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Civil procedure

This tag is associated with 62 posts

By reason of the Limitation Act, 1963 the legal position as was obtaining under the old Act underwent a change. In a suit governed by Article 65 of the 1963 Limitation Act, the plaintiff will succeed if he proves his title and it would no longer be necessary for him to prove, unlike in a suit governed by Articles 142 and 144 of the Limitation Act, 1908, that he was in possession within 12 years preceding the filing of the suit. On the contrary, it would be for the defendant so to prove if he wants to defeat the plaintiff’s claim to establish his title by adverse possession. =Md. Mohammad Ali (Dead) By LRs. RESPONDENT: Sri Jagadish Kalita & Ors. = published in http://judis.nic.in/supremecourt/imgst.aspx?filename=19379

By reason of the Limitation Act, 1963 the legal position as was obtaining under the old Act underwent a change. In a suit governed by Article 65 of the 1963 Limitation Act, the plaintiff will succeed if he proves his title and it would no longer be necessary for him to prove, unlike in a … Continue reading

Apex court allowed the appeal and condoned the delay and remand the matter to lower court for payment of deficit court fee = Bona fide financial constraint is a valid ground for seeking extention of time for payment of court fee – If the plaintiff is unable to pay court fee, he is at liberty to approach the jurisdictional district legal service authority and Taluk Legal Services Committee seeking for grant of legal aid for sanction of court fee amount payable on the suit before the trial court. = Delay can be condoned not on pure technical points but on equity of justice = When nothing is there to find a fault on the affidavit of the petitioner, it can be considered as a valid ground for allowing the petition = MANOHARAN …APPELLANT Vs. SIVARAJAN & ORS. …RESPONDENTS = http://judis.nic.in/supremecourt/imgst.aspx?filename=40990

Apex court allowed the appeal  and condoned the delay and remand the matter to lower     court for payment of deficit court fee =      Bona fide financial constraint is a valid ground for seeking extention of time for payment of court fee – If the plaintiff is unable to pay court fee, he  is  at  liberty  to  approach … Continue reading

Limitation Act, 1963 – s.22 – Suit filed alleging that the defendants had illegally encroached on a public street – Trial court decreed the suit and issued permanent injunction – Decree challenged on the ground that the suit itself was barred by limitation – Held: The suit could not be said to be barred by limitation as encroachment on a public street is a continuing wrong and therefore, there existed a continuing cause of action – S.22 of the Limitation Act would apply – Code of Civil Procedure, 1908. = HARI RAM ….Appellant Versus JYOTI PRASAD & ANR. … Respondents = http://judis.nic.in/supremecourt/helddis.aspx

Limitation Act, 1963 – s.22 – Suit filed alleging that the defendants had illegally encroached on a public street – Trial court decreed the suit and issued permanent injunction – Decree challenged on the ground that the suit itself was barred by limitation – Held: The suit could not be said to be barred by … Continue reading

Fraud on party also void one = Fraudulently obtained a consent decree with in 3 days on illiterate women = kept quiet for long time and again filed another suit for injunction against the same women basing on earlier decree – where the fraud came to light – All lower courts went on routine manner with out analyzing the evidence – how the decree will be passed against one sharers with out adding co sharers and how the court pass a decree with out hearing the parties under or.10, rule 1 C.P.C. – which clearly discloses a fraud = Allowed the civil appeal and set aside all decrees and judgement of lower courts = “Fraud generally lights a candle for justice to get a look at it; and rogue’s pen indites the warrant for his own arrest.” 26. Ex consequenti, the appeal is allowed and the judgment and decree of the High Court in the Second Appeal as well as the judgments and decrees of the courts below are hereby set aside and as a natural corollary the judgment and decree dated 27.11.1973 is also set aside. There shall be no order as to costs. ““Fraud-avoids all judicial acts, ecclesiastical or temporal” observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree – by the first court or by the highest court – has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings.” Smt. Badami (Deceased) By her L.R. ….. Appellant Versus Bhali … Respondent = published in http://judis.nic.in/supremecourt/helddis.aspx

SUIT: Fraudulent suit – Suits for permanent injunction and possession – Based on an earlier compromise decree – Held: All facets of fraud get attracted to the case at hand – A rustic and illiterate woman is taken to court by a relation on the plea of creation of a lease deed and magically in … Continue reading

