Search By Topic: Civil Procedural Law

753. (P&H HC) 26-07-2017

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)

755. (SC) 17-07-2017

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)

757. (SC) 11-07-2017

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)

759. (P&H HC) 31-05-2017

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)

763. (P&H HC) 15-05-2017

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)

766. (P&H HC) 09-05-2017

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)

768. (SC) 02-05-2017

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)

774. (SC) 06-05-2016

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)

777. (P&H HC) 31-03-2016

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)

779. (P&H HC) 30-03-2016

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)

788. (SC) 23-02-2016

A. Code of Civil Procedure, 1908 (V of 1908), Order 18 Rule 17 – Re-calling of witness – Power of Court -- Basic purpose of Rule 17 is to enable the court to clarify any position or doubt, and the court may, either suo motu or on the request of any party, recall any witness at any stage in that regard -- This power can be exercised at any stage of the suit -- No doubt, once the court recalls the witness for the purpose of any such clarification, the court may permit the parties to assist the court by examining the witness for the purpose of clarification required or permitted by the court -- The power under Rule 17 cannot be stretched any further -- The said power cannot be invoked to fill up omission in the evidence already led by a witness -- It cannot also be used for the purpose of filling up a lacuna in the evidence -- ‘No prejudice is caused to either party’ is also not a permissible ground to invoke Rule 17 -- No doubt, it is a discretionary power of the court but to be used only sparingly, and in case, the court decides to invoke the provision, it should also see that the trial is not unnecessarily protracted on that ground.

(Para 11)

B. Code of Civil Procedure, 1908 (V of 1908), Order 18 Rule 17 – Re-calling of witness – Inherent powers of Court -- Rigour under Rule 17 does not affect the inherent powers of the court to pass the required orders for ends of justice to reopen the evidence for the purpose of further examination or cross-examination or even for production of fresh evidence -- This power can also be exercised at any stage of the suit, even after closure of evidence.

(Para 14)

789. (SC) 12-02-2016

Motor Vehicles Act, 1988 (59 of 1988), Section 140, 166, 173 – Code of Civil Procedure, 1908 (V of 1908), Order 20 Rule 4(2), Order 41, Rule 31, Section 96 – Compensation in motor vehicle accident case -- Award of Tribunal – First Appeal – Duty of First Appellate Court/ High Court  – An appeal u/s 173 of the M.V. Act is essentially in the nature of first appeal alike Section 96 of the Code and, therefore, the High Court is equally under legal obligation to decide all issues arising in the case both on facts and law after appreciating the entire evidence -- High Court neither set out the facts of the case of the parties, nor dealt with any of the submissions urged, nor took note of the grounds raised by the appellant and nor made any attempt to appreciate the evidence in the light of the settled legal principles applicable to the issues arising in the case to find out as to whether the award of the Tribunal is legally sustainable or not and if so, how, and if not, why? -- As a first appellate Court, it was the duty of the High Court to have decided the appeal keeping in view the powers conferred on it by the statute -- Impugned judgment also does not, satisfy the requirements of Order XX Rule 4 (2) read with Order XLI Rule 31 of the Code which requires that judgment shall contain a concise statement of the case, points for determination, decisions thereon and the reasons -- Impugned judgment of the High Court is not sustainable – Matter remanded to the High Court for deciding the appeal afresh on merits.

 (Para 24-29)

790. (P&H HC) 08-02-2016

A. Specific Relief Act, 1963 (47 of 1963), Section 16, 20 -- Agreement to sell immovable property -- Suit for specific performance by buyer – Vendor’s contention that the plaintiffs/respondents were not ready and willing to perform their part of the agreement loses its relevance for the reason that the suit property stands alienated in favour of another person by the Vendor vide registered sale deed. M.M.S. Investments’, Madurai’s case 2007(2) RCR(Civil) 816 relied.

 (Para 2, 12)

B. Code of Civil Procedure, 1908 (V of 1908), Section 9 -- Specific Relief Act, 1963 (47 of 1963), Section 20 -- Agreement to sell immovable property – Allegation of forgery -- Criminal Court judgment is not binding upon civil litigation -- Mere fact that the FIR was got registered by the appellant or challan has been presented in the Court is not at all sufficient to hold in favour of the appellant that the agreement is the result of fraud or forgery – Held, even judgment passed by a criminal court accepting plea of the appellants would not be binding upon the civil court as the civil court has to record its independent finding on the plea of fraud or forgery in the light of materials on record.

