Judgments on Civil and Criminal Laws

Adverse Possession—

Civil Procedure Code, 1908—Section 100—A plea of adverse possession is not a pure question of law, but a blended one of fact and law—Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed—A person pleading adverse possession has no equities in his favour—Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession—The learned Courts below failed to consider such aspect of the matter and dismissed the suit filed by the plaintiffs/appellants—Held, concurrent findings of both the Courts below are perverse and cannot be sustained—Second appeal is allowed., 2019 (204) AIC (Cal., H.C.) 474

Adverse Possession—

—Doctrine of—In matter of plea of adverse possession, mutually inconsistent or mutually destructive pleas—Cannot be taken in plaint—In present suit instituted by plaintiff/appellant—Founded on his plea of ownership in pursuance of sale-deed executed by defendant No. 2—Therefore, plea of adverse possession not available to him—Appeal dismissed.

, 2019 (204) AIC (Alld., H.C.) 941, 2019 (204) AIC

Adverse Possession—

—Second Appeal—Suit for declaration of title and permanent injunction—Plea of adverse possession—Sustainability—Since clear case of possession with plaintiff of disputed tank with permission of competent authority—Thus, plaintiff comes to possess disputed site with permission of true owner—Therefore, possession of any length and continuance thereof—Cannot create a right over disputed property in favour of plaintiff—Lower Appellate Court, therefore, right in reversing judgment and decree passed by Lower Court in favour of appellant/plaintiff—Appeal dismissed., 2019 (204) AIC (Ori., H.C.) 896

Advocates Act, 1961—

Section 30—Insolvency and Bankruptcy Code, 2016—Section 29-A—Constitution of India, 1950—Articles 19 (1) (g) and 136 (1)—Willful defaulter—Declared under “master circular on willful defaulter”—Circular issued by Reserve Bank of India—Whether entitled to be represented by a lawyer of its choice—Delhi High Court held the two in-house Committees could be considered to be Tribunals hence a lawyer had a right to appear—Hence, the instant appeals—Held, cannot be said that either in-house Committee had been vested with the judicial power of the State to decide a lis between the parties after gathering evidence and applying the law, as a result of which, a binding decision is then reached—They have been given powers to gather facts and then arrive at a result—In-house committees not vested with judicial power of the State—Hence, there was no right to be represented by a lawyer in the in-house proceedings—Orders impugned set aside—Appeals allowed. , 2019 (204) AIC (S.C.) 81

Allotment of Land—

Constitution of India, 1950—Article 226—Allotment of land adjacent to the Trust—Trust running free school—Order impugned by second respondent—Hence, the present writ petition—Held, land sought by the petitioner was already handed over to the Corporation for construction of public toilet and community hall—Due to the pendency of the writ petition building constructed on said land was not being used—Petitioner failed to prove that they were running free school—Claim of the petitioner rightly rejected—Writ petition dismissed., 2019 (204) AIC (Mad., H.C.) 387

Arbitration and Conciliation Act, 1996—

Section 9—Contractual dispute—Contract was to supply 1093 low floor buses by the petitioner to the Delhi Transport Corporation—DTC imposed “liquidated damages” upon petitioner—Petition under section 9 of Act, 1996 filed by petitioner was disposed of in favour of petitioner by learned Single Judge—As per direction applications were filed by both sides before Arbitral Tribunal—Tribunal directed to the DTC to retain 40% of penalty imposed—Hence the present petition by the petitioner—Held, matter had already been reached at the stage of evidence—No relief could be granted without appraising

Arbitration and Conciliation Act, 1996—

the material placed on record by the parties before the Arbitral Tribunal which had seized of the matter—Petition closed accordingly., 2019 (204) AIC (Del., H.C.) (Sum.) 10

Arbitration and Conciliation Act, 1996—

—Sections 11 (6), 2 (1) (e), and 20 (3)—Jurisdiction of the High Court under section 11 (6) of the Act—Agreement between the parties contained clause that venue of arbitration shall be Bhubaneswar—Respondent alleged breach of contract and invoked arbitration clause—Appellant did not agree for appointment of an arbitrator—Respondent filed petition under section 11 (6) of the Act before the Madras High Court for appointment of the arbitrator—Appellant challenged jurisdiction of the Madras High Court—As per section 20 of the Act parties are free to agree on the place of arbitration—Where contract specifies jurisdiction of the Court at a particular place—Only such Court will have the jurisdiction to deal with the matter and parties intended to exclude all other Courts—In the instant case parties agreed that the venue of arbitration shall be at Bhubaneswar—Intention of the parties is to exclude all other Courts—Non-use of words like “exclusive jurisdiction”, “only”, “exclusive”, “alone” not decisive and does not make any material difference—Madras High Court erred in assuming jurisdiction under section 11 (6) of the Act—Impugned order of the Madras High Court set aside—Parties given liberty to approach the Orissa High Court seeking appointment of the Arbitrator., 2019 (204) AIC (S.C.) 139

Arbitration and Conciliation Act, 1996—

—Section 16—Work order to the respondents against tender—Respondents later on refused to accept the work order and refused to come for a kick off meeting—Appellant directed to the respondents to deposit the loss to appellant which respondent No. 1 refused—Respondent No. 1 also refused to resolve the dispute by the Arbitrator—Against appointment of Arbitrator by the appellant, the respondent No. 1 filed a civil suit—Trial Court denied to grant interim injunction orders—Appeal filed by respondent No. 1 was allowed and Arbitrator was restrained from proceeding further—Appeal filed by appellant before High Court was dismissed—Hence the instant civil appeal—Held, if the respondent No. 1 had objection regarding appointment of Arbitrator, it was open for him to move an application before the Arbitrator—But with such plea, he could not maintain a suit—Trial Court had rightly rejected the interim injunction which was wrongly granted by Lower Appellate Court and High Court—Orders impugned set aside—Appeal allowed., 2019 (204) AIC (S.C.) (Sum.) 2

Arbitration and Conciliation Act, 1996—

—Sections 36 (3) and 34—Civil Procedure Code, 1908—Order XXVII, Rule 8A—Arbitration award—Filing of Execution—Grant of unconditional stay—Legality—Sub-section (3) of section 36 of Arbitration Act mandates that while considering an application for stay filed alongwith or after filing of objection under section 34 of Arbitration Act—If stay is to be granted then it shall be subject to such conditions as may be deemed fit—Proviso makes it clear that Court has to “have due regard to provisions for grant of stay of a money decree under provisions of Code of Civil Procedure”—Phrase “have due regard to” would only mean that provision of CPC to be taken into consideration, and not that they are mandatory—Mere reference to CPC in section 36 of Arbitration Act—Cannot be construed in such manner that it takes away power conferred in Arbitration Act itself—No exceptional treatment to be given to Government while considering application for stay under section 36 filed by Government in proceeding under section 34 of Arbitration Act—Therefore, impugned order passed by High Court granting unconditional stay of arbitration award—Cannot be sustained in the eyes of law—Set aside—Order of Executing Court restored—Open for petitioner-Award holder to pray for release of attached amount—Appeals allowed., 2019 (204) AIC (S.C.) 129

Arms Act, 1959—

Section 25—Constitution of India, 1950—Article 226—Arms licence—Grant of—Application for—Rejection—Legality—Writ petition also dismissed on ground of availability of an alternative remedy—Legality—Since District Magistrate failed to exercise his jurisdiction in accordance with law—Therefore, plea of alternative remedy should not be entertained on facts of present case.

