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)

Code of Civil Procedure, 1908 (V of 1908), Section 27, Order 5 Rule 20 -- Service through WhatsApp/ E-mail -- Prayer seeking direction to effect service upon the respondents by email and whatsapp – Applicant permitted, would furnish an affidavit to the effect that the email and whatsapp numbers are correct and that email sent has not bounced back as well as to take a screen-shot of the service of the summons through whatsapp upon both the respondents.

(Para 1-3)

A. Code of Civil Procedure, 1908 (V of 1908), Order 9 Rule 8, 9 – Limitation Act, 1963 (36 of 1963), Section 5 – Dismissed in default – Restoration of – Delay in application – Trial Court adopted hyper-technical approach while dismissing the applications -- Rules of procedure provisions of law are meant to advance ends of justice -- Courts while dealing with such like matters should endeavour to see that a lis is decided on merits rather than non-suiting a party on technical grounds -- If a litigant is grossly negligent and casual in his approach with regard to the litigation in which he is involved, then he does not deserve any sympathy or leniency for the default committed by him with regard to putting in appearance in the Court -- However, if sufficient reasons are given for non-appearance, then a very rigid and technical view in the matter should not be taken.

(Para 7)

B. Code of Civil Procedure, 1908 (V of 1908), Order 9 Rule 8, 9 – Limitation Act, 1963 (36 of 1963), Section 5 – Dismissed in default – Restoration of – Delay in application – Plaintiffs are Non-Resident Indians and are of very old age -- They have rendered a plausible and satisfactory explanation for their non representation in the Court, when the case was dismissed for non-prosecution -- Trial Court should have considered the prayer of the plaintiffs to get the suit restored by condoning the delay in filing of the application sympathetically -- Claim ought to be adjudicated on merits rather than being rejected for technical reasons – Revision petition accepted; the impugned order set aside and the case is remanded to the trial Court -- Trial Court may allow the applicants to lead evidence in support of their contentions, if so desired and then after hearing learned counsel for the applicants, a fresh order in accordance with law in the light of observations made in this order be passed.

(Para 8)

Limitation Act, 1963 (36 of 1963), Section 27 -- Adverse possession -- Co-sharer’s possession – Nature of -- Possession of one co-sharer is deemed to be possession of all, unless and until the said co-sharer can establish exclusive possession with the intention to oust the right of the other co-sharer -- Appellants has not been able to point out any evidence, which shows ouster – Appeal is without any merit and is dismissed.

(Para 1, 4-6)

A. Code of Civil Procedure, 1908 (V of 1908), Section 114, Order 47 Rule 1 – Constitution of India, Article 136 -- SLP against review order – Maintainability of -- SLP would not lie against only a review order. Yashwant Singh Negi’s case (2013) SCC online 308 relied.

(Para 5)

B. Code of Civil Procedure, 1908 (V of 1908), Section 114, Order 47 Rule 1 – Constitution of India, Article 136 -- Review after 56 years 6 days -- One can find no error apparent after 50 years for the Court to exercise the jurisdiction of review – It is an abuse of process of law and complete wastage of judicial time – SLP dismissed with costs of Rs. 5000/-.

(Para 5, 6)

Hindu Marriage Act, 1955 (25 of 1955), Section 13-B – Constitution of India, Section 227 – Divorce by mutual consent – Waiver of six month period for second motion -- It is a case of broken marriage between the spouses with little chances of their resuming cohabitation and living together -- Spouses are stated to have settled all the issues between them in an amicable manner and asking them to wait for a period of six months shall only amount to prolong their agony -- Petition accepted, parties to move an application for preponing the date of hearing and then the Court may pass appropriate order in light of the order passed in the revision petition.

(Para 9, 10)

Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17 -- Transfer of Property Act, 1882 (4 of 1882), Section 52 -- Constitution of India, Article 227 -- Suit challenging gift deed – Defendant executed lease deed – Amendment of plaint – Revisional jurisdiction -- Held, any transaction with respect to the suit property during the pendency of the suit is governed by the principle of lis pendens -- Provisions of Order 6 Rule 17 CPC ordinarily prohibits the amendment of the pleadings after the trial has commenced -- Trial has already made substantial progress -- Any transaction between the defendants and third party is not binding on the rights of the plaintiffs, particularly, when these are during the pendency of the suit -- Hence, no ground to exercise its jurisdiction under Article 227 of the Constitution of India is made out.

