Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 3, Order 7 Rule 11 -- Suit against dead person – Maintainability of – Rejection of plaint -- Suit against deceased dismissed with liberty to institute a fresh suit in accordance with law against the LRs.

(Para 6)

A. Hindu Marriage Act, 1955 (25 of 1955), Section 13 -- Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 – Divorce -- Adultery -- Adulterer as party – Requirement of -- Rejection of plaint -- Alleged adulterer is not a necessary party as a decree can be passed in his/ her absence -- Likewise, the adulterer is not a proper party since the issue concerning adultery can be adjudicated without making the adulterer a party to the cause -- Proof of adultery need not be conflated with who should be arrayed as a party to a divorce action – Application for rejection plaint dismissed.

(Para 2, 11, 11.1, 17)

B. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 – Divorce petition -- Rejection of plaint – Petition cannot be rejected in a piecemeal manner upon an application being moved under Order VII Rule 11 of CPC.

(Para 11, 15)

A. Code of Civil Procedure, 1908 (V of 1908), Order 18 Rule 4 – Provincial Small Cause Courts Act, 1887 (9 of 1887), Section 25 -- Transfer of Property Act, 1882 (4 of 1882), Section 106 -- Termination of lease – Suit for eviction, and recovery of rent and damages for use and occupation -- Ex-parte proceedings -- In ex-parte proceedings the Court is required to test the case of the plaintiff and not merely believe whatever has been stated in the plaint.

-- Impugned order records that the Defendants/Revisionists had filed written statement however, at the stage of evidence did not file any evidence in support of his written statement or in rebuttal of the plaint nor examined the plaintiff witnesses.

-- Defendants/ Revisionists also did not appear at the time of arguments and the case in such circumstances proceeded ex-parte against the Defendants/ Revisionists.

– Plaintiff/ Respondent filed the certified copy of the registered Lease Agreement executed between the parties.

-- Notice u/s 106 of the Transfer of Property Act, Postal receipts showing service of the Notice upon the Defendants/ Revisionists, photocopies of the cheques along with the Bank return memos showing insufficient funds in the Bank account of the Defendants/ Revisionists.

Evidence of the Plaintiff/ Respondent stood unrebutted -- Taking note of the above in the absence of any contest from the Defendants/ Revisionists learned Judge Small Causes Court proceeded to decree the suit of the Plaintiff/Respondent -- No illegality in the procedure adopted by the learned Judge Small Causes Court in decreeing the Suit of the Plaintiff/Respondent -- Findings recorded by the learned JSCC calls for no interference.

(Para 25-28, 39-41)

B. Indian Evidence Act, 1872 (1 of 1872), Section 63(2)(3), 65, 74 -- Registration Act, 1908 (16 of 1908), Section 57 -- Certified copy of registered lease deed – Admissibility in evidence –  Certified copy of the Lease Agreement will fall under the category of secondary evidence – Certified copy of the Lease Agreement is a Public Document, as contemplated u/s 74 and in terms of the 3rd Proviso to Section 65(e) or 65(f) the certified copy is admissible in evidence -- Sub Section 5 of Section 57 of the Registration Act provides that certified copy given u/s 57 of the Registration Act shall be admissible for the purpose of proving the contents of its original document -- Rightly relied while decreeing the Suit.

(Para 29-34)

East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13B, 15 – Code of Civil Procedure, 1908 (V of 1908), Order 41 Rule 27 – Indian Evidence Act, 1872 (1 of 1872), Section 90 -- NRI Landlord – Ownership – Proof of – Additional evidence – 30 year old sale deed – Presumption -- Registered sale deed of 1937 produced from proper custody and being more than 30 years old document carries presumption in terms of Section 90 of Indian Evidence Act and its veracity cannot be impeached at the hands of tenant – Application to lead additional evidence in the shape of sale deed allowed – Matter remanded back to Rent Controller with liberty to tenant for rebuttal if any.

