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)

Constitution of India, Article 227 -- Hindu Marriage Act, 1955 (25 of 1955), Section 13-B -- Divorce by mutual consent – Waiver of six months – Denial of -- Revisional against -- Marriage between the parties has irretrievably broken and now they have decided to part their ways, so that they both have an opportunity to live their lives in the manner they like and in the given situation -- Insistence of the Court below to wait to another six months would result in adding to their woes -- Revision petition allowed, Family Court, shall entertain the joint petition by waiving off six months period.

(Para 6)

Specific Relief Act, 1963 (47 of 1963), Section 10, 10-A -- Suit for specific performance – Delay and laches – Discretion of court -- A suit for specific performance cannot be dismissed on the sole ground of delay or laches -- Exception to this rule is where an immovable property is to be sold within a certain period, time being of the essence, and it is not found that owing to some default on the part of the plaintiff, the sale could not take place within the stipulated time -- Once a suit for specific performance has been filed, any delay as a result of the Court process cannot be put against the plaintiff as a matter of law in decreeing specific performance -- It is within the discretion of the Court, regard being had to the facts of each case, as to whether some additional amount ought or ought not to be paid by the plaintiff once a decree of specific performance is passed in its favour even at the appellate stage -- Escalation of prices cannot be the sole ground to deny specific performance.

(Para 14)

Code of Civil Procedure, 1908 (V of 1908), Order 8 Rule 10, Section 151 – Written statement not filed within 90  days – Defence struck off – Inherent power of Civil Court -- Trial court allowed the application without recalling the earlier order vide which defence of the defendant was struck off for non-payment of costs of Rs.500/-, as well as, having not filed the written statement within the permissible period of 90 days – Held, Trial court is vested with inherent powers u/s Section 151 CPC to correct any mistake and/or recall its own order in the interest of justice, at a later stage, if the circumstances are made out.

(Para 1-3)

Electricity Act, 2003 (36 of 2003), Section 126, 127, 135, 145 – Code of Civil Procedure, 1908 (V of 1908), Section 9 -- Theft of electricity – Assessment of electricity charges – Suit for declaration and injunction -- Maintainability of -- Civil Court will have no jurisdiction in respect of matters, which are within the jurisdiction of an Assessing Officer u/s 126 or an appellate authority u/s 127 of the Act or an Adjudicating Officer appointed under the Act – Thus, what is barred is a challenge to an order passed by the Assessing Officer after complying with the safeguards provided therein – Held, if, the statutory safeguards are violated, which also results in violation of the principles of natural justice, the same can always be challenged before the Civil Court.

(Para 1, 10)

A. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 – Constitution of India, Article 227 -- Rejection of plaint -- Objection to proper court fee – Dismissal of application – Appeal/Revision against – Maintainability of -- No further appeal or revision at the hands of the defendants is maintainable.

(Para 1, 2, 4)

B. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 1(i), 11 – Objection to drafting of plaint -- Rejection of plaint – Objection that plaint not drafted in accordance with Order 7 Rule 1 (i) – Held, matter can be examined by the court while finally adjudicating the suit.

(Para 3, 4)

A. Code of Civil Procedure, 1908 (V of 1908), Order 14 Rule 1 – Indian Evidence Act, 1872 (1 of 1872), Section 68 – Proof of Will – Onus of – Framing of issue – Onus was upon the plaintiff to get the issues framed rightly if he was wanting to set up the plea that the onus of the Will should have been upon the propounder.

(Para 7)

B. Indian Succession Act, 1925 (39 of 1925), Section 61 -- Son living separately – Exclusion of son in Will -- Admission of the plaintiff that he was residing separately for the last 35 years after his marriage would be reason enough for the testator to keep him out of the zone of succession.

(Para 7)

Motor Vehicles Act, 1988 (59 of 1988), Section 166 -- Constitution of India, Article 227 -- Code of Civil Procedure, 1908 (V of 1908), Order 21 -- Compensation in motor vehicle accident case -- Execution of order -- Revisional Court’s power -- Enhancement of compensation by High Court in Appeal was ordered to be invested in a FDR and the interest accruing thereon be paid to the petitioner/ claimant – Ordering any deviation in the mode of investment would tantamount to modification of the judgement – High Court, while exercising jurisdiction under Article 227 of the Constitution of India, cannot modify the judgement and that too in proceedings arising out of execution of that very judgement.

