A. Code of Civil Procedure, 1908 (V of 1908), Order 5 Rule 15 – Service of summons -- Respondent is stated to have been served physically through a member of his family -- Respondent stands duly served -- None has appeared on behalf of the respondent, the respondent is proceeded against ex parte.

(Para 5, 6)

B. Arbitration and Conciliation Act, 1996 (26 of 1996), Section 11(6) -- Appointment of arbitrator -- Landlord-tenant dispute – Lease deed would show that the parties had specifically agreed for resolution of the disputes through arbitration -- Notice to the respondent had specifically been called upon for initiation of arbitration proceedings, but to no avail – Such disputes can be adjudicated by way of arbitration – District and Sessions Judge (Retd.) appointed as the sole Arbitrator.

(Para 6-10)

Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17, Section 151 -- Limitation Act, 1963 (36 of 1963), Article 59 -- Time barred claim – Amendment of plaint -- By amendment plaintiff wanted to challenge the relinquishment deed for which the limitation is 03 years – Relinquishment deed is dated 25.11.2014, application for amendment filed on 17.03.2020 – As a general rule, the Court should decline amendment if a fresh suit on the amended claim would be barred by limitation on the date of application – Ld. Civil Judge (Junior Division) allowed the amendment – In revision impugned order set aside.

(Para 1, 7-11)

Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11, Section 11 – Res-judicata – Rejection of plaint -- Issue of res judicata could not have been decided on an application under Rule 11 of Order VII of CPC -- Adjudication on the issue involves consideration of the pleadings in the earlier suit, the judgment of the Trial Court and the judgment of the Appellate Courts -- Suit needs to be decided on merits with an issue on res judicata along with the other issues.

(Para 6, 7)

Code of Civil Procedure, 1908 (V of 1908), Order 41 Rule 31, Section 10 – Sub-judice – Multiple preliminary decrees -- Suit for partition -- Preliminary decree issued against the petitioner/ defendant -- Two sisters were not arrayed as parties -- Independent suit by them seeking partition – During the pendency of the said suit, they filed an application seeking yet another preliminary decree in the earlier suit -- Supplementary preliminary decree passed – Submission that having filed a separate suit, the separate application is hit by Section 10 of the CPC – Held, section 10 of the CPC not application in the case – Law does not bar passing of numerous preliminary decrees.

(Para 3-9)

Haryana Urban (Control of Rent and Eviction) Act, 1973 (11 of 1973), Section 13, 15 – Code of Civil Procedure, 1908 (V of 1908), Order 21 Rule 35, 36 -- Eviction – Execution -- Eviction order by Rent Controller in 2010 – Appeal of tenant dismissed in 2012 -- Execution petition was filed in the year 2019 -- Objection of petitioner-tenant dismissed and no stay order in appeal -- Warrant of the possession received back unexecuted – Impugned order for warrants of possession have been issued with a further direction to the bailiff to break open the locks of the shop in possession of the petitioner -- No illegality in the said order at all warranting interference in Revisional jurisdiction -- Revision petition dismissed.

(Para 1, 5, 6)

Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17 -- Amendment in plaint – Belated stage -- Amendment can be allowed at any stage, but for the good grounds, spelt out for the same -- Amendment sought do not change the nature of the suit – Held, procedural law is handmaid to the administration of justice -- Party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure -- Declaration has been sought in the body of the plaint, but however, it was not mentioned in the head-note as well as prayer clause of the plaint – Proposed amendment is more or less of clarificatory nature -- It cannot be held that it is time barred claim – Ld. Court below had right so allowed the amendment, subject to payment of costs – Revision dismissed.

(Para 13-21)

Consumer Protection Act, 1986 (68 of 1986), Section 21 -- Consumer complaint -- Non-filing of written version by opposite party – Right to argue -- Although the opposite party had not filed its version and may not have participated in the proceedings before the NCDRC, nevertheless, had the right to address final arguments before the NCDRC -- Since the request for adjournment was refused and only the complainant was heard on merits, there has been a violation of the principles of natural justice -- Impugned orders set aside, matter remanded to the NCDRC to grant a reasonable opportunity to both sides to address arguments on merits.

