A. Code of Civil Procedure, 1908 (V of 1908), Order 5 Rule 17, 20 -- Summons – Substituted service by publication – Procedure of -- Report of the bailiff indicates, he was unable to find the defendant at the address which was mentioned in the summons -- Report does not indicate that the summons were affixed on a conspicuous part of the house, at the address mentioned in the summons -- There was a breach of the provisions of Order V Rule 17 -- Order V Rule 20 requires the Court to be satisfied either that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service or that for any other reason, the summons cannot be served in the ordinary way -- Substituted service is an exception to the normal mode of service -- Court must apply its mind to the requirements of Order V Rule 20 and its order must indicate due consideration of the provisions contained in it -- Ex-parte judgment and order in the suit for specific performance was liable to be set aside.

(Para 15)

B. Code of Civil Procedure, 1908 (V of 1908), Order 9 Rule 13, Order 43 Rule 1, 96 – Ex-parte decree – Setting aside of – Remedy of -- Defendant against whom an ex-parte decree is passed has two options: First is to file an appeal -- Second is to file an application under Order IX Rule 13 -- Defendant can take recourse to both the proceedings simultaneously -- Right of appeal is not taken away by filing an application under Order IX Rule 13 -- But if the appeal is dismissed as a result of which the ex-parte decree merges with the order of the Appellate Court, a petition under Order IX Rule 13 would not be maintainable -- When an application under Order IX Rule 13 is dismissed, the remedy of the defendant is under Order XLIII Rule 1 -- However, once such an appeal is dismissed, the same contention cannot be raised in a first appeal under Section 96.

(Para 16)

A. Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17 – Amendment of plaint -- Plaintiff is permitted to amend the plaint -- For the reasons firstly, the suit is still at the initial stage, i.e., the trial has not yet begun; Second, the proposed amendment sought in the plaint does not change the nature of suit; Third, the applications could not be said to have been filed by the plaintiff belatedly because the suit had been dismissed by the Trial Court as not maintainable in its initial stages and for all these years it was sub judice in appeal -- It is only after the Appellate court remanded the case to the Trial Court for its trial, the appellant (plaintiff) filed the applications in the suit and sought permission to amend the plaint and file certain documents in support thereof; Fourth, the Courts, in these circumstances, should have been liberal in allowing the proposed amendment.

(Para 18)

B. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 14 – Application for placing on record additional documents -- When the suit is still at its initial stage and the trial is yet to begin and when the documents filed are alleged to be that of the respondents themselves having obtained through RTI, there is no reason why the appellant(plaintiff) be not allowed to file them.

(Para 19)

A, Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 10(2) – Eviction petition -- Impleading as plaintiff – There are some well-settled principles of law on the question involved, which need to be taken into consideration. These principles are mentioned infra.

--     First, in an eviction suit filed by the plaintiff (Landlord) against the defendant (Tenant) under the State Rent Act, the landlord and tenant are the only necessary parties.

--     Second, the landlord (plaintiff) in such suit is required to plead and prove only two things to enable him to claim a decree for eviction against his tenant from the tenanted suit premises. First, there exists a relationship of the landlord and tenant between the plaintiff and the defendant and second, the ground(s) on which the plaintiff-landlord has sought defendant’s-tenant's eviction under the Rent Act exists. When these two things are proved, eviction suit succeeds.

--     Third, the question of title to the suit premises is not germane for the decision of the eviction suit. The reason being, if the landlord fails to prove his title to the suit premises but proves the existence of relationship of the landlord and tenant in relation to the suit premises and further proves existence of any ground on which the eviction is sought under the Tenancy Act, the eviction suit succeeds. Conversely, if the landlord proves his title to the suit premises but fails to prove the existence of relationship of the landlord and tenant in relation to the suit premises, the eviction suit fails.

--     Fourth, the plaintiff being a dominus litis cannot be compelled to make any third person a party to the suit, be that a plaintiff or the defendant, against his wish unless such person is able to prove that he is a necessary party to the suit and without his presence, the suit cannot proceed and nor can be decided effectively.

--     Fifth, a necessary party is one without whom, no order can be made effectively, a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding.

--     Sixth, if there are co-owners or co-landlords of the suit premises then any co-owner or co-landlord can file a suit for eviction against the tenant. In other words, it is not necessary that all the owners/landlords should join in filing the eviction suit against the tenant.

(Para 11-21)

B, Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 10(2) – Eviction petition -- Impleading as plaintiff – Co-sharer – Right of – Applicant/Co-sharer of the suit property is neither a necessary and nor a proper party in the eviction suit of the plaintiff.

(Para 22-25)

Code of Civil Procedure, 1908 (V of 1908), Order 9 Rule 13 – Ex-parte decree – Setting aside of – Notice to other defendants – Requirement of -- Suit was restored at the instance of defendant Nos. 3 and 4, the Trial Court committed error inasmuch as it did not issue fresh notice of the suit to defendant Nos. 1 and 2 -- In other words, defendant Nos. 1 and 2 were entitled for a fresh notice of the suit once restored despite their non-appearance in the first round of trial in the suit and in Order 9 Rule 13 proceedings.

(Para 18)

Code of Civil Procedure, 1908 (V of 1908), Order 9 Rule 13 – Ex-parte judgment/decree – Setting aside of -- Service of summons – Onus of proof -- Report of the process server allegedly bears thumb mark of petitioner-defendant No.1, but there is no signature of any witness identifying the said defendant-petitioner -- Since defendant-petitioner No.2 i.e. AW-1 had clearly stated that the defendants-petitioners were not served, onus would be in the negative form on him, and his statement on oath denying service would shift the onus on the respondent-plaintiff to disprove his statement -- In that situation, it was necessary for the process server to have been produced in Court for his cross-examination by the defendants-petitioners -- Same not having been done, service having been effected on the defendants-petitioners cannot be deemed to have taken place -- Exparte proceedings and exparte judgment and decree are liable to be set aside.

(Para 16, 17)

A. Limitation Act, 1963 (36 of 1963), Section 27 -- Adverse possession -- A non implementation of an order passed by a competent authority, cannot be interpreted to hold that the possession of a particular person has become adverse, who has continued in possession due to non implementation of the order.

(Para 11)

B. Code of Civil Procedure, 1908 (V of 1908), Section 9 -- Limitation Act, 1963 (36 of 1963), Section 27 -- Suit for Adverse possession -- Suit filed by the plaintiff for declaration that he has become owner of the suit property by way of adverse possession is not maintainable. Gurudwara Sahib’s case (2014) 1 SCC 669 relied.

(Para 15)

C. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 7, Section 100 -- Scope of Appeal -- Courts have been established to do substantive justice between the parties -- Appellate Courts have been given powers to re-hear the matter and decide the same in accordance with law -- In case of any doubt on a factual position, the Courts have the power to clear its doubt by calling the report from the competent authorities -- A final order was passed by the Consolidation authorities, validity whereof is not being challenged by any of the parties -- Such final order has, however, not been implemented -- Civil Court under Order 7 Rule 7 read with Section 151 CPC has a power to mould the relief in the peculiar facts of the case.

(Para 19)

D. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 7, Section 151 – Substantial justice -- Relief to defendant – Power of Civil Court -- Courts are duty bound to grant appropriate relief to do substantial justice between the parties -- Such relief cannot be restricted only to the plaintiffs -- Such relief can always be granted to any of the parties to the litigation -- Civil Court always retains the powers to grant general or other relief so long as it is in the nature of ancillary relief and not in consistent with the case set up by the parties and is based upon same cause of action.

(Para 19)

Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17 – Constitution of India, Article 227 – Amendment of written statement – Revisional jurisdiction -- In the exercise of its jurisdiction under Article 227, the High Court does not act as an appellate court or tribunal and it is not open to it to review or reassess the evidence upon which the inferior court or tribunal has passed an order -- Trial Court had in the considered exercise of its jurisdiction allowed the amendment of the written statement under Order 6 Rule 17 of the CPC -- There was no reason for the High Court to interfere under Article 227 -- Allowing the amendment would not amount to the withdrawal of an admission contained in the written statement since the amendment sought to elaborate upon an existing defence -- Amendment would cause no prejudice to the Plaintiff.

(Para 11)

A. Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17 – Amendment of Pleadings – Not permitting amendment subsequent to commencement of the trial is with the object that when evidence is led on pleadings in a case, no new case be allowed to set up by amendments -- Proviso, however, contains an exception by reserving right of the Court to grant amendment even after commencement of the trial, when it is shown that in spite of diligence, the said pleas could not be taken earlier.

