CPC UPDATER -  30.4.18

CPCUPDATER – 30.4.18

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1.       CPC  S. 11 – Res judicata – Writ Petition – Dismissed by single word order i.e. “dismissed” – Would not operate as constructive res judicata – Before a Court invokes rule of res judicata, the Court has to be certain and in a position to return a finding that previous writ petition was dismissed on merits after considering all aspects of the case - It would be unsafe and difficult for the Court to record a finding that the summary dismissal of the writ petition was decision on merits or the writ petition was dismissed on account of delay and laches, or an alternative remedy or the Court did not feel inclined to interfere in a writ jurisdiction - There can be more than one reason to dismiss the writ petition. (2018-2) PLR (May) 318

2.       CPC Section 89  -  Oral consent given by the counsel without a written memo of instructions does not fulfill the requirement under Section 89 CPC  - Referring the parties to arbitration could be made only when the parties agree for settlement of the dispute through arbitration by a joint application or a joint affidavit before the court. Afcons Infrastructure Ltd. and Anr. v. Cherian Varkey Construction Co. (P) Ltd. and Ors. (2010) 8 SCC 24, followed. (2018)1 SCeJ 550

3.       CPC Order 2 Rule 2 -  Permanent Injunction  - Specific Performance of Agreement -   “Whether plaintiff could claim the relief of specific performance of agreement against the respondents/defendants in addition to his claim of permanent injunction in the previously instituted suit?” - Our answer to the aforementioned question is that the plaintiff could not claim the relief of specific performance of agreement against the defendants along with the relief of permanent injunction in the previous suit for the following reasons - Cause of action to claim a relief of permanent injunction and the cause of action to claim a relief of specific performance of agreement are independent and one cannot include the other and vice versa -  A plaintiff cannot claim a relief of specific performance of agreement against the defendant on a cause of action on which he has claimed a relief of permanent injunction as cause of action to claim temporary/permanent injunction against the defendants from interfering in plaintiff's possession over the suit premises accrues when defendant threatens the plaintiff to dispossess him from the suit premises or otherwise cause injury to the plaintiff in relation to the suit premises -  It is governed by Order 39 Rule 1 (c) of the Code – Also  the limitation to file such suit is three years from the date of obstruction caused by the defendant to the plaintiff (Part VII Articles 85, 86 and 87 of the Limitation Act) - On the other hand, the cause of action to file a suit for claiming specific performance of agreement arises from the date fixed for the performance or when no such date is fixed, when the plaintiff has noticed that performance is refused by the defendant - The limitation to file such suit is three years from such date .  (Part II Article 54 of the Limitation Act). (2018)1 SCeJ 813

 

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4.       CPC  Order 2 Rule 2 - Permanent Injunction  - Specific Performance of Agreement -  Sine qua non for invoking Order 2 Rule 2(2) against the plaintiff by the defendant is that the relief which the plaintiff has claimed in the second suit was also available to the plaintiff for being claimed in the previous suit on the causes of action pleaded in the previous suit against the defendant and yet not claimed by the plaintiff – First suit was for Permanent Injunction and second suit for Specific Performance of Agreement, in our opinion, it is not possible to claim both the reliefs together on one cause of action. (2018)1 SCeJ 813

5.       CPC , Order 2 Rule 2, Order 23 Rule 1 (3)  - Whether in the absence of any permission/liberty granted by the Trial Court to the plaintiff at the time of withdrawing the previous suit filed for permanent injunction, the plaintiff was entitled to file the suit for specific performance of agreement against the defendants in relation to the suit property? - Plaintiff, in clear terms, had stated in the previous suit that he wants to withdraw the suit because he wants to file appropriate proceedings before the competent forum in relation to the subject matter of the suit -  Reading of the statement of the plaintiff coupled with the permission granted by the Court to withdraw the suit satisfies the requirement of Order 23 Rule 1 (3) of the Code -  It certainly enabled the plaintiff to file a fresh suit, namely, the civil suit for claiming specific performance of the agreement against the defendants - Suit filed by the plaintiff for specific performance of agreement against the respondents (defendants) is not barred by Order 2 Rule 2 of the Code and is held maintainable for being tried on merits. (2018)1 SCeJ 813

