***

Execution -- Executing Court cannot go beyond decree or vary its terms.

***

Code of Civil Procedure, 1908 (V of 1908) -- Execution -- Executing Court -- Scope of jurisdiction -- Executing Court is circumscribed by decree under execution -- Cannot go beyond decree or vary terms thereof -- Can only construe decree to ascertain its true meaning and determine whether it is capable of execution -- Issues already settled by judgment and decree cannot be reopened in execution proceedings.

(Paras 12-14)

***

Impleadment as party -- Mere assertion of an independent right in suit property does not, by itself, confer a right to be impleaded in a simpliciter suit for permanent injunction.

***

A. Code of Civil Procedure, 1908 (5 of 1908), Order 1 Rule 10(2) -- Impleadment of party -- Simpliciter suit for permanent injunction -- No relief claimed against applicant seeking impleadment -- Mere assertion of independent right, co-ownership or possession in suit property does not by itself confer a right to be impleaded -- Applicant's impleadment would introduce an independent controversy concerning title, co-ownership and possession, thereby enlarging scope of simpliciter injunction suit -- Applicant had already instituted independent civil suit for adjudication of his asserted rights -- Application for impleadment rightly dismissed.

(Para 4 to 9)

B. Code of Civil Procedure, 1908 (5 of 1908), Order 1 Rule 10(2) -- Impleadment of party -- Necessary and proper party -- Necessary party is one in whose absence an effective decree cannot be passed, whereas proper party is one whose presence is necessary for complete, effective and adequate adjudication of matters in dispute -- Plaintiff, being dominus litis, cannot be compelled to litigate against a person against whom no relief is sought unless requirements of Order 1 Rule 10(2) CPC are otherwise satisfied.

(Para 5)

***

Amendment of plaint -- Amendment after commencement of trial cannot be permitted in absence of due diligence.

***

Additional evidence -- Inherent power under Section 151 CPC cannot be invoked to overcome negligence or fill up lacunae.

***

Evidence in rebuttal -- Evidence required to establish party's own case cannot subsequently be introduced in rebuttal.

***

Article 227 -- High Court does not sit as a Court of appeal over every interlocutory order.

***

A. Code of Civil Procedure, 1908 (5 of 1908), Order 6 Rule 17 -- Amendment of plaint -- After commencement of trial -- Amendment can be permitted only when, despite due diligence, party could not have raised matter before commencement of trial -- Amendment sought at fag end of proceedings to introduce challenge to earlier judgments and compromise proceedings and alteration/substitution of plaintiff's name/legal identity -- Facts sought to be incorporated could have been raised before commencement of trial -- No satisfactory explanation for delay -- Relief sought by way of amendment prima facie beyond prescribed period of limitation -- No interference with order declining amendment.

(Para 14 to 17 and 24)

B. Code of Civil Procedure, 1908 (5 of 1908), Section 151 -- Additional evidence -- Production at later stage -- Inherent power survives in appropriate cases where evidence could not, despite due diligence, be produced earlier and its production is necessary for just adjudication -- Such power to be exercised sparingly and cannot be invoked to overcome negligence or fill up lacunae -- Documents were within plaintiff's knowledge and could have been produced during affirmative evidence -- No exceptional circumstance made out -- Application rightly dismissed.

(Para 18 to 20 and 24)

C. Code of Civil Procedure, 1908 (5 of 1908), Order 18 -- Evidence in rebuttal -- Scope -- Confined to issues in respect of which onus lies upon opposite party -- Party cannot reserve evidence required to establish its own case and subsequently introduce it in rebuttal after opposite party has concluded its evidence -- Revenue record sought to establish plaintiff's own case could not be characterised as evidence in rebuttal.

(Para 21 and 22)

D. Constitution of India, 1950, Article 227 -- Supervisory jurisdiction -- Interference with interlocutory order -- High Court does not sit as a Court of appeal over every interlocutory order -- Interference warranted only where subordinate Court has acted without or in excess of jurisdiction, failed to exercise jurisdiction vested in it, or acted in a manner so perverse or contrary to settled principles of law as to occasion manifest injustice -- No such infirmity found -- Petitions dismissed.

(Para 23-25)

***

Striking out of written statement -- Mere inconsistency with earlier written statement or introduction of additional plea does not attract power under Order VI Rule 16 -- Statutory conditions must be satisfied.

***

Code of Civil Procedure, 1908 (5 of 1908), Order 6 Rule 16 -- Striking out pleadings -- Amended plaint -- Amended written statement -- Plaintiff's plaint was amended and defendant filed fresh written statement -- Written statement struck off on ground that defendant had changed his earlier defence and introduced plea of limitation -- Power under Order VI Rule 16 not available merely because pleading contains defence inconsistent with or different from earlier pleading -- Court must record finding that matter sought to be struck out is unnecessary, scandalous, frivolous or vexatious, prejudices, embarrasses or delays fair trial, or is otherwise abuse of process of Court -- None of statutory parameters satisfied -- Mere omission of earlier plea or introduction of additional plea does not furnish lawful basis for striking off entire written statement -- Impugned order set aside -- Petition allowed.

(Paras 9, 15 to 18 and 20)

***

Recall of order -- Change in legal position -- Basis of earlier dismissal having ceased to exist, order recalled and writ petition restored.

***

A. Code of Civil Procedure, 1908 (V of 1908), Section 151 -- Recall of order -- Subsequent change in legal position -- Writ petition had been dismissed on basis of Supreme Court judgment subsequently reviewed -- Foundation of earlier order having ceased to exist, order of dismissal recalled and writ petition restored to its original number.

(Paras 1-4)

B. Haryana Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 13-A -- Disputed questions of fact -- Writ jurisdiction -- Land recorded as “Jumla Malkan Wa Digar Hakdaran Araji Hasab Rasad Rakba Khewat” -- Petitioners challenged carving out of plots/Baras and change in nature of land without payment of compensation -- State raised objection that disputed questions of fact were involved and statutory remedy under Section 13-A was available -- Petitioners fairly sought withdrawal of writ petition with liberty to institute suit before Competent Court -- All parties left free to raise all pleas -- Competent Court to decide matter independently in accordance with law without being influenced by any observation made by High Court -- In case stay application is filed along with suit, same directed to be considered within three weeks from date of filing.

(Paras 5-9)

***

Execution -- DRT -- RC -- Transfer of an execution proceeding to the DRT -- Order XXI Rule 22 of the CPC has no impact on the validity of the auction sale.

***

Execution -- DRT -- RC -- Income Tax Act, 1961, Second Schedule, Rule 2 -- Where the legal representatives of the judgment-debtor were already parties to the execution proceedings and had notice of the auction, the question of substantial injury being caused on account of non-service of notice under Rule 2 does not arise.

***

Execution – One Residential house – LR’s right -- Protection afforded by Section 60(1)(ccc) of the Code is personal to the judgment-debtor and this protection does not extend to the legal representatives.

***

Writ jurisdiction -- A mixed question of law and fact cannot be raised for the first time in a writ petition.

***

A. Code of Civil Procedure, 1908 (5 of 1908), Order 21 Rule 22 -- Recovery of Debts and Bankruptcy Act, 1993 (51 of 1993), Sections 29 and 31 -- Income Tax Act, 1961 (43 of 1961), Second Schedule -- Execution proceedings were transferred from civil court to the DRT under Section 31 of the 1993 Act -- DRT attached and sold a property in execution of the decree – Auction was challenged due to omission of notice under Order XXI Rule 22 of the Code – Held, transfer of execution proceeding to the DRT under Section 31 of the 1993 Act did not merely change the forum of execution, it clothed the Recovery Officer with the power to recover the amount in accordance with the procedure prescribed under Section 29 of the 1993 Act read with Second Schedule to the 1961 Act, in supersession of the procedure under the Code before the civil court -- Procedure governing the execution before the Recovery Officer only required notice under Rule 2 of the Second Schedule to the 1961 Act -- Therefore, Order XXI Rule 22 of the Code has no impact on the validity of the auction sale.

