicle accident case – Territorial jurisdiction – Rejection of plaint – Framing of additional issue of territorial jurisdiction – Application under Order VII Rule 11(d) of the CPC read with Section 166(2) of the Motor Vehicles Act, 1988 for rejection of the claim petition on the ground of lack of territorial jurisdiction dismissed -- Once on an application filed by the petitioner a categoric finding was returned that the Tribunal at Chandigarh had jurisdiction, the petitioner by insisting on framing of an additional issue qua jurisdiction cannot be permitted to get the question of jurisdiction reopened since the same already stood concluded.

(Para 2, 6)

Code of Civil Procedure, 1908 (V of 1908), Section 39 Rule 1 & 2 – Specific Relief Act, 1963 (47 of 1963), Section 16 -- Suit for specific performance – Interim relief -- Status quo -- Plaintiff seeking specific performance of contract against defendant No.1 -- Defendant No.1 had sold parts of suit land to defendants No.2 and 3/ during pendency of the suit proceedings -- Defendant No.1 had admitted the execution of the agreement in favour of plaintiff, but his case was that sale deed can be executed only after the partition of the suit land -- Balance of convenience and prima facie case existed in plaintiff’s favour -- To preserve the suit property and to avoid multiplicity of litigations, the order for maintaining status quo qua possession, alienation or creating further third-party interest in the suit land till the disposal of the suit was just and proper.

(Para 4)

Code of Civil Procedure, 1908 (V of 1908), Order 9 Rule 8 and Rule 9 – Limitation Act, 1963 (36 of 1963), Section 5 -- Dismissed in default – Delay in Restoration application supported by affidavit – Condonation of delay without application – Ld. trial Court, after considering the averments of the parties and guided by the basic tenets of law that the rights of the parties should be examined on merits and not fettered by technicalities, and to advance the cause of justice, allowed the application and restored the suit – Held, Ld. trial Court adopted a correct and judicious approach, by permitting the parties to have their rival claims decided on merits.

(Para 9-15)

A. Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17 -- Amendment of plaint -- Power to allow an amendment is wide and may be appropriately exercised, at any stage, in the interest of justice -- 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 and that, it is essential, to enable the Court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision.

(Para 1, 12)

B. Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17 -- Amendment of plaint -- Delay in applying for amendment, alone is not a ground to disallow the prayer.

(Para 1, 12)

C. Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17, Order 1 Rule 10 – Amendment of plaint – Plaintiffs intend to add on the parties -- In the plaint the description of the land not  mentioned --  Through proposed amendment, plaintiff want to make the mention of Khasra Number to make an addition of the parties to the suit – Held, addition of the parties cannot be allowed by way of amendment of the plaint -- For this, the plaintiffs are required to file an appropriate application under Order 1 Rule 10 CPC -- Introduction of the Khasra number, at this stage, will change the basis of the suit – Application dismissed by Trial Court – Revision against that order dismissed.

(Para 13-16)

A. Arbitration and Conciliation Act, 1996 (26 of 1996), Section 9, 17, 36 – Code of Civil Procedure, 1908 (V of 1908), Order 39 Rule 2A -- Implementation of injunction order – Constitution of Arbitration Tribunal -- Petitioners seek an implementation of an order already passed by the Court when the Arbitral Tribunal had not yet been constituted – Commercial Court never lost jurisdiction to implement its own order by virtue of the powers conferred on it under Section 9(1)(ii)(e) -- Measures under Order XXXIX Rule 2A of the CPC for contempt of its orders, penal measures can be taken even after constitution of the Arbitral Tribunal.

(Para 25-29)

B. Code of Civil Procedure, 1908 (V of 1908), Order 39 Rule 2A – Violation of order of Court – Order XXXIX Rule 2A is not the only remedy for violation of an injunction order -- Implementation of an injunction order, if necessary even by reversal of the acts taken in violation of the same, can be sought from the same court which granted the injunction in the first place.

(Para 30)

Code of Civil Procedure, 1908 (V of 1908), Order 16 Rule 10, Order 16 Rule 12 -- Closing of evidence -- Trial Court issued bailable warrants against some witnesses but did not take other coercive measure like issuance of non-bailable warrant, or attachment of property, or writing to the senior administrative officer to instruct the concerned witnesses to appear, so as to bring the case to its logical end by completing the proposed evidence of the parties – Held, trial Court completely faulted in its approach while closing the evidence of petitioner, causing great prejudice to him – Ld. trial Court directed to adopt all the measures as mandated under the provisions of Order 16 CPC and other provisions of the CPC – Revision allowed.

