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)

Code of Civil Procedure, 1908 (V of 1908), Order 8 Rule 1 -- Written statement – Non-filing within 90 days -- Assertion that delay was on account of lack of communication between the defendants and their counsel in the trial Court – Provisions of Order 8 Rule 1 CPC are not mandatory but directory -- Revisionists/defendants are afforded an opportunity to file written statement subject to the petitioners paying costs of Rs.10,000/-.

(Para 4,5)

A. Code of Civil Procedure, 1908 (V of 1908), Order 26, Rule 9 -- Local Commission Report – Demarcation -- Objection to -- No objection that either the local commission did not conduct demarcation at the spot or the demarcation was conducted on a date other than 24.11.2004 -- That being so, overwriting in the date assumes no significance much less to reject report of local commission.

(Para 22)

B. Code of Civil Procedure, 1908 (V of 1908), Order 26, Rule 9 -- Local Commission Report – Objections with regard to non-fixing of pucca points and jhandis at the time of demarcation -- Objections are contrary to what has been recorded in the demarcation report -- Appellants did not call upon the local commission to appear in the witness box for cross examination to bring home their contention raised in the objections or to challenge correctness of the facts recorded in the report with regard to fixing pucca points, jhandis etc. – No submissions that demarcation conducted by the local commission is either not in consonance with the instructions issued by the Financial Commissioner or the rules framed by the High Court of Punjab and Haryana -- Appellate Court committed no error much less perversity in relying upon the Local Commission report.

(Para 23)

A. Limitation Act, 1963 (36 of 1963), Article 65 -- Suit for declaration and possession – Limitation -- Limitation for filing a suit for possession on the basis of title is 12 years -- Merely because one of the reliefs sought is of declaration that will not mean that the outer limitation of 12 years is lost.

(Para 9)

B. Code of Civil Procedure, 1908 (V of 1908), Order 41 Rule 27 – Application for placing on record additional documents -- No application was filed under Order XLI Rule 27 of CPC for leading additional evidence before the first appellate court or even before the High Court -- Even the applications filed before Supreme Court do not set out any reasons for not filing these documents earlier and do not meet the requirements of Order XLI Rule 27 of CPC – Documents cannot be taken into consideration, applications rejected.

(Para 13)

Code of Civil Procedure, 1908 (V of 1908), Section 100 -- Punjab Courts Act, 1918, Section 41 -- Regular Second Appeal – Substantial question of law – Requirement of -- Insofar as the State of Punjab is concerned, a second appeal does not require formulation of a substantial question of law -- Judgments of Supreme Court in Chand Kaur (D) through Lrs.’s case Civil Appeals No.3276-3281 of 2019 and Surat Singh (Dead)’s case Civil Appeal Nos.9118-9119 of 2010 being contrary to the Constitution Bench in Pankajakshi (Dead) through L.Rs. &Ors, (2016) 6 SCC 157 would not hold the field.

(Para 10-12)

Hindu Marriage Act, 1955 (25 of 1955), Section 13, 15 – Code of Civil Procedure, 1908 (V of 1908), O 9 R 13, O 43 R 1(d) -- Decree of divorce -- Second marriage by husband after expiry of limitation – Right of second wife -- In application by first wife u/o 43 R 1(d) against dismissal of O 9, R 13, High Court directed that, "the parties shall live together as husband and wife." – Held, High Court even after taking note of the factum of the said marriage, has not adverted to the consequences thereof and has given such directions, which may not be capable of due performance – In such a situation, where the impugned order was passed without hearing the appellant-second wife and not issuing any notice of the appeal to her, is wholly without jurisdiction and legally unsustainable and it has to be set aside on this short ground alone.

(Para 4-14)

A. Code of Civil Procedure, 1908 (V of 1908), Order 22 Rule 4(3), 9 -- One of the appellant died – Non-bringing on record legal heirs in prescribed period -- Abetment of appeal by operation of law -- Abatement of suit for failure to move an application for bringing the legal representatives on record within the prescribed period of limitation is by operation of law but once the suit has abated as a matter of law, though there may not have been passed on record a specific order dismissing the suit as abated, yet the legal representatives proposing to be brought on record or any other applicant proposing to bring the legal representatives of the deceased party on record would seek for the setting aside of an abatement.

(Para 16)

B. Code of Civil Procedure, 1908 (V of 1908), Order 22, Rule 9 -- Appeal by defendants and plaintiff -- Abatement of appeal against one of defendant -- Effect of – During pendency of appeal one of defendant died -- Appeal qua said defendant treated as abated and decree qua said defendant have become final -- Where decree is joint and indivisible, in event of appeal succeed there will be two mutual inconsistent decrees -- Enforcement of two decrees would be inexecutable and enforcement of one would negate or render impossible enforcement of other – Appeals dismissed as abated.

(Para 17-26)

A. Code of Civil Procedure, 1908 (V of 1908), Order 12 Rule 6 – Judgment on admission -- Stand of the appellants that, the pages 3 and 4 of the agreement dated 3.5.2005 are tampered and their signatures are fabricated -- Specific issue is already framed -- It cannot be said that there are categorical and unconditional admissions by the appellants.

(Para 33)

B. Code of Civil Procedure, 1908 (V of 1908), Order 12 Rule 6 – Judgment on admission – Pleaded admission – Absence of -- Relief claimed under Order XII Rule 6 of CPC by filing a written application claiming admission only based on the statement made by the advocate in the bail application, and there is no other pleaded admissions, in the application filed by the respondents-plaintiffs -- It is a trite principle that any amount of evidence is of no help, in absence of pleading and foundation in the application.

