Supreme Court Biannual Digest 2022 - 2023 [Code Of Civil Procedure, 1908]

The rules of procedure are essentially intended to subserve the cause of justice and are not for punishment of the parties in conduct of the proceedings. (Para 26.1) Prakash Corporates v. Dee Vee Projects Ltd., 2022 LiveLaw (SC) 162 : AIR 2022 SC 946 : (2022) 5 SCC 112

Civil Trial

Fixing of the date of trial shall be in consultation with the learned advocates appearing for the parties to enable them to adjust their calendar. Once the date of trial is fixed, the trial should proceed accordingly to the extent possible, on day-to-day basis. (Para 2 (v)) Yashpal Jain v. Sushila Devi, 2023 LiveLaw (SC) 916

Trial judges of District and Taluka Courts shall as far as possible maintain the diary for ensuring that only such number of cases as can be handled on any given day for trial and complete the recording of evidence so as to avoid overcrowding of the cases and as a sequence of it would result in adjournment being sought and thereby preventing any inconvenience being caused to the stakeholders. (Para 2 (vi)) Yashpal Jain v. Sushila Devi, 2023 LiveLaw (SC) 916

Delay in Civil Trial - The statistics relating to the cases pending in each court beyond 5 years shall be forwarded by every presiding officer to the Principal District Judge once in a month who (Principal District Judge/District Judge) shall collate the same and forward it to the review committee constituted by the respective High Courts for enabling it to take further steps. (Para 2 (x)) Yashpal Jain v. Sushila Devi, 2023 LiveLaw (SC) 916

Delay in Civil Trial - The Committee so constituted by the Hon'ble Chief Justice of the respective States shall meet at least once in two months and direct such corrective measures to be taken by concerned court as deemed fit and shall also monitor the old cases (preferably which are pending for more than 05 years) constantly. (Para 2 (xii)) Yashpal Jain v. Sushila Devi, 2023 LiveLaw (SC) 916

Dominus Litus

Plaintiff is dominus litus, and they cannot be compelled to seek relief against anyone. (Para 8.16) Small Industries Development Bank of India v. Sibco Investment Pvt. Ltd., 2022 LiveLaw (SC) 7 : (2022) 3 SCC 56

Execution

Execution Proceedings - It is an old saying that the difficulties of the litigant in India begin when he has obtained a decree. The evil was noticed as far back in 1872 by the Privy Council in relation to the difficulties faced by the decree holder in execution of the decree. After more than a century, there has been no improvement and still the decree holder faces the same problem what was being faced in the past. A litigant coming to Court seeking relief is not interested in receiving a paper decree when he succeeds in establishing his case. What he primarily wants from the Court of Justice is the relief and if it is a money decree, he wants that money what he is entitled for in terms of the decree, must be satisfied by the judgment debtor at the earliest possible without fail keeping in view the reasonable restrictions/rights which are available to the judgment debtor under the provisions of the statute or the code, as the case may be. (Para 3) Griesheim GmbH v. Goyal MG Gases Pvt. Ltd., 2022 LiveLaw (SC) 95 : AIR 2022 SC 696

Procedural Defect

The procedural defect may fall within the purview of irregularity and capable of being cured, but it should not be allowed to defeat the substantive right accrued to the litigant without affording reasonable opportunity. (Para 10) Ramnath Exports Pvt. Ltd. v. Vinita Mehta, 2022 LiveLaw (SC) 564 : (2022) 7 SCC 678

While procedure is said to be the handmaiden of justice and substantial justice must prevail and the former may take the backseat, failure to follow the procedure laid down by law can result in grave miscarriage of justice to the judgment debtor and delay in the decree holder realising the fruits of the decree. (Para 1) Rajbir v. Suraj Bhan, 2022 LiveLaw (SC) 255 : 2022 (5) SCALE 321

Suit for Declaration

In a dispute with respect to determination of title, merely pointing out the lacunae in the defendant's title would not suffice. Having instituted the suit for declaration, the burden of proof rested on the shoulders of the plaintiff to reasonably establish the probability of better title, which the plaintiff in the present case, has manifestly failed to do. (Para 22) P. Kishore Kumar v. Vittal K. Patkar, 2023 LiveLaw (SC) 999

Revenue records are not documents of title. The Trial Court erred in decreeing the suit by placing on a higher probative pedestal the revenue entries. (Para 11 - 27) P. Kishore Kumar v. Vittal K. Patkar, 2023 LiveLaw (SC) 999

there is no difference between a party to a suit as a witness and a witness simpliciter - Production of documents for both a party to the suit and a witness as the case may be, at the stage of cross-examination, is permissible within law. (Para 32) Mohammed Abdul Wahid v. Nilofer, 2023 LiveLaw (SC) 1061

Section 2 (11) - 'legal representative'

Section 2 (11) - 'legal representative' - On the death of a party to the suit it is the legal representative who is/are entitled to prosecute the proceedings and, in law, represent the estate of the deceased. The legal representative who is brought on record not only includes a legatee under a Will but also an intermeddler of the property who would be entitled to sue and to be sued and/or continue to prosecute the proceedings. (Para 3) Yashpal Jain v. Sushila Devi, 2023 LiveLaw (SC) 916

Section 2(12) - “Mesne Profits”

Section 2(12) - Transfer of Property Act, 1882; Section 111(a) - Tenant while continuing in possession after the expiry of the lease liable to pay mesne profits - A tenant at sufferance is not a tenant by holding over. While a tenant at sufferance cannot be forcibly dispossessed, that does not detract from the possession of the erstwhile tenant turning unlawful on the expiry of the lease. (Para 60) Indian Oil Corporation Ltd. v. Sudera Realty Pvt. Ltd., 2022 LiveLaw (SC) 744 : AIR 2022 SC 5077

Section 9 - Courts to try all civil suits unless barred.

Section 9 - Civil Courts to determine all disputes of civil nature unless the same is barred under statute either expressly or by necessary implication and such a bar is not to be readily inferred. The provision seeking to bar jurisdiction of a Civil Court requires strict interpretation and the Court would normally lean in favour of construction which would uphold the jurisdiction of the Civil Court. (Para 43) Bank of Rajasthan Ltd. v. VCK Shares & Stock Broking Services Ltd., 2022 LiveLaw (SC) 941

Section 9 - Law on ouster of jurisdiction of civil courts - The jurisdiction of the civil courts to try suits of a civil nature is expansive and the onus to prove the ouster of the jurisdiction is on the party that asserts it. The court observed that even in cases where the jurisdiction of the civil court is barred by a statute, the test is to determine if the authority or tribunal constituted under the statute has the power to grant reliefs that the civil courts would normally grant in suits filed before them. (Para 15) Rajani v. Smita, 2022 LiveLaw (SC) 702

Section 9 - Maharashtra Housing and Area Development Act, 1976; Sections 71, 177 - The reliefs sought in the plaint are: (i) the removal of the unauthorized construction; (ii) a permanent prohibitory injunction restraining the defendants from constructing over the open site and causing 'nuisance'; and (iii) restoration of the water connection as it was prior to the construction - The reliefs claimed are beyond the scope of the Act - A suit of this nature will be maintainable before the civil court and would not be barred by Section 71 or Section 177 of the Act. (Para 16) Rajani v. Smita, 2022 LiveLaw (SC) 702

Section 9 - Recovery of Debts Due to Banks and Financial Institutions Act, 1993; Section 17, 18, 19 - Jurisdiction of a Civil Court to try a suit filed by a borrower against a Bank or Financial Institution is not ousted by virtue of the scheme of the RDB Act in relation to the proceedings for recovery of debt - There is no provision in the RDB Act by which the remedy of a civil suit by a defendant in a claim by the bank is ousted, but it is the matter of choice of that defendant. Such a defendant may file a counterclaim, or may be desirous of availing of the more strenuous procedure established under the Code, and that is a choice which he takes with the consequences thereof. (Para 45, 56) Bank of Rajasthan Ltd. v. VCK Shares & Stock Broking Services Ltd., 2022 LiveLaw (SC) 941

Section 10 - Stay of Suit

Section 10 - Application under Section 10 CPC , by its very nature, requires immediate consideration and before any other steps in the suit - If the prayer made in the application moved under Section 10 were to be granted, the trial of the subject suit is not to be proceeded with at all. (Para 26) Prakash Corporates v. Dee Vee Projects Ltd., 2022 LiveLaw (SC) 162 : AIR 2022 SC 946 : (2022) 5 SCC 112

Section 10 - Stay of Suit - By virtue of Section 10 CPC, a Court is prohibited from proceeding with trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit, of course, subject to other conditions mentioned therein. The object of the prohibition contained in Section 10 CPC is to prevent the Courts of concurrent jurisdiction from simultaneously trying two parallel suits and to avoid inconsistent findings. However, this rule of procedure is held not affecting the jurisdiction of the Court to entertain and deal with the latter suit and does not create a bar to the institution of the suit. The Courts have also consistently held that Section 10 CPC does not create a bar to the passing of interlocutory orders including those of injunction. (Para 17) State of Meghalaya v. Union of India, 2023 LiveLaw (SC) 427

Section 11 - Res Judicata

Section 11 - Res Judicata - Doctrine of res judicata is attracted not only in separate subsequent proceedings but also at the subsequent stage of the same proceedings. Moreover, a binding decision cannot lightly be ignored and even an erroneous decision remains binding on the parties to the same litigation and concerning the same issue, if rendered by a Court of competent jurisdiction. Such a binding decision cannot be ignored even on the principle of per incuriam because that principle applies to the precedents and not to the doctrine of res judicata. (Para 10) S. Ramachandra Rao v. S. Nagabhushana Rao, 2022 LiveLaw (SC) 861 : AIR 2022 SC 5317

Section 11 - Res Judicata - For res judicata to apply, the matter directly and substantially in issue in the subsequent suit must be the same matter which was directly and substantially in issue in the former suit. Further, the suit should have been decided on merits and the decision should have attained finality - Where the former suit is dismissed by the trial court for want of jurisdiction, or for default of the plaintiff's appearance, or on the ground of non-joinder or mis-joinder of parties or multifariousness, or on the ground that the suit was badly framed, or on the ground of a technical mistake, or for failure on the part of the plaintiff to produce probate or letter of administration or succession certificate when the same is required by law to entitle the plaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation, or for failure to pay additional court fee on a plaint which was undervalued, or for want of cause of action, or on the ground that it is premature and the dismissal is confirmed in appeal (if any), the decision, not being on the merits, would not be res judicata in a subsequent suit. The reason is that the first suit is not decided on merits - Conditions that must be satisfied to constitute a plea of res judicata laid down. (Para 30-31) R.M. Sundaram @ Meenakshisundaram v. Sri Kayarohanasamy and Neelayadhakshi Amman Temple, 2022 LiveLaw (SC) 612

Section 11 - Res Judicata - To succeed and establish a prayer for res judicata, the party taking the said prayer must place on record a copy of the pleadings and the judgments passed, including the appellate judgment which has attained finality. (Para 32) R.M. Sundaram @ Meenakshisundaram v. Sri Kayarohanasamy and Neelayadhakshi Amman Temple, 2022 LiveLaw (SC) 612

Section 11 - Res Judicata - When the suit was dismissed for technical reasons, which decision is not an adjudication on merits of the dispute that would operate as res judicata on the merits of the matter. (Para 32) R.M. Sundaram @ Meenakshisundaram v. Sri Kayarohanasamy and Neelayadhakshi Amman Temple, 2022 LiveLaw (SC) 612

Section 11 - The principle of constructive res judicata has no application when there was no formal adjudication between the parties after full hearing. (Para 52) Life Insurance Corporation v. Sanjeev Builders Pvt. Ltd., 2022 LiveLaw (SC) 729 : AIR 2022 SC 4256

Section 11 - Res judicata - An order closing the proceedings is not final decision of the suit within the meaning of Order 9 Rule 8 and Order 17 Rule 3 resply of the CPC - will not operate as res judiciata. (Para 55) Prem Kishore v. Brahm Prakash, 2023 LiveLaw (SC) 266

Section 11 - Res Judiciata - The general principle of res judicata under Section 11 of the CPC contain rules of conclusiveness of judgment, but for res judicata to apply, the matter directly and substantially in issue in the subsequent suit must be the same matter which was directly and substantially in issue in the former suit. Further, the suit should have been decided on merits and the decision should have attained finality. Where the former suit is dismissed by the trial court for want of jurisdiction, or for default of the plaintiff's appearance, or on the ground of non-joinder or mis-joinder of parties or multifariousness, or on the ground that the suit was badly framed, or on the ground of a technical mistake, or for failure on the part of the plaintiff to produce probate or letter of administration or succession certificate when the same is required by law to entitle the plaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation, or for failure to pay additional court fee on a plaint which was undervalued, or for want of cause of action, or on the ground that it is premature and the dismissal is confirmed in appeal (if any), the decision, not being on the merits, would not be res judicata in a subsequent suit. (Para 34) Prem Kishore v. Brahm Prakash, 2023 LiveLaw (SC) 266

Code of Civil Procedure 1908; Section 11 - Res Judicata - Guiding principles summarized. (Para 33) Prem Kishore v. Brahm Prakash, 2023 LiveLaw (SC) 266

Section 24 - General power of transfer and withdrawal

Section 24 - Given the prevailing socioeconomic paradigm in the Indian society, generally, it is the wife's convenience which must be looked at while considering transfer - In matrimonial matters, wherever Courts are called upon to consider the plea of transfer, the Courts have to take into consideration the economic soundness of both the parties, the social strata of the spouses and their behavioural pattern, their standard of life prior to the marriage and subsequent thereto and the circumstances of both the parties in eking out their livelihood and under whose protective umbrella they are seeking their sustenance to life. (Para 9) NCV Aishwarya v. AS Saravana Karthik Sha, 2022 LiveLaw (SC) 627 : AIR 2022 SC 4318

Section 24 - The cardinal principle for exercise of power under Section 24 CPC is that the ends of justice should demand the transfer of the suit, appeal or other proceeding. NCV Aishwarya v. AS Saravana Karthik Sha, 2022 LiveLaw (SC) 627 : AIR 2022 SC 4318

Section 24 - When two or more proceedings are pending in different Courts between the same parties which raise common question of fact and law, and when the decisions in the cases are interdependent, it is desirable that they should be tried together by the same Judge so as to avoid multiplicity in trial of the same issues and conflict of decisions. (Para 10-11) NCV Aishwarya v. AS Saravana Karthik Sha, 2022 LiveLaw (SC) 627 : AIR 2022 SC 4318

Section 24, 25 - The power under section 24 of the CPC can be exercised by the High Court even for inter-State transfer of a suit, appeal or other proceeding, if it is the common High Court for two or more States under Article 231 of the Constitution and both the Civil Courts (transferor and transferee) are subordinate to it - Section 25 applies to inter-State transfer of a suit, appeal or other proceeding where both States have a High Court in terms of Article 214 of the Constitution and not to a transfer where both States have a common High Court under Article 231 thereof. (Para 48) Shah Newaz Khan v. State of Nagaland, 2023 LiveLaw (SC) 146 : AIR 2023 SC 1338

Section 24 - Transfer Petition - Rejected petitioner's contention that since all his witnesses are from Siliguri (West Bengal), language could be a barrier - In a country as diverse as India, it is no doubt true that people speak different languages. There are at least 22 (twenty-two) official languages. However, Hindi being the national language, it is expected of the witnesses who would be produced by the petitioner before the MACT, Fatehgarh, U.P. to communicate and convey their version in Hindi. If the contention of the petitioner is to be accepted, it is the claimants who would be seriously prejudiced not being in a position to communicate and convey their version in Bengali. Pramod Sinha v. Suresh Singh Chauhan, 2023 LiveLaw (SC) 596

Section 25 - Power of Supreme Court to transfer suits, etc.