(Para 6,7,13)

B. Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17 – Amendment of Pleadings – In a suit when trial commences? -- After issues are framed and case is fixed for hearing and the party having right to begin is to produce his evidence, the trial of suit commences -- Plaintiff did not produce the evidence and took adjournment and in the meantime filed an application under Order VI Rule 16 or 17 -- Thus technically trial commenced when the date was fixed for leading evidence by the plaintiff but actually the amendment application was filed before the evidence was led by the plaintiff -- No prejudice can be said to have caused to the defendant -- It cannot be held that amendment application filed by the plaintiff could not be considered due to bar of the Proviso.

(Para 9-15)

C. Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17 – Limitation Act, 1963 (36 of 1963), Article 110 -- Amendment of Pleadings – Limitation to amend -- Plaintiff’s claim is to enforce a right to share in the property, which was sold in the year 2000 and according to plaintiff, the limitation is twelve years as per Article 110 – Final determination as to whether the claim could be held to be barred by time could have been decided only after considering the evidence led by the parties -- Whether plaintiff had any share in the property, which was sold in the year 2000 and what was the nature of his share and whether he can claim recovery of his share within twelve years were all the questions on which final adjudication could have been made after considering the evidence and at the stage of considering the amendment in the facts of the present case, it was too early to come to a conclusion that limitation was only three years and not twelve years as claimed by the plaintiff.

(Para 17,18)

Code of Civil Procedure, 1908 (V of 1908), Order 32 Rule 1 to 14 – Suit against unsound mind person through guardian – Requirement of -- Plaintiffs failed to sue her sister of unsound mind through guardian or next friend -- It was only when the defendants filed an application for taking the plaint off the record that the same day the application was moved by the plaintiff to implead the major son with whom she was residing -- Trial Court allowed the application permitting the son to act as her guardian -- No doubt, the provisions are mandatory in nature and should have been followed in the first instance but the plaintiff when put on notice, took the necessary steps and the trial Court had allowed the son to act as her guardian -- There is no restriction on the son acting as a guardian for the mother -- Plaint could not have been rejected since the permission has been accorded -- No infirmity in the order.

(Para 11-17)

A. Specific Relief Act, 1963 (47 of 1963), Section 38 – Code of Civil Procedure, 1908 (V of 1908), Section 11 -- Constructive res judicata -- Notice to resume land and building, claiming it belongs to President/Government of India – Suit simpliciter for permanent injunction -- Subsequent suit for declaration of title -- Maintainability of -- Plaintiff ought to have filed the suit for a declaration that the claim set-up by the defendant for the suit property is illegal – It will not be permissible for the plaintiff or persons claiming through or under the plaintiff, to raise the issue of ownership of the suit property in any proceedings henceforth or for that matter in collateral proceeding -- It is not a case of ancillary issue examined by the civil court of limited jurisdiction called upon to consider the relief of permanent injunction simpliciter -- Finding of fact recorded against the plaintiff will bind the plaintiff and operate as constructive res judicata in a subsequent suit for declaration of title or otherwise.

(Para 4,5,7,9,28-30)

B. Specific Relief Act, 1963 (47 of 1963), Section 38 – Title dispute -- Suit for permanent injunction -- Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the Court will not investigate or examine or render a finding on a question of title in a suit for injunction.

(Para 31)

C. Constitution of India, Article 136 – Code of Civil Procedure, 1908 (V of 1908), Order 41 Rule 22 – Suit for permanent injunction – Special Leave petition – Cross-objections – Power of -- Plenary jurisdiction of this Court under Article 136 of the Constitution is not limited to the dispensation provided in Order XLI Rule 22 of CPC -- However, permitting the respondents to assail the findings of the Courts below on the issue of ownership of property would be to overlook the cardinal principle that the Court would not ordinarily make an order, direction or decree placing the party appealing to it in a position more disadvantageous than in what it would have been had it not appealed.

(Para 32)

A. Protection of Women from Domestic Violence Act, 2005 (43 of 2005), Section 12 -- Domestic relationship – Denial of marriage -- Both resided together in a relationship akin to marriage and, therefore, they were in a “domestic relationship” thereby entitling the petitioner herein to file a petition under Section 12 of the Act of 2005.

(Para 10)

B. Protection of Women from Domestic Violence Act, 2005 (43 of 2005), Section 2(s), 12 -- Domestic relationship -- Estranged wife – Impleading as party – Right of -- Purpose of enacting the Act of 2005 was to ensure some sort of protection to a woman who was in a “domestic relationship” in a “shared household” – Applicant was neither in a “domestic relationship” with the petitioner nor in a “shared household” as defined under Section 2(s) of the Act of 2005 – Applicant who is seeking impleadment by way of proceedings is trying to gain possession of the property in question which would certainly not be permissible in view of the fact that she has already instituted a suit against the petitioner -- There is no 'lis' between the petitioner and applicant and she is in fact a stranger to the entire proceedings arising out of a “domestic relationship” and, therefore, cannot be held to be a necessary party to the said proceedings.

 (Para 11-13)

C. Protection of Women from Domestic Violence Act, 2005 (43 of 2005), Section 2(s), 12 -- Domestic relationship -- Shared household -- Question of ownership -- Question of ownership is not to be decided in these proceedings – Court has to see is whether there is an “aggrieved party” who in “domestic relationship” / “shared household” with the party has been subjected to any sexual abuse, physical abuse, verbal abuse, emotional abuse, economic abuse etc. – Once an “aggrieved party” is able to establish a “domestic relationship”, the petition would be sustainable against the person who is the perpetrator of the offence claimed of, and seek relief as permitted under the Act of 2005.

(Para 13)

D. Protection of Women from Domestic Violence Act, 2005 (43 of 2005), Section 12 – Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 10 -- Impleading as party – Estranged wife – Right of -- It is the prerogative of the plaintiff-complainant to choose against whom he wants to litigate or seek relief -- Plaintiff is a dominus litis to his suit and consequently a party, not impleaded, has no right to be impleaded against the wishes of the plaintiff -- The general rule of Order 1 Rule 10 CPC is subject to Order 1 Rule 10(2) CPC which allows a Court to either add or strike out a party in a suit -- Such an addition or deletion is subject to the decision taken by the Court to effectively and completely adjudicate and settle all the questions involved in a suit.

(Para 14)

A. Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 10, Order 22 Rule 4, Order 7 Rule 6, Section 11, 151 -- Limitation Act, 1963 (36 of 1963), Section 21 -- Death of defendant prior to suit – Legal representatives of -- If one of the defendants has expired prior to the filing of the suit, the legal representatives of such deceased defendant cannot be brought on record in the suit under Order 22 Rule 4 of the Code – Dismissal of application under Order 22 Rule 4 as not maintainable will not prohibit the plaintiff from filing another application, which is maintainable in law -- Only course open in law was to file an application for impleadment to bring on record the legal representatives of deceased-defendant under Order 1 Rule 10 of the Code -- Proviso to Section 21(1) of the Limitation Act 1963 empowers the Court to direct that the suit shall be deemed to have been instituted on an earlier date, where the omission to include a new plaintiff or defendant was due to a mistake made in good faith -- Trial Court could have treated the said application filed under Order 22 Rule 4 of the Code as one filed under Order 1 Rule 10 of the CPC, in order to do justice between the parties -- Legal heirs of the deceased person can be added in the array of parties under Order 1 Rule 10 of the Code read with Section 151 of the Code subject to the plea of limitation as contemplated under Order 7 Rule 6 of the Code and Section 21 of the Limitation Act, to be decided during the course of trial.

 (Para 6-10, 14, 15)

B. Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 10 -- Impleading as party – Order 1 Rule 10 of the Code enables the Court to add any person as a party at any stage of the proceedings -- If the Court is satisfied that the suit has been instituted through a bona fide mistake, and also that it is necessary for the determination of the real matter in controversy to substitute a party in the suit, it may direct it to be done -- When the Court finds that in the absence of the persons sought to be impleaded as a party to the suit, the controversy raised in the suit cannot be effectively and completely settled, the Court would do justice by impleading such persons -- Order 1 Rule 10(2) of the Code gives wide discretion to the Court to deal with such a situation which may result in prejudicing the interests of the affected party if not impleaded in the suit, and where the impleadment of the said party is necessary and vital for the decision of the suit -- Court will act according to reason and fair play and not according to whims and caprice -- Expression “to settle all questions involved” used in Order 1 Rule 10 (2) of the Code is susceptive to a liberal and wide interpretation, so as to adjudicate all the questions pertaining to the subject matter thereof.

