Code of Civil Procedure, 1908 (V of 1908), Order 39 Rules 1 & 2, Section 151 – Temporary injunction against co-sharer -- Parties are in possession of their respective shares – Petitioner/ defendant is renovating his portion – Petitioner/defendant has given an undertaking that at a later stage, if it is found that construction/ renovation falls in the share of respondent/plaintiff, the petitioner will remove such renovated portion -- Application under Order 39 Rules 1 and 2 read with Section 151 CPC dismissed -- However, the petitioner-defendant shall remain bound by the undertaking given before this Court.

(Para 10-12)

Code of Civil Procedure, 1908 (V of 1908), Order 39 Rule 1 & 2, Section 151 – Constitution of India, Article 227 – Application for rejection of plaint – Application for temporary injunction – Non-decisioning of – Right of -- Trial Court not disposing off the application of stay and rather venturing into a miscellaneous application moved under Order 7 Rule 11 CPC by the defendants, the disposal of the stay application has been put to hold and which led the petitioner to invoke the Revisional jurisdiction – High Court deemed it expedient to allow the revision petition and thereby directing the trial Court to dispose off the injunction application under Order 39 Rule 1 and 2 read with Section 151 CPC within one week.

(Para 1-4)

Code of Civil Procedure, 1908 (V of 1908), Section 24 -- Hindu Marriage Act, 1955 (25 of 1955), Section 9 -- Restitution of conjugal rights – Transfer of petition -- Petition u/s 125 Cr.P.C. and D.V. Act, 2005 are already pending at Ludhiana, it would be proper, appropriate and in the interest of justice if all the cases are tried and decided at one place -- Application allowed, petition pending before the Court of Principal Judge (Family Court) Faridkot transferred to the District Judge, Ludhiana for its disposal in accordance with law by the Court concerned.

(Para 6-11)

Limitation Act, 1963 (36 of 1963), Section 5 -- Code of Civil Procedure, 1908 (V of 1908), Order 96 -- Delay of 823 days in appeal – Condonation of delay -- If one of the plaintiffs was not available to file the appeal on account of his illness, the other set of plaintiffs could have filed the appeal within the prescribed period of limitation -- Merely because a demolition notice had thereafter been issued, would not condone the negligence of the petitioners or give a fresh cause to agitate for the condonation of delay on that ground -- Petitioners' predecessor-in-interest was well aware that their suit was pending and did not get the interim protection --  It was for him to ensure that the appeal was filed within the prescribed period or at least within reasonable delay -- No ground made out to condone the inordinate delay.

(Para 6)

A. Insolvency and Bankruptcy Code, 2016 (31 of 2016), Section 7 –Limitation – Onus of -- It was for the applicant invoking the Corporate Insolvency Resolution Process, to prima facie show the existence in his favour, of a legally recoverable debt -- In other words, had to show that the debt is not barred by limitation.

(Para 36)

B. Insolvency and Bankruptcy Code, 2016 (31 of 2016), Section 7 – Limitation Act, 1963 (36 of 1963), Schedule, Part II, clauses (19) to (21) -- Limitation – Period of limitation for initiation of a suit for recovery of money lent, is three years from the date on which the loan is paid -- Last loan amount is said to have been advanced in 2004-2005 -- In the winding up petition, there is not a whisper of any agreed date by which the alleged loan was to be repaid -- Debt was barred by limitation even in the year 2012, when winding up proceedings were initiated in the Madras High Court – Held, NCLT rightly refused to admit the application under Section 7 of the IBC, holding the same to be barred by limitation.

(Para 37, 38)

C. Insolvency and Bankruptcy Code, 2016 (31 of 2016), Section 7 – Personal loan -- A personal Loan to a Promoter or a Director of a company cannot trigger the Corporate Resolution Process under the IBC.

(Para 40)

D. Insolvency and Bankruptcy Code, 2016 (31 of 2016), Section 7 – Code of Civil Procedure, 1908 (V of 1908), Section 9 -- Forgery in signatures -- Fabrication of records – Proof of – Jurisdiction of -- Disputes as to whether the signatures are forged or whether records have been fabricated can be adjudicated upon evidence including forensic evidence in a regular suit and not in proceedings u/s 7 of the IBC.

(Para 40)

E. Insolvency and Bankruptcy Code, 2016 (31 of 2016), Section 7 – No financial debt in existence -- Application u/s 7 of the IBC was not maintainable -- Payment received for shares, duly issued to a third party at the request of the payee as evident from official records, cannot be a debt, not to speak of financial debt.

(Para 42,43)

A. Code of Civil Procedure, 1908 (V of 1908), Section 100 – Regular Second Appeal – Substantial question of law -- A second appeal only lies on a substantial question of law -- If statute confers a limited right of appeal, the Court cannot expand the scope of the appeal -- It was not open to re-agitate facts or to call upon the High Court to re-analyze or re-appreciate evidence in a Second Appeal -- Existence of a “substantial question of law” is the sine qua non for the exercise of jurisdiction under Section 100 of the CPC.

(Para 25, 26)

B. Code of Civil Procedure, 1908 (V of 1908), Section 100 – Regular Second Appeal – Substantial question of law -- To be “substantial”, a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way -- To be a question of law “involved in the case”, there must be first, a foundation for it laid in the pleadings, and the question should emerge from the sustainable findings of fact, arrived at by Courts of facts, and it must be necessary to decide that question of law for a just and proper decision of the case.

(Para 32, 33)

C. Code of Civil Procedure, 1908 (V of 1908), Section 100 – Regular Second Appeal – Substantial question of law -- Principles summarised:

(i) An inference of fact from the recitals or contents of a document is a question of fact, but the legal effect of the terms of a document is a question of law. Construction of a document, involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.

(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue.

(iii) A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the Court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.

(iv) The general rule is, that High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.

(Para 37)

D. Limitation Act, 1963 (36 of 1963), Section 27 -- Adverse possession -- A decree of possession does not automatically follow a decree of declaration of title and ownership over property -- It is well settled that, where a Plaintiff wants to establish that the Defendant’s original possession was permissive, it is for the Plaintiff to prove this allegation and if he fails to do so, it may be presumed that possession was adverse, unless there is evidence to the contrary.

(Para 46)

E. Specific Relief Act, 1963 (47 of 1963), Section 5 -- Suit for possession – A person claiming a decree of possession has to establish his entitlement to get such possession and also establish that his claim is not barred by the laws of limitation -- He must show that he had possession before the alleged trespasser got possession.

(Para 51)

F. Possession Follows Title -- Maxim “possession follows title” is limited in its application to property, which having regard to its nature, does not admit to actual and exclusive occupation, as in the case of open spaces accessible to all -- The presumption that possession must be deemed to follow title, arises only where there is no definite proof of possession by anyone else.

