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

(Para 30)

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

(Para 35)

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

(Para 36-38)

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

(Para 39)

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

(Para 5)

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

(Para 12)

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

(Para 9,10)

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

(Para 9)

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

(Para 9)

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

(Para 52)

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

(Para 53)

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

(Para 58)

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

(Para 59-61)

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

(Para 63)

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

(Para 64)

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

(Para 66)

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

(Para 67)

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

(Para 71)

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

(Para 81, 82)

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

(Para 4)

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

(Para 4)

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

Para 4-6, 36-39)

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

(Para 7,8)

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

(Para 11)

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

(Para 4-7)

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

(Para 19, 24)

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

(Para 20, 21)

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

(Para 22)

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

(Para 24)

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

(Para 1, 6-9)

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

(Para 8)

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

(Para 9)

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

 (Para 24)

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

(Para 10)

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

 (Para 5)

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

(Para 5)

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

(Para 10)

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

(Para 12-14)

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

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

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

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

(Para 12)

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

(Para 13)

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

(Para 13)

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

(Para 6,7)

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

(Para 13)

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

(Para 17)

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

(Para 18-20)

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

(Para 5,6)

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

(Para 9)

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

(Para 9-12)

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

(Para 6)

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

(Para 6-10)

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

(Para 17,18)

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

(Para 13-15)

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

(Para 1, 4-7)

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

(Para 1, 6, 7)

Code of Civil Procedure, 1908 (V of 1908), Order 41, Rule 27 – Indian Evidence Act, 1872 (1 of 1872), Section 65 -- Additional evidence -- Agreement dated 14.6.2010 came into existence after filing of written statement on 28.4.2010 -- Meaning thereby, this plea could not be taken in the pleading by way of written statement -- It is also settled law that parties can be allowed to lead evidence in support of their pleadings -- As there was no pleading qua agreement dated 14.6.2010, there was no question of allowing of application for leading secondary evidence -- In fact it was required to move an application for amendment of written statement on the basis of subsequent agreement and thereafter, such an application for leading secondary evidence should have been filed, that has not been done -- Statement of witness beyond pleading is not admissible and cannot be considered by the Court below.

(Para 4)

Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17 – Indian Evidence Act, 1872 (1 of 1872), Section 63, 66 -- Subsequent document – Secondary evidence – Permissibility of -- Amendment in written statement -- Agreement dated 14.6.2010 came into existence after filing of written statement on 28.4.2010 -- Meaning thereby, this plea could not be taken in the pleading by way of written statement -- It is also settled law that parties can be allowed to lead evidence in support of their pleadings -- As there was no pleading qua agreement dated 14.6.2010, there was no question of allowing of application for leading secondary evidence -- In fact he was required to move an application for amendment of written statement on the basis of subsequent agreement dated 14.6.2010 and thereafter, such an application for leading secondary evidence should have been filed.

(Para 4)

Code of Civil Procedure, 1908 (V of 1908), Order 8 Rule 6A – Framing of issue – Counter claim – Permissibility of -- Counter claim after almost two and a half years after the framing of the issues -- Even though evidence on behalf of the respondent-plaintiff has commenced, it has not yet concluded -- The evidence on behalf of the defendants is yet to commence -- It has also not been shown that any prejudice would be caused to the respondent-plaintiff before the trial court, if the counter-claim was to be adjudicated upon, along with the main suit – Held, no serious injustice or irreparable loss would be suffered by the respondent-plaintiff – Application for counter-claim allowed.

(Para 2, 8-14)

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)

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)

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)

Court Fees Act, 1870 (7 of 1870), Section 7(iv) -- Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 CPC -- Ad valorem court fee – Rejection of plaint -- Suit for declaration for declaring sale deed null and void on account of non passing of consideration, the possession of the land remained with them and cheques for consideration were not honoured – Held, at this stage of litigation, only averments in the plaint are to be seen -- Trial Court is directed to proceed with the suit without insisting upon payment of ad valorem court fee.

