Legal Updates: Supreme Court on Code of Civil Procedure

Showing posts with label Supreme Court on Code of Civil Procedure. Show all posts

Saturday, April 29, 2023

Challenging a Preliminary Decree in India : Supreme Court Explains the Legal Ingredient

Challenging a Preliminary Decree in India: Supreme Court Explains the Legal Ingredient

An important judgment was passed by Hon'ble Supreme Court on 12 October 2011 which can be downloaded free of cost from e-SCR link at www.sci.gov.in.

In the context of Code of Civil Procedure, 1908, it has been commented in Ganduri Koteshwaramma & Anr. v. Chakiri Yanadi & Anr. [2011] GCtR 3159 (SC) thus : -

"Section 97 of Code that provides that where any party aggrieved by a preliminary decree passed after the commencement of the Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree does not create any hindrance or obstruction in the power of the court to modify, amend or alter the preliminary decree or pass another preliminary decree if the changed circumstances so require."

Written by

Vishal

Delhi

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Thursday, April 27, 2023

Order 8 Rule 10 of Code of Civil Procedure, 1908 : Supreme Court Explains the Legal Aspect

Order 8 Rule 10 of Code of Civil Procedure, 1908 : Supreme Court Explains the Legal Aspect

Supreme Court has pronounced an important Judgment on 23 April 2012.

It has been commented in C.N Ramappa Gowda v. C.C. Chandregowda [2012] GCtR 3152 (SC) thus : -

"In a case where written statement has not been filed, the Court should be a little more cautious in proceeding under Order 8 Rule 10 CPC and before passing a judgement, it must ensure that even if the facts set out in the plaint are treated to have been admitted, a judgement and decree could not possibly be passed without requiring him to prove the fact pleaded in the plaint. It is only when the Court for recorded reasons is fully satisfied that there is no fact which needs to be proved at the instance of the plaintiff in view of the deemed admission by the defendant, the Court can conveniently pass a judgement and decree against the defendant who has not filed the written statement. But, if the plaint itself indicates that there are disputed questions of fact involved in the case arising from the plaint itself giving rise to two versions, it would not be safe for the Court to record an ex-parte judgement without directing the plaintiff to prove the facts so as to settle the factual controversy. In that event, the ex-parte judgement although may appear to have decided the suit expeditiously, it ultimately gives rise to several layers of appeal after appeal which ultimately compounds the delay in finally disposing of the suit giving rise to multiplicity of proceeding which hardly promotes the cause of speedy trial."

"If the Court is clearly of the view that the plaintiffs case even without any evidence is prima facie unimpeachable and the defendant's approach is clearly a dilatory tactic to delay the passing of a decree, it would be justified in appropriate cases to pass even an uncontested decree. What would be the nature of such a case ultimately will B have to be left to the wisdom and just exercise of discretion by the trial court who is seized of the trial of the suit."

Written by

Vishal

Delhi

Pleadings on Behalf of the Company : Supreme Court Explains the Legal Aspect

Pleadings on Behalf of the Company : Supreme Court Explains the Legal Aspect

It has been commented in United Bank of India v. Naresh Kumar [1996] GCtR 3151 (SC) thus : -

"A person may be expressly authorised to sign the pleadings on behalf of the company, for example by the Board of Directors passing a resolution to that effect or by a power of attorney being executed in favour of any individual. In absence thereof and in cases where pleadings have been signed by one of its officers a Corporation can ratify the said action of its officer in signing the pleadings. Such ratification can be express or implied."

Written by

Vishal

Delhi

Sunday, April 23, 2023

Order 2 Rule 2 of the Code of Civil Procedure, 1908 : Supreme Court Explains the Scope

Order 2 Rule 2 of Code of Civil Procedure, 1908 : Supreme Court Explains the Scope

It has been commented in Shiv Kumar Sharma v Santosh Kumari [2007] GCtR 1998 (SC) thus : -

