Supreme Court Quarterly Digest On CODE OF CIVIL PROCEDURE CODE 1908 [January - March 2023]

Section 24 - General power of transfer and withdrawal

Code of Civil Procedure, 1908; 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

Section 33 - Judgment and decree

Code of Civil Procedure, 1908; 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 96 - Appeal from original decree

Code of Civil Procedure, 1908; 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

Code of Civil Procedure, 1908; 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

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

Code of Civil Procedure, 1908; 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

Order 6 Rule 17 - Amendment of Pleadings.

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

Code of Civil Procedure, 1908; 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 9 Rule 9 - Decree against plaintiff by default bars fresh suit.

Code of Civil Procedure, 1908; 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

Code of Civil Procedure, 1908; 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 21 - Execution of Decrees and Orders

Code of Civil Procedure, 1908; 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 84 - Deposit by purchaser and re-sale on default

Code of Civil Procedure, 1908; 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 936 : (2023) 1 SCR 433

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

Code of Civil Procedure, 1908; 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.

Code of Civil Procedure, 1908; 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

Code of Civil Procedure, 1908; 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 41 Rule 5 - Stay by Appellate Court

Code of Civil Procedure, 1908; 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 23 - Remand of case by Appellate Court.

Code of Civil Procedure, 1908; 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

Code of Civil Procedure, 1908; 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

Code of Civil Procedure, 1908; 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 47 Rule 1 - Application for review of judgment.

Code of Civil Procedure, 1908; 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