(Para 9)

A. Hindu Marriage Act, 1955 (25 of 1955), Section 13A -- Code of Civil Procedure, 1908 (V of 1908), Section 24 -- Transfer of matrimonial dispute case – While considering the transfer of a matrimonial dispute/case at the instance of the wife, the Court is to consider family condition of the wife, custody of the minor child, economic condition of the wife, her physical health and earning capacity of the husband and most important, convenience of the wife i.e. she cannot travel alone without assistance of a male member of her family, connectivity of the place as well as bearing of the litigation charges and travelling expenses.

(Para 5)

B. Hindu Marriage Act, 1955 (25 of 1955), Section 13A -- Code of Civil Procedure, 1908 (V of 1908), Section 24 -- Transfer of divorce petition – Karnal to Sonipat -- Petitioner-wife residing with three minor children at Sonipat – Petition filed u/s 13-A of the Hindu Marriage Act, pending before the Family Court, Karnal transferred to the competent Court of jurisdiction at Sonepat.

(Para 6)

Court Fees Act, 1870 (7 of 1870), Section 7(IV) – Advalorem court fee -- Suit for declaration that sale deed is wrong, illegal, null, void, ab initio, false and frivolous document -- Land in dispute is an agricultural land, the cheque given to the plaintiff towards sale consideration was dishonoured and he has set up a case that he is in possession of the property and has not made any prayer for grant of decree of possession – Petitioner will pay the court fee 10 times of the revenue payable and not on the value of the property or the sale deed.

(Para 6-8)

A. Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 10 – Bonafide purchaser – Necessary/ proper party -- Suit against parents for declaration to the effect that suit property is Hindu Joint, ancestral and coparcenary property of the plaintiffs as well as defendants and they have birth right in the said property -- Mother of plaintiff sold property to petitioner -- Petitioner had specifically taken the plea about there to be collusion between the plaintiffs as well as their mother -- Plea of bonafide purchaser, has to be decided, before it can be held that no rights flow to him, on the basis of the sale deed in his favour – If the application for impleadment is thrown out, without decision on the aforesaid question, then certainly, the petitioner will come up with separate suit to enforce his alleged right, which means multiplicity of proceedings -- It cannot be said that petitioner is neither necessary or proper party to the suit – Application allowed.

(Para 10)

B. Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 10 – Impleadment as party -- Avoidance of multiplicity of proceedings -- Order 1 Rule 10 CPC enables the Court to add any person as party, at any stage of the proceedings, if the person, whose presence before the Court is necessary, in order to enable the Court to effectively and completely adjudicate upon and settle all the questions involved in the suit -- Avoidance of multiplicity of proceedings is also one of the objects of the said provision of the Code.

(Para 11)

A. Representation Of The People Act, 1950 (43 of 1950), Sections 83, 86 – Code of Civil Procedure 1908 (V of 1908), Order 6 Rule 15 --  Contents of election petition – Verification of pleadings – Affidavit -- Requirement to file an affidavit under the proviso to Section 83(1)(c) is not mandatory -- It is sufficient if there is substantial compliance -- As the defect is curable, an opportunity may be granted to file the necessary affidavit.

(Para 14)

B. Representation Of The People Act, 1950 (43 of 1950), Sections 83, 86 – Code of Civil Procedure 1908 (V of 1908), Order 6 Rule 15 – Election petition – Non-filing of separate affidavit -- Election petition contained on affidavit and also a verification -- In this very affidavit, the election petitioner has sworn on oath that the paragraphs where he has raised allegations of corrupt practice are true to the best of his knowledge -- Though there is no separate and an independent affidavit with respect to the allegations of corrupt practice, there is substantial compliance of the requirements under Section 83(1)(c) of the Act.