(Para 52)

G. Limitation Act, 1963 (36 of 1963), Section 3 -- Suit for possession – Limitation – Ground of -- A suit for recovery of possession of immovable property is governed by the Limitation Act, 1963 -- Section 3 of the Limitation Act bars the institution of any suit after expiry of the period of limitation prescribed in the said Act -- Court is obliged to dismiss a suit filed after expiry of the period of limitation, even though the plea of limitation may not have been taken in defence.

(Para 53)

H. Code of Civil Procedure, 1908 (V of 1908), Section 100 – Suit for possession -- Regular Second Appeal – Substantial question of law -- In the absence of any whisper in the plaint as to the date on which the Defendant and/or his Predecessor-in-interest took possession of the suit property and in the absence of any whisper to show that the relief of decree for possession was within limitation, the High Court could not have reversed the finding of the First Appellate Court, and allowed the Plaintiff the relief of recovery of possession, more so when the Defendant had pleaded that he had been in complete possession of the suit premises, as owner, with absolute rights, ever since 1966, when his father had executed a Deed of Release in his favour and/or in other words for over 28 years as on the date of institution of the suit.

(Para 55)

I. Code of Civil Procedure, 1908 (V of 1908), Section 100 – Regular Second Appeal – Substantial question of law -- Formulation of substantial question of law is mandatory and the mere reference to the ground mentioned in Memorandum of Second Appeal cannot satisfy the mandate of Section 100 of the CPC.

(Para 59)

Code of Civil Procedure (V of 1908) Order 9 Rule 2 – Constitution of India, Article 227 – Dismissal of appeal under order 9 Rule 2 CPC – Legality of -- It would always be desirable that a lis is decided on its own merits rather than being disposed of on technicalities – Explanation set out by the appellants in their application demonstrated that the lapses on their part were not serious enough to warrant the Appellate Court completely non-suiting them, as would be the ultimate effect – Held, Appellate Court ought to have been more liberal towards the appellants and put them on suitable terms instead of holding against them – Civil revision allowed -- Appeal shall stand restored as against all the respondents, subject to payment of costs of Rs.5,000/-.

(Para 6,7)

A. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 10, 10A, 24(2), 25(3) -- Return of plaint – Transfer of petition – De novo trial or not – Power of -- In cases dealing with transfer of proceedings from a Court having jurisdiction to another Court, the discretion vested in the Court by Sections 24(2) and 25(3) either to retry the proceedings or proceed from the point at which such proceeding was transferred or withdrawn, is in marked contrast to the scheme under Order VII Rule 10 read with Rule 10-A where no such discretion is given and the proceeding has to commence de novo.

(Para 21)

B. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 10, 10A – Constitution of India, Article 136, 142 -- Return of plaint -- De novo trial or not – Power of -- High Court by the impugned order held that the suit at Delhi shall proceed from the stage at which it was pending at Gurgaon before return of the plaint and not de novo – Held, presentation of the plaint at Gurgaon was certainly not before a court having jurisdiction in the matter -- Suit has to proceed afresh before the proper court – Because the appellant did not raise the objection under clause 16B of the agreement at the very first opportunity -- Pleadings of the parties have been completed, evidence led, and that the matter was fixed for final argument – In exercise of discretionary jurisdiction under Article 136 and in order to do complete and substantial justice between the parties under Article 142 of the Constitution Court decline to set aside the order of the High Court.

(Para 3, 27)

Code of Civil Procedure, 1908 (V of 1908), Order 16 Rule 20 – Constitution of India, Article 227 – Absence of witness -- Closing of evidence -- Anxiety of the trial Court to dispose of the case with expedition is appreciable but the anxiety cannot be allowed to extend to the limit of doing injustice by closing evidence in mechanical manner without considering the reason for absence of the witness and giving reasonable opportunity to secure his presence -- Nothing in the impugned order to show any neglect/ misconduct/ malafides/ dilatory tactics on the part of defendant -- Witness of defendant appeared for his cross-examination in the case on two dates and his cross-examination was deferred on request of the plaintiff – Held, evidence of defendant could not be closed without giving reasonable opportunity for securing his presence – Defendant is entitled to one effective opportunity to conclude his evidence – For delay and inconvenience caused to plaintiff cost of Rs.10,000/- awarded.

(Para 9-11)

Code of Civil Procedure, 1908 (V of 1908), Section 100 -- Regular Second Appeal – Substantial question of law – Law of -- No substantial question of law was formulated and the appeal was placed for consideration before the Court on the basis of question of law in the memorandum of appeal – Held, Court ought to have formulated substantial question of law and proceeded with the arguments thereafter -- A mere mention about the question having been formulated in the memorandum of appeal is not enough -- Court ought to advert to the question which it thinks appropriate to examine and then answer the same – Parties relegated before the High Court for reconsideration of the Second Appeal on its own merits and in accordance with law. Bokka Subba Rao’s case (2008) 3 SCC 99 relied.

(Para 2-4)

Code of Civil Procedure, 1908 (V of 1908), Order 39 Rule 1 & 2 – Status quo -- Prima facie case – Requirement of -- Concurrent view taken by the Trial Court and First Appellate Court rejecting interim relief application of the plaintiffs – High Court in revision directed the parties to maintain status quo with regard to the suit property – High Court, however, did not advert to the finding of fact recorded by the Trial Court and the First Appellate Court – Held, High Court committed manifest error in directing the parties to maintain status quo despite the fact that no prima facie case was made out by the plaintiffs for grant of such relief – Impugned order set aside.

(Para 2-5)

Code of Civil Procedure, 1908 (V of 1908), Section 60 -- Money decree – Execution of -- Full salary attached – Power of -- Total attachment of the salary in execution of money decree is highly uncalled for -- Only upto the extent of 1/3rd of the salary, attachment orders could be issued -- Order under assail needs to be set aside to that extent -- Executing court to proceed ahead into the matter keeping in mind the provisions of Section 60 CPC.

(Para 5)

A. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11, Order 7 Rule 14 -- Rejection of plaint – Remedy under Order VII Rule 11 is an independent and special remedy, wherein the Court is empowered to summarily dismiss a suit at the threshold, without proceeding to record evidence, and conducting a trial, on the basis of the evidence adduced, if it is satisfied that the action should be terminated on any of the grounds contained in this provision. Law summarised:

--       Underlying object of Order VII Rule 11 (a) is that if in a suit, no cause of action is disclosed, or the suit is barred by limitation under Rule 11 (d), the Court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. In such a case, it would be necessary to put an end to the sham litigation, so that further judicial time is not wasted.