(Para 3, 6)

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, (54 of 2002), Section 13(2)(4) -- Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 – SARFAESI proceedings – Challenge in civil suit -- Rejection of plaint – Bank’s application under Order 7 Rule 11 CPC for rejection of the plaint was allowed by the Civil Judge (Junior Division) – Appeal against the said order was allowed by learned Additional District Judge – Where it cannot be disputed that an action under the Securitisation Act is based upon creation of an equitable mortgage jurisdiction of the Civil Court is barred – Revision allowed, and impugned order passed by the Additional District Judge set aside, order passed by the trial Court is restored.

(Para 1,10,11)

Code of Civil Procedure, 1908 (V of 1908), Order 5 Rule 20 – Substituted service – Local proclamation – Beat of drum -- Punjab, Haryana and Chandigarh added a proviso to O 5 R 20 CPC which enables the Court to direct substituted service in such a manner as the court may deem fit -- Court after examining the various aspects, ordered service of the defendants through local proclamation (by beat of drum) and pasting of notice -- Case of the defendants themselves that they have shifted to Dubai -- Hence, there is sufficient compliance of Order 5 Rule 20 CPC.

(Para 10)

Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17 -- Amendment in the prayer of plaint -- Challenge to the amendment can only be made in case any of the party feels aggrieved on the ground that the said amendment is causing prejudice -- In the absence of any prejudice being pleaded or argued/ proved before High Court, the allowing of amendment of the prayer clause by the trial Court cannot be treated as arbitrary or beyond jurisdiction.

(Para 3)

Constitution of India, Article 226 – Code of Civil Procedure, 1908 (V of 1908), Section 9 -- Shamilat deh – Writ jurisdiction -- If the proprietors claim that the Shamilat land has never been reserved/used for common purposes, they can get their title decided from the Civil Court -- Writ petition is not the appropriate remedy. Jai Singh’s case 2003(2) PLR 658 relied.

(Para 3)

Code of Civil Procedure, 1908 (V of 1908), Section 25 – Transfer petition – Ground of territorial jurisdiction – Scope of -- Suit for infringement of trade mark as also copyright infringement – Court find no scope of going into the question of as to whether the Court in which the suit is instituted has territorial jurisdiction to try and determine the suit or not in a petition for transfer of a suit invoking Section 25 of the CPC -- This point is required to be urged before the Court in which the suit is pending -- Plea of transfer of the said suit declined.

(Para 1, 2)

Haryana Urban (Control of Rent and Eviction) Act, 1973 (11 of 1973), Section 13 -- Code of Civil Procedure, 1908 (V of 1908), Order 8 Rule 10 – Delay in written statement -- Court has the power and jurisdiction to accept written statement beyond the period of 90 days in appropriate cases -- Petition was listed for 23.08.2018 was adjourned on 21.08.2018 for 28.09.2018 as the presiding officer was availing casual leave -- Written statement was clearly ready on the said date -- Landlord has yet to lead evidence – Petitioner/tenant shall suffer irreparable loss and manifest injustice, in case, he is not permitted to file written statement and his defence is struck of -- Written statement of the petitioner should be taken on record.

(Para 13-15)

Code of Civil Procedure, 1908 (V of 1908), Section 9 -- Pendency of Suit for 26 years – Early decision of suit -- A suit is pending at the first stage, and the Courts have to decide the appeal and the second appeals which would arise thereafter – Parties will cooperate for an early trial to the suit and the trial court will endeavor to give a quietus to the issues before it preferably in a period of one year.