, 2019 (204) AIC (Pat., H.C.) 777, 2019 (204) AIC

Arms Act, 1959—

—Section 25—Grant of licence to legal heirs—Refusal to grant licence to legal heirs of arms licencee—Appellant’s father had attained age of 70 years—He, therefore, nominated his son/appellant and gave no objection in his

Arms Act, 1959—

favour—Who applied for it alongwith requisite document—District Magistrate relying on report of Circle Officer rejected application—Legality—Rule 25 (1) (b) says in respect of those cases where licencee is alive and having attained age of 70 years—Or having held fire arm for 25 years which ever is earlier—Can nominate any one of legal heirs to possess said fire arms provided he is eligible to be granted a licence—Therefore, in present case, order of District Magistrate refusing to grant licence—Reflects complete non-application of mind to rules applicable resulting in exercise of an erroneous jurisdiction—Set aside—Petition allowed—Directions issued., 2019 (204) AIC (Pat., H.C.) 777, 2019 (204) AIC

Army Act, 1950—

Section 27—Army Rules, 1954—Rules 179, 180, 115 and 116—Indian Penal Code, 1860—Section 326—Judgment of acquittal—Respondent enrolled in the Indian Army as Sepoy on 2.2.2002—On 2.6.2011 he assaulted Subedar/Master Technical (Communication) ‘S’ with a Talwar without any provocation twice—While attempting to give third blow, intervened by ‘A’—Skull bone of ‘S’ found fractured leading to internal bleeding and blood clotting in brain—Court of inquiry recommended action against him—Summary Court Martial found the respondent guilty and imposed sentence of dismissal—Finding recorded by the Tribunal that respondent was not afforded opportunity as provided under Rules 179 and 180 of the Rules and procedure prescribed under Rules 115 and 116 of the Rules were not followed—Tribunal rightly held the entire Summary Court Martial was held in a hasty manner—Enquiry commenced at 12.45 p.m. and concluded at 1.30 p.m. and sentence was imposed at 20.30 p.m.—The irreconcilable inconsistency between medical evidence and ocular testimony, lack of scientific evidence like finger prints on weapon and absence of blood on the weapon taken into account by the Tribunal to hold that charge against the respondent was not proved—Judgment of acquittal not to be disturbed unless there are substantial and compelling reasons—If two views are possible, one favouring the accused has to be preferred—Judgment of the Tribunal affirmed—Appeal dismissed., 2019 (204) AIC (S.C.) 31

Bihar and Orissa Public Demands Recovery Act, 1914—

Section 3 (6) and Schedule I, Item 7—In clause (xx) of the lease deed, the respondent and the appellant agreed that recoveries of arrears of rent may be affected under the Public Demands Recovery Act—It is not open to the respondent to contend that the demand made for payment of interest under the lease deed as not a public demand in view of clause (xx) of the lease deed—Item No. 7 of Schedule I covers any demand payable by a person holding any interest in land—Therefore, interest on rent payable for the lands would, be recoverable under Item No. 7 of Schedule I read with section 3 (6) of the Public Demands Recovery Act—Appeal is dismissed., 2019 (204) AIC (S.C.) (Sum.) 4

Bihar and Orissa Public Demands Recovery Act, 1914—

—Sections 7 and 9—Constitution of India, 1950—Article 226—Certificate proceedings—Initiation of against petitioner—Objection disputing claim filed by him—Rejection of objection on ground of non-appearance of petitioner—Legality—Duty and onus upon certificate officer to decide said objection on its merits—Rather than rejecting it merely on assumption that petitioner nothing to say—Thus, respondent authority failed to discharge his statutory duty dealing with objection—Impugned order quashed—Matter remitted to certificate officer to decide objection—Petition disposed of., 2019 (204) AIC (Jhar., H.C.) (Sum.) 7

Bit Negligence—

Conduct of operating Surgeon was a case of unreasonable decision to operate the patient and was not a case of ‘bit negligence’ so as to absolve the Surgeon from the allegation of medical negligence., 2019 (204) AIC (S.C.) 207

Chhota Nagpur Tenancy Act, 1908—

Section 3 (xxviii)—“Rent” as defined in the Act includes any rent lawfully payable by a tenant to his landlord on account of the use or occupation of the land held by the tenant and includes all dues (other than personal services) which were recoverable under any enactment for the time being in force as if they were rent—Appeal is dismissed., 2019 (204) AIC (S.C.) (Sum.) 4

Chit Funds Act, 1982—

Sections 31, 32 and 33—Jural relationship between chit fund entity and subscriber created by a chitty agreement—Future subscriptions from defaulting subscriber—Held, relationship between a chit subscriber and a chit foreman—Contractual obligation—Creating a debt on day of subscription—On default taking place, foreman entitled to recover consolidated amount of future subscriptions from defaulting subscriber in a lumpsum—Therefore, impugned judgment of Division Bench of High Court dismissing suit of appellant for recovery of future instalment—Set aside—Appeal allowed. , 2019 (204) AIC (S.C.) 7

Chit Funds Act, 1982—

—Section 71—Tamil Nadu Chit Funds Rules, 1984—Rule 55—If no appeal is filed under section 70 of the Chit Funds Act, the Registrar shall issue a certificate alongwith the award, whereas, such certificate issued by the Registrar, the award passed by the Registrar shall be deemed to be a decree of the Civil Court and shall be executed under the same manner as a decree of such Court—Section 71 also gives an option for execution of the decree as a recovery of arrears of land revenue under Rule 55 of the Tamilnadu Chit Funds Rules, 1984—Plain reading of section 71 and Rule 51 makes it very clear that the Registrar has no power to execute the award—Only he can certify the award for execution by the Civil Court or by the Revenue Authorities as decided by the parties—Section 71 further makes it clear that the award alongwith certificate sent to any Civil Court, such award shall be deemed to be a decree of the same Court—Civil Revision Petitions are allowed., 2019 (204) AIC (Mad., H.C.) 380

Civil Procedure Code, 1908—

Section 37—Section 37 (b) would make it very clear that when the Court of first instance has no power to execute its order, such orders should be sent to some other Civil Court—Such Court shall be construed as a Court which passed a decree as per section 37—Therefore, any award passed by the Registrar under Chit Funds Act and sent to the City Civil Court, particularly, when the Registrar has no power to execute its award, such City Civil Court will be deemed to be a Court which passed a decree as per section 37 of CPC—Civil Revision Petitions are allowed., 2019 (204) AIC (Mad., H.C.) 381

Civil Procedure Code, 1908—

—Section 46—Deals with issue of precepts though the section states that the Court that passed a decree may issue precepts to any other Court which would be competent to execute such decree to attach any property belonging to the judgment-debtor and specified in the precepts—Purpose of issuing the precepts to some other Court for attachment is in order to prevent any encumbrance over the property though property situated outside the jurisdiction of the Court which issues precepts—Held, the Civil Court has a power to issue precepts to the Court which has jurisdiction to pass an attachment over the immovable property situated within the jurisdiction of such Court—Civil Revision Petitions are allowed., 2019 (204) AIC (Mad., H.C.) 381

Civil Procedure Code, 1908—

—Section 47—The petitioner’s objection to the maintainability of the execution case—Dismissal of—Revision against—Since there is no challenge on the part of the opposite party to the portion of the award dismissing in effect the reliefs of eviction and compensation—Executing Court would exceed its jurisdiction in granting such relief, going beyond the award—In such view of the matter, without a challenge to the award on the part of the opposite party, the Executing Court acted without jurisdiction in turning down the prayer of the judgment debtor/petitioner for rejection of the execution case—C.O. is allowed., 2019 (204) AIC (Cal., H.C.) 485

Civil Procedure Code, 1908—

—Section 47 read with Order XXI, Rule 36—Specific Relief Act, 1963—Section 16—Suit for specific performance of contract—Filed by respondent/decree holders—Objection filed by petitioner a third party under section 47 read with Order XXI, Rule 36, CPC in execution proceeding—Rejected by Court below—Hence the present revision—Held, the petitioner, being a third party, could not inter-meddle by raising objection under section 47 CPC—No illegality in the order impugned—Revision petition dismissed.