(Para 10-17)

Code of Civil Procedure, 1908 (V of 1908), Order 41 Rule 27 -- Additional evidence – Suit for specific performance – First Appellate Court dismissed application for permission to produce a copy of jamabandis on record on the ground that these documents have no relevance as the ownership is not in dispute – Submission that the application should have been decided only with the main case – Held, it is not necessary that all the applications for additional evidence must be decided with the main appeal – Revision dismissed.

(Para 1-6)

Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17 -- Specific Relief Act, 1963 (47 of 1963), Section 21, 22 – Amendment to add the plea of assessment of un-liquidated damages and to sue respondents/ defendants in individual capacity on attaining majority -- Plaintiff cannot be deprived of his right to incorporate the pleas, which are available to him under the law – Court should allow the parties to bring their plea on record, so that matter in controversy can be finally, completely and effectively decided -- Causing the delay, in raising the pleas at belated stage of the suit, the petitioner-plaintiff needs to be burdened with costs – Amendment in plaint allowed with cost of Rs. 30,000/-.

(Para 3, 14, 15)

Code of Civil Procedure, 1908 (V of 1908), Section 25 -- Hindu Marriage Act, 1955 (25 of 1955), Section 12 – Annulment of marriage – Transfer of case – Kolkata to Jharkhand – Petitioner-wife has filed a petition for maintenance etc., the respondent-husband has filed the subject suit u/s 12 of the Hindu Marriage Act, 1955 for annulment of the marriage -- Grounds taken that wife is staying with her parents at Dhanbad, Jharkhand; she has no source of livelihood; she has apprehension of physical violence and mental torture in the event of visiting Alipore etc. – Case ordered to be transferred to the Family Court at Dhanbad, Jharkhand.

(Para 1-5)

Code of Civil Procedure, 1908 (V of 1908), Section 35B – Cost -- Argument that once the costs are imposed u/s 35B CPC it would be a condition precedent for further prosecution of the case – Held, costs if not paid can be included in the decree.

(Para 6)

A. Consumer Protection Act, 1986 (68 of 1986), Section 12 – Code of Civil Procedure, 1908 (V of 1908), Section 9 -- Investment in partnership firm – Consumer complaint – Maintainability of -- Investment made by the complainant was for deriving benefit by getting an interest @ 18% per annum, therefore, it would be an investment for profit/gain -- It was a commercial transaction and therefore also would be outside the purview of the 1986 Act -- Commercial disputes cannot be decided in summary proceeding under the 1986 Act but the appropriate remedy for recovery of the said amount, if any, admissible to the complainant-respondent No.1, would be before the Civil Court -- Complaint was thus not maintainable.

(Para 7)

B. Partnership firm – Death of partner – Liability of Legal heirs -- Legal heirs of a deceased partner do not become liable for any liability of the firm upon the death of the partner.

(Para 8)

A. Code of Civil Procedure, 1908 (V of 1908), Order 5 Rule 17 – Service of summon -- When defendant refuses to accept the service or cannot be found, serving officer shall affix copy of summon on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides and carries on business or personally works for gain and shall then return the original to the court from which it was issued, with the report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so and the name and address of the person by whom the house was identified and in whose presence the copy was affixed -- Aforesaid compliance has not been made, so the trial Court was right in observing that it was not a proper service in the eyes of law.

(Para 7)

B. Code of Civil Procedure, 1908 (V of 1908), Order 5 Rule 9, 21 – Service of summons – Registered post -- Respondents were residing outside the territorial jurisdiction of the Court where the suit was instituted -- Service sought to be effected upon them by way of registered post acknowledgment due, directly by the Court where the suit was instituted, cannot be deemed to be proper service.

(Para 8)

Code of Civil Procedure, 1908 (V of 1908), Order 5 Rule 17, Order 6 Rule 2(i) – Evidence -- Pleading -- Evidence is not required to be incorporated or made part of the pleadings – Plaintiffs have filed suit for possession by way of redemption of mortgage -- They claimed to have stepped into the shoe of mortgager by virtue of a sale deed -- They want to prove that their vendor had possessed title -- Hence, the evidence sought to be led is not beyond pleadings.

(Para 12)

Code of Civil Procedure, 1908 (V of 1908), Order 21 Rule 92 – Deficiency in deposit of decreetal amount -- Clerical or arithmetical mistake – Bar of 60 days – Applicability of – No bar created for 60 days in cases where the deficiency is due to clerical or arithmetical mistake -- The court has been given enabling power to extend the time -- Second part of sub-rule (2) does not provide that the outer limit for deposit is 60 days.