MAHARASHTRA SCHEDULED CASTES, SCHEDULED TRIBES, DE-NOTIFIED TRIBES, (VIMUKTA JATIS), NOMADIC TRIBES, OTHER BACKWARD CATEGORY (REGULATION OF ISSUANCE AND VERIFICATION OF) CASTE CERTIFICATE ACT, 2000: = a third party can not challenge caste certificate issued and approved long back itself to wreck his vengeance = Ayaaubkhan Noorkhan Pathan … Appellant Versus The State of Maharashtra & Ors. … Respondents = published in http://judis.nic.in/supremecourt/helddis.aspx

MAHARASHTRA SCHEDULED CASTES, SCHEDULED TRIBES, DE-NOTIFIED TRIBES, (VIMUKTA JATIS), NOMADIC TRIBES, OTHER BACKWARD CATEGORY (REGULATION OF ISSUANCE AND VERIFICATION OF) CASTE CERTIFICATE ACT, 2000: Caste certificate – Appellant given employment on the basis of a caste certificate showing that he belonged to Bhil Tadvi (Scheduled Tribe) – Validity certificate issued by Caste Scrutinity Committee – … Continue reading

Land Laws – Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 – ss.3 and 4(c) – Partition suit – Dismissed by civil court – Title appeal – During pendency thereof, notification issued u/s.3 of the 1956 Act – Consequence=Partition suit was decreed in lower court , appeal filed and appeal is abated due to non-bringing of legal heirs- Notification under Bihar consolidation of Holdings and prevention of Fragmentation Act 1956 published – application filed before appellant -In the present case, title appeal was pending when notification was issued u/s.3 of the 1956 Act, whereafter an application u/s.4(c) of the 1956 Act was preferred to the effect that the appeal and the suit had abated by statutory operation of law – It would have been advisable on the part of the appellate court to record a finding that the entire proceeding of the civil suit stood abated – But the appellate court directed abatement because of non-substitution of the legal heirs of one of the respondents – Hence, the suit as well as the appeal abated and resultantly the very commencement of the civil proceeding came to a naught and, therefore, findings recorded in the said proceeding became extinct – High Court did not appreciate the lis in proper perspective and held that reliance on the findings recorded by the civil court by the revisional consolidation authority under the 1956 Act could not be faulted – Said conclusion wholly erroneous – Matter remanded to High Court to decide the matter on merits on basis of the material brought before the Consolidation Authorities.= Paras Nath Rai and others ….. Appellants Versus State of Bihar and Ors. … Respondents = Published in http://judis.nic.in/supremecourt/helddis.aspx

Land Laws – Bihar Consolidation of Holdings and Prevention of Fragmentation     Act, 1956 – ss.3 and 4(c) – Partition suit – Dismissed by civil court – Title appeal – During pendency thereof, notification issued u/s.3 of the 1956 Act – Consequence – Held: Once a notification has been published u/s.3, every suit and … Continue reading

Whether suit filed by appellant was barred in terms of Order XXIII Rule 3-A CPC – Held: A compromise forming the basis of the decree can only be questioned before the same court that recorded the compromise and a fresh suit for setting aside a compromise decree is expressly barred under Order XXIII Rule 3-A – However, in the instant case, the compromise decree alleged to be fraudulent was passed not by a civil court but by a revenue court in a suit u/s.176 of the Land Reforms Act – Revenue courts are neither equipped nor competent to effectively adjudicate on allegations of fraud that has overtones of criminality and the courts really skilled and experienced to try such issues are the courts constituted under the CPC – Further, under s.9 of CPC, the civil court has inherent jurisdiction to try all types of civil disputes unless its jurisdiction is barred expressly or by necessary implication, by any statutory provision and conferred on any other tribunal or authority – Nothing in Order XXIII Rule 3-A bars the institution of a suit before the civil court even in regard to decrees or orders passed in suits and/or proceedings under different statutes before a court, tribunal or authority of limited and restricted jurisdiction – In the facts of the case, provision of Order XXIII not a bar against the suit filed by the appellant – Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 – ss. 176, 178, 182, 331 and 341 and Schedule II. = HORIL … APPELLANT VERSUS KESHAV & ANR. … RESPONDENTS = published in http://judis.nic.in/supremecourt/helddis.aspx