, 2019 (204) AIC (Raj., H.C.) 790

Civil Procedure Code, 1908—

—Section 96—Appeal—Right of appeal—A precious right given to litigants—First Appellate Court has its duty to examine findings of Trial Court by considering evidence on record—If any wrong finding given by Trial Court it is to be corrected—And if not, First Appellate Court must concur with findings of Trial Court., 2019 (204) AIC (Gau., H.C.) 656

Civil Procedure Code, 1908—

—Section 96—Evidence Act, 1872—Sections 137 and 138—Seeking permission to cross-examine the witness produced by new impleaded

Civil Procedure Code, 1908—

defendant—Application filed by defendant Nos. 1 to 8 and 10, rejected by Trial Court—Revision filed by the defendants was allowed—Hence the present writ petition by petitioner/defendant—Question arose for consideration was whether a co-defendant had a right to cross-examine the other defendant—Held, learned Revisional Court had recorded cogent reasons for permitting defendant Nos. 1 to 8 and 10 of cross-examine the witness produced by newly impleaded defendant—No interference warranted—Suit to be decided within nine months as the suit was pending for last more than 28 years—Writ petition dismissed.

, 2019 (204) AIC (Utt., H.C.) 932

Civil Procedure Code, 1908—

—Section 100—Easementary right—Claimed by the plaintiffs—Suit was dismissed—In appeal by plaintiffs, the Court below hold that existence of pathway in the defendant’s property could not be ruled out—Hence the instant second appeals by plaintiffs and third defendant—Held, plaintiffs had access to their properties though the other access—Occasional use of defendant’s property for gaining access to the plaintiff’s properties, by itself, would not confer any valid right on the part of the plaintiffs—Judgment of Lower Appellate Court set aside—Judgment of Trial Court confirmed—Appeal allowed.

, 2019 (204) AIC (Mad., H.C.) (Sum.) 13

Civil Procedure Code, 1908—

—Section 100—Punjab Courts Act, 1918—Section 41—Civil Procedure (Amendment) Code, 1976——Second appeal—Non-formulation of question of law in regular second appeal—Effect of—Insofar as State of Punjab is concerned, a second appeal does not require formulation of substantial question of law since Punjab Act would be applicable for State—Hence, section 100 of Code would not hold field having supervisory effect—Appeal dismissed., 2019 (204) AIC (S.C.) 241

Civil Procedure Code, 1908—

—Section 100—Regular second appeal—Filed against the judgment and decree passed by First Appellate Court and judgment passed by Trial Court have been reversed—Suit for possession by eviction and recovery of arrears of rent and termination of tenancy dismissed by Trial Court—On ground that shop given to defendant on rent prior to 1985 but plaintiff claiming it was given only in 1995—Further defendant’s claim that he has constructed the suit shop was not clearly denied by plaintiff—Version of plaintiff found not reliable at all by Trial Court—These findings reversed by Lower Appellate Court—Finding recorded by Lower Appellate Court found without any basis—Findings recorded by Lower Appellate Court are perverse and not sustainable in eye of law—And substantial question of law as framed is answered accordingly—Appeal is therefore allowed., 2019 (204) AIC (H.P., H.C.) 301

Civil Procedure Code, 1908—

—Section 100—Second appeal—Suit for permanent injunction—Lower Appellate Court after setting aside judgment and decree passed by Trial Court dismissed suit—Legality—Plaintiff has to stand on his own case and if his basic claim fails—Suit has to be dismissed—Since plaintiff/appellant failed to prove execution of sale-deed in his favour—Not successor of property of original owner—Therefore, Lower Appellate Court rightly dismissed suit of plaintiff—Appeal dismissed. , 2019 (204) AIC (Alld., H.C.) 941

Civil Procedure Code, 1908—

—Section 100—Second appeal—When it is seen that the Courts below had assessed the materials placed on record, both oral and documentary, in the right perspective, both factualwise and legalwise and determined that the plaintiff is entitled to eject the defendants from the suit property as prayed for—When there is no valid reason projected by the appellant warranting any interference with the concurrent judgment and decree of the Courts below, it is found that no substantial question of law is involved in this second appeal—Second appeal is dismissed. , 2019 (204) AIC (Mad., H.C.) 720

Civil Procedure Code, 1908—

—Section 100—Suit for recovery of principal loan amount and interest—Decreed by Trial Court—Appeal by appellant-defendant—Regular Second Appeal filed—However in view of facts and evidence, the plaintiff has miserably failed to prove that loan of R 1,00,000/- was given by him to Raj Kumar—Inadmissible evidence cannot be made a ground to dismiss the Regular Second Appeal—Hence Regular Second Appeal is allowed and finding given is required to be set aside and reversed., 2019 (204) AIC (P&h., H.C.) 370

Civil Procedure Code, 1908—

—Section 100, Order XLI, Rules 23, 23-A and 25, Order XLIII, Rule 1 (4)—A suit for declaration of title, permanent injunction and partition of their share by predecessor-in-interest of plaintiffs/respondents—By amendment plaintiffs deleted the prayer of partition—Suit dismissed by Trial Court—Appeal filed by the plaintiffs was allowed and the matter was remanded back—Feeling dissatisfied the defendants filed instant civil miscellaneous appeal—Held, suit

Civil Procedure Code, 1908—

filed by the respondents was not on merit after proper adjudication of issues—The defendants never pleaded that the suit was barred under any statutory provision or that the Trial Court was lacking inherent jurisdiction to try the suit—Therefore the suit should not have been dismissed by Trial Court on the ground of maintainability for vagueness of the schedule of the plaint—Plaintiffs ought to have been given opportunity to state the identity of suit property—No interference with the order impugned—Appeal dismissed., 2019 (204) AIC (Cal., H.C.) 535

Civil Procedure Code, 1908—

—Sections 104, and 105, Order XVI and Order XLI, Rule 27—Appeal—Rejection of application for summoning witnesses alongwith documents—Dismissal by Trial Court—No challenge in higher forum—Agitated by affected party in Appellate Court challenging decree passed by Trial Court under section 96, CPC—Permissibility—Order of rejection of an application under Order XVI, CPC does not provide any appeal under section 104, CPC read with Order XLIII, CPC—While section 105, CPC read with Order XLIII, Rule 2 speaks of provision that an order not applicable rendered by Trial Court which ought not to have been passed—Can be agitated by affected party in Appellate Court challenging decree passed by Trial Court—Therefore, Court below failed to consider said aspect and straightway held that order rejecting application under Order XVI, CPC attained finality—First Appellate Court never even discussed a single piece of evidence adduced by both sides—Therefore, impugned judgment passed by Courts below set aside—Revision allowed—Matter remanded with direction., 2019 (204) AIC (Gau., H.C.) 656

Civil Procedure Code, 1908—

—Section 115—Limitation Act, 1963—Section 5—Delay in civil revision against the order of Court below in title execution case—Prayer for condoning the delay of 917 days in filing civil revision—Held, order impugned was passed on 29.4.2014 and the Counsel concerned at Guwahati was alleged contacted on 10.7.2014—It was nowhere mentioned in the petition or in affidavit as to when the concerned Advocate informed the bank officials and how much time he consumed for sending documents to the Counsel at Guwahati—After sending the documents to Counsel at Guwahati, the bank officials remained sitting over the matter for more than two years—Only after receiving the notice from the owner of premises to vacate the premises, the bank officials wake up from sleep—During the period 7.10.2014 till 21.9.2016 one after the other bank officials came and joined as branch head but no one bothered to take any step for filing the revision—That demonstrated utter negligence, inaction and lack of due diligence on the part of the bank officials—Such being the position, the petition for condonation of delay was not deserved to be allowed—Application and the petition also dismissed., 2019 (204) AIC (Gau., H.C.) (Sum.) 11

Civil Procedure Code, 1908—

—Section 115—Partition suit of a coparcenary property—Learned Court below refused to decide issues No. 5, 10, 11, 12, 13 and 15 as preliminary issues and hold that those would be decided after recording evidence—Hence the instant revision by plaintiffs/petitioners—Held, the issue No. 10 was regarding the question of maintainability of the suit for partition by plaintiff as grandson was required to be examined—It was a pure question of law whether a suit could be filed by plaintiff for partition during the life time of his father—As far as other issues were concerned those were pure legal issues—Revision partly allowed to the extent of setting aside the impugned order with regard to issue No. 10 for which the case would be heard afresh by the Trial Court—Revision partly allowed., 2019 (204) AIC (Raj., H.C.) 800