(Para 37)

B. Income Tax Act, 1961 (43 of 1961), Second Schedule, Rules 2 and 61 -- Notice of demand – Requirement of -- No notice under Rule 2 of the Second Schedule was served on the legal representatives of the judgment-debtor -- However, they were already parties to the execution proceedings, had notice about the auction, and had filed applications regarding the property -- Question of substantial injury being caused on account of non-service of notice under Rule 2 does not arise -- Further, they did not take recourse to the remedy provided under Rule 61 -- Absence of notice under Rule 2 does not render either the execution or the sale void.

(Para 39, 40)

C. Code of Civil Procedure, 1908 (5 of 1908), Section 60(1)(ccc) -- One main residential house -- Exemption from attachment -- Personal to judgment-debtor – Legal representative’s right -- Section 60(1)(ccc) of the Code in its application to Delhi exempts attachment and sale of one main residential house belonging to a judgment-debtor other than an agriculturist and occupied by him -- The protection is by its own text personal to the judgment-debtor as it is confined to a house belonging to and occupied by the judgment-debtor -- This protection does not extend to the legal representatives of the judgment-debtor -- A legal representative is a distinct juridical concept from a judgment-debtor and cannot claim personal exemption merely by virtue of residing in a house which belonged to the deceased judgment-debtor.

(Para 42, 43)

D. Constitution of India, Article 226 – Code of Civil Procedure, 1908 (5 of 1908), Section 60(1)(ccc) -- Writ jurisdiction -- Mixed question of law and fact -- Plea of exemption under Section 60(1)(ccc) of the Code was raised for the first time in a writ petition, without any factual foundation having been laid before the Recovery Officer or the DRT -- A question of fact that requires an investigation and inquiry for which no factual foundation has been laid cannot be allowed to be agitated in a writ petition -- A mixed question of law and fact cannot be raised for the first time in a writ petition -- High Court erred in entertaining and remitting the matter to the Recovery Officer to decide the exemption plea after giving an opportunity to lead evidence.

(Para 45, 46)

***

Civil appeal -- Remand is not to be adopted as a matter of ordinary course -- Where the Trial Court framed comprehensive issues, a finding can be returned by appreciating the pleadings, issues, oral and documentary evidence instead of remitting the matter to the Trial Court.

***

Code of Civil Procedure, 1908 (5 of 1908), Order 41 Rules 23 and 24 -- Civil appeal – Remand -- Framing of issues -- High Court remitted the matter to the Trial Court to frame specific issues on whether the Sale Deed was a sham document, possession and limitation, and to allow parties to adduce further evidence -- Trial Court had not decided the Suit without relevant issues being presented by the pleadings of the parties, as the issues framed were comprehensive -- Remand is not to be adopted as a matter of ordinary course -- There were no circumstances preventing the first appellate court from deciding the points in issue -- The correctness or otherwise of the case of the contesting parties is appreciated from the pleadings, issues, oral and documentary evidence, and a finding can be returned instead of remitting the matter to the Trial Court -- Such discretion for remand is exercised when imminently warranted by the circumstances of a given case -- Order of remand to the Trial Court set aside.

(Para 8.1, 8.2, 8.3, 16, 17)

***

Electricity Theft -- Civil Court jurisdiction -- Assessment of civil liability -- Civil Court has jurisdiction where statutory provisions and principles of natural justice are not complied with -- Appeal dismissed.

***

Electricity Act, 2003, (No.36 of 2003) Sections 126, 135, 145, 151 and 154 -- Civil Suit -- Theft of electricity -- Assessment -- Jurisdiction of Civil Court -- Plaintiff challenged notices imposing penalty for theft of electricity -- Defendants failed to prove alleged checking and theft -- No respectable person from locality associated, no site plan prepared, alleged recovered PVC not produced, LL-I report not signed by consumer and videography not proved in accordance with Section 65-B of Evidence Act -- Assessment of civil liability made without following procedure under Section 126, including provisional assessment, service thereof, opportunity to file objections and hearing -- Resort to Section 135 instead of Section 126 rendered impugned notices null and void -- Bar under Section 145 does not totally oust jurisdiction of Civil Court -- Civil Court can examine whether provisions of Electricity Act and fundamental principles of judicial procedure have been complied with -- Jurisdiction barred only where complaint regarding theft is lodged by competent authority and the Special Court has taken cognizance -- In absence of FIR or complaint before Special Court, consumer entitled to approach Civil Court -- Second appeal dismissed.

(Paras 9 to 19)

***

Consent decree -- Article 142 cannot be employed to supplant the concluded and acted upon terms of a consensual arrangement between the parties.

***

Execution of consent decree -- Scope of enquiry remains a limited one -- It cannot be made a vehicle for rewriting the terms of a settlement which the parties themselves arrived at and acted upon.

***

A. Constitution of India, Articles 136, 142 -- Scope of interference -- Concurrent findings -- Creation of corpus -- Family Court and the High Court, on a concurrent appreciation of the same material, placed upon the settlement a construction which is natural, harmonious and fortified by the conduct of the parties -- No interference warranted -- Prayer for creation of a corpus towards higher education in exercise of powers under Article 142 cannot be acceded to, as issuance of such a direction would, in substance, amount to recasting a settlement which stands performed and discharged and undertaking, in execution, a fresh determination of the quantum of maintenance -- The jurisdiction under Article 142, wide as it is, cannot be employed to supplant the concluded and acted upon terms of a consensual arrangement between the parties.

(Para 33 and 34)

B. Code of Civil Procedure, 1908 (5 of 1908), Order 21 Rule 10 -- Hindu Marriage Act, 1955 (25 of 1955), Sections 13-B and 28-A -- Family Courts Act, 1984 (66 of 1984), Section 7 -- Execution of consent decree -- Scope of executing court -- Where an execution petition is instituted for enforcement of a specific covenant of a concluded consent decree, the enquiry remains a limited one, namely, whether on a true construction of the settlement, the obligation stated to have been left unsatisfied subsists and remains enforceable, and not whether a larger or a different provision ought now to be made -- Where, on its true construction, the covenant stands satisfied, a general obligation to maintain cannot be invoked in execution to revive a discharged term or to substitute therefor a fresh and larger provision -- The general principle, whatever be its content, cannot be made a vehicle for rewriting the terms of a settlement which the parties themselves arrived at and acted upon.

(Paras 24 and 32)

C. Code of Civil Procedure, 1908 (5 of 1908), Order 21 Rule 10 -- Limitation Act, 1963 (36 of 1963), Article 136 -- Execution of decree -- Conduct of parties -- Relevance of delay -- Held, where the entire amount under Clause 8 stood paid and no demand was raised towards payment of twenty per cent of the annual income during the intervening period of nearly five years, such silence reinforces the construction that the income-linked obligation stood discharged -- Delay was noticed not as a ground of limitation but as a circumstance illuminating the common understanding of the parties with regard to the meaning and operation of the settlement.

(Para 28 and 29)

D. Interpretation of Deeds -- Canons of construction -- Harmonious construction -- Rule of repugnancy -- Held, an interpretation which renders an express clause otiose is to be eschewed in favour of the one which gives effect to the instrument as a whole -- The rule of construction that an earlier clause prevails over a later one is attracted only where two clauses are so repugnant to each other that they cannot possibly be reconciled.

(Paras 26 and 31)

***

Commercial Disputes -- A party cannot invoke the procedural doctrine of "relation back" of amended pleadings to bypass the mandatory document disclosure requirements under the Commercial Courts Act.

***

Disclosure of documents -- A continuing obligation -- Every document in a party's power, possession, control or custody as on the date of filing the amended written statement must be disclosed.

***

A. Code of Civil Procedure, 1908 (V of 1908), Order 11Rule 1(10) (as applicable to commercial disputes) -- Disclosure of documents -- Doctrine of relation back -- Once amendment of the written statement is permitted, the amended written statement becomes the operative pleading and the foundation of the defence -- Consequently, the obligation of disclosure extends to all documents in the party's power, possession, control or custody on the date the amended written statement is filed -- Permitting a party to withhold documents available at that stage by relying on the doctrine of relation back would encourage piecemeal disclosure and defeat the legislative object of ensuring early, complete and candid disclosure in commercial litigation.