(Para 12)

Code of Civil Procedure, 1908 (V of 1908), Section 100 -- Recovery suit decreed -- New plea in Second appeal – Permissibility of -- Defendants did not object to the passing of the decree on the ground that no decree could be passed against defendants no.2 and 3, personally -- During hearing of the first appeal, plaintiffs did not object to the decree passed by the learned trial court on this aspect -- It would not be appropriate to permit the appellants to put forth new plea.

(Para 1, 6, 7)

Code of Civil Procedure, 1908 (V of 1908), Section 152, 153 -- Correction in pleadings after judgment – Permissibility of -- Application dismissed on the ground that such amendment cannot be allowed because the entire evidence had been led on the basis of the aforesaid pleadings – Held, once the court comes to a conclusion that the clerical or arithmetic mistake has crept in due to any accidental slip or omission, the same can be permitted to be corrected not only in the pleadings but also in the evidence as well as in the judgment and the decree passed -- Section 153 CPC further enables the court to amend any defect or error in any proceedings in a suit – Held, Ld. trial court was required to record the finding as to whether such error was result of clerical or arithmetic mistake or not – Ld. Trial Court failed to appreciate the scope of an application filed u/s 152 CPC in a correct perspective – Impugned order set aside with a direction to the learned trial court to re-decide the application in accordance with law.

(Para 2-5)

Code of Civil Procedure, 1908 (V of 1908), Order 15 Rule 5 -- Mesne profit – Denial of possession – Stage of – Defendant-petitioner is canvassing that it had already vacated the suit premises and is, therefore, not liable to pay any mesne profits – However, there is no assertion by the defendant-petitioner in it’s written statement that it had handed over possession of the suit premises on such and such date to the plaintiffs-respondents – Nothing on record to show that the defendant-petitioner had handed over possession of the suit premises to the plaintiffs-respondents – Once the defendant-petitioner has not denied in it’s written statement that it is in possession of the suit premises it cannot take a contrary stand merely to avoid paying the mesne profits.

(Para 18)

Motor Vehicles Act, 1988 (59 of 1988), Section 166 -- Constitution of India, Article 227 -- Compensation in motor vehicle accident case -- 50% amount in fixed deposits – Revision against -- All the claimants are major by age; having lived a considerable number of years of social life -- While lying in F.D., the money may not generate the same additional value as it can create through a business enterprise or other means of income, which can be created through this money -- Petition allowed, order passed by the Court below; to the extent it has retained the 50% of the amount in the fixed deposits set aside -- Hence, entire amount ordered to be released to the petitioners, in accordance with law.

(Para 2-4)

Code of Civil Procedure, 1908 (V of 1908), Order 9 Rule 13 -- Ex-parte proceedings – Setting aside of -- Defendant is a private limited company -- On the basis of notice sent through registered cover and report of the postman regarding refusal, the defendant was proceeded ex parte in the suit -- Postman has not been examined in evidence -- Plaintiff knew that the Director of the defendant-Company works in Paras Hospital, Gurugram, however, no effort was made to serve the defendant on that address -- Summons were served at the place of an under construction building -- Plaintiff itself was carrying on with the construction work on the aforesaid building – Ld. trial court allowed application under Order 9 Rule 13 CPC -- No ground to interfere with the order.

(Para 2)

A. Code of Civil Procedure, 1908 (V of 1908), Order 21 Rule 37 -- Execution of decretal amount – Warrant of arrest -- As per the provisions of Order 21 Rule 37 CPC, show cause notice is required to be issued to the Judgment Debtors to show cause why he should not be committed to civil prison -- As per Sub-Clause 2 of Rule 37 of Order 21, it has been stipulated that where appearance is not made in obedience to the notice, the Court shall, if the Decree Holder so requires, issue a warrant for the arrest of the Judgment Debtor.

(Para 11)

B. Code of Civil Procedure, 1908 (V of 1908), Order 21 Rule 37 -- Execution of decretal amount – Conditional warrant of arrest -- Show cause notice was issued and, the petitioners were both served and petitioner No.1 appeared and sought time to make payment and thereafter, stopped appearing – In case the payment is made as per the calculation sheet, then the Judgment Debtor/petitioner No.2 is not to be arrested and it is only in case the payment is not made that he has to be arrested and produced before the Court -- Thus, the procedure adopted by the Executing Court for the issuance of conditional warrant of arrest is absolutely legal and in accordance with law.