Civil Procedure Code, 1908—

—Section 115—Specific Performance Act, 1963—Section 13—Application to set aside ex parte decree—Dismissed by Court below—Hence, the present revision—Suit was filed for specific relief to execute the sale deed in favour of respondent/plaintiff—Held, the relief by way of specific performance is a discretionary remedy—Court below should not name granted as a matter of routine even if a parties are set ex parte—Therefore, the Court below should not have decreed the suit for specific performance mechanically—Order impugned set aside—Suit to be restored subject to the payment of R 37,800/- by the petitioner being the stamp duty and R 50,000/- towards cost to the respondent—Civil revision petition allowed., 2019 (204) AIC (Mad., H.C.) (Sum.) 13

Civil Procedure Code, 1908—

—Section 115—Suit for declaration of sale as null and void—Allegation of fraud played in execution of sale-deed—Present revision petition for dismissal of suit on the ground of limitation and also on the ground of absence of cause of action—Held, allegation of fraud played in execution of sale- deed—Suit could not be termed as an abuse of process of law as there was a cause of action—No merits in the revision petition—Dismissed. , 2019 (204) AIC (Mad., H.C.) (Sum.) 13

Civil Procedure Code, 1908—

—Section 115, Order VIII, Rule 1, Order XXVI, Rule 9, Order XXVI, Rules 12 and 13 and Order XXXIX, Rules 1 and 2—A suit for partition and separate possession by plaintiff—Plaintiff moved an application under Order XXVI, Rule 9, CPC for appointment of an investigation commissioner—Application rejected by learned Court below—Hence the present revision—Held, Rule 9, CPC clearly envisage that local investigation will be requisite or proper only when some elucidation of a matter in dispute is necessary—Elucidation is possible only when issues are framed—Issue was yet to be framed, therefore, elucidation was to be decided by the Court below only after written statement was filed by defendant No. 2 and considered—Hence application for appointment of investigation commissioner was premature—No interference with the order impugned—Revision application dismissed., 2019 (204) AIC (Cal., H.C.) 518

Civil Procedure Code, 1908—

—Section 115, Order XXVI, Rule 10 (a), Section 151—Appointment of Advocate Commissioner—Suit by first respondent/plaintiff for declaring another gift deed produced by defendants as null and void—During pendency of suit, an application by plaintiff to appoint an Advocate Commissioner for sending the Will executed by testator to get expert opinion after comparison of signature—Trial Court allowed the application—Hence, present civil revision petition by second defendant—Held, the purpose of appointment of Advocate Commissioner was only to get photographs of the signatures contained in the documents and to send it for expert opinion—Ext 2 appeared to be a filing copy of the Will which contained the signature of the Testator—Defendants had also admitted the execution of the Will thereby admitting the signature of Testator—Hence, it was not open to the defendants to contend that the document, sought to be sent for getting expert opinion, did not contain the admitted signature of the testator—No interference with the order impugned—Revision petition dismissed. , 2019 (204) AIC (Mad., H.C.) 385

Civil Procedure Code, 1908—

—Section 151—Stamp Act, 1899—Section 38 (2)—Document found insufficiently stamped—Duty of Court—Court has no option but to send document to stamp duty Collector—Therefore, Trial Court committed error in dismissing application denying request to send document to stamp duty Collector—Impugned order not sustainable—Set aside—Revision allowed.

, 2019 (204) AIC (A.P., H.C.) 513

Civil Procedure Code, 1908—

—Sections 151 and 144—Restitution application—Scope of—Section 144, CPC applies to a situation where a decree or order is varied or reversed in appeal, revision or any other proceedings—Or is set aside or modified in any suit instituted for the purpose—Principle of doctrine of restitution is not on reversal of decree—Law imposes an obligation on party to suit—Who received benefit of decree to make restitution to other party for what he has lost—This obligation arises automatically on reversal or modification decree—Necessarily carries with it right to restitution of all—Court in making restitution bound to restore parties to same position as they were in at time when Court by its action displaced them—In present case, possession handed over to appellant-plaintiff pursuant to interim order passed by High Court, pending first appeal which finally came to be dismissed—Therefore, provisions of section 144, CPC, not attracted as there was no variation or reversal of decree or order—However, in such situation section 151, CPC comes into force—Respondent did not commit any error in taking decision to call upon appellant for handing over possession of subject property—Appeal dismissed., 2019 (204) AIC (S.C.) 1

Civil Procedure Code, 1908—

—Sections 152 and 147—Legal Services Authorities Act, 1987—Sections 19 (5)—Constitution of India, 1950—Article 227—Executing Court—Correction—In Award of Lok Adalat—Clerical mistake in writing of actual terms of compromise—Executing Court can correct award under section 152, CPC.

, 2019 (204) AIC (Bom., H.C.-A.B.) 286

Civil Procedure Code, 1908—

—Order I, Rule 10—Civil Rules of Practice—Rule 28—Transfer of Property Act, 1882—Specific Relief Act, 1963—Section 19 (b)—Impleadment—Partition suit—Impleadment of purchaser of undivided property—Application for—Dismissal—Legality—Since petitioner purchased undivided shares from plaintiff No. 1 and defendant No. 10—Therefore, petitioner a proper and necessary party for adjudication of issues involved in suit finality—Impugned order set aside—Revision allowed., 2019 (204) AIC (A.P., H.C.) (Sum.) 1

Civil Procedure Code, 1908—

—Order I, Rule 10—If the propounder wants to withdraw from the case or wants to abandon it, does not take any step—And if any defendant claims interest under the Will—Court in such a situation may not allow the propounder to withdraw the suit., 2019 (204) AIC (Jhar., H.C.) 845

Civil Procedure Code, 1908—

—Order I, Rule 10—Impleadment of petitioner as an additional defendant—Petition against—A Court has to first decide whether the liability, based on which the plaintiff seeks a decree, is to be answered by someone else other than the defendant—But where it is expressly conceded that the Bank does not have any such case and that they do not want to claim any amount against anyone else, they cannot be forced to fight against a party, who they do not want to array as a defendant, unless there is a compulsion in law—Original petition is allowed., 2019 (204) AIC (Ker., H.C.) 415

Civil Procedure Code, 1908—

—Order I, Rule 10—Impleadment—Impleadment application by third party in a suit for specific performance of contract—Sustainability—Plaintiff who filed a suit for specific performance of contract to sell is dominus litus—He cannot be forced to add parties—Against whom he does not want to fight—Unless it is a compulsion of rule of law—A third party or a stranger to contract—Cannot be added in a suit for specific performance of contract to sell—Because they are not necessary party as no semblance of right to some relief against party to contract—In a suit for specific performance of contract to sell—Lis between vendor and persons in whose favour agreement to sell executed shall only be gone into and it also not open to Court to decide whether any other parties acquired any title and possession of contracted party—Therefore, appellant cannot be impleaded as defendant in suit filed by original plaintiffs for specific performance of contract—High Court rightly set aside order passed by Trial Court allowing application of appellant for impleading him as party in suit—Appeals dismissed., 2019 (204) AIC (S.C.) 235

Civil Procedure Code, 1908—

—Order I, Rule 10—Impleadment—Rent control proceedings—Dismissal of impleadment application of petitioner/legatee—Legality—Rent case filed by Ist respondent against IInd respondent seeking eviction on ground of wilful default in payment of rent—IInd respondent disputed existence of jural relationship of landlord and tenant between 1st respondent and himself—During pendency of case, schedule property gifted to petitioner by Ist respondent—Respondent No. 1 not opposed impleadment—Since no dispute about title as between Ist respondent and petitioner—Therefore, nothing wrong in petitioner getting impleaded—Impugned order set aside—Revision allowed., 2019 (204) AIC (Hyd., H.C.) 490