Section 25 - Jurisdiction under Section 25 cannot be extended to determine the question of territorial jurisdiction of the proceedings- The plea of jurisdiction or the lack of it can be prompted before the Court in which the proceedings are pending. (Para 4-5) Neilan International Co. Ltd. v. Powerica Ltd., 2022 LiveLaw (SC) 566

Section 33 - Judgment and decree

Section 33, Order XX Rule 4(2), 5; Order XLI Rule 23, 23A, 24 and 25 - Remand - High Court passed order of remand observing that the judgment of the trial court was not written as per the mandate of Section 33 and Rule 4(2) and 5 of Order XX of the Code, as the discussion and reasoning on certain aspects was not detailed and elaborate - Allowing appeal, the Supreme Court observed: This is not a case where the evidence is not adduced and on record. In fact, the first portion of the judgment of the High Court elaborately records the contention of the parties and the facts and evidence relied by the parties - First appeal restored before High Court. Arvind Kumar Jaiswal v. Devendra Prasad Jaiswal Varun, 2023 LiveLaw (SC) 112

Section 34 - Interest

Section 34 - S. 34 of the Code of Civil Procedure (CPC), award of interest is a discretionary exercise, steeped in equitable considerations. Interest is payable for different purposes such as compensatory, penal, etc. (Para 12.1) Small Industries Development Bank of India v. Sibco Investment Pvt. Ltd., 2022 LiveLaw (SC) 7 : (2022) 3 SCC 56

Section 38 - Court by which decree may be executed

Sections 38, 39 - For the effective working of Section 39 of CPC, in other words, there must be a Court which has passed a decree - When Sections 38 and 39 of the CPC are not as such applicable, the decree holder may seek to execute the decree in any Court which otherwise has jurisdiction. (Para 24) Bhagyoday Cooperative Bank Ltd. v. Ravindra Balkrishna Patel, 2022 LiveLaw (SC) 1020

Section 44A - Execution of decrees passed by Courts in reciprocating territory

Section 44A - Delhi High Court Act, 1966 - Section 5 - The expression “District Court” in Section 44A for execution of foreign decree, will be construed to be a Court holding ordinary original civil jurisdiction in terms of its pecuniary limits as being notified under Section 5(2) of the Act 1966. (Para 27) Griesheim GmbH v. Goyal MG Gases Pvt. Ltd., 2022 LiveLaw (SC) 95 : AIR 2022 SC 696

Section 44A - Delhi High Court Act, 1966 - Section 5 - The High Court of Delhi in exercise of its original jurisdiction is a competent Court to entertain a petition for executing a money decree (in excess of Rs.20 lakhs) of a foreign Court which is notified as a superior Court of reciprocating territory under Section 44A of the Code. (Para 28) Griesheim GmbH v. Goyal MG Gases Pvt. Ltd., 2022 LiveLaw (SC) 95 : AIR 2022 SC 696

Section 47 - Questions to be determined by the Court executing decree

Section 47 - Questions to be determined by the Court executing decree - Section 47 of CPC confers exclusive jurisdiction on the Executing Court to prevent unnecessary litigation and to achieve speedy disposal of the questions arising in relation to the execution, discharge or satisfaction of the decree. Jini Dhanrajgir v. Shibu Mathew, 2023 LiveLaw (SC) 450 : AIR 2023 SC 2567

Section 47 read with Order XXI - An execution proceeding works in different stages and if the judgment debtors have failed to take an objection and have allowed the preliminary stage to come to an end and the matter has moved to the next stage, the judgment debtors cannot raise the objection subsequently, and revert back to an earlier stage of the proceeding. (Para 7) Pradeep Mehra v. Harijivan J. Jethwa, 2023 LiveLaw (SC) 936

Section 47 read with Order XXI - Executing Court can only go into questions that are limited to the execution of decree and can never go behind the decree. (Para 5) Pradeep Mehra v. Harijivan J. Jethwa, 2023 LiveLaw (SC) 936

Section 47 read with Order XXI - Executing court cannot go beyond the decree. As a matter of course, an Executing Court is enjoined with the duty to give effect to the decree. Any interference, including on a question involving jurisdiction, should be undertaken very sparsely as a matter of exception. The onus lies heavily on the judgment-debtor to convince the Court that a decree is inexecutable. When an exercise is likely to involve a factual adjudication, it should better be avoided. (Para 14) Mumtaz Yarud Dowla Wakf v. Badam Balakrishna Hotel Pvt. Ltd., 2023 LiveLaw (SC) 920

Section 47 read with Order XXI - Pure civil matters take a long time to be decided, and regretfully it does not end with a decision, as execution of a decree is an entirely new phase in the long life of a civil litigation. The inordinate delay, which is universally caused throughout India in the execution of a decree, has been a cause of concern with this Court for several years. (Para 6) Pradeep Mehra v. Harijivan J. Jethwa, 2023 LiveLaw (SC) 936

Section 47 read with Order XXI - The conduct of a party assumes significance. If a party is likely to have an undue advantage, despite the availability of an opportunity to raise a plea of lack of jurisdiction at an earlier point of time, it should not be permitted to do so during the execution proceedings. In other words, a plaintiff shall not be made to suffer by the passive act of the defendant in submitting to the jurisdiction. (Para 15) Mumtaz Yarud Dowla Wakf v. Badam Balakrishna Hotel Pvt. Ltd., 2023 LiveLaw (SC) 920

Section 64 - Private alienation of property after attachment to be void

Section 64(2) and Order XXI Rule 58 - To get the benefit of sub-section (2) of Section 64 of the CPC, the objector and/or subsequent purchaser has to plead and prove that he is the bona fide purchaser, who has entered into the transaction prior to the order of attachment. (Para 4) Dokala Hari Babu v. Kotra Appa Rao, 2022 LiveLaw (SC) 342

Section 89 - Settlement of disputes outside the Court

Section 89 (1) - In the event of the party's failure to opt for ADR namely resolution of dispute as prescribed under Section 89(1) the court should frame the issues for its determination within one week preferably, in the open court. (Para 2 (iv)) Yashpal Jain v. Sushila Devi, 2023 LiveLaw (SC) 916

Section 96 - Appeal from Original Decree

One First Appeal filed by defendant against a common judgment disposing two suits - An application (CLMA) seeking permission to file a single appeal assailing the common judgment alongwith two separate decrees filed - The first appeal admitted by High Court - A decade later, the High Court without passing any order on the said CLMA, at the time of hearing of the appeal, accepted the preliminary objection regarding maintainability of single first appeal without entering into the merits of the case - Allowing appeal, the Supreme Court observed that the approach adopted by High Court is not correct, because on dismissal of the CLMA, the appellant might have had the opportunity to rectify the defect by way of filing separate appeal under Section 96 CPC challenging the same judgment with separate decree - Matter remanded to the High Court to decide the CLMA before deciding the preliminary objection of maintainability of one appeal. Ramnath Exports Pvt. Ltd. v. Vinita Mehta, 2022 LiveLaw (SC) 564 : (2022) 7 SCC 678

Section 96 - An appeal is a continuation of the proceedings of the original court. Ordinarily, First appeal involves a re­hearing on law as well as on fact as invoked by an aggrieved person. The first appeal is a valuable right of the appellant and therein all questions of fact and law are open for consideration by re­appreciating the material and evidence. The first appellate court is required to address on all the issues and decide the appeal assigning valid reasons either in support or against by re­appraisal - It must record its findings dealing all the issues, considering oral as well as documentary evidence led by the parties. (Para 8) Ramnath Exports Pvt. Ltd. v. Vinita Mehta, 2022 LiveLaw (SC) 564 : (2022) 7 SCC 678

Section 96, 105 and Order IX Rule 13 - The appellant, while challenging ex parte decree by filing an appeal, can always point out from the record of the trial court that the order passed to proceed with the suit ex parte against him was illegal - Only when the application made by a defendant under Rule 13 of Order IX of CPC is dismissed that such a defendant cannot agitate in the appeal against ex parte decree that the order directing that the suit shall proceed ex parte was illegal or incorrect - Though the appellant would not be entitled to lead evidence in appeal for making out a sufficient cause for his absence before the trial court, he can always argue on the basis of the record of the suit that either the suit summons was not served upon him or that even otherwise also, the trial court was not justified in proceeding ex parte against him. (Para 8) G.N.R. Babu @ S.N. Babu v. Dr. B.C. Muthappa, 2022 LiveLaw (SC) 748 : AIR 2022 SC 4213

Sections 96-100 - Any aggrieved party can prefer an appeal with the leave of the Court - A person who is affected by a judgment but is not a party to the suit, can prefer an appeal with the leave of the Court. The sine qua non for filing an appeal by a third party is that he must have been affected by reason of the judgment and decree which is sought to be impugned. (Para 29-31) My Palace Mutually Aided Cooperative Society v. B. Mahesh, 2022 LiveLaw (SC) 698 : 2022 (12) SCALE 230

Civil Procedure Code, 1908; Sections 96 and 100 - a first appeal and a second appeal arising out of two proceedings cannot be clubbed and disposed of by a common judgment even though the parties are essentially the same and the property in dispute is common. Seethamal v. Narayanasamy, 2023 LiveLaw (SC) 342

Section 96 - Limitation Act, 1963; Section 3, 5 - An appeal has to be filed within the stipulated period, prescribed under the law. Belated appeals can only be condoned, when sufficient reason is shown before the court for the delay. The appellant who seeks condonation of delay therefore must explain the delay of each day. It is true that the courts should not be pedantic in their approach while condoning the delay, and explanation of each day's delay should not be taken literally, but the fact remains that there must be a reasonable explanation for the delay. (Para 5) Ajay Dabra v. Pyare Ram, 2023 LiveLaw (SC) 69 : AIR 2023 SC 698 : (2023) 1 SCR 449

Section 96 and Order XLI - The court of first appeal has a duty to record its findings qua all the issues raised before it, and in cases where the High Court fails to do the same, the matter must be remanded to the same court again for fresh adjudication. (Para 20-22) Dheeraj Singh v. Greater Noida Industrial Development Authority, 2023 LiveLaw (SC) 493 : AIR 2023 SC 3110

Section 96, 149 - Limitation Act, 1963; Section 3, 5 - Being short of sufficient funds to pay court fee is not a reason to condone delay in filing appeal - In such a scenario, an appeal can be filed in terms of Section 149 CPC and thereafter the defects can be removed by paying deficit court fees. (Para 5-10) Ajay Dabra v. Pyare Ram, 2023 LiveLaw (SC) 69 : AIR 2023 SC 698 : (2023) 1 SCR 449

Section 100 - Second Appeal

Section 100 - Electricity Act, 2003; Section 125 - For determining whether a case involves substantial question of law, the test is not merely the importance of the question, but its importance to the case itself necessitating the decision of the question. The appropriate test for determining whether the question of law raised in the case is substantial would be to see whether it directly and substantially affects the rights of the parties. If it is established that the decision is contrary to law or the decision has failed to determine some material issue of law or if there is substantial error or defect in the decision of the case on merits, the court can interfere with the conclusion of the lower court or tribunal. The stakes involved in the case are immaterial as long as the impact or effect of the question of law has a bearing on the lis between the parties - In a second appeal, the appellant is entitled to point out that the order impugned is bad in law because it is de hors the pleadings, or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against the provision of law or the decision is one which no Judge acting judicially could reasonably have reached. Once the appellate court is satisfied, after hearing the appeal, that the appeal involves a substantial question of law, it has to formulate the question and direct issuance of notice to the respondent. (Para 30-31) BSES Rajdhani Power Ltd. v. Delhi Electricity Regulatory Commission, 2022 LiveLaw (SC) 857 : 2022 (15) SCALE 588

Section 100 - Second Appeal - Perversity in arriving at a factual finding gives rise to a substantial question of law, attracting intervention of the High Court under Section 100 of the CPC - There is no prohibition on entertaining a second appeal even on a question of fact provided the court is satisfied that the findings of fact recorded by the courts below stood vitiated by non -consideration of relevant evidence or by showing an erroneous approach to the matter i.e. that the findings of fact are found to be perverse. Azgar Barid v. Mazambi @ Pyaremabi, 2022 LiveLaw (SC) 193 : AIR 2022 SC 1304 : (2022) 5 SCC 334

Section 100 - Second Appeal - Question of law ought to have been framed under Section 100 of the said Code. Even if the question of law had not been framed at the stage of admission, at least before the deciding the case the said question of law ought to have been framed. (Para 22) Seethakathi Trust Madras v. Krishnaveni, 2022 LiveLaw (SC) 58 : AIR 2022 SC 558 : (2022) 3 SCC 150