(Para 9, 14)

C. Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 10, Order 22 Rule 4 – Impleadment of party -- Merely because of the non-mentioning of the correct provision as Order 1 Rule 10 of the Code at the initial stage by the advocate for the plaintiff, the parties should not be made to suffer -- Courts are meant to do justice and not to decide the applications based on technicalities.

(Para 14)

D. Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 10 – Impleading as party – Necessary party -- In a suit seeking cancellation of sale deed a person who has purchased the property and whose rights are likely to be affected pursuant to the judgment in the suit is a necessary party, and he has to be added -- If such purchaser has expired, his legal representatives are necessary parties.

(Para 14)

Hindu Marriage Act, 1955 (25 of 1955), Section 13 – Code of Civil Procedure, 1908 (V of 1908), Section 24 – Transfer of divorce petition -- Children born out of the wedlock are being taken care of by the respondent-husband and family residing at Ludhiana -- In case the petition is transferred from the Court at Ludhiana to a Court of competent jurisdiction at Yamuna Nagar, the children would be the sufferer in absence of their father -- It is appropriate if the petition is allowed to proceed at the place where the same is filed.

(Para 5)

A. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 11 (For Punjab) – Shamilat deh -- Private respondents came into possession of the land in dispute in the year 1981-82 as lessees -- After the expiry of the lease period, became unauthorized occupants – In the beginning, they claimed proprietary rights, on failing to get the desired relief, they took a diametrically opposite stand that the land in dispute was evacuee property and that they were entitled to allotment of the same – Held, such an approach can only be termed mala fide and nothing else -- Private respondents are liable to pay a sum of Rs.5,000/- (per acre) per year for illegal use and occupation of the land in dispute -- However, the private respondents would be at liberty to pursue their suit filed u/s 11 of the 1961 Act, but only after handing over the physical possession.

(Para 15, 19)

B. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 11 (For Punjab) -- Waqf Act, 1995 (43 of 1995), Section 7 – Shamilat deh – Right of lessee – Jurisdiction of -- Land in dispute was mutated in favour of the Gram Panchayat in the year 1957 as it was ‘Shamlat Deh’ in accordance with the Pepsu Village Common lands (Regulation) Act, 1954 – Ever since, the said land has been auctioned regularly by the Gram Panchayat -- Thus, as per the revenue record, the land in dispute was owned by the Gram Panchayat being ‘Shamlat Deh’ -- Except the Court of Collector under the 1961 Act, no other authority has the jurisdiction to determine the question of title whenever there is a dispute regarding title between a Gram Panchayat and a private person.

(Para 15)

C. Code of Civil Procedure, 1908 (V of 1908), Section 11 -- Order without jurisdiction – Up-held by Higher courts -- Doctrine of merger – Res-judicata -- An order obtained by practicing fraud and deceit can be explained in collateral proceedings -- Even though, such an order has been upheld by a higher Court, the same does not merge in the judgment/order of the higher Court because the doctrine of merger is of limited application -- Illegalities cannot be perpetuated --  Doctrine of res judicata also cannot apply in such a situation as the original order is itself without jurisdiction -- Said order is not only without jurisdiction but it has also been obtained with mala fide intention and in collusion with the then Tehsildar-cum-Managing Officer, the petitioners were not party to those proceedings, hence it cannot be binding on them.

(Para 17,18)

A. Code of Civil Procedure, 1908 (V of 1908), Order 9 Rule 13 – Ex-parte decree – Setting aside of -- Court can set aside an ex parte decree only on two grounds – firstly, that the summons was not duly served; and secondly, that the defendant was prevented by sufficient cause from appearing when the suit was called out -- Once an ex parte decree is set aside, it basically means that the parties are relegated to the same position on which they stood before the passing of the exparte decree.

(Para 14)

B. Code of Civil Procedure, 1908 (V of 1908), Order 9 Rule 13, Section 144 – Ex-parte decree – Execution of -- Setting aside of -- Mere fact that the ex parte decree has been executed does not disentitle the defendant from applying under Order IX Rule 13, CPC to get the same set aside -- Once the decree is set aside, restitution or restoration can be ordered.

(Para 17)

C. Punjab Pre-emption Act, 1913 (1 of 1913), Section 4, 15 (For Haryana) – Pre-emption right – Decree of first instance – Interpretation of -- Appellate court while setting aside the ex parte decree, has come to the conclusion that the defendant was not served and, therefore, the court had wrongly proceeded against her ex parte -- Effect of this would be that the ex parte decree, on its being set aside, would cease to exist and become nonest -- Decree passed by the trial court on merits should be treated as the decree of the first court -- Where a case has been decided on merits and the decree is set aside by the appellate court on any other ground and the matter remanded to the trial court for decision afresh, Court leave that question open.

(Para 19)

D. Code of Civil Procedure, 1908 (V of 1908), Section 144 -- Decree of court – Execution of – Restitution of possession – Limitation -- Limitation for restitution under the Limitation Act is 12 years -- Ex parte decree was set aside on 28^th August, 1998 and thereafter, the appellant has been litigating at various levels -- If the appellant had obtained stay order(s) during this period, obviously the period for which the stay was granted, would have to be excluded while calculating the period of limitation -- It is for the executing court to decide whether the restitution petition, if any filed, is within the limitation or not -- It is only the court which passed the original decree, which can order restitution – Restitution cannot be granted by Supreme Court.

(Para 22)

A. Legal Services Authorities Act, 1987 (39 of 1987), Section 20, 21 – Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11(d) – Constitution of India, Article 226, 227 -- Suit compromised – Award by Lok Adalat – Challenge to – Rejection of plaint -- Barred by law – Meaning of -- Suit challenging award on the ground of fraud/ misrepresentation – Application for rejection of plaint on the ground, remedy of the plaintiff was to file petition under Article 226 or/and 227 of the Constitution of India as held in State of Punjab & Anr. Vs. Jalour Singh & Ors., (2008) 2 SCC 660 – Submissions of respondent/plaintiff that the expression "law" occurring in clause(d) of Rule 11 Order 7 does not include the "judicial decisions" rejected -- Application filed by the defendants under Order 7 Rule 11 (d) of the Code is allowed resulting in rejection of the plaint.

(Para 9,11,13, 20-39)

B. Legal Services Authorities Act, 1987 (39 of 1987), Section 20, 21 – Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11(d) – Constitution of India, Article 226, 227 – Award of Lok Adalat – Challenge to – Jurisdiction of -- Law laid down by Supreme Court is binding on all the Courts in the country by virtue of mandate of Article 141 of the Constitution -- Challenge to the award of Lok Adalat can be done only by filing a writ petition under Article 226 and/or Article 227 of the Constitution of India in the High Court and that too on very limited grounds. State of Punjab & Anr. Vs. Jalour Singh & Ors., (2008) 2 SCC 660 relied.

(Para 26,27)

A. Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 8 – Jurisdiction of Court -- Issue of jurisdiction which goes to the root of the case, if found involved has to be tried at any stage of the proceedings once brought to the notice of the Court.

(Para 18)

B. Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 8 –Representative suit by Society/Jurist person -- Jurisdiction of Court -- Trial Court should have examined the question as to whether the expression "person" occurring in Rule 8 also includes “juristic person" – Secondly, if the plaintiff is held entitled to file such suit, whether the facts pleaded and the reliefs claimed in the plaint can be said to be in the nature of representative character so as to satisfy the ingredients of Order 1 Rule 8 of the Code which are meant essentially for the benefit of public at large for grant of any relief  -- Lastly, if the facts pleaded and the reliefs claimed in the plaint do not satisfy the requirements of Order 1 Rule 8 of the Code for grant of relief to the public at large then whether such suit is capable of being tried as a regular suit on behalf of the plaintiff for granting reliefs in their personal capacity because the suit relates to ownership of land, namely, who is the owner of the suit land – Case remanded to the Trial Court to answer these issues and then decide the suit.

 (Para 21-23)

Code of Civil Procedure, 1908 (V of 1908), Order 2 Rule 2 – Mesne profit – Relinquishment of – Separate suit – Maintainability of -- Under Order II, Rule 2 read with Rule 4, the plaintiff can also claim mesne profits or arrears of rent in a suit filed for ejectment of the tenant – Plaintiff can further file a fresh suit for claiming mesne profits or arrears of rent for the period subsequent to the decree passed in the earlier suit having become final -- Where the plaintiff has claimed mesne profits or arrears of rent in a suit filed for ejectment of the tenant and has relinquished his rights vis-à-vis mesne profits or arrears of rent in the suit proceedings itself, the provisions of Order II, Rule 2 will come into play and in comparison to the second suit for mesne profits or arrears of rent till the decree.