(Para 12)

C. Code of Civil Procedure, 1908 (V of 1908), Order 21 Rule 30 -- Execution of decretal amount -- Simultaneous attachment of property and detention in prison – Power of -- As per the provision of Order 21 Rule 30 CPC, both the procedure with respect to attachment and also detention in prison can be taken against the petitioners/Judgment Debtors either individually or simultaneously -- Even in a situation where the amount is partly recovered by attachment and sale, for the recovery of balance amount in any case, the detention in civil prison can be ordered.

(Para 13)

Haryana Co-operative Societies Act, 1984 (22 of 1984), Section 115 – Constitution of India, Article 226 – Non-disposal of revision/stay – Writ petition against --  Revision petition pending has neither been listed nor any orders on stay application passed -- It would be suffice to direct the respondent No. 1 to dispose off the revision petition including stay application, preferably, within a period of two months -- In the meanwhile, no order adverse to the interest of the petitioner shall be passed by the respondents.

(Para 2-4)

A. Motor Vehicles Act, 1988 (59 of 1988), Section 166 – Compensation in motor vehicle accident case – Daily diary report – Evidential value --Contends that as per daily dairy report, the accident took place as a stray dog suddenly came on the road and therefore, the driver of the vehicle cannot be said to be negligent – Held, daily dairy report was entered on the statement of respondent No.6, who was, at the relevant time, driving the motorcycle he cannot be expected to admit his negligence – In support of the claim petition, eyewitness has appeared before the Court to depose, he has been thoroughly cross examined by putting searching questions -- His deposition has been found creditable by the Tribunal -- Hence, the contention is without substance.

(Para 4-6)

B. Motor Vehicles Act, 1988 (59 of 1988), Section 166 – Compensation in motor vehicle accident case – Pleadings of negligence – Requirement of -- Contention that deceased was not wearing helmet while riding on the pillion of a motorcycle, hence amount payable by the insurer is liable to be reduced on account of contributory negligence of the deceased – Held, Insurance company has neither laid any foundation in the pleadings nor led evidence in support thereof -- Insurance company while filing the written statement did not plead that deceased was not wearing the helmet -- Still further, the insurance company did not lead any evidence to prove this fact and also failed to raise this point before the Tribunal -- Still further, insurance company has failed to draw the attention of the Court to the cross examination of eye-witness on this aspect -- In such circumstances, the argument of insurance company do not deserve acceptance.

(Para 4, 7)

A. Registration Act, 1908 (16 of 1908), Section 17(2)(vi) -- Succession after death – Suit for declaration -- Compromise beyond suit property – Registration of – Requirement of -- Whether a compromise decree in respect of land which is not the subject-matter of suit but is part of the settlement between the family members requires compulsory registration in terms of Section 17(2)(vi) of the Registration Act, 1908 – Parties are the sons of deceased – Compromise was between the two brothers consequent to death of their father and no right was being created in praesenti for the first time, thus not requiring compulsory registration.

(Para 7, 11)

B. Code of Civil Procedure, 1908 (V of 1908), Order 23 Rule 3 -- Suit for declaration -- Compromise beyond suit property – Permissibility of --  Compromise decree entered into between the parties in respect of land which was not the subject matter of the suit is valid and is thus a legal settlement.

(Para 8, 9)

Letters Patent Appeal -- Status-Quo order by learned Single Judge – Vacation of stay -- Application for vacation of stay ordered to be heard alongwith main case – Held, there is no application of mind with regard to the factum as to whether the order passed initially requires to be continued or not, nor as the aspect with regard to the grounds and the reasons mentioned in the application for vacation of stay -- It would be appropriate that the Court takes up the matter and decides the said application at the first instance.