(Para 34)

C. Code of Civil Procedure, 1908 (V of 1908), Order 12 Rule 1, 6 – Judgment on admission -- Whether any inference can be drawn on admissions having regard to documents placed on record, is a matter to be considered having regard to facts of each case -- There cannot be any straight jacket formula to extend the benefit of Order XII Rule 6 of CPC.

(Para 35)

D. Code of Civil Procedure, 1908 (V of 1908), Order 12 Rule 1, 6 – Judgment on admission – Trail commenced – Effect of -- Application under Order XII Rule 6 was filed on 9.2.2007 -- In year 2010 issues and additional issues were framed and trial is also commenced – There is no reason to pass the impugned order now for decreeing the suit on claimed admissions, in exercise of power under Order XII rule 6 of CPC at this stage -- It is desirable to record findings on various contentious issues and disputes in the suit on merits by appreciating evidence – Impugned order liable to be set aside on this ground alone.

(Para 37)

E. Code of Civil Procedure, 1908 (V of 1908), Order 12 Rule 1, 6, Specific Relief Act, 1963 (47 of 1963), Section 16(c) – Judgment on admission – Suit is for specific performance of the agreement of sale -- Relief sought is equitable and discretionary relief -- Readiness and willingness on the part of plaintiffs to execute the document is to be pleaded and proved.

(Para 4-11, 38-40)

A. East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 2(c) -- Landlord – Definition of -- Tenancy created by life interest – Status of -- A landlord within the meaning of Section 2(c) is not necessarily the owner of the property -- Definition of the expression ‘landlord’ is relatable to an entitlement to receive rent in respect of any building or rented land -- Life estate enabled her to create a tenancy and receive the rent from the tenants on the property -- She fulfilled the description of a ‘landlord’ under Section 2(c) of the Act 1949.

(Para 4-12, 17)

B. East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 2(i), 13 – Code of Civil Procedure, 1908 (V of 1908), Section 9 -- Tenancy created by life interest/ landlord – Death of life interest/ landlord -- Tenant – Status of -- First respondent in whose favour a tenancy was created acquired a status of a statutory tenant and that status does not stand obviated – Statutory protection afforded to the tenant did not cease to exist upon the death -- Remedy available to remove the first respondent from the property is by pursuing eviction proceedings on one or more of the grounds available in the enactment – It was not open to the civil court to entertain a suit for possession founded on the hypothesis that the tenant is a trespasser.

(Para 15-17)

Hindu Succession Act, 1956 (30 of 1956), Section 10, 15, Schedule, Class 1 heir -- Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 10 – Property dispute -- Will by deceased – Execution of Will is yet to be proved – If Will is not proved, the daughter would be entitled to a share in the properties – Held, Daughters are, therefore, necessary parties to the proceedings.

(Para 11-13)

Haryana Urban (Control of Rent and Eviction) Act, 1973 (11 of 1973), Section 13 – Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 10 -- Eviction petition – Death of tenant – Impleadment of all legal heirs as party -- One of legal heir impleaded as party, who is doing business in the shop – None of the plea of applicants that they are in possession of the shop in question after death of tenant and the person impleaded as legal heir is not in possession of the same – Application for impleadment dismissed. Suresh Kumar Kohli’s case 2018(3) CCC 769 relied.

(Para 2-6)

A. Code of Civil Procedure, 1908 (V of 1908), Order 12 Rule 6 -- Family settlement – Nature of relations -- For the purpose of family settlement, the family is not to be narrowly construed -- For the purpose of family settlement, the family is to be considered as a larger family and even if one member of the family is not closely related that would not make a family settlement bad in the eyes of law.

(Para 11)

B. Code of Civil Procedure, 1908 (V of 1908), Order 12 Rule 6 – Registration Act, 1908 (16 of 1908), Section 17 -- Family settlement – Compromise judgment and decree – Registration – Requirement of -- Judgment and decree is not an instrument of transfer of the property -- A judgment and decree acknowledging family settlement which had been arrived at before the filing of the suit is passed on the basis of consent of the parties under Order 12 Rule 6, Civil Procedure Code, 1908 -- Once the judgment and decree is not instrument of transfer, it does not require registration.

(Para 13)

C. Registration Act, 1908 (16 of 1908), Section 17 -- Indian Evidence Act, 1872 (1 of 1872), Section 101, 114 -- Registered sale deed – Disputing payment before Registrar -- Challenge to -- Registered sale deed has a presumption of correctness and the onus is very heavy on the plaintiff to prove otherwise -- Plaintiff has failed to prove that there was no payment – A sale deed cannot be set aside on the ground that the payment of the sale consideration is not before the Sub-Registrar.

(Para 15,16)

A. Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17 -- Memo of parties – Correction in -- Plaintiff is described as Varun Pahwa through Director of Siddharth Garments Pvt. Ltd. though it should have been Siddharth Garments Pvt. Ltd. through its Director Varun Pahwa -- Such inadvertent mistake cannot be refused to be corrected when the mistake is apparent from the reading of the plaint – Order declining to correct the memo of parties cannot be said to be justified in law -- Order declining correction set aside.

(Para 8-12)

B. Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17 – Amendment in pleadings -- Rules of Procedure are handmaid of justice and cannot defeat the substantive rights of the parties -- It is well settled that amendment in the pleadings cannot be refused merely because of some mistake, negligence, inadvertence or even infraction of the Rules of Procedure -- Court always gives leave to amend the pleadings even if a party is negligent or careless as the power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations.