(Para 4-7)

A. Transfer of Property Act, 1882 (4 of 1882), Section 54 -- Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 4 -- Sale-deed  -- Challenge to -- Allegation of fraud – Pleadings -- To prove averments of fraud and misrepresentation there has to be specific pleadings.

(Para 6)

B. Transfer of Property Act, 1882 (4 of 1882), Section 54 -- Sale-deed – Execution of – Non-encashment of cheques by Vendor – Whether sale complete -- Out of sale consideration of Rs.7,21,000/-, the appellant stated to have made payment of Rs.5,21,000/- in cash and Rs.2 lacs by banker's Cheque -- It is prerogative of the vendor to present and encash the cheque but the fact remains that the sale, as per Section 54 of the Transfer of Property Act, 1882, was complete – Sale is held to be with consideration.

(Para 6, 7)

A. Indian Evidence Act, 1872 (1 of 1872), Section 3 – Exhibition of documents -- Proved -- Mere exhibition of the documents would not dispense with its proof.

(Para 6)

B. Code of Civil Procedure, 1908 (V of 1908), Order 14 Rule 1, 2 -- Issue of fact – Non-framing of issue -- Since there was no issue of adoption, there was no need for the plaintiff to prove the adoption.

(Para 6)

C. Indian Evidence Act, 1872 (1 of 1872), Section 106 – Cross-examination -- Only one line of the cross-examination has not to be read in isolation, but the cross-examination in whole has to be read.

(Para 6)

D. Indian Evidence Act, 1872 (1 of 1872), Section 45, 47 – Expert evidence -- Trial Court could not have stepped into the shoes of the Handwriting Expert, who compared the signatures as the Handwriting Expert.

(Para 6)

Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 -- Specific Relief Act, 1963 (47 of 1963), Section 20 -- Court Fees Act, 1870 (7 of 1870), Section 7(iv)(a) -- Suit for specific performance – Rejection of plaint -- Subsequent vendee filed counter claim for possession – Advalorem court fee – Requirement of – Suit for possession of land where the land forms an entire estate, or a definite share of an estate, paying annual revenue to Government, or forms part of such an estate and is recorded in the Collector's register as separately assessed permanently to such revenue, then the amount of court fee shall be computed on 10 times of the revenue so payable -- Accordingly for the relief of possession the claimant was required to pay advalorem court fee on 10 times of the land revenue of the suit land -- Term “land” is not defined anywhere in the Court Fees Act -- It should, therefore, be incorporated in the ordinary sense and cover all kinds of land regardless of the use to which it is put or may be likely to be put – Application for rejection of plaint rightly dismissed.

(Para 11-13)

Specific Relief Act, 1963 (47 of 1963), Section 16(c) – Code of Civil Procedure, 1908 (V of 1908), Section 148 -- Agreement to sell of immovable property – Readiness and willingness -- Compromise decree passed by Lok Adalat – Non-compliance of -- Extension of time for compliance -- Requirement of readiness and willingness to perform the part of the contract ought to exist on three occasions: (i) At the time of time stipulated in the agreement; (ii) During the pendency of the suit when the plaintiff's action is tested about on his pleadings of readiness and willingness under Section 16(c) and (iii) till the decree is satisfied when it is put to execution and when the defendant has not acted as per the terms of the agreement -- If the readiness and willingness are lacking in any one of the three situations, relief cannot obtain in favour of the agreement holder -- In this case, the plaintiff was surely not ready and willing even after decree within the time stipulated under the compromise decree and in spite of an extension of time by one month, as granted by the Lok Adalat -- Order passed by the Lok Adalat declining to extend the time further was perfectly justified.

(Para 1,2,9,10)

A. Code of Civil Procedure, 1908 (V of 1908), Section 10 – Subsequent suit – Stay of suit -- In any suit for partition or for declaration on the basis that the properties are joint family properties, every person that asserts the character of properties as belonging to the family stands in the position of plaintiff -- If in the 1st suit instituted by one of the brothers he has not included all the items and when one of the defendants had remained ex-parte, and did not press for an adjudication independently for himself, there can be no bar for such a defendant who is the member of the joint family to file his own suit and seek for a similar relief -- The 2nd suit here becomes relevant for it includes the suit items and sets out also several other items in the subsequent suit.