"In terms of Order 2 Rule 2 of the Code, all the reliefs which could be claimed in the suit should be prayed for. Order 2 Rule 3 provides for joinder of causes of action. Order 2 Rule 4 is an exception thereto. For joining causes of action in respect of matters covered by Clauses (a), (b) and (c) of Order 2 Rule 4, no leave of the court is required to be taken. Even without taking leave of the court, a prayer in that behalf can be made. A suit for recovery of possession on declaration of one’s title and/or injunction and a suit for mesne profit or damages may involve different cause of action. For a suit for possession, there may be one cause of action; and for claiming a decree for mesne profit, there may be another. In terms of Order 2 Rule 4 of the Code, however, such causes of action can be joined and therefore no leave of the court is required to be taken. If no leave has been taken, a separate suit may or may not be maintainable but even a suit wherefore a prayer for grant of damages by way of mesne profit or otherwise is claimed, must be instituted within the prescribed period of limitation. Damages cannot be granted without payment of court fee. In a case where damages are required to be calculated, a fixed court fee is to be paid but on the quantum determined by the court and the balance court fee is to be paid when a final decree is to be prepared."
"If the respondent intended to claim damages and/or mesne profit, in view of Order 2 Rule 2 of the Code itself, he could have done so, but he chose not to do so. For one reason or the other, he, therefore, had full knowledge about his right. Having omitted to make any claim for damages, in our opinion, the plaintiff cannot be permitted to get the same indirectly."
"A civil court does not grant leave to file another suit. If the law permits, the plaintiff may file another suit but not on the basis of observations made by a superior court."

Written by

Vishal

Delhi

Monday, April 17, 2023

"Diverting the Customers" : Supreme Court Explains the Legal Aspect

"Diverting the Customers" : Supreme Court Explains the Legal Aspect

An important Judgment was passed by Hon'ble Supreme Court on 4 December 2001.

It has been commented in Laxmikant V. Patel v Chetanbhat Shah [2001] GCtR 3088 (SC) thus : -

"The law does not permit any one to carry on his business in such a way as would persuade the customers or clients in believing that his goods or services belonging to someone else are his or are associated therewith. It does not matter whether the latter person does so fraudulently or otherwise. The reasons are two. Firstly, honesty and fair play are, and ought to be, the basic policies in the world of business. Secondly, when a person adopts or intends to adopt a name in connection with his business or services which already belongs to someone else it results in confusion and has propensity of diverting the customers and clients of someone else to himself and thereby resulting in injury."
"Where there is probability of confusion in business, an injunction will be granted even though the defendants adopted the name innocently."

Kindly note that full text Judgments of Hon'ble Supreme Court can be downloaded absolutely free of cost (without any charges except internet data) from the official website at the link

https://main.sci.gov.in/judgments

Then entering the date of Judgment, for example, as 4 December 2001.

Written by

Vishal

Delhi

Friday, April 14, 2023

Order IX Rule 13 of Code of Civil Procedure, 1908 : Supreme Court Highlights a Crucial Legal Aspect

Order IX Rule 13 of Code of Civil Procedure, 1908 : Supreme Court Highlights a Crucial Legal Aspect

An important Judgment was passed by the Hon'ble Supreme Court on 17 December 2004.

In context of Code of Civil Procedure, 1908 ("Code") it has been commented in Bhanu Kumar Jain v Archana Kumar & Anr [2004] GCtR 3064 (SC) thus : -

"An appeal against an ex-parte decree in terms of Section 96(2) of the Code could be filed on the following grounds:
(i) The materials on record brought on record in the ex-parte proceedings in the suit by the plaintiff would not entail a decree in his favour, and
(ii) The suit could not have been posted for ex-parte hearing."
"In an application under Order 9, Rule 13 of the Code, however, apart from questioning the correctness or otherwise of an order posting the case for ex-parte hearing, it is open to the defendant to contend that he had sufficient and cogent reasons for not being able to attend the hearing of the suit on the relevant date. When an ex-parte decree is passed, the defendant (apart from filing a review petition and a suit for setting aside the ex-parte decree on the ground of fraud) has two clear options, one, to file an appeal and another to file an application for setting aside the order in terms of Order 9, Rule 13 of the Code. He can take recourse to both the proceedings simultaneously but in the event the appeal is dismissed as a result whereof the ex-parte decree passed by the Trial Court merges with the order passed by the appellate court, having regard to Explanation appended to Order 9, Rule 13 of the Code a petition under Order 9, Rule 13 would not be maintainable. However, the Explanation I appended to said provision does not suggest that the converse is also true.
In an appeal filed in terms of Section 96 of the Code having regard to Section 105 thereof, it is also permissible for an Appellant to raise a contention as regard correctness or otherwise of an interlocutory order passed in the suit subject to the conditions laid down therein."