--       Power conferred on the court to terminate a civil action is, however, a drastic one, and the conditions enumerated in Order VII Rule 11 are required to be strictly adhered to.

--       Under Order VII Rule 11, a duty is cast on the Court to determine whether the plaint discloses a cause of action by scrutinizing the averments in the plaint, read in conjunction with the documents relied upon, or whether the suit is barred by any law.

--       Having regard to Order VII Rule 14 CPC, the documents filed alongwith the plaint, are required to be taken into consideration for deciding the application under Order VII Rule 11 (a). When a document referred to in the plaint, forms the basis of the plaint, it should be treated as a part of the plaint.

--       In exercise of power under this provision, the Court would determine if the assertions made in the plaint are contrary to statutory law, or judicial dicta, for deciding whether a case for rejecting the plaint at the threshold is made out.

--       At this stage, the pleas taken by the defendant in the written statement and application for rejection of the plaint on the merits, would be irrelevant, and cannot be adverted to, or taken into consideration.

--       Test for exercising the power under Order VII Rule 11 is that if the averments made in the plaint are taken in entirety, in conjunction with the documents relied upon, would the same result in a decree being passed.

--       Plaint has to be construed as it stands, without addition or subtraction of words. If the allegations in the plaint prima facie show a cause of action, the court cannot embark upon an enquiry whether the allegations are true in fact.

--       If on a meaningful reading of the plaint, it is found that the suit is manifestly vexatious and without any merit, and does not disclose a right to sue, the court would be justified in exercising the power under Order VII Rule 11 CPC.

--       Power under Order VII Rule 11 CPC may be exercised by the Court at any stage of the suit, either before registering the plaint, or after issuing summons to the defendant, or before conclusion of the trial.

--       Provision of Order VII Rule 11 is mandatory in nature. It states that the plaint “shall” be rejected if any of the grounds specified in clause (a) to (e) are made out. If the Court finds that the plaint does not disclose a cause of action, or that the suit is barred by any law, the Court has no option, but to reject the plaint.

(Para 12-12.10)

B. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 -- Rejection of plaint – Cause of action -- “Cause of action” means every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment -- It consists of a bundle of material facts, which are necessary for the plaintiff to prove in order to entitle him to the reliefs claimed in the suit -- Court must be vigilant against any camouflage or suppression, and determine whether the litigation is utterly vexatious, and an abuse of the process of the court.

(Para 13)

C. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 – Limitation Act, 1963 (36 of 1963), Article 58, 59 -- Rejection of plaint – Limitation – Cause of action -- If there are successive violations of the right, it would not give rise to a fresh cause of action, and the suit will be liable to be dismissed, if it is beyond the period of limitation counted from the date when the right to sue first accrued.

(Para 14)

D. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 – Limitation Act, 1963 (36 of 1963), Article 58, 59 – Rejection of plaint -- Limitation -- Cause of action – Right to sue -- Words “right to sue” means the right to seek relief by means of legal proceedings -- Right to sue accrues only when the cause of action arises -- Suit must be instituted when the right asserted in the suit is infringed, or when there is a clear and unequivocal threat to infringe such right by the defendant against whom the suit is instituted -- Order VII Rule 11(d) provides that where a suit appears from the averments in the plaint to be barred by any law, the plaint shall be rejected.

(Para 14)

E. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11(a) -- Transfer of Property Act, 1882 (4 of 1882), Section 54 – Sale – Suit for cancellation of sale deed -- Non-payment of sale consideration – Right to sue -- Rejection of plaint -- Actual payment of the whole of the price at the time of the execution of the Sale Deed is not a sine qua non for completion of the sale -- Even if the whole of the price is not paid, but the document is executed, and thereafter registered, the sale would be complete, and the title would pass on to the transferee under the transaction -- Once the title in the property has already passed, even if the balance sale consideration is not paid, the sale could not be invalidated on this ground -- Plaintiffs may have other remedies in law for recovery of the balance consideration, but could not be granted the relief of cancellation of the registered Sale Deed -- Suit filed by the Plaintiffs is vexatious, meritless, and does not disclose a right to sue -- Plaint is liable to be rejected under Order VII Rule 11 (a).

(Para 15.3)

F. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11(d) -- Limitation Act, 1963 (36 of 1963), Article 59 -- Non-payment of sale consideration -- Delay of over 5 and ½ years after the alleged cause of action arose in 2009, shows that the suit was clearly barred by limitation as per Article 59 of the Limitation Act, 1963 -- Suit was instituted on 15.12.2014, even though the alleged cause of action arose in 2009, when the last cheque was delivered to the Plaintiffs -- Plaintiffs have failed to discharge the onus of proof that the suit was filed within the period of limitation -- Plaint is therefore, liable to be rejected under Order VII Rule 11 (d) of CPC.

(Para 15.8)

A. Specific Relief Act, 1963 (47 of 1963), Section 36, 41(h) – Code of Civil Procedure, 1908 (V of 1908), Order 39 Rule 1 & 2 -- Temporary injunction – Bar upon -- Section 41(h) of the Act bars the grant of injunction in case any other equally efficacious remedy is available in law -- Section 41(h) of the Act cannot come into play at the time of grant of temporary injunction.

(Para 8)

B. Specific Relief Act, 1963 (47 of 1963), Section 36, 39 – Mandatory injunction – Permanent injunction – Both prayers simultaneously – Maintainability of -- Objection regarding prayer of mandatory injunction and permanent injunction being unavailable in the same suit is being considered only to be rejected -- If a defendant has illegally occupied the property of a plaintiff and is raising construction thereupon mandatory injunction can definitely be sought to direct him to remove the construction already raised and permanent injunction can be sought to restrain him from raising construction.

(Para 9)

C. Specific Relief Act, 1963 (47 of 1963), Section 36, 41(h) – Code of Civil Procedure, 1908 (V of 1908), Order 39 Rule 1 & 2 – Co-sharer -- Temporary injunction -- Prima facie it appears that the order of partition and Rapat regarding possession have been obtained fraudulently -- Appeal is pending against ex parte order of partition – A co-sharer in exclusive possession cannot be dispossessed except by way of legal and valid partition -- Plaintiff can certainly protect infringement of his legal rights through an order of temporary injunction.

(Para 10)

Code of Civil Procedure, 1908 (V of 1908), Section 25 – Probate of Will – Partition suit -- Transfer of petition -- Probate of Will proceedings pending at Bombay High Court – Partition suit pending at Delhi High court – Certain common issues would arise for adjudication of both these proceedings – Held, Probate Court having primacy in determining the question of grant of Letters of Administration or Probate, it would be expedient for the ends of justice that the Bombay High Court, which is hearing the Testamentary petition, should decide the suit for partition as well -- Will has been executed in Mumbai and the two attesting witnesses who have affirmed affidavits to support the Will are also from Mumbai – Partition suit transferred to Bombay High Court.

