Code of Civil Procedure, 1908 [India] Case Reference

Code of Civil Procedure, 1908 [India)

Section 100-2nd Appeal Remanded to the High Court for deciding the appeal on merits- Relief of partition by meets and bounds of the suit property and, in consequence, also claimed her separate possession in the suit property. The appeal and remand the case to the High Court for deciding the second appeal afresh on merits in accordance with law. The case is now remanded to the High Court for deciding the appeal on merits in accordance with law. We, however, request the High Court to admit the second appeal, frame appropriate substantial questions of law as required under Section 100 of the Code, keeping in view the pleadings, findings of the two courts below and the documents (exhibits). Efforts should be made to settle the dispute amicably. Indeed, it was also stated by learned counsel for the appeal preferably within six months. .Sk. Bhikan =VS= Mehamoodabee, [3 LM (SC) 47]

Order I, Rule 10(2) Ejectment Suit-

Any finding whether directly or indirectly, if recorded by the Trial Court touching the question of title over the suit property, would not be binding on respondent No.1 regardless of the outcome of the suit and respondent No. 1 would be free to file an independent civil suit against the appellants for a declaration of his right, title and interest in the suit premises and in any other properties, if so, and claim partition and separate possession of his share by metes and bounds in all such properties. The application filed by respondent No. 1 under Order 1 Rule 10(2) of the Code in the aforementioned ejectment suit is dismissed...... Kanaklata Das =VS= Naba Kumar Das, [4 LM (SC) 48]

Order VII, Rule 11- Res judicata- An issue of law which arises between the same parties in a subsequent suit or proceeding is not res judicata if, by an erroneous decision given on a statutory prohibition in the former suit or proceeding. Res judicata cannot stand in the way of an erroneous interpretation of a statutory prohibition. The present is one such case. Therefore, the second order must also be set aside. The appeal is allowed. ...SCG Contracts India Pvt. Ltd.-VS-K.S. Chamankar Infras. Pvt. Ltd., [6 LM (SC) 24]

Order VII Rule 11(a) Enquiry can be taken up at any stage- It appears, the High Court committed a mistake in the present case, since four out of the six issues settled were taken as the preliminary issues. Two such issues actually are relatable only to Order VII Rule 11 of the Code, in the sense those issues pertained to the rejection at the institution stage for lack of material facts and for not disclosing a cause of action. Merely because it is a trial on preliminary issues at the stage of Order XIV, the scope does not change or expand. The stage at which such an enquiry is undertaken by the court makes no difference since an enquiry under Order VII Rule 11(a) of the Code can be taken up at any stage. ......Kuldeep Singh Pathania VS Bikram Singh Jaryal, [3 LM (SC) 26]

Order VII Rule 11(a) The court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the court exercising the powers under Order 7 Rule 11 of the Code. The High Court, in our considered opinion, stepped into prohibited area of considering correctness of allegations and evidence in support of averments by entering into the merits of the case which would be permissible only at the stage of trial of the election petition and not at the stage of consideration whether the election petition was maintainable and dismissed the petition. The said action, therefore, cannot be upheld and the order deserves to be set aside." We have been taken through the averments in the election petition and we are satisfied that the petition has disclosed a cause of action, it is not necessary to remit the petition for a fresh enquiry in that regard. The appeal is however allowed, the impugned order is set aside and the election petition is remitted to the High Court to try it on merits expeditiously, and being one filed in the year 2013, preferably within a period of four months. We make it clear that we have not expressed any opinion on the merits of the case. ..... Kuldeep Singh Pathania VS Bikram Singh Jaryal, [3 LM (SC) 26]

Order VII, Rule 14 r/w Order VI, Rule 17- The two applications filed by the appellant (plaintiff), i.e., one filed under Order 7 Rule 14 and the other under Order 6 Rule 17 of the Code are allowed, however, subject to the appellant paying a cost of Rs.10,000/- to the respondents. Let the cost be paid by the appellant to the respondents within one month. The appellant(plaintiff) is also allowed to file the additional documents, as prayed by him. The respondent(defendant) is also granted an opportunity to file additional documents in rebuttal, if they so desire. .....N.C. Bansal =VS= Uttar Pradesh Financial Corporation, [4 LM (SC) 89]

Order 9 Rule 13- Remand of the case to the Trial Court for fresh adjudication- In our considered opinion, after the suit was restored at the instance of defendant Nos. 3 and 4, the Trial Court committed another error inasmuch as it again did not issue fresh notice of the suit to defendant Nos. 1 and 2. In other words, defendant Nos. 1 and 2 were entitled for a fresh notice of the suit once restored despite their non- appearance in the first round of trial in the suit and in Order 9 Rule 13 proceedings. We are inclined to uphold the remand order, but that we do so on the basis of aforementioned two grounds noticed by us in the proceedings in the suit and in Order 9 Rule 13 proceedings. The two legal infirmities noticed by us in the proceedings call for remand of the case to the Trial Court for fresh adjudication of the civil suit on merits in accordance with law. .....Jayaprakash VS= T.S. David, [4 LM (SC) 41]

Order 9 Rule 13- Ex parte decree-

We are of the view that the Division Bench was justified in allowing the applications filed by defendant No.1 under Order 9 Rule 13 of the Code and, in consequence, was justified in setting aside the preliminary decree dated 25.02.2003 passed in O.S. No.131/1999 treating the said decree as "ex parte decree".