(Para 12-14)

Code of Civil Procedure, 1908 (V of 1908), Order 9 Rule 13 – Ex-parte decree – Setting aside of -- Suit transferred from the courts at Gurugram to the courts at Pataudi -- For one date, two summons were issued to the counsel, the report on both the summons was different -- Summons sent for service on the respondent, Process Server visited his house it was disclosed by the respondent’s wife that her husband is serving in Delhi Police, however, no attempt was made by the plaintiff to serve the respondent at his office address -- Court has only granted an opportunity to respondent to contest the case – Revision dismissed.

(Para 5-8)

Code of Civil Procedure, 1908 (V of 1908), Order 39 Rule 1, 2 & 3, Order 43 Rule 1 (r) -- Interim injunction – Maintainability of appeal – Whether the order is passed ex-parte on an application under Order 39 Rule 1 and 2 CPC or is passed after hearing the parties, then appeal is maintainable -- Any order granting or declining an injunction cannot be passed under Rule 3 of Order 39 independently of Rule 1 or 2 CPC -- If the Court just give notice of the application under Order 39 Rule 1 and 2 CPC to the other party without expressing any opinion declining the ad interim injunction, then appeal is not maintainable -- Order declining ad interim injunction was passed after hearing the parties, so appeal against said order is maintainable under Order 43 Rule 1 (r) CPC.

(Para 5.2)

Code of Civil Procedure, 1908 (V of 1908), Order 41 Rule 27, Order 41 Rule 23A -- First appeal – Additional evidence – Remand of case -- First Appellate Court allowed the application for additional evidence and remanded the case back to the trial court for deciding afresh – No categoric appraisal of the reasons recorded by the trial court -- Appellate court to remand the case back to the lower court where re-trial of the case is considered necessary -- Order of Appellate Court’s remanding the case back to the trial Court set aside.

(Para 1, 3-5)

Code of Civil Procedure, 1908 (V of 1908), Order 21 Rule 37 -- Execution of decree – Conditional order of arrest -- Passing of order of conditional warrant of arrest without giving notice to the JD is in violation of the provisions of Order 21 Rule 37 CPC -- Court is bound to issue notice to the JD calling upon him to appear in the Court for showing cause against his detention in civil prison.

(Para 8)

A. Code of Civil Procedure, 1908 (V of 1908), Section 152, 153 -- Correction in prayer after decree -- Both the parties were aware of the fact that the suit has been filed with respect to two different Khasra numbers, namely, Rectangle No.3, Khasra No.11(7-12) and Rectangle No.3, Khasra No.12(8-0) as specified in para 1 of the plaint -- Defendant No. 1 while filing the counter-claim also referred to the land comprising Rectangle No. 3, Khasra No. 12(8-0) – Trial Court in issue No. 7 has also referred to land comprised in Khasra No.3//11/7-12, and Khasra No.3//12/8-0, total measuring 15 kanals and 12 marlas -- Parties were conscious of the fact that the dispute is with respect to 15 kanals and 12 marlas land, which also includes land comprising Rectangle No.3, Khasra No.12(8-0) – Held, in the prayer clause inadvertently the land comprised in Rectangle No.3, Khasra No.12 (8-0) was omitted – Amendment allowed.

(Para 4-12)

B. Code of Civil Procedure, 1908 (V of 1908), Section 153 -- Correction in prayer after decree -- Section 153 of the CPC enables the Court to exercise its general power to amend at any point in time but for such application, there is only one pre-condition that such amendment should be necessary for the purpose of determining the real question or issues raised by the parties to the dispute.

(Para 11)

A. Code of Civil Procedure, 1908 (V of 1908), Order 26 Rule 9 – Constitution of India, Article 227 -- Appointment of Local Commissioner – Maintainability of revision -- No revision would be maintainable against an order dismissing an application for appointment of a Local Commissioner -- It is trite that an order refusing to appoint a Local Commissioner does not decide any issue nor does it adjudicate any rights of the parties for the purpose of the suit and hence would not be a revisable order.

(Para 6)

B. Code of Civil Procedure, 1908 (V of 1908), Order 26 Rule 9 -- Appointment of Local Commissioner – Demarcation of land -- Prima facie there does not appear to be any dispute regarding demarcation of the land inasmuch as the suit simpliciter is for possession and mandatory injunction -- It is for the plaintiff-petitioner to prove her case and she cannot take the aid of the Court agency for creating evidence for her – Application for appointment of Local Commissioner dismissed.