(Paras 3.3, 9, 12-16)

B. Code of Civil Procedure, 1908 (5 of 1908), Order 11 Rule 1(10) -- Stage of proceedings -- Diligence -- The disclosure obligations under Order XI are intended to prevent surprise and ensure certainty in trial -- Where the plaintiffs had already concluded their evidence and the matter had reached the stage of defence evidence, greater diligence was expected from the defendant in establishing sufficient cause for non-disclosure of documents.

(Para 20)

***

Interrogatories are intended to secure admissions on material facts and not to satisfy curiosity or conduct a fishing enquiry; leave to administer them is discretionary and will not be granted unless necessary for fair adjudication or saving costs.

***

A. Code of Civil Procedure, 1908 (V of 1908), Order 11 Rules 1 & 2 -- Interrogatories -- Leave to administer interrogatories -- Not a matter of right -- Leave can be granted only where Court is satisfied that proposed interrogatories are necessary for fair disposal of the suit or for saving costs -- Every question cannot be permitted merely because it is framed as an interrogatory.

(Para 4)

B. Code of Civil Procedure, 1908 (V of 1908), Order 11 Rules 1 & 2 -- Interrogatories -- Scope and object -- Intended to obtain admissions regarding material facts directly in issue or relevant to matters in controversy -- Cannot be employed for a roving or fishing enquiry -- Cannot be used for collecting evidence, conducting advance cross-examination or eliciting facts having no nexus with determination of substantive issues.

(Para 5)

C. Code of Civil Procedure, 1908 (V of 1908), Order 11 Rule 2 -- Interrogatories -- Relevancy -- Proposed interrogatories sought to ascertain whether written statement signed by one defendant had been filed with authority and knowledge of other defendants -- Written statement admittedly presented through common counsel -- Such procedural aspect having no direct bearing on rights of parties or issues involved in the suit not a proper subject-matter for interrogatories -- Leave rightly refused.

(Paras 6 to 8)

D. Constitution of India, Article 227 – Leave to administer Interrogatories -- Supervisory jurisdiction -- Interference with discretionary orders -- Grant or refusal of leave to administer interrogatories is a matter of judicial discretion of the Trial Court -- High Court will not interfere unless discretion has been exercised arbitrarily, capriciously, perversely or contrary to settled legal principles -- Impugned order reflected due application of mind and suffered from neither jurisdictional error nor patent illegality -- No interference warranted.

(Paras 9 & 10)

***

Rent laws -- A tenant cannot enlarge the scope of eviction proceedings by seeking impleadment of a third party inducted into possession without the landlord's consent or nay internal arrangements or arbitral disputes with such person.

***

A. Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 10 -- Impleadment of parties -- Necessary and proper party -- Plaintiff is dominus litis and cannot ordinarily be compelled to sue a person against whom no relief is claimed -- A person can be impleaded only if he is a necessary party, without whom no effective decree can be passed, or a proper party whose presence is necessary for complete and effective adjudication of the issues involved -- A stranger claiming an independent or collateral right cannot insist upon impleadment merely because his interest may incidentally be affected.

(Paras 5 to 7)

B. Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 10 -- Haryana Urban (Control of Rent and Eviction) Act, 1973 (11 of 1973), Section 13 -- Eviction petition -- Landlord and tenant -- Impleadment of third party -- Tenancy originally created in favour of petitioner -- Subsequent partnership deed, internal arrangement or arbitral award inter se partners cannot alter contractual relationship between landlord and tenant or compel landlord to implead a person whom he has never recognised as tenant -- Proposed party held neither necessary nor proper party.

(Paras 8 to 11)

C. Arbitration and Conciliation Act, 1996 (26 of 1996) -- Haryana Urban (Control of Rent and Eviction) Act, 1973 (11 of 1973), Section 13 -- Eviction petition -- Arbitral award between tenant with his partners -- Award determining rights and liabilities between partners inter se -- Does not bind landlord, who was not a party to arbitration -- Cannot modify or prejudice independent contractual rights arising under tenancy.

(Para 9)

D. Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 10 -- Haryana Urban (Control of Rent and Eviction) Act, 1973 (11 of 1973), Section 13 -- Eviction petition -- Impleadment -- Tenant cannot by his unilateral act of inducting a third person into possession without landlord's consent, compel the landlord to implead such person or enlarge the scope of eviction proceedings -- Inter se disputes between tenant and third party are alien to landlord's claim for eviction.

(Paras 10 & 11)

E. Constitution of India, Article 227 -- Supervisory jurisdiction -- Interference with discretionary orders -- Power under Article 227 confined to cases of jurisdictional error, patent illegality, perversity or manifest failure of justice -- High Court cannot exercise supervisory jurisdiction as an appellate court merely because another view is possible -- Order refusing impleadment under Order 1 Rule 10 CPC, being based on settled principles and free from jurisdictional error, calls for no interference.

(Paras 12 to 14)

***

Filing of additional documents -- A "stop and go" or piecemeal approach cannot be permitted -- Evidence, however voluminous, cannot water down the statutory intent and rigours of the Commercial Courts Act.

***

Commercial Courts Act, 2015 -- Transfer of pending suits -- Upon transfer of a suit or application, the procedures prescribed under the Act apply thereto.

***

A. Code of Civil Procedure, 1908 (5 of 1908), Order 11 Rule 1(4) and (5) (as amended by the Commercial Courts Act, 2015) -- Filing of additional documents -- Delay and Reasonable Cause -- Appellant filed an application to bring voluminous emails and backend data on record five years after the suit had been converted into a commercial suit, during the stage of the plaintiff's evidence, on the ground that certain new facts had emerged during cross-examination -- The documents had always been in the appellant's possession since the filing of the plaint -- A plaintiff, while leading evidence, is expected not only to produce all relevant documents but also to anticipate the questions likely to arise in cross-examination -- Permitting production of voluminous documents after five years would condone a "stop and go" or piecemeal approach -- Evidence, however voluminous, cannot water down the statutory intent and rigours of the statute, which seeks the expeditious resolution of high-stakes commercial disputes.

(Para 12-14.1, 16)

B. Commercial Courts Act, 2015 (4 of 2016), Section 15 -- Transfer of pending suits -- Section 15 mandates transfer of all suits and applications of specified value to the Commercial Division or Commercial Court, as the case may be -- Upon such transfer, the procedures prescribed under the Commercial Courts Act apply to the transferred proceedings.

(Para 14.2)

***

Partition suit -- Co-sharers reflected in the revenue record are not required to be impleaded where the suit relates to a constructed house situated in an abadi area and such co-sharers have no concern with the property in dispute.

***

A. Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 10 -- Impleadment of parties -- Necessary party -- Partition suit -- House situated in abadi area -- Other co-sharers reflected in Jamabandi having no concern with the house in dispute -- Merely because they are recorded as co-owners in the revenue record, they are not required to be impleaded as defendants for effective adjudication of the suit.

(Para 4)

B. Constitution of India, Article 227 -- Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 10 -- Supervisory jurisdiction -- Impleadment of parties -- Trial Court allowed impleadment of all co-sharers without appreciating the admitted nature of the suit property -- Order held not justified and set aside in exercise of supervisory jurisdiction.

(Para 4)

***

Rejection of plaint -- Disputed questions requiring evidence or founded on incomplete extraneous material cannot form the basis for rejecting the plaint at the threshold.

***

A. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 -- Rejection of plaint -- Scope -- While deciding an application under Order VII Rule 11 CPC, Court is required to examine the averments contained in the plaint as a whole -- Written statement or any kind of evidence cannot be looked into at that stage -- Suit cannot be held to be barred by law on the basis of disputed or incomplete extraneous material.

(Para 5)

B. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11(d), Order 23 Rule 1(4), Order 2 Rule 2 -- Rejection of plaint -- Plea that subsequent suit was barred on account of withdrawal of an earlier suit without liberty -- Defendant relied only upon the first page of the alleged earlier plaint and the withdrawal order -- Complete plaint not available and record of earlier suit admittedly untraceable -- Held, it could not be concluded at the stage of Order VII Rule 11 CPC that the suit was barred under Order XXIII Rule 1(4) or Order II Rule 2 CPC.