Section 100 - In the State of Haryana a court in second appeal is not required to formulate a substantial question of law, as what is applicable in Haryana is Section 41 of the Punjab Courts Act, 1918 and not Section 100 of CPC - But only such decisions are to be considered in second appeal which are contrary to law or to some custom or usage having the force of law or the court below have failed to determine some material issue of law or custom or usage having the force of law - Second appeal is not a forum where court has to re-examine or re-appreciate questions of fact settled by the Trial Court and the Appellate Court. (Para 10-15) Satyender v. Saroj, 2022 LiveLaw (SC) 679 : AIR 2022 SC 4732

Section 100 - A Court sitting in second appellate jurisdiction is to frame substantial question of law at the time of admission, save and except in exceptional circumstances. Post such framing of questions the Court shall proceed to hear the parties on such questions, i.e., after giving them adequate time to meet and address them. It is only after such hearing subsequent to the framing that a second appeal shall come to be decided. (Para 27.1) Suresh Lataruji Ramteke v. Sumanbai Pandurang Petkar, 2023 LiveLaw (SC) 821 : AIR 2023 SC 4794

Section 100 - In ordinary course, the High Court in such jurisdiction does not interfere with finding of fact, however, if it does find any compelling reason to do so as regard in law, it can do but only after perusing the records of the Trial Court, on analysis of which the conclusion arrived at by such a Court is sought to be upturned. In other words, when overturning findings of fact, the Court will be required to call for the records of the Trial Court or if placed on record, peruse the same and only then question the veracity of the conclusions drawn by the Court below. (Para 27.2) Suresh Lataruji Ramteke v. Sumanbai Pandurang Petkar, 2023 LiveLaw (SC) 821 : AIR 2023 SC 4794

Section 100 - Second appeal can be entertained by the High Court only if the case involves a 'substantial question of law'. (Para 12 – 14) Appaiya v. Andimuthu @ Thangapandi, 2023 LiveLaw (SC) 811 : AIR 2023 SC 4810

Section 100 - Punjab Courts Act, 1918; Section 41 - In appeals arising out of the state of Punjab or the State of Haryana, courts are not required to frame substantial questions of law as per section 100 of CPC. (Para 8, 9) Gurbachan Singh v. Gurcharan Singh, 2023 LiveLaw (SC) 562

Section 100 - The parameters of an appeal under Section 100, CPC - Ordinarily, in a second appeal, the court must not disturb facts established by the lower court or the first appellate court. However, this rule is not an absolute one or in other words, it is not a rule set in stone - Where the court is of the view that the conclusions drawn by the court below do not have a basis in the evidence led or it is of the view that the appreciation of evidence “suffers from material irregularity” the court will be justified in interfering with such finding. (Para 14, 15) Gurbachan Singh v. Gurcharan Singh, 2023 LiveLaw (SC) 562

Section 100 - High Court cannot admit regular second appeal without framing substantial questions of law. Bhagyashree Anant Gaonkar v. Narendra@ Nagesh Bharma Holkar, 2023 LiveLaw (SC) 688

Section 114 - Review

Section 114, Order XLVII - Distinction between an erroneous decision as against an error apparent on the face of the record - An erroneous decision can be corrected by the Superior Court, however an error apparent on the face of the record can only be corrected by exercising review jurisdiction - A judgment can be open to review if there is a mistake or an error apparent on the face of the record, but an error that has to be detected by a process of reasoning, cannot be described as an error apparent on the face of the record for the Court to exercise its powers of review. (Para 26) S. Madhusudhan Reddy v. V. Narayana Reddy, 2022 LiveLaw (SC) 685 : 2022 (12) SCALE 261

Section 114; Order XLVII Rule 1 - Supreme Court Rules, 2013; Order XLVII of Part IV - An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of record - An error on the face of record must be such an error which, mere looking at the record should strike and it should not require any long-drawn process of reasoning on the points where there may conceivably be two opinions. (Para 9-15) Arun Dev Upadhyaya v. Integrated Sales Service Ltd., 2023 LiveLaw (SC) 506 : AIR 2023 SC 3845 : (2023) 8 SCC 11

Section 115 - Revision

Section 115 - Where an appealable decree has been passed in a suit, no revision should be entertained under Section 115 of the CPC against an order rejecting on merits a review of that decree. The proper remedy for the party whose application for review of an appealable decree has been rejected on merits is to file an appeal against that decree and if, in the meantime, the appeal is rendered barred by time, the time spent in diligently pursuing the review application can be condoned by the Court to which an appeal is filed. (Para 28) Rahimal Bathu v. Ashiyal Beevi, 2023 LiveLaw (SC) 829

Section 144 - Application for Restitution

Section 144 - Appeal against Division Bench direction that the State shall be at liberty to recover the excess amount paid to the original writ petitioners - Dismissed - By applying Section 144 CPC also, the amount paid pursuant to the order passed by the learned Single Judge which has been set aside by the Division Bench is required to be refunded/returned by the original writ petitioners. Mekha Ram v. State of Rajasthan, 2022 LiveLaw (SC) 324 : AIR 2022 SC 1591

Section 149 - Power to make up deficiency of court-fees

Section 149 - Court Fees Act 1870; Section 4 - Section 149 CPC acts as an exception, or even a proviso to Section 4 of Court Fees Act - In terms of Section 4, an appeal cannot be filed before a High Court without court fee, if the same is prescribed - But an appeal can be filed in terms of Section 149 CPC and thereafter the defects can be removed by paying deficit court fees. Ajay Dabra v. Pyare Ram, 2023 LiveLaw (SC) 69 : AIR 2023 SC 698 : (2023) 1 SCR 449

Section 151 - Saving of inherent powers of Court

Section 151 - Consent Decree - The Court can entertain an Application under Section 151 of the CPC for alterations/ modification of the consent decree if the same is vitiated by fraud, misrepresentation, or misunderstanding. (Para 13) Ajanta LLP v. Casio, 2022 LiveLaw (SC) 127 : (2022) 5 SCC 449

Section 151 - Order XXIII Rule 3 - Even assuming there is a mistake, a consent decree cannot be modified/ altered unless the mistake is a patent or obvious mistake. Or else, there is a danger of every consent decree being sought to be altered on the ground of mistake/ misunderstanding by a party to the consent decree. (Para 13) Ajanta LLP v. Casio, 2022 LiveLaw (SC) 127 : (2022) 5 SCC 449

Section 151 - Order XXIII Rule 3 - Consent Decree - A judgment by consent is intended to stop litigation between the parties just as much as a judgment resulting from a decision of the Court at the end of a long drawn out fight. A compromise decree creates an estoppel by judgment. A consent decree would not serve as an estoppel, where the compromise was vitiated by fraud, misrepresentation, or mistake. (Para 12) Ajanta LLP v. Casio, 2022 LiveLaw (SC) 127 : (2022) 5 SCC 449

Section 151 - Section 151 of the CPC can only be applicable if there is no alternate remedy available in accordance with the existing provisions of law - It cannot be said that the civil courts can exercise substantive jurisdiction to unsettle already decided issues. A Court having jurisdiction over the relevant subject matter has the power to decide and may come either to a right or a wrong conclusion. Even if a wrong conclusion is arrived at or an incorrect decree is passed by the jurisdictional court, the same is binding on the parties until it is set aside by an appellate court or through other remedies provided in law - Such inherent power cannot override statutory prohibitions or create remedies which are not contemplated under the Code. Section 151 cannot be invoked as an alternative to filing fresh suits, appeals, revisions, or reviews. A party cannot find solace in Section 151 to allege and rectify historic wrongs and bypass procedural safeguards inbuilt in the CPC. (Para 26-28) My Palace Mutually Aided Cooperative Society v. B. Mahesh, 2022 LiveLaw (SC) 698 : 2022 (12) SCALE 230

Section 151, Order VII Rule 10 - Recovery of Debts Due to Banks and Financial Institutions Act, 1993; Section 19, 31 - An independent suit filed by the borrower against the bank or financial institution cannot be transferred to be tried along with application under the RDB Act, as it is a matter of option of the defendant in the claim under the RDB Act - Since there is no such power, there is no question of transfer of the suit whether by consent or otherwise - Proceedings under the RDB Act will not be impeded in any manner by filing of a separate suit before the Civil Court - It is not open to a defendant, who may have taken recourse to the Civil Court, to seek a stay on the decision of the DRT awaiting the verdict of his suit before the Civil Court as it is a matter of his choice. (Para 49- 56) Bank of Rajasthan Ltd. v. VCK Shares & Stock Broking Services Ltd., 2022 LiveLaw (SC) 941

Section 153A - Power to amend decree or order where appeal is summarily dismissed

Section 153A - Order XLI Rule 11 - An application before the Trial Court for correction of a decree could be maintained only if the appeal was to be decided by the High Court under Rule 11, Order 41 of the Code of Civil Procedure. B. Boraiah v. M.G. Thirthaprasad, 2022 LiveLaw (SC) 160

Section 153A - The Trial Court has no jurisdiction to entertain the application for correction of decree passed by the High Court in the first appeal and cross objection - In such a case, the application for correction could be maintained only before the High Court where the decree has been finally confirmed. B. Boraiah v. M.G. Thirthaprasad, 2022 LiveLaw (SC) 160

Order 1 Rule 9 - Misjoinder and nonjoinder

Code of Civil Procedure, 1973; Order I Rule 9 - A "necessary party" is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court. It has been held that if a "necessary party" is not impleaded, the suit itself is liable to be dismissed - For being a necessary party, the twin test has to be satisfied. The first one is that there must be a right to some relief against such party in respect of the controversies involved in the proceedings. The second one is that no effective decree can be passed in the absence of such a party. (Para 17-20) Moreshar Yadaorao Mahajan v. Vyankatesh Sitaram Bhedi, 2022 LiveLaw (SC) 802 : AIR 2022 SC 4710

Order 1 Rule 10 - Court may strike out or add parties

Order I Rule 10 - Plaintiffs are the domius litis - Unless the court suo motu directs to join any other person not party to the suit for effective decree and/or for proper adjudication as per Order 1 Rule 10 CPC, nobody can be permitted to be impleaded as defendants against the wish of the plaintiffs - In case the counter-claim is allowed, it will not be open for the plaintiffs to contend that no decree in the counter-claim be passed in absence of the subsequent purchasers - Non-impleading the subsequent purchasers as defendants on the objection raised by the plaintiffs shall be at the risk of the plaintiffs. (Para 5 - 7) Sudhamayee Pattnaik v. Bibhu Prasad Sahoo, 2022 LiveLaw (SC) 773 : AIR 2022 SC 4304

Order I Rule 10 - The principle that the plaintiffs is the dominus litus shall be applicable only in a case where parties sought to be added as defendants are necessary and / or proper parties. Plaintiffs cannot be permitted to join any party as a defendant who may not be necessary and / or proper parties at all on the ground that the plaintiffs is the dominus litus. (Para 9) Asian Hotels (North) Ltd. v. Alok Kumar Lodha, 2022 LiveLaw (SC) 585 : AIR 2022 SC 3322 : (2022) 8 SCC 145

Order I Rule 3 - Non-joining of necessary parties is fatal. (Para 18) B.R. Patil v. Tulsa Y. Sawkar, 2022 LiveLaw (SC) 165 : 2022 (4) SCALE 122

Order 2 Rule 2 - Suit to include the whole claim

Order II Rule 2 - Constructive Res Judicata - The party claiming and raising the plea of constructive res judicata/Order II Rule 2 of the Code must place on record in evidence the pleadings of the previous suit and establish the identity of the cause of actions, which cannot be established in the absence of record of judgment and decree which is pleaded to operate as estoppel. (Para 33) R.M. Sundaram @ Meenakshisundaram v. Sri Kayarohanasamy and Neelayadhakshi Amman Temple, 2022 LiveLaw (SC) 612

Order II Rule 2 - Order II Rule 2 of the CPC cannot apply to an amendment which is sought on an existing suit - It applies only for a subsequent suit. (Para 49-50, 70) Life Insurance Corporation v. Sanjeev Builders Pvt. Ltd., 2022 LiveLaw (SC) 729 : AIR 2022 SC 4256

Civil Procedure Code, 1908; Order II Rule 2 - A suit for possession and suit for claiming damages for use and occupation of the property are two different causes of action. Hence, second suit filed claiming damages for use and occupation of the premises was maintainable after a suit for possession. (Para 17) Bharat Petroleum Corporation Ltd v. ATM Constructions Pvt Ltd., 2023 LiveLaw (SC) 1031

Order 2 Rule 3 - Joinder of causes of action

Order II Rule 2, 3 - Joinder of causes of action - Order II Rule 3 does not compel a plaintiff to join two or more causes of action in a single suit. The failure to join together all claims arising from a cause of action will be visited with consequences proclaimed in Order II Rule 2 - The Code of Civil Procedure indeed permits a plaintiff to join causes of action but it does not compel a plaintiff to do so. (Para 16, 17) B.R. Patil v. Tulsa Y. Sawkar, 2022 LiveLaw (SC) 165 : 2022 (4) SCALE 122

Order 5 Rule 2 - Copy of plaint annexed to summons

Order V Rule 2 - Service contemplated in terms of Order V Rule 2 of the Code would imply service of summons along with the copy of the plaint. National Insurance Company Ltd. v. National Building Construction India Ltd; 2023 LiveLaw (SC) 800

Order V Rule 2 - All courts at district and taluka levels shall ensure proper execution of the summons and in a time bound manner as prescribed under Order V Rule (2) of CPC and same shall be monitored by Principal District Judges and after collating the statistics they shall forward the same to be placed before the committee constituted by the High Court for its consideration and monitoring. (Para 2 (i)) Yashpal Jain v. Sushila Devi, 2023 LiveLaw (SC) 916