(Para 5)

B. Code of Civil Procedure, 1908 (V of 1908), Section 10 – Subsequent suit – Stay of suit – Discretion of Court -- Whether it shall always be taken as mandatory that the Court shall stay its own proceedings if an earlier suit is substantially and materially on an issue that was relevant in the earlier instituted suit – Held, the expression used in Section 10 sounds like a mandatory character, however it still give the discretion to the Court to consider whether the stay could shall be granted or not.

(Para 5-7)

Court Fees Act, 1870 (7 of 1870), 7, Article 17(iii) – Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 – Challenge to sale deed – Ad valorem court fees – Rejection of plaint -- Plaintiff is a member of the Hindu Undivided Family (HUF) and a co-sharer in the suit property filed the suit for separate possession of his share on the basis of partition by metes and bounds -- Thereafter, when his share was also sold by the Karta of the family without legal necessity to defendant no.5, the suit for declaration was filed to challenge the sale deeds being null and void with a consequential relief that neither the possession be taken from him without partition nor any portion of the suit property be demolished and re-constructed at the instance of defendant no.5 – Held, Plaintiff was not required to ask for possession in the later suit filed for declaration to challenge the sale deeds in which he was not associated – Trial Court dismissed the application under Order 7 Rule 11 CPC for rejection of plaint on the ground of non-affixation of ad valorem court fees – No error in the order.

 (Para 1, 10-12)

A. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 7, 13-A (Haryana) – Code of Civil Procedure, 1908 (V of 1908), Section 144 – Ejectment – Pendency of title suit – Restitution of possession -- Proceedings u/s 7 of the Act have been decided without deciding title suit u/s 13-A of the Act -- Possession has already been taken by the Gram Panchayat during the proceedings for want of stay – Held, if the suit of title is decided and decreed in favour of petitioners, then u/s 144 of the Code of Civil Procedure, the petitioners will also be entitled to restitution of possession.

(Para 5)

B. Code of Civil Procedure, 1908 (V of 1908), Section 144 – Execution of decree -- Pendency of appeal – Restitution of possession -- Appeal by judgment debtor is not rendered infructuous, even if decree is executed -- On reversal of judgment and decree of trial Court in appeal, the consequences ensue and accordingly judgment debtor becomes entitled to restitution.

(Para 6)

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)

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)

East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13, 15(5) – Code of Civil Procedure, Order 1 Rule 10 – Necessary party – Ejectment petition against the tenant – Application by another person for impleading him as party, claiming possession as tenant under some one else – Not a necessary party to be impleaded as no relief has been clamed by the landlord against him – Landlord/Petitioner is dominus litus and cannot be compelled to fight litigation against him.

(Para 4)

Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 7, 11 – Code of Civil Procedure, Section 11 – Resjudicata – In earlier petition the Assistant Collector held that the petitioners are not in illegal occupation and that the suit land does not fall within the definition of Shamlat Deh – Subsequent application by Gram Panchayat u/s 11 read with section 7 would not operate as resjudicata because Gram Panchayat was not the party in the earlier petition.

(Para 6)

A. Haryana Urban (Control of Rent and Eviction) Act, 1973 (11 of 1973), Section 15(6) – Code of Civil Procedure, Order 9, Rule 6(1)(a), 7 – On the date fixed for service of summons the Court declared that service is complete – From the endorsement made on the summons, it is clear that the sub-tenant was not interested in contesting the case – There cannot be any other conclusion except that he was proceeded ex-parte – Merely, there is no specific order in this regard is no ground for setting aside ex-parte proceedings.

 (Para 7)

B. Haryana Urban (Control of Rent and Eviction) Act, 1973 (11 of 1973), Section 15(6) – Code of Civil Procedure, Order 1 Rule 10, Order 6 Rule 17, Order 9, Rule 6(1)(a), 7 – Ex-parte proceedings -- Ex-parte proceedings initiated against the sub-tenant – During the pendency of the case, suit property was sold – Not necessary to issue fresh notice, on application moved by Vendee under Order 1 Rule 10 and Order 6 Rule 17.

