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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
Civil Procedure-Addition of parties-Declaratory suit-Claim of status as married wife Admission by husband-Right of wife and son denying plaintiff’s claim, to be added as Parties- Mohammedan law-Code of Civil Procedure (Act V of 1908), O. I, r 10(2)-Specific Relief Act (1 of 1877), ss. 42, 43. = The appellant instituted a suit against the third respondent, inter alia, for a declaration that she was his lawfully married wife, alleging that though the fact of her marriage was known to all who knew him, he was trying to suppress the facts in such a way that the members of his family should conclude that she was not his Nikah wife, that he refused to openly acknowledge her as his legally wedded wife and that this conduct on his part had cast a cloud on her status as such wife and was affecting the rights of the issue of the marriage, her three daughters. The third respondent filed his written statement admitting the claim, but on the same date respondents i and 2 made an application under 0. i, r. 10(2), of the Code of Civil Procedure for being impleaded in the suit as defendants on the grounds that they were respectively the wife and son of the third respondent, that they were interested in denying the appellant’s status as wife and the status of her children is the legitimate children of the third respondent, that the suit was the result of a collusion between the appellant and the third respondent and that if the appellant was declared to be lawfully wedded to the third respondent, the rights and interests of respondents i and 2 in the estate of the third respondent would be affected. The application was contested by both the appellant and the third respondent. The trial court allowed the application and the order was confirmed by the High Court in its revisional jurisdiction. The question was whether the lower courts did not exceed their powers in directing the addition of respondents i and 2 as parties-defendants in the action : Held (per Sinha and Kapur jj. Imam J., disscenting), that in view of the averments in the plaint which showed that not only the third respondent but the other members of his family, including respondents i and 2, were interested in denying the appellant’s status as a legally wedded wife, respondents i and 2 were proper parties to the suit. The question of addition of parties under O. I, r. 10, of the Code of Civil Procedure is generally not one of initial Jurisdiction of the court, but of a judicial discretion ; in a suit for a declaration as regards status or a legal character under S. 42 Of 1112 the Specific Relief Act, the rule that in order that a person may be added as a party he must have a present or direct interest in the subject-matter of the suit, is not wholly applicable, and the rule may be relaxed in a suitable case where the court is of the opinion that by adding that party it would be in a better position effectually and completely to adjudicate upon the controversy. In such suits the court is not bound to grant the declaration prayed for, on a mere admission of the claim by the defendant, if the court has reasons to insist upon clear proof, apart from the admission. A declaratory judgment in respect of a disputed status will be binding not only upon the parties actually before the court but also upon persons claiming through them respectively, within the meaning of s. 43 Of the Specific Relief Act. The word ” respectively ” in the section has been used with a view to showing that the parties arrayed on either side, are really claiming adversely to one another, so far as the declaration is concerned. Per Imam J.-The facts of the present case do not justify the addition of respondents i and 2 as defendants under the provisions of 0. i, r. 1O(2), of the Code of Civil Procedure, because..:- (1)There is nothing in the pleadings to suggest that respondents 1and 2 were denying the appellant’s status as wife of the third respondent, and the court ought not to compel the plaintiff to add parties to the suit where on the face of the pleadings plaintiff has no cause of action against them. (2)Under the Mohammedan law a man is entitled to have four wives at one and the same time and, consequently, as the third respondent has admitted that the appellant was married to him, respondents i and 2 have no locus standi to make any representation in the suit that there was collusion between the appellant and the third respondent. (3)During the lifetime of the third respondent neither the appellant nor her children on the one hand nor respondents i and 2 on the other have any rights in his estate, under the Mohammedan law. (4)Assuming that a declaration in the suit would be binding upon respondents i and 2, which is doubtful having regard to the terms of S. 43 of the Specific Relief Act, that would be no justification for their being impleaded in the suit where the issue is not one of inheritance but one of marriage between the appellant and the third respondent. =1958 AIR 886, 1959SCR1111, , ,
PETITIONER: RAZIA BEGUM Vs. RESPONDENT: SAHEBZADI ANWAR BEGUM & OTHERS DATE OF JUDGMENT: 23/05/1958 BENCH: SINHA, BHUVNESHWAR P. BENCH: SINHA, BHUVNESHWAR P. IMAM, SYED JAFFER KAPUR, J.L. CITATION: 1958 AIR 886 1959 SCR 1111 ACT: Civil Procedure-Addition of parties-Declaratory suit-Claim of status as married wife Admission by husband-Right of wife and son denying plaintiff’s claim, … Continue reading