(Para 13-17)

Code of Civil Procedure, 1908 (V of 1908), Order 8 Rule 1 -- Written statement – Non-filing of – Trial Court instead of closing right to file written statement should have granted some time to the defendants subject to payment of reasonable amount of cost to the plaintiff to compensate the inconvenience caused to the plaintiff -- High Court was, therefore, right in imposing a cost of Rs.11,250/- on the defendants to be paid to the plaintiff as a pre-condition to file the written statement within the extended time granted by the High Court -- Held, High Court made no mistake in remanding the suit to the Trial Court for fresh trial on merits.

(Para 9-15)

A. Code of Civil Procedure, 1908 (V of 1908), Section 9 – Jurisdiction of civil Court – Exclusion of -- Interpretation of -- Civil court has jurisdiction to try all disputes relating to property, office or even other matters which affect civil rights of citizen -- Jurisdiction of the civil court can only be barred by making another provision of statutory law which; expressly or by necessary implication; takes away the jurisdiction of the civil courts -- While considering the question of exclusion of the jurisdiction of civil court it has to be kept in mind that presumption would be in favour of the existence of the jurisdiction of civil court; so far as the civil matters are concerned -- While interpreting a provision excluding the jurisdiction of the civil court; such provision has to be given restrictive interpretation so as to retain the jurisdiction of the civil court in determination of civil rights of the citizens -- Therefore, the Courts are not supposed to interpolate words and phrases into that provision which purportedly excludes the jurisdiction of the civil court.

(Para 24,25)

B. Code of Civil Procedure, 1908 (V of 1908), Section 9 – Electricity Act, 2003 (36 of 2003), Section 126, 127, 145, 153, 154 – Theft of electricity – Assessment of penalty -- Jurisdiction of civil Court – Section 145 of the Act does not prescribe that the jurisdiction of civil court shall be excluded regarding those matters; regarding which the Special Court constituted under Sections 153 and 154 of the Act are empowered to decide -- Hence mere fact that the Special Courts have been constituted under Sections 153 and 154 of the Act, per se, is not the ground for exclusion of the jurisdiction of the civil court in itself.

(Para 26)

C. Electricity Act, 2003 (No.36 of 2003), Section – 126, 127, 145, 153, 154 – Theft of electricity – Mens-rea -- Power of Assessing officer -- Special Court – Jurisdiction of civil court -- Element of mens rea is an essential condition for allegation of theft as defined u/s 135 of the Act -- If mens rea is not there then the matter would fall u/s 126 of the Act then the officer would proceed in the matter of assessing the amount to be charged from the consumer and then provision of Sections 126 & 127 of the Act would be followed; resulting into exclusion of jurisdiction of civil court u/s 145 of the Act -- Held, once the theft is alleged, then the assessing officer/authorised officer cannot pass any order against the consumer demanding any specific amount, since in that situation the liability against consumer is to be determined by Special Court -- If any such order of assessment/penalty is passed and purported to be enforced against a consumer then the consumer has every right to avail the remedy of civil suit by challenging such order/demand raised by the department/licensee/supplier -- In such a situation, the jurisdiction of the civil court shall not be barred by virtue of Section 145 of the Act.

(Para 27-29, 36, 37)

D. Code of Civil Procedure, 1908 (V of 1908), Section 9 – Electricity Act, 2003 (No.36 of 2003), Section 126, 127, 145 – Theft of electricity -- Remedy of appeal – Jurisdiction of civil court -- in view of the provision of Section 9 of CPC which gives a plannery power to the civil courts to try any suit and also provisions of Order I Rule I of CPC gives a right to any person to bring a civil suit if he perceives, as aggrieved of any action of the officer or any other person, as violating his civil rights -- Simply because a consumer can be suggested to avail remedy of appeal u/s 127 of the Act, against an otherwise unauthorised, order, is no ground to hold that he cannot avail the remedy of civil suit by invoking civil jurisdiction of a civil court.

(Para 36)

E. Code of Civil Procedure, 1908 (V of 1908), Section 9 – Electricity Act, 2003 (No.36 of 2003), Section 126, 127, 145 – Theft of electricity -- Remedy of appeal – Jurisdiction of civil court -- If an unauthorised order of assessment/penalty is passed by the department/licensee/supplier, despite having alleged and initiated proceedings of theft; then the consumer cannot be said to have alternative remedies under Section 127 of the Act -- Therefore, he cannot be denied the right of filing the civil suit against such an illegal assessment/demand/penalty notice on the ground that he can avail an alternative remedy of appeal under Section 127 of the Act.

(Para 37)

F. Code of Civil Procedure, 1908 (V of 1908), Section 9 – Electricity Act, 2003 (No.36 of 2003), Section 126, 127, 145, 153, 154 – Theft of electricity – Assessment of -- Jurisdiction of civil Court – Since the Special Court cannot be initiated at the instance of the consumer and the civil liability as determined by the Special Courts has been restricted to be determined only 'against' the consumer and only for the loss/damages caused to the department and even without following the procedure of a civil court, therefore, mere existence of the Special Court does not, by implication, exclude the jurisdiction of the civil court, in a case where the assessing officer/licensee/supplier has passed an illegal or unauthorised order of demand despite having referred the matter to the police or the Special Court for determination of the same.

 (Para 31, 36, 37)

A. Code of Civil Procedure, 1908 (V of 1908), Order 30 Rule 10 -- Proprietary concern as plaintiff -- If a proprietary concern, sued against u/O 30 R 10; has got a right to file a cross suit as a defendant under the above said provision -- In such a situation, it shall be totally irrational to hold that the proprietary concern cannot file a suit as plaintiff -- There is nothing to prevent such an entity to come as plaintiff in the first instance -- Suit by the proprietary concern is a suit by its sole proprietor and the suit by the sole proprietor is a suit by his proprietary concern -- Both are the same thing for the purpose of the proceedings before the Court of Law -- A suit by a proprietary concern of sole proprietor or by the assumed business name or style of a person is very much maintainable.

(Para 20, 21)

B. Code of Civil Procedure, 1908 (V of 1908), Order 7 rule 1 -- Proprietary concern as plaintiff -- While filing a suit in the name of proprietary concern or assumed business name the complete details of the owner of the proprietary concern or assumed business name shall be required to the disclosed in the plaint as required Under Order 7 Rule 1 of the Code of Civil Procedure to establish the identity of the owner of the proprietary concern or the assumed business name.

(Para 21)

C. Code of Civil Procedure, 1908 (V of 1908), Order 30 Rule 10 -- Proprietary concern as plaintiff -- In case of proprietary firm, if the relationship between the firm and the proprietor is clear and not in dispute then it does not matter whether the suit is brought in the name of the firm or the proprietor, which is one and the same thing.

(Para 22)

Code of Civil Procedure, 1908 (V of 1908), Order 9 Rule 13 – Amendment of plaint – Ex-parte decree passed, lateron set aside by High Court – Thereafter suit was dismissed in default and restored – After that application for amendment seeking to convert suit for declaration and mandatory injunction into a suit for possession – Proposed amendment was neither necessary for effective adjudication of the suit filed by the plaintiffs nor it was found to be justified on facts -- Application for amendment rightly dismissed.

 (Para 3-10)

Code of Civil Procedure, 1908 (V of 1908), Section 100, Order 41 Rule 31 – Regular Second Appeal – Reasoned order – Requirement of -- Court, at the time of hearing the appeal on the question of admission, comes to a conclusion that the appeal does not involve any such question within the meaning of Section 100 of the Code, then it has to pass a reasoned order keeping in view the requirements of Order 41 Rule 31 -- Indeed, this being the mandatory requirements of law, its non-compliance by the Appellate Court render their judgment bad in law – Held, since the judgment impugned does not satisfy the requirements of either Section 100 or/and Order 41 Rule 31 of the Code, it is legally unsustainable.

(Para 16,17)

A. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 – Rejection of plaint – Cause of action – Plaint meaning – Provision refers to the “plaint” which necessarily means the plaint as a whole -- It is only where the plaint as a whole does not disclose a cause of action that Order VII Rule 11 springs into being and interdicts a suit from proceeding.