(Para 9-12)

Code of Civil Procedure, 1908 (V of 1908), Section 96 -- Specific Relief Act, 1963 (47 of 1963), Section 16 -- First Appeal – Stay of decree – Right of -- Suit for specific performance decreed – Appeal was filed, but no order relating to the stay was granted and after about a period of 11 months, the application was dismissed -- The Court, ought to take into consideration that it is the statutory right exercised by the petitioner-defendant, by filing appeal -- Creation of third party rights, may lead to multiplicity of litigation – Revision allowed, impugned order set aside -- Operation of the judgment and decree stayed, till the decision of First Appeal.

(Para 7-12)

Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 10 – Suit for specific performance – Impleadment as defendant -- Rights or interest of petitioners to the extent of their shares in suit land, are neither the subject matter of suit nor of the agreement to sell – Petitioners are neither necessary nor proper parties to the suit --  Petitioner cannot claim to be impleaded as party in the suit, where no relief is claimed against them – Law is settled that any decree against a stranger is nullity, therefore, any decree passed in the suit will have no effect on the rights of the petitioners.

(Para 7, 12)

Code of Civil Procedure, 1908 (V of 1908), Order 14 Rule 5 – Additional issues – Suit for possession by way of partition – During the proceedings, defendant moved an application for framing of an additional issue for raising the objection of partial partition – In the written statement preliminary objection No.4 has been taken stating therein that the partition is partial as plaintiff has not mentioned Khasra in which the plaintiff had raised construction of the residential house – Only because the word “partial” has been clerically mentioned as “parcel”, the trial Court has observed that no such objection was raised – Direction given to the trial Court to frame additional issue regarding the partial partition.

(Para 2, 3)

A. Code of Civil Procedure, 1908 (V of 1908), Section 11 -- Res-judicata -- General policy behind the principle of res judicata as enshrined u/s 11 CPC is to avoid parties to litigate on the same issue which has already been adjudicated upon and settled -- This is in consonance with the public policy so as to bring to an end the conflict of interest on the same issue between the same parties -- One of the basic essential ingredients for applying the principle of res judicata, is that the matter which is directly and substantially in issue in the previous litigation ought not to be permitted to be raised and adjudicated upon in the subsequent suit.

(Para 23)

B. Code of Civil Procedure, 1908 (V of 1908), Section 11 -- Res-judicata between co-defendants -- Principle of res judicata is applicable not only between the plaintiff and the defendants but also between the co-defendants -- In applying the principle of res judicata between the co-defendants, primarily three conditions are necessary to be fulfilled, namely, (i) there must be a conflict of interest between the co-defendants; (ii) there is necessity to decide the said conflict in order to give relief to plaintiff; and (iii) there is final decision adjudicating the said conflict -- Once all these conditions are satisfied, the principle of res judicata can be applied inter se the co-defendants.

(Para 23)

Code of Civil Procedure, 1908 (V of 1908), Section 96, 100 – Issues not pressed in Trial court – Power of Appellate court – Before the First Appellate Court, no arguments have been raised qua the issue Nos.2 to 4 -- However, the First Appellate Court reversed the issues while deciding the appeal -- Having chosen to not press the issue Nos.2 to 4 before the Trial Court and in the absence of any challenge having been laid to the issues before the before the First Appellate Court, it is incomprehensible as to how the First Appellate Court reversed the findings -- Appeal allowed, judgment and decree passed by the First Appellate Court set aside and that of the Trial Court restored.

(Para 11-13)

A. Code of Civil Procedure, 1908 (V of 1908), Order 39 Rule 1 & 2 – Temporary injunction -- Before granting injunction, the court is required to apply three well known tests namely;

a) prima facie case in favour of the plaintiffs

b) balance of convenience

c) irreparable loss and injury which the party may suffer if the injunction is not granted.

(Para 8)

B. Code of Civil Procedure, 1908 (V of 1908), Order 39 Rule 1 & 2 – Temporary injunction – Joint owner -- Property is situated in an area which is being used for running a small scale industry -- No dispute that previously the defendants were utilising the area by constructing a shed with iron sheets -- Defendants have installed their machinery to carry out work of laundry and steam press -- Even if the defendants are permitted to put new iron or cemented sheets over the pillars, there will be no permanent change in the nature of the property -- Defendants stated that if suit is decreed and suit property falls in the share of the plaintiffs, they will not claim any compensation for the construction.