(Para 7)

East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 15(6) -- Civil Procedure Code, 1908, Section 47, Order 21 Rule 97 -- Execution -- Objection -- Order of ejectment passed -- Execution proceedings initiated – Objections raised under Section 47 of the Code, rejected – Again objections under Order 21 Rule 97 of the Code, raised, which were either subject matter of the judgement and decree or objection raised under 47 of the Code -- Objection cannot be allowed to be raised again and again -- Petition dismissed with cost Rs. 10,000/-.

The judgement debtor petitioner has sheerly mis-used the process of the Court as the ejectment order has already been passed on 16.12.1997 which has been upheld by this Court in C.R. No. 832 of 1998 decided on 2.11.1999. The rent receipts produced by him (Exs. R-1 to R-3) were found to be forged. Thereafter the judgement debtor petitioner filed a Special Leave Petition which was dismissed. The decree holder respondents filed the execution petition against the judgement debtor petitioner being execution No. 323 of 2000 instituted on 9.12.2000. The judgement debtor petitioner raised same objections under Section 47 of the Code which have again been raised under Order XXI Rule 97 of the Code. Those objections were dismissed on 3.4.2001 and his revision petition being C.R. No.2411 of 2001 was dismissed by this Court on 20.2.2002. He filed and withdrew S.L.P. No. 12828 of 2002 on 26.7.2002. It has also been found by the executing Court that the objection sought to be raised before the executing Court under Order XX1 Rule 97 of the Code were the same which were either the subject matter of consideration in the judgement and decree dated 16.12.1997 or the objection petition filed under Section 47 of the Code which was dismissed on 3.4.2001 and upheld by this Court on 20.2.2002. It is well settled that similar objections either under one provision or the other cannot be permitted to be raised time and again. In this regard reliance may be placed on the judgement of the Supreme Court in the case of Ravinder Kaur vs. Ashok Kumar and another 2003 (8) S.C.C. 289. In that case also what was decided in the ejectment proceedings and later in the execution petition was sought to be raised again.

When the principles laid down by the Supreme Court in Ravinder Kaur’ case (supra) are applied to the facts of the present case, the alleged compromise dated 31.5.2000 has already been adjudicated upon when the judgement debtor petitioner filed objections under Section 47 of the Code and those objections were dismissed on 3.4.2001. As already observed in the preceding paras his revision petition was dismissed by this Court on 20.2.2002. The other objection with regard to the receipt dated 30.10.1986 and 5.1.1987 or the municipal record have already been adjudicated upon by the Appellate Authority in its ejectment order dated 16.12.1997 as upheld by this Court in its order dated 2.11.1999 passed in C.R. No. 832 of 1998. Infact the judgement debtor petitioner has made all efforts to put off the execution of the judgement and decree dated 16.12.1997 on one pretext or the other. The observations of the Supreme Court in Ravinder Kaur’s case (supra) shows that such a delaying tactics should not permitted to succeed as the same are wholly frivolous and vexatious. Therefore, this petition is nothing else but a frivolous piece of litigation with a malafide motive to delay the execution of the decree.

For the reasons recorded above, this petition fails and the same is dismissed with costs of Rs.10,000/-.  

 (Paras 9-10-11)

A. East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 15 – Revisional jurisdiction -- In the revisional jurisdiction conferred by the Section 15 of the Act, the court can examine the legality as also proprietary of the order passed by the concerned authority.

(Para 8)

B. East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13(2)(v) – Code of Civil Procedure, 1908(5 of 1908), Order 26 Rules 9 and 10 -- Ceased to occupy – Ex-parte Local Commissioner’s Report -- Local Commissioner was appointed and he visited the demised shop without giving notice to the opposite party – Shop found locked – He was examined in the court and cross-examined as well – Report cannot be discarded on this ground alone that no notice was issued to the opposite party – Ejectment order passed by the Rent Controller restored.