(Para 15)

Constitution of India, Article 227 -- Code of Civil Procedure Code, 1908 (V of 1908), Order 41, Rule 5, Section 5, 96 -- Appeal – Non-decisioning on stay application – No order passed on the stay application by learned Lower Appellate Court – In execution warrant of possession has been ordered to be issued against the property of the petitioner(s) – In the given circumstances, learned Lower Appellate Court shall look into the matter and dispose of the application for grant of stay, expeditiously, if not the main appeal.

(Para 1-4)

Contempt of Courts Act, 1971 (70 of 1971), Section 12, 14 -- Contempt -- Non-listing of matter before Supreme Court -- Merely because the matter is not listed on the date specified by the Court, cannot be a ground to initiate contempt petition against the Secretary General and Registrar (Listing) of the Court.

(Para 2)

Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17 – Amendment of written statement – Proposed amendment/ plea is a matter of arguments -- Pleadings shall only state only the concise form of material facts and not evidence – Amendment application dismissed.

(Para 3)

Code of Civil Procedure 1908 (V of 1908), Section 100 – Electricity charges of Bar Association – Liability of Government – Arrears and future Bills of the three electricity connections i.e. Bar Room, Litigant Shed, and Bar Library to be paid by Haryana Government, decreed -- No irregularity, illegality or perversity -- Appeal dismissed.

(Para 2-7)

Code of Civil Procedure, 1908), Order 6 Rule 17 -- Amendment of plaint -- Suit for declaration that the alleged gift deed is illegal, null and void -- Amendment sought to clarify that the gift deed is result of fraud, mis-representation and executed by the petitioner under undue influence and after execution of the said gift deed, the respondent abandoned the petitioner and later on, the petitioner filed petition u/s 13 of Hindu Marriage Act and the same was allowed vide ex parte decree and that the respondent has shifted to Australia and got re-married – Proposed amendment is required for effective and proper adjudication of the controversy between the parties and the same is not going to cause any prejudice to the respondent – Amendment allowed subject to costs of Rs.7,000/-.

(Para 2-14)

A. Indian Evidence Act, 1872 (1 of 1872), Section 68, 69 -- Will -- Death of attesting witnesses – Proof of -- Sections 68 and 69 of Evidence Act are with regard to the procedure to be followed in order to prove any Will -- Section 69 of Evidence Act will be applicable as both the attesting witnesses of Will are stated to have died and as per the said provision of law the Will in question could be proved by examining witnesses who are able to identify the signatures/ attestation of one attesting witness atleast on the Will in question.

(Para 5)

B. Indian Evidence Act, 1872 (1 of 1872), Section 68, 69 – Code of Civil Procedure, 1908 (V of 1908), Section 151 -- Will -- Death of attesting witnesses – Examination of son of attesting witness – Respondent intend to examine son of one of the attesting witness of the Will to identify the signatures of said attesting witness on will in question as per the provisions of Section 69 of Evidence Act -- Said evidence is necessary for the just decision of the case -- Request for the same was made at the belated stage and for that the learned trial Court rightly burdened the respondents with cost of Rs.10,000/- -- No ground to interfere -- Revision petition dismissed.

(Para 6-8)

Indian Evidence Act, 1872 (1 of 1872), Section 45 – Code of Civil Procedure, 1908 (V of 1908), Section 9 -- Recovery suit -- Expert opinion -- Specimen signature/ Handwriting of plaintiff -- Respondent/ plaintiff himself admitted in his cross-examination that he is ready to give his specimen signatures and handwriting -- No prejudice would be caused to him -- Revision allowed, respondent/ plaintiff directed to give his specimen signatures and handwriting for comparison from the handwriting expert engaged by the petitioners/ defendants.

(Para 5)

Code of Civil Procedure, 1908) (V of 1908), Order 21 Rule 1(2) – Execution -- Money decree – Interest upon -- Deposit in the court – Necessity of notice to decree holder -- When the decretal amount is deposited by the judgment-debtor in the Court, it is imperative upon the judgment-debtor to give notice to the decree-holder about the deposit of the decretal amount -- Interest ceases to run on the deposit made by the judgment-debtor and notice given or on the amount being tendered outside the Court in the manner provided in Order 21 Rule 1(b) -- Interest will not cease to run merely by reason of making the deposit into Court unless it is followed by the service of notice -- Decree-holder’s right should be affected only after he is informed that the decretal amount is available for him and that he can draw it out of Court.