(Para 4)

A. Motor Vehicles Act, 1988 (59 of 1988), Section 166 -- Code of Civil Procedure, 1908 (V of 1908), Order 41 Rule 27 -- Compensation in motor vehicle accident case – Additional evidence -- Only reason pleaded in the application is that the award would cause wrongful loss to the appellant/insurance company -- Reason does not fulfill the requirements of Order XLI Rule 27 CPC.

(Para 7)

B. Motor Vehicles Act, 1988 (59 of 1988), Section 166 -- Code of Civil Procedure, 1908 (V of 1908), Order 41 Rule 27 -- Compensation in motor vehicle accident case – Insurance company has taken a stand that the claimants in collusion with the driver and the owner of the offending vehicle have filed the claim petition, whereas on the other hand, now the insurance company wants to examine the driver – Ld. Tribunal had given sufficient opportunities to the driver and the owner as well as to the insurance company to lead their evidence but they failed to do so -- Application under Order XLI Rule 27 CPC for permission to lead additional evidence dismissed.

(Para 7)

C. Motor Vehicles Act, 1988 (59 of 1988), Section 166 -- Compensation in motor vehicle accident case – Plea of collusion – Proof of -- Insurance company has not led any evidence to prove its plea of collusion between the claimants on the one hand and the owner and driver on the other hand – No ground to interfere in the award passed by the ld. Tribunal is made out -- Appeal dismissed.

(Para 11)

Code of Civil Procedure, 1908 (V of 1908), Order 39 Rule 1 & 2 – Temporary injunction against co-sharer – Exclusive possession – Pleading of – Application dismissed/ Appeal also dismissed – Revision against -- Petitioner nowhere pleaded in his suit that he is in exclusive possession of the suit property – Petitioner/ Plaintiff had relied on electricity bills, photographs of the house, gas connection, pass book etc. -- Respondent-defendants had placed on record electricity bills with payment receipts -- As the exclusive possession of the petitioner had not been pleaded and not been established there appears to be no ground to interfere with the orders of the Courts below -- Interest of the petitioner has been adequately protected by the observation that the defendant-respondents cannot claim any benefit or compensation for any construction made by them during the pendency of the suit and the same would be at their own risk and responsibility -- A suit for partition between the parties is already pending -- Rights and shares would be determined therein -- No merit in the revision.

(Para 1, 2, 10)

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, (54 of 2002), Section 13(2)(4) -- Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 – SARFAESI proceedings – Civil suit – Maintainability of -- Rejection of plaint -- After the Bank had initiated proceedings under the SARFAESI Act and issued a notice dated 09.08.2019 u/s 13(2) thereof, the petitioner filed the suit on 19.09.2019 wherein besides seeking declaration as to his share and challenging the Will, he has also sought injunction restraining the Bank from selling/auctioning the property -- The facts give a clear impression that the action has been taken by the petitioner with an intention to create a hurdle so that the Bank is not able to recover its dues – 'No Objection Certificate' has been given by him at the time the property was mortgaged with the Bank -- Section 34 of SARFAESI Act bars the jurisdiction of the civil court in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is required to determine by or under the Act -- Except for a vague assertion that the officials of the Bank are in league with respondent No.2, there is no pleading regarding fraud by the Bank -- Material averments in the plaint do not even remotely suggest as to how the action of the bank is fraudulent or absured or untenable -- Suit is barred u/s 34 of the SARFAESI Act – Order rejecting the plaint affirmed.

(Para 8-13)

Code of Civil Procedure, 1908 (V of 1908), Order 9 Rule 13 -- Ex-parte decree – Setting aside of – Stay of dispossession -- Due to lockdown, the application has been adjourned to 06.07.2021 -- Executing Court has already got registered a sale deed in favour of the respondent and now the efforts are being made to dispossess the petitioner -- Keeping in view the aforesaid facts, the dispossession of the petitioner shall remain stayed till next date of hearing i.e 06.07.2021 -- Trial court requested to take up the main application as well as the application for grant of interim on the date already fixed and pass appropriate orders.