Kindly note that full text Judgments of Hon'ble Supreme Court can be downloaded absolutely free of cost (without any charges except internet data) from the official website at the link

https://main.sci.gov.in/judgments

Then entering the date of Judgment, for example, as 17 December 2004.

Written by

Vishal

Delhi

Order XI Rule 7 of Code of Civil Procedure, 1908 : Supreme Court Explains the Scope

Order XI Rule 7 of Code of Civil Procedure, 1908 : Supreme Court Explains the Scope

Code of Civil Procedure, 1908 ("Code") is interesting.

An important Judgment was passed by Hon'ble Supreme Court on 15 September 2021.

In Sudhir Kumar @ S. Baliyan v. Vinay Kumar G.B [2021] GCtR 2177 (SC) it had emerged that by operation of Order XI Rule 7 of the Code, as amended by the Commercial Courts Act, Order VII Rule 14 of the Code had no application to commercial suits. Any application, for introduction of additional documents in a commercial suit was required to be filed under Order XI Rule 1(5) of the Code (where the application was moved by the plaintiff) or under Order XI Rule 1(10) of the Code (where the application was moved by the defendant), and not under Order VII Rule 14.

Kindly note that full text Judgments of Hon'ble Supreme Court can be downloaded absolutely free of cost (without any charges except internet data) from the official website at the link

https://main.sci.gov.in/judgments

Then entering the date of Judgment, for example, as 15 September 2021.

Written by

Vishal

Delhi

Wednesday, April 12, 2023

Sec. 115 of Code of Civil Procedure, 1908 : Supreme Court's Important View on the Section

Sec. 115 of Code of Civil Procedure, 1908 : Supreme Court's Important View on the Section

An important Judgment was passed by Hon'ble Supreme Court on 26 April 1965.

It has been commented in Pandurang Dhoni Chougule vs. Maruti Hari Jadhav [1965] GCtR 3052 (SC) thus : -

"The provisions of Section 115 of the Code have been examined by judicial decisions on several occasions. While exercising its jurisdiction under Section 115, it is not competent to the High Court to correct errors of fact however gross they may, or even errors of law, unless the said errors have relation to the jurisdiction of the court to try the dispute itself. As clauses (a), (b) and (e) of Section 115 indicate, it is only in cases where the subordinate court has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity that the revisional jurisdiction of the High Court can be properly invoked. It is conceivable that points of law may arise in proceedings instituted before subordinate courts which are related to questions of jurisdiction. It is well settled that a plea of limitation or a plea of res judicata is a plea of law which concerns the jurisdiction of the court which tries the proceedings. A finding on these pleas in favour of the party raising them would oust the jurisdiction of the court, and so, an erroneous decision on these pleas can be said to be concerned with questions of jurisdiction which fall within the purview of Section 115 of the Code. But an erroneous decision on a question of law reached by the subordinate court which has no relation to questions of jurisdiction of that court, cannot be corrected by the High Court under Section 115."

Kindly note that full text Judgments of Hon'ble Supreme Court can be downloaded absolutely free of cost (without any charges except internet data) from the official website at the link

https://main.sci.gov.in/daily-order

Then entering the date of Judgment, for example, as 26 April 1965.

Written by

Vishal

Delhi

Order 7 Rule 11 of Code of Civil Procedure, 1908 : Supreme Court Explains the Effect

Order 7 Rule 11 of Code of Civil Procedure, 1908 : Supreme Court Explains the Effect

An important Judgment was passed by Hon'ble Supreme Court on 3 July 2012.

In context of Order VII Rule 11 of Code of Civil Procedure, 1908, it has been commented in Church of Christ Charitable Trust & Educational Charitable Society v. Ponniamman Educational Trust [2012] GCtR 3046 (SC) thus : -

"It is clear that if the allegations are vexatious and meritless and not disclosing a clear right or material(s) to sue, it is the duty of the trial Judge to exercise his power under Order 7 Rule 11."
"While scrutinising the plaint averments, it is the bounden duty of the trial court to ascertain the materials for cause of action. The cause of action is a bundle of facts which taken with the law applicable to them gives the plaintiff the right to relief against the defendant. Every fact which is necessary for the plaintiff to prove to enable him to get a decree should be set out in clear terms....... A cause of action must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue."