(Para 5)

B. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 – Rejection of plaint -- It cannot elevate itself into a rule of law, that once a part of a plaint cannot proceed, the other part also cannot proceed, and the plaint as a whole must be rejected under Order VII Rule 11 -- If the plaint survives against certain defendants and/or properties, Order VII Rule 11 will have no application at all, and the suit as a whole must then proceed to trial.

(Para 10)

C. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11, Order 6 Rule 16 -- Rejection of plaint -- If only a portion of the plaint, as opposed to the plaint as a whole is to be struck out, Order VI Rule 16 of the CPC would apply.

(Para 11)

D. Code of Civil Procedure, 1908 (V of 1908), Order 14, Rule 2 -- Rejection of plaint -- Court is vested with a discretion to deal with an issue of law, which it may try as a preliminary issue if it relates to the jurisdiction of the Court, or is a bar to the suit created -- Obviously, this provision would apply after issues are struck i.e. after a written statement is filed.

(Para 13)

A. Code of Civil Procedure, 1908 (V of 1908), Order 39 Rule 1 and 2 – Temporary injunction – Discretion of – Interference in -- Once the court of first instance exercises its discretion to grant or refuse temporary injunction and the said exercise of discretion is based upon objective consideration of the material placed on record before the court and is supported by cogent reasons, the appellate court will be loath to interfere simply because on a de novo consideration of the matter, it is possible for the appellate court to form a different opinion on the issues of prima facie case, balance of convenience, irreparable loss/injury.

(Para 19)

B. Code of Civil Procedure, 1908 (V of 1908), Order 39 Rule 1 and 2 – Temporary injunction – Discretion of – Interference in -- Where the lower court(s) acts arbitrarily, perversely, capriciously or in dis-regard of sound legal principles or without considering all the relevant records, the appellate or revisional court is legally justified in setting aside the order(s) and interfere with the discretion exercised by the trial court.

(Para 20)

C. Code of Civil Procedure, 1908 (V of 1908), Order 39 Rule 1 and 2 – Temporary injunction – Interim relief amounting to final relief -- Main relief sought by the respondents/plaintiffs is for declaration and injunction to the effect that order vide which plaintiff No.2 was removed arbitrarily or illegally without following procedure from the Trust is illegal, null and void -- Courts below have accepted the said prayer and has stayed the operation of the order, which amounts to grant of final relief at the time while granting the interim relief, which is not permissible under law and is violative of the principles governing the grant of injunction.

(Para 23-27)

A. Code of Civil Procedure, 1908 (V of 1908), Section 47, Order 21 – Objections -- Objection was neither raised before the Executing Court nor the first appellate Court and nor the High Court -- Then it cannot be allowed to be raised for the first time in appeal in Supreme Court.

 (Para 15)

B. Code of Civil Procedure, 1908 (V of 1908), Section 47, Order 21 –Punjab Custom (Power to Contest) Act, 1920 (2 of 1920) – Customary rights – Amendment in 1973 -- Suit and the appeal, which arose out of the suit, stood already decided much prior to the date of amendment coming into force – So the lis had already attained the finality much before the amendment -- Amendment being retroactive, it was applicable only to those proceedings, which were pending on the date when the amendment came into force, i.e. 1973, or where the proceedings were initiated after the date of amendment.

(Para 16-19)

C. Code of Civil Procedure, 1908 (V of 1908), Section 47, Order 21 –Punjab Custom (Power to Contest) Act, 1920 (2 of 1920) – Customary rights – Amendment in 1973 -- In order to take benefit of the amendment, it was necessary for the appellants (judgment-debtors) to have filed the second appeal against the decree of the first appellate Court and if the second appeal had been decided after 1973, the impact of the amendment on the rights of the parties could have been considered in the context of the amendment -- It was, however not done, the decree in question had already attained the finality in 1965 -- If the rights of the parties had already been crystallized then, subsequent change in law would not take away such rights which had attained finality due to lis coming to an end inter se the parties prior to such change.

(Para 20,21)

D. Code of Civil Procedure, 1908 (V of 1908), Section 47, Order 21 – Executing Court – Power of -- Appellants did not attack the concurrent findings of the two courts in this appeal -- Objections raised were all on the facts which could not be enquired into execution proceedings -- Executing Court cannot go behind the decree -- Any enquiry into the objections would have taken the executing Court behind the decree which was not permissible in law.

(Para 25)

Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17 - Amendment in written statement -- Proposed amendment is on facts, seek to elaborate the facts originally pleaded in the written statement -- If allowed, it would neither result in changing the defense already taken nor will result in withdrawing any kind of admission, if made in the written statement -- No prejudice to the plaintiffs, if such amendment is allowed -- Proposed amendment of the defendants allowed.

(Para 8)

A. Code of Civil Procedure 1908 (V of 1908), Order 7 Rule 11 – Limitation -- Rejection of plaint -- Question of limitation is certainly a mixed question of law and facts as the plaintiffs are emphatically claiming that the suit was well within time --  Undoubtedly, the suit has not been found barred by any provisions of law -- So far as the issue of limitation is concerned, the learned trial court shall be deciding the same after appreciating the evidence to be led by both the parties – Trial court dismissing the application – Order upheld.

 (Para 1,4,11)

B. Code of Civil Procedure 1908 (V of 1908), Order 7 Rule 11 – Ad valorem fees -- Rejection of plaint -- Neither any of the parties nor the learned trial court was in a position to pin-point any specified amount as on date for which the plaintiffs would be entitled to recover from the defendants -- Once the amount is yet to be determined, plaintiffs were well justified in abovesaid part to say that the actual amount which will be found due from the defendants will be settled at the time of passing of final decree – Trial court dismissing the application – No error of law, while passing the impugned orders and the same deserve to be upheld.

(Para 1,4,12, 22)

C. Constitution of India, Article 227 – Code of Civil Procedure 1908 (V of 1908), Order 7 Rule 11 – Ad valorem fees – Revision by defendant – Maintainability of -- No revision petition before High Court would be maintainable at the hands of the defendants, unless the question of court fee involves the jurisdiction of court -- It is so said, because the issue of court fee, including its alleged inadequacy, would be primarily between the plaintiffs and the State – Defendants cannot be permitted to stall the progress of the suit before the learned trial court, because it is not going to suffer any kind of prejudice due to alleged inadequacy of court fee paid by the plaintiffs.

(Para 23,24)

Code of Civil Procedure, 1908 (V of 1908), Order 21 Rule 32, Section 151 – Execution of decree – Police protection of – Decree for permanent injunction having become final, the decree holder approached the Execution Court by way of an application for execution -- Order XXI Rule 32 provides for execution of a decree for injunction -- But merely because an application for police protection was filed only u/s 151 CPC invoking the inherent jurisdiction, it cannot be a reason for the High Court to reject it and hold that the application should have been filed under Order XXI, Rule 32 CPC.

 (Para 4)

A. Court Fees Act, 1870 (7 of 1870), Section 7 -- Sale deed – Suit for declaration – Ad-valorem court fees -- Plaintiff is non-executant of the sale deed -- A non-executant is not required to file a suit seeking cancellation of the document but he can maintain a suit for declaration that such sale is not binding on his rights.

(Para 4)

B. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 – Constitution of India, Article 227 -- Court Fees Act, 1870 (7 of 1870), Section 7 -- Sale deed – Suit for declaration – Ad-valorem court fees -- Payment of court fee is a question which is primarily between the plaintiff and the State -- Revision petition at the hands of defendants is not maintainable against the order passed by the trial court dismissing application under Order 7 Rule 11 CPC.

(Para 5)

Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 6A-6G – Counter Claim against co-defendant -- Creating an independent right in favour of a defendant to file a counter claim against a co-defendant is altogether different matter than the power of the Court to grant an incidental relief against a co-defendant also while considering the counter claim of the defendant against the plaintiff – An independent counter-claim by a defendant against a co-defendant is not maintainable, in the independent capacity of a co-defendant.

(Para 14-18)

A. Negotiable Instruments Act, 1881 (26 of 1881), Section 138 – Code of Civil Procedure, 1908 (V of 1908), Section 9 -- Cheque bounce case -- Acquittal in criminal case – Civil liability to pay -- Claim of the plaintiff was not based on dishonour of the cheques -- It was based on the basis of transaction of supply of poultry feed to the company and the bills raised therefore -- Merely, because defendant has been acquitted in criminal proceeding that does not mean that the claim of the plaintiff in civil proceedings ipso facto stand disproved.