(Para 9)

Code of Civil Procedure, 1908 (V of 1908), Order 41 Rule 17, 19, Section 96 – Limitation Act, 1963 (36 of 1963), Section 5 -- First appeal dismissed in default – Restoration of appeal after 176 days delay – Condonation of delay -- Application to condone the delay dismissed -- Held, delay of 176 days cannot said to be an inordinate delay, more so, when the matter relates to the First Appeal -- Appellants having lost before the Trial Court ought to be have fair and reasonable opportunity to pursue their First Appeal -- Impugned order of the High Court set aside -- First Appeal restored.

(Para 6-8)

A. Code of Civil Procedure, 1908 (V of 1908), Order 47 Rule 1 – Review – Scope of -- It is a settled law that every error whether factual or legal cannot be made subject matter of review under Order 47 Rule 1 of the Code though it can be made subject matter of appeal arising out of such order -- In order to attract the provisions of Order 47 Rule 1 of the Code, the error/mistake must be apparent on the face of the record of the case.

(Para 21)

B. Code of Civil Procedure, 1908 (V of 1908), Order 47 Rule 1 – Urban Land (Ceiling and Regulation) Act, 1976 (33 of 1976), Section 4 – Repeal of Ceiling Act – Finding regarding possession -- Review – Scope of -- Once the finding was recorded by the High Court in the writ petition that the writ petitioner failed to prove her actual possession on the land in question on the date of repeal, such finding could not have been examined de novo in review jurisdiction by the same Court like an Appellate Court on the facts and evidence.

(Para 4,5,19-27)

Code of Civil Procedure, 1908 (V of 1908), Order 9 Rule 6(1)(a), 13, Order 17, Rule 2, 3(b) -- Non-appearance of defendant -- Ex-parte decree – Setting aside of –

--     Since the defendants were proceeded ex parte and were found not to have led any evidence in the suit, the Court could only proceed under Order 17 Rule 3 (b) read with Order 17 Rule 2 of the Code for disposal of the suit by taking recourse to one of the modes directed in that behalf by Order 9 of the Code or could have made any other order as it thinks fit.

--     Trial Court did proceed to hear the suit ex parte by taking recourse to the Order 9 Rule 6 (a) in terms of Order 17 Rule 2 of the Code because on that day, the plaintiff was present when the suit was called on for hearing whereas the defendants were absent despite service of summons and accordingly the Trial Court passed the preliminary decree.

Held, such decree, was an "ex parte decree" within the meaning of Order 9 Rule 6 (a) read with Order 9 Rule 13 of the Code and, therefore, could be set aside under Order 9 Rule 13 on making out a sufficient ground by the defendants.

(Para 28, 29)

A. Code of Civil Procedure, 1908 (V of 1908), Section 100 -- Substantial question of law – Agreement to sell -- Interpretation of -- Interpretation of any terms and conditions of a document constitutes a substantial question of law within the meaning of Section 100 of the Code.

(Para 12)

B. Code of Civil Procedure, 1908 (V of 1908), Section 100 -- Interpretation of agreement to sell – Substantial question of law -- On one hand, the High Court went on interpreting the terms of the document after hearing the argument of both sides and on the other hand, in conclusion, held that it does not involve any substantial question of law -- It virtually, therefore, decided the second appeal bipartite like the first appeal without keeping in view the scope of its jurisdiction conferred by Section 100 (4) and (5) of the Code – Held, the approach of the High Court while deciding the second appeal was not in conformity with the requirements of Section 100 of the Code – Matter remanded back to High Court.

(Para 15-17)

A. Specific Relief Act, 1963 (47 of 1963), Section 16 (c) -- Readiness and willingness – Finding of fact – A finding on the issue of readiness and willingness is one of the important and relevant findings in a suit for specific performance of an agreement -- It is a finding based on facts and once it is recorded, it becomes a finding of fact -- Unless such finding is found to be against the pleadings or contrary to the evidence or the law governing the issue, it is binding on the High Court and also on Supreme Court.

(Para 21, 22)

B. Code of Civil Procedure, 1908 (V of 1908), Order 22 Rule 4(2) -- All Legal representatives – Right of -- It is a trite law that if out of all the legal representatives, majority of them are already on record and they contested the case on merits, it is not necessary to bring other legal representatives on record.

(Para 30)

C. Sale by Karta of Joint Hindu Family – Power of -- One cannot dispute the power of a Karta to sell the Joint Hindu Family property -- It is, indeed, inherent in him -- However, it is subject to certain restrictions, namely, the sale should be for the legal necessity and for the benefit of the family.

(Para 44)

A. Code of Civil Procedure, 1908 (V of 1908), Order 23 Rule 3 – Compromise arrived – Adjournment in case – Effect of -- No doubt, first proviso to Rule 3 of Order 23 of the Code of Civil Procedure provides that the court shall decide the question about the compromise on the same day and no adjournment shall be granted but there is no absolute bar for grant of such adjournment -- Delay of more than 10 years in disposal of the appeal – No subsequent development which makes the compromise inequitable or impossible on account of delay -- Inaction on the part of the court cannot be made ground to deprive fruits of a valid settlement arrived at between the parties.

(Para 26)

B. Indian Contract Act, 1872, Section 10 -- Deed of compromise – Validity of -- Deed of compromise is a contract between the parties can be unlawful only as per the provisions of the Contract Act.

(Para 35)

C. Registration Act, 1908 (16 of 1908), Section 17(2)(vi) – Compromise decree dealing with immovable property – Compulsorily registration – Requirement of -- Deed of compromise even if dealing with the immovable property which subject matter of litigation does not require registration.