(Para 7)

Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17 – Amendment in plaint – Application dismissed – Observations of – Effect of -- It is well settled that observations made while deciding applications are never binding while finally deciding the suit.

(Para 6)

Code of civil Procedure, 1908 (V of 1908), Order 9 Rule 13, Section 151  -- Ex-parte judgment – Setting aside of -- Summon under NI Act was issued for 01.10.2016 and in the civil suit for appearance of respondent on 19.10.2016 -- Compromise between the daughter of Plaintiff/ petitioner and the respondent/defendant and after receiving the final installment, daughter of petitioner withdrew the complaint on 21.01.2017 --  Whether or not the present transaction was a part of compromise is clearly the subject matter of trial and shall be decided accordingly by the ld. trial Court on the basis of evidence -- Respondent successfully proved that he had sufficient reason for not appearing before the trial Court -- Trail Court has correctly allowed the application under Order 9 Rule 13 CPC and set aside the ex-parte judgment.

(Para 6, 7)

Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 – Suit for permanent injunction -- Death of sole defendant -- Rejection of plaint -- Suit seeking permanent injunction against sole defendant for restraining him from interfering in the possession of the plaintiff or creating any hindrance or obstruction in the peaceful use and enjoyment for irrigation of the fields of the plaintiff from the tubewell/electric motor connection -- After the death of the sole defendant and the nature of the suit, the same cannot continue -- Application filed under Order 7 Rule 11 CPC allowed -- Plaintiff will be within his jurisdiction to initiate any proceedings against legal representatives of sole defendant in a case aggrieved in any manner.

(Para 2, 11, 12)

Code of Civil Procedure, 1908 (V of 1908), Section 39 Rule 1 & 2 – Adjourning of ad-interim prayer awaiting written statement – Defendants carrying out construction in full swing -- Challenge in revision -- Petition seems to have been filed prematurely and same is disposed of with an observation that any construction as alleged shall be at their sole risk and responsibility -- In case the pending application is decided against them, they shall be equally responsible to remove the construction, at their own cost and risk, subject of course to the final outcome of the civil suit.

(Para 1-3)

Constitution of India, Article 227 -- Code of Civil Procedure, 1908 (V of 1908), Order 21 -- Execution petition pending since 2016 – Revision against -- Warrants of possession have been issued on numerous dates but either the same have not been received back or have been returned back unexecuted – Direction given to Executing Court to finally decide the execution petition as expeditiously as possible and in any case within a period of two months.

(Para 3, 6)

Constitution of India, Article 227 -- Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17 -- Application for amendment of written statement – Dismissal by Trial Court – Revision petition -- It is trite that the Courts are more liberal while allowing the amendment of a written statement viz-a-viz that of a plaint -- However, in the case not only the trial has commenced but the amendment sought by the defendant-petitioner would change the entire defence as raised by the him in his written statement -- Not only is the date of payment, but also the name of the person to whom the payment is stated to have been paid, is sought to be changed -- Amendment sought would not only cause prejudice to the plaintiff-respondent but would also necessarily entail a de novo trial, which is at the fag end -- Revision petition dismissed.

(Para 2, 9)

Code of Civil Procedure, 1908 (V of 1908), Order 21 – Execution of order -- Pendency of Appeal/Stay application – Appellate Court specifically observed regarding arguable points involved in appeal – Held, it would be appropriate if the stay application filed by the petitioners is decided by the first Appellate Court on the date fixed or within two weeks thereafter -- Till the decision of the stay application, learned executing Court requested to defer the proceedings for some future date.

(Para 2-6)

Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 -- Rejection of plaint – Pleadings -- For the purpose of decision of an application under Order 7 Rule 11 CPC, only the pleadings in the plaint are to be seen and not their veracity or the truthfulness; as such.