(Para 6)

B. Indian Evidence Act, 1872 (1 of 1872), Section 34 – Books of accounts -- Bills and entries of accounts maintained in ordinary course of business can be proved by deposition on oath of the plaintiff -- Sales man and the other witnesses have also been produced to support the transaction and to prove the bills and accounts entries -- Company has been making payment from time to time and have never denied the supply of the material or the existence of the bills -- This tantamounts to acknowledgment.

(Para 7)

C. Code of Civil Procedure, 1908 (V of 1908), Section 100, Order 41 –Liability of Company -- Appeal – Right of -- Company or the Managing Director of the company has never come forward to dispute their liability or to dispute the transactions of supply of the material by the plaintiff to the company -- They have not even challenged the liability fastened upon them by the trial court – Appellant, who do not even claim to be authorised representative of the company cannot question the liability against the company by filing the present appeal -- She can at the best question her liability in her personal capacity -- Appellant was a Director of the company and also a share holder, therefore, whatever liability the company law imposes upon her she cannot escape that by filing a appeal even her personal capacity -- She would always remain liable qua the liability of the company but subject to the extent of her liability according to the prevalent company law.

 (Para 8)

A. Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 7 – Amendment in plaint – No doubt, the amendment would not change the nature of the suit, however, all amendments which do not change the suit cannot be allowed particularly after the commencement of the trial.

 (Para 11)

B. Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17 – Amendment in pleadings -- Due diligence -- Once the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before commencement of the trial, amendment cannot be allowed.

(Para 9-12)

A. Code of Civil Procedure, 1908 (V of 1908), Order 21 -- Constitution of India, Article 227 – Supervisory jurisdiction – Power of – Orders under challenge in writ were amenable to appeal – Held, High Court, should have dismissed the writ petition in limine on the ground that since all the 4 orders impugned in the writ petition were amenable to their challenge before the appellate authority, the writ petition was not the proper remedy without first filing the appeal and get the same decided by the appellate Court on its merit in accordance with law.

(Para 25-29)

B. Code of Civil Procedure, 1908 (V of 1908), Order 21 -- Constitution of India, Article 227 – Executing court seized of the matter – Supervisory jurisdiction of High court – Power of -- In any case, the executing Court having seized of the applications filed by the respondent, there was no justification on the part of the High Court to have entertained the writ petition and decided them like an original court -- All that the High Court, in such circumstances, could do was to request the executing Court to dispose of the pending applications (IAs) filed by the respondent on their respective merits leaving the parties to challenge the orders once passed on such applications by filing appeal, before the appellate authorities.

(Para 30)

C. Code of Civil Procedure, 1908 (V of 1908), Order 21, 35 -- Constitution of India, Article 227 – Executing of decree – Supervisory jurisdiction of High court – Power of -- Once the possession had been delivered and decree was recorded as satisfied in accordance with law, the litigation had come to an end leaving no lis pending -- In the absence of any prima facie case having been made out on any jurisdictional issue affecting the very jurisdiction of the Court in passing the eviction decree, the High Court should have declined to examine the legality of orders impugned therein.

(Para 33)

D. Constitution of India, Article 227 -- Code of Civil Procedure, 1908 (V of (1908), Order 21 – Power of Executing court – Supervisory jurisdiction of High court – Power of -- High Court curtailed the judicial powers of the Trial Court in passing appropriate order on such applications -- High Court had no jurisdiction to issue directions to the Trial Court to pass a particular order by either allowing the application or rejecting it -- All that the High Court could do in such case was to remand the case and leave the Trial Court to pass appropriate orders on the application(s) in exercise of its judicial discretion.

(Para 44)

E. Rent Laws – Bonafide need -- Object of the Rent Laws all over the State is to ensure speedy disposal of eviction cases between the landlord and tenant and especially those cases where the landlord seek eviction for his bona fide need -- Eviction matters should be given priority in their disposal at all stages of litigation and especially where the eviction is claimed on the ground of bona fide need of the landlord – Supreme Court hope and trust that due attention would be paid by all courts to ensure speedy disposal of eviction cases.

(Para 47,48)

Court Fees Act, 1870 (7 of 1870), Section 7 -- Specific Relief Act, 1963 (47 of 1963), Section 34, 37 -- Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 -- Suit for declaration and permanent injunction -- Advalorem Court fees – Non-payment of -- Rejection of plaint -- Plaintiffs were not party to the consent decree, which is under challenge in the suit – Plaintiffs were claiming themselves to be owners in possession of joint property, they were not seeking any consequential relief of possession – Application for rejection of plaint dismissed by Trial Court -- Ld. Court below was well within its jurisdiction to dismiss the application.

 (Para 4-11)

A. Code of Civil Procedure, 1908 (V of 1908), Section 47 -- Decree – Execution of -- Objection before Executing Court -- If the objections had been raised by the judgment debtor under Section 47 of the Code challenging the decree then it was necessary for the executing Court to deal with the objections and record its finding one way or other in accordance with law.

(Para 29)

B. Code of Civil Procedure, 1908 (V of 1908), Section 47 – Decree – Objections to -- Objection, if none had any merit whatsoever, they simply deserved rejection at the outset.

(Para 29)

C. Code of Civil Procedure, 1908 (V of 1908), Section 47 – Arbitration and Conciliation Act, 1996 (26 of 1996), Section 34 -- Arbitration award/Decree – Execution of -- Objection to -- All the objections ought to have been raised by the respondents before the Arbitrator or/and Additional District Judge under Section 34 of the Act but certainly none of them could be allowed to be raised in execution once the award became final and attained finality as decree of the Civil Court.

(Para 30)

D. Code of Civil Procedure, 1908 (V of 1908), Section 47 – Arbitration and Conciliation Act, 1996 (26 of 1996), Section 34 -- Arbitration award/Decree – Execution of -- Objection to -- Objections were on facts and pertained to the merits of the controversy, which stood decided by the Arbitrator resulting in passing of an award -- None of the objections were in relation to the jurisdiction of the Court affecting the root of the very passing of the decree -- If the executing Court had probed these objections then it would have travelled behind the decree, which was not permissible in law -- An inquiry into facts, which ought to have been done in a suit or in an appeal arising out of the suit or in proceedings under Section 34 of the Act, cannot be held in execution proceedings in relation to such award/decree.

(Para 31)

E. Code of Civil Procedure, 1908 (V of 1908), Section 47, Order 21 Rule 1,2 – Arbitration and Conciliation Act, 1996 (26 of 1996), Section 34 -- Arbitration award/Decree – Decreetal amount -- Payment of – Procedure of -- No amount was paid by the respondents to the appellant pursuant to the award/decree so as to enable the executing Court to record its full satisfaction in accordance with the provisions of Order 21 Rules 1 and 2 – Executing Court is directed to issue warrant for recovery of the entire awarded decretal amount.

 (Para 37-39)

A. Code of Civil Procedure, 1908 (V of 1908), Order 9 Rule 13, Order 21 – Exparte decree – Application for setting aside of – Execution of decree -- Status of -- It would not be appropriate to rush with the execution till the decision of an application under Order IX Rule 13 of the Code -- But the mere fact that an application under Order IX Rule 13 of the Code has been filed does not ipso facto mean that ex-parte judgment and decree has lost its sanctity, value and authenticity -- Decree is as good as the other decrees till the same is set aside -- Each case has to be decided on its peculiar facts and circumstances and no judgment can be made applicable as straight jacket formulae.

(Para 5)

B. Code of Civil Procedure, 1908 (V of 1908), Order 9 Rule 13, Order 21 – Exparte decree – Application for setting aside of – Execution of decree -- Status of -- Ex-parte judgment and decree had been passed in the year 2003 -- Since then, a period of 14 years has elapsed -- An application for setting aside the afore-said ex-parte judgment and decree was filed in the year 2015 – JDs are enjoying the fruits of the property subject matter of the decree for the last about 14 years illegally -- Thus, pendency of an application under Order IX Rule 13 of the Code is not a bar on the continuation of execution proceedings.

(Para 6)

A. Code of Civil Procedure, 1908 (V of 1908), Section 11 – Right as mortgagee – Redemption of – Res-judicata -- Judgment and decree in the previous lis having declared the plaintiffs to be continuing to be mortgagees in possession of the suit land, with the issue of extinguishment of the right to redemption of the mortgage not arising in the previous lis, the decree issued pursuant to such finding, of permanent injunction, cannot be held to operate as res judicata to oust the mortgagees from seeking redemption of the suit land by payment of the complete mortgage amount.