Kindly note that full text Judgments of Hon'ble Supreme Court can be downloaded absolutely free of cost (without any charges except internet data) from the official website at the link

https://main.sci.gov.in/daily-order

Then entering the date of Judgment, for example, as 3 July 2012.

Written by

Vishal

Delhi

Monday, April 10, 2023

Order XXII of Code of Civil Procedure, 1908 : Supreme Court Clarifies the Position

Order XXII of Code of Civil Procedure, 1908 : Supreme Court Clarifies the Position

An important Judgment was passed by Hon'ble Supreme Court on 19 January 2021 which dealt with Order XXII of Code of Civil Procedure, 1908.

It has been commented in Venigalla Koteswaramma v Malempati Suryamba & Ors [2021] GCtR 150 (SC) thus : -

"The rules of procedure for dealing with death, marriage, and insolvency of parties in a civil litigation are essentially governed by the provisions contained in Order XXII of the Code. Though the provisions in Rule 1 to Rule 10A of Order XXII primarily refer to the proceedings in a suit but, by virtue of Rule 11, the said provisions apply to the appeals too and, for the purpose of an appeal, the expressions “plaintiff”, “defendant” and “suit” could be read as “appellant”, “respondent” and “appeal” respectively. Rule 1 of Order XXII of the Code declares that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. When read for the purpose of appeal, this provision means that the death of an appellant or respondent shall not cause the appeal to abate if the right to sue survives. Rule 2 of Order XXII of the Code ordains the procedure where one of the several plaintiffs or defendants dies and right to sue survives to the surviving plaintiff(s) alone, or against the surviving defendant(s) alone. The same procedure applies in appeal where one of the several appellants or respondents dies and right to sue survives to the surviving appellant(s) alone, or against the surviving respondent(s) alone. The procedure is that the Court is required to cause an entry to that effect to be made on record and the appeal is to proceed at the instance of the surviving appellant(s) or against the surviving respondent(s), as the case may be. However, by virtue of Rule 4 read with Rule 11 of Order XXII of the Code, in case of death of one of the several respondents, where right to sue does not survive against the surviving respondent or respondents as also in the case where the sole respondent dies and the right to sue survives, the contemplated procedure is that the legal representatives of the deceased respondent are to be substituted in his place; and if no application is made for such substitution within the time limited by law, the appeal abates as against the deceased respondent."

Kindly note that full text Judgments of Hon'ble Supreme Court can be downloaded absolutely free of cost (without any charges except internet data) from the official website at the link

https://main.sci.gov.in/daily-order

Then entering the date of Judgment, for example, as 19 January 2021.

Written by

Vishal

Delhi

Death of one of the Plaintiffs : Supreme Court Explains the Effect

Death of one of the Plaintiffs : Supreme Court Explains the Effect

An important Judgment was passed by Hon'ble Supreme Court on 11 October 2022.

It has been commented in Siravarapu Appa Rao & Ors v Dokala Appa Rao [2022] GCtR 1788 (SC) thus : -

"Where there are more than one plaintiffs, the entire suit cannot be held to be abated on the death of one of the plaintiffs."

Kindly note that full text Judgments of Hon'ble Supreme Court can be downloaded absolutely free of cost (without any charges except internet data) from the official website at the link

https://main.sci.gov.in/daily-order

Then entering the date of Judgment, for example, as 11 October 2022.

Written by

Vishal

Delhi

Thursday, March 23, 2023

Substantial Question of Law

Substantial Question of Law

On this, note the remarks in Sir Chunilal V. Mehta and Sons Ltd v Century Spinning and Manufacturing [1962] GCtR 2843 (SC) to the following effect : -

"The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."

Kindly note that full text Judgments of Hon'ble Supreme Court can be downloaded absolutely free of cost (without any charges except internet data) from the official website at the link

https://main.sci.gov.in/judgments

Then entering the date of Judgment, for example, as 5 March 1962.

Written by

Vishal

Delhi