Order 6 Rule 4 - Particulars to be given where necessary

Order VI Rule 4, Order XXI Rules 97 to 101 - Hyderabad Jagir Abolition Regulation, 1358 - The Supreme Court has upheld the decision of the Telangana High Court, upholding the title of successors of Ryot Cultivators over the Paigah lands in Hydernagar, Telangana, who had obtained title to the said lands from their predecessors. The court dismissed the claim of title raised by rival claimants/appellants, including M/s Trinity Infraventures Ltd, on the ground that it was a Mathruka property of the late Nawab Khurshid Jah, who was granted a Paigah by the Nizam of Hyderabad. The Apex Court further ruled that no party to a suit for partition, even by way of compromise, can acquire any title to any specific item of property or any particular portion of a specific property, if such a compromise is struck only with a few parties to the suit. Trinity Infraventures Ltd. v. M.S. Murthy, 2023 LiveLaw (SC) 488

Order 6 Rule 17 - Amendment of Pleadings

Order VI Rule 17 - All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side - The prayer for amendment is to be allowed (i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and (ii) to avoid multiplicity of proceedings, provided (a) the amendment does not result in injustice to the other side, (b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and (c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations) - A prayer for amendment is generally required to be allowed unless (i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration, (ii) the amendment changes the nature of the suit, (iii) the prayer for amendment is malafide, or (iv) by the amendment, the other side loses a valid defence - In dealing with a prayer for amendment of pleadings, the court should avoid a hyper technical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs. (Para 70) Life Insurance Corporation v. Sanjeev Builders Pvt. Ltd., 2022 LiveLaw (SC) 729 : AIR 2022 SC 4256

Order VI Rule 17 - Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision. (Para 70) Life Insurance Corporation v. Sanjeev Builders Pvt. Ltd., 2022 LiveLaw (SC) 729 : AIR 2022 SC 4256

Order VI Rule 17 - If, by permitting plaintiffs to amend the plaint including a prayer clause nature of the suit is likely to be changed, in that case, the Court would not be justified in allowing the amendment. It would also result in misjoinder of causes of action. (Para 8) Asian Hotels (North) Ltd. v. Alok Kumar Lodha, 2022 LiveLaw (SC) 585 : AIR 2022 SC 3322 : (2022) 8 SCC 145

Order VI Rule 17 - Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed. - Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation - Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint - Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed - Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. (Para 70) Life Insurance Corporation v. Sanjeev Builders Pvt. Ltd., 2022 LiveLaw (SC) 729 : AIR 2022 SC 4256

Code of Civil Procedure 1908; Order VI Rule 17 - In dealing with prayers for amendment of the pleadings the Courts should avoid hyper technical approach. But at the same time, we should keep reminded of the position that the same cannot be granted on the mere request through an application for amendment of the written statement, especially at the appellate stage. (Para 14) Shivashankara v. H.P. Vedavyasa Char, 2023 LiveLaw (SC) 261

Order VI Rule 17 - Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings. (Para 38) Ganesh Prasad v. Rajeshwar Prasad, 2023 LiveLaw (SC) 189

Order 7 Rule 10 - Return of Plaint

Section 151, Order VII Rule 10 - Recovery of Debts Due to Banks and Financial Institutions Act, 1993; Section 19, 31 - An independent suit filed by the borrower against the bank or financial institution cannot be transferred to be tried along with application under the RDB Act, as it is a matter of option of the defendant in the claim under the RDB Act - Since there is no such power, there is no question of transfer of the suit whether by consent or otherwise - Proceedings under the RDB Act will not be impeded in any manner by filing of a separate suit before the Civil Court - It is not open to a defendant, who may have taken recourse to the Civil Court, to seek a stay on the decision of the DRT awaiting the verdict of his suit before the Civil Court as it is a matter of his choice. (Para 49- 56) Bank of Rajasthan Ltd. v. VCK Shares & Stock Broking Services Ltd., 2022 LiveLaw (SC) 941

Order 7 Rule 11 - Rejection of Plaint

Order VII Rule 11 - A mere clever drafting would not permit the plaintiff to make the suit maintainable which otherwise would not be maintainable and/or barred by law. It has been consistently held by this Court that if clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage. (Para 10) Sree Surya Developers and Promoters v. N. Sailesh Prasad, 2022 LiveLaw (SC) 143 : AIR 2022 SC 1031 : (2022) 5 SCC 736

Order VII Rule 11 - At the stage of deciding the application under Order VII Rule 11 of CPC only the averments and allegations in the application/plaint are to be considered and not the written 37 statement and/or reply to the application and/or the defence. (Para 12) Swadesh Kumar Agarwal v. Dinesh Kumar Agarwal, 2022 LiveLaw (SC) 454 : AIR 2022 SC 2193 : (2022) 10 SCC 235

Order VII Rule 11 - Averments in the plaint alone are to be examined while considering an application for rejection of plaint - No other extraneous factor can be taken into consideration. H.S. Deekshit v. Metropoli Overseas Ltd., 2022 LiveLaw (SC) 703

Order VII Rule 11 - M.P. Land Revenue Code, 1959; Sections 250, 257 - Appeal against High Court which allowed application filed by defendants seeking rejection of plaint on the ground that the suit before the Civil Court would be barred in view of Section 257 of the M.P. Land Revenue Code, 1959 - Allowed - High Court did not appreciate the fact that the plaintiff had earlier approached the Revenue Authority / Tehsildar where he was nonsuited on the ground that Revenue Authority / Tehsildar had no jurisdiction to decide the dispute with respect to title to the suit property - Defendants cannot be permitted to take two contradictory stands before two different authorities/courts. Premlata @ Sunita v. Naseeb Bee, 2022 LiveLaw (SC) 317 : AIR 2022 SC 1560 : (2022) 6 SCC 585

Order VII Rule 11 - Order VII Rule 11 does not provide that the court is to discharge its duty of rejecting the plaint only on an application - The power under Order VII Rule 11 is available to the court to be exercised suo motu - It would take a clear case where the court is satisfied. The Court has to hear the plaintiff before it invokes its power besides giving reasons under Order VII Rule 12. (Para 68) Patil AutomationPvt. Ltd. v. Rakheja Engineers Private Ltd., 2022 LiveLaw (SC) 678 : AIR 2022 SC 3848 : (2022) 10 SCC 1

Order VII Rule 11 - Order XXIII Rule 3A - At the stage of deciding the application under Order VII Rule 11 CPC, the only thing which was required to be considered is whether the suit would be maintainable or not and that the suit challenging the Compromise Decree would be maintainable or not in view of Order XXIII Rule 3A CPC - Court is not required to consider on merits the validity of the Compromise Decree. (Para 6) Sree Surya Developers and Promoters v. N. Sailesh Prasad, 2022 LiveLaw SC 143 : AIR 2022 SC 1031 : (2022) 5 SCC 736

Order VII Rule 11 - Rejection of Plaint - While considering an application under Order VII Rule 11 CPC, the Court has to go through the entire plaint averments and cannot reject the plaint by reading only few lines/passages and ignoring the other relevant parts of the plaint - Only in a case where on the face of it, it is seen that the suit is barred by limitation, then and then only a plaint can be rejected - The plaint cannot be rejected partially. (Para 7, 7.1, 7.4) Biswanath Banik v. Sulanga Bose, 2022 LiveLaw (SC) 280 : AIR 2022 SC 1519 : (2022) 7 SCC 731

Order VII Rule 11 - Rejection of Plaint - The case on behalf of the petitioner is that the plaintiff is not entitled to any relief in the suit. The aforesaid cannot be a ground to reject the plaint at the threshold in exercise of powers under Order 7, Rule 11 CPC. Gurdev Singh v. Harvinder Singh, 2022 LiveLaw (SC) 963

Order VII Rule 11 - Suit seeking declaration that the cheque issued in the name of the appellant was a security and the appellant had no right to encash it - In essence, the suit attempts to frustrate the possibility of the appellant initiating action under the provision of the NI Act for dishonour of cheque - Such reliefs are barred by law - Revisional court was just in allowing application under Order VII Rule 11 seeking rejection of plaint. Frost International Ltd. v. Milan Developers & Builders, 2022 LiveLaw (SC) 340 : (2022) 8 SCC 633

Order VII Rule 11 - Suit seeking declaration that the cheque issued in the name of the appellant was a security and the appellant had no right to encash it - In essence, the suit attempts to frustrate the possibility of the appellant initiating action under the provision of the NI Act for dishonour of cheque - Such reliefs are barred by law - Revisional court was just in allowing application under Order VII Rule 11 seeking rejection of plaint. Frost International Ltd. v. Milan Developers & Builders, 2022 LiveLaw (SC) 340 : (2022) 8 SCC 633

Order VII Rule 11 - A mere clever drafting would not permit the plaintiff to make the suit maintainable which otherwise would not be maintainable and/or barred by law. It has been consistently held by this Court that if clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage. (Para 10) Sree Surya Developers and Promoters v. N. Sailesh Prasad, 2022 LiveLaw (SC) 143 : AIR 2022 SC 1031 : (2022) 5 SCC 736

Order VII Rule 11 - At the stage of deciding the application under Order VII Rule 11 CPC, the only thing which was required to be considered is whether the suit would be maintainable or not and that the suit challenging the Compromise Decree would be maintainable or not in view of Order XXIII Rule 3A CPC - Court is not required to consider on merits the validity of the Compromise Decree. (Para 6) Sree Surya Developers and Promoters v. N. Sailesh Prasad, 2022 LiveLaw (SC) 143 : AIR 2022 SC 1031 : (2022) 5 SCC 736

Order VII Rule 11 - A plaint which falls within the teeth of the conditions laid down under Rule 11 of Order VII CPC is liable to be rejected at the threshold for which the plaint allegations alone are required to be considered and nothing else. (Para 12) ESSEMM Logistics v. DARCL Logistics Ltd; 2023 LiveLaw (SC) 378 : AIR 2023 SC 2140

Order VII Rule 11 - For dealing with an application under Rule 11 of Order VII of CPC, only the averments made in the plaint and the documents produced along with the plaint are required to be seen. The defence of the defendants cannot be even looked into. When the ground pleaded for rejection of the plaint is the absence of cause of action, the Court has to examine the plaint and see whether any cause of action has been disclosed in the plaint - Merely because there were some inconsistent averments in the plaint, that was not sufficient to come to a conclusion that the cause of action was not disclosed in the plaint. The question was whether the plaint discloses the cause of action. (Para 6-9) G. Nagaraj v. B.P. Mruthunjayanna, 2023 LiveLaw (SC) 311

Order VII Rule 11 - Rejection of Plaint - Plaint cannot be rejected in part. (Para 11) Geetha v. Nanjundaswamy, 2023 LiveLaw (SC) 940

Order VII Rule 11 - Rejection of Plaint - the true test is first to read the plaint meaningfully and as a whole, taking it to be true. Upon such reading, if the plaint discloses a cause of action, then the application under Order VII Rule 11 of the CPC must fail. To put it negatively, where it does not disclose a cause of action, the plaint shall be rejected. (Para 7) Geetha v. Nanjundaswamy, 2023 LiveLaw (SC) 940

Order VII Rule 11 - Rejection of Plaint - The High Court committed an error by examining the merits of the matter. It pre-judged the truth, legality and validity of the sale deed under which the Defendants claim title. The approach adopted by the High Court is incorrect and contrary to the well-entrenched principles of considering an application under Order VII Rule 11, CPC. (Para 10) Geetha v. Nanjundaswamy, 2023 LiveLaw (SC) 940

Order VII Rule 11 - Rejection of Plaint and Res judicata - As far as scope of Rule 11 of Order VII of CPC is concerned, the Court can look into only the averments made in the plaint and at the highest, documents produced along with the plaint. The defence of a defendant and documents relied upon by him cannot be looked into while deciding such application. Hence, the issue of res judicata could not have been decided on an application under Rule 11 of Order VII of CPC. The reason is that the adjudication on the issue involves consideration of the pleadings in the earlier suit, the judgment of the Trial Court and the judgment of the Appellate Courts. (Para 5 & 6) Keshav Sood v. Kirti Pradeep Sood, 2023 LiveLaw (SC) 799

Order VII Rule 11 - Rejection of Plaint - While deciding the application under Order VII Rule XI, mainly the averments in the plaint only are required to be considered and not the averments in the written statement - Plaint is ought to be rejected when it is vexatious, illusory cause of action and barred by limitation and it is a clear case of clever drafting. (Para 5-8) Ramisetty Venkatanna v. Nasyam Jamal Saheb, 2023 LiveLaw (SC) 372

Order VII Rule 11 - Rejection of Plaint - No amount of evidence or merits of the controversy can be examined at the stage of decision of the application under Order VII Rule 11 C.P.C. (Para 26) Eldeco Housing and Industries Ltd. v. Ashok Vidyarthi, 2023 LiveLaw (SC) 1033

Order VII Rule 11 - Whether an appropriate prayer should have sought, is a matter ultimately to be decided in the suit and not an issue to be considered while deciding the application under Order VII Rule 11 of CPC. (Para 5) Sajjan Singh v. Jasvir Kaur, 2023 LiveLaw (SC) 517

Order VII Rule 11, Order XII Rule 6 - Rejection of Election Petition - Judgement on Admissions - A plain look at the election petition reveals that apart from allegations pertaining to non-disclosure of criminal cases pending against the appellant, or cases where he was convicted, other averments and allegations have been made regarding non-compliance with stipulations regarding information dissemination and the manner of dissemination through publication in newspapers, the font size, the concerned newspapers' reach amongst the populace, etc. The alleged noncompliance with statutory and Election Commission mandated regulations, and their legal effect, cannot be examined in what are essentially summary proceedings under Order VII Rule 11, CPC, or even under Order XII Rule 6, CPC. Even if the allegations regarding non-disclosure of cases where the appellant has been arrayed as an accused, are ultimately true, the effect of such allegations (in the context of provisions of law and the non-disclosure of all other particulars mandated by the Election Symbols orders) has to be considered after a full trial. The admission of certain facts (and not all) by the election petitioner cannot be sufficient for the court to reject the petition, wholly. Even in respect of the undeniable nature of the judicial record, the effect of its content is wholly inadequate to draw a decree in part. (Para 26) Bhim Rao Baswanth Rao Patil v. K. Madan Mohan Rao, 2023 LiveLaw (SC) 563 : AIR 2023 SC 3574