(Para 37)

D. Code of Civil Procedure, 1908 (V of 1908), Order 23 Rule 3 – Compromise between some of parties – Permissibility of -- Compromise can be between some of the parties to the litigation or a part of the dispute involved -- 3rd proviso to Rule 3 of Order 23 as applicable to the State of Punjab, Haryana and Union Territory of Chandigarh uses the words “all the parties” but however that proviso deals with the adjournment -- The words “all the parties” has not been used in the main provision, therefore, proviso cannot be read in a manner to give a different meaning to the main provision.

(Para 40)

E. Code of Civil Procedure, 1908 (V of 1908), Order 23 Rule 3 – Compromise deed – Validity of -- Once a compromise deed is alleged by one party and denied by other party, the court shall decide the question – Compromise deed is in writing, signed by the parties who are educated belonging to affluent families represented by senior counsels -- Not the allegation that compromise deed is either not signed or is result of misrepresentation -- Party No.1 has already received the payment as agreed to under the deed of settlement/compromise deed -- Hence, no further enquiry is required.

(Para 45)

F. Code of Civil Procedure, 1908 (V of 1908), Section 2(12), Order 20 Rule 12 – Mesne profit – Co-sharer – Right of -- A co-sharer cannot be held to be in unauthorised possession and hence he is not liable to pay mesne profit.

(Para 65)

G. Code of Civil Procedure, 1908 (V of 1908), Order 2 Rule 2, Section 12 – Barring of subsequent suit -- Cause of action – In the present suit, plaintiffs have pleaded a cause of action which arose after the death of ‘JK’ -- Such cause of action was not available when previous litigation was filed -- Present suit is for resolving the dispute inter-se between the legal heirs of ‘JK’ on the basis of registered Will, which was not the cause of action in the previous suits -- Hence, bar under Section 12 or under Order 2 Rule 2 CPC would not be attracted.

(Para 78)

H. Sale of undivided specific share – Effect of -- Any sale or alienation made by a co-sharer even if with respect to land comprised in specific khasra numbers would ultimately be sale of an undivided share from the joint property.

(Para 86)

I. Sale of undivided specific share – Protection of Possession – Right of -- Once a co-sharer has put his subsequent vendee in possession of the property may be of undivided share, the vendee is entitled to protect his possession subject to partition.

(Para 87)

J. Indian Succession Act, 1925 (39 of 1925), Section 63(c) – Will – Execution of -- On careful reading of Section 63(c) of the Succession Act, it is apparent that Section 63(c) can be divided into 3 parts.

--     First part deals with attestation of the testament by 2 or more witnesses, each of whom has seen testator signed or affixed his mark to the Will;

--     or has seen some other persons signed the Will in the presence and by directions of the testator:

--     or has received from the testator a personal acknowledgement of his signature or mark or the signatures of such person and each of the witness shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time and no particular form of attestation shall be necessary.

(Para 92)

K. Indian Succession Act, 1925 (39 of 1925), Section 68 – Will -- Testament signed by other – Effect of -- Whenever the testament is signed by some other person and not by the testator, it is mandatory that some other person has signed the testament in the presence and by the directions of the testator -- In such circumstances, it is necessary to prove that the testament was signed in the presence and by direction of the testator.

(Para 93)

L. Indian Succession Act, 1925 (39 of 1925), Section 68 – Will – Execution of – Proof of -- One attesting witness who has been examined is required to testify that the testator signed in the presence of both the witnesses and attesting witness signed in the presence of the testator.

(Para 93)

M. Indian Succession Act, 1925 (39 of 1925), Section 63 -- Will – Attestation of -- Registration of -- Execution and attestation of the Will by the testator and two attesting witnesses is separate than the act of getting the same registered -- Some time there can be a gap of few days in between the execution and attestation of the Will by the attesting witnesses and registration of the Will – Registration of the Will is a separate independent act which is only optional -- Registration of the Will is not mandatory.

(Para 100)

N. Indian Succession Act, 1925 (39 of 1925), Section 68 -- Will -- Validity of -- Will is to be examined with reference to the status of the parties and their expected exposure to the world – Testament has not been executed in favour of stranger but in favour of her son and other heirs -- Testator had bequeathed the property in favour of his two sons, daughter, grand children from the sons and some of the grand children from the daughter -- Hence, the testament cannot be said to be unnatural -- Some difference in the share granted to each of the heir cannot be treated with suspicion.

(Para 102)

A. Code of Civil Procedure, 1908 (V of 1908), Order 26, Rule 9, Section 115 -- Constitution of India, Article 227 -- Appointment of Local Commissioner – Refusal to appoint – Revisional Jurisdiction -- Orders are not revisable orders -- Such type of orders do not decide substantive right of the parties -- Petitioner would be well within his right to lead substantive evidence during trial.

(Para 7-8)

B. Code of Civil Procedure, 1908 (V of 1908), Order 26, Rule 9, Section 115 -- Appointment of Local Commissioner – Demarcation of land -- Discretion of the Court cannot be utilized to collect evidence for the petitioner.

(Para 9)

Code of Civil Procedure, 1908 (V of 1908), Order 26 Rule 9, Order 39 Rule 1 & 2, Section 151 -- Temporary injunction – Appointment of Local Commissioner -- Appellate Court to find the ground reality directed the trial Court to appoint a Local Commissioner for demarcation -- Petitioner was duty bound before raising construction after ensuring that he is not encroaching upon the land owned by the respondent -- Appointment of Local Commissioner will safeguard the interest of both the parties -- If it is found that petitioner has encroached upon any portion, he would be liable to pay a penalty of Rs.40,000/-.

