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)

Code of Civil Procedure, 1908 (V of 1908), Order 9 Rule 13, Order 21 Rule 26 – Ex-parte decree – Application for setting aside – Stay of Execution -- Role of Executing Court -- Keeping in view the import of Rule 26 coupled with the factum that application filed under Order 9 Rule 13 CPC is pending for the past more than one year, the Executing Court should have allowed reasonable time to the petitioners to enable the judgment debtors to apply to the Court by which the decree was passed to stay execution of the decree -- Liberty given to the petitioners to file an appropriate application for stay of execution in the proceedings under Order 9 Rule 13 CPC -- In the meantime, warrants of possession, if not already executed, would be kept in abeyance for a period of two months.

(Para 10)

A. Code of Civil Procedure 1908 (V of 1908), Order 21 Rule 105, 106 – Execution application -- Dismiss in default – Condonation of delay -- Restoration of – Maintainability of -- Application seeking restoration of the execution application has to be filed within a period of 30 days from the date of dismissal and not from the date of knowledge. Damodaran Pillai’s case 2005(4) RCR (Civil) 132 relied.

 (Para 5)

B. Code of Civil Procedure 1908 (V of 1908), Section 151,  Order 21 Rule 105, 106 – Execution application -- Dismiss in default – Delay in application for restoration – In revision, execution restored inspite of delay in application for restoration -- Since much water flowed after the disposal of the revision petition, Court deems it not appropriate to recall the order.

(Para 5)

A. Code of Civil Procedure, 1908 (V of 1908), Section 11 -- Constructive res-judicata – Plea of – Stage of -- Judgment debtor, neither in the application filed for setting aside sales nor at initial stage raised any objection on the ground that the execution Court had no jurisdiction to pass the decree – Held, later on the judgment debtor was precluded from raising the plea of jurisdiction in view of principles of constructive res judicata.

(Para 10)

B. Code of Civil Procedure, 1908 (V of 1908), Section 11 – Res-judicata -- Previous proceedings would operate as res judicata only in respect of issues of facts and not on issues of pure questions of law when the subsequent suit or proceeding is based upon a different cause of action and in respect of different property though between the same parties.

(Para 12-14)

C. Code of Civil Procedure, 1908 (V of 1908), Section 11 – Res-judicata -- Once a judgment in a former suit or proceeding acquires finality, it binds the parties totally and completely on all issues relating to the subject matter of the suit or proceeding -- The Latin maxims relevant for explaining the concept of res judicata clearly specify that:

(1)    no man should be vexed twice for the same cause,

(2)   it is in the interest of State that there should be an end to a litigation and

(3)   a judicial decision once it has attained finality must be accepted as correct between the parties.

(Para 12)

D. Code of Civil Procedure, 1908 (V of 1908), Section 11 -- Indian Evidence Act, 1872 (1 of 1872), Section 115, 116, 117 – Res-judicata -- Estoppel by judgment -- As a principle of evidence, estoppel is treated to be an admission or in the eyes of law something equivalent to an admission of such quality and nature that the maker is not allowed to contradict it -- “Estoppel by judgment” is taken as a bar which precludes the parties after final judgment to reagitate and relitigate the same cause of action or ground of defence or any fact determined by the judgment -- If the determination was by a Court of competent jurisdiction, the bar will remain operative even if the judgment is perceived to be erroneous.

(Para 13)

Code of Civil Procedure, 1908 (V of 1908), Order 9 Rule 6, 13, Order 21 -- Ex-parte decree – Application for setting aside ex-parte decree – Pendency of -- Execution proceedings – Status of – Held, It will not be appropriate to rush with the execution till the decision of that application -- So, the execution proceedings will remain stayed till the decision of the application under Order 9 Rule 13 CPC moved by the petitioners.

(Para 13)

Code of Civil Procedure, 1908 (V of 1908), Order 8 Rule 1 – Non-filing of written statement in time -- Defence struck off – Remedy of -- Provisions under Order 8 Rule 1 CPC, limiting the time period for filing the written statement, is not mandatory and is only directory in nature -- Valuable rights of the petitioners are involved in the suit -- Interest of justice requires that they should be afforded due opportunity to defend the suit -- Rights of the parties should be decided on merits rather than technicalities -- Petitioners are granted one opportunity to file the written statement, subject to Rs.5,000/- as cost.