Order 7 Rule 14 - Production of documents

Order VII Rule 14(4), Order VIII Rule 1A(4)(a) and Order XIII Rule 1(3), all three of which, while dealing with the production of documents, by the plaintiff, defendant and in general, respectively, exempt documents to be produced for the limited purpose of cross-examination or jogging the memory of the witness. (Para 31) Mohammed Abdul Wahid v. Nilofer, 2023 LiveLaw (SC) 1061

Order VII Rule 14(4), Order VIII Rule 1A(4)(a) and Order XIII Rule 1(3) - Documents can be produced during cross-examination in civil trial to confront party to suit or witness. Save and except the cross-examination part of a civil suit, at no other point shall such confrontation be allowed, without such document having accompanied the plaint or written statement filed before the court. (Para 31) Mohammed Abdul Wahid v. Nilofer, 2023 LiveLaw (SC) 1061

Order 8 Rule 1 - Written Statement

Order VIII Rule 1 - The time limit for filing of the written statement is not mandatory - Delay in filing of the written statement could very well be compensated with costs. (Para 3-4) Bharat Kalra v. Raj Kishan Chabra, 2022 LiveLaw (SC) 465

Order VIII Rule 1 proviso and Order V Rule 1(1) second proviso - Time limit for filing written statement not mandatory when the suit was instituted before the normal Civil Court and transferred to a Commercial Court after the expiry of 120 days. Raj Process Equipments and Systems v. Honest Derivatives Pvt. Ltd., 2022 LiveLaw (SC) 928

Section VIII Rule 1 - All courts at District and Taluka level shall ensure that written statement is filed within the prescribed limit namely as prescribed under Order VIII Rule 1 and preferably within 30 days and to assign reasons in writing as to why the time limit is being extended beyond 30 days as indicated under proviso to sub-Rule (1) of Order VIII of CPC. (Para 2 (ii)) Yashpal Jain v. Sushila Devi, 2023 LiveLaw (SC) 916

Order 8 Rule 1A - Duty of Defendent to produce Documents upon which Relief is claimed or Relief upon by him

Order VIII Rule 1A (3) - To deprive a party to the suit not to file documents even if there is some delay will lead to denial of justice - Trial Court should have imposed some costs rather than to decline the production of the documents itself - Rules of procedure are hand-maid of justice. Levaku Pedda Reddamma v. Gottumukkala Venkata Subbamma, 2022 LiveLaw (SC) 533

Order 8 Rule 6A - Counter-claim by Defendant

Order VIII Rule 6A - A counter claim can be set up only "against the claim of the plaintiffs" - Since there was no claim of the plaintiffs regarding the property, the defendants were barred to raise any counter claim on these properties as it has nothing to do with the plaintiffs - A counter claim can be made by the defendant, even on a separate or independent cause of action. (Para 16) Satyender v. Saroj, 2022 LiveLaw (SC) 679 : AIR 2022 SC 4732

Order VIII Rule 6A CPC - Counter-claim in question could not have been removed out of consideration merely because it was presented after a long time since after filing of the written statement - No bar for taking the belatedly filed counter-claim on record, which was indeed filed before framing of issues. (Para 13-14) Mahesh Govindji Trivedi v. Bakul Maganlal Vyas, 2022 LiveLaw (SC) 836

Order VIII Rule 6A - An inter-se dispute on the validity of the sale deed executed between the defendants in respect of the suit land, cannot be considered in the suit for possession instituted by the plaintiff on the basis of a registered sale deed executed in its favour, as it would amount to adjudication of a right or a claim by way of counter-claim by one defendant against his co-defendant, which cannot be permitted by virtue of Order VIII Rule 6A of CPC. Damodhar Narayan Sawale v. Shri Tejrao Bajirao Mhaske, 2023 LiveLaw (SC) 404

Order VIII Rule 6–A (4) - A counter-claim is a virtually a plaint and an independent suit. (Para 12) ESSEMM Logistics v. DARCL Logistics Ltd; 2023 LiveLaw (SC) 378 : AIR 2023 SC 2140

Order 9 - Appearance of Parties and Consequence of non-Appearance

Order IX - When the defendant counsel had withdrawn his Vakalatnama, in normal course, the Trial Court ought to have issued notice to the defendants to engage another counsel. (Para 21) Y.P. Lele v. Maharashtra State Electricity Distribution Company Ltd., 2023 LiveLaw (SC) 653 : AIR 2023 SC 3832

Order 9 Rule 9 - Decree against plaintiff by default bars fresh suit.

Order IX Rule 9 - If the right of redemption is not extinguished, the provision like Order IX Rule 9 of the CPC will not debar the mortgagor from filing a second suit because as in a partition suit, the cause of action in a redemption suit is a recurring one. The cause of action in each successive action, until the right of redemption is extinguished or a suit for redemption is time barred, is a different one. (Para 61, 62) Ganesh Prasad v. Rajeshwar Prasad, 2023 LiveLaw (SC) 189

Order 9 Rule 9 - It was not the intention of the Legislature to bar the subsequent suits between the parties and the same was evident by the qualifying words, “same cause of action”. Therefore, everything depends upon the cause of action and in case the subsequent cause of action arose from a totally different bunch of facts, such suit cannot be axed by taking shelter to the provision of Order IX Rule 9 of CPC. (Para 52) Ganesh Prasad v. Rajeshwar Prasad, 2023 LiveLaw (SC) 189

Order 9 Rule 13 - Setting aside decrees ex parte

Order IX Rule 13 - Appeal against judgment of High Court that affirmed the Trial Court order setting aside the ex parte decree but held that the defendants cannot be permitted to file their written statement - Allowed - It should have been left to the Trial Court to consider the prayer of defendants whether to allow them to file written statement or not. Sudhir Ranjan Patra v Himansu Sekhar Srichandan, 2022 LiveLaw (SC) 492 : AIR 2022 SC 2881

Order IX Rule 13 - On setting aside the ex­parte judgment and decree, though the defendants who had not filed the written statement, can be permitted to participate in the suit and cross­examine the witnesses. (Para 3.1) Nanda Dulal Pradhan v. Dibakar Pradhan, 2022 LiveLaw (SC) 579

Order IX Rule 13 - When an ex­parte decree is set aside and the suit is restored to file, the defendants cannot be relegated to the position prior to the date of hearing of the suit when he was placed ex­parte. He would be debarred from filing any written statement in the suit, but then he can participate in the hearing of the suit inasmuch cross-examine the witness of the plaintiff and address arguments. (Para 6) Sudhir Ranjan Patra v Himansu Sekhar Srichandan, 2022 LiveLaw (SC) 492 : AIR 2022 SC 2881

Order IX Rule 13 and Section 92 (2) - Ex-parte decree - As against the ex-parte decree, a defendant has three remedies available to him. First, is by way of filing an application under Order IX Rule 13 CPC seeking for setting aside ex-parte decree; the second, is by way of filing an appeal against the ex-parte decree under Section 96(2) of the CPC and the third, is by way of review before the same court against the ex-parte decree. (Para 12) Koushik Mutually Aided Cooperative Housing Society v. Ameena Begum, 2023 LiveLaw (SC) 1056

Order IX Rule 13 and Section 92 (2) - Ex-parte decree - The filing of an application under Order IX Rule 13 CPC as well as the filing of appeal under Section 96(2) of the CPC against the ex-parte decree are concurrent remedies available to a defendant. However, once the appeal preferred by the defendant against the ex-parte decree is dismissed, except when it is withdrawn, the remedy under Order IX Rule 13 CPC cannot be pursued. Conversely, if an application filed under Order IX Rule 13 CPC is rejected, an appeal as against the ex-parte decree can be preferred and continued under Section 96(2) of the CPC. Thus, an appeal against an ex-parte decree even after the dismissal of an application under Order IX Rule 13 CPC is maintainable. (Para 13) Koushik Mutually Aided Cooperative Housing Society v. Ameena Begum, 2023 LiveLaw (SC) 1056

Order IX Rule 13 and Order XLIII Rule 1(d) - Ex-parte decree - Against the order passed under Order IX Rule 13 CPC rejecting an application for seeking setting aside the decree passed exparte, an appeal is provided. When an application is filed seeking condonation of delay for seeking setting aside an ex-parte decree and the same is dismissed and consequently, the petition is also dismissed, the appeal under Order XLIII Rule 1(d) CPC is maintainable. Thus, an appeal only against the refusal to set aside the ex-parte decree is maintainable whereas if an order allowing such an application is passed, the same is not appealable. (Para 15) Koushik Mutually Aided Cooperative Housing Society v. Ameena Begum, 2023 LiveLaw (SC) 1056

Order IX Rule 13, Order XLIII Rule 1 and Section 115 - Ex-parte decree - Appeal from orders and Revision – When an application or petition filed under Order IX Rule 13 CPC is dismissed, the defendant can avail a remedy by preferring an appeal in terms of Order XLIII Rule 1 CPC. Thus, Civil Revision Petition under Section 115 of the CPC would not arise when an application/petition under Order IX Rule 13 CPC is dismissed. Thus, when an alternative and effective appellate remedy is available to a defendant, against an ex-parte decree, it would not be appropriate for the defendant to resort to filing of revision under Section 115 of the CPC challenging the order refusing to set aside the order of setting the defendant ex-parte. In view of the appellate remedy under Order XLIII Rule 1(d) CPC being available, revision under Section 115 of the CPC filed in the instant case was not maintainable. (Para 16) Koushik Mutually Aided Cooperative Housing Society v. Ameena Begum, 2023 LiveLaw (SC) 1056

Order 10 - Examination of Parties by the Court

Order X and Section 89 (1) - All courts at Districts and Talukas shall ensure after the pleadings are complete, the parties should be called upon to appear on the day fixed as indicated in Order X and record the admissions and denials and the court shall direct the parties to the suit to opt for either mode of the settlement outside the court as specified in sub-Section (1) of Section 89 and at the option of the parties shall fix the date of appearance before such forum or authority and in the event of the parties opting to any one of the modes of settlement directions be issued to appear on the date, time and venue fixed and the parties shall so appear before such authority/forum without any further notice at such designated place and time and it shall also be made clear in the reference order that trial is fixed beyond the period of two months making it clear that in the event of ADR not being fruitful, the trial would commence on the next day so fixed and would proceed on day-to-day basis. (Para 2 (iii)) Yashpal Jain v. Sushila Devi, 2023 LiveLaw (SC) 916

Order 11 - Discovery and Inspection, Admissions

Order XI and XII - The counsels representing the parties may be enlightened of the provisions of Order XI and Order XII so as to narrow down the scope of dispute and it would be also the onerous responsibility of the Bar Associations and Bar Councils to have periodical refresher courses and preferably by virtual mode. (Para 2 (vii)) Yashpal Jain v. Sushila Devi, 2023 LiveLaw (SC) 916

Order 12 Rule 6 - Judgment on Admissions

Order XII Rule 6 - The power to pass judgment on admissions is discretionary and cannot be claimed as a matter of right - The said power should be only exercised when specific, clear and categorical admission of facts and documents are on record, otherwise the Court can refuse to invoke it. (Para 16-18) Karan Kapoor v. Madhuri Kumar, 2022 LiveLaw (SC) 567 : (2022) 10 SCC 496

Order 14 Rule 2 - Court to pronounce judgment on all issues

Order XIV Rule 2 - If the determination of the issue of limitation is not a pure question of law, it cannot be decided as preliminary issue. (Para 15) Mongia Realty and Buildwell Pvt. Ltd. v. Manik Sethi, 2022 LiveLaw (SC) 148 : 2022 (3) SCALE 270

Order XIV Rule 2 - The plea of res judicata in appropriate cases may be determined as preliminary issue when it is neither a disputed question of fact nor a mixed question of law and fact - Preliminary issues can be those where no evidence is required and on the basis of reading of the plaint or the applicable law, if the jurisdiction of the Court or the bar to the suit is made out, the Court may decide such issues with the sole objective for the expeditious decision. (Para 20, 30) Sathyanath v. Sarojamani, 2022 LiveLaw (SC) 458 : AIR 2022 SC 2242 : (2022) 7 SCC 644

Order XIV Rule 2 - To avoid the possibility of remanding back the matter after the decision on the preliminary issues, it is mandated for the trial court under Order XIV Rule 2 and Order XX Rule 5, and for the first appellate court in terms of Order XLI Rules 24 and 25 to record findings on all the issues. (Para 33) Sathyanath v. Sarojamani, 2022 LiveLaw (SC) 458 : AIR 2022 SC 2242 : (2022) 7 SCC 644

Order XIV, Rule 2(2)(b) - Issue of limitation can be framed and determined as a preliminary issue in a case where it can be decided on admitted facts - Though limitation is a mixed question of law and facts it will shed the said character and would get confined to one of question of law when the foundational fact(s), determining the starting point of limitation is vividly and specifically made in the plaint averment - Tthe provisions under Order XIV Rule 2(1) and Rule 2(2)(b) permit to deal with and dispose of a suit in accordance with the decision on the preliminary issue. (Para 18, 26) Sukhbiri Devi v. Union of India, 2022 LiveLaw (SC) 810 : AIR 2022 SC 5058

Order 15 Rule 5 - Striking off Defence on failure to deposit admitted Rent^[1]

Order XV Rule 5 - As per these provisions, in a suit by a lessor for eviction of a lessee after the determination of lease and for recovery of rent or compensation for use and occupation, the defendant is under the obligation: (1) to deposit the entire amount admitted by him to be due together with interest at the rate of 9% per annum on or before the first hearing of the suit; and (2) to regularly deposit the monthly amount due within a week of its accrual throughout the pendency of the suit. The consequence of default in making either of these deposits is that the Court may strike off his defence. The expression 'first hearing' means the date for filing written statement or the date for hearing mentioned in the summons; and in case of multiple dates, the last of them. The expression 'monthly amount due' means the amount due every month, whether as rent or damages for use and occupation at the admitted rate of rent after making no other deduction except taxes, if paid to the local authority on lessor's account. It is, however, expected that before making an order striking off defence, the Court would consider the representation of the defendant, if made within 10 days of the first hearing or within 10 days of the expiry of one week from the date of accrual of monthly amount. (Para 9.1) Asha Rani Gupta v. Sir Vineet Kumar, 2022 LiveLaw (SC) 607

Order XV Rule 5 - it cannot be laid down as a general proposition that by merely denying the title of plaintiff or relationship of landlord- tenant/lessor-lessee, a defendant of the suit of the present nature could enjoy the property during the pendency of the suit without depositing the amount of rent/damages. (Para 14) Asha Rani Gupta v. Sir Vineet Kumar, 2022 LiveLaw (SC) 607

Order 17 Rule 1 - Adjournment

Order XVII Rule 1 - The trial courts shall scrupulously, meticulously and without fail comply with the provisions of Rule 1 of Order XVII and once the trial has commenced it shall be proceeded from day to day as contemplated under the proviso to Rule (2). (Para 2 (viii)) Yashpal Jain v. Sushila Devi, 2023 LiveLaw (SC) 916

Order XVII Rule 1 - Costs of Adjournment - The courts shall give meaningful effect to the provisions for payment of cost for ensuring that no adjournment is sought for procrastination of the litigation and the opposite party is suitably compensated in the event of such adjournment is being granted. (Para 2 (ix)) Yashpal Jain v. Sushila Devi, 2023 LiveLaw (SC) 916

Order 17 Rule 2 - Procedure if parties fail to appear on day fixed.