(Para 7, 8)

A. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 – Rejection of plaint – Duty of Court -- It is the bounden duty of the Court to examine the plaint as a whole and not selected averments therein.

(Para 6)

B. Code of Civil Procedure, 1908 (V of 1908), Order 7, Rule 11 -- Article 58, 113 -- Rejection of plaint -- Right to sue -- Limitation – Cause of action for filing a suit would consist of bundle of facts – Suit being barred by limitation, ordinarily, would be a mixed question of fact and law – Plaintiff believed that its claim was being processed -- Belief was shaken after receipt of letter from the Senior Manager of the Bank followed by another letter -- Firm response from the Bank could trigger the right of the appellant to sue the respondent-Bank -- Moreover, appellant had eventually sent a legal notice then filed the suit -- Whether plea taken by the appellant is genuine and legitimate, would be a mixed question of fact and law, depending on the response of the respondents – Order rejecting the plaint under order 7 Rule 11(d) of the CPC, cannot be sustained, as a result same are quashed and set aside.

(Para 12-21)

A. Indian Evidence Act, 1872 (1 of 1872), Section 65, 66 -- Secondary evidence -- Foundational evidence has to be given being the reasons as to why the original Evidence has not been furnished.

(Para 11)

B. Indian Evidence Act, 1872 (1 of 1872), Section 62, 65, 66 – Primary evidence -- Secondary evidence -- It is trite that facts have to be established by primary evidence and secondary evidence is only an exception to the rule for which foundational facts have to be established to account for the existence of the primary evidence.

(Para 14)

C. Code of Civil Procedure, 1908 (V of 1908), Order 13 Rule 4 -- Exhibition of documentation – Proof of -- Merely the admission in evidence and making exhibit of a document does not prove it automatically unless the same has been proved in accordance with the law.

(Para 17)

A. Code of Civil Procedure, 1908 (V of 1908), Order 23 Rule 3, 3-A, Order 43 Rule 1A(2), 96 -- Compromise decree – Appeal – Challenge in Civil suit -- Right of :

--       Neither any appeal against the order recording the compromise nor remedy by way of filing a suit is available in cases covered by Rule 3A of Order 23 CPC.

--       A right has been given under Rule 1A(2) of Order 43 to a party, who denies the compromise and invites order of the Court in that regard in terms of proviso to Rule 3 of Order 23 CPC while preferring an appeal against the decree -- Section 96(3) CPC shall not be a bar to such an appeal, because it is applicable where the factum of compromise or agreement is not in dispute.

(Para 19)

B. Code of Civil Procedure, 1908 (V of 1908), Order 23 Rule 3, 3-A -- Compromise decree – Non-party to suit -- Challenge by -- Appellant was not a party to the stated compromise decree, claiming right, title and interest over the land in the stated sale deed, which was purchased by him from judgment debtor and party to the suit – In the suit at the best, he could seek relief against Judgment debtor, but cannot be allowed to question the compromise decree passed by the High Court in the partition suit.

(Para 21)

C. Code of Civil Procedure, 1908 (V of 1908), Order 23 Rule 3 -- Compromise decree – Validity from -- It is well settled that the compromise decree passed by the High Court in the second appeal would relate back to the date of institution of the suit between the parties thereto.

(Para 21)

D. Code of Civil Procedure, 1908 (V of 1908), Order 23 Rule 3, 3-A -- Compromise decree – Challenge to – Civil suit – Maintainability of -- It is only the High Court, who had accepted the compromise and passed decree on that basis, could examine the same and no other Court under proviso to Rule 3 of Order 23 CPC -- Suit instituted before the civil Court by the appellant was not maintainable in view of specific bar under Rule 3A of Order 23 CPC as held in the impugned judgment.

(Para 22)

A. Code of Civil Procedure, 1908 (V of 1908), Section 9 -- Maintainability of suit – Relevant date -- As per settled law, maintainability of a suit is to be seen on the date of filing of the suit -- A Court in the interest of justice can mould the relief by taking note of any subsequent development taking place during pendency of the suit.

(Para 16)

B. Specific Relief Act, 1963 (47 of 1963), Section 37, 39 -- Suit for mandatory injunction and permanent injunction – Maintainability of -- Plot allotted in favour of defendant No.2 on 15.04.1983 – Contention that civil suit was filed much later i.e. on 18.01.1984 sought mandatory injunction without challenging the prior allotment by way of declaration, therefore, not sustainable – Held, merely because the plaintiffs were aware that respondent/ defendant No.2 had been issued the said letter dated 15.04.1983, would not render the suit as not maintainable, more so when possession was still with the Trust and prayer in the plaint is not only for mandatory injunction but also for permanent injunction restraining the Trust from delivering the possession of the suit land with a further restraint from issuing the sale certificate and for executing the sale deed pursuant thereto in respect of suit property.

(Para 17-21)

Registration Act, 1908 (16 of 1908), Section 17 -- Haryana Urban Development Authority Act, 1977 (13 of 1977), Section 38A -- Guidelines dated 13.03.2009/27.03.2009 regarding registration of the independent floors of residential plots having size of 180 Sq. Yards and above -- Independent floor measuring 166 square yard purchased – Registration declined as per guidelines -- Section 17(1) of the Registration Act provides that the sale of immovable property of the value of Rs.100 and upwards is only by registered deed – Section 38A of the HUDA Act, 1977 provides for registration of independent residential floors -- Petitioners have not challenged circular dated 13.03.2009 – Held, such like circulars and executive guidelines/instructions can neither supplement nor override the statutory provisions -- Writ petition disposed of with direction to the respondents to consider the case of the petitioners, in the light of the above discussed statutory provisions and the settled proposition of law. Suraj Lamp’s case (2012) 1 SCC, 656 relied.

(Para 9-13)

A. Code of Civil Procedure, 1908 (V of 1908), Section 24 -- Hindu Marriage Act, 1955 (25 of 1955), Section 13 – Divorce petition – Transfer of -- Petitions u/s 125 Cr.P.C. and 9 of Hindu Marriage Act, 1955 are already pending at Amritsar it would be proper, appropriate and in the interest of justice if all the cases are tried and decided at one place -- In matrimonial matters, convenience of wife is to be preferred over the convenience of husband – Petition transferred from Ludhiana to Amritsar.