6.       CPC Order  5, Rule 20 – Substantial service – Process server’s report recording that the appellant had left the given address was taken as sufficient information, for a substituted service by way of publication to have been resorted to - The said report went unrebutted - Indeed it could not have been rebutted in the absence of any notice to the appellant - The substituted service by publication in a Delhi based English newspaper – The Statesman, which is not available locally otherwise circulated in the town of Bahrod in Rajasthan where the appellant is based, cannot be deemed to be service of notice - His being proceeded ex-parte was erroneous - The impugned order suffers from denial of natural justice to the appellant, since he was not heard. (2018-2) PLR (May) Delhi 17

7.       CPC Order  6  Rule 14-A - Strict compliance of - In many cases the suit with incorrect or vague addresses are being entertained by the Courts below, i.e., Civil Judges, in the States of Haryana, Punjab and Chandigarh and the cases are lingered for numerous years for the purpose of effecting service - This is one of the grounds creating pendency in the Courts below and the Lower Appellate Court or the High Court as registry of this Court do not accept the appeals with a different address which does not commensurate with the address given in the certified copy of judgments of Courts below - In view of such facts and circumstances, I am of the considered view and deem appropriate to dispose of the present petition while exercising the powers under Article 227 of the Constitution of India by issuing a direction to all the concerned District & Sessions Judges of Punjab, Haryana and Chandigarh to sensitize the officers with regard to strict compliance of provisions of Order 6 Rule 14-A CPC in order to avoid any future complications - Order be communicated to all the District and Sessions Judges of Punjab, Haryana and Chandigarh through Registrar General of this Court and seek report with regard to compliance. (2018-2) PLR (May) 372

8.       CPC Order  6, Rule 17 – Amendment of plaint that plaintiff correct name of the petitioner was “M/s Associated Cement Companies Ltd.”, which amalgamated into “M/s ACC Limited” - Therefore, respondent-plaintiff moved an application for making necessary correction qua name of the petitioner and nothing else – Has paid ad valorem court fee at the initial stage - Even from the proposed correction of the name of the petitioner, allowed by the trial Court, nature of the suit has not been changed - Therefore, no prejudice is being caused to the petitioner – Amendment allowed – Order uphel(2018-2) PLR (May) Delhi .342

9.       CPC Order 6 Rule 16 and Order VII Rule 11  - If the defendant moves two separate applications at the same time, it would be open to the court in a given case to consider both the applications together or independent of each other - If the court decides to hear the application under Order VII Rule 11 in the first instance, the court would be obliged to consider the plaint as filed as a whole - But if the court decides to proceed with the application under Order VI Rule 16 for striking out the pleadings before consideration of the application under Order VII Rule 11 for rejection of the plaint, on allowing the former application after striking out the relevant pleadings then the court must consider the remainder pleadings of the plaint in reference to the postulates of Order VII Rule 11, for determining whether the plaint (after striking out pleadings) Delhi eserves to be rejected in limine - For striking out the pleadings or for that matter, rejecting the plaint (election petition), the High Court is not expected to decide the merits of the controversy referred to in the election petition.  (2018)1 SCeJ 740

10.   CPC Order 6 Rule 16  - Application for striking out pleadings in terms of Order VI Rule 16 may be resorted to by the defendant(s)/respondent(s) at any stage of the proceedings, as is predicated in the said provision -  The pleading(s) can be struck off by the Court on grounds specified in clauses (a) to (c) of Rule 16.  (2018)1 SCeJ 740

11.   CPC Order 7 Rule 11  -  Application under Order VII Rule 11 deserves consideration at the threshold  - Ordinarily, an application for rejection of election petition in limine, purportedly under Order VII Rule 11 for non-disclosure of cause of action, ought to proceed at the threshold - Order VII of the CPC generally deals with the institution of a plaint - It delineates the requirements regarding the particulars to be contained in the plaint, relief to be specifically stated, for relief to be founded on separate grounds, procedure on admitting plaint, and includes return of plaint - The rejection of plaint follows the procedure on admitting plaint or even before admitting the same, if the court on presentation of the plaint is of the view that the same does not fulfill the statutory and institutional requirements referred to in clauses (a) to (f) of Rule 11 - The power bestowed in the court in terms of Rule 11 may also be exercised by the court on a formal application moved by the defendant after being served with the summons to appear before the Court -  Be that as it may, the application under Order VII Rule 11 deserves consideration at the threshold . (2018)1 SCeJ 740