Order XVII Rule 2 - Any party” refers to the party which has led evidence or substantial evidence and “such party” refers to that very party which has led evidence or substantial evidence - Under Order XVII Rule 2, the Court would proceed to pass orders with respect to any of the parties being absent or both the parties being absent. Whereas the explanation is confined to record the presence of that party and that party alone, which has led evidence or substantial evidence and has thereafter failed to appear. (Para 19) Y.P. Lele v. Maharashtra State Electricity Distribution Company Ltd., 2023 LiveLaw (SC) 653 : AIR 2023 SC 3832

Order 17 Rule 3 - Court may proceed notwithstanding either party fails to produce evidence, etc.

Order 17 Rule 3 - The power conferred on Courts under Rule 3 of Order 17 of the CPC to decide the suit on the merits for the default of a party is a drastic power which seriously restricts the remedy of the unsuccessful party for redress. It has to be used only sparingly in exceptional cases. Physical presence without preparedness to co-operate for anything connected with the progress of the case serves no useful purpose in deciding the suit on the merits and it is worse than absence. There must be some materials for a decision on the merits, even though the materials may not be technically interpreted as evidence. Sometimes the decision in such cases. (Para 52) Prem Kishore v. Brahm Prakash, 2023 LiveLaw (SC) 266

Order 20 - Judgment and Decree

Order XX - At conclusion of trial the oral arguments shall be heard immediately and continuously and judgment be pronounced within the period stipulated under Order XX of CPC. (Para 2 (ix)) Yashpal Jain v. Sushila Devi, 2023 LiveLaw (SC) 916

Order 20 Rule 5 - Court to state its Decision on each Issue

Order XX Rule 5 - To avoid the possibility of remanding back the matter after the decision on the preliminary issues, it is mandated for the trial court under Order XIV Rule 2 and Order XX Rule 5, and for the first appellate court in terms of Order XLI Rules 24 and 25 to record findings on all the issues. (Para 33) Sathyanath v. Sarojamani, 2022 LiveLaw (SC) 458 : AIR 2022 SC 2242 : (2022) 7 SCC 644

Order 20 Rule 18 - Decree in Suit for Partition of Property

Order XX Rule 18 - Partition Suits - Trial Courts to list the matter for taking steps under Order XX Rule 18 of the CPC soon after passing of the preliminary decree for partition and separate possession of the property, suo motu and without requiring initiation of any separate proceedings - The courts should not adjourn the matter sine die. (Para 32-34) Kattukandi Edathil Krishnan v. Kattukandi Edathil Valsan, 2022 LiveLaw (SC) 549 : AIR 2022 SC 2841

Order XX Rule 18 - Partition Suits - The distinction between preliminary and final decree - A preliminary decree merely declares the rights and shares of the parties and leaves room for some further inquiry to be held and conducted pursuant to the directions made in preliminary decree and after the inquiry having been conducted and rights of the parties being finally determined, a final decree incorporating such determination needs to be drawn up. (Para 29-30) Kattukandi Edathil Krishnan v. Kattukandi Edathil Valsan, 2022 LiveLaw (SC) 549 : AIR 2022 SC 2841

Order XX Rule 18 - Partition Suits - Final decree proceedings can be initiated at any point of time. There is no limitation for initiating final decree proceedings. Either of the parties to the suit can move an application for preparation of a final decree and, any of the defendants can also move application for the purpose. By mere passing of a preliminary decree the suit is not disposed of. Kattukandi Edathil Krishnan v. Kattukandi Edathil Valsan, 2022 LiveLaw (SC) 549 : AIR 2022 SC 2841

Order XX Rule 18 - Punjab Land Revenue Act, 1887; Section 121 - Instrument of Partition - For the purpose of interpreting Section 121 of the Land Revenue Act, the Court can safely draw an analogy from the provisions contained in Order XX, Rule 18 C.P.C. which pertain to the procedure to be followed on the passing of the decree for the partition of the property. (Para 28) Jhabbar Singh v. Jagtar Singh, 2023 LiveLaw (SC) 324 : AIR 2023 SC 2074

Order XX Rule 18 - Punjab Land Revenue Act, 1887; Section 121 - When a decision is taken by the Revenue Officer under Section 118 on the question as to the property to be divided and the mode of partition, the rights and status of the parties stand decided and the partition is deemed to have completed. At this stage, such decision is required to be treated as the “decree”. (Para 30) Jhabbar Singh v. Jagtar Singh, 2023 LiveLaw (SC) 324 : AIR 2023 SC 2074

Order 21 - Execution of Decrees and Orders

Order XXI - Appeal against High Court judgment which upheld the procedure adopted by the Execution Court that did not invite objections under Order XXI Rule 34 from Judgment debtor to draft sale deed produced by Decree holder - Allowed - Clearly contravenes the salutary provisions of Order XXI Rule 34 - The objections of the appellant to the draft sale deed to be considered. Rajbir v. Suraj Bhan, 2022 LiveLaw (SC) 255 : 2022 (5) SCALE 321

Order XXI - Execution - While it is true that the court must be diligent in the matter of executing a decree passed after adjudication which spans a long period of time, it is also the duty of the court to execute the decree as it is and in accordance with law - Though, it is indeed open to the executing court to construe the decree; it cannot go beyond the decree. (Para 11, 14) Rajbir v. Suraj Bhan, 2022 LiveLaw (SC) 255 : 2022 (5) SCALE 321

Order XXI - Execution - While it is true that the court must be diligent in the matter of executing a decree passed after adjudication which spans a long period of time, it is also the duty of the court to execute the decree as it is and in accordance with law - Though, it is indeed open to the executing court to construe the decree; it cannot go beyond the decree. (Para 11, 14) Rajbir v. Suraj Bhan, 2022 LiveLaw (SC) 255 : 2022 (5) SCALE 321

Order XXI - Execution Proceedings - Execution Court must dispose of the execution proceedings within six months from the date of filing - It is duty bound to record reasons in writing when it is unable to dispose of the matter - Direction issued in Rahul S. Shah Vs. Jinendra Kumar Gandhi (2021) 6 SCC 418 is meant to be observed. Bhoj Raj Garg v. Goyal Educational and Welfare Society, 2022 LiveLaw (SC) 976

Order XXI - Execution Proceedings - The woes of a decree holder begin after obtaining a decree. It is in execution that a decree holder is confronted with an unimaginably large number of obstacles. (Para 1) Bhagyoday Cooperative Bank Ltd. v. Ravindra Balkrishna Patel, 2022 LiveLaw (SC) 1020

Order XXI - Order XXI is exhaustive and in the nature of a complete Code as to how the execution proceedings should take place. This is the second stage after the success of the party in the civil proceedings. It is often said in our country that another legal battle, more prolonged, starts in execution proceedings defeating the right of the party which has succeeded in establishing its claim in civil proceedings - There cannot be a licence to prolong the litigation ad infinitum. (Para 39) Jagan Singh & Co. v. Ludhiana Improvement Trust, 2022 LiveLaw (SC) 733

Order XXI - The mere dismissal of the first application on the ground of default may not result in the decree holder being precluded from filing a fresh execution petition provided it is within time. (Para 21) Bhagyoday Cooperative Bank Ltd. v. Ravindra Balkrishna Patel, 2022 LiveLaw (SC) 1020

Order XXI - Liability to pay interest on money deposited by judgment debtor-f the amount is deposited, or paid to the decree holder or person entitled to it, the person entitled to the amount cannot later seek interest on it-This is a rule of prudence, inasmuch as the debtor, or person required to pay or refund the amount, is under an obligation to ensure that the amount payable is placed at the disposal of the person entitled to receive it. Once that is complete (in the form of payment, through different modes, including tendering a Banker's Cheque, or Pay Order or Demand Draft, all of which require the account holder / debtor to pay the bank, which would then issue the instrument) the tender, or 'payment' is complete. (Para 31) K.L. Suneja v. Manjeet Kaur Monga, 2023 LiveLaw (SC) 68 : AIR 2023 SC 705

Order 21 Rule 32 - Decree for specific performance for restitution of conjugal rights, or for an injunction.

Order XXI Rule 32 - It cannot be said that nonparticipation in a proceeding of a restitution of conjugal rights is absolutely impactless. In fact, it has civil consequences - Transfer petition filed by wife allowed. Poonam Anjur Pawar vs Ankur Ashokbhai Pawar, 2023 LiveLaw (SC) 579

Order 21 Rule 34 - Decree for execution of document

Appeal against High Court judgment which upheld the procedure adopted by the Execution Court that did not invite objections under Order XXI Rule 34 from Judgment debtor to draft sale deed produced by Decree holder - Allowed - Clearly contravenes the salutary provisions of Order XXI Rule 34 - The objections of the appellant to the draft sale deed to be considered. Rajbir v. Suraj Bhan, 2022 LiveLaw (SC) 255 : 2022 (5) SCALE 321

Order XXI Rule 34 - It is the duty of the court to cause the draft to be served upon the judgment debtor and to apply its mind and to make alterations in the draft, if needed, when objections are filed - It will be thereafter that the decree holder is to deliver it to the court with the alterations if any made by the court, on proper stamp paper, if required and the execution of the document is effected by the court or the officer appointed. (Para 10 -11) Rajbir v. Suraj Bhan, 2022 LiveLaw (SC) 255 : 2022 (5) SCALE 321

Order XXI Rule 34 - It is the duty of the court to cause the draft to be served upon the judgment debtor and to apply its mind and to make alterations in the draft, if needed, when objections are filed - It will be thereafter that the decree holder is to deliver it to the court with the alterations if any made by the court, on proper stamp paper, if required and the execution of the document is effected by the court or the officer appointed. (Para 10-11) Rajbir v. Suraj Bhan, 2022 LiveLaw (SC) 255 : 2022 (5) SCALE 321

Order XXI Rule 34 - Order XXI Rule 34 cannot be diluted and any such departure from the provisions can have highly deleterious consequences not merely qua the parties in question but also persons who come to deal with those parties in future. It can lead to further litigation. (Para 14) Rajbir v. Suraj Bhan, 2022 LiveLaw (SC) 255 : 2022 (5) SCALE 321

Order XXI Rule 34 - Order XXI Rule 34 cannot be diluted and any such departure from the provisions can have highly deleterious consequences not merely qua the parties in question but also persons who come to deal with those parties in future. It can lead to further litigation. (Para 14) Rajbir v. Suraj Bhan, 2022 LiveLaw (SC) 255 : 2022 (5) SCALE 321

Order 21 Rule 46 - Attachment of debt, share and other property not in possession of judgment-debtor

Order XXI Rules 46, 46A - Execution Court should have first attached the debt under Order 21 Rule 46 before proceeding to pass the order under Order 21 Rule 46A - Order 21 Rule 46A in the case of debt must be understood as a debt spoken of in Order 21 Rule 46 of CPC and the debt must have been attached under Order 21 Rule 46 - Order 21 Rule 46A excepts, debt secured by a mortgage or a charge. Once these conditions are fulfilled, then upon an application being made by the 'attaching creditor' a notice may be issued to the garnishee. (Para 27- 28) Bhagyoday Cooperative Bank Ltd. v. Ravindra Balkrishna Patel, 2022 LiveLaw (SC) 1020

Order 21 Rule 46A - Notice to Garnishee

Order XXI Rules 46, 46A - The exception is in regard to 'such other property' which though not in the possession of the judgment debtor, is property deposited or is in the custody of any Court - In regard to such property Order 21 Rule 46 and therefore Order 21 Rule 46A will not apply. (Para 25) Bhagyoday Cooperative Bank Ltd. v. Ravindra Balkrishna Patel, 2022 LiveLaw (SC) 1020

Order 21 Rule 58 - Adjudication of claims to, or objections to attachment of property

Section 64(2) and Order XXI Rule 58 - To get the benefit of sub-section (2) of Section 64 of the CPC, the objector and/or subsequent purchaser has to plead and prove that he is the bona fide purchaser, who has entered into the transaction prior to the order of attachment. (Para 4) Dokala Hari Babu v. Kotra Appa Rao, 2022 LiveLaw (SC) 342

Order 21 Rule 84 - Deposit by purchaser and re-sale on default

Order XXI Rule 84, 85 - The deposit of 25% of the amount by the purchaser other than the decree-holder is mandatory and the full amount of the purchase money must be paid within fifteen days from the date of the sale - If the payment is not made within the period of fifteen days, the Court has the discretion to forfeit the deposit, and there the discretion ends but the obligation of the Court to resell the property is imperative - The provisions of the rules requiring the deposit of 25 per cent of the purchase money immediately, on the person being declared as a purchaser and the payment of the balance within 15 days of the sale are mandatory and upon noncompliance with these provisions there is no sale at all. The rules do not contemplate that there can be any sale in favour of a purchaser without depositing 25 per cent of the purchase money in the first instance and the balance within 15 days. When there is no sale within the contemplation of these rules, there can be no question of material irregularity in the conduct of the sale. Non-payment of the price on the part of the defaulting purchaser renders the sale proceedings as a complete nullity. (Para 8-9) Gas Point Petroleum India Ltd. v. Rajendra Marothi, 2023 LiveLaw (SC) 89 : AIR 2023 SC 833 : (2023) 3 SCC 629 : (2023) 2 SCR 326