(Para 8)

Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), Section 18 -- Code of Civil Procedure, 1908 (V of 1908), Order 18 Rule 17A, Order 41 Rule 27, Section 151 – Maintenance @ Rs.5,000/- per month -- Additional evidence in appeal -- Notwithstanding the deletion of Order 18 Rule 17-A of CPC, the Court has inherent powers to permit parties to lead additional evidence on such terms as may appear to be just – One opportunity granted subject to costs of Rs.5,000/- -- Respondent shall also be given an effective opportunity to rebut the evidence produced by the petitioner by way of additional evidence, if so required.

(Para 5)

Code of Civil Procedure, 1908 (V of 1908), Section 96, 100 – First Appeal – Second Appeal – Substantial question of law -- First Appellate Court is the final court on questions of facts but only if there is any substantial question of law, a second appeal could be considered and raised by the High Court and such substantial question(s) of law ought to be answered – It is practice and a mandatory requirement that at the time of admitting the regular second appeal, substantial question(s) of law must be framed, on the basis of which the arguments must be advanced and a decision given thereon -- It is also permitted that once the arguments have been advanced, the court is at liberty to re-frame or frame fresh substantial questions of law and answer the same on hearing the learned counsel for the respective parties.

(Para 7)

Haryana Urban (Control of Rent and Eviction) Act, 1973 (11 of 1973), Section 13, 16, 18 – Code of Civil Procedure, 1908 (V of 1908), Order 18 Rule 3A – Eviction petition – Examined of other witnesses by landlady – Examination of landlady thereafter – Objection to -- Rent Controller can proceed with the trial by following its own procedure -- Provisions of CPC are made applicable as provided u/s 16 of Act, 1973 regarding summoning and to enforce the attendance of witnesses -- Section 18 of the aforesaid Act explained that for the execution of the orders the provisions of Civil Procedure Code are strictly applicable -- Therefore, it cannot be said that all the provisions of CPC are applicable to the petition filed under Act, 1973 – Application under Order 18 Rule 3A declined by Rent Controller, upheld.

(Para 1, 4)

Code of Civil Procedure, 1908 (V of 1908), Order 14 Rule 5 -- Additional issue -- Application under Order 14 Rule 5 CPC could not be disposed of simply on the ground that the same has been filed at a belated stage.

(Para 1, 9)

A. Code of Civil Procedure, 1908 (V of 1908), Order 21 Rule 35 -- Decree for immovable property – Execution -- Where a decree for possession of an immovable property has been passed, the possession thereof is to be delivered to the party to whom it has been adjudged -- However, where the decree is for joint possession of immovable property, only symbolic possession is to be delivered.

(Para 13)

B. Code of Civil Procedure, 1908 (V of 1908), Order 21 Rule 35 -- Decree for declaration -- Execution -- All parties held to be entitled to 1/4th share each -- It was, therefore, a decree for declaration and at best a decree for joint possession -- Only remedy for seeking physical possession would be to file a suit for possession/ partition as per the facts of the case and not to file an execution petition for the same -- As per the provisions of Order 21 Rule 35 (2) CPC, only symbolic possession could have been delivered.

(Para 14)

Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11(a) and (d), Section 11 -- Rejection of plaint – Res-judicata –  Maintainability of plaint – Premilitary issue -- Plaint does not give any clue about any previous litigation -- Contents of the written statement or any other document or even those of the application for rejection of plaint to this effect especially in the absence of pleadings in the plaint cannot be gone into -- Plaint could not have been rejected on the ground that it was barred by the principle of res judicata -- Liberty granted to the petitioner to raise an issue of maintainability of the suit before the trial Court -- Trial court would consider whether a preliminary issue should be framed with regard to the plea of res judicata and, in case, a preliminary issue is so framed, the same would be decided within a period of three months from the date it is framed.

