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Supreme Court Annual Digest 2023-...

Supreme Court Annual Digest 2023- Code Of Civil Procedure (CPC)

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1 Jan 2024 2:15 PM IST

Section 2 (11) - 'legal representative'

Code of Civil Procedure, 1908; 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 : 2023 INSC 948

Section 10 - Stay of Suit

Code of Civil Procedure, 1908; 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 : 2023 INSC 522

Section 11 - Res Judicata

Code of Civil Procedure, 1908; 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 : 2023 INSC 317

Code of Civil Procedure, 1908; 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 : 2023 INSC 317

Code of Civil Procedure 1908; Section 11 - Res Judicata - Guiding principles summarized. (Para 33) Prem Kishore v. Brahm Prakash, 2023 LiveLaw (SC) 266 : 2023 INSC 317

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 : AIR 2023 SC 1338 : 2023 INSC 176

Code of Civil Procedure, 1908; 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 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 47 - Questions to be determined by the Court executing decree

Code of Civil Procedure, 1908; 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 : 2023 INSC 544

Code of Civil Procedure, 1908; 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 : 2023 INSC 958

Code of Civil Procedure, 1908; 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 : 2023 INSC 958

Code of Civil Procedure, 1908; 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 : 2023 INSC 949

Code of Civil Procedure, 1908; 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 : 2023 INSC 958

Code of Civil Procedure, 1908; 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 : 2023 INSC 949

Section 89 - Settlement of disputes outside the Court

Code of Civil Procedure, 1908; 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 : 2023 INSC 948

Section 96 - Appeal from original decree

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

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 : (2023) 1 SCR 449 : 2023 INSC 90

Code of Civil Procedure, 1908; 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 : 2023 INSC 594 : AIR 2023 SC 3110

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 : (2023) 1 SCR 449 : 2023 INSC 90

Section 100 - Second Appeal

Code of Civil Procedure, 1908; 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 : 2023 INSC 846 : AIR 2023 SC 4794

Code of Civil Procedure, 1908; 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 : 2023 INSC 846 : AIR 2023 SC 4794

Code of Civil Procedure, 1908; 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 : 2023 INSC 835 : AIR 2023 SC 4810

Code of Civil Procedure, 1908; 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 : 2023 INSC 639

Code of Civil Procedure, 1908; 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 : 2023 INSC 639

Code of Civil Procedure, 1908; 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

Code of Civil Procedure, 1908; 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 : 2023 INSC 610 : AIR 2023 SC 3845 : (2023) 8 SCC 11

Section 115 - Revision

Code of Civil Procedure, 1908; 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 : 2023 INSC 861

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 : (2023) 1 SCR 449 : 2023 INSC 90

Order 2 Rule 2 - Suit to include the whole claim

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 : 2023 INSC 1042

Order 5 Rule 2 - Copy of plaint annexed to summons

Code of Civil Procedure, 1908; 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

Code of Civil Procedure, 1908; 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 : 2023 INSC 948

Order 6 Rule 4 - Particulars to be given where necessary

Code of Civil Procedure, 1908; 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 : 2023 INSC 581

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 : 2023 INSC 228

Order 7 Rule 11 - Rejection of plaint

Code of Civil Procedure, 1908; 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 : 2023 INSC 471

Code of Civil Procedure, 1908; 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

Code of Civil Procedure, 1908; Order VII Rule 11 - Rejection of Plaint - Plaint cannot be rejected in part. (Para 11) Geetha v. Nanjundaswamy, 2023 LiveLaw (SC) 940 : 2023 INSC 964

Code of Civil Procedure, 1908; 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 : 2023 INSC 964

Code of Civil Procedure, 1908; 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 : 2023 INSC 964

Code of Civil Procedure, 1908; 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

Code of Civil Procedure, 1908; 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 : 2023 INSC 458

Code of Civil Procedure, 1908; 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 : 2023 INSC 1043

Code of Civil Procedure, 1908; 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

Code of Civil Procedure, 1908; 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 : 2023 INSC 641 : AIR 2023 SC 3574

Order 7 Rule 14 - Production of documents

Code of Civil Procedure, 1908 - 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 : 2023 INSC 1075

Code of Civil Procedure, 1908; 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 : 2023 INSC 1075

Order 8 Rule 1 - Written Statement

Code of Civil Procedure, 1908; 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 : 2023 INSC 948

Order 8 Rule 6A - Counter-claim by defendant

Code of Civil Procedure, 1908; 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 : 2023 INSC 491

Code of Civil Procedure, 1908; 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 : 2023 INSC 471

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

Code of Civil Procedure, 1908; 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 : 2023 INSC 732 : AIR 2023 SC 3832

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 : 2023 INSC 228

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 : 2023 INSC 228

Order 9 Rule 13 - Setting aside Decree ex parte

Code of Civil Procedure, 1908; 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 : 2023 INSC 1065

Code of Civil Procedure, 1908; 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 : 2023 INSC 1065

Code of Civil Procedure, 1908; 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 : 2023 INSC 1065

Code of Civil Procedure, 1908; 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 : 2023 INSC 1065

Order 10 - Examination of Parties by the Court

Code of Civil Procedure, 1908; 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 : 2023 INSC 948

Order 11 - Discovery and Inspection, Admissions

Code of Civil Procedure, 1908; 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 : 2023 INSC 948

Order 17 Rule 1 - Adjournment

Code of Civil Procedure, 1908; 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 : 2023 INSC 948

Code of Civil Procedure, 1908; 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 : 2023 INSC 948

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

Code of Civil Procedure, 1908; 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 : 2023 INSC 732 : AIR 2023 SC 3832

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

Code of Civil Procedure, 1908; 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 : 2023 INSC 317

Order 20 - Judgment and Decree

Code of Civil Procedure, 1908; 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 : 2023 INSC 948

Order 20 Rule 18 - Decree in suit for partition of property or separate possession of a share therein

Code of Civil Procedure, 1908; 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 : 2023 INSC 373

Code of Civil Procedure, 1908; 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 : 2023 INSC 373

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 : 2023 INSC 89

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

Code of Civil Procedure, 1908; 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 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 833 : (2023) 3 SCC 629 : (2023) 2 SCR 326 : 2023 INSC 119

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

Code of Civil Procedure, 1908; 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 : 2023 INSC 764 : AIR 2023 SC 4155

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

Code of Civil Procedure, 1908; 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 : 2023 INSC 544

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 : 2023 INSC 319

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 : 2023 INSC 319

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

Code of Civil Procedure, 1908; 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 : 2023 INSC 619 : AIR 2023 SC 3425

Order 26 Rule 10 - Procedure of Commissioner

Code of Civil Procedure, 1908; 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 : 2023 INSC 702

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

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 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.

Code of Civil Procedure, 1908; 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 : 2023 INSC 594

Code of Civil Procedure, 1908; 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 : 2023 INSC 594

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 : 2023 INSC 173

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 : 2023 INSC 173

Order 43 Rule 1 - Appeals from orders.

Code of Civil Procedure, 1908; 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 : 2023 INSC 1065

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 : 2023 INSC 259

Code of Civil Procedure, 1908; 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 : 2023 INSC 963 : AIR 2023 SC 5636

Code of Civil Procedure, 1908; 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 : 2023 INSC 963 : AIR 2023 SC 5636

Code of Civil Procedure, 1908; 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 : 2023 INSC 963 : AIR 2023 SC 5636

Code of Civil Procedure, 1908; 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