Order 21 Rule 90 - Application to set aside sale on ground of irregularity or fraud

Order XXI Rule 90(3) - The twin conditions of material irregularity of fraud and substantial injury has to be satisfied before an auction sale can be set aside under Order XXI Rule 90(3) -No sale could be set aside unless the Court is satisfied that the applicant has sustained substantial injury by reason of irregularity or fraud in completing or conducting the sale. (Para 11, 38) Jagan Singh & Co. v. Ludhiana Improvement Trust, 2022 LiveLaw (SC) 733

Order 21 Rule 97 - Resistance or obstruction to possession of immovable property

Order XXI Rule 97 - The bona­fide purchaser of the suit property is not entitled objecting execution of the decree by the decree holder. (Para 15) Shriram Housing Finance and Investment India Ltd. v. Omesh Mishra Memorial Charitable Trust, 2022 LiveLaw (SC) 565

Order XXI Rule 97-102 - Applications under Rule 97 and Rule 99 are subject to Rule 101 which provides for determination of questions relating to disputes as to right, title or interest in the property arising between the parties to the proceedings or their representatives on an application made under Rule 97 or Rule 99. Effectively, the said Rule does away with the requirement of filing of fresh suit for adjudication of disputes. (Para 14, 16) Shriram Housing Finance and Investment India Ltd. v. Omesh Mishra Memorial Charitable Trust, 2022 LiveLaw (SC) 565

Order XXI Rules 97 to 101 - Executing Court cannot dismiss an execution petition against the judgment-debtor by treating the decree for possession as inexecutable, merely on the basis that the decree-holder has lost possession of the immovable property to a third party/encroacher. It was the duty of the Executing Court to issue warrant of possession for effecting physical delivery of the suit land to the decree-holder. Further, if any resistance is offered by any stranger/ encroacher to the decree, the same has to be adjudicated upon by the Executing Court in accordance with Rules 97 to 101 of Order XXI CPC. Unless this procedure is adopted, the Executing Court could not have closed the execution proceedings by observing that the decree is inexecutable. (Para 15) Ved Kumari v. Municipal Corporation of Delhi, 2023 LiveLaw (SC) 712 : AIR 2023 SC 4155

Order 21 Rule 102 - Rules not applicable to transferee pendente lite

Order XXI Rule 102 - the Executing Court would have to determine upon evidence whether the transfer of immovable property which was made post dismissal of suit, was made after institution of appeal/further litigation or not, in order to attract the principle of lis pendens. Jini Dhanrajgir v. Shibu Mathew, 2023 LiveLaw (SC) 450 : AIR 2023 SC 2567

Order 22 Rule 1 - No abatement by party's death, if right to sue survives

Order XXII Rule 1 - 4 - While considering whether the suit/appeal has abated due to non­bringing the legal representatives of plaintiffs/defendants or not, the Court has to examine if the right to sue survives against the surviving respondents - Court has to consider the effect of abatement of the appeal against each of the respondents in case of multiple respondents. (Para 9- 9.2) Delhi Development Authority v. Diwan Chand Anand, 2022 LiveLaw (SC) 581 : (2022) 10 SCC 428

Order 22 Rule 2 - Procedure where one of several plaintiffs or defendants dies and right to sue survives

Order XXII Rule 2 - When the legal representative has been brought on record in appeal though from an interlocutory order, such impleadment will enure towards the proceedings in the suit itself. (Para 11 - 12) Maringmei Acham v. M. Maringmei Khuripou, 2022 LiveLaw (SC) 958

Order XXII Rule 2 - Where there are more than one plaintiffs, the entire suit cannot be held to be abated on the death of one of the plaintiffs. (Para 8-9) Siravarapu Appa Rao v. Dokala Appa Rao, 2022 LiveLaw (SC) 845

Order XXII Rule 2 - Suit can't be held to be abated in the event of death of one of the defendants, when the estate/interest was being fully and substantially represented in the suit jointly by the other defendants along with deceased defendant and when they are also his legal representatives - In such cases, by reason of non-impleadment of all other legal heirs consequential to the death of the said defendant, the defendants could not be heard to contend that the suit should stand abated on account of non-substitution of all the other legal representatives of the deceased defendant. (Para 36) Shivashankara v. H.P. Vedavyasa Char, 2023 LiveLaw (SC) 261

Order 22 Rule 3 – Procedure in case of death of one of several plaintiffs or of sole plaintiff.

Order XXII Rule 3 – Advocate appearing for the Defendant could have signed the compromise petition without an express consent. It is an imperative duty of the Court to ascertain the genuineness and lawfulness of the compromise deed. (Para 100) Prasanta Kumar Sahoo v. Charulata Sahu, 2023 LiveLaw (SC) 262

Order XXII Rule 3 - When a claim in suit has been adjusted wholly or in part by any lawful agreement or compromise, the compromise must be in writing and signed by the parties and there must be a completed agreement between them-. In a suit for partition of joint property, a decree by consent amongst some only of the parties cannot be maintained. (Para 93, 94) Prasanta Kumar Sahoo v. Charulata Sahu, 2023 LiveLaw (SC) 262

Order 22 Rule 10 - Procedure in case of assignment before final order in suit

Order XXII Rule 10 - The death of one of the partners does not foreclose the continuation of the civil proceedings initiated by the firm - Where two persons have sued in the name of a partnership firm and if one of such persons dies during the pendency of the proceedings, it is not necessary to join the legal representatives of the deceased as a party to such proceedings, which shall continue in accordance with law. (Para 6-11) Sumer Singh Galundia v. Jeevan Singh, 2022 LiveLaw (SC) 1041

Order 22 Rule 11 - Application of Order to appeals

Order XXII Rule 2, 11 - A second appeal does not abate on death of one of the respondents when the right to sue survives against the surviving respondent - Abatement occurs only when the cause of action does not survive upon or against the surviving party. (Para 6-9) Sakharam v. Kishanrao, 2022 LiveLaw (SC) 722

Order 23 Rule 1 - Withdrawal of suit or abandonment of part of claim.

Order 23 Rule 1 - A writ petition, filed pursuant to withdrawal of a civil suit for the same relief when liberty is not granted to file afresh, is not maintainable. The principles of constructive res judicata laid down in Order 23 Rule 1 CPC would also apply to writ proceedings. (Para 38) State of Orissa v. Laxmi Narayan Das, 2023 LiveLaw (SC) 527 : AIR 2023 SC 3425

Order 23 Rule 3 - Compromise of Suit

Order 23 Rule 3 - An aggrieved person against the compromise decree has a right to file an application before the Court which granted the decree - He has the right to avail either the remedy of appeal in terms of Order 43 Rule 1A CPC or by way of an application before the court granting decree. Vipan Aggarwal v. Raman Gandotra, 2022 LiveLaw (SC) 442

Order 23 Rule 3A - Bar to Suit

Order XXIII Rule 3A - At the stage of deciding the application under Order VII Rule 11 CPC, the only thing which was required to be considered is whether the suit would be maintainable or not and that the suit challenging the Compromise Decree would be maintainable or not in view of Order XXIII Rule 3A CPC - Court is not required to consider on merits the validity of the Compromise Decree. (Para 6) Sree Surya Developers and Promoters v. N. Sailesh Prasad, 2022 LiveLaw SC 143 : AIR 2022 SC 1031 : (2022) 5 SCC 736

Order XXIII Rule 3A - A party to a consent decree based on a compromise to challenge the compromise decree on the ground that the decree was not lawful i.e., it was void or voidable has to approach the same court, which recorded the compromise and a separate suit challenging the consent decree has been held to be not maintainable. (Para 8) Sree Surya Developers and Promoters v. N. Sailesh Prasad, 2022 LiveLaw (SC) 143 : AIR 2022 SC 1031 : (2022) 5 SCC 736

Order 26 Rule 9 - Commissions to make local investigations

Order XXVI Rule 9, 11 - The commissioners' reports are 'non-adjudicatory in nature', and the courts adjudicate upon the rights of the parties - It is only an opinion or noting, as the case may be with the details and/or statement to the court the actual state of affairs. Such a report does not automatically form part of the court's opinion, as the court has the power to confirm, vary or set aside the report or in a given case issue a new commission. (Para 33) M.P. Rajya Tilhan Utpadak Sahakari Sangh Maryadit v. Modi Transport Service, 2022 LiveLaw (SC) 471 : 2022 (7) SCALE 762

Order 26 Rule 10 - Procedure of Commissioner

Order XXVI Rule 10 - Procedure of Commissioner - In terms of Order XXVI Rule 10, the Commissioner has to submit a report in writing to the court. The report of the Commissioner and the evidence taken by him constitute evidence in the suit and form a part of the record. However, the court and, with its permission, any of the parties may examine the Commissioner personally in open court touching any of the matters referred to him or mentioned in the report or as regards the report including the manner in which the investigation has been made. The court is also empowered to direct such further inquiry if it is dissatisfied with the proceedings of the Commissioner. The evidentiary value of any report of the Commissioner is a matter to be tested in the suit and is open to objections including cross-examination. A report of the Commissioner does not by and of itself amount to a substantive finding on matters in dispute and is subject to the process of the court during the course of the trial. (Para 14) Committee of Management Anjuman Intezemia Masajid Varanasi v. Rakhi Singh, 2023 LiveLaw (SC) 634

Order 26 Rule 11 - Commission to examine or adjust Accounts.

Order XXVI Rule 11 - Arbitration Act, 1940; Section 21 - Distinction between the scope and functions of an arbitral tribunal and a commissioner - For submission to arbitration, there must be an arbitration agreement or an agreement in terms of Section 21 of the Act that the difference or dispute between the parties for which they intend to be determined in a quasi-judicial manner. Commissioners are appointed by the court. Appointment may be with consent of the parties, or even when there is objection to the appointment. Preexisting agreement or the requirement that the parties agree before the court, as is mandatory in case of arbitration, is not necessary when a court directs appointment of a commissioner. In the case of a reference to a commissioner, all that the parties expect from the commissioner is a valuation/ examination of the subject matter referred, which he would do according to his skill, knowledge and experience, which may be without taking any evidence or hearing argument. (Para 32) M.P. Rajya Tilhan Utpadak Sahakari Sangh Maryadit v. Modi Transport Service, 2022 LiveLaw (SC) 471 : 2022 (7) SCALE 762

Order XXVI Rule 11 - We would like to introduce the principle of a 'facilitator' which a court may appoint, be it a commissioner or an expert, for a specific purpose and cause for ascertainment of a fact which may be even disputed. In some cases, the commissioner may even hear the parties and give his expert opinion based on the material or evidence produced by the parties before the commissioner. (Para 32) M.P. Rajya Tilhan Utpadak Sahakari Sangh Maryadit v. Modi Transport Service, 2022 LiveLaw (SC) 471 : 2022 (7) SCALE 762

Order 30 Rule 4 - Right of suit on death of partner

Order XXX Rule 4 - The death of one of the partners does not foreclose the continuation of the civil proceedings initiated by the firm - Where two persons have sued in the name of a partnership firm and if one of such persons dies during the pendency of the proceedings, it is not necessary to join the legal representatives of the deceased as a party to such proceedings, which shall continue in accordance with law. (Para 6-11) Sumer Singh Galundia v. Jeevan Singh, 2022 LiveLaw (SC) 1041

Order 33 Rule 1 - Suits by Indigent Persons

Order XXXIII Rule 1 - When having prima facie found that the plaint does not disclose any cause of action and the suit is barred by res judicata it cannot be said that the Trial Court committed any error in rejecting the application to sue as indigent persons - However, observations that the suit is barred by res judicata and/or on no cause of action shall be treated confine to deciding the application to sue as indigent person only. (Para 6.4 - 6.6) Solomon Selvaraj v. Indrani Bhagawan Singh, 2022 LiveLaw (SC) 1004

Order 33 Rule 7 - Procedure at hearing

Order XXXIII Rules 1, 7, 8 - If the application to sue as indigent person is granted thereafter the suit shall be numbered and registered - Till then the plaint/suit shall be at pre-numbered and pre-registered stage. (Para 6.2) Solomon Selvaraj v. Indrani Bhagawan Singh, 2022 LiveLaw (SC) 1004

Order 33 Rule 8 - Procedure if application admitted

Order XXXIII Rules 1, 7, 8 - If the application to sue as indigent person is granted thereafter the suit shall be numbered and registered - Till then the plaint/suit shall be at pre-numbered and pre-registered stage. (Para 6.2) Solomon Selvaraj v. Indrani Bhagawan Singh, 2022 LiveLaw (SC) 1004

Order 37 Rule 3 - Procedure for the appearance of defendant

Order XXXVII Rule 3 - Summary Suit - Grant of leave to defend (with or without conditions) is the ordinary rule; and denial of leave to defend is an exception - Even if there remains a reasonable doubt about the probability of defence, sterner or higher conditions as stated above could be imposed while granting leave but, denying the leave would be ordinarily countenanced only in such cases where the defendant fails to show any genuine triable issue and the Court finds the defence to be frivolous or vexatious. (Para 17) B.L. Kashyap and Sons v. JMS Steels & Power, 2022 LiveLaw (SC) 59 : AIR 2022 SC 785 : (2022) 3 SCC 294

Order 39 - Temporary Injunctions and Interlocutory Orders

Order XXXIX - Interim injunctions - While considering the question of grant of interim injunction, the courts are required to consider the three tests of prima facie case, balance of convenience and irreparable injury .(Para 36) Shyam Sel and Power Ltd. v. Shyam Steel Industries Ltd; 2022 LiveLaw (SC) 282 : 2022 (4) SCALE 720

Order 39 Rule 2A - Consequence of disobedience or breach of injunction

Order XXXIX Rule 2A - contempt of a civil nature can be made out under Order XXXIX Rule 2­A CPC not when there has been mere “disobedience”, but only when there has been “wilful disobedience”. The allegation of wilful disobedience being in the nature of criminal liability, the same has to be proved to the satisfaction of the court that the disobedience was not mere “disobedience” but “wilful” and “conscious” - The power must be exercised with caution rather than on mere probability. Future Coupons Pvt. Ltd. v. Amazon.com NV Investment Holdings LLC, 2022 LiveLaw (SC) 114 : (2022) 6 SCC 121

Order 41 Rule 5 - Stay by Appellate Court. Stay by Court which passed the decree.