There is no embargo in the rules aforesaid to appoint a Local Commissioner without first issuing notice to the other side. Ex-parte appointment of the Local Commissioner, who may even submit his report without issuing notice to other party, is permissible under the law. All that is required in such matters is that the report of Local Commissioner would not become admissible or relied upon unless the Local Commissioner is examined in Court giving adequate opportunity to the other party to cross-examine him. In the present case, it is conceded position that Local Commissioner was examined as AW4 and was cross-examined as well. If the report of the Local Commissioner, who may visit the spot without notice to the other party, is discarded on that ground alone, the same would defeat the very purpose of appointing a Local Commissioner in the cases, as the one in hand, inasmuch as the other party, after coming to know of the visit of Local Commissioner, would only open the lock of the shop, thus, defeating the cause of its adversary.

 (Para 9)  

C. East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13(2)(iii) – Eviction -- Material alteration – Tenant  admitted opening of a door in the wall adjoining another shop – It is possible only by breaking a common wall, which would certainly impair value and utility of the building – The shop as such lose its identity being a single shop – Tenant liable to be evicted.

On the dint of the evidence led by the parties and, in particular, that once the respondent had admitted the opening of a door from the adjoining shop, in considered view of this Court, second ground seeking eviction was proved to the hilt. An opening of the door from the adjoining shop, as mentioned above, has since been admitted. That the said adjoining shop belongs to some body else, is also an admitted position. The opening of the door from an adjoining shop could only be by breaking the common wall and that would certainly result in diminishing the value of the shop beyond measures. The shop as such would lose its identity being a single shop. This kind of alteration would obviously materially impair the value and utility of the shop, thus, entailing an order of eviction on the second ground pleaded in the petition for eviction.

(Para 10)

A. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section, 2(g)(ii-a), 7 – Amended by Punjab Act No. 8 of 1995 – Scope thereof – The word “transfer” mentioned in clause (ii-a) would not mean leasing the land for a limited period -- The transfer has to be by a sale -- The words “by any other manner whatsoever” as mentioned in the clause would means analogous to a sale -- A perpetual lease or a lease for a period of 99 years, which virtually means sale, may come within the sweep of clause (ii-a), lease for a period of 10 years, would certainly not be covered by the said clause.

 (Para 7)  

B. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 7 – Civil Procedure Code, 1908, Section 11 – Res-Judicata – Dismissal of earlier two application for ejectment of the Panchayat -- Applications were not decided on merit – Principle of res-judicata, therefore not applicable.

(Para 10)

C. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 7 – Transfer of Property Act, 1882, Section 111(g) – Lessee – Title of the landlord -- Petitioner after expiry of the lease involved the Gram Panchayat in multifarious litigations, based upon contradictory stands  -- Being the Lessee, tenant cannot deny the title of their landlord – Eviction order upheld.

(Para 11)

Insurance Act, 1938 (4 of 1938), Section 39 – Government Savings Certificates Act, 1959 (46 of 1959), Section 6, 7, 8(2) – Indian Succession Act, 1925 (39 of 1925), Section 370 -- National Saving Certificates – Nominee -- Effect on succession -- Language of Section 39 of the Act is not capable of altering the course of succession under law – It is difficult to treat a nominee as being equivalent to an heir or legatee -- Though language and phraseology of Section 6 of the Act is different than the one used in Section 39 of the Insurance Act, yet, the effect of both the provisions is the same -- Any amount paid to the nominee after valid deductions becomes the estate of the deceased -- Such an estate devolves upon all persons who are entitled to succession under law, custom or testament of the deceased holder -- Nominee becoming entitled to the payment of the amount on account of national savings certificates received by him u/s 6 read with Section 7 of the Act who in turn is liable to return the amount to those, in whose favour law creates beneficial interest, subject to the provisions of sub-section (2) of Section 8 of the Act, 1959. Hindu Succession Act, 1956 (30 of 1956), Section 8, 15.

(Para 11, 13)