(Para 12, 13)

Constitution of India, Article 14, 226 – Code of Civil Procedure, 1908 (V of 1908), Section 34 -- Interest on arrears of salary/ pension -- Once, a similarly situated employee allowed the benefit of interest by the Department, the same needs to be extended to the mother of the petitioner also on the arrears of salary/pension -- Denial will amount to discrimination, which cannot be permitted – Petitioner held entitled for interest on the arrears which have already been released to the mother of the petitioner @ 6% per annum from the date the payment became due till the actual disbursement of the same.

(Para 6, 9-11)

Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17 -- Amendment of plaint -- During the lifetime of the plaintiff, when the cause of action to file suit arose, he was the best person to acknowledge the complete facts -- During his lifetime, two attempts were made for seeking amendment in the plaint, in which he is stated to have failed -- Legal Representatives, who are now stepping into the shoes of the plaintiff cannot be expected to have better knowledge than their father -- Permission to amend the plaint cannot be allowed.

(Para 6-8)

Code of Civil Procedure, 1908 (V of 1908), Section 100 -- Probation of Offenders Act, 1958 (20 of 1958), Section 12 – Conviction of employee –Probation – Termination of service -- Appellant ordered to be released on probation of good conduct -- Employee cannot claim a right to continue in service merely on the ground that he has been given benefit of probation – Appeal dismissed.

(Para 2, 6)

A. Consumer Protection Act, 1986 (68 of 1986), Section 12 -- Second complaint -- Withdrawal of the earlier complaint – Bar to second complaint -- Having not argued, before the State Commission, the point of the present complaint being barred in view of the withdrawal of the earlier complaint, the National Commission was not justified, in allowing the respondent-Insurance Company to urge that point therefrom.

(Para 5)

B. Consumer Protection Act, 1986 (68 of 1986), Section 12 – Code of Civil Procedure, 1908 (V of 1908), Order 23 Rule 1(4) -- Theft of vehicle --Withdrawal of the complaint – Maintainability of second complaint – Complaint filed after theft due to non-settlement of claim by the Insurance Company -- Repudiation of the claim was made during the pendency of the said complaint -- Complaint withdrawn by the advocate on the pretext of the case being prolonged by the advocate of the Insurance Company, without having express instructions for withdrawal of the said complaint -- For the fault of the advocate, the complainant cannot be made to suffer -- Complaint cannot be thrown out on the threshold of Order XXIII Rule (1)(4) CPC and in the peculiar facts, it requires consideration on merits.

(Para 8)

C. Insurance law -- Theft of vehicle -- Repudiation of claim -- Non-standard claim -- Vehicle left unattended by driver with keys inside -- It is not the case of the Insurance Company that the Claimant consented or connived in the removal of the vehicle, would not be theft, in the eye of law -- Time gap between the driver alighting from the vehicle and noticing the theft, is very short as is clear from the facts of the case -- It was not a fundamental breach of Condition warranting total repudiation -- 75% ought to have been awarded on a non-standard basis.

(Para 11-16)

Code of Civil Procedure, 1908 (V of 1908), Section 25 -- Motor Vehicles Act, 1988 (59 of 1988), Section 166 – Transfer of claim petition u/s 166 of MV Act -- Not mandatory for the claimants to lodge an application for compensation u/s 166 before the MACT having jurisdiction over the area where the accident occurred -- On the contrary, sub-section (2) of Section 166 provides an option for the claimants to approach the MACT within the local limits of whose jurisdiction they (claimants) reside or carry on business or the defendant resides.

– Claimants having chosen the option to approach the MACT, Farrukhabad at Fatehgarh, U.P., a forum that law permits them to choose, no grievance can be raised by the petitioner.

-- Urged that since all the witnesses of the petitioner are from Siliguri, language could be a barrier. Contention has been urged only to be rejected.

If the contention of the petitioner is to be accepted, it is the claimants who would be seriously prejudiced not being in a position to communicate and convey their version in Bengal -- Transfer Petition dismissed.