(Para 30)

B. Transfer of Property Act, 1882 (4 of 1882), Section 58 -- Punjab Security of Land Tenures Act, 1953 (10 of 1953), Section 2(6)(8), 9 -- Punjab Tenancy Act, 1887 (XVI of 1887), Section 4(5) – Mortgagee – Tenant’s right -- Question of the applicability of the Act of 1953, would come into question only if any document had actually been produced to even prima facie show that the appellant, in addition to being a mortgagee on the property, was, somehow or the other, also inducted as a tenant thereon, paying rent or liable to payment, in terms of Section 4 (5) of the Act of 1887, either to the original mortgagor, or to his successors-in-interest.

(Para 35)

C. Punjab Land Revenue Act, 1887 (XVII of 1887), Section 34, 44 – Land Administration Manual, Para 327, 359(a) – Khasra Girdawari – Correction in – Procedure of – Necessity of the Patwari intimating even the Gram Panchayat concerned, with regard to a change of cultivating tenancy made by him in the Khasra Girdawari has been stipulated, so that the Panchayat could inform the persons concerned in respect of such changes.

(Para 36-38)

D. Transfer of Property Act, 1882 (4 of 1882), Section 58(d), 60 -- Usufructuary Mortgage – Meaning of – Redemption of -- “usufructuary”, comes from Latin words, “usus” (use) and “fructus” meaning fruit, and thereby, the simple translation of the word would mean usage with the fruits thereof -- Hence, the mortgagees admittedly having enjoyed all fruits of the land, upon possession of the land given to them/ their predecessor-in- interest, pursuant to the mortgage entered into, with no specific condition stipulated in respect of the mortgage, it has to be accepted to be a usufructuary one, redeemable upon payment of the mortgage amount by the mortgagor to the mortgagees.

(Para 39)

A. Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17 -- Amendment in plaint – Amendment rejected on the ground that latter events were not pertaining to the husband-petitioner and secondly the petitioner was trying to delay the proceedings -- Another reason recorded was that since the trial had already commenced and the petitioner has failed to exercise his due diligence, he was not entitled for amendment in his divorce petition at this belated stage – Held, reasons and findings recorded by the learned Matrimonial Court cannot be said to be illegal in any manner – Held, Matrimonial Court was well within its jurisdiction to pass the impugned order and the same deserves to be upheld.

(Para 5)

B. Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17 -- Amendment in plaint -- Once the petitioner has come to know about the complete defence of the respondent from her written statement already filed, the proposed amendment, at the hands of the petitioner-husband in his divorce petition, would cause a serious prejudice to the respondent-wife, whereas refusal of amendment is not likely to cause any kind of prejudice or injustice to the petitioner -- Unless a prayer seeking amendment in the pleadings is found to be bonafide and necessary for rendering an effective judgment, it must be discouraged by the courts so as to avoid unnecessary delay in the proceedings.

(Para 12)

Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17 – Amendment in plaint -- It was not the case of plaintiff that the matter/fact which he intends to incorporate in the head note of his plaint could not be raised earlier despite exercise of due diligence -- In fact, he sought amendment in the head note stating that while preparing for rebuttal evidence and arguments, he realized that the amendment was necessary – Held, plaintiff did not fulfill the pre condition postulated in the proviso to Order VI Rule 17 of the Code – Proposed amendment rightly declined.

(Para 9,10)

A. Punjab Land Revenue Act, 1887 (XVII of 1887), Section 34, 123 -- Family settlement – Entry in revenue records -- Until and unless any oral family settlement or exchange is reported to the revenue authorities and the factum thereof, is reflected in the revenue record and mutation sanctioned, it carries no evidentiary value.

(Para 9)

B. Code of Civil Procedure, 1908 (V of 1908), Order 39 Rule 1 & 2 – Constitution of India, Article 227 -- Temporary injunction – Revision -- Family settlement or exchange was ever brought to the notice of the revenue authorities for getting mutation sanctioned on the basis thereof -- Even, nothing on the record to suggest delivery of possession at the time of alleged exchange -- Concurrent findings to the effect that the respondent–plaintiff is in possession of the property in suit in allowing the application under Order XXXIX Rules 1 & 2 CPC -- Nothing on the record to suggest that courts below have acted arbitrarily, perversely, capriciously or in disregard of sound legal principles or without considering all the relevant records -- Thus, the impugned order and judgment do not call for any interference.

(Para 9)

A. Limitation Act, 1963 (36 of 1963), Section 3 – Code of Civil Procedure, 1908 (V of 1908), Order 14 Rule 1 -- Civil Suit -- Limitation – Framing of issue – Requirement of – Though no issue on whether the plaintiffs’ suit was within limitation or not was ever framed by the learned Sub Judge in the suit, and no objection thereto is ever seen to be raised, however, limitation being a basic issue, this Court would not discard that question.

(Para 52)

B. Indian Evidence Act, 1872 (1 of 1872), Section 63, 68, 69 – Registered Will – Proof of -- Even a registered will, unlike any other registered document, has to be proved first strictly in terms of Section 63 of the Indian Succession Act, and then as per Section 68 of the Indian Evidence Act, with at least one of the attesting witnesses examined, if such witness be alive, and if not, then by taking recourse to Section 69 of the Evidence Act.

(Para 53)

C. Indian Evidence Act, 1872 (1 of 1872), Section 68, 69 – Registered Will -- Death of witnesses – Proof of -- Two conditions are required to be fulfilled; the first being that in the absence of an attesting witness, the attestation is recognized to be in the hand of that witness and the second being that the signature of the person executing the document is in the hand writing of that person.

(Para 58)

D. Indian Evidence Act, 1872 (1 of 1872), Section 68, 69 – Registered Will -- Death of witnesses – Proof of -- Signatures of the attesting witness and of the Sub-Registrar duly identified by persons who would normally recognize those signatures -- No evidence led by the defendants to disprove that the thumb impressions on the will were not those of testatrix, their only substantive contention that such thumb impressions, even if taken, were so taken by undue influence  -- Held, conditions necessary to prove the authenticity of the will in terms of Section 63 of the Indian Succession Act, 1925 and Section 68 read with Section 69 of the Indian Evidence Act, 1872, the will was duly proved by the plaintiff.

(Para 59-61)

E. Indian Evidence Act, 1872 (1 of 1872), Section 63, 68, 69 – Registered Will -- Testatrix died, 28 years after the execution of Will -- Delay of 3 year in showing the Will – Effect of -- Suit land was in possession of the plaintiff either in the capacity of a mortgagee or otherwise, during the entire life time of testatrix -- It was only when the defendants, i.e. the daughters of testatrix, got a mutation entered in their own favour qua the suit land, that the plaintiff actually instituted the suit seeking a declaration and permanent injunction in his favour, on the basis of the will -- Thus, though the delay in producing the will is not fatal to the plaintiffs' case.

(Para 63)

F. Indian Evidence Act, 1872 (1 of 1872), Section 63, 68, 69 – Registered Will – Undue influence -- Testatrix did not disclose factum of undue influence to her daughter for 28 years -- With the thumb impression of testatrix on the will not having been disproved in any manner by the defendants, and the will being a registered document, also more than 30 years old, with the signatures of two attesting witnesses and of the Sub-Registrar having been duly proved in terms of Section 69 of the Evidence Act, it cannot be held to be a fabricated document.

(Para 64)

G. Indian Evidence Act, 1872 (1 of 1872), Section 63 – Registered Will – Unsound mind -- Defendants' own witness admitted that she was in a fully sound mind right till her death – In view of the lack of any medical or other evidence to the contrary it has to be held that she was in a healthy state of mind.

(Para 66)

H. Indian Evidence Act, 1872 (1 of 1872), Section 63 – Registered Will in favour of nephew – Ignorance of natural succession -- Good reason for diverting natural succession have been given; to the effect that with two daughters of the testatrix having pre-deceased her, and two having been married off with enough given to them on their marriage and other occasions and the marriages also having been performed with the help of the plaintiffs' father; with the father having looked after every need of the testatrix, and the plaintiff also having looked after her – Held, the diversion from natural succession would be for sufficient cause shown.

(Para 67)

I. Limitation Act, 1963 (36 of 1963), Article 58, 65 – Indian Evidence Act, 1872 (1 of 1872), Section 63 – Registered Will – Limitation – Suit after 3 year of death of Testatrix – Suit was held to be within limitation.