-- Decision of the suit is likely to take a long time and if the parties are not permitted to use the property, it will lead to wastage of resources.

-- If the plaintiffs succeed they will get the property with construction.

-- Parties are yet to lead evidence.

Held, Courts below have erred in obstructing the defendants from completing the renovation/ re-construction of the shed by granting injunction.

(Para 9, 10)

Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 – Rejection of plaint – Deficiency in court fee – Civil Suit fixed for arguments -- Learned Trial Court, taking into consideration a period of about seven years at the stage when the matter was fixed for arguments, justifiably held that the question raised can be examined during the course of appreciation of evidence on the basis of material on record, dismissed the application – Order dismissing the application, upheld.

(Para 1-3)

Code of Civil Procedure, 1908 (V of 1908), Order 9 Rule 13 -- Ex-parte decree -- Setting aside of -- Application under Order 9 Rule 13 CPC was filed after more than a year, dismissed by Ld. Trial Court – Nothing on the record to explain the delay -- Infact, the application under Order 9 Rule 13 CPC proceeds on the premise that it was being filed within time from the date of knowledge -- No application or even a prayer for condonation of delay -- Both the Courts had noticed that though the defendant No.1-petitioner claimed that he was not served at the address, however, in the execution proceedings, on the same very address, the defendant No.1-petitioner received the summons and put in appearance through his counsel – No merit in the revision petition, dismissed.

(Para 1, 6)

Court Fees Act, 1870 (7 of 1870), Section 7(x)(a) -- Suits Valuation Act, 1887 (7 of 1887), Section 8 – Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 – Suit for specific performance -- Rejection of plaint -- Advalorem court fees – Court fee on market value of property -- Trial Court directed to determine the market value of the suit property, as on the date of filing of the suit, by allowing the parties to place on record the documentary evidence in that respect and also by seeking information from the office of Collector/Revenue Authorities and thereafter direct the plaintiff to pay the ad-valorem court fee on the market price of the suit property -- On payment of said court fee, the Trial Court may proceed further with the suit.

(Para 11)

Code of Civil Procedure, 1908 (V of 1908), Section 11, Order 23 Rule 1, Order 41 -- Constitution of India, Article 226 – Appeal dismissed as withdrawn – Writ jurisdiction -- Petitioner remained unsuccessful in the civil suit and withdrew the appeal by filing an application under Order XXIII Rule 1 of CPC by stating that there was a technical defect in the suit and the appeal -- Even no liberty was sought by the petitioner for filing afresh appeal before the learned Lower Appellate Court and she has filed the writ petition, seeking same relief which cannot be entertained and adjudicated upon -- Writ petition suffers from the principles of res judicata – Writ petition dismissed

(Para 11, 12)

A. Code of Civil Procedure, 1908 (V of 1908), Order 26 Rule 10 – Local Commissioner’s report – Evidential value -- Commissioners’ reports are non-adjudicatory in nature and the Court adjudicate upon the rights of the parties -- It is only an opinion or noting -- Such a report does not automatically form part of the court’s opinion, as the Court has the power to confirm, vary or set aside the report.

(Para 10)

B. Code of Civil Procedure, 1908 (V of 1908), Order 26 Rule 10 – Possession over property – Local Commissioner’s report -- Except the report of the Local commissioner, the appellant-plaintiff has failed to produce any evidence to show his possession over the suit property and therefore, the Courts below have rightly drawn an adverse inference against the appellant/ plaintiff.

(Para 10)

Code of Civil Procedure, 1908 (V of 1908), Order 16 Rule 10, Order 16 Rule 12 -- Constitution of India, Article 227 -- Closing of evidence -- One opportunity to lead evidence -- Due to pre-occupation of the counsel the evidence could not be recorded -- In order to do complete justice between the parties, plaintiff-petitioner granted one effective opportunity to lead its evidence, subject to payment of Rs.30,000/- as costs to be paid to the defendant-respondent.

(Para 5)

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)