(Para 6)

Code of Civil Procedure, 1908 (V of 1909), Order 39 Rule 1 & 2, Order 43 Rule 1(r), Section 151 -- Constitution of India, Article 227 -- Dismissal of application u/o 39 R 1 & 2 by trial court -- Revisional jurisdiction – Petitioners have an alternate remedy available to them under Order 43 Rule 1(r) CPC of filing an appeal against the impugned order -- Revision petition under Article 227 of the Constitution of India read with Section 151 CPC is held to be not maintainable and is dismissed as such.

(Para 2, 9, 10)

A. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 – Rejection of plaint -- It is well settled that the relevant facts which need to be looked into for deciding an application filed under Order 7 Rule 11 CPC are the averments in the plaint, only the averments in the plaint are germane -- Where the plaint does not disclose a cause of action, the relief claimed is undervalued and not corrected within the time allowed by the Court, insufficiently stamped and not rectified within the time fixed by the Court, barred by any law, failed to enclose the required copies and the plaintiff fails to comply with the provisions of Rule 9, the Court has no other option except to reject the same – It can be exercised by the Trial Court at any stage of the suit -- It is also settled that the averments in the written statement are immaterial and it is the duty of the Court to scrutinize the averments/pleas in the plaint.

(Para 8)

B. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 – Constitution of India, Article 227 -- Rejection of plaint -- Respondent has unambiguously averred that after sale of the property in his favour he has become landlord and owner and that there exists relationship of landlord and tenant between the parties -- Grounds on which the petitioner is seeking rejection of the ejectment petition are a matter of evidence and are not germane for deciding the application filed by him under Order 7 Rule 11 CPC -- Though the property in the sale deed has been described as a house, however, the petitioner is not able to deny the fact that the description of the property is identical in both the sale deed as well as the ejectment petition – Rejection of the plaint at the threshold entails very serious consequences -- This power has to be used in exceptional circumstances and should be used only when the Court is absolutely sure that the plaintiff does not have an arguable case at all -- Application filed by the petitioner does not satisfy the requirements of Order 7 Rule 11 CPC – Application dismissed by Trial court – Revision against dismissed.

(Para 9)

Code of Civil Procedure, 1908 (V of 1908), Order 21 -- Rent laws -- Execution of eviction order – Appeal/ Stay application pending -- Executing Court declined to stay the execution, warrants of possession issued – It is in the interest of justice that the Appellate authority be directed to take a final decision upon the appeal filed by the petitioner; and till then eviction of the petitioner from the premises in question be stayed – Direction issued to Appellate Authority to decide appeal within 3 months, dispossession stayed till the decision of appeal.

(Para 2-5)

Code of Civil Procedure, 1908 (V of 1908), Section 24 -- Hindu Marriage Act, 1955 (25 of 1955), Section 9 – Constitution of India, Article 15(3), 51-A -- Restitution of conjugal rights – Transfer of case -- Complaint is already pending before the crime against women cell, Gurugram, it would be proper, appropriate and in the interest of justice if the same are tried and decided at one place -- Ethos as manifested under Article 51-A of Constitution of India envisage that it shall be fundamental duty of every citizen of India to uphold the dignity of woman -- In addition, per Article 15 (3), power has also been conferred on the State to make special provisions for women and children – Hindu Marriage Act, 1955 was amended w.e.f. 23.12.2003 that in case of a wife being the petitioner, jurisdiction was conferred to the Court within local limits of whose ordinary original civil jurisdiction, the wife is residing on the date of presentation of the petition -- Without going into the allegations/counter allegations, the transfer application allowed -- Petition transferred to the District Judge, Gurugram.

(Para 6-11)

East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13 – Code of Civil Procedure, 1908 (V of 1908), Order 9 Rule 13 -- Ex-parte eviction -- Service of summons -- Service was not only effected by process server in person on the predecessor-in-interests of petitioners, but by way of munadi and affixation as well -- Munadi is known to be valid mean of substitute service in case despite service a litigant does not cause appearance before the Court – Objection taken is that there was an irregularity as the copy of petition was not served -- Be that as it may, the fact of the matter is that it was well within the knowledge of predecessor-in-interest of the petitioners that there was a case pending against her qua which service of summons was effected -- Even if it was not due complete service, but the fact that munadi was also effected, the petitioner cannot now be permitted to take refuge under the argument that it was a weak mode of evidence of service -- No grounds to interfere. Dismissed.

