Miscellaneous

Civil Procedure Code, 1908 (V of 1908) – Conduct of the suits is regulated by the procedure prescribed in the Civil Procedure Code, 1908 and other laws and which prescribe the stage at which documents are to be produced and the mode in which the same are to be proved - Once the appellant / plaintiff had failed to file the documents and had failed to seek condonation of delay in filing the document, inspite of claiming to have the documents with him, there is no principle of law which requires the Court to draw any adverse inference against the opposite party for the reason of having not cross-examined the appellant / plaintiff on his claim of carrying some documents while appearing as a witness. (2018-4) PUNJAB LAW REPORTER (Delhi) .43

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Civil Procedure Code, 1908 (V of 1908) - Closing of evidence of defendants - In a short span of 1-1/2 month, the trial Court has shut out the case of the petitioner-defendant in a suit for specific performance where serious civil consequence involving immovable property is involved - On the specified date, the defendant was not available and it has been averred that he was a truck driver and stuck in the Bangalore which was not taken into consideration sympathetically - In such circumstances, this Court is of the opinion that the trial Court is not justified in closing the evidence of the defendant as defendant himself was a necessary witness. (177) P.L.R.
Civil Procedure Code, 1908 (V of 1908) - Counter claim - Without the requisite court fees cannot be said to be something which can be categorised as a proceeding pending since it was never properly instituted - Recovery of debts due to banks and Financial Institution Act, 1993 (1 of 1993) S. 31 - Court Fees Act, 1870 (of 1870). (173) P.L.R. 9
Civil Procedure Code, 1908 (V of 1908) - Evidence - Rebuttal evidence - Plaintiff has never stepped into the witness box - Application for permisison to lead evidecne in rebuttal by examining S , plaintiff , whi had institued the suit - Petitioner intends to lead evidence which he failed to lead in affirmative - Suit, ultimately has been filed through S, though, the other authorized signatory of the Company has deposed - Non-examination of S in affirmative does not accrue cause of action in favour of petitioner to examine him in rebuttal. (183) P.L.R.
Civil Procedure Code, 1908 (V of 1908) - Execution - Warrant of arrest - If the decree holder is unable to show any other means to pay the amount which is the subject for recovery through arrest, the Court will release him when he is produced before the Court after recording evidence from the decree holder and the judgment debtor with reference to the means. (183) P.L.R.
Civil Procedure Code, 1908 (V of 1908) - Miscellaneous application dismissed in default - Application seeking restoration is permissible. (182) P.L.R.
Civil Procedure Code, 1908 (V of 1908) - Procedure - Lawyer had suffered a statement not to file written statements - Amendment in the plaint was allowed - Pleaded that the defendant who has already waived off his right to file the written statement could not have filed a amended written statement - Held that the statement could not have been made by the lawyer - Had the defendant made the statement things would have been different - Statement made by the counsel - Ordered to be withdrawn - Liberty is granted to the petitioner to file the written statement - Lawyer. (182) P.L.R.
Civil Procedure Code, 1908 (V of 1908) - Proforma defendant - If a person is arrayed as a party in Court it cannot be merely for the luxury of sitting on the ring watching the game played out in the arena - The impleadment ought to serve some purpose and that purpose for a person impleaded shall be to allow her the opportunity to do everything which is legally permissible - That would include the right to produce herself as a witness and also offer any person what she seeks to support through her written statement. (174) P.L.R.
Civil Procedure Code, 1908 (V of 1908) - Proforma defendant - If the impleaded defendant has a common cause with the plaintiff, to the extent that she is not a person who contests the plaintiff's plea, all that can be done to protect the contesting defendant's interest shall be to cite her as a witness before the contesting defendant examines herself - Plaintiff shall have a first right to cross examine so that even if anything adverse to the contesting defendant is brought forth through leading questions by the plaintiff, the defendant can protect herself from such answers by a right of cross examination after the plaintiff's cross examination is over. (174) P.L.R.
Civil Procedure Code, 1908 (V of 1908) - Replication - It is clear that earlier it was written that the case be fixed for replication and issues, but the issues were framed on the same day without asking for the replication - An opportunity to file replication should be given to the plaintiff and if on filing of the replication, the Court feels that any fresh issue arises, then the Court would be at liberty to frame any fresh issue. (177) P.L.R.
Civil Procedure Code, 1908 (V of 1908) - Respondent serving the petitioner bank was removed from service - Some how he obtained copies from the bank - When list of the documents with copies thereof has been supplied to the bank, the bank is at liberty to check its records and will be fully justified in admitting only those documents which form part of their record and are genuine ones while denying the existence or validity or genuineness of other documents which are non-existent - It is made clear that if compliance is not made within 15 days, adverse inference would be drawn against the bank. (178) P.L.R.
Civil Procedure Code, 1908 (V of 1908) - Restoration of appeal - Application for restoration filed on next date - High Court upheld the earlier order of the trial Court vide which the application for restoration was dismissed on technical fault in the application with regard to verification part of the pleadings - The lower Court over-looked the observation of this Court requiring that Court to look into limitation point while dealing with second application - When this Court allowed filing of second application, the lower Court fell into error in observing that earlier order dismissing the application for restoration had attained finality with the dismissal of revision by the Court. (173) P.L.R.
Civil Procedure Code, 1908 (V of 1908) - Suit for Declaration - Application to treat the issue of maintainability of the suit as a preliminary issue - If the vendor is non compus mentis as asserted by the detractor it is a matter of trial - Evidence and proof - And not one of maintainability of a suit - Discretion refraining from trying the issue of maintainability of the suit as a preliminary one - Upheld. (177) P.L.R.
Civil Procedure Code, 1908 (V of 1908) - Suit for declaration challenging the ex-parte judgment and decree passed by the Rent Controller - Dismissed - Grievances raised in the suit could have been sought by filing an application under Order 9 Rule 13 of the Code of Civil Procedure or by filing an appeal but not in the manner and mode which has been adopted. (182) P.L.R.
Civil Procedure Code, 1908 (V of 1908) - Suit for specific performance of agreement of sale - Merely because of jugglery of words, petitioner sought decree for declaration just to avoid the payment of court fee - The same is not permissible as per law. (183) P.L.R.
Civil Procedure Code, 1908 (V of 1908) - Suit was dismissed by the Court and appeal was accepted by First Appellate Court - The First Appellate Court had rightly dispensed with the service as petitioners were proceeded against ex parte before the Court below after putting in their appearance. (182) P.L.R.
Civil Procedure Code, 1908 (V of 1908) - Written Statement - After appearance - Defence struck of during interregnum, the case was adjourned on 6-7 occasions - It is an admitted position of the case that the petitioners did not deposit costs to the tune of Rs.600.00 imposed on one occasion and additional costs of Rs.1,000.00 imposed - Serious prejudice is likely to be caused to the petitioners in case they are not allowed to file their written statement when otherwise cost is panacea for delay attributable to the petitioners. (183) P.L.R.
Civil Procedure Code, 1908 (V of 1908) - Written Statement - Neither cost was paid nor written statement filed, thus, defence of the defendant was struck of - Plaintiff and the defendants belong to the same family - Since the impugned order would have far reaching adverse consequences, justice would demand that one further opportunity could be granted to the first defendant on payment of punitive costs to be paid to the plaintiff for causing delay and hindrance in the progress of the suit. (175) P.L.R.