12.   CPC Order  9, Rule 13 – Application for setting aside exparte judgment and decree – Fact of being absent as also the report produced by the process server are yet to be determined by way of evidence – Had examined four witnesses – But the same was dismissed in fault – Thereafter, an application for restoration was filed which was also contested by the respondent and the same has been dismissed – The respondent-decree holder should not have contested the application and could have given statement for restoration of the same subject to the terms and conditions. (2018-2) PLR (May) 397

 

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13.   CPC Order 10 Rule 1, 2 , Order 12, Order 14 – Directions – Following directions to the District and Sessions Judges of States of Punjab, Haryana and Union Territory, Chandigarh - To sensitize the Judicial Officers to follow the procedure as envisaged under the Civil Procedure Code i.e. to ascertain at the first hearing of the suit from each party or his pleader with regard to admission or denial and production of documents and call upon the parties to undertake the aforementioned exercise in order to curtail the longevity of the trial and focus only to the issues on which the parties are at variance - No suit should proceed further before framing of the issues in case either of the parties to the lis does not place on record original documents on which reliance has been placed - Has come across that many suits are filed by giving fake or incomplete addresses of the plaintiff or defendant resulting into delay in adjudication of the suit - In other words, suit is kept pending for service of the parties - The directions laid in Malwinder Kaur v. Kuldeep Singh, (2018-2)190 PLR 372, shall also be read as part of the directions given in the present revision petition. (2018-2) PLR (May) 374

14.   CPC Order 11, Rule 2, S. 11 – Once the relief has been sought in the previous suit and the same has been declined and the matter is already subjudice, the second suit claiming simple injunction on the basis of same agreement to sell - Is barred by the principal of res judicata(2018-2) PLR (May) .298

15.   CPC Order 14 Rule 2, Order VII Rule 11 (a)  - Under Order VII Rule 11(a), only the pleadings of the plaintiff-petitioner can be looked at as a threshold issue -  Whereas, entire pleadings of both sides can be looked into for considering the preliminary issue under Order XIV Rule 2 - Neither the written statement nor the averments or case pleaded by the opposite party can be taken into account for answering the threshold issue for rejection of election petition in terms of Order VII Rule 11 (a) of the Act. (2018)1 SCeJ 740

16.   CPC Order 16, Rule 1 – Finding of the trial Court that the defendants cannot be permitted to summon the witnesses of the respondent-school, who would depose against the plaintiff is also erroneous, fallacious, much less, illegal - The case is built during the evidence stage and production of record, if required for adjudication, cannot be denied - The party cannot be prevented to summon the witnesses as per the provisions of Order 16 Rule 1 of the Code of Civil Procedure. (2018-2) PLR (May) 382

17.   CPC Order 16, Rule 1-A – Plainitff’s application for summoning the witnesses – Purpose in the application for adjudication of the lis, had been mentioned – Order of the Court below, rejecting the objections of the petitioners-defendants is perfectly legal and justified and do not call for interference – It was an intentional act on the part of the defendants to delay the adjudication of the suit, yet audacity of filing of the revision petition – Dismissed with costs of Rs. 10,000/-(2018-2) PLR (May) .383

18.   CPC Order 21, Rule 17, Proviso – Proviso to Order 21 Rule 17 CPC specifically provides that the property to the extent which is required for satisfaction of the decree is to be attached - The value of the property attached shall as nearly as possible correspond with the amount due under decree - A reading of the orders would show that the executing court did not even examine this aspect - The executing courts are not to act in a mechanical manner - The courts must be conscious of the fact that if a judgment debtor is to be deprived of his property, the court must apply its mind so that the minimum damage is to be done to the judgment debtor(2018-2) PLR (May) .321