(Para 1, 6-11)

B. Hindu Marriage Act, 1955 (25 of 1955), Section 13, 19 – Divorce petition – Territorial jurisdiction -- Husband can only institute proceedings, either where marriage was solemnized or where the wife is residing or where the parties last resided together -- Only in a case where wife is residing outside India, the husband can institute proceedings where he is residing -- Whereas, wife can also file a petition in the District Court within the local limits of whose jurisdiction she herself may be residing -- Said right has been exclusively conferred on a wife obviously keeping her convenience in mind in the matrimonial matters.

(Para 10)

A. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 7, 11 -- Code of Civil Procedure, 1908 (v of 1908), Order 2 Rule 2, Section 11, Explanation IV of Section 11 – Eviction proceedings – Title suit thereafter – Maintainability of -- Once, the application filed u/s 7 of the Act is decided in which question of title, though available, is not raised, it puts an end to the controversy regarding the question of title which cannot be raised thereafter by filing a suit u/s 11 of the Act -- Subsequently a suit filed u/s 11 of the Act to establish the question of title shall not be maintainable.

(Para 8, 18-20)

B. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 11 – Title suit – In case, if the title of a person is threatened by the Gram Panchayat or anybody else, he can always file a suit u/s 11 of the Act for seeking declaration for having acquired the right, title or interest in the property in question.

(Para 19)

C. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 11 – Punjab Village Common Lands (Regulation) Rules, 1964, Rule 21-A -- Title suit – Limitation -- Whether the suit filed u/s 11 of the Act is time barred in view of Rule 21-A of the Rules if it is not filed within 30 days from the date of accrual of cause of action? – Held, cases in which application u/s 7 of the Act is not filed but a person or a Panchayat seeks a declaration of their right, title or interest in the land vested or deemed to have been vested in the Panchayat then the suit has to be filed within the period of 30 days from the date of accrual of the cause of action as provided in Rule 21-A of the Rules which means that the suit has to be filed when the right, title or interest is threatened and not at any time otherwise Rule 21-A(1) of the Rules provided in the Rules will become redundant.

(Para 21)

Code of Civil Procedure, 1908 (V of 1908), Order 41 Rule 27 -- Additional evidence in First Appeal -- Registered Will as primary evidence - Permission of -- Held, Clause (b) of Sub Rule (1) of Rule 27 enables the Appellate Court to permit production of any document, which would help the Court to pronounce judgment or for any other substantial cause -- Such power is to advance the cause of justice -- Rules of procedure are meant to advance cause of justice and not to scuttle it – Held, First Appellate Court is erred in refusing to allow application for permission to lead additional evidence so as to produce original registered Will – Judgment set aside, appeal remitted back to First Appellate Court to re-decide after permitting the plaintiff-appellant to prove the registered Will -- Counter opportunity shall also be granted to the defendants to lead additional evidence.

(Para 6-11)

A. Indian Evidence Act, 1872 (1 of 1872), Section 137 – Cross-examination of plaintiff -- Plaintiff had not appeared for cross-examination, to substantiate the averments made in the plaint -- On this ground only, his suit is bound to fail.

(Para 7)

B. Code of Civil Procedure, 1908 (V of 1908), Section 9 – Partition of joint property -- Partition of all properties has not been sought – Suit for partial partition of the properties was not maintainable.

(Para 7)

Code of Civil Procedure, 1908 (V of 1908), Section 54, Order 20 Rule 18 -- Partition suit – Scope of – Having invited findings by raising a dispute of the common areas, the appellant-defendant cannot plead that the Trial Court as well as the Appellate court have exceeded scope of the suit, in issuing directions for the common areas -- Directions issued with regard to common areas are in accordance with evidence on record – No merit so as to interfere with the same.

(Para 11)

Haryana Panchayati Raj Act, 1994 (11 of 1994), Section 176 – Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 -- Election of Panch -- Election petition – Barred by limitation -- Rejection of -- Election Petition preferred by the petitioner dismissed being not maintainable on the ground of limitation – Held, since the question of the maintainability of the Election Petition on the ground of limitation goes to the roots of the entire matter, therefore, the Election Tribunal cannot be held to have erred in deciding the same vide the impugned order.

(Para 9)

Hindu Marriage Act, 1955 (25 of 1955), Section 13 -- Code of Civil Procedure, 1908 (V of 1908), Order 2 Rule 2, Order 7 Rule 11, Section 11 – Second petition for divorce – Res-judicata -- In matrimonial matters, the rigours of the doctrine of res judicata and principles in Order II Rule 2 have to be viewed more liberally than in other civil disputes -- In matrimonial matters, the Family Court has not only to deal with the facts and law, but also the conduct of both the parties, studying them as a psychologist might while acting as a marriage counsellor -- If nothing works, then, as a Judge bound to make a final decision – Order of Family Court rejecting application u/O 7 R11, upheld.

(Para 8)

Code of Civil Procedure, 1908 (V of 1908), Order 21 -- Constitution of India, Article 227 -- Compromise between parties – Withdrawal of suit – Maintainability of Execution proceedings – Void ib initio – Delayed revision – Acceptance of -- Order 21 of the Code of Civil Procedure, 1908, deals with the execution of the decree and order -- There exists neither any judgment nor a decree on the basis of the compromise -- There is merely an order, whereby the suit was dismissed as withdrawn -- In the absence of a decree or executable order, it is not understandable as to how the execution proceedings could have been initiated and further entertained by the Court below – Though, the revision petition has been filed after a delay of four years, yet to permit an illegal proceeding and an order, which is void ab initio, to stand would be travesty of justice -- Execution proceedings and all subsequent proceedings on the basis of the said execution proceedings are held illegal, null, and void.

(Para 9-12)

Code of Civil Procedure, 1908 (V of 1908), Order 39 Rule 1, 2, 2-A -- Interim order – Execution of – Power of – Registration of FIR – Right to file complaint for violation -- Effect of -- Held, Civil Court has the jurisdiction to get its interim orders implemented -- Merely because aggrieved party has filed an FIR or has a locus to file application complaining violation of interim order, does not debar the aggrieved party to file an application for grant of police help -- Trial Court erred in dismissing the application on the ground that defendant-petitioner has filed FIR and has a remedy complaining violation under Order 39 Rule 2-A CPC – Order set aside, Trial Court is requested to re-decide the application in accordance with law.

(Para 6-8)

Specific Relief Act, 1963 (47 of 1963), Section 22(2) – Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17 -- Amendment of plaint – Refund of earnest money -- Suit for specific performance of an agreement to sell -- Suit was at the stage of examination of defendant witnesses -- Trial Court allowed plaintiff to amend the plaint – Court do not find any manifest illegality in the order of the trial Court.