Civil Procedure Code, 1908—

—Order I, Rule 10—Suit for declaration of title and permanent injunction by respondent No. 1—Petitioner/defendant filed application under Order I, Rule 10, CPC for declaring the unregistered sale-deed as a forged document—Trial Court rejected the application—Hence the present writ petition—Held, it was not the case of the petitioner that he was the owner of suit land—His contention was that respondent No. 1 was trying to grab the Government land by creating a forged document—Proceeding under section 145, Cr. P.C. had culminated into a finding that the disputed land was a Government land—Son of the petitioner had already filed a civil suit claiming title over the same suit land by virtue of an registered sale-deed—His application under Order I, Rule 10, CPC had also been allowed—Order would apply in the present case also—Order impugned of Trial Court set aside—Petition allowed., 2019 (204) AIC (M.p., H.C.-G.B.) 708

Civil Procedure Code, 1908—

—Order I, Rule 10, Order XXIII, Rule 1 and Order XXIII, Rule 1-A—Grant of Probate—Petitioner filed a probate case in respect of registered Will—Respondent Nos. 1 to 11 had no objection—Due to objection of other respondents, the probate case was converted to title suit—During pendency, the petitioner filed a petition under Order XXIII, Rule 1, C.P.C. and respondents (1 to 8) filed petition under Order XXIII, Rule 1-A, C.P.C. for transposing them as plaintiff and the petitioner as defendant—Trial Court allowed the petition of respondents—Hence, the present writ petition under Article 227—Held, in the petition filed by the plaintiff under Order XXIII, Rule 1, C.P.C. no such satisfactory reason given by the plaintiff was as found by the Trial Court—Only assertion was that petitioners did not want to proceed with the case filed for grant of probate—Hence, Trial Court refused the plaintiff to withdraw the probate case—On the basis of Will in question, the respondent Nos. 1 to 8 had got valuable interest in the property under Will and the withdrawl of suit by plaintiff would result in eradication of interest of respondent Nos. 1 to 8—Trial Court rightly rejected the petition of petitioner—Writ petition dismissed.

, 2019 (204) AIC (Jhar., H.C.) 845

Civil Procedure Code, 1908—

—Order I, Rule 10(2)—Title suit—Petitioner moved application to be impleaded—Rejected by Court below on the ground that he was not a necessary

Civil Procedure Code, 1908—

party—Hence, the present writ petition by petitioner—Held, the provision of Order I, Rule 10(2) of C.P.C. clearly stipulates that a party is said to be necessary if in absence thereof proper adjudication of the suit is not possible—Finding of the Court below was that the presence of the petitioner was not necessary for making him necessary party affecting the proper adjudication of the suit—Trial Court committed no error in passing the order impugned.

, 2019 (204) AIC (Jhar., H.C.) 840

Civil Procedure Code, 1908—

—Order I, Rule 10(2), Order XXII, Rule 4(4)—Title suit—Trial Court allowed the application of the plaintiff under Order XXII, Rule 4(4) C.P.C. read with section 151, C.P.C. for exemption from substitution of the defendant No. 23 (since died)—Application was allowed—Petitioners claimed to be the representatives of deceased defendant No. 23 filed application under Order I, Rule 10(2) C.P.C. for their impleadment which was rejected—Hence, the present writ petition under Article 227 of Constitution of India—Held, the proceeding had been set ex parte way back on 5.4.2011 while the defendant No. 23 (father of petitioner) died on 27.11.2014—For a substantial period, the defendant No. 23 had accepted the order—Hence, no illegality committed by Trial Court by rejecting the substitution application of the petitioners being sons of defendant No. 23 as the same would amount to setting the ex parte proceeding as being superseded without being questioned—No interference warranted with the order impugned—Writ petition failed and dismissed.

, 2019 (204) AIC (Jhar., H.C.) 850

Civil Procedure Code, 1908—

—Order VI, Rule 17—Amendment in written statement—Prayer for—Dismissal—Legality—Subsequent amendment application after dismissal of earlier amendment application which stood dismissed as not pressed—Sustainability—Since earlier amendment petition stood dismissed by Court below not on merits—As such rejection of previous amendment application—Does not bar subsequent amendment application—Therefore, reasoning of Trial Court in impugned order—Neither plausible nor sustainable in eyes of law—Set aside—Matter remanded—Petition allowed. , 2019 (204) AIC (Pat., H.C.) 741

Civil Procedure Code, 1908—

—Order VII, Rule 11, Sections 11 and 115—Suit for declaration of title and declaration regarding the sale-deed as null and void—Application under Order VII, Rule 11, CPC filed by defendant No. 14, 15, 17 and 18 or new suit was not tenable on the basis of principle of res judicata—Court below dismissed the application on the ground that nature of both the suits were different—Hence the present revision by defendants—Held, land in dispute was same in both the suits—The Plaintiff Karan Hora of second suit was on the footing of Narain Singh etc. who were plaintiff in the previous suit—Defendants were on the footing of Siddeshwari Devi who was defendant No. 6 in the previous suit—Kuddus Khan was the real owner of suit land which was purchased by Siddeshwari Devi during the pendency of previous suit—The new suit was also filed for declaration of title with further prayer of declaring the suit as null and void—It was clear that cause of action was same—Since previous suit was dismissed, therefore the second suit was not tenable—Order impugned set aside—Revision allowed. , 2019 (204) AIC (M.p., H.C.) 689

Civil Procedure Code, 1908—

—Order IX, Rule 13—Suit for damages by first respondent—Injuries suffered by him in an unfortunate incident of bomb blast occurred near gate Nos. 4 and 5 of Delhi High Court—Additional District Judge awarded ex parte compensation—Appellants moved application under Order IX, Rule 13, CPC before Trial Court, which was dismissed—Hence the instant appeals—Held, appellants were duly served, the notices having been addressed and delivered at the office of Secretary of Home Department of each Government—The appellants had ample time and opportunity to come back to the Court below to seek opportunity for participation which they failed to do resulting in the ex parte order of compensation by Court below—No ground to interfere with the order impugned—Appeals dismissed., 2019 (204) AIC (Del., H.C.) 597

Civil Procedure Code, 1908—

—Order XII, Rule 6—Acquisition of tours and travel business of respondent No. 3—After transfer of business and liabilities, petitioner found that it had bought excess liabilities than what was agreed upon—An instrument was executed by the respondents No. 1 and 2 to pay excess amount to the petitioner—They made the original title deed of one of the properties to the petitioner—Against the default by respondents, the petitioner filed a recovery suit alongwith an application under Order XII, Rule 6, CPC—Held, the contention of the respondents No. 1 and 2 was that by virtue of coercion and undue influence they had executed the instrument—However, the respondents had not alleged to have filed any suit against the present petitioner for avoiding the said instrument—The respondent No. 1 had not also filed any suit against the

Civil Procedure Code, 1908—

petitioner for the recovery of his salary (being the amount recovered by the petitioner from his salary)—Respondents failed to make out any case against the petitioner—Application filed under Order XII, Rule 6, CPC allowed—There would be a judgment upon the admission against the respondents No. 1 and 2., 2019 (204) AIC (Cal., H.C.) 548

Civil Procedure Code, 1908—

—Order XII, Rule 6—For exercise of discretion of the Court under Order XII, Rule 6, CPC, the admission must be unequivocal—Such admission may be in pleading or elsewhere—At the same time, it is also settled position that a defendant contesting an application under Order XII, Rule 6, CPC can explain his/her admission., 2019 (204) AIC (Cal., H.C.) 549