(Paras 4 & 5)

***

Rejection of plaint -- Where the plea of statutory bar depends upon adjudication of disputed facts, the plaint cannot be rejected at the threshold under Order VII Rule 11(d) CPC.

***

A. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11(d) -- Rejection of plaint -- Scope -- While deciding an application under Order VII Rule 11 CPC, Court is required to confine itself exclusively to the averments contained in the plaint and documents relied upon by the plaintiff -- Defence taken by the defendant and disputed questions of fact cannot be considered -- Rejection under clause (d) is permissible only where the statutory bar is apparent from the plaint itself.

(Para 4)

B. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11(d), Order 23 Rule 1(4) -- Rejection of plaint -- Earlier suit withdrawn without liberty to file a fresh suit -- Plaintiff specifically pleaded that earlier suit was withdrawn on the assurance of defendants that the electricity transformer installed over the suit land would be shifted and that such assurance was subsequently breached -- Applicability of the bar under Order XXIII Rule 1(4) dependent upon adjudication of disputed questions of fact -- Plaint cannot be rejected at the threshold.

(Paras 5, 6 & 8)

***

Compromise decree -- Compromise must be in writing and signed by parties -- Counsel cannot bind client without express authority or exigent circumstances.

***

Code of Civil Procedure, 1908 (5 of 1908), Order 23 Rule 3 -- Compromise decree -- Validity -- Compromise must be in writing and signed by parties -- Signature of counsel without express authority or exigent circumstances is insufficient to bind party -- Voluntary consent of parties is mandatory -- Compromise decree passed without compliance with mandatory requirements of Order 23 Rule 3, not sustainable -- Decree rightly set aside.

(Paras 5.1 to 5.6)

***

Electrocution death -- Absolute liability -- Electricity transmission company liable irrespective of negligence of deceased -- Compensation upheld.

***

Code of Civil Procedure, 1908 (V of 1908), Section 96 -- Electricity -- Electrocution -- Compensation -- Electricity transmission company -- Death due to electrocution from high-voltage transmission line passing through tree branches -- Defence of contributory negligence rejected -- Electricity being an inherently hazardous activity, electricity company under statutory obligation to maintain transmission lines and ensure public safety -- Principle of absolute liability applicable -- Liability to compensate not dependent upon proof of negligence and cannot be avoided by alleging negligence of deceased -- Decree awarding compensation upheld and appeal dismissed.

(Paras 9 to 16)

***

Withdrawal of suit -- Suit for injunction based on alleged construction is disputed by defendant and material on record shows no such construction -- Withdrawal with liberty to refile cannot be permitted.

***

Code of Civil Procedure, 1908 (5 of 1908), Order 23 Rule 1 -- Withdrawal of suit with liberty to institute fresh -- Suit for injunction based on alleged construction is disputed by defendant and material on record shows no such construction -- Withdrawal with liberty to refile cannot be permitted -- Dismissal of application upheld.

(Paras 6 to 9)

***

Execution proceedings -- Conditional warrants of arrest -- Where decree provides recovery by sale of mortgaged property, arrest of judgment-debtor cannot be resorted to without first proceeding against mortgaged property.

***

Code of Civil Procedure, 1908 (5 of 1908), Section 51, Order 21 Rule 37 -- Execution of decree -- Arrest of judgment-debtor -- Decree directing recovery of amount through sale of mortgaged property first -- Execution Court is required to proceed against mortgaged property before resorting to coercive arrest of judgment-debtor -- Conditional warrants of arrest held unsustainable.

(Paras 4 to 6)

***

Co-sharer property -- Purchaser from co-sharer acquires only such rights and possession as vendor himself possessed and cannot claim exclusive possession unless vendor was in exclusive possession of specific khasra numbers.

***

Permanent injunction -- Joint property -- Co-sharer in joint possession is not entitled to injunction restraining other co-sharers from alleged interference on basis of claim of exclusive possession not proved.

***

Revenue record -- Exclusive possession -- Burden of proof -- Failure to produce revenue record showing vendor's exclusive possession prior to sale deed is fatal to claim of exclusive possession by vendee.

***

Additional evidence -- Relevancy -- Sale deed relating to different khasra numbers and executed by a person not party to suit is neither relevant nor necessary for adjudication of dispute and cannot be permitted in appeal.

***

A. Transfer of Property Act, 1882 (4 of 1882), Section 8 -- Co-sharer property -- Sale by co-sharer -- Vendor being co-sharer in joint property could transfer only such rights and possession as he himself possessed -- Purchaser cannot claim exclusive possession unless vendor was established to be in exclusive possession of specific khasra numbers at time of sale.

(Paras 13 to 16)

B. Specific Relief Act, 1963 (47 of 1963), Section 38 -- Permanent injunction -- Joint possession -- Vendor not proved to be in exclusive possession of suit land -- Purchaser held only a co-sharer in joint possession -- Not entitled to injunction restraining other co-sharers from interference with suit property.

(Paras 14 to 16)

C. Punjab Land Revenue Act, 1887 (XVII of 1887), Section 34 -- Revenue record -- Khasra Girdawari -- Exclusive possession -- Khasra Girdawari reflected possession of different co-sharers and joint possession of suit land -- Absence of any revenue record showing exclusive possession of vendor prior to execution of sale deed negatived purchaser's claim of exclusive possession.

(Paras 14 and 15)

D. Code of Civil Procedure, 1908 (5 of 1908), Order 41 Rule 27 -- Additional evidence -- Additional evidence sought to be produced related to different khasra numbers and purchase of share from a person not party to suit -- Evidence neither relevant nor necessary for adjudication of appeal -- Application rightly dismissed.

(Para 16)

***

Court fee -- Refund of excess court fee -- Issue of court fee is a matter between plaintiff and Court -- Issuance of notice to defendants and affording them opportunity of hearing not necessary.

***

Court Fees Act, 1870 (7 of 1870), Sections 10 and 11 -- Refund of court fee -- Excess court fee -- Issue of court fee is a matter between plaintiff and Court -- Defendants have no role to play in adjudication of claim for refund of excess court fee -- Issuance of notice to defendants and affording them opportunity of hearing not necessary.

(Para 9, 10)

***

Rejection of plaint -- Existence of cause of action has to be examined solely from averments in plaint -- Defence of defendant cannot be considered at that stage.

***

Rejection of plaint -- Specific performance -- Whether writing constitutes a valid and enforceable agreement is a matter requiring evidence and adjudication at trial -- Plaint cannot be rejected under Order VII Rule 11 CPC on that ground.

***

A. Code of Civil Procedure, 1908 (5 of 1908), Order 7 Rule 11 -- Rejection of plaint -- Cause of action -- Whether cause of action is disclosed has to be determined only from averments contained in plaint -- Defence raised by defendant cannot be taken into consideration while deciding application for rejection of plaint.

(Para 4)

B. Code of Civil Procedure, 1908 (5 of 1908), Order 7 Rule 11 -- Specific Relief Act, 1963 (47 of 1963), Section 10 -- Specific performance -- Agreement to sell -- Whether writing constituted a valid and enforceable agreement can be determined only after parties lead evidence and Court appreciates such evidence -- Plaint not liable to rejection at threshold on plea that no valid agreement came into existence.

(Para 5, 6)

***

Evidence -- Closure of evidence -- Opportunity to examine party as witness -- Matters should be decided on merits rather than technicalities -- Orders closing evidence and refusing recall set aside subject to payment of costs.

***

Code of Civil Procedure, 1908 (5 of 1908) -- Evidence -- Closure of evidence -- Opportunity to examine party as witness -- One effective opportunity to lead and conclude evidence ought to be granted where party seeks to examine himself as a witness -- Matters should be decided on merits rather than technicalities -- Orders closing evidence and dismissing application for recall set aside subject to payment of costs.

(Paras 7 to 9)

***

Defence struck off – Non-filing of written statement -- Overly strict approach had been adopted by Trial court -- One effective opportunity granted subject to costs.