Finding on the question of sufficient ground for setting aside of the ex parte decree is concerned, suffice it to say, it being a pure question of fact, the same does not call for any interference by this Court. A finding on such question is binding on this Court. Moreover, we find that the Division Bench imposed a cost of Rs.10,000/on defendant No.1 payable to the plaintiff as condition for setting aside the ex parte decree. Defendant No.1, therefore, must pay the cost to the plaintiff.

Since the original plaintiff has died and his legal representatives are already brought on record in these appeals, the Trial Court will permit the plaintiff to amend the cause title in the plaint and bring on record the legal representatives(appellants herein) to enable them to prosecute the suit on merits in accordance with law.... G. Ratna Raj =VS= Sri Muthukumarasamy Permanent Fund Ltd., [6 LM (SC) 37]

Order XIV Rule 2- The High Court dealt with the violations referred to above extensively so as to find out whether a cause of action is made out, but committed a grave error by considering the explanations offered in the replies filed by the respondents. All the three violations have been discussed meticulously by the High Court with reference to the replies furnished by the respondents and the court came to the conclusion that the petition did not disclose any cause of action since it lacked material facts. The High Court ventured into such an elaborate enquiry in the light of the pleadings in the replies, to see whether the result of the election has been materially affected, apparently or rather mistakenly, under Order XIV Rule 2.

Kuldeep Singh Pathania =VS= Bikram Singh Jaryal, [3 LM (SC) 26]

Order XXXIII, Rule 1 and Order 44 Rule 3 (2) Filing a suit for an indigent person- The appellant filed a civil suit against the respondents in the Court of 1st Additional SubJudge, Thiruvananthapuram being OP (indigent) No. 38/96 for recovery of Rs.74,66,107/. This suit was filed under Order 33 Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code"). The appellant alleged that he is unable to pay ad valorem court fees of Rs.3,96,610/ which was payable by him on the claim made in the suit and therefore he be granted permission to institute the suit as an indigent person. The Trial Court by order dated 19.08.1998 rejected the prayer made by the appellant (plaintiff) for filing a suit as an "indigent person" under Order 33 Rule 1 of the Code. Felt aggrieved and filed appeal against the aforementioned order of the Trial Court in the High Court being CMA No.248 of 1998. By order dated 22.02.2000, the High Court dismissed the appeal and upheld the order of the Trial Court. The High Court granted the plaintiff one month time to pay the requisite ad valorem court fees on the plaint.

The impugned order is set aside. The case is remanded to the Appellate Court for holding an inquiry as contemplated under Order 44 Rule 3 (2) of the Code or by the Trial Court, if directed by the Appellate Court to the concerned Trial Court to do so and depending upon the case made out by the applicant/appellant in the inquiry, the Appellate Court will pass appropriate orders accordingly.

We may observe that since the appellant (plaintiff) was not allowed to file suit as an indigent person by the trial court and the said order became final, he was required to pay the ad valorem court fees on the plaint to enable the trial court to decide the suit on merits. The Court will, therefore, verify as to whether the plaintiff paid the said ad valorem court fee in the trial court or not. If it is found that he has not yet paid the said court fees, then the same be recovered from the appellant (plaintiff) in accordance with the procedure provided under Order 33 of the Code.... Sushil Thomas Abraham =VS= M/s Skyline Build., [6 LM (SC) 32]

Order XXXIX-

Permanent injunction Remitted to the trial court permanent injunction- Defendants to institute independent proceedings to establish their right by filing an appropriate suit. In our view, as both parties claim right to the suit property through VHBC Society by virtue of sale deeds in their

favour, the High Court rather than relegating the appellants/defendants to file a fresh suit, it would have been in order if the High Court remitted the matter back to the trial court to resolve the dispute after trial. The High Court erred in dismissing the appeal and relegating the appellants/defendants to file a fresh suit. As both the parties are claiming right to the registered sale deed originating from VHBC Society. The impugned judgment of the High Court as well as the trial court is set aside and the matter is remitted to the trial court for consideration of the matter afresh. The appellants/defendants are directed to file their written statement within four weeks from today and the trial court is directed to afford sufficient opportunity to both the parties to adduce their evidence and proceed with the matter in accordance with law. We make it clear that we have not expressed any opinion on the merits of the matter. Ravish =VS= Smt. R. Bharathi, [3 LM (SC) 36]

Order XLI, Rule 19 and Order 43, Rule 1(t) Remand the Case The Appellate Court to fix a date for hearing of the appeal on merits uninfluenced- The respondent filed a civil suit (O.S. No.685/2006) against the appellant Authority in the Court of Principal Senior Civil Judge and Small Causes Court, Mysuru. The suit was for declaration of title and permanent injunction in relation to the land bearing No. 2442 situated in Vijaynagara, 2nd stage, Devaraja Mohalla, Mysuru.