(Para 2, 3)

Constitution of India, Article 21, 226 -- Live-in-relationship without divorce – Police protection – Right of – Matter referred to larger Bench -- Hon'ble Chief Justice requested to constitute a Larger Bench to decide the following questions:- 1. Where two persons living together seek protection of their life and liberty by filing an appropriate petition, whether the Court is required to grant them protection, per se, without examining their marital status and the other circumstances of that case? 2. If the answer to the above is in the negative, what are the circumstances in which the Court can deny them protection?

(Para 2, 3)

Constitution of India, Article 21, 226 -- Police protection petition -- Validity of marriage -- Scope of -- Present petition is only regarding the protection of life and liberty of the petitioners and, therefore, the validity of the marriage cannot be a ground for denial of such protection.

(Para 6)

Code of Civil Procedure, 1908 (V of 1908), Order 9 Rule 8, 9 -- Wrong noting of date by counsel – Suit dismissed in default – Restoration of -- Serious prejudice would indeed be caused to the petitioner in case the order under challenge is not set-aside -- Respondents will not be prejudiced in case the suit is restored to its original position, as the same is at very preliminary stage, wherein the pleadings are also yet to be completed -- Bona fides of the petitioner are borne out from the fact that he had deposited heavy court fee and had been diligently following up with his counsel -- Default, if any, is attributable to his counsel -- Said default of counsel for the plaintiff/ petitioner has been justified by giving cogent reasons – Without issue notice to the respondents/ defendants, revision allowed -- Civil suit ordered to be restored subject to payment of Rs.25,000/- as costs.

(Para 7-9)

Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 – Court Fees Act, 1870 (7 of 1870), Section 7 (i) – Constitution of India, Article 227 -- Recovery suit as mandatory injunction – Advalorem court fee – Rejection of plaint – Prayer of -- Under Order VII Rule 11 CPC the court is entitled to carefully examine the contents of the plaint to arrive at a conclusion -- Plaintiff has claimed a definite amount of Rs.6,35,00,000/- -- Suit is for recovery although, styled as suit for mandatory injunction -- Ad valorem court fee is payable according to the amount claimed – Order of lower court, directing to pay the ad-valorem Court fee on the amount claimed  -- No ground to interfere under Article 227 of the Constitution of India.

(Para 1, 10-15)

Code of Civil Procedure, 1908 (V of 1908), Order 26 Rule 9 – Suit for permanent injunction – Appointment of Local Commissioner -- It is a settled law that in a suit for permanent injunction, the matter pertaining to the possession of the suit property would have to be decided by the Court on the basis of evidence, oral or documentary, which would be led by the parties and not through a Local Commissioner as it would amount to gathering of evidence.

(Para 4)

A. Code of Civil Procedure, 1908 (V of 1908), Order 12 Rule 6 -- Oral partition – Admission of -- Legality of -- Parties to the suit implemented the same and are already enjoying their respective separate possession -- It is settled law that admission is the best piece of evidence which can be used against a party and since the plaintiffs have not disputed this fact that the oral partition took place -- Therefore, their claim for partition of suit property is without any merit.

(Para 7)

B. Code of Civil Procedure, 1908 (V of 1908), Order 26 Rule 9 – Suit for partition -- Non-appointment of Local Commissioner – Right of – Onus to prove the claim raised in the suit was upon the plaintiffs, who not only failed to lead any evidence on this material issue, but admitted the defence of the defendants – Even otherwise, the appointment of local commissioner cannot be made to collect the evidence for a party.

(Para 8)

Code of Civil Procedure, 1908 (V of 1908), Order 39 Rule 1 & 2 – Constitution of India, Article 227 -- Temporary injunction – Local Commissioner report showing the property measured 48'x74' and not 20'x80' and there was a dispute as such as to which portion of land the petitioner is in possession -- It would be a matter of evidence as to whether the petitioner is in possession of property measuring 20'x80' -- In absence of any material record having been produced before the Courts below the injunction has been declined -- No case as such is made out for interference, revision petition dismissed.