(Para 4-6)

Code of Civil Procedure, 1908 (V of 1908), Order 11 Rule 1 and 2 -- Interrogatories -- Proposed interrogatories are held to be nothing else but in the nature of cross-examination and would impact the evidence already led by the parties -- Held purpose of Order XI Rules 1 and 2 CPC is not aimed at to fill up the lacuna at a belated stage.

(Para 13)

A. Contempt of Courts Act, 1971 (70 of 1971), Section 12 – Contempt of Court – Maximum Punishment -- Simple imprisonment, not exceeding six months or a fine not exceeding Rs.2,000/- -- Sub-Section (2) reads “notwithstanding anything contained in any other law for the time being in force” this implies that save and except the punishment provided in sub-Section (1) no other punishment can be prescribed to a person guilty of committing contempt of Court.

(Para 19)

B. Contempt of Courts Act, 1971 (70 of 1971), Section 12 – Doctor -- Contempt of Court – Punishment – Suspension of License to practice – Permissibility of -- Petitioner/Appellant’s licence to practice medicine, was suspended – Held, punishment handed down to the contemnor is entirely foreign to the Act and, therefore, unsustainable -- Licence of the appellant, to practice medicine is revived.

(Para 20, 25)

C. Contempt of Courts Act, 1971 (70 of 1971), Section 12 – National Medical Commission Act, 2019 (30 of 2019), Section 27, 30 -- Doctor – Contempt of court -- Professional misconduct -- A medical practitioner guilty of contempt of Court may also be so for professional misconduct but the same would depend on the gravity/ nature of the contemptuous conduct of the person in question -- Offences are separate and distinct from each other -- The former is regulated by the Contempt of Court Act, 1971 and the latter is under the jurisdiction of the National Medical Commission Act, 2019.

(Para 21)

Code of Civil Procedure, 1908 (V of 1908), Order 9 Rule 2, Section 96 -- Dismissal of appeal – Summoning of respondent – Non-filing of courier charges and grounds of appeal – Ground of -- On the same very date, copy of grounds of appeal was filed but at 10.45 a.m., learned Appellate Court even failed to consider the same and passed the order that compliance was to be made within a week of passing of the previous order – Held, parties should not suffer on account of mere technicalities – Held, person should not be non-suited merely on the ground that he failed to comply with the order -- Appeal could not be dismissed under Order IX Rule 2 of CPC – Petition allowed, appeal ordered to be restored to its original number subject to payment of Rs.5000/- as costs.

(Para 5, 6)

Code of Civil Procedure, 1908 (V of 1908), Order 21 Rule 32, Section 25 – Hindu Marriage Act, 1955 (25 of 1955), Section 9 -- Restitution of Conjugal rights – Transfer petition – Dadra & Nagar Haveli to Gujarat -- Non-participation in case – Effect of -- It cannot be said that non-participation in a proceeding of a restitution of conjugal rights, of the party who seeks for transfer of such proceeding is absolutely impact-less infact, it has civil consequences – Considering the distance between place of proceedings and place of residence of wife, transfer petition allowed.

(Para 3)

Haryana Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g), 13, 13A – Code of Civil Procedure, 1908 (V of 1908), Section 9 -- Mutation in favour of Gram Panchayat -- Jumla Mushtarka Malkan land – Vesting of – Jurisdiction of civil court -- Jurisdiction to decide such question exclusively vests in the court of Collector – Plaintiffs may avail the remedy under Section 13A of the 1961 Act.

(Para 2, 5-7)

Specific Relief Act, 1963 (47 of 1963), Section 34 – Code of Civil Procedure, 1908 (V of 1908), Section 100 -- Maintainability of suit for declaration -- Suit of the plaintiff was not maintainable without asking for possession alongwith the declaration -- Concurrent findings on facts and law of both courts below -- Appeal dismissed.

(Para 14, 15)

A. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 -- Partial rejection of plaint -- It is a salutary position in law that there cannot be a partial rejection of the plaint or petition in exercise of power under Order VII Rule 11, CPC.