Code of Civil Procedure, 1908 – Or.XXIII, r.3-A – Suit – Maintainability – Appellant filed suit seeking declaration that decree passed by the Assistant Collector, Class-I, in a suit u/ss.176, 178 and 182 of the Land Reforms Act was fraudulent, inoperative and not binding upon him – Allegation that decree passed by Assistant Collector was … Continue reading

s.149 CPC = No document which is chargeable with a fee under the Act shall be acted on by any court or any public office unless the appropriate fee payable under the Act in respect of such a document is paid – When a document on which court fee is payable is received in any court or public office, though the whole or any part of the appropriate court fee payable on such document has not been paid, either because of a mistake or inadvertence of the Court, the Court, in its discretion, may allow the payment of the deficit court fee within such time as may be fixed – Upon such payment, such document “shall have the same force and effect” as if the court fee had been paid in the first instance – Indisputably, the expression “document” takes within its sweep a plaint contemplated under the Code of Civil Procedure – Court Fees Act, 1870. Judicial discretion: Exercise of – Scope – Held: It is well settled that the judicial discretion is required to be exercised in accordance with the settled principles of law – It must not be exercised in a manner to confer an unfair advantage on one of the parties to the litigation.= A. Nawab John & Ors. ….Appellants Versus V.N. Subramaniyam ….Respondent = published in http://judis.nic.in/supremecourt/helddis.aspx

Court Fees Act, 1870: Filing of plaint – Deficient court fee – Right of     defendant to raise objection – Held: Question of court fee is a matter between the plaintiff and the Court – If the Court comes to the conclusion that the court fee paid in the lower court is not sufficient, … Continue reading

Wakf Act, 1995: s.83(5) – Wakf Tribunal – Power of – HELD: Wakf Tribunal is deemed to be a civil court and has the same powers as are exercised by civil court under the Code of Civil Procedure while trying a suit or executing a decree or order – Civil courts are competent to issue injunctions in terms of Or. 39, rr. 1 and 2 and s.151 CPC – Similar orders can, therefore, be passed by the Wakf Tribunal also in suits that are legally triable by it – If the Wakf Tribunal, upon consideration of relevant facts and circumstances, comes to the conclusion that a case for grant of interim injunction has been made out, it shall be free to issue any such injunction – Code of Civil Procedure, 1908 – Or. 39, rr. 1 and 2 and s.151 – Injunctions. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 492 of 2003. From the Judgment & Order dated 24.01.2002 of the High Court of Judicature at Madras in CRP No. 1430 of 2001. K.V. Viswanathan, B. Ragunath (for Vijay Kumar) for the Appellants. K. Ramamoorthy, Hari Shankar K., Vikas Singh Jangra for the Respondents.

SYED MOHIDEEN & ANR. v. RAMANATHAPURA PERIA MOGALLAM JAMATH & ORS. (Civil Appeal No. 492 of 2003) JULY 21, 2010 [MARKANDEY KATJU AND T.S. THAKUR, JJ.] 2010 (8) SCR 777 The following order of the Court was delivered ORDER The application for substitution is allowed. Heard learned counsel for the parties. This appeal has been … Continue reading