Civil Procedure Code, 1908—

—Order XII, Rule 6—Specific Relief Act, 1963—Section 16 (c)—Memorandum of Understanding—Terminated by sole defendant—A declaratory suit by plaintiff—No prayer for specific performance of the MOU—There was a so-called admission in para-2 of the written statement—Plaintiff moved an application seeking a judgment on admission on the basis of averment made in para 2 of written statement—Held, the law is settled that a pleading (and an admission) must be read in full—There can be no admission of a case not pleaded—On any reading of the written statement as a whole, it could not be said that there was any admission in the written statement—Rather it was saying that although MTDC was always ready and willing to perform its obligations, the plaintiff was not and hence the termination—That was the averment in full—Notice of Motion dismissed., 2019 (204) AIC (Bom., H.C.) (Sum.) 6

Civil Procedure Code, 1908—

—Order XII, Rule 6 read with Order VIII, Rule 5—An admission, to serve as the foundation of judgment, must be clear, unambiguous and unequivocal—An admission cannot be withdrawn by amendment—It is settled law that Order XII, Rule 6, CPC is subject to the provisions of Order VIII, Rule 5 and despite any such admission, a Court may demand proof., 2019 (204) AIC (Bom., H.C.) (Sum.) 6

Civil Procedure Code, 1908—

—Order XVI, Rule 14—Calling an adversary as a witness by one of the parties to suit—Legality—Not desirable—Impugned order set aside—Liberty granted to respondent not to lead further evidence to prove deposition of petitioner recorded in another suit—Ordered accordingly., 2019 (204) AIC (A.P., H.C.) 508

Civil Procedure Code, 1908—

—Order XVI, Rule 14—Summoning of witness—Jurisdiction of Court—It is discretion of Trial Court—To examine any person at trial including a party to suit—Exception to Rule—Person so to be called, as a witness by a party—Should not have been cited or called as a witness by same party—It is also discretion of Court to summon such a witness on its own motion—Either to depose or to produce any document in his possession., 2019 (204) AIC (A.P., H.C.) 508

Civil Procedure Code, 1908—

—Order XVIII, Rule 17—Recall application—Application for recall of P.W. 2 for cross-examination—Dismissal—Legality—Petitioners having knowledge about pendency of suit—Yet did not cross-examine P.W. 2—No explanation for their conduct furnished by petitioners—Thus, lack of diligence on part of petitioners—Thus, no jurisdictional error committed by Trial Court in dismissing application of petitioners—Revision dismissed., 2019 (204) AIC (Hyd., H.C.) 491, 2019 (204) AIC

Civil Procedure Code, 1908—

—Order XXI and section 47—Specific Relief Act, 1963—Section 28—Execution of decree—Dismissal of application for execution of a decree in a suit for specific performance—Legality—Appellant deposited an amount of R 5,85,000/- in partial satisfaction of decree of Trial Court in suit for specific performance—Placed in issue before Appellate Court—After Appellate Court affirmed decree—Decree of Trial Court merged with Appellate Court—Barely a month after decree of Appellate Court-appellant deposited balance of sale consideration—Thus, appellant acted bona fide—Equities in a matter arising out of a decree in suit for specific performance—Must weigh in his favour—Therefore, High Court acted in excess of its revisional jurisdiction—Impugned order of High Court set aside—Appeal allowed., 2019 (204) AIC (S.C.) 163

Civil Procedure Code, 1908—

—Order XXII, Rule 3—Death of appellant/plaintiff—Effect of—In instant appeal, the appellant and respondent No. 1 filed application for heirship certificate—Both claimed to be the legally wedded wife of the deceased—Both were claiming pensionary benefits—Heirship certificate was granted to appellant by Court below—Regular civil appeal of respondent was allowed—Hence the instant second appeal by appellant—During pendency of appeal, the appellant died—Application was preferred to bring her legal representatives on record—Claim of appellant as legally wedded wife of deceased was her personal right—Right to sue ended after her death, hence the question of substitution by legal representatives would not be granted—Application dismissed—Resulatantly the appeal became infructuous., 2019 (204) AIC (Bom., H.C.) 284

Civil Procedure Code, 1908—

—Order XXII, Rule 4 read with Rule 9—Application—To bring on record the legal representatives of deceased, one of the defendants—Application filed beyond the period of limitation—Appellate Court erred in allowing the application—Without proposed legal representatives of such deceased being properly served and without affording them an opportunity of being heard—Hence impugned order is set aside with direction to Appellate Court to adjudicate the same afresh., 2019 (204) AIC (H.P., H.C.) 299

Civil Procedure Code, 1908—

—Order XXII, Rule 4 (4)—If the petitioners were avoiding notices, the respondent could have requested the Court below to exercise its power under Order XXII, Rule 4 (4) and would have passed a decree on merits.

, 2019 (204) AIC (Mad., H.C.) (Sum.) 13

Civil Procedure Code, 1908—

—Order XXII, Rules 101 and 102—Specific Relief Act, 1963—Sections 22 and 28 (1)—Suit for specific performance of contract against ancestors of the petitioners—Suit was allowed with direction to execute the sale deed in favour of plaintiffs—Appeal of respondents was allowed—However, High Court restored the judgment and decree of Trial Court—Sale deed was executed in favour of decree holder through process of Court—Decree holder filed another application subsequently for deputation of Magistrate and Police force in execution case which was objected by the judgment debtor—Executing Court allowed the application—Hence, the present writ petition questioning the jurisdiction of Executing Court—Held, the Executing Court had rejected the objection of the judgment debtors on the ground that earlier there was only symbolic possession—In order to give delivery of possession, the Executing Court had passed the order impugned—No interference with the order impugned as the subsequent application was maintainable—Writ petition dismissed.

, 2019 (204) AIC (Jhar., H.C.) 805

Civil Procedure Code, 1908—

—Order XXVI, Rule 9—Commission for local inspection—Application for appointment of Advocate Commissioner for same—Dismissal—Suit for permanent injunction—Appointment of Advocate Commissioner sought to “compare photographs” filed alongwith plaint and also to “note down physical features of plaint schedule property—Sustainability—Comparison of photograph not local inspection—No dispute about very existence of property or survey number—Therefore, Trial Court committed no error in dismissing application—Revision dismissed., 2019 (204) AIC (A.P., H.C.) 504, 2019 (204) AIC

Civil Procedure Code, 1908—

—Order XXVI, Rule 10-A—Evidence Act, 1872—Section 112—DNA Test—Paternity of son—Husband has applied for DNA Test of son—Application for DNA test—Merely because of presumption under section 112 of Evidence Act—An application for seeking DNA test cannot be ousted—However no guardian or parent would be authorized to get DNA test conducted of a minor by seeking prior permission of Court—On such application the Court will first examine some points—In view thereof, the application by petitioner husband is liable to be rejected. , 2019 (204) AIC (Raj., H.C.-j.b.) 785

Civil Procedure Code, 1908—

—Order XXXVII, Rule 3 (5)—Summary suit—Grant of conditional leave to defend summary suit—Sustainability—In a summary suit, if defendant discloses such facts of a prima facie, fair and reasonable defence—Court may grant unconditional leave to defend—However, in an appropriate case, if Court satisfied of plausible or probable defence and which defence not considered a sham or moonshine—But yet leaving certain doubts in mind of Court—It may grant conditional leave to defend—Discretion vested in Court—Requires it to maintain delicate balance between respective rights and contentions—In present suit, commercial dealing between parties not in issue at all—According to plaint of respondent, commercial dealing between parties ended on 3.6.2011—Why outstanding payment in respect of same—Came to be made by cheque as late as March 1st, 2014—Does not appeal to logic or reason—Respondent did not furnished any explanation with regard to same—As per contention of appellant, signatures and contents of cheques in different writings—Return of defective goods and payment of balance due of R 5,00,000/- as contended by appellant—Not denied by respondent—Since appellant raised a substantial defence and genuine triable issues—Therefore, no justification to grant conditional leave to defend—Therefore, impugned order set aside—Appellant granted unconditional leave to defend—Appeal allowed.

