Supreme Court Quarterly Digest 2022 - CIVIL LAW- [Jan to Mar]

Code of Civil Procedure, 1908 - 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

Code of Civil Procedure, 1908 - 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

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

Code of Civil Procedure, 1908 - 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

Code of Civil Procedure, 1908 - 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

Code of Civil Procedure, 1908; 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

Code of Civil Procedure, 1908; Section 10, Order V Rule 1, Order VIII Rule 1 and Order VIII Rule 10 CPC - Commercial Courts Act, 2015; Section 16 - These provisions are intended to provide the consequences in relation to a defendant who omits to perform his part in progress of the suit as envisaged by the rules of procedure and are not intended to override all other provisions of CPC like those of Section 10. (Para 26.1) Prakash Corporates v. Dee Vee Projects Ltd. | 14 Feb 2022 | 2022 LiveLaw (SC) 162

Code of Civil Procedure, 1908; 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

Code of Civil Procedure, 1908; 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

Code of Civil Procedure, 1908; 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

Code of Civil Procedure, 1908; 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 | 21 Feb 2022 | 2022 LiveLaw (SC) 193

Code of Civil Procedure, 1908; 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

Code of Civil Procedure, 1908; 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

Code of Civil Procedure, 1908; 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 | 4 Feb 2022 | 2022 LiveLaw (SC) 127

Code of Civil Procedure, 1908; 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

Code of Civil Procedure, 1908; 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

Code of Civil Procedure, 1908; 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

Code of Civil Procedure, 1908; 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

Code of Civil Procedure, 1908; Order I Rule 3 - Non -joining of necessary parties is fatal. (Para 18) B.R. Patil v. Tulsa Y. Sawkar, 2022 LiveLaw (SC) 165

Code of Civil Procedure, 1908; 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 | 9 Feb 2022 | 2022 LiveLaw (SC) 165

Code of Civil Procedure, 1908; Order V Rule 1, Order VIII Rule 1 and Order VIII Rule 10 CPC - Commercial Courts Act, 2015; Section 16 - In the ordinary circumstances,On expiry of 120th day from the date of service of summons, the defendant forfeits the right to file the written statement and no Court can make an order to extend such time beyond 120 days from the date of service of summons. (Para 16) Prakash Corporates v. Dee Vee Projects Ltd., 2022 LiveLaw (SC) 162

Code of Civil Procedure, 1908; Order V Rule 1, Order VIII Rule 1 and Order VIII Rule 10 CPC - Commercial Courts Act, 2015; Section 16 - The orders passed by the Supreme Court on 23.03.2020, 06.05.2020, 10.07.2020, 27.04.2021 and 23.09.2021 in SMWP No. 3 of 2020 applies in relation to the period prescribed for filing the written statement - Unrealistic and illogical to assume that while the Court has provided for exclusion of period for institution of the suit and therefore, a suit otherwise filed beyond limitation (if the limitation had expired between 15.03.2020 to 02.10.2021) could still be filed within 90 days from 03.10.2021 but the period for filing written statement, if expired during that period, has to operate against the defendant - the period envisaged finally in the order dated 23.09.2021 is required to be excluded in computing the period of limitation even for filing the written statement and even in cases where the delay is otherwise not condonable - The orders in SMWP No. 3 of 2020 were of extraordinary measures in extraordinary circumstances and their operation cannot be curtailed with reference to the ordinary operation of law. (Para 20.2) Prakash Corporates v. Dee Vee Projects Ltd; 2022 LiveLaw (SC) 162

Code of Civil Procedure, 1908; 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

Code of Civil Procedure, 1908; 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

Code of Civil Procedure, 1908; 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

Code of Civil Procedure, 1908; 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

Code of Civil Procedure, 1908; 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

Code of Civil Procedure, 1908; 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

Code of Civil Procedure, 1908; 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

Code of Civil Procedure, 1908; 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

Code of Civil Procedure, 1908; 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

Code of Civil Procedure, 1908; 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

Code of Civil Procedure, 1908; 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

Code of Civil Procedure, 1908; 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

Code of Civil Procedure, 1908; 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

Code of Civil Procedure, 1908; 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

Code of Civil Procedure, 1908; 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

Code of Civil Procedure, 1908; 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

Code of Civil Procedure, 1908; Order XLI 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

Code of Civil Procedure, 1908; Order XLI 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

Code of Civil Procedure, 1908; Order XLI 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