***

Constitution of India, Article 227 -- Code of Civil Procedure, 1908 (V of 1908), Order 8 Rule 1 -- Written statement -- Defence struck off for non-filing of written statement -- Application seeking opportunity to file written statement dismissed -- Overly strict approach had been adopted by Trial court -- Impugned orders set aside subject to payment of costs of Rs.5,000/- -- One effective opportunity granted to file written statement -- No further opportunity to be granted. (Paras 7 and 8)

(Paras 6 to 8)

***

Execution of decree for possession -- Pendency of first appeal against decree -- Appellate Court directed to decide appeal expeditiously, preferably within six months, execution proceedings stayed.

***

Code of Civil Procedure, 1908 (V of 1908), Sections 96 and 107, Order 21 – Execution of decree -- First appeal pending – Effect of -- Executing Court dismissed objections and issued warrants of possession -- Execution proceedings stayed during pendency of appeal -- Impugned order set aside -- Appellate Court directed to dispose of appeal expeditiously, preferably within six months.

(Paras 6 and 7)

***

Impleadment as party -- Plaintiffs assigned and transferred their rights in suit property during pendency of suit -- Petitioner impleaded as plaintiff No.9 under Order 22 Rule 10 CPC and permitted to pursue suit from existing stage.

***

Code of Civil Procedure, 1908 (V of 1908), Order 22 Rule 10, Order 1 Rule 10 -- Impleadment as party -- Plaintiffs assigned and transferred their rights in suit property in favour of petitioner by registered sale deeds during pendency of suit -- Trial Court dismissed application for impleadment -- Impugned order set aside -- Relief not granted under Order 1 Rule 10 CPC and petitioner ordered to be impleaded as plaintiff No.9 under Order 22 Rule 10 CPC and allowed to pursue suit from the stage at which it was pending.

(Paras 8, 11 and 12)

***

Execution proceedings -- Appeal against judgment and decree pending before first Appellate Court -- Appeal directed to be decided expeditiously and execution proceedings stayed till disposal thereof.

***

Code of Civil Procedure, 1908 (V of 1908), Sections 96 and 107, Order 21 – Execution of decree -- First appeal pending – Effect of -- Execution proceedings initiated during pendency of appeal -- First Appellate Court directed to decide appeal expeditiously, preferably within six months -- Further proceedings in execution application stayed till disposal of appeal.

(Paras 6 and 7)

***

Written statement -- File remained unavailable before Trial Court during transfer proceedings -- Defence not liable to be struck off.

***

Code of Civil Procedure, 1908 (V of 1908), Order 8 Rule 1 -- Written statement -- Application for striking off defence dismissed -- File remained unavailable before Trial Court during period when matter was pending before District Judge in connection with transfer of case -- Written statement filed after file was received back by Trial Court -- Written statement taken on record and application for striking off defence dismissed -- No illegality, perversity or jurisdictional infirmity in impugned order.

(Paras 5 to 5.3)

***

Judgment on admissions -- Statement regarding receipt of amount under family settlement not amounting to admission of liability -- Decree on admission impermissible where liability requires inference and disputed questions of fact require trial.

***

Judgment on admissions -- Framing of issues and direction to lead evidence -- Indicates existence of triable issues -- Subsequent decree on admission unsustainable.

***

Judgment on admissions -- Revisional jurisdiction -- Trial Court having found triable issues and dismissed application under Order XII Rule 6 CPC -- Revisional Court could not substitute its own interpretation of pleadings merely because another view was possible.

***

A. Code of Civil Procedure, 1908 (V of 1908), Order 12 Rule 6 -- Judgment on admissions -- Triable issues -- Pleadings to be read as a whole and not piecemeal -- Statement regarding receipt of amount under family arrangement not constituting admission of liability to plaintiff -- Questions relating to entitlement, distribution of shares and enforceable liability requiring evidence – Presence of triable issues bars decree on admission.

(Paras 37-47)

B. Code of Civil Procedure, 1908 (V of 1908), Order 12 Rule 6 -- Framing of issues -- Court having directed parties to lead evidence after framing issues -- Indicates existence of triable issues -- Subsequent decree on admission unsustainable.

(Para 42)

C. Code of Civil Procedure, 1908 (V of 1908), Section 115, Order 12 Rule 6 – Judgment on admission -- Revisional jurisdiction -- Scope -- High Court, while exercising revisional jurisdiction under Section 115 of the CPC, could not have substituted its own interpretation merely because another view was possible as the scope of revisional jurisdiction is limited -- High Court reassessed the factual matrix and proceeded to substitute its own interpretation of the pleadings and such an exercise travelled beyond the permissible limits of Section 115 of the CPC -- Decree on admission set aside.

(Para 44, 47)

D. Code of Civil Procedure, 1908 (V of 1908), Order 12 Rule 6 -- Inconsistent pleadings in another proceeding -- Relevant for appreciation of evidence at trial -- Cannot by itself justify decree on admission.

(Para 45)

***

Ex parte decree -- Setting aside of -- Limitation -- Application under Order IX Rule 13 CPC filed nearly three years after passing of ex parte decree -- Limitation in case of defendant having appeared in proceedings runs from date of decree and not from date of knowledge -- Mere engagement of counsel does not absolve litigant from duty to remain vigilant and monitor litigation -- Application rightly held barred by limitation -- Revision dismissed.

***

Code of Civil Procedure, 1908 (V of 1908), Order 9 Rule 13 -- Ex parte decree -- Setting aside of -- Limitation -- Petitioner sought setting aside of ex parte judgment and decree on plea that counsel ceased appearing without informing her and she acquired knowledge of decree only upon receipt of communication during execution proceedings -- Application under Order IX Rule 13 CPC filed nearly three years after ex parte proceedings and without any application under Section 5 of Limitation Act for condonation of delay -- Held, where defendant has appeared in proceedings, limitation for filing application under Order IX Rule 13 CPC runs from date of decree and not from date of knowledge -- Litigant cannot shift entire burden upon counsel and remains under obligation to remain vigilant and maintain contact with engaged counsel -- No sufficient cause shown for inordinate delay -- Application rightly held barred by limitation -- No illegality, perversity or jurisdictional error in appellate order -- Revision petition dismissed.

(Paras 11 to 15.1)

***

Status quo order -- Allegation that respondents/plaintiffs violated status quo by starting business/working in shops -- Even then, petitioner/defendant cannot unilaterally seal shops during subsistence of status quo order.

***

Code of Civil Procedure, 1908 (5 of 1908), Order 39 Rules 1 and 2 -- Status quo order -- Allegation that respondents/plaintiffs violated status quo by starting business/working in shops -- Even then, petitioner/defendant cannot unilaterally seal shops during subsistence of status quo order -- Such action held unsustainable and direction for de-sealing upheld.

(Paras 2 and 3)

***

Civil suit -- Expeditious disposal -- Issues framed in year 2022 -- No witness examined till date -- Trial Court directed to decide suit expeditiously and avoid unnecessary adjournments.

***

Constitution of India, Article 227 -- Code of Civil Procedure, 1908 (V of 1908) -- Civil suit -- Delay in trial -- Petitioner sought direction for time-bound disposal of civil suit -- Issues framed on 30.11.2022 -- Thereafter parties kept filing various applications resulting in no progress of suit -- No witness examined till date -- Held, continued delay likely to prolong adjudication of suit -- Trial Court directed to dispose of suit as expeditiously as possible without granting unnecessary adjournments -- Revision petition disposed of.

(Paras 4 and 5)

***

Rejection of plaint -- Cause of action -- Res judicata -- Plaint disclosed cause of action challenging sale deed on grounds of fraud and absence of consideration -- Plea of res judicata held premature at stage of Order VII Rule 11 CPC -- Revision dismissed.