19.   CPC Order 21, Rule 27 – Executing court has to apply mind, while ordering attachment and sale of the property by way of public auction - As per proviso to Order 21 Rule 17 CPC, the court is required to attach only such property price which is corresponding with the amount due under the decree - Under Order 21 Rule 66 CPC before proclamation is drawn up and the Court is to apply its mind to the effect that whether the entire property should be sold or a part thereof would be sufficient to satisfy the decree. (2018-2) PLR (May) 321

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20.   CPC Order 21, Rule 64, 67 – Public Auction – “Whether the restriction on alienation/transfer of the immovable property purchased in a public auction can be validly imposed by the Government with retrospective effect without enabling provision in the Statute?” - Policy instructions issued by the Government, in exercise of its executive power cannot be made operative with retrospective effect without enabling power to this effect available to the Government under the a statute. (2018-2) PLR (May) 412

21.   CPC Order 21, Rule 90 – Intention was to give some protection to the auction purchaser from setting aside of the court auctions - However, in the considered opinion of this Court, the intention of the Legislature was not to absolutely bar the jurisdiction of the court to examine the irregularities and illegalities committed by the executing court while attaching the property or while ordering the property to be put to auction - The courts have to maintain a balance between the rights of the judgment debtor and the auction purchaser - Scale cannot be allowed to be tilted in favour of auction purchaser. (2018-2) PLR (May) 321

22.   CPC Order 23, Rule 3, 3-A – Setting aside of the settlement – In the event the earlier board resolution stood revoked by subsequent resolution – There is no explanation as to how said O.P.G. continued to represent and act on behalf of the appellant in the said proceedings even after the revocation of his authority – It necessarily implies that the purported Board Resolution dated 02.09.2008 even though passed by the Board of Directors, was never sought to be given effect to either by the Board or any of its Directors – It also shows the appellant had satisfied all the acts – The that a juristic entity can ratify the acts done on its behalf expressly or impliedly, is well recognized. (2018-2) PLR (May) Delhi 20

23.   CPC Order 26(10)(2) – Report of the Local Commissioner – There is no provision for filing objection to the local commissioner’s report. (2018-2) PLR (May) 360

24.   CPC Order 39, Rule 10 – There is a clear admission by the appellants to repay the loan on behalf of their corporate entity - Insofar as there is an acknowledgement and undertaking on behalf of two individuals–appellant nos.1 & 2 to repay the loan on behalf of their corporate entity – Hence the impugned order directing them to deposit the said monies cannot be faulted. (2018-2) PLR (May) Delhi 10

25.   CPC Order 41, Rule 27 – Additional evidence would be permissible if the applicant were to show that the evidence tendered was refused by the court or that it came to his knowledge afterwards despite due diligence, and as a sequiter, any such document is to be produced or witness needs to be examined to pronounce judgment or any other substantial cause - Neither of the aforesaid conditions are met, hence the appellant does not qualify for the benefit of the said provisions. (2018-2) PLR (May) Delhi 1

26.   CPC Order 41, Rule 27 – Payment of costs to the respondent for remanding the case cannot be a reason for undoing a vested right which may have accrued in favour of the Decree Holder - A legal error must be discerned from the impugned order – Appellants request for remand of the case for leading his evidence is untenable since the suit has been decreed after complete trial, in which ample opportunity was accorded to him to lead evidence - The law does not envisage for a party negligent in pursuing its case, to seek remand and re-trial, simply because it claims to have the means to meet such terms as may be imposed by the court. (2018-2) PLR (May) Delhi 1

27.   Permanent Injunction and Specific Performance of Agreement  - “Whether plaintiff could claim the relief of specific performance of agreement against the respondents/defendants in addition to his claim of permanent injunction in the previously instituted suit?” -  Both the reliefs/claims namely, (1) Permanent Injunction and (2) Specific Performance of Agreement are not identical, when the causes of action to sue are separate, when the factual ingredients necessary to constitute the respective causes of action for both the reliefs/claims are different and lastly, when both the reliefs/claims are governed by separate articles of the Limitation Act, then, in our opinion, it is not possible to claim both the reliefs together on one cause of action. (2018)1 SCeJ 813

 

 

 

 

 

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