Code of Civil Procedure, 1908-Order XXXIX Rules 1 and 2-Interim Injunction-Contractual transaction-Money advanced to second party and third party secured the loan by hypothecation and charge-Notice by lender to the securing party seeking repayment of the amount-Suit by securing party against the lender for mandatory injunction and application for interim injunction-Claim of lender before Debt Recovery Tribunal-Interim injunction granted and execution of any order by Tribunal restrained-Held: In the facts and circumstances of the case, the court below could not exercise its discretion to grant any interim injunction-Injunction against enforcement of orders of Tribunal also not correct-Such injunctions against the Tribunal having jurisdiction to pass such orders cannot normally be granted unless it is a case of fraud or the existence of some such vitiating factor is established or prima facie made out. Appellant-defendant No. 1 issued a notice to respondent No. 1 – plaintiff and defendant No. 2, seeking repayment of the amounts advanced by it to defendant No. 2, the repayment of which was secured by hypothecation and charge created by the plaintiff. Pursuant thereto respondent No. 1 – plaintiff filed a suit against defendant Nos. 1 and 2 for mandatory injunction restraining the defendants from interfering with certain capacitor banks systems allegedly supplied by the plaintiff and installed at various substations of Transmission Corporation of Andhra Pradesh. Plaintiff also filed application for interim injunction. Trial Court granted interim injunction. In the meanwhile appellant filed its claim for recovery of the amounts due, before Debts Recovery Tribunal. It also filed application for vacating the interim order and the same was vacated by Single Judge of High Court. Plaintiff’s appeal thereagainst was allowed by Division Bench of High Court on the ground that since the suit was filed earlier to the claim before Debt Recovery Tribunal, the court was competent to entertain the suit and granted interim injunction. It permitted the proceedings before the Tribunal, but restrained the execution of any order that might be passed by the Tribunal. Hence the present appeal. Citation: 2006(8 )Suppl.SCR698 ,2007(1 )SCC106 ,2006(11 )SCALE585 ,2006(10 )JT366 Allowing the appeal, the Court HELD: 1. On the facts and in the circumstances of the case, the court is prima facie satisfied that this is not a fit case for exercise of discretion by the court to grant any interim injunction as sought for by the plaintiff. Division Bench has not properly adverted to or considered the question whether in the nature of the pleadings in the case and the nature of the relief claimed in the suit, an order of injunction as the one granted by it should be granted. The Division Bench did not ask itself the question whether it was open to it on the facts and in the circumstances of the case, to issue an order of injunction restraining one of the contracting parties from enforcing as against the other contracting party, the obligations arising out of that contract. The Division Bench also did not ask itself the question whether the plaintiff had made out a prima facie case for the grant of what it called an interim mandatory injunction – though it appears to this court to be a case of prohibitory injunction – and whether the balance of convenience is in favour of the grant of an interim order of injunction. [702-B-F] 2. Division Bench has clearly acted illegally in purporting to pass an interim order of injunction restraining the enforcement of any order that may be passed by the Debts Recovery Tribunal. The Debts Recovery Tribunal is a special forum created by a special enactment for the purpose of enforcement of special types of claims arising in favour of financial institutions. Thus, competent proceedings are instituted before such a Tribunal by a financial institution seeking to enforce its claimed rights. Whatever defences the plaintiff herein may have against the claims of the first defendant before the Debts Recovery Tribunal, have to be put forward by the plaintiff before the Debts Recovery Tribunal. The mere fact that the plaintiff chose to rush to the Civil Court on receipt of a notice from the first defendant in an attempt to thwart the enforcement of the obligations it has allegedly incurred, does not justify the grant of an interim order of injunction restraining the enforcement of the rights arising out of an alleged hypothecation and a charge created by the plaintiff in favour of the first defendant. That apart, to grant an injunction restraining the enforcement of orders passed by the Tribunal having jurisdiction to pass such orders cannot normally be granted unless it is a case of fraud or the existence of some such vitiating factor is established or prima facie made out. Even then, the order of injunction as now granted could be granted only in exceptional cases. [702-F-H; 703-A-C] 3. It is open to the plaintiff to put forward all its contentions before the Debts Recovery Tribunal and if it is thought appropriate, to get the suit filed by it transferred to the Debts Recovery Tribunal to be tried as a cross suit or counter claim against the claim of the first defendant before the Debts Recovery Tribunal. [703-E-F] State Bank of India v. M/s Ranjan Chemicals Ltd. and Anr., (2006) 10 SCALE 150, referred to. K.K. Mani for the Appellant. L. Nageshwar Rao, T.G. Narayanan Nair, Nandakumar K.P. Venugopal, and E. Venukumar, K.J. John & Co. for the Respondents.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3 CASE NO.: Appeal (civil) 4728 of 2006 PETITIONER: Industrial Investment Bank of India Ltd RESPONDENT: Marshal’s Power & Telecom (I) Ltd.& Anr DATE OF JUDGMENT: 08/11/2006 BENCH: H.K. SEMA & P.K. BALASUBRAMANYAN JUDGMENT: J U D G M E N T (Arising out of SLP(C) No.2962 … Continue reading

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