, 2019 (204) AIC (S.C.) 230

Civil Procedure Code, 1908—

—Order XXXIX, Rules 1 and 2, and Order XLIII, Rule 1 (r)—Grant of temporary injunction—To the plaintiff upon his application under order Order XXXIX, Rules 1 and 2—Hence, the present appeal by defendant—Held, Trial Court essentially exercised discretionary jurisdiction under Order XXXIX, Rules 1 and 2, CPC—Hence, unless, the discretion so exercised suffered from perversity of approach or vitiated by glaring errors of fact or law or capricious or palpably perverse, the Appellate Court normally should not interfere with exercise of jurisdiction in appeal if other view was possible—Order so passed was speaking and well reasoned—No interference warranted—Appeal dismissed., 2019 (204) AIC (M.p., H.C.-I.B.) 700

Civil Procedure Code, 1908—

—Order XLI, Rules 23, 23-A and 25—Appellate Court is empowered to order of remand of a suit in three circumstances clearly enumerated in Rules 23, 23-A and 25., 2019 (204) AIC (Cal., H.C.) 535

—Order XLI, Rule 27—Additional evidence at appellate stage—Application for production of additional evidence—Jurisdiction of Appellate Court—Appellate Court authorised to consider application for production of additional evidence., 2019 (204) AIC (Gau., H.C.) 656

Civil Procedure Code, 1908—

—Order XLI, Rule 27—Suit for declaration of title by plaintiffs/respondents—Suit was decreed—Petitioner Board preferred appeal—A petition moved by petitioners under Order XLI, Rule 27 praying that the certified copy of a judgment in a suit, appeal and second appeal might be taken as an additional evidence—Petition rejected—Hence, the present petition—Held, no such application was filed before the Trial Court which had been rejected as required under the proviso to 1(a) to Order XLI, Rule 27 C.P.C.—Due diligence had also not been shown as required under Order XLI, Rule 27 C.P.C.—No interference with the order impugned—Petition failed and dismissed., 2019 (204) AIC (Jhar., H.C.) 854

Civil Procedure Code, 1908—

—Order XLI, Rule 31—Non-compliance of provision—Effect of—Non-compliance of provisions of Order XLI, Rule 31, CPC will not vitiate judgment it wholly void and it may be ignored if there has been substantial compliance with it—In present case, Lower Appellate Court not complied with provisions of Order XLI, Rule 31, CPC—Neither any point for determination framed—Nor any reason given in judgment as to why it dismissed appeal or why such judgment passed—Lower Appellate Court, without application of mind—Copied plaint averments, averments made in written statement and findings recorded by Trial Court on issues framed—Therefore, without assigning any reason and without dismissing controversy involved dismissed appeal in cursory manner—Thus, depriving appellant of his valuable right—Therefore, Appellate Court below failed to substantial compliance of provision—Impugned judgment set aside—Appeal allowed—Matter remanded., 2019 (204) AIC (Alld., H.C.) (Sum.) 16

Civil Procedure Code, 1908—

—Order XLIII, Rule 1 (4)—An appeal shall lie from an order of remand only in those cases in which an appeal would lie against the decree—If the Appellate Court instead of making an order of remand had passed a decree on the strength of the adjudication of which the order of remand was passed.

, 2019 (204) AIC (Cal., H.C.) 535

Civil Procedure Code, 1908—

—Order XLIII, Rule 1 (4)—In an appeal against remand under Order XLIII, Rule 1 (4), CPC, the High Court must confine itself to such facts and circumstances—Which have a bearing on the order of remand and cannot canvass all the findings of fact arrived at by the Lower Appellate Court.

, 2019 (204) AIC (Cal., H.C.) 535

Constitution of India, 1950—

Article 12—‘State’—A mere land arrangement allowing a society to run an institution for benefits of its employee—Will not automatically make institution an authority under Article 12 of Constitution., 2019 (204) AIC (Pat., H.C.) 756

—Articles 14 and 19(1)(g)—Partnership Act, 1872—Section 4—Jharkhand Excise Act, 1915—Section 89—Citizenship Act, 1955—Section 2—Allotment of retail excise shops—In lottery, the appellants were declared successful—However, the respondent No. 4 cancelled the allotment on the ground that appellants participated in the bid in the name of partnership firm which was not permissible—Writ petition filed by the appellants was dismissed—Hence, the present letters patent appeal—Held “partnership” is only a relation—If the ‘partners’ are the ‘persons’ who are citizens of India and not aged less than 21 years, no reason as to why in the garb of Rule 2(xxx) of Rules, 2018, the firm could be debarred from making application for allotment of retail excise shops—Order of learned Single Judge set aside—Appeal allowed.

, 2019 (204) AIC (Jhar., H.C.) 816

Constitution of India, 1950—

—Articles 32, 14, 19 (1) (d) and 21—Prayer of petitioner that as Director he agreed to sell units in the Mall and Commercial Tower to intending purchasers—FIRs lodged against the petitioner at different points of time regarding non-completion of project and consequent failure to deliver possession—Prayer of petitioner that all the FIRs, registered in the State of U.P. or State of NCT of Delhi be consolidated and investigation be entrusted to one agency—Contention of complainants that there is failure on part of the petitioner to complete the project and deliver possession of the concerned units—Assertion by the petitioner that project has been substantially completed and complainants are unwilling to take possession and pay the balance amount—Until entire issue is debated and considered by the Court, to meet the ends of justice it would be expedient to stay the further proceedings in connection with all the FIRs registered or to be registered hereinafter in the State of NCT of Delhi—Petitioner granted bail in respect of all the FIRs—Conditions imposed—Proceedings emanating from FIRs registered at Police Station Parliament Street or Economic Offences Wing in connection with project named “Ground Venice” to remain stayed until further orders—Application for interim relief disposed of accordingly., 2019 (204) AIC (S.C.) (Sum.) 4

Constitution of India, 1950—

—Article 136—Appeal by way of Special Leave—Court will ordinarily not attempt to reappreciate the evidence on record unless there is manifest error committed by the Trial Court and the High Court—Merely because another view was possible, cannot be ground to interfere with the findings recorded by the Courts below., 2019 (204) AIC (S.C.) 19

Constitution of India, 1950—

—Article 226—Foreigners Act, 1946—Section 9—Evidence Act, 1872—Section 106—Foreigners Tribunal declared the petitioner as a foreigner—Hence, the present writ petition—Held, petitioner at the time of cross-examination could not say the name of his wife or his paternal grand-father—It was also not the case of the petitioner that his statement was wrongly recorded before Foreigners Tribunal—Post 25.3.1971 documents were not conclusive proof that the petitioner had entered Assam on or before 25.3.1971—Evidence of D.W. 2 and D.W. 3 could not be read in favour of the petitioner as their evidence would be construed to be beyond the pleadings of the petitioner—No merit in the petition—Dismissed., 2019 (204) AIC (Gau., H.C.) (Sum.) 11

Constitution of India, 1950—

—Article 226—Grabbing of land by company—Allegations of—Public Interest Litigation—Maintainability of—No Public Interest Litigation can be preferred for land dispute—Aggrieved persons themselves can come to Court—Either before this Court or looking to nature of allegation—Such parties can go before Trial Court—Further, persons whose lands, allegedly grabbed by respondent—Their names not mentioned in petition—Omnibus allegations against company for doing something in violation of Chhota Nagpur Tenancy Act—No specific allegation or no specific incident argued out by petitioner—Petition dismissed with cost of R 5,000/-., 2019 (204) AIC (Jhar., H.C.) (Sum.) 7

Constitution of India, 1950—

—Article 226—Medical Termination and Pregnancy Act, 1971—Section 3 (2) (b) (ii)—Termination of pregnancy of rape victim—Petition for—In view of categoric recommendation given by Medical Board—Permission granted to petitioner No. 3 to undergo medical termination of pregnancy—Petition allowed., 2019 (204) AIC (P&H., H.C.) (Sum.) 14

Constitution of India, 1950—

—Article 226—Recovery of price—Against the medicines sold and delivered by writ petitioners to the respondent No. 6—Objection of respondents was regarding the maintainability of writ petition—It was further contended that the petitioners should file suit for recovery of money—Held, respondent could not produce any document to show that the rates allegedly prescribed by the Government were made known to the petitioners—Any change in the prescribed rates of procurement of medicines could not bind the petitioners for they had supplied the medicines in terms of the contract in first two cases (W.P. No. 337/2018 and 338/2018)—As no valid orders had been issued to the petitioner of W.P. No 339/2018 and 340/148 their cases could not conveniently be decided by Writ Court under Article 226 of the Constitution of India The because those required evidence for the fixation of compensation which they were entitled to receive—Writ petitions disposed of., 2019 (204) AIC (Cal., H.C.) 522

Constitution of India, 1950—

—Article 227—A temporary injunction will be said to be an order interlocutory in nature and therefore, the order passed by the Appellate Authority being interlocutory in nature, petition under Article 227 of Constitution of India will lie., 2019 (204) AIC (Jhar., H.C.) 825

Constitution of India, 1950—

—Article 227—High Court’s power of superintendence under Article 227 is a power to keep the Subordinate Courts within the bounds of the authority, to see that they do what their duty requires and that they do it in a legal manner.