***

Constitution of India, Article 227 -- Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 -- Rejection of plaint -- Cause of action -- Res judicata -- Defendant sought rejection of plaint on grounds that no cause of action was disclosed and suit was barred by principle of res judicata due to pendency of another suit and counter-claim -- Plaintiff sought declaration that sale deed was null and void on account of fraud and absence of consideration -- Held, plaint clearly disclosed cause of action and truthfulness of averments cannot be examined at stage of Order VII Rule 11 CPC -- Whether suit is barred by res judicata requires consideration of evidence and relevant judgment/decree and cannot be decided at preliminary stage before framing of issues and leading of evidence -- No ground made out for rejection of plaint -- Revision petition dismissed.

(Paras 3 to 6)

***

First appeal -- Substantial compliance with Order 41 Rule 31 CPC -- Detailed reappreciation by First Appellate Court sufficient to sustain reversal of Trial Court decree.

***

Fraud -- Registered GPA-based sale transactions – Plaintiff failed to establish that transactions were mere loan-security arrangements or were vitiated by fraud – Burden of proof remains on plaintiff; in absence of foundational facts, presumption of genuineness of registered sale transactions stands.

***

A. Code of Civil Procedure, 1908 (Act No. V of 1908), Section 96 read with Order 41 Rule 31 – First Appellate Court, being the final court on facts, is required to independently reappreciate entire evidence and assign reasons while reversing Trial Court decree – Requirement is of substantial compliance and not mere technical formality – Detailed reappreciation of oral and documentary evidence, including loan transactions, Exs. B7 and B9, possession, mutation entries, limitation and conduct of parties, held sufficient compliance – Judgment not liable to be interfered with on ground of alleged non-compliance with Order XLI Rule 31 CPC.

(Para 40-42)

B. Transfer of Property Act, 1882 (Act No. IV of 1882), Sections 53A, 54 and 55 – Indian Evidence Act, 1872 (Act No. 1 of 1872), Sections 101 to 103 – Registered GPA – Execution of sale deeds pursuant to GPAs – Fraud alleged -- Burden of proof – Appellant executed registered GPAs in favour of respondents; original title deeds were handed over and registered sale deeds executed followed by mutation entries and subsequent transfers – Burden to prove that transactions were only loan-security arrangements and not genuine sale transactions lies upon the plaintiff – Mere allegation of fraud or fiduciary misuse is insufficient without foundational facts – Burden does not shift to respondents unless foundational facts are first established.

(Paras 43, 44)

C. Transfer of Property Act, 1882 (Act No. IV of 1882), Sections 54 and 55 – Indian Evidence Act, 1872 (Act No. 1 of 1872), Sections 101 to 103 and 114 – Registered sale deeds pursuant to GPA – Fraud alleged – Delay and conduct – Appellant executed registered GPAs and sale deeds in 1998; mutation entries continued for several years and multiple subsequent transactions were effected – No cancellation of GPAs or legal action for nearly a decade – Explanation of delayed knowledge rejected in view of appellant and PW-1 being engaged in real estate business – Non-examination of appellant and attesting witnesses to receipts and GPAs – No expert evidence of forgery or interpolation – Plea of forgery of Exs. B7 and B9 rejected – Appeal dismissed.

(Paras 45-58)

***

Will -- Exclusion of natural heirs -- Mere exclusion of wife and children from inheritance not by itself a suspicious circumstance.

***

Order 41 Rule 31 CPC -- Non-framing of proper points for determination by First Appellate Court -- Effect -- Mere technical non-compliance not sufficient to vitiate judgment when Appellate Court has substantially complied with requirements of law by thoroughly considering evidence, rival contentions and recording reasons -- Judgment of First Appellate Court upheld.

***

Affidavit -- Evidentiary value -- Affidavit of attesting witnesses denying execution of Will -- Affidavit not substantive evidence unless deponent subjected to cross-examination in accordance with law.

***

A. Indian Succession Act, 1925 (39 of 1925), Section 63 -- Indian Evidence Act, 1872 (1 of 1872), Section 68 -- Will -- Due execution and attestation -- One attesting witness examined -- Attesting witness specifically deposed that testator executed Will in his presence and both signed in presence of each other -- Requirement of proof of execution duly satisfied -- Concurrent findings upholding genuineness of Will affirmed.

(Paras 27 to 30)

B. Mutation entries -- Effect -- Mutation entries do not confer title and are only for fiscal purposes -- Mere mutation of property in favour of wife and children of deceased not affecting title flowing under validly executed Will.

(Para 31)

C. Indian Succession Act, 1925 (39 of 1925), Section 63 -- Will -- Suspicious circumstances -- Exclusion of natural heirs -- Mere exclusion of wife and children from inheritance not by itself suspicious circumstance -- Testator legally entitled to dispose of property according to his wishes.

(Paras 32 to 34)

D. Code of Civil Procedure, 1908 (5 of 1908), Order 41 Rule 31 -- First Appellate Court -- Non-framing of proper points for determination -- Substantial compliance -- Mere technical non-compliance with Order 41 Rule 31 CPC not sufficient to vitiate judgment where Appellate Court substantially complied with requirements by scrutinising evidence and assigning reasons -- Judgment held not suffering from illegality.

(Para 37)

E. Indian Evidence Act, 1872 (1 of 1872), Section 3 -- Affidavit -- Evidentiary value -- Affidavit not substantive evidence unless deponent available for cross-examination -- Affidavits of attesting witnesses denying execution of Will filed even before filing of written statement and without Court notice -- Such affidavits rightly held unreliable and discarded.

(Para 38)

Attachment of salary -- Execution -- Judgment debtor disclosed no movable or immovable property except one motorcycle -- Executing Court ordered attachment of 1/3rd of salary of judgment debtor employed as TTE in Railway Department for satisfaction of decree -- Order held in accordance with law.

***

Code of Civil Procedure, 1908, Order 21 Rule 41 and Section 151, Order 9 Rule 13 -- Execution of ex parte money decree -- Attachment of salary -- Decree for recovery of Rs.4,00,000/- -- Judgment debtor disclosed absence of any assets except one motorcycle -- Executing Court rightly exercised power under Order 21 Rule 41 CPC and attached 1/3rd of salary of judgment debtor employed in Railway Department for satisfaction of decretal amount -- Pendency of application under Order 9 Rule 13 CPC held immaterial in absence of any stay against execution proceedings.

(Paras 2 to 4)

***

Pleadings -- Material facts and evidence -- Pleadings must contain material facts and not evidence -- Facts constituting proof need not be specifically pleaded.

***

Pleading and proof -- Distinction -- Pleading relates to assertion of material facts constituting cause of action -- Proof relates to evidence led to establish such facts.

***

Oral family arrangement – Validity -- A family arrangement can be entered into even by way of an unregistered oral agreement and such family settlements are enforced by Courts as they are governed by special equity principles.

***

Share certificates relating to land -- Interest in land includes building standing thereon.

***

Pleadings and proof -- Eviction suit -- Plaintiff pleaded herself co-landlord and statutory grounds of eviction -- Evidence regarding family arrangement, share certificates and bona fide requirement adduced during trial -- Material facts sufficiently pleaded and proved -- High Court erred in interfering with concurrent findings on alleged absence of pleadings.

***

Comparative hardship -- Tenant acquired alternative accommodation -- Sale of alternate premises during pendency of suit indicative of attempt to defeat eviction claim -- Greater hardship held in favour of landlord.

***

Co-owner landlord -- Share certificates jointly standing in names of plaintiff and siblings -- Co-owner entitled to receive rent falls within definition of “landlord” under Rent Act -- Competent to maintain eviction proceedings.

***

A. Code of Civil Procedure, 1908 (5 of 1908), Order 6 Rule 1 -- Pleadings -- Order VI Rule 1 of the Code of Civil Procedure states that pleading means ‘Plaint or Written Statement’ -- A plaint is the statement of claim in which the plaintiff sets out his cause of action with all requisite particulars -- A written statement, on the other hand, is the defendant’s response, wherein he deals with each material fact alleged by the plaintiff and sets out any new facts in his favour, together with such objections as he wishes to raise to the claim.

-- The object of pleadings is to assist the Court and the parties in the adjudication of disputes. The intent is to provide fair notice of the opponent’s case, to ascertain with precision the points of agreement and divergence and thereby to bring the parties to definite issues.