(Para 6-9)

A. Motor Vehicles Act, 1988 (59 of 1988), Section 166 -- Compensation in motor vehicle accident case -- Manner of accident disputed – Counsel failed to draw the attention of the Court to such defence in the written statement and any discussion before the Tribunal on this aspect -- Driver of the offending vehicle did not appear in evidence, who could have deposed about the manner in which the accident took place -- Counsel also failed to draw attention of the Court to the cross examination of PW2, eye-witness on this aspect – Court  expresses inability to accept the argument.

(Para 7)

B. Motor Vehicles Act, 1988 (59 of 1988), Section 166 -- Compensation in motor vehicle accident case -- Salary slip show deceased drew total salary of Rs.76,163/- -- Tribunal after deducting the amount towards AFPP fund subscription, AFPP refund and the amount of income tax came to income of the deceased as Rs.63,182/- per month, of which annual income works out to Rs.7,58,184/- per annum – Deceased was 39 years of age at the time of his death, therefore, 50% addition of actual salary on account of future prospects made out -- Tribunal applied 1/4th deduction towards personal expenses of the deceased, who has left behind four dependents -- Tribunal has arrived at a figure of Rs.8,52,957/- as annual dependency -- No error to interfere in the award passed by the Tribunal.

(Para 8, 9)

A. Motor Vehicles Act, 1988 (59 of 1988), Section 163-A -- Compensation in motor vehicle accident case -- Car was on hire – Pleadings of – Non-framing of issue – Effect of -- No evidence that the car was being plied on hire at the relevant time -- Insurance Company did not plead this fact in its written statement -- Consequently, the Tribunal did not frame any issue on this aspect – Held, Insurance Company has failed to lay any foundation by pleading the aforesaid fact and thereafter, corroborate the same by leading any evidence -- Hence, the contention is rejected.

(Para 8)

B. Motor Vehicles Act, 1988 (59 of 1988), Section 163-A -- Seven persons were travelling in the vehicle whereas the registered seating capacity of the vehicle is of five only – Held, Insurer is liable to the extent of persons permitted under the carriage permit – Vehicle was permitted to be occupied by five persons, only five claim petitions were filed -- No ground to admit the appeals. Anjana Shah’s (2007) 7 SCC 445 & KM Poonam’s case (2011) 2 PLR 477 relied.

(Para 9, 10)

A. Specific Relief Act, 1963 (47 of 1963), Section 14 -- Agreement to sell – Property already mortgage with bank – Criminal proceedings initiated – Effect on civil rights -- Merely because the plaintiff had also preferred criminal proceedings on the ground that the accused had taken bank loan from Bank but had entered into an agreement with him to sell the property, and he had been cheated, would not be a ground to deny the benefit of the decree to him – Appellant/accused acquitted by giving benefit of doubt in criminal proceedings – Suit decreed by civil court, upheld.

(Para 1, 13)

B. Evidence beyond Pleadings – Permissibility of -- It is settled principle that evidence beyond the pleadings cannot be taken into consideration.

(Para 17)

C. Specific Relief Act, 1963 (47 of 1963), Section 14, 16(1)(c) – Specific performance of agreement -- Readiness and willingness – Earnest money and additional amount of Rs.8.5 lacs paid -- Plaintiff prepared D.D. of Rs.13,50,000/-, balance consideration before the cut-off date and purchased stamp papers worth Rs.1,54,000/- -- Filing of the suit was also within a month and a half after serving a legal notice asking the appellant to execute the sale deed -- All these factors combined would go on to show that the Courts below have justifiably decreed the suit in favour of the plaintiff.

(Para 2, 18)

D. Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 4 -- Evidence law -- Execution of agreement to sell – Willingness of -- Wife of the appellant opposed the agreement by approaching the police -- Appellant himself applied for NOC to sell the property --  These factors would go on to show that the agreement had been entered into for the sale of the said property -- Almost 1/3rd of the amount had been received in advance and therefore, it would not lie in the mouth of the appellant to contend that the same had not been executed by him willingly.

(Para 19)

E. Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 4 -- Misrepresentation – Undue influence – Proof of – It is settled principle that allegations of misrepresentation or undue influence have to be given in full and precise particulars and then duly proved under Order 6 Rule 4 CPC.

(Para 20)