(Para 4)

Code of Civil Procedure, 1908 (V of 1908), Order 26 Rule 9 -- Suit for permanent injunction – Local Commissioner for demarcation of encroachment – Challenge to -- Court has simply appointed Tehsildar as Local Commissioner to visit the spot and demarcate the property and submit his report including regarding encroachment, if any -- For judicious adjudication of such an intricate dispute which is not supported by any documentary evidence and is a matter which can be comprehensively dealt with only after demarcation at the site and that too by a revenue officer having adequate understanding of the intricacies of demarcation, the Court would be in a position to have right assessment of the situation -- No illegality or perversity in the impugned findings necessitating interference by the Court – Petition dismissed.

(Para 4, 5)

Code of Civil Procedure, 1908 (V of 1908), Order 14 Rule 5 -- Framing of additional issue – Application for -- Plaintiff sought declaration with regard to the Will being a forged and fabricated document and setting aside of the mutation effected in consequence thereto – Omission with regard to framing of an issue – Trail court allowed application and granted only one opportunity to both the parties to lead their evidence – No manifest illegality in the impugned order which would warrant interference while exercising revisional jurisdiction – Revision dismissed.

(Para 4-9)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 154, 482 -- Code of Civil Procedure, 1908 (V of 1908), Section 9 – Civil suit – Handwriting expert report – F.I.R. w.r.t. forged receipts – Sustainability of -- Quashing of FIR -- Handwriting expert in civil suit has opined that signatures in all the four receipts did not tally with the sample signatures which were of respondent No.2 -- It was only thereafter, FIR was registered -- In the Summary Suit, issue No.5 has been framed by the Court “whether the defendant proved that the plaintiff has fabricated the forged signature illegally and created forged receipts” – Held, when the issue as to the genuineness of the receipts is pending consideration in the civil suit, the FIR ought not to have been allowed to continue as it would prejudice the interest of the parties and the stand taken by them in the civil suit -- Based on the sole opinion of the handwriting expert, the FIR ought not to have been registered -- Continuation of FIR would amount to abuse of the process of Court – Petition u/s 482 Cr.P.C. to quash the FIR allowed.

(Para 18, 19)

B. Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 139 – Indian Evidence Act, 1872 (1 of 1872), Sections 45, 72, 118(a) -- Code of Criminal Procedure, 1973 (2 of 1974), Section 482 -- Cheque bounce case – Quashing of complaint -- Presumption of legal enforceability debt – Rebuttal of -- ‘Y’ admitted the issuance of cheques -- Once the issuance of cheque is admitted/established, the presumption would arise u/s 139 of the N.I. Act in favour of the holder of cheque that is the complainant-appellant No.3 -- Burden lies upon the accused to rebut the presumption by adducing evidence -- High Court did not keep in view that until the accused discharges his burden, the presumption u/s 139 of N.I. Act will continue to remain -- When disputed questions of facts are involved which need to be adjudicated after the parties adduce evidence, the complaint u/s 138 of the N.I. Act ought not to have been quashed by the High Court by taking recourse to Section 482 Cr.P.C.

(Para 20)

Code of Civil Procedure, 1908 (V of 1908), Section 34, 100 -- Suit for recovery of 6 lacs – Interest thereupon -- Concurrent findings of facts returned by the two courts below are in consonance with the facts, circumstances and record of the case -- Same are neither perverse nor illegal, so as to call for interference in the second appeal -- Courts below have given conclusive findings that officials of the Post Office were not only collusive but also involved in the fraud leading to the withdrawal of amount of Rs.6 lakhs deposited by the plaintiffs without their knowledge – Reliance placed on the judgments and Rules is misplaced as it is not a third party who has committed fraud herein but their officials themselves -- At the relevant time, deposits in the accounts under the MIS carried interest at the rate of 8% per annum – Plaintiffs held entitled to interest @ 8% per annum till payment.

(Para 20-27)

A. East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13-B -- NRI Landlord – Eviction petition through power of attorney – Maintainability of – Held, it would not be appropriate to hold that petition u/s 13-B of the 1949 Act cannot be filed through power of attorney.

(Para 9)

B. East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 2(a), 13-B – NRI Landlord -- Various petition – Maintainability of -- Definition of “building” includes the entire building as also a part of a building -- All the premises in possession of the various tenants are part of the same building and, therefore, covered by the definition of a building -- Hence, the landowner is entitled to maintain the various petitions filed against various tenants of the same building.

(Para 10)

C. East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13-B – Code of Civil Procedure, 1908 (V of 1908), Order 9 Rule 8 -- NRI-Landlord – First petition dismissed for non-prosecution -- Second petition – Maintainability of -- Previous petition filed u/s 13-B by the landlord was dismissed for non-prosecution under Order 9 Rule 8 CPC -- Strictly the provisions of the CPC are not applicable, however, the broader principles of the CPC would be applicable -- As per the CPC, second petition/suit on the same cause of action is maintainable if the previous suit or petition was dismissed in default in the absence of both the parties – Held, second petition would not be barred.

(Para 11-13)

Code of Civil Procedure, 1908 (V of 1908), Section 24 -- Hindu Marriage Act, 1955 (25 of 1955), Section 9 -- Restitution of conjugal rights petition -- Transfer application – Held, cardinal principle for exercise of the powers u/s 24 of CPC is the convenience and inconvenience of the parties -- Paramount consideration for exercise of the power must be to meet the ends of justice -- Convenience of both the parties and not of the petitioner only is to be seen -- Mere fact that the place of trial is 400 Kms away from the place of residence of the petitioner is not enough for exercise of the powers conferred by Section 24 of CPC – Seeking transfer at Narnaul despite the fact that applicant has herself filed another case in District Jhunjhunu, Rajasthan -- Neither the petitioner is resident of Narnaul nor she is working there -- Transfer application dismissed.

(Para 7-10)

Arbitration and Conciliation Act, 1996 (26 of 1996), Section 17 -- Code of Civil Procedure, 1908 (V of 1908), Order 21 Rule 22(1)(a) -- Arbitration award – Execution of – Notice to opposite parties – Requirement of -- Where an application for execution is made within two years from the date of decree (the interim award being an interlocutory decree and the award treated as a decree under the Arbitration Act), then a notice was not required to be issued to the person against whom execution was applied for and notice is necessary only upon the expiry of two years from the date of decree that such notice is required to be issued.

(Para 5)

Code of Civil Procedure, 1908 (V of 1908), Order 37 Rule 3 – Limitation Act, 1963 (36 of 1963), Section 5 -- Suit for recovery – Leave to defend – Condonation of delay -- Separate application u/s 5 of the Limitation Act may not have been absolutely necessary whether or not to condone the delay -- Once some reasoning was given in the application seeking leave to defend the suit, court was required to go into the grounds for delay, consider them and then pass a reasoned order accepting or rejecting the said reasons.