-- Accordingly, pleadings of the parties form the foundation of their case as they are the statement of facts in writing drawn up and filed in a Court by each party stating therein what his/her contention shall be at the trial.

Consequently, the requisites of a good and sufficient pleading are that it should contain (1) a statement of facts, not law, (2) material facts only, (3) facts, not evidence and (4) facts stated in a summary form.

(Para 26-31)

B. Code of Civil Procedure, 1908 (5 of 1908), Order 6 Rule 2 -- Relevant facts – Facts in issue -- Every pleading must contain material facts but not the evidence by which those facts are to be proved -- The material facts on which a party relies are called Facta Probanda, i.e. the facts to be proved and they are required to be stated in the pleadings -- The evidence or facts by which Facta Probanda are to be proved are called Facta Probantia and these are not to be included in the pleadings -- Facta Probanda are not the facts in issue rather, they are the relevant facts which, when proved at trial, establish the facts in issue.

-- Though it is settled law that no evidence can be led on a plea not raised in the pleadings and no amount of evidence can cure a defect in pleadings, yet it is equally well settled that facts which are merely evidence of material facts should not themselves be pleaded.

-- Pleading and proof thus represent distinct stages in legal proceedings. Pleading is the formal assertion of material facts with the intent to define the case, whereas proof, by contrast, is the evidence adduced to establish those facts as true.

(Para 32)

C. Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (57 of 1947), Sections 5(3), 13(1)(g), 13(1)(l), 13(2) -- Eviction suit -- Co-owner as landlord -- Appellant averred that she is a co-landlord along with her parents and siblings -- Sought possession on the grounds of bona fide need, relative hardship and the availability of alternative accommodation to the tenants – Appellant adduced evidence by way of affidavit, placing on record the requirements of her family, her own need, the family arrangement and the share certificates -- These documents and averments constituted evidence to establish the material facts pleaded and were not required to be set out in the plaint itself – Held, both the tests of pleading and proof stand satisfied -- Appellant, being the co-owner of the suit building was entitled to receive rent and thus fell squarely within the statutory definition of ‘landlord’ under the Act -- Appellant/ Plaintiff competent to seek eviction.

(Paras 36 to 46)

D. Transfer of Property Act, 1882, Sections 3, 8 -- Share certificates -- Interest in land and building -- Transfer or holding of interest in land includes things attached to earth including building standing thereon -- Share certificates relating to land held sufficient to establish co-ownership of building also.

(Paras 42 to 44)

E. Registration Act, 1908 (16 of 1908), Section 17 – Oral family arrangement -- A family arrangement can be entered into even by way of an unregistered oral agreement and such family settlements are enforced by Courts as they are governed by special equity principles -- Appellant held entitled to rely upon the oral family arrangement/settlement, as deposed in evidence, even in absence of a decree of partition between herself and her siblings, as it represents a subsequent development.

(Paras 48 to 50)

F. Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, Sections 13(1)(g), 13(2) -- Bona fide requirement -- Temporary occupation by landlord of another family flat during pendency of suit not fatal to claim -- Tenant cannot dictate suitability of accommodation to landlord -- Bona fide need of landlord established.

(Paras 51 to 53)

G. Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, Sections 13(1)(g), 13(1)(l), 13(2) -- Comparative hardship -- Tenant having acquired alternate accommodation -- Sale of alternate premises during pendency of suit indicative of attempt to defeat eviction proceedings -- Greater hardship held to be caused to landlord if eviction refused -- Landlord in bona fide need would otherwise be compelled to purchase or secure alternate accommodation – Eviction restored.

(Paras 54 to 61)

Will -- Suspicious circumstances -- Attesting witnesses admitted that testator had not affixed thumb impression in their presence -- Unregistered Will executed three days prior to death of testator -- Natural heir excluded without explanation despite evidence of love and affection -- Space between signatures and heading “attesting witness” also found suspicious -- Will disbelieved.

***

Additional evidence at second appellate stage -- Prayer for comparison of thumb impressions appearing on Will and sale deed -- Rejected -- Plaintiffs failed to exercise due diligence.

***

A. Indian Succession Act, 1925 (39 of 1925), Section 63(c) -- Proof of Will -- Unregistered Will -- Both attesting witnesses admitted in cross-examination that testator had not affixed thumb impression in their presence -- Moreover, there is no evidence to show that they had received personal acknowledgment from the testator qua the marking of the thumb impression of the testator on the Will -- Thus, due execution of the Will has not even been remotely proved.

(Para 12-17)

B. Indian Succession Act, 1925 (39 of 1925), Section 63(c) -- Proof of Will -- Unregistered Will – Suspicious circumstances -- Space between the signatures and the heading “attesting witness” typed was suspicious -- Deceased had love and affection with defendant, yet as per the said alleged Will, nothing has been given to him, who was to succeed to the property in its natural course being closest surviving heir -- Executing an unregistered Will on 17.02.1992 i.e., three days prior to his death which took place on 20.02.1992 is also highly suspicious – Both attesting witnesses admitted that testator had not affixed thumb impression in their presence -- Rendering the Will doubtful.

(Para 11-17)

C. Code of Civil Procedure, 1908 (5 of 1908), Order 41 Rule 27 and Section 151 -- Additional evidence at second appellate stage -- Application seeking comparison of thumb impressions on Will and sale deed -- Plaintiffs failed to exercise due diligence during trial -- Additional evidence held unnecessary, in view of findings regarding non-proof of execution and suspicious circumstances surrounding Will -- Application dismissed.

(Para 22)

***

Execution -- Enhanced compensation – Proforma respondents -- Petitioners impleaded as proforma respondents in Regular First Appeal seeking enhancement of compensation -- Benefit of enhanced compensation granted to petitioners.

***

Code of Civil Procedure, 1908 (5 of 1908), Order 41 Rule 4 -- Land Acquisition Act, 1894 (1 of 1894), Section 18 -- Enhanced compensation -- Proforma respondents in appeal -- Joint reference petition filed by landowners was decided by common judgment -- Appeal against enhancement filed by some co-owners while petitioners were impleaded as proforma respondents -- Executing Court dismissed execution petition qua petitioners on ground that they were not appellants in appeal -- Held, once petitioners were parties as proforma respondents in appeal, benefit of enhanced compensation granted therein equally accrued to them in terms of Order 41 Rule 4 CPC -- Impugned order set aside and Executing Court directed to entertain execution petition and release enhanced compensation in accordance with law.

(Paras 7 and 8)

***

Interim injunction -- Observations made while deciding application under Order 39 Rules 1 and 2 CPC are only tentative in nature – Trial Court to decide the suit de hors the observations made.

***

Code of Civil Procedure, 1908 (5 of 1908), Order 39 Rules 1 and 2 –Interim injunction – Observations therein -- Effect of -- Observations made in order passed on an application under Order 39 Rules 1 and 2 CPC are only for the purpose of deciding the said application and same are not to be taken into consideration at the stage of final adjudication -- Trial Court directed to decide the main suit on the basis of the evidence and arguments, de hors the observations made in the impugned orders.

(Para 3-5)

***

Family settlement – Oral family arrangement – Validity -- Property found to have fallen to share of defendant No.1 in family settlement -- Defendant No.1 constructed houses from his own funds and remained in settled possession -- Concurrent findings of fact not liable to be interfered with in second appeal.

***

Code of Civil Procedure, 1908 (5 of 1908), Section 100 – Regular Second Appeal -- Family settlement -- Partition suit -- Plaintiff sought possession by way of partition claiming suit property to be ancestral and joint Hindu family property -- Defendant No.1 pleaded that property had fallen to his share in oral family settlement -- Conceded position of fact that the parties partitioned their agricultural property long back -- They are neither joint in mess nor in residence -- Plaintiff is residing in Mumbai -- Defendant No.1 alone was residing in village and is in settled possession of houses constructed from his own funds -- Held, oral family settlement is valid and binding -- Concurrent findings of fact recorded by Courts below did not suffer from any legal infirmity warranting.