(Para 6,7)

A. Code of Civil Procedure, 1908 (V of 1908), Order 41 Rule 27 – Additional evidence -- Order passed by the Assistant Collector Ist Grade, was in the knowledge of the appellants -- No satisfactory explanation has been given as to why this document could not be produced at the time of trial after the exercise of the due diligence -- Learned Assistant Collector Ist Grade has simply held in the order that in the disputed khasra number there exists constructions, the Abadi has been let out by the parties is beyond his jurisdiction and they should approach the Civil Court -- Rather, he held that he has no jurisdiction to entertain the application -- Thus, the copy of this order is not at all required by this Court to enable it to pronounce the judgment or for any other substantial cause -- Hence the same is hereby dismissed.

(Para 13)

B. Code of Civil Procedure, 1908 (V of 1908), Order 20 Rule 18 -- Partition of property – Purpose of partition of the suit property between the cosharers is to allot the separate portion of the land to the co-sharers taking into consideration the value of the land and the share of the parties, so that all the co-sharers get equal share in the valuable piece of land as well as the inferior quality of the land -- There should be no gainer or looser in partition of the joint property -- Interest of all the co-owners should be taken care of.

(Para 17)

C. Code of Civil Procedure, 1908 (V of 1908), Order 20 Rule 18 -- Partition of property – Preliminary decree – Possession disturbed in final decree – Permissibility of -- At the time of passing the preliminary decree, it was mentioned that if any pacca structure has been raised by either party, the same would be kept intact as far as possible while finally partitioning the land and passing the decree -- No doubt, while passing the final decree for partition, the possession of the respective parties is to be respected only to the extent possible in the manner without causing any prejudice to the rights of the other co-sharers -- Appellants are claiming the entire land adjoining the main road, which is valuable piece of land simply on the ground that they were in possession of that portion and has also raised the huts therein -- Said plea is not permissible under law, because even a co-sharer out of possession is entitled to the share in every inch of the land, otherwise a co-sharer out of possession or in possession of lesser share or inferior quality of the property would never be able to bear the fruits by getting the joint property partitioned.

(Para 18-20)

Code of Civil Procedure, 1908 (V of 1908), Order 9 Rule 4 -- Restoration of suit -- Petitioner-Bank filed a suit for recovery -- Counsel representing the Bank remiss in discharge of his obligation to comply with the directions of the Court in filing the Registered Cover/Acknowledgment Due on various dates fixed for the purpose -- Suit was dismissed by the trial Court – Application under Order 9 Rule 4 read with Section 151 CPC was filed in September, 2011, which was decided by the trial Court in April, 2015 -- Keeping in view the principles of natural justice coupled with that huge public money is involved and the fact that the respondents did not contest the application for restoration, the petition is allowed subject to condition that Bank will deposit an amount of Rs.20,000/- with the Legal Services Authority.

(Para 5,6)

A. Negotiable Instruments Act, 1881 (26 of 1881), Section 20, 118 -- Security cheque – Filling of cheque by drawee – Validity of -- Negotiable Instruments Act raises a presumption u/s 118 that a negotiable instrument is presumed to be fully supported by consideration -- If a cheque is issued as security or with an authority given to the drawee that it could be filled up or used for certain claims which are later ascertained, it is still a valid instrument as per Section 20 of the Negotiable Instruments Act which states that document which is inchoate with authority granted to the drawee to fill up the recitals, the document would become the full-fledged enforceable negotiable instrument, the moment the recitals were filled up by the drawee of the negotiable instrument.

(Para 9)

B. Code of Civil Procedure, 1908 (V of 1908), Order 37 – Summary suit by public limited company – Leave to defend – Condition for deposit of security, while granting leave to defend – Validity of --  Held, suits filed by a Company through a power of attorney could hardly be a matter of serious defence -- Plea that the cheques are issued as security is not really a stout plea that admits of any serious consideration; at least prima facie so -- As regards the contention that there is no privity of contract with the plaintiff or some of the defendants and that the liability to Punjab Tractors cannot be enforced through the plaintiff, it is not a defence worthy of substance if the High Court has passed an order of amalgamation empowering the transferee Company to claim all rights of transferor Company -- Non-production of the original cheques also would not assume significance in these cases, for, it has been explained that the dishonour of cheques resulted in actions for offences under Section 138 of the Negotiable Instruments Act before court of competent jurisdiction and that therefore certified copies of cheques have been filed along with the plaints – Held, none of the defenses in any of the cases of the defendants has any prima facie merit and if the defendants are given an opportunity to defend, it is by way of mercy and, therefore, the condition imposed was tenable – Defendants are directed to deposit security of 50% of the suit amount.