(Para 13)

C. Specific Relief Act, 1963 (47 of 1963), Section 16, 20 -- Readiness and willingness to perform -- Ordinarily, in contract for sale of immovable property, time is not essence of the contract – Contention of the appellant/Vendor that filing of suit after two years of the agreement negatives claim of the respondents/plaintiff with regard to readiness and willingness is devoid of merit and is accordingly rejected -- Suit for specific performance decreed.

(Para 6, 15)

D. Specific Relief Act, 1963 (47 of 1963), Section 20 -- Transfer of Property Act, 1882 (4 of 1882), Section 41 -- Agreement to sell – Execution of sale deed in favour of other --  Bonafide purchaser – Plea of – Non-appearance as witness – Adverse inference of – Vendee did not adduce any evidence to discharge the onus to prove the plea of bona fide purchasers for consideration without notice -- An adverse inference is to be drawn against them for their failure to appear in the witness box and provide an opportunity to the contesting respondents to challenge correctness of their plea of bona fide purchasers, for value, without notice.

(Para 16)

799. (Allahabad HC) 07-12-2012

A. Indian Easement Act, 1882 (V of 1882), Section 52 – License – Licensee – Defendants are occupying the disputed premises on the basis of permission granted by its owners, who are the real brothers or their legal representatives, without any condition to pay any rent – Since there is no lease nor any rent deed, it is nothing more than a license, which means to give a license or permit a person to occupy when the land owner allows to do work or perform an act on the land owner’s property – Visitor has a license to enter into the property – This kind of license need not be written, signed and registered – It may be oral or it may be implied by the relationship or actions of the parties.

(Para 7)

B. Code of Civil Procedure, 1908 (V of 1908), Section 2 – Ex-parte Decree – Compromise Decree – Decree after contest – Binding effect -- A decree of a Court of law either passed after contest or passed without contest or passed ex-parte or passed on the basis of compromise or any other form is a decree, which is, by all means, binding on all the Courts.

(Para 10)

C. Code of Civil Procedure, 1908 (V of 1908), Section 2 – Compromise decree – Change of Presiding officer – Effect of -- Trial Court declared the said decree as void and non-est and is not binding upon the court -- This is obviously perverse, as the decree has been passed by the same Court -- Though, the Presiding Officer might have been changed, yet 'Court' means 'Court' and not the Presiding Officer -- In either case, the said decree was passed by a co-ordinate Bench, which has not been challenged anywhere, nor even in present suit, thus, it has attained finality.

(Para 10)

D. Indian Easement Act, 1882 (V of 1882), Section 52 – Licensee – Compromise decree – Non-registration of – Objection to -- A licensee has no right to claim that any memorandum of understanding of family settlement among the owners was not registered, and the suit filed on the basis of it earlier, was not maintainable, in which the defendants were not parties nor their right or title has been affected by that decree.

(Para 12)

800. (P&H HC) 20-09-2004

East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13(2)(i) – Code of Civil Procedure, Order 9 Rule 6, 13 – Arrears of Rent – Ex-parte ejectment order -- Non-supply of ejectment petition alongwith summons is merely an irregularity cannot be ground for setting aside ex-parte ejectment order.

For the sake of argument, even if it is  presumed that no copy of the ejectment petition was received by the tenant-petitioner, it would at best be a mere irregularity within the meaning of proviso to Rule 8 of Order IX of the Code because on 8.8.1997 the tenant-petitioner was apprised that the date of appearance before the Court is 23.8.1997, as has been held by this Court in Dev Karan's case (supra).  Therefore, no ground is provided to set aside the impugned order.

 (Para 8)

East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13(2)(i) – Arrears of Rent – Deposit of – Question of grant of opportunity to the tenant would not arise who has refused to appear before the court after summons have been duly served upon him alongwith ejectment petition – Benefit of Rakesh Wadhawan’s case, 2002(1) RCR 514 is not available.

The argument of learned counsel for the tenant-petitioner based on the judgment in the case of Rakesh Wadhawan's case (supra) would not be available because the question of grant of opportunity would not arise to a tenant who has refused to appear before the Court after summons have been duly served on him along with a copy of the ejectment petition.  It is evident that he was aware of the date of appearance before the Court which was fixed for 23.8.1997 and the summons were served on him on 8.8.1997.  There was ample opportunity given but the tenant-petitioner has failed to avail it.  In such an eventuality, the principles laid down in the judgment of the Supreme Court in Rakesh Wadhawan's case (supra) would not be attracted.  The argument is wild and is imaginative.

 (Para 9)