(Paras 10 to 12)

Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11, Section 115 --  Rejection of plaint -- Scope -- Consideration confined to plaint averments alone -- Defence pleas impermissible at threshold stage -- Allegations of fraud, mistake and rectification specifically pleaded in plaint -- Limitation involving question of knowledge of fraud held to be mixed question of law and fact requiring evidence -- Suit not ex facie barred by limitation -- Trial Court rightly declined rejection of plaint -- Revisional jurisdiction under Section 115 CPC not attracted in absence of jurisdictional error or material irregularity -- Revision petition dismissed.

(Para 5-10)

***

Pronote and receipt -- Presumption -- Once execution of pronote and receipt is proved, presumption of consideration u/s 118 of the Negotiable Instruments Act arises and mere denial by defendant is insufficient to rebut the same -- Isolated friendly loan transaction does not require money lending licence.

***

Negotiable Instruments Act, 1881 (XXVI of 1881), Section 118 -- Code of Civil Procedure, 1908 (V of 1908), Section 100 -- Pronote and receipt -- Recovery suit -- Friendly loan of Rs.2 lacs with interest @ 2% per month -- Due execution of pronote and receipt proved from testimony of scribe, attesting witness and plaintiff himself -- Once execution stood established, statutory presumption regarding consideration arose u/s 118 of the Act -- Mere denial by defendant held insufficient to rebut presumption -- Defendant neither examined handwriting expert nor produced any cogent documentary evidence to dispute signatures or passing of consideration -- Plea regarding absence of money lending licence rejected, as isolated transaction of friendly loan does not amount to carrying on business of money lending requiring licence -- Concurrent findings recorded by Courts below based on proper appreciation of evidence -- No substantial question of law arose -- Suit rightly decreed.

(Paras 14 to 19)

Code of Civil Procedure, 1908 (V of 1908), Order 22 Rules 3 and 5 -- Impleadment of legal representative – Defendant No.2 has supported the case of the plaintiff, whereas, the present petitioners/ other defendants contested the suit of the plaintiff -- Trial Court allowed the defendant No.2 to pursue the case of the plaintiff after observing that his interest was not adverse to the interest of plaintiff, whereas, since the interest of the present petitioners was adverse thus, they could not been allowed to pursue the case although petitioner No.1 was also the son of plaintiff – Held, person having interest adverse to plaintiff cannot be permitted to pursue plaintiff’s case -- Mere impleadment of LR does not confer any right, title or entitlement in estate of deceased -- Rights of parties regarding inheritance and estate left open to be adjudicated in independent proceedings -- Revision petition disposed of with clarification – Impugned order upheld with clarification.

(Para 4-8)

Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11, Section 115 -- Rejection of plaint -- Deficient court fee -- Plaintiff filed suit for damages on account of alleged defamation and tentatively valued suit at Rs.5,00,000/- while pleading that actual damages were liable to be assessed by Court -- Held, in suits for unliquidated damages founded on tort, precise amount recoverable cannot always be predetermined and valuation furnished by plaintiff remains tentative subject to adjudication -- Rejection of plaint u/O 7 Rule 11 CPC being drastic power can be exercised only where defect is apparent and incapable of being cured -- Trial Court dismissed the application and kept the issue of adequacy of court fee open for consideration at appropriate stage and preserved right to direct payment of deficient court fee, if found payable -- No jurisdictional error or material irregularity in impugned order -- Revision petition dismissed.

(Para 4-12)

***

Pronote and receipt -- Presumption -- Where defendant admits thumb impressions on pronote and receipt but alleges misuse of blank papers, burden to prove fraud lies upon him -- Mere oral denial without independent evidence is insufficient to rebut presumption under Section 118 of Negotiable Instruments Act.

***

Negotiable Instruments Act, 1881 (XXVI of 1881), Section 118 -- Code of Civil Procedure, 1908 (V of 1908), Section 100 -- Pronote and receipt -- Recovery suit -- Loan of Rs.3,00,000/- advanced on interest @ 1.5% per month -- Defendant admitted thumb impressions on pronote and receipt but alleged misuse of blank papers and fraud -- Due execution of pronote and receipt proved by testimony of plaintiff and handwriting and fingerprint expert -- Plea of fraud held not proved, as defendant failed to lead any independent or cogent evidence in support thereof -- Mere self-serving statement of defendant insufficient to rebut statutory presumption regarding consideration -- Defendant neither replied to legal notice nor lodged any complaint regarding alleged misuse of thumb impressions, thereby rendering defence improbable -- Concurrent findings of Courts below based on proper appreciation of evidence and conduct of parties -- No ground for interference in second appeal -- Appeal dismissed.

(Paras 6 to 10)

***

Recall/re-examination of witness -- Power under O.18 R.17 CPC is exercisable sparingly by Court itself for clarification of ambiguity or eliciting further information and cannot be invoked by party to neutralize effect of cross-examination or fill lacuna in evidence.

***

Code of Civil Procedure, 1908 (V of 1908), Order 18 Rule 17, Section 151 -- Recall/re-examination of witness -- Maintainability of application -- Power under O.18 R.17 CPC intended only to enable Court to clarify doubts and not to permit party to improve case or fill lacunae -- A witness can be recalled for re-examination only by the Court in order to clarify any ambiguity or elicit further information -- Under the said provision, a witness cannot be recalled for further re-examination on an application made by either party -- Said provision is not available to a private party; but is only available to the Court to remove ambiguity and to elicit further information.

(Paras 14 to 18)

***

Execution -- Judgment Debtor cannot frustrate execution of decree by purchasing part of property during pendency of execution proceedings and thereafter raising plea of co-sharership -- Transfer pendente lite does not defeat decree for possession nor confer right to obstruct execution.

***

Code of Civil Procedure, 1908 (V of 1908), Order 21 Rule 102 – Constitution of India, Article 227 -- Execution -- Objections by Judgment Debtor -- Lis pendens -- Decree for possession attained finality -- Judgment Debtor during pendency of execution proceedings purchased part of alleged joint land and claimed status of co-sharer to resist execution -- Purchase made subsequent to decree and during execution proceedings held hit by doctrine of lis pendens -- Executing Court cannot go beyond decree -- Subsequent transaction cannot render decree inexecutable -- Even transferee pendente lite not entitled to resist execution in view of O.21 R.102 CPC -- Objections rightly dismissed -- No interference warranted under Art.227 of Constitution.

(Paras 8 to 13)

***

Rejection of plaint -- Adverse Possession -- Whether property was privately partitioned and title perfected by adverse possession are triable issues not liable to be decided under Order VII Rule 11 CPC.

***

A. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11(a) -- Limitation Act, 1963 (36 of 1963), Article 65 -- Title by adverse possession -- Rejection of plaint -- Cause of action -- Co-owners -- Plaint rejected on the ground that plaintiffs, being co-owners, could not claim title by adverse possession -- Plaint specifically pleaded private partition pursuant to an arbitral award and exclusive, open, peaceful, continuous and hostile possession since 1982, maturing into adverse possession in 1994 -- Whether the property stood privately partitioned and whether plaintiffs acquired title by adverse possession are triable issues involving mixed questions of fact and law requiring evidence -- While considering an application under Order VII Rule 11(a), Court is required to examine only the averments contained in the plaint and the documents relied upon by the plaintiffs to ascertain whether a cause of action is disclosed -- Even if the plea of adverse possession ultimately fails, the suit for permanent injunction to protect admitted possession remains maintainable -- A plaint cannot be rejected partially -- Order rejecting plaint set aside and matter remanded for trial.

(Paras 11 to 19)

B. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 – Rejection of plaint -- If it is shown from the averments made in the plaint and the documents relied upon by the plaintiff, which are to be taken as true at their face value, that the plaintiff would be entitled to a decree as prayed in the suit, the plea of a defendant for rejection of the plaint has to be turned down.

(Para 11)

C. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11(a) – Rejection of plaint -- While dealing with an application under Order VII Rule 11 (a) of the Code of Civil Procedure, the courts have to determine whether the plaint discloses a cause of action by carefully scrutinizing the averments made in the plaint together with the documents relied upon by the plaintiffs.

(Para 11)