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

(Para 21, 22)

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

(Para 30)

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

(Para 44)

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

(Para 26)

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

(Para 35)

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

(Para 37)

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

(Para 40)

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

(Para 45)

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

(Para 65)

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

(Para 78)

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

(Para 86)

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

(Para 87)

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

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

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

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

(Para 92)

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

(Para 93)

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

(Para 93)

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

(Para 100)

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

(Para 102)

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

(Para 7-8)

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

(Para 9)

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

(Para 1, 5-8)

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

 (Para 24-27)

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

(Para 8)

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

(Para 35)

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

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

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

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

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

(Para 40-63)

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

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

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

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

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

(Para 69)

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

(Para 6)

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

(Para 9)

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

(Para 9)

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

(Para 2, 10)

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

(Para 8)

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

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

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

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

(Para 9)

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

(Para 10)

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

(Para 11)

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

(Para 10)

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

(Para 17)

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

(Para 18)

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

(Para 19, 20)

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

(Para 23)

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

(Para 9-10)

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

(Para 11)

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

(Para 15)

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

(Para 17)

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

(Para 10)

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

(Para 8)

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

(Para 7)

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

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

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

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

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

(Para 35)

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

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

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

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

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

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

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

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

(Para 37, 38)

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

(Para 10)

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

(Para 14, 15)

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

(Para 18-26)

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

(Para 30)

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

(Para 30)

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

(Para 31)

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

(Para 32)

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

(Para 35)

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

(Para 23-26)

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

(Para 27)

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

(Para 34-39)

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

(Para 2-7)

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)