(Para 15)

A. Code of Civil Procedure, 1908 (V of 1908), Order 9 Rule 13 – Ex-parte decree – Setting aside of -- Alleged report regarding refusal was endorsed by the process server, is not on the judicial file -- Even the report of the Ahalmad regarding receiving of the summons with the report of the refusal of the service by the defendants or qua the affixation thereof, is not available on file – No illegality or perversity in allowing the application for setting aside the ex-parte proceedings and the consequent decree.

(Para 3)

B. Code of Civil Procedure, 1908 (V of 1908), Order 9 Rule 13 – Ex-parte decree – Setting aside of -- Judicial order showing that the defendants/respondents were duly served, however, it has to be kept in mind that the said order is not supported by the documents; like the service report and the copy of the summons, which should have been on the file to support such an order -- Hence, the presumption attached to the correctness of the judicial order, stands deprived to the said order – Even the requirement for effecting any substituted service, as prescribed in the CPC, were not complied with before resorting to the weak type of service through alleged munadi – Order setting aside ex-parte order, upheld.

(Para 3-5)

Code of Civil Procedure, 1908 (V of 1908), Order 26 Rule 9 -- Appointment of Local Commissioner – Demarcation of property – Opinion on encroachment – Permissibility of -- Local Commissioner should confine himself to only the demarcation of properties according to the revenue records without expressing any opinion on encroachment which is the judicial function to be performed by the trial court on the totality of evidence yet to be adduced by the parties -- He would only determine if there is any overlapping beyond the limits of land held by either of the parties.

(Para 5)

Code of Civil Procedure, 1908 (V of 1908), Section 152 -- Amendment/ Rectification in judgment by Executing Court -- Error had crept in due to inadvertence of the trial court, for no fault of the decree-holder -- From the record, it is clear that the LRs were brought on record of the case by the trial court and the name of GS was deleted from the array of parties, and this fact was missed by the trial court while passing the decree -- In the circumstances, the order of the Executing Court is sustained in the interest of justice.

(Para 1, 4)

Code of Civil Procedure, 1908 (V of 1908), Order 18 Rule 3 -- Rebuttal evidence – Trial court allowed application of plaintiff, whereby he sought permission to get photographs of the specimen signatures of the defendant, which are the disputed signatures and already on file – Held, onus of proving the issue was on the defendant, but the plaintiff did not reserve his right on leading evidence in rebuttal on the said issue and in fact closed his evidence without reserving such a right -- Impugned order set aside. Avtar Singh’s case 2015(1) Civil Court Cases 728 relied.

(Para 1, 2, 6-8)

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, (54 of 2002), Section 13, 17, 34 -- Guidelines of Reserve Bank of India dated 17.3.2016 -- Code of Civil Procedure, 1908 (V of 1908), Order 39 Rule 1 & 2, Section 9 – Proceedings under SARFAESI Act – Civil Suit -- Application under order 39 Rule 1 & 2 -- Maintainability of -- Question of jurisdiction – Stage of – RBI guidelines providing for revival and rehabilitation of Micro, Small and Medium Enterprises (MSME) with loan limits upto 25 crores, sending the case to the Committee before initiating any appropriate action under the SARFAESI Act – Trial Court dismissed the application as barred u/s 34 of the 'SARFAESI Act' -- Lower Appellate Court, relying upon guidelines of RBI dated 17.3.2016, reversed the order of the trial Court – Challenged by Bank in revision -- Held;

-- Whether the company of the plaintiffs falls under MSME or not would be a question of fact to be debated before the trial Court at the relevant stage with reference to the evidence to be led by the parties.

-- For grant of temporary injunction, three principles are required to be appreciated i.e. existence of prima facie case, balance of convenience and irreparable loss to be caused in the event of non grant of temporary injunction

-- Court having no jurisdiction can pass interim order till such time issue of jurisdiction is decided by the Court on merits.

No justification to interfere in revision petition, same is dismissed.

(Para 2-4)

A. Code of Civil Procedure, 1908 (V of 1908), Order IX Rule 13, Section 96 (2) – Ex-parte Decree – Remedy for defendant -- When an ex-parte decree is passed, the defendant has two remedies –

(a) either to file an application under Order IX Rule 13 CPC to set aside the ex-parte decree by satisfying the court that the summons was not served or if served, the defendant was prevented by “sufficient cause” from appearing in the court when the suit was called for hearing;

(b) to file a regular appeal from the original decree to the first appellate court in terms of Section 96(2) CPC and challenge the ex-parte decree on merits.

(Para 9)

B. Code of Civil Procedure, 1908 (V of 1908), Order IX Rule 13, Section 96 (2) – Ex-parte decree – Setting aside of -- Remedy of – Held, right to appeal under Section 96(2) CPC challenging the original decree passed ex-parte, being a statutory right, the defendant cannot be deprived of the statutory right merely on the ground that the application filed under Order IX Rule 13 CPC was earlier dismissed.

(Para 10, 15)

C. Code of Civil Procedure, 1908 (V of 1908), Order IX Rule 13, Section 96 (2) – Limitation Act, 1963 (36 of 1963), Section 5 -- Ex-parte decree – Application for setting aside -- Regular Appeal – Condonation of delay in filing appeal -- Defendant has adopted dilatory tactics or where there is lack of bona fide in pursuing the remedy of appeal under Section 96(2) of the code after the dismissal of the application under Order IX Rule 13 CPC, is a question of fact and the same has to be considered depending upon the facts and circumstances of each case.

(Para 15)

D. Code of Civil Procedure, 1908 (V of 1908), Order IX Rule 13, Section 96 (2) – Ex-parte decree – Dismissal of appeal – Application for setting aside ex parte decree – Maintainability of -- When the defendant filed appeal under Section 96(2) CPC against an ex-parte decree and if the said appeal has been dismissed, thereafter, the defendant cannot file an application under Order IX Rule 13 CPC.

(Para 16)

Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 10, Order 5, Order 9 Rule 13 – Mode of Service – Ordinary process of service – Substituted service -- First attempt to serve the summon to defendant by means of registered post, received back unserved -- Substituted service was pressed into service straightaway and the defendant was allegedly served – Ordinary summons were never issued to the defendant, nor the service was effected in accordance with law – Held, resorting to substituted service even before exhausting the mode of ordinary process cannot sustain in the eyes of law -- It is a settled principle of law that no party should be condemned unheard that too by resorting to illegal proceedings -- By setting aside the exparte judgment and decree, the Court has given fair chance to the defendant to pursue his case.