(Para 9-12)

A. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 – Rejection of plaint – Pleading to be considered -- It is the settled principle of law that for deciding the application under Order 7 Rule 11 CPC, the Court is to take into consideration only the pleas mentioned in the plaint -- Defence of the defendant and the pleas raised in the written statement cannot be taken into consideration.

(Para 6)

B. Haryana Ceiling on Land Holdings Act, 1972 (26 of 1972), Section 26 -- Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 – Jurisdiction of civil Court -- Rejection of plaint – Plea in the plaint that order of cancellation of the allotment has been passed without giving him any notice or information in violation of the principles of natural justice and the land in question was declared as permissible area of landlord -- It is an admitted fact that plaintiff was never arrayed as party to the aforesaid proceedings – Plea of jurisdiction is a mixed question of law and fact and is to be decided on appreciation of evidence -- Suit cannot be stated to be barred by law at the very threshold.

(Para 6-10)

Code of Civil Procedure, 1908 (V of 1908), Order 26 Rule 2, Section 100 -- Appointment of Local Commissioner -- Entire stress of the appellant-defendant is on the fact that learned Civil Judge has not appointed a local commissioner to demarcate and locate plot and street – Location of plot and street is clear even from the statement of appellant-defendant while appearing as DW1 -- Defendants have not produced any evidence or site plan to refute the site plan produced by the plaintiffs and other evidence on record -- Appellants-defendants did not press this application seeking appointment of Local Commissioner during final arguments before learned Civil Judge -- This application remained undecided but the appellants appear to be satisfied with their not pressing this application, as in the grounds of appeal before the first Appellate Court, this plea was never raised -- Once the appellants have given up this plea before the first Appellate Court, it cannot be raised in this second appeal -- There is no reason or circumstances calling for appointment of another local commissioner when two local commissioners had already been appointed.

(Para 17,18)

Code of Civil Procedure, 1908 (V of 1908), Order 41, Rule 25 – Additional evidence -- In additional evidence document relating to mutation proceedings were sought to be produced – Ld. Lower Appellate Court while declining the application for additional evidence gave no reasoning, much less, cogent reasoning has been assigned as how these documents are not essential and necessary and would not enable it to decide the controversy – Held, the Court would not be in a position to decide issue vis-a-vis veracity of the Will, much less, its genuineness, statement suffered before the revenue Court and the orders passed by the revenue Courts, whereby, the mutations have been referred to, as the aforementioned documents go to the root of the matter in adjudication of the lis – Matter remitted back to the concerned trial Court which shall give 3-3 effective opportunities to each of the party to prove the aforementioned documents sought to be placed on record by way of additional evidence.

(Para 13-15)

Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17 – Suit for permanent injunction – Defendants sold the property to third party -- Amendment of plaint seeking declaration challenging validity of sale deeds by impleading party -- Amendment sought by the plaintiff was not barred by limitation -- Court may at any stage of proceedings allow the amendment to the pleadings which may be necessary for the purpose of determining the real questions in controversy between the parties -- If, the plaintiff is compelled to assail the validity of the aforesaid sale deeds by filing the separate suit, it will unnecessary cause multiplicity of litigation – Amendment rightly allowed.

(Para 1, 4-7)

Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 10 – Specific Relief Act, 1963 (47 of 1963), Section 20 -- Impleading as necessary party -- Suit for specific performance of agreement to sell – Subsequent purchaser from plaintiff moved application for impleading as party -- There is no averment at all that there is any collusion between the plaintiff and defendants or any settlement is going to take place between the plaintiff and defendants, which is likely to adversely affect the rights of the petitioners – Admittedly, the petitioners are not the privity to the said contract -- Present petitioners cannot be stated to be either the necessary party or the proper party – Application for impleading petitioner as necessary party dismissed.

(Para 1, 6, 7)