(Para 1, 5-8)

Code of Civil Procedure, 1908 (V of 1908), Section 13, Order 7 Rule 11 – Guardians and Wards Act, 1890 (8 of 1890), Section 7, 9 -- Foreign judgment / decree – Custody of child – Rejection of plaint – At the time of consideration of application under Order 7 Rule 11 CPC, only averments made in the plaint are to be seen – Since minor cannot be party to the lis between the parents, any order passed on consent of the parents is not binding upon the minor -- Sub Clauses (c), (d) and (f) of Section 13 CPC may give rise to certain questions which are required to be answered by the competent Court after receiving evidence from the parties -- Foreign judgment cannot be a solitary point for decision of the custody issue before the Court under Section 7 read with Section 9 of the Guardians and Wards Act, 1890 -- Scope of Order 7 Rule 11 CPC cannot be applied as triable issues are involved.

 (Para 24-27)

Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17 -- Amendment sought was allowed as it was formal in nature and never changed the nature of the suit -- Purpose for allowing the amendment is to decide the real controversy – Provisions of amendment of plaint cannot be construed so strictly that even the mistake which does not prejudice the other side cannot be corrected at a later stage by an amendment.

(Para 8)

A. Code of Civil Procedure, 1908 (V of 1908), Order 41 Rule 27 -- Land Acquisition Act, 1894 (1 of 1894), Section 23 – Market value of acquired land – Additional evidence -- Judgments pertained to the similarly situated land in District Panchkula, the application for additional evidence allowed since the judgments have been passed after the award which is now impugned -- Judgments would be helpful to judge the market value in near vicinity.

(Para 35)

B. Land Acquisition Act, 1894 (1 of 1894), Section 23 – Market value of acquired land – Assessment of –

(i)      It is settled proposition that value of the land of the adjoining villages if it is one of the same quality and identically placed, can be taken into consideration for assessing the market value.

(ii)     What has to be etched on the mental screen of the Court is that in the facts and circumstances, the potentiality of the land in question could not be ignored as it was ripe at the time of acquisition for development from all sides i.e. residential, commercial and institutional.

(iii)    Merely because the land was acquired for the purpose of dumping ground, it would not as such discount the potentiality of the land as the usage of the land is not an aspect which is to be kept in mind by this Court.

(iv)    It is also settled principle that assessment of market value always is on the basis of little guess work and there is no exact formula as such to assess the market value with precision.

(Para 40-63)

C. Land Acquisition Act, 1894 (1 of 1894), Section 23 – Compensation in land acquisition case – Direct payment to landowner -- State shall comply with the directions laid down by the Apex Court in 'HSIIDC Vs. Pran Sukh' (2010) 11 SCC 175, to ensure that the landowners are not fleeced by the middleman, which read as under:

(a)     The Land Acquisition Collector shall depute officers subordinate to him not below the rank of Naib Tahsildar, who shall get in touch with all the land owners and/or their legal representatives and inform them about their entitlement and right to receive enhanced compensation.

(b)     The concerned officers shall also instruct the land owners and/or their legal representatives to open savings bank account in case they already do not have such account.

(c)     The bank account numbers of the land owners should be given to the Land Acquisition Collector within three months.

(d)     The Land Acquisition Collector shall deposit the cheques of compensation in the bank accounts of the land owners.

(Para 69)

A. Code of Civil Procedure, 1908, (V of 1908), Order 7 Rule 11 (d) – Constitution of India, Article 141 -- Plaint to be barred by any law -- Rejection of plaint -- Expression “law” occurring in Order 7 Rule 11 (d) includes judicial decisions of the Hon’ble Apex Court -- The authoritative pronouncement of the Hon’ble Apex Court is the law of land -- The law declared by Hon’ble Apex Court under Article 141 of the Constitution of India is law of land -- Law includes not only legislative enactments but also judicial precedents.

(Para 6)

B. Code of Civil Procedure, 1908, (V of 1908), Order 7 Rule 11 (c) – Court Fees Act, 1870 (7 of 1870), Article 17(iii), Section 7 (iv)(c) -- Non-executant of deed in possession – Challenge to Transfer deed – Ad-valorem court fee -- If a non-executant who is in possession of the property seeks to get the document annulled, then he is required to pay Court as per Article 17(iii) of the Second Schedule of the Act.

(Para 9)

C. Code of Civil Procedure, 1908, (V of 1908), Order 7 Rule 11 (c) – Court Fees Act, 1870 (7 of 1870), Section 7 (iv)(c) -- Non-executant of deed not in possession – Challenge to Transfer deed – Ad-valorem court fee – If the non-executant who is not in possession of the property and he seeks not only the declaration of the instrument to be invalid, but also seeks possession thereof, then he is required to pay ad valorem Court fee as per market value under Section 7(iv) (c) of the Act.

(Para 9)

D. Code of Civil Procedure, 1908, (V of 1908), Order 7 Rule 11 (c) – Court Fees Act, 1870 (7 of 1870), Section 7 (iv)(c) -- Non-executant of deed in possession – Challenge to Transfer deed – Ad-valorem court fee -- Suit for declaration to the effect that he is owner in possession of the suit property -- Transfer deed was claimed to be sham transaction and was not binding upon the right and title of the plaintiff -- Permanent injunction was also sought, restraining the defendant from dispossessing the plaintiff – Transfer deed under challenge in the suit does not show any consideration -- Plaintiff is not required to pay ad valorem Court fee.

(Para 2, 10)

Code of Civil Procedure, 1908 (V of 1908), Order 39 Rule 1 & 2 – Public property – Injunction for encroacher – Right of -- Courts being guardian of the public property have not to come to rescue of an encroacher and to allow him any discretionary relief of injunction to protect his unauthorized possession over public property.