(Para 24)

B. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11, Order 12 Rule 6 – Representation of the People Act, 1951 (43 of 1951), Section 81, 84, 100(1)(d)(i)(ii)(iii) & (iv) -- Election petition -- Rejection of plaint – Judgment on admission -- Non-compliance with statutory and Election Commission mandated regulations, and their legal effect, cannot be examined in what are essentially summary proceedings under Order VII Rule 11, CPC, or even under Order XII Rule 6, CPC.

(Para 26)

Motor Vehicles Act, 1988 (59 of 1988), Section 163A – Compensation in motor vehicle accident case – Doctor’s evidence -- Head injury and other grievous injuries – After framing of issues the petitioner availed three opportunities to adduce his evidence – In order to examine the concerned doctor the petitioner had already deposited diet money but he failed to procure the presence of said witness and finally the evidence of petitioner was closed by order – Very foundation of the claim petition is dependent on the testimony of treating/ attending doctor – Held, impugned order is not sustainable and accordingly set aside -- One more opportunity granted to the petitioner to conclude his evidence.

(Para 3-5)

Code of Civil Procedure, 1908 (V of 1908), Order 8 Rule 1 – Written statement after 90 days – Permissibility of -- Purpose to fix a time schedule for filing written statement is to expedite hearing and not to scuttle it -- Provision is directory and not mandatory -- If written statement is required for just decision of the case, request for extension of prescribed time period may be allowed – Rules of procedure are handmaids of justice and cannot prevail upon the substantial justice -- Till date, the plaintiff has not examined any witness, no prejudice is going to be caused to him if the petitioner is permitted to file his written statement -- One last opportunity granted to the petitioner for filing written statement subject to costs of Rs. 10,000/-.

(Para 7-12)

Code of Civil Procedure, 1908 (V of 1908), Section 96 -- Limitation Act, 1963 (36 of 1963), Section 5 – Delay of 52 day in appeal – Condonation of delay -- Rights in immovable property -- When the parties were litigating with regard to the right over immovable properties, the substantial rights were to be decided between the parties -- Delay could have been condoned and the appeal could have been decided on merits -- Lower Appellate Court has dismissed the appeal on the ground of delay when the delay was not inordinate is not justified -- High Court was also not justified in dismissing the appeal only on the ground that there was no question of law -- Delay in filing the appeal before the lower Appellate Court condoned – Matter remitted back to Lower Appellate Court.

(Para 3-8)

Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (56 of 2007), Section 16 -- Return of appeal – Power of -- Appeal against order of dismissal of eviction application passed by Maintenance Tribunal -- Held, office of the appellate Tribunal cannot refuse to put up the appeal before the Appellate Tribunal -- Question as to whether the said appeal is maintainable or not or whether the pleas raised by the petitioner are meritorious or not, are to be considered by the Appellate Tribunal – Writ petition dispose of by giving liberty to petitioner to file an appeal u/s 16 of the Act of 2007 – On filing of appeal, the office of the Appellate Tribunal would put up the case for hearing before the Appellate Tribunal as expeditiously as possible -- Appellate Tribunal would decide the same in accordance with law as expeditiously as possible.

(Para 6-8)

Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (56 of 2007), Section 9, 16, 23 – Constitution of India, Article 226 – Letter patents Appeal -- Death of senior citizen – Benefits under Senior citizen Act stands abated on his death -- As senior citizen/ respondent No.2, at whose instance the Maintenance/ Appellate Tribunal had passed the impugned order, had since expired, so the proceedings in the case are rendered infructuous/ otiose as senior citizen's right to seek benefits under the special statute abated on his death -- Parties/ legal heirs of respondent No.2 are given the liberty to avail the civil remedy available under law.