(Para 71)

J. Code of Civil Procedure, 1908 (V of 1908), Order 7, Rule 1,3,5,7,8, -- Non-pleadings in suit – Maintainability of suit -- Claim made simply in the head note and prayer clause of a plaint, cannot be accepted to be sufficient compliance of Order 7 Rules 1, 3, 5, 7 and 8 of the CPC, even with a list of documents in support of such prayer, accompanying the plaint in terms of Rule 14 of Order 7.

(Para 81, 82)

A. Code of Civil Procedure, 1908 (v of 1908), Section 34, 100 –Delayed payment of Gratuity -- Interest @ 12% -- Second Appeal -- Substantial question of law – Whether plaintiff is entitled to interest @ 12% p.a. from the due date till realization when u/s 34 of the CPC interest can be granted not exceeding 6% on the principal amount? -- Whether interest should be levied at non-statutory 12% p.a. or 6% p.a. does not give rise to any substantial question of law much less a question of law which requires to be determined by High Court.

(Para 4)

B. Code of Civil Procedure, 1908 (v of 1908), Section 34 – Delayed payment of Gratuity -- Interest @ 12% to 18 % -- Legality of -- There has to be penal element in award of interest on delayed payment of gratuity when withheld for improper reasons – Award of higher interest depends on the facts of the case and delay justifies anything between 12% to 18% -- Court is not bound to direct payment of interest restricted at the rate of interest indicated in Section 34 of the CPC -- If ceiling is placed it will impinge on the judicial function and inherent jurisdiction of courts of law.

(Para 4)

Protection of Women from Domestic Violence Act, 2005 (43 of 2005),  Section 12, 19, 26 -- Code of Civil Procedure, 1908 (V of 1908), Order 8 Rule 6-A -- Civil Suit – Counter claim – Maintainability of – Domestic violance -- Shared household – Right to residence – Suit for mandatory injunction directing daughter-in-law to stop using the suit flat and to remove her belongings therefrom – Counter claim by daughter-in-law for order of residence in suit flat u/s 19 of the Domestic Violance Act, 2005 – Held, counter-claim filed by daughter-in-law is fully entertainable.

Para 4-6, 36-39)

A. Specific Relief Act, 1963 (47 of 1963), Section 38 – Punjab Land Revenue Act, 1887 (XVII of 1887), Section 34, 44 -- Indian Evidence Act, 1872 (1 of 1872), Section 109 -- Suit for permanent injunction – Presumption to revenue records – Rebuttal of -- Plaintiffs were recorded as owners in possession in the relevant revenue record including mutation and jamabandi -- As per the provisions contained in Section 44 of the Punjab Land Revenue Act, 1887, presumption of truth is attached to the revenue entries -- Presumption of truth was in favour of the plaintiffs, which could not be rebutted or displaced by the defendant/appellant-Gram Panchayat, by leading any contrary evidence -- In such a situation, plaintiffs were entitled for the benefit of Section 109 of the Indian Evidence Act unless the presumption would have been rebutted by the defendants -- Once the plaintiffs were found in possession over the suit land, they were certainly entitled for a decree of permanent injunction against the defendants.

(Para 7,8)

B. Code of Civil Procedure, 1908 (V of 1908), Section 100 – Second Appeal – Substantial question of law -- Appellant could not point out any patent illegality or perversity in the impugned judgment and decree passed by the learned first appellate court, while recording its findings of facts – No reference to any question of law much less substantial question of law nor any such question of law has been found involved in the appeal, which is sine qua non for entertaining any regular second appeal, while exercising its appellate jurisdiction -- No interference is warranted in the present appeal.

(Para 11)

Code of Civil Procedure, 1908 (V of 1908), Section 25 -- Divorce petition at Ahmedabad – Transfer of -- Other proceedings between the parties filed by the petitioner-wife are pending at Dungarpur, Rajasthan viz; (i) FIR under Section 498-A and 406 IPC and under Section 4 of The Dowry Prohibition Act; (ii) Petition under Section 125 Cr.P.C. before the Family Court, Dungarpur, Rajasthan and (iii) petition under Sections 12 and 23 of Protection of Women from Domestic Violence Act, 2005 pending before the Chief Judicial Magistrate, Dungarpur, Rajasthan -- Husband is already appearing in Dungarpur Court, Rajasthan in connection with the aforesaid cases -- Petition transferred to Dungarpur, Rajasthan.

(Para 4-7)

A. Code of Civil Procedure, 1908 (V of 1908), Order 21, Rule 90 – Objection for inadequate publicity -- Proper publicity was given for auction sale in papers so also by beat of drums pursuant to which as many as seven bidders including the appellant herein participated in the auction sale -- Had there been no publicity, it would not have been possible for seven persons to participate in the auction proceedings – Objection  regarding non-publicity not sustainable.

(Para 19, 24)

B. Code of Civil Procedure, 1908 (V of 1908), Order 21, Rule 90 – Objection regarding valuation of property -- Details of the valuation of the property were duly mentioned, namely, decree holder's valuation at Rs.2,75,000/- likewise, Amin’s valuation at Rs.4 lacs whereas the property was sold in auction for Rs.7,50,000/- -- In this view of the matter, it could not be said that the bidders did not know the valuation or/and that it was not mentioned in the auction papers -- Judgment debtor did not adduce any evidence nor brought any bidder to purchase the property for a higher price than the purchase bid (Rs.7,50,000/-) except to say in the application that value of the property was between Rs.12 lakhs to Rs.14 lakhs – Held, objection has no substance for want of any evidence.

(Para 20, 21)

C. Code of Civil Procedure, 1908 (V of 1908), Order 21, Rule 64, 66, 90 – Auction sale by court -- 15 days notice for auction sale – Counting from -- 15 days have to be counted from the date, the order was issued as contemplated under Order 21 Rule 64 for proclamation of sale fixing the date of sale.

(Para 22)

D. Code of Civil Procedure, 1908 (V of 1908), Order 21, Rule 90(2) – Auction sale by court – Setting aside of -- It is not the material irregularity that alone is sufficient for setting aside of the sale – J.D has to go further and establish to the satisfaction of the Court that the material irregularity or fraud, as the case may be, has resulted in causing substantial injury to the judgment-debtor in conducting the sale -- It is only then the sale so conducted could be set aside under Order 21 Rule 90(2) of the Code.

(Para 24)

Contempt of Courts Act, 1971 (70 of 1971), Section 12 – Code of Civil Procedure, 1908 (V of 1908), Order 39 Rule 2A – Stay/Injunction of demolition by Addl. District Judge – Contempt before High court – Maintainability of – Serious dispute has arisen qua the fact as to whether intimation was given to the concerned respondents about passing of the stay order – Held, it is imperative for the Court to come to a definite conclusion before punishing the concerned respondents as to whether they had indeed wilfully disobeyed the order -- Roving inquiry cannot be undertaken by High Court while exercising powers u/s 12 of the Contempt of Court Act -- Petitioner is bound to avail the remedy available under Order 39 Rule 2-A CPC which deals with the consequences of disobedience or breach of injunction -- Contempt petition was not at all maintainable before High Court in view of the alternative remedy available to the petitioner under Order 39 Rule 2A CPC.

(Para 1, 6-9)

A. Code of Civil Procedure, 1908 (V of 1908), Section 9 – Owner – Co-owner – Rights of -- Even if the claim regarding title over the whole of the suit property is answered against, that does not necessarily negate claim of being a co-owner of the suit property.

(Para 8)

B. Code of Civil Procedure, 1908 (V of 1908), Section 100 -- Second appeal -- Substantial question of law – Not necessary to deal with all -- As the arrangement provided by the High Court would meet the ends of justice and also avoid any further litigation between the parties, it would not be necessary to deal with all the substantial questions of law.

(Para 9)

Indian Evidence Act, 1872 (1 of 1872), Section 85 – Civil Rule of Practice, Rule 22 – Code of Civil Procedure, 1908 (V of 1908), Order 14 Rule 1 – General Power of Attorney --  No issue was framed with regard to GPA -- No issue of maintainability of the suit on the basis of GPA -- Finding recorded by the Appellate Court discarding the GPA holding it to be of dubious origin are perverse and are not sustainable in law -- In the absence of framing of proper issues, no evidence was led by the respondents-defendants and no opportunity to rebut any evidence regarding genuineness of GPA has been made available to the appellant-plaintiff -- Judgment passed by the Lower Appellate Court cannot be sustainable.

 (Para 24)