(Para 12-14)

Code of Civil Procedure, 1908 (V of 1908), Order 18 Rule 17-A – Additional evidence -- Allowing of the application for leading evidence filed by the respondents by the learned trial Court will delay the finalization of the proceedings, but delay cannot have precedence over substantial justice to be done to the parties to the litigation – Petitioners held entitled for costs of Rs.15,000/- instead of Rs.2,000/- as respondent/ plaintiff conceded to enhance the cost.

(Para 7, 8)

A. Code of Civil Procedure, 1908 (V of 1908), Sections 9, 96 – Consent decree -- Substantive suit to challenge the same – Appeal u/s 96 CPC as well -- Appellants not party to consent – Consent orders would consequently not have a binding effect on the Appellants -- High Court in appeal recorded a finding that since the Appellants were not a party to the proceedings, and the Order has been passed on the terms agreeable to the parties to the proceedings, it shall not be binding upon the Appellants, and their rights could be examined independently in the substantive suit filed at their instance – No interference called for.

(Para 16-19)

B. Code of Civil Procedure, 1908 (V of 1908), Section 9 – Delay in decisioning of suit – Speedy disposal -- Suit was instituted in 2005, Court considered it appropriate to observe that the High Court may hear and dispose of Suit as expeditiously as possible, preferably within a period of one year.

(Para 21)

Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 2 – Amendment in written statement -- Amendment sought is only explanatory -- As per the provisions of Order VI Rule 2 CPC, the pleading has to be based upon the facts in concise manner -- Amendment of pleadings for the purpose of explanation cannot be allowed.

(Para 9)

A. Code of Civil Procedure 1908 (V of 1908), Order 7, Rule 11 – Punjab Land Revenue Act, 1887 (XVII of 1887), Section 111, 158 – Partition proceedings of land – Challenged in Civil suit -- Rejection of plaint -- Civil suit challenging partition proceedings on the ground of violation of principle of natural justice – Ld. trial Court is correct in observing that proceedings can always be challenged in case violation of principle of natural justice -- Section 158 bars the jurisdiction of the Civil Court in case a suit is filed for grant of relief, which can be provided by the Revenue Officers under the Act, 1887 – That is not the case in the suit -- Application dismissed by Trail court, order upheld.

(Para 4-7)

B. Code of Civil Procedure 1908 (V of 1908), Section 11, Order 7, Rule 11 – Plea of res-judicata – Rejection of plaint -- Res judicata, is a mixed question of fact and law -- Evidence has to be led by the defendant-petitioner to be successful and, thus, plaint cannot be rejected as being barred by law.

(Para 7)

Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (40 of 1971) -- Code of Civil Procedure, 1908 (V of 1908), Section 9, 80 – Public premises -- Unauthorised possession – Notice under PP Act -- Civil suit with application for exemption u/s 80 CPC – Rejection of application – Adequate opportunity was granted to the petitioner to appear before the competent authority under the Act, 1971 but he failed to do so -- When he did put in appearance, he could not produce evidence to show that he was not in unauthorized possession -- Thereafter, he filed a civil suit, although he could not establish his rights in proceedings under the Act, 1971 -- Under the circumstances there was no urgency in the matter and the trial Court was justified in dismissing the application.

(Para 2-4)

Code of Civil Procedure, 1908 (v of 1908), Order 9 Rule 6, Rule 13 -- Ex-parte proceedings order – Setting aside of -- Explanation given by the petitioner does not justify his actions -- Still, in the interest of justice, as petitioner has undertaken to compensate the respondents with payment of Rs.25,000/-, the impugned orders set aside and the petitioner allowed to join the proceedings, subject to the payment of Rs.25,000/- as costs.

(Para 6)