(Para 9)

Court Fees Act, 1870 (7 of 1870), Section 7 – Recovery of tentative amount/ damages -- Advalorem court fee -- Whenever the plaintiff files a money suit for recovery either as damages or otherwise his assessment is approximate or tentative which is subject to the final determination by the Court -- Liability to pay the court fee at the time of filing of the suit is not dependent upon the final determination by the Court -- Court fee is payable on the amount claimed in the suit -- Once the plaintiff has tentatively assessed the amount sought to be recovered in a money suit, Clause (i) of Section 7 of the 1870 Act, gets attracted.

(Para 9)

Motor Vehicles Act, 1988 (59 of 1988), Section 166 – Compensation in motor vehicle accident case – Registered owner – Impleadment of purchaser of offending vehicle as party -- Petitioner is registered owner but his plea is that he sold the same to one JS -- After the accident in question the said motor cycle was taken on sapurdari by said JS – Such a person could also be held liable to pay compensation is a proper party for just decision of the claim petition and accordingly ordered to be impleaded as respondent in the claim petition pending before MACT.

(Para 6, 7)

Electricity Act, 2003 (36 of 2003), Section 135, 136, 137, 138, 139, 140, 150, 153 -- Theft of electricity – Civil Liability – Jurisdiction of Special Court -- Special Court constituted u/s 153 of the Act do not have jurisdiction to entertain, try and decide civil liability in absence of pendency of trial of offence referred to in Sections 135 to 140 and Section 150 of the Act.

(Para 7-9)

Specific Relief Act, 1963 (47 of 1963), Section 34 – Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 3, 10, Section 96 -- Suit for declaration that plaintiff is owner in possession -- Plaintiff while filing the suit did not implead the registered owners of the property as party defendants -- On an application by registered owner, Appellate Court ordered remanding the case back to the trial Court – Held, it would not be appropriate to decide such suit without giving opportunity to the registered owners to contest the same -- No ground to interfere.

(Para 5, 6)

Code of Civil Procedure, 1908 (V of 1908), Order 8 Rule 10 -- Non-filing of written statement -- Defence struck off – Held, it is always good for the Court to find out solution by deciding the controversy after inviting response from all the concerned parties -- Court cannot function on the principle of technicalities or in a specified mechanised manner -- Therefore, it would always be fair to impart justice after giving reasonable opportunity to all the parties to plead their stand in writing in the shape of plaint, written statement and replication -- Impugned order set aside to the extent of striking off the defense -- One more effective opportunity granted for filing written statement and then to re-frame the issues afresh, if so required, subject to cost of Rs.10,000/-.

(Para 6, 7)

Code of Civil Procedure, 1908 (V of 1908), Order 39 Rule 1 & 2 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 133 -- Temporary injunction to restrain nuisance -- Passage was left by the respondent/ plaintiff for his ingress and egress of his house -- No material adduced on record by the petitioners/ defendants suggestive of the fact that passage was constructed and thereafter maintained by the Nagar Panchayat -- Defendants had filed complaint u/s 133 Cr. P.C against plaintiff,  but same was dismissed -- Now dirty and filthy water coming from the house of defendants flows towards the house of the plaintiff – For ad-interim stay three important factors required to take into consideration i.e. prima facie case, balance of convenience and irreparable loss and they all must co-exist in favour of the party seeking restraint order -- All the afore factors co-exist in favour of the plaintiff – Interim injunction granted by Lower Courts, upheld.

(Para 6-8)

Hindu Succession Act, 1956 (30 of 1956), Section 8 -- Indian Succession Act, 1925 (39 of 1925), Section 372 – Retiral benefits of deceased employee – Legal heirs -- Succession certificate -- Deceased nowhere mentioned in his entire service record of the petitioner being his wife – Retiral benefits can be settled only after a competent Civil Court gives a declaration -- Procedure for obtaining succession certificate in this regard has been laid down under the Indian Succession Act, 1925 as well as Hindu Succession Act, 1956 -- Petitioner would have to get the said competent declaration from the competent court.

(Para 4, 6)

Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 -- Rejection of plaint -- Appropriate prayer – Ground of – Whether an appropriate prayer should have sought, is a matter to be decided in the suit and not an issue to be considered while deciding the application under Order VII Rule 11 of CPC.

(Para 4, 5)