, 2019 (204) AIC (Jhar., H.C.) 825

Consumer Protection Act, 1986—

Section 2 (1) (d) (ii)—Case against Union Government—Grant of REP licence in terms of import and export policy—Scheme of issuance of REP was discontinued—Respondent claimed R 1,23,223/- as premium of 20% on the amount of exports under the scheme—Respondent was not able to get his claim—District Consumer Forum allowed the claim—It was confirmed in revision by National Consumer Disputes Redressal Commission (NCDRC)—Hence the instant civil appeal—Respondent claimed that he was entitled to a premium against the REP licences which constituted a benefit provided and hence was a part of the services rendered by the Union Government to an exporter—Held, the Exim Policy is an incident of fiscal policy of the State and its overall control over foreign trade—In policy, the state provides a regime of incentives—The provision of those incentives does not render the State as a service provider—The grant of these incentives does not constitute the state as a service provider—District Consumer Forum lacked jurisdiction to entertain the complaint arising out of and founded on an REP licence governed by Exim Policy—Order impugned passed by NCDRC set aside—Appeal allowed.

, 2019 (204) AIC (S.C.) 59

Consumer Protection Act, 1986—

—Section 2 (d) (ii)—Dispute between parties regarding delivery of apartments—Complaint by respondent-society before State Consumer Disputes Redressal Commission (SCDRC)—Complaint was partly allowed by SCDRC—Appeal by Construction Company before National Consumer Disputes Redressal Commission (NCDRC)—Order of SCDRC was upheld by NCDRC—Hence the instant appeal by the Construction Company—Held, the prayer of the respondent-society for recovery of R 25 lacs given by the members of the respondent-society towards all loans, liabilities, etc. of the builder which was agreed to be paid by the appellants called for no interference—Regarding payment of compensation of R 3 lac by the appellant on the ground that occupancy certificate was not obtained, the fact was that there was some delay due to some alteration allegedly carried out by the members of the society in their flats and the delay was also due to some objection raised by the Municipal Corporation therefore the claim of R 3 lac by society was liable to set aside—Moreover, payment of R 1,000/- per day to the respondent-society for the delay in giving possession was also unsustainable as for the delay the members of society and Municipal Corporation were also responsible—Appeal partly allowed with directions., 2019 (204) AIC (S.C.) 92

Consumer Protection Act, 1986—

—Sections 2 (d) (ii)—State Consumer Disputes Redressal Commission (SCDRC) directed the appellant to hand over physical possession of the units to the respondents—Appeal by appellant before National Consumer Disputes Redressal Commission (NCDRC)—NCDRC partially modified the order passed by SCDRC—Hence, the instant appeals by appellant—Held, the Forums under the 1986 Act are empowered to award compensation including building damages but the orders of NCDRC or that of SCDRC of awarding compensation was without any foundation being laid down by the complainant on judicially recognized principles and was by rule of thumb—Hence, grant of compensation granted by NCDRC was unsustainable—The complainants were entitled to get interest from the appellant for not handing over possession but awarding special punitive damages as one of the causes for late delivery of possession was beyond the control of the appellant—Grant of interest at the rate of 15% by SCDRC was highly excessive—Order modified to the extent of paying interest at the rate of 9% from the date of deposit till the date of refund—Cost of R 35,000/- by SCDRC maintained—Appeal partly allowed., 2019 (204) AIC (S.C.) 103

Consumer Protection Act, 1986—

—Sections 13 (6) and 12 (1) (c)—Builder and buyer agreement—Deficiency in service—Complaint on behalf of all buyers—Maintainability—Persons who may be represented in complaint held do not have same cause of action—Requirement for application that person concerned must have common interest or common grievance—By virtue of section 13 (6) of Consumer Protection Act, provisions of Order I, Rule 8 of CPC apply to consumer complaints filed by one or more consumers where numerous consumers have same interest—Whereas interest is akin to common grievance against same person—Impugned order passed by National Consumer Forum holding application not maintainable—Set aside, accordingly, application preferred by appellants under section 12 (1) (c) of Act, 1986 held maintainable—Appeal allowed. , 2019 (204) AIC (S.C.) 170

Consumer Protection Act, 1986—

—Deficiency of service on the part of respondents—Dispute related to a residential flat—National Consumer Disputes Redressal Commission (NCDRC) dismissed the complaint—Held, appellant was directed to file rejoinder affidavit within fixed period—After fixed period the complainant was not granted further time and the complaint was dismissed—NCDRC should not have dismissed the complaint on a technicality—Such dismissal would defeat the purpose of ensuring justice in the consumer fora—Order impugned set aside—Consumer complaint restored to its original number to the file of NCDRC—Appeal disposed of., 2019 (204) AIC (S.C.) 205

Consumer Protection Act, 1986—

—Medical negligence—Death of patient due to negligence on the part of respondents—Damages awarded by State Consumer Disputes Redressal Commission (SCDRC)—National Consumer Disputes Redressal Commission (NCDRC) modified the compensation by reducing the amount—Hence the instant appeal—Held, compensation should have been calculated on the basis of twin criteria of age and income—When the SCDRC had awarded compensation of R 6 lacs, the NCDRC should not have interfered—However amount of compensation payable by operating Surgeon to the hospital as the liability of hospital to pay the amount was vicarious as the death has occurred during the course of employment of operating Surgeon with the said Hospital—Entire amount of R 6 lacs would be payable by the hospital—Appeal partly allowed.

, 2019 (204) AIC (S.C.) 206

Contract Act, 1872—

Section 25 (3)—By way of the acknowledgment of the liability on the part of the defendants, they had promised to pay the part of the debt, for which the plaintiff would have enforced payment but for the law for the limitation of the suit—Such a promise would amount to a contract and accordingly, it is seen that by way of the above said acknowledgment, the suit laid by the plaintiff would not be hit by the law of limitation—Held, the First Appellate Court has erred in determining that the suit is barred by limitation by failing to consider the acknowledgment of liability on the part of the defendants by making partial payment and the applicability of section 25 (3) of the Indian Contract Act—Second appeal is allowed., 2019 (204) AIC (Mad., H.C.) 716

Contract Act, 1872—

—Section 62—Second appeal—Specific performance of an agreement to sale—Suit for—Decreed by Trial Court granting alternate relief of refund of advance sale consideration—Legality—No prayer for in suit seeking specific performance of Ex. A-1 agreement as modified Ex. A-3—Parties intended conveyance of both plaint ‘A’ and ‘B’ schedule properties—Plaintiff did not perform his part of contract—Agreements entered into at a point of time when defendant in penury—Thus, Court below rightly refused a decree for specific performance—However, Court below not right in declining interest on advance amount—Accordingly appeal filed by plaintiff partly allowed—However, appeal filed by defendant dismissed in absence of proper pleadings or evidence to substantiate claim. , 2019 (204) AIC (Ker., H.C.) 347