(Para 8)

A. Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 10 – Specific Relief Act, 1963 (47 of 1963), Section 12 – Specific performance of contract -- Necessary party – Proper party – Change in cause of action – Impleadment as party –

(i)    if a person makes an application for being impleaded as a party contending that he is a necessary party and if the Court finds that he is a necessary party, such person can be impleaded as a defendant;

(ii)   if a non-party makes an application seeking impleadment on the ground of being a proper party and the Court finds him to be a proper party, the Court may direct such proper party to be added as a defendant

but if the Court finds that the addition of such a person will alter the nature of the suit or introduce a new cause of action, it may dismiss the application even if such person is found to be a proper party, if the Court does not wish to widen the scope of the specific performance of suit or in the alternative the Court may direct such person to be impleaded as a proper party either unconditionally or subject to terms. Mumbai International Airport Pvt. Ltd.’s case 2010 (7) SCC 417 relied.

(Para 9)

B. Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 10 – Specific Relief Act, 1963 (47 of 1963), Section 12 – Specific performance of contract -- Necessary party – Proper party – Change in cause of action – Impleadment as party – In a suit for specific performance of contract for sale, the lis between the parties to the suit only shall be gone into and it is not open to the Court to decide whether a party who has moved an application for being impleaded as a defendant has acquired any title or possession of the contracted property as the same would not be germane for decision of the suit for specific performance of the contract for sale and that can be decided in separate proceedings.

(Para 10)

C. Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 10 – Specific Relief Act, 1963 (47 of 1963), Section 12 – Specific performance of contract -- Necessary party – Proper party – Change in cause of action – Impleadment as party – Agreement to sell by respondent no. 3 & 4 in favour of respondent no. 1 & 2 -- Petitioner has already filed a separate civil suit against respondent Nos.3 and 4 in which he has challenged the Will -- Petitioner is not a party to the agreement to sell on the basis of which the suit for specific performance has been filed -- Claim of the petitioner is that the alleged Will executed by his father is the subject matter of a separate civil suit instituted by the petitioner/applicant -- Appropriate course of action for the petitioner is to challenge the same by way of a separate suit and not by moving the application under Order 1 Rule 10 CPC in the suit for specific performance of agreement.

(Para 11)

Code of Civil Procedure 1908 (V of 1908), Order 1 Rule 10 – Specific Relief Act, 1963 (47 of 1963), Section 12 -- Suit for specific performance -- Necessary party – Proper Party – Impleadment as party -- In order to avoid multiplicity of litigation in future, vendee lis pendens can be allowed to defend the suit on behalf of the vendor to safeguard the interest of all concern.

(Para 10)

A. Code of Civil Procedure, 1908 (V of 1908), Order 21 Rule 58 --  Execution of order – Objections -- Revisional Court’s power – Remand of case -- Executing Court had already decided all objections raised by the defendants (appellants) on merits and had found no merit therein -- Revisionary Court was, therefore, under legal obligation to decide the legality and correctness of the findings recorded by the Executing Court on its merits in its revisionary jurisdiction instead of remanding the case to the Executing Court.

(Para 17)

B. Code of Civil Procedure, 1908 (V of 1908), Order 21 Rule 58, Order 41 Rules 23, 23A, 24 and 25 -- Appellate/Revisional Court’s power – Remand of case -- Remand of a case to the Subordinate Court is considered necessary when the Superior Court while exercising its appellate or revisionary jurisdiction finds that the Subordinate Court has failed to decide some material issues arising in the case or there is some procedural lacuna noticed in the trial, which has adversely affected the rights of the parties while prosecuting the suit/proceedings or when some additional evidence is considered necessary to decide the rights of the parties which was not before the Trial Court etc.

(Para 18)

C. Code of Civil Procedure, 1908 (V of 1908), Order 21 Rule 58 --  Execution of order – Objections -- Revisional Court’s power – Remand of case – Additional documents – Reliance upon – Permissibility of -- Revisionary Court allowed the defendants (revision petitioners) to file additional documents to prove their case -- Legality and correctness of the order impugned in the revision could be decided one way or the other without the aid of any additional document but on the basis of material already on record keeping in view the law laid down by this Court in several decided cases on the issue in question -- Indeed, if the Executing Court could decide the issue finally at its level, the Revisionary Court too could do the same at its level.

(Para 19, 20)

D. Code of Civil Procedure, 1908 (V of 1908), Order 21 Rule 58, Execution of order – Objections -- Remand of case by Revisional Court -- High Court having noticed the errors in the order of the Revisionary Court should have remanded the case to the Revisionary Court for deciding the revision afresh on merits in accordance with law -- Instead, the High Court itself went into the question on merits and upheld the order of the Executing Court -- High Court should not have done and left it for the Revisionary Court to do.

(Para 23)

A. Code of Civil Procedure, 1908 (V of 1908), Order 41 Rule 27 – Additional evidence – High Court has opined that the documents proposed to be produced by the respondent/defendant were official records and public documents which, if proved, could enable the Appellate Court to pronounce the judgment and do full, complete and effectual justice to the parties -- Conclusion reached by the High Court on this count is impregnable.

(Para 9-10)

B. Code of Civil Procedure, 1908 (V of 1908), Order 41 Rule 27 – Additional evidence – By allowing the applications under Order XLI Rule 27 of CPC, it would not follow that the additional documents/additional evidence can be straightaway exhibited rather, the respondent would have to not only prove the existence, authenticity and genuineness of the said documents but also the contents thereof, as may be required by law.