(Para 8, 9)

Court Fees Act, 1870 (7 of 1870), Section 7 -- Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 – Ad-valorem court fee – Rejection of plaint -- Suit for declaration challenging sale deed -- Plaintiff-petitioner is the executant of the registered sale deed -- Merely because the plaintiff-petitioner is not seeking possession would not entitle him from escaping from the rigors of affixing ad valorem court fee – Order directing plaintiff-petitioner to affix ad valorem court fee, upheld.

(Para 2, 7, 8)

A. Code of Civil Procedure, 1908 (V of 1908), Order 39 Rule 1 & 2 – Temporary injunction against co-sharer -- Plaintiffs and defendants are joint owners in possession over land and nobody has been shown to be in the exclusive possession over the suit land -- It is trite law that the no injunction is to be granted against the other co-sharer.

(Para 9)

B. Code of Civil Procedure, 1908 (V of 1908), Order 39 Rule 1 & 2 – Temporary injunction against co-sharer -- Co-sharer cannot be restrained from raising construction over the joint land except when co-sharer results in ousting of other co-sharer or is detrimental to the rights of other co-sharers -- Possession of one co-sharer is possession of all in the eyes of law -- So, even if the respondents raise construction over some portion, it will be subject to partition and respondents cannot claim any preferential right over a particular chunk of land due to raising of construction over it.

(Para 10)

Code of Civil Procedure, 1908 (V of 1908), Order 9 Rule 13, Order 21 -- Ex-parte decree – Setting aside of – Stay of execution -- Summons sent at residential address received by brother -- Specific case of the petitioner that he is residing separately from his brother -- It is a question of evidence whether petitioner is residing in a separate house or both the brothers are residing in the same house – Amount of decree is going to be recovered by selling the property of the petitioner, it would definitely cause irreparable loss to the petitioner -- Execution of decree stayed subject to the condition that the petitioner shall deposit 50% of the amount of decree in the Executing Court within 15 days – Ld. trial Court directed to decide the application under Order 9 Rule 13 expeditiously.

(Para 6-8)

A. Will – Health of testator – Suspicious circumstances -- From the evidence of the witnesses with reference to the health of the testator Court do not find that he was not in good senses and was unable to understand his welfare or take correct decisions -- Hence, the Will cannot be held to be suspicious on the ground of the alleged ill-health of the testator at the time of the execution of the Will.

(Para 9.5)

B. Will – Genuineness of -- Testator left behind about 8 acres of land and three houses -- Respondent is bequeathed merely 3.5 Acres of land -- Meaning thereby the balance property is in possession of widow and daughter -- This is how the interest of the natural legal heirs has been taken care of -- Expenses for his last rites were borne by the husband of the respondent who was taking care of the land of the testator -- Nothing on record to suggest that the appellants were taking care of the property left by the testator immediately after his death or that any steps were taken by them to get the same mutated in their favour – Will found to be genuine – Judgment upheld.

(Para 2, 15)

C. Code of Civil Procedure, 1908 (V of 1908), Order 8 Rule 3, 5 -- Pleadings – Admission and denial in written statement -- Order VIII Rules 3 and 5 CPC clearly provides for specific admission and denial of the pleadings in the plaint -- A general or evasive denial is not treated as sufficient -- Proviso to Order VIII Rule 5 CPC provides that even the admitted facts may not be treated to be admitted, still in its discretion the Court may require those facts to be proved -- This is an exception to the general rule --  General rule is that the facts admitted, are not required to be proved.

(Para 15.1)

Limitation Act, 1963 (36 of 1963), Section 27, Article 64, 65 -- Suit for possession – Limitation of 12 years -- Adverse possession -- Defendant/ appellant has not set up the plea that his possession was adverse -- In the earlier case, defendant took the plea that suit property was given by his father in the family settlement, which, he failed to prove -- Possession of defendant is permissive possession and suit cannot be held to be barred by limitation -- An owner of the property cannot be deprived to get possession of the property.

(Para 19)

Code of Civil Procedure, 1908 (V of 1908), Order 41 Rule 27, Section 96 – Additional evidence in appeal -- It is incumbent upon learned Appellate Court to consider the application for additional evidence along with the hearing of the appeal on merits -- Addl. District Judge decided the application without deciding the appeal -- Impugned order set aside.

(Para 12-14)

Code of Civil Procedure, 1908 (V of 1908), Section 96, Order 42 Rule 5 -- First Appeal – Stay application – Non-decisioning upon – Warrant of possession by Executing Court -- Executing Court directed to suspend the order of issuance of warrant of possession and postpone it for another fifteen days – Ld. Appellate Court directed to decide the stay applications on the date already fixed, or any other date convenient to the Court but not beyond fifteen days thereafter.

(Para 10)