(Para 5-11)

A. Code of Civil Procedure, 1908 (V of 1908), Order 8 Rule 6A -- Counter Claim – Stage of filing -- Framing of issue – Discretion of Court -- Whether the language of Order VIII Rule 6A of the Civil Procedure Code is mandatory in nature -- Held, Order VIII Rule 6A of the CPC does not put an embargo on filing the counter-claim after filing the written statement, rather the restriction is only with respect to the accrual of the cause of action -- Having said so, this does not give absolute right to the defendant to file the counter-claim with substantive delay, even if the limitation period prescribed has not elapsed -- Court has to take into consideration the outer limit for filing the counter-claim, which is pegged till the issues are framed -- Court in such cases have the discretion to entertain filing of the counter-claim, after taking into consideration and evaluating inclusive factors provided below which are only illustrative, though not exhaustive:

i.       Period of delay.

ii.      Prescribed limitation period for the cause of action pleaded.

iii.     Reason for the delay.

iv.     Defendant’s assertion of his right.

v.      Similarity of cause of action between the main suit and the counter-claim.

vi.     Cost of fresh litigation.

vii.    Injustice and abuse of process.

viii.   Prejudice to the opposite party.

ix.     and facts and circumstances of each case.

x.      In any case, not after framing of the issues.

(Reference answered accordingly)

(Para 20, 21)

View of Mohan M. Shantanagoudar, J. –

B. Code of Civil Procedure, 1908 (V of 1908), Order 8 Rule 6A -- Counter claim – After filing of written statement before framing of issue /  After framing of issue -- Exceptional circumstances – Discretion of Court:

There are several considerations that must be borne in mind while allowing the filing of a belated counter-claim.

--       First, the Court must consider that no injustice or irreparable loss is being caused to the defendant due to a refusal to entertain the counter-claim, or to the plaintiff by allowing the same. Of course, as the defendant would have the option to pursue his cause of action in a separate suit, the question of prejudice to the defendant would ordinarily not arise.

--       Second, the interest of justice must be given utmost importance and procedure should not outweigh substantive justice.

--       Third, the specific objectives of reducing multiplicity of litigation and ensuring speedy trials underlying the provisions for counter-claims, must be accorded due consideration.

Held, it is not mandatory for a counter-claim to be filed along with the written statement. The Court, in its discretion, may allow a counter-claim to be filed after the filing of the written statement. However, propriety requires that such discretion should ordinarily be exercised to allow the filing of a counter-claim till the framing of issues for trial.

To this extent …. Concurring

However, in exceptional circumstances, a counter-claim may be permitted to be filed after a written statement till the stage of commencement of recording of the evidence on behalf of the plaintiff.

(Para 45-46)

(Reference answered accordingly)

Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 10, Order 22 Rule 10 – Application for impleadment/substitution – Wrong mentioning of provision --- Effect of -- Plaintiff sold suit land – Application by assignee for impleadment u/o 1 R 10 CPC -- Assignee had a right to be impleaded as a plaintiff in his place -- Mere non-mentioning of an correct provision is not fatal to the application if the power to pass such an order is available with the court.

 (Para 7-9)

Code of Civil Procedure, 1908 (V of 1908), Order 41 Rule 22, 33, Section 2(2), 2(9), 11 – Dismissal of suit -- Appeal by plaintiff -- Adverse finding against defendant also – Non-filing of Cross-objections – Whether Res-judicata – Defendants-State could not file an appeal – Filing of cross-objections is not necessary to dispute the findings as the defendants have a right to support the ultimate decree on grounds other than which weighed with the learned trial court -- Even the Appellate Court has the jurisdiction to pass any order which ought to have been passed or made in proceedings before it -- Issue has not attained finality, therefore, it is not a former suit to which there can be any application of Section 11.

(Para 36-38)

A. Code of Civil Procedure, 1908 (V of 1908), Order 20 Rule 6A(2), Order 23, Rule 3, Order 21, Section 151 – Consented order of eviction – Execution of – Maintainability of -- Held, compromise order had the effect of a decree till the date of actual passing of the decree by the Court for the purposes of execution or for any other purpose -- This empowered the Executing Court to entertain the execution application and decide the objections raised by the respondent on merits – Two weeks’ time granted to appellant to apply u/s 151 read with O 20 R 6(A) of the Code to the concerned Court with a prayer for passing a decree in accordance with the compromise order passed U/O 23 R 3 of the Code -- One month’s time granted to vacate the suit house after completion of the procedural formalities by the concerned Court after making payment of all arrears of rent till the date of delivery of possession of suit house to the appellant.

(Para 24, 34-55)

B. Code of Civil Procedure, 1908 (V of 1908), Order 21 Rule 11(3) – Execution application – Requirement of certified copy of decree – O 21 R 11(3) of the Code makes it clear that the Court "may" require the decree holder to produce a certified copy of the decree -- It is not necessary to file a copy of the decree along with execution application unless the Court directs the decree holder to file a certified copy of the decree.

(Para 30)

C. Code of Civil Procedure, 1908 (V of 1908), Order 21 -- Execution application – Requirement of -- Decree holder required to ensure compliance of three things.

(i)    First, the written application filed under Order 21 Rules 10 and 11 (2) of the Code must be duly signed and verified by the applicant or any person, who is acquainted with the facts of the case, to the satisfaction of the Court;

(ii)   Second, the application must contain the details, which are specified in clauses (a) to (j) of Rule 11(2) of the Code, which include mentioning of the date of the judgment and the decree; and

(iii)  Third, filing of the certified copy of the decree, if the Court requires the decree holder to file it under Order 21 Rule 11(3) of the Code.

(Para 31,32)

D. Code of Civil Procedure, 1908 (V of 1908), Section 152 – Correction in judgment or decree or an order -- In order to invoke the powers u/S 152 of the Code, two conditions must be present –

(i)    First, there has to be a judgment or decree or an order, as the case may be, and

(ii)   Second, the judgment or decree or order, as the case may be, must contain any clerical or arithmetical error for its rectification.

In other words, Section 152 of the Code contemplates that the Court has passed the judgment, decree or the order and the same contains clerical or arithmetical error.

(Para 46)

A. Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17, Order 21 Rule 17, Section 151 -- Amendment in execution -- Contention that the application for amendment should have been filed under Order 21 Rule 17 CPC does not carry much weightage, since mere mentioning of wrong provisions of law in an application does not mean that it is to be rejected outrightly -- Spirit and substance of the application is to be viewed and hyper-technical approach is not to be adopted in such type of cases.

(Para 5)

B. Code of Civil Procedure, 1908 (V of 1908),Order 21 Rule 17, Section 151 -- Execution proceedings -- Second application for amendment – There is no bar to move more than one application for amendment, if the circumstances so warrant.

(Para 6)