(Para 11)

C. Code of Civil Procedure, 1908 (V of 1908), Order 41 Rule 27 – Additional evidence – Two options available to the Appellate Court -- First, it may record the evidence itself by permitting the parties to produce evidence before it as per Rule 27 of Order XLI or direct the Court from whose decree the appeal under consideration has arisen, to do so.

(Para 15)

D. Code of Civil Procedure, 1908 (V of 1908), Order 41 Rule 25, 27, 28 – Additional evidence – Relegating of case/issue -- High Court has not recorded any special reasons as to why the parties should be relegated before the “trial Court” to re-decide the suit -- As per Rule 25 of Order XLI of the CPC, the High Court could have framed the issues and referred them for adjudication before the First Appellate Court, against whose decree the second appeal was preferred before the High Court -- First Appellate Court could proceed to try such issues and return the evidence to the High Court together with its findings thereon within the prescribed time -- And on receipt of the report, the High Court could then consider the substantial questions of law already framed while admitting the second appeal and finally decide the same on all issues.

(Para 17)

Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 10 – Transfer of Property Act, 1882 (4 of 1882), Section 52 -- Doctrine of lis pendens – Impleading as party -- Transfer of property during litigation without permission of the Court will be hit by doctrine of lis pendens -- Such transferee will not be entitled to be impleaded as party to the suit as a matter of right -- If the transferee makes out a case at an appropriate stage in a bona fide manner, the same can be considered and permission can be granted with the leave of the Court in terms of Section 52 of the Act.

(Para 10)

Code of Civil Procedure, 1908 (V of 1908), Order 14 Rule 1 -- Non-framing of issue – Remand of case – When the parties are alive to the controversy and even though no specific issue is framed and they led the evidence on the said controversy and the same is discussed and decided by the trial Court on merits, the absence of the specific issue on the point is no ground to remand the case.

(Para 8)

Code of Civil Procedure, 1908 (V of 1908), Section 24 – Hindu Marriage Act, 1955 (25 of 1955), Section 13 -- Divorce petition -- Transfer of -- Parties last resided at Bathinda and witnesses are Army personnel posted at Bathinda, there is no ground to transfer the case from Bathinda Courts to Panchkula.

(Para 7)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 482 -- Code of Civil Procedure, 1908 (V of 1908) -- Constitution of India, Article 227 -- Civil and Criminal proceedings – Stay of – Automatic vacation of stay -- Proceedings remaining pending for long on account of stay needs to be remedied -- Remedy is required not only for corruption cases but for all civil and criminal cases where on account of stay, civil and criminal proceedings are held up -- At times, proceedings are adjourned sine die on account of stay -- Even after stay is vacated, intimation is not received and proceedings are not taken up -- In an attempt to remedy this, situation, Directions given that :

-- in all pending cases where stay against proceedings of a civil or criminal trial is operating, the same will come to an end on expiry of six months from today unless in an exceptional case by a speaking order such stay is extended.

-- In cases where stay is granted in future, the same will end on expiry of six months from the date of such order unless similar extension is granted by a speaking order.

-- The speaking order must show that the case was of such exceptional nature that continuing the stay was more important than having the trial finalized.

-- The trial Court where order of stay of civil or criminal proceedings is produced, may fix a date not beyond six months of the order of stay so that on expiry of period of stay, proceedings can commence unless order of extension of stay is produced.

(Para 35)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 397, 482 – Constitution of India, Article 227 – Framing of charge – Challenge to – Power of -- Stay of proceedings -- Framing charge is not purely an interlocutory order nor a final order -- Jurisdiction of the High Court is not barred irrespective of the label of a petition, be it under Sections 397 or 482 Cr.P.C. or Article 227 of the Constitution -- However, the said jurisdiction is to be exercised consistent with the legislative policy to ensure expeditious disposal of a trial without the same being in any manner hampered -- Thus considered, the challenge to an order of charge should be entertained in a rarest of rare case only to correct a patent error of jurisdiction and not to re-appreciate the matter.

-- Even where such challenge is entertained and stay is granted, the matter must be decided on day-to-day basis so that stay does not operate for an unduly long period.

-- Though no mandatory time limit may be fixed, the decision may not exceed two-three months normally.

-- If it remains pending longer, duration of stay should not exceed six months, unless extension is granted by a specific speaking order, as already indicated.

-- In all pending matters before the High Courts or other courts relating to PC Act or all other civil or criminal cases, where stay of proceedings in a pending trial is operating, stay will automatically lapse after six months from today unless extended by a speaking order on above parameters.

-- Same course may also be adopted by civil and criminal appellate/revisional courts under the jurisdiction of the High Courts.

-- Trial courts may, on expiry of above period, resume the proceedings without waiting for any other intimation unless express order extending stay is produced -- High Courts may also issue instructions to this effect and monitor the same so that civil or criminal proceedings do not remain pending for unduly period at the trial stage.

A copy of order sent to all the High Courts for necessary action.

(Para 37, 38)

Haryana Panchayati Raj Act, 1994 (11 of 1994), Section 176 -- Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 – Nomination of candidate – Whether rightly accepted or liable to be rejected -- Rejection of plaint -- While deciding the application under Order VII Rule 11 CPC, prima-facie, the allegations made in the plaint are required to be considered -- Whether the nomination was rightly accepted or was liable to be rejected, is still a matter of trial.

(Para 10)

A. Code of Civil Procedure, 1908 (V of 1908), Section 100, 151, Order 41 Rule 21 -- Ex-parte hearing of appeal – Re-hearing of appeal -- High Court erred in deciding the second appeal much less allowing it without hearing the contesting respondent and also erred in dismissing his application filed under Section 151 read with Order 41 Rule 21 of the Code for rehearing of the second appeal -- Having regard to the nature of controversy involved in the case and further in the light of the grounds on which the application for rehearing of the appeal was founded, the High Court should have granted one opportunity of hearing to respondent for opposing the second appeal and for that purpose should have restored the second appeal for its re-hearing on merits in accordance with law.