Order 41 Rule 5 - Unless the appeal is listed and there is an interim order, the mere filing of the appeal would not operate as a stay. Sanjiv Kumar Singh v. State of Bihar, 2023 LiveLaw (SC) 63

Order 41 Rule 11 - Power to dismiss appeal without sending notice to Lower Court

Section 153A - Order XLI Rule 11 - An application before the Trial Court for correction of a decree could be maintained only if the appeal was to be decided by the High Court under Rule 11, Order 41 of the Code of Civil Procedure. B. Boraiah v. M.G. Thirthaprasad, 2022 LiveLaw (SC) 160

Order 41 Rule 17 - Dismissal of appeal for appellant's default

Civil Procedure Code, 1908; Order XLI Rule 17 - If the appellant does not appear when the appeal is called for a hearing, then the same can be dismissed for non-prosecution and not on merits. Benny Dsouza v. Melwin Dsouza, 2023 LiveLaw (SC) 1032

Order 41 Rule 22 - Upon hearing respondent may object to decree as if he had preferred a separate appeal.

Order XLI Rule 22 - In cases where the decree passed by the court of first instance is in favor of the respondent in whole, in such circumstance, no remedy exists in favour of the respondent to appeal such decree, since no right to appeal can be vested onto a party, which is successful. However, in cases where the decree given by the court of first instance, is partly in favour of the respondent, but is also partly against the respondent, two remedies within Order 41 Rule 22 remain with the respondent, which are (i) To file their cross objections and, (ii) To support the decree in whole. A third remedy in law also exists, which is the right to file a cross appeal, which will also be discussed in brief - In cases where the opposing party files a first appeal against part or whole of the original decree, and the respondent in the said first appeal, due to part or whole of the decree being in their favour, abstains from filing an appeal at the first instance, in such cases, to ensure that the respondent is also given a fair chance to be heard, he is given the right to file his cross objections within the appeal already so instituted by the other party, against not only the contentions raised by the other party, but also against part or whole of the decree passed by the court of first instance - In a similar circumstance, where the other party in the first instance has preferred an appeal, apart from the remedy of cross objections, the respondent can also file a cross appeal within the limitation period so prescribed, which in essence is a separate appeal in itself, challenging part or whole of the original decree, independent of the appeal filed by the other party. The respondent also has the right to fully support the original decree passed by the lower court in full. (Para 12-16) Dheeraj Singh v. Greater Noida Industrial Development Authority, 2023 LiveLaw (SC) 493

Order XLI Rule 22 - While cross objections, unlike a regular appeal, are filed within an already existing appeal, however, as per Order 41 Rule 22 of the CPC, cross objections have all the trappings of a regular appeal, and therefore, must be considered in full by the court adjudicating upon the same. (Para 17) Dheeraj Singh v. Greater Noida Industrial Development Authority, 2023 LiveLaw (SC) 493

Order 41 Rule 23 - Remand of case by Appellate Court.

Order 41 Rule 23 - the scope of remand in terms of Rule 23 of Order XLI CPC is extremely limited. (Para 11.2) Sirajudheen v. Zeenath, 2023 LiveLaw (SC) 145

Order 41 Rule 23 - There can be no doubt with respect to the settled position that the Court to which the case is remanded has to comply with the order of remand and acting contrary to the order of remand is contrary to law. In other words, an order of remand has to be followed in its true spirit. (Para 7) Shivashankara v. H.P. Vedavyasa Char, 2023 LiveLaw (SC) 261

Order 41 Rule 23, 23A, 24 and 25 - Remand - An order of remand prolongs and delays the litigation and hence, should not be passed unless the appellate court finds that a re-trial is required, or the evidence on record is not sufficient to dispose of the matter for reasons like lack of adequate opportunity of leading evidence to a party, where there had been no real trial of the dispute or there is no complete or effectual adjudication of the proceedings, and the party complaining has suffered material prejudice on that account. Where evidence has already been adduced and a decision can be rendered on appreciation of such evidence, an order of remand should not be passed remitting the matter to the lower court, even if the lower court has omitted to frame issue(s) and/or has failed to determine any question of fact, which, in the opinion of the appellate court, is essential. The first appellate court, if required, can also direct the trial court to record evidence and finding on a particular aspect/issue in terms of Rule 25 to Order XLI, which then can be taken on record for deciding the case by the appellate court. Arvind Kumar Jaiswal v. Devendra Prasad Jaiswal Varun, 2023 LiveLaw (SC) 112

Order 41 Rule 23A - Remand in other cases

Code of Civil Procedure 1908; Order 41 Rule 23A - Necessary requirement for remand under Rule 23A is that the decree is reversed in appeal and a re-trial is considered necessary - the reversal has to be based on cogent reasons and for that matter, adverting to and dealing with the reasons that had prevailed with the Trial Court remains a sine qua non. (Para 11.2) Sirajudheen v. Zeenath, 2023 LiveLaw (SC) 145

Order 41 Rule 24 - Where evidence on record sufficient, Appellate Court may determine case finally

Order XLI Rule 24 - To avoid the possibility of remanding back the matter after the decision on the preliminary issues, it is mandated for the trial court under Order XIV Rule 2 and Order XX Rule 5, and for the first appellate court in terms of Order XLI Rules 24 and 25 to record findings on all the issues. (Para 33) Sathyanath v. Sarojamani, 2022 LiveLaw (SC) 458 : AIR 2022 SC 2242 : (2022) 7 SCC 644

Order 41 Rule 25 - Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from

Order XLI Rule 25 - If evidence is recorded by the learned Trial Court on all the issues, it would facilitate the first Appellate Court to decide the questions of fact even by reformulating the issues - It is only when the first Appellate Court finds that there is no evidence led by the parties, the first Appellate Court can call upon the parties to lead evidence on such additional issues, either before the Appellate Court or before the Trial Court. (Para 32) Sathyanath v. Sarojamani, 2022 LiveLaw (SC) 458 : AIR 2022 SC 2242 : (2022) 7 SCC 644

Order 41 Rule 27 - Production of Additional Evidence in Appellate Court

Order 41 Rule 27 - High Court dismissed an application for additional evidence filed by the appellant to bring on record certain sale deeds and certified copy of the judgments and awards passed in other land acquisition cases, which he contended, were relevant for the purpose of determining the fair market value -Allowed - It was a case of awarding of fair compensation to the land owner whose land has been acquired for public purpose - There was no other material available on record to arrive at a fair market value of the acquired land. Therefore, in the facts and circumstances of the case, the High Court ought to have allowed the application for additional evidence. Sanjay Kumar Singh v. State of Jharkhand, 2022 LiveLaw (SC) 268 : AIR 2022 SC 1372 : (2022) 7 SCC 247

Order 41 Rule 27 - The appellate court to take additional evidence in exceptional circumstances - Where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed - The admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause - The true test, therefore is, whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced. (Para 4) Sanjay Kumar Singh v. State of Jharkhand, 2022 LiveLaw (SC) 268 : AIR 2022 SC 1372 : (2022) 7 SCC 247

Order 41 Rule 27 - Though a party can produce additional evidence at the appellate stage, the same has to be within the four corners of law - The party has to establish that notwithstanding the exercise of due diligence, such evidence was not within its knowledge or could not even after due diligence, be produced by it at the time when the decree appealed against was passed. (Para 10) Sunil Kumar Maity v. State Bank of India, 2022 LiveLaw (SC) 77 : AIR 2022 SC 577

Order 41 Rule 33 - Power of Court of Appeal

Order 41 Rule 33 - The Rule clothes the appellate court with an extra ordinary power, which however is a rare jurisdiction. It is to reach justice in the special facts of a case. It is not an ordinary rule to be applied across the board in all the appeals. In fact, the principle is interalia no doubt that even if there is no appeal by any of the parties in the proceedings, an order can be passed in his favour in the appeal carried by the other side. (Para 13) Eastern Coalfields Ltd. v. Rabindra Kumar Bharti, 2022 LiveLaw (SC) 374 : 2022 (6) SCALE 228

Order 43 Rule 1 - Appeals from orders.

Order XLIII Rule 1(d) and Section 115 - Appeal from orders and Revision – When there is an express provision available under the CPC or any statute under which an appeal is maintainable, by-passing the same, a Revision Petition cannot be filed. (Para 17) Koushik Mutually Aided Cooperative Housing Society v. Ameena Begum, 2023 LiveLaw (SC) 1056

Order 43 Rule 1A - Right to challenge Non-Appealable Orders in Appeal against Decrees

Order 43 Rule 1A - An aggrieved person against the compromise decree has a right to file an application before the Court which granted the decree - He has the right to avail either the remedy of appeal in terms of Order 43 Rule 1A CPC or by way of an application before the court granting decree. Vipan Aggarwal v. Raman Gandotra, 2022 LiveLaw (SC) 442

Order 47 - Review

Section 114, Order XLVII - Distinction between an erroneous decision as against an error apparent on the face of the record - An erroneous decision can be corrected by the Superior Court, however an error apparent on the face of the record can only be corrected by exercising review jurisdiction - A judgment can be open to review if there is a mistake or an error apparent on the face of the record, but an error that has to be detected by a process of reasoning, cannot be described as an error apparent on the face of the record for the Court to exercise its powers of review. (Para 26) S. Madhusudhan Reddy v. V. Narayana Reddy, 2022 LiveLaw (SC) 685 : 2022 (12) SCALE 261

Order 47 Rule 1 - Application for Review of Judgment

Order XLVII Rule 1 - A review application would be maintainable on (i) discovery of new and important matters or evidence which, after exercise of due diligence, were not within the knowledge of the applicant or could not be produced by him when the decree was passed or the order made; (ii) on account of some mistake or error apparent on the face of the record; or (iii) for any other sufficient reason - Scope of review jurisdiction discussed. (Para 11- 25) S. Madhusudhan Reddy v. V. Narayana Reddy, 2022 LiveLaw (SC) 685 : 2022 (12) SCALE 261

Section 114, Order XLVII Rule 1 - "for any other sufficient reason" means "a reason sufficient on grounds, at least analogous to those specified in the rule". (Para 26) S. Madhusudhan Reddy v. V. Narayana Reddy, 2022 LiveLaw (SC) 685 : 2022 (12) SCALE 261

Order XLVII Rule 1 - In order to satisfy the requirements prescribed in Order XLVII Rule 1 CPC, it is imperative for a party to establish that discovery of the new material or evidence was neither within its knowledge when the decree was passed, nor could the party have laid its hands on such documents/evidence after having exercised due diligence, prior to passing of the order. (Para 33) S. Madhusudhan Reddy v. V. Narayana Reddy, 2022 LiveLaw (SC) 685 : 2022 (12) SCALE 261

Order 47 Rule 1 - Is the subsequent overruling of a precedent relied on in a judgment a ground to review it ? - Supreme Court 2-judge bench delivers split verdict - Justice MR Shah holds subsequent overruling is a ground to review - Justice BV Nagarathna disagrees. Govt. of NCT of Delhi v. K.L. Rathi Steels Ltd; 2023 LiveLaw (SC) 204

Order XLVII Rule 1 - Scope of Review - Even a third party to the proceedings, if he considers himself to be an “aggrieved person,” may take recourse to the remedy of review petition. The quintessence is that the person should be aggrieved by the judgment and order passed by the Court in some respect. (Para 7) Sanjay Kumar Agarwal v. State Tax Officer, 2023 LiveLaw (SC) 939 : AIR 2023 SC 5636

Order XLVII Rule 1 - Scope of Review - (i) A judgment is open to review inter alia if there is a mistake or an error apparent on the face of the record. (ii) A judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so. (iii) An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of record justifying the court to exercise its power of review. (iv) In exercise of the jurisdiction under Order 47 Rule 1 CPC, it is not permissible for an erroneous decision to be “reheard and corrected.” (v) A Review Petition has a limited purpose and cannot be allowed to be “an appeal in disguise.” (vi) Under the guise of review, the petitioner cannot be permitted to reagitate and reargue the questions which have already been addressed and decided. (vii) An error on the face of record must be such an error which, mere looking at the record should strike and it should not require any long-drawn process of reasoning on the points where there may conceivably be two opinions. (viii) Even the change in law or subsequent decision / judgment of a co-ordinate or larger Bench by itself cannot be regarded as a ground for review. (Para 16) Sanjay Kumar Agarwal v. State Tax Officer, 2023 LiveLaw (SC) 939 : AIR 2023 SC 5636

Order XLVII Rule 1 - Supreme Court Rules, 2013 - Scope of Review - Any passing reference of the impugned judgment made by the Bench of the equal strength could not be a ground for review. A co-ordinate Bench cannot comment upon the judgment rendered by another co-ordinate Bench of equal strength and that subsequent decision or a judgment of a co-ordinate Bench or larger Bench by itself cannot be regarded as a ground for review. (Para 20, 24) Sanjay Kumar Agarwal v. State Tax Officer, 2023 LiveLaw (SC) 939 : AIR 2023 SC 5636

Order XLVII Rule 1, Rule 9 - The Supreme Court has upheld the decision of the Jammu and Kashmir and Ladakh High Court where the court had held that where the assessee had been held entitled to the refund of the Educational cess and Secondary & Higher Educational cess on the basis of the judgment and order of the Supreme Court in M/s SRD Nutrients (P) Limited vs. CCE, (2018) 1 SCC 105, which was applicable at the relevant time, the Revenue Department was not entitled to make recovery of the said refunded amount on the basis of the subsequent decision of the Supreme Court in M/s Unicorn Industries vs. Union of India, (2020) 3 SCC 492, where the decision in M/s SRD Nutrients was overruled by the top court. Commissioner of CGST and Central Excise (J&K) v. Saraswati Agro Chemicals Pvt. Ltd., 2023 LiveLaw (SC) 522