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)

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)