(Para 14, 15)

B. Code of Civil Procedure, 1908 (V of 1908), Section 100 -- Regular Second Appeal – Substantial question of law -- High Court was under a legal obligation to frame the substantial question at the time of admission of the appeal after hearing the appellant or/and his counsel under sub-section (4) of Section 100 of the Code, but the High Court did it while passing the final judgment in its concluding para -- Such novel procedure adopted by the High Court, is wholly contrary to the scheme of Section 100 of the Code and renders the impugned judgment legally unsustainable – It also resulted in causing prejudice to the respondents because the respondents could not object to the framing of substantial question of law.

(Para 18-26)

C. Code of Civil Procedure, 1908 (V of 1908), Section 100 -- Regular Second Appeal – Substantial question of law -- It is the framing of the question which empowers the High Court to finally decide the appeal in accordance with the procedure prescribed under sub-section (5) -- Both the requirements prescribed in sub-sections (4) and (5) are, therefore, mandatory and have to be followed in the manner prescribed therein -- Jurisdiction to decide the second appeal finally arises only after the substantial question of law is framed under sub-section (4).

(Para 30)

D. Code of Civil Procedure, 1908 (V of 1908), Section 100 -- Regular Second Appeal – Substantial question of law -- If, High Court is satisfied after hearing the appellant at the time of admission that the appeal does not involve any substantial question of law, then such appeal is liable to be dismissed in limine without any notice to the respondents after recording a finding in the dismissal order that the appeal does not involve any substantial question of law within the meaning of sub-section (4) -- For passing such order in limine, the High Court is required to assign the reasons in support of its conclusion.

(Para 30)

E. Code of Civil Procedure, 1908 (V of 1908), Section 100 -- Regular Second Appeal – Substantial question of law -- It is of no significance, whether the respondent has appeared at the time of final hearing of the appeal or not -- The High Court, in any case, has to proceed in accordance with the procedure prescribed under Section 100 while disposing of the appeal, whether in limine or at the final hearing stage.

(Para 31)

F. Code of Civil Procedure, 1908 (V of 1908), Section 100 -- Regular Second Appeal – Substantial question of law -- Interpretation of statute -- It is a settled principle of rule of interpretation that whenever a statute requires a particular act to be done in a particular manner then such act has to be done in that manner only and in no other manner.

(Para 32)

G. Code of Civil Procedure, 1908 (V of 1908), Section 100 -- Regular Second Appeal – Substantial question of law -- While construing Section 100, the Court in the case of Santosh Hazari vs. Purushottam Tiwari (Deceased) by L.Rs., (2001) SCC 179 succinctly explained the scope, the jurisdiction and what constitutes a substantial questions of law under Section 100 of the Code – It is, therefore, the duty of the High Court to always keep in mind the law laid down in Santosh Hazari (supra) while formulating the question and deciding the second appeal.

(Para 35)

A. Code of Civil Procedure, 1908 (V of 1908), Section 27, Order 5 Rule 1, 5, 20(3), Order 9 Rule 13 – Summons – Specific day, date, year and time – Requirement of law -- Mentioning of the specific “day, date, year and time” in the summons is a statutory requirement prescribed in law (Code) and, therefore, it cannot be said to be an empty formality -- If the specific day, date, year and the time for defendant's appearance in the Court concerned is not mentioned in the summons though validly served on the defendant by any mode of service prescribed under Order V, it will not be possible for him/her to attend the Court for want of any fixed date given for his/her appearance.

(Para 23-26)

B. Code of Civil Procedure, 1908 (V of 1908), Section 27, Order 5 Rule 1, 5, 20(3), Summon to party – Object of -- Object behind sending the summons is essentially threefold- First, it is to apprise the defendant about the filing of a case by the plaintiff against him; Second, to serve the defendant with the copy of the plaint filed against him; and Third, to inform the defendant about actual day, date, year, time and the particular Court so that he is able to appear in the Court on the date fixed for his/her appearance in the said case and answer the suit either personally or through his lawyer.

(Para 27)

C. Code of Civil Procedure, 1908 (V of 1908), Section 27, Order 5 Rule 1, 5, 20(3), Appendix B Process (1and 1A), Order 9 Rule 13 – Exparte order/decree – Setting aside of -- Summons giving 15 days’ time without mentioning a specific day, date, year and time for appearance – It was mandatory for the Court to mention the specific working day, date, year and time – Held, service of summons on the defendants cannot be held as “summons duly served” – Such summons and the service effected pursuant thereto cannot be held to be in conformity with Section 27 read with the statutory format prescribed in Appendix B Process (I and IA) and Order 5 Rule 20(3) of the Code -- Ground contemplated under Order IX Rule 13 of the Code for setting aside the ex parte decree is made out -- Ex parte decree is set aside -- Civil suit is restored to its original file.

(Para 34-39)

Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 -- Ad-valorem Court fee – Return of plaint -- Suit for Mandatory injunction for return of stock of medicines of value Rs.7.6 lacs -- While filing the suit, the plaintiff has made a specific averment that after rendition of accounts whatever amount is found due from the defendant, the plaintiff shall pay court fee accordingly -- At this stage, the court is required to see as to whether the plaintiff is entitled for issuance of mandatory injunction and it is only thereafter, court fee is to be assessed and fixed in the case.

(Para 2-7)