The appellant Authority, on being served filed their written statement. The parties adduced their evidence. By judgment/decree dated 20.03.2012, the Trial Court decreed the respondent's suit and passed a decree against the appellant Authority in relation to the suit land.

The appellant Authority felt aggrieved and filed first appeal (R.A.No.370/2012) under Section 96 of the Code of Civil Procedure, 1908 in the Court of Principal District and Sessions Judge, Mysuru. This appeal was listed for hearing on 25.04.2014. On that day, the appellant's counsel did not appear when the appeal was called on for hearing and, therefore, the Appellate Court dismissed the appeal in default.

The appellant Authority, filed an application before the Appellate Court praying for recall of the order dated 25.04.2014 and sought restoration of their appeal for its hearing on the merits. By order dated 29.06.2016, the Appellate Court dismissed the application, which gave rise to filing of the writ petition by the appellant Authority under Article 227 of the Constitution of India before the High Court of Karnataka at Bengaluru. By impugned order, the High Court dismissed the writ petition and affirmed the order of the Appellate Court, which has given rise to filing of this appeal by way of special leave by the defendant in this Court.

The appeal succeeds and is accordingly allowed. The impugned order is set aside. The application filed by the appellant (MA No.77/2014) is allowed. The R.A. 370/2012 is accordingly restored to its original number for its hearing on merits in accordance with law.

It is subject to payment of cost of Rs.10,000/payable by the appellant Authority to the respondent(plaintiff). Let the cost be paid before hearing of the appeal. ...Mysore Urban Development Authority =VS= S.S. Sarvesh, [6 LM (SC) 20]

Order XLI, Rule 27- Additional evidence Appellants/defendants, during the course of this appeal, have filed a number of applications to place on record certain documents which were not on the record of the trial court. No explanation has been given in any of these applications as to why these documents were not filed in the trial court. These documents cannot be looked into and entertained at this stage.

The defendants did not file these documents before the trial court. No application was filed under Order XLI Rule 27 of the Code of Civil Procedure, 1908 for leading additional evidence before the first appellate court or even before the High Court. Even the applications filed before us do not set out any reasons for not filing these documents earlier and do not meet the requirements of Order XLI Rule 27 of the Code of Civil Procedure. Hence, the applications are rejected and the documents cannot be taken into consideration. We find no merit in the appeal and the same is dismissed. ...Sopanrao =VS= Syed Mehmood, [8 LM (SC) 1]

Order XLI, Rule 27- Additional evidence In the first place, the documents sought to be filed by the respondent, namely, notifications issued under the Act were relevant and also necessary for deciding the rights of the parties involved in the suit/appeal. Second, these documents did not require any proof being public documents in nature. Third, the respondent had already made reference of these documents and laid foundation in the pleadings and lastly, the first Appellate Court has jurisdiction under Order 41 Rule 27 of the Code to allow the parties to file additional evidence, if such documents are required to decide the suit/appeal provided satisfactory explanation is given as to why the documents could not be filed in the suit and why they are filed in appeal. The respondent, in this case, did give the explanation, which found acceptance to the High Court and, in our opinion, rightly. In the light of the foregoing discussion, we concur with the reasoning and the conclusion arrived at by the High Court and find no merit in the appeals. The appeals thus fail and are accordingly dismissed. ..... Sri Y.P. Sudhanva Reddy =VS= Karnataka Milk Federation, [5 LM (SC) 44]

Order XLVII, Rule 1- Review- It is a settled law that every error whether factual or legal cannot be made subject matter of review under Order 47 Rule 1 of the Code though it can be made subject matter of appeal arising out of such order. In other words, in order to attract the provisions of Order 47 Rule 1 of the Code, the error/mistake must be apparent on the face of the record of the case. The finding was recorded by the High Court in the writ petition that the writ petitioner (original appellant) failed to prove her actual possession on the land in question on the date of repeal, such finding could not have been examined de novo in review jurisdiction by the same Court like an Appellate Court on the facts and evidence. We concur with the reasoning and the conclusion arrived at by the High Court (Review Court) in the impugned order and find no merit in this appeal. The appeal thus fails and is accordingly dismissed. ...Asharfi Devi =VS= State of U.P., [6 LM (SC) 29]