Land Acquisition Act, 1894; Ss. 3(a) and (b), 11 and 16: Acquisition of land by State Government-Easementary right on the ground of necessity-Availability of-High Court rightly drew a distinction between an easement of an ordinary nature for which compensation could be claimed and an easement of necessity in respect of which right of passage could not be extinguished by reason of acquisition, hence justified in granting right of passage to the claimant both on principle and precedent-Civil Procedure Code, 1908-Section 100-Constitution of India, 1950-Article 136. espondent Nos. 1 to 3 had purchased certain portion of land belonging to `R’. The sale deed specifically mentioned that respondent-vendees would have access to their land through a passage from the remaining part of the land of the vendor, which was later acquired by the Government of Himachal Pradesh. The State Government blocked off the passage by a barbed wire fencing, thereby preventing respondents’ access to their land. Aggrieved, respondents filed a suit for issuing injunction against the appellants. Suit was dismissed by the Trial Court. Appellate Court decreed the suit holding that there existed a passage from the land acquired by the State Government to the land of the respondents and they had no other passage to their land. Appeal against this order was dismissed by the High Court. Hence the present appeal. It was contended by the appellants that once an award has been made under Section 11 of the Land Acquisition Act and possession of the acquired land was taken, the land would vest absolutely in the Government free from all encumbrances. =Dismissing the appeal, the Court HELD: 1.1. Both the Additional District Judge and the High Court have concurrently held that the only approach available to respondent Nos. 1 to 3, is through the land of the appellant and as such they had a right to approach their land as claimed by them and the appellant had no right to obstruct the approach by putting up a barbed wire fencing. [212-E] 1.2. The High Court drew a distinction between an easement of an ordinary nature in respect of which compensation could have been claimed in the land acquisition proceedings and an easement of necessity, a right of passage, and held that right of passage by way of necessity, as enjoyed by the respondents over the land of original landlord and presently acquired by the appellant, was not extinguished by reason of acquisition. In the peculiar facts and circumstances of the case, the distinction drawn by the High Court about non-extinguishment of the right of easement arising out of necessity appears to be justified both on principle and precedent. The present case is not a fit case to be interfered with in exercise of the jurisdiction under Article 136 of the Constitution. Hence, the appeal is dismissed. [213-B; 214-A-B-C] Collector of Bombay v. Nusserwanji Rattanji Mistri and Ors., AIR (1955) SC 298, relied on. State of Himachal Pradesh v. Tarsem Singh and Ors., [2001] 8 SCC 104, distinguished. Rakesh Dwivedi and Naresh K. Sharma for the Appellants. A.V. Palli and Mrs. Rekha Palli for the Respondent Nos. 1-3. J.S. Attri for the Respondent No. 4. =2005 AIR 954 , 2005(1 )SCR209 , 2005(2 )SCC164 , 2005(1 )SCALE150 , 2005(1 )JT169
CASE NO.: Appeal (civil) 1022 of 2000 PETITIONER: H.P. State Electricity Board & Ors. RESPONDENT: Shiv K. Sharma & Ors. DATE OF JUDGMENT: 10/01/2005 BENCH: Shivaraj V. Patil & B.N. Srikrishna JUDGMENT: J U D G M E N T Srikrishna, J. The Himachal Prades State Electricity Board, Shimla, challenges by this appeal the judgment … Continue reading
Civil Procedure Code, 1908-Or 2 R 2 (3)-Bar in respect of claim of relief in subsequent suit-The plea of bar under Or 2 R 2 (3) CPC is maintainable only if the defendant files in evidence before the trial Court the pleadings in the previous suit to prove identity of cause of action in the two suits-Inference about the bar cannot be culled merely from the plaint in the second case-Attempt to bring the pleadings of the earlier suit on record at the stage of proceedings before Supreme Court not allowed. Trade and Merchandise Marks Act, 1958, Copy Right Act-In case of continuing or recurring wrong there would be corresponding, continuous or recurrent causes of action-Action for passing off-Continuing deceit gives rise to fresh causes of action-First suit based on infringement of plaintiff’s trade mark by defendants and passing off of the defendants goods as if they were plaintiff’s goods-Second suit based on continuous acts of infringement of its trade mark and continuous passing of action on the part of the defendants subsequent to filing of the earlier suit and continuing till the date of filing of the second suit-Cause of action in the two suits are different-One of the ingredients of Or 2 R 2 (3) thus having not been satisfied, bar thereunder could not operate. Limitation Act 1963 S.22-In a case of continuing breach of contract or continuing tort-A fresh period of limitation runs at every moment of the time during which the breach or the tort continues. The appellant company, manufacturing and marketing waterproof goods and rubberised waterproof raincoats throughout the country under the trade mark `Duck Back’, was registered under the Trade and Merchandise Marks Act, 1958 and the Copy Right Act. It filed original Suit No. 238 of 1980 in City Civil Court, Hyderabad against the respondents alleging that they were manufacturing and marketing similar products under the trade mark `Duck Back’ which phonetically and visually resembles the plaintiffs trade mark resulting in confusion among consumers and amounted to passing off the appellant’s goods as of the respondents’. The suit was dismissed on 6th April, 1982 on the ground that there was no infringement of the appellant’s trade mark `Duck Back’ by the respondents. In the year 1982 the second suit was filed in the City Civil Court, Hyderabad by the appellant against the respondents inter alia alleging that they were ill-advised and mis-informed in filing the first suit and further alleged that even after 1982, the respondents were carrying on infringement of their registered trade mark and were passing off their goods as the goods of the appellants and prayed for permanent injunction restraining the respondents from infringing their trade-mark and copy right as well as from passing off their goods as if they were of the appellant’s. The trial court held that the suit was barred by the provisions of Order 2 Rule 2 Sub Rule (3) of the CPC. On appeal, the High Court held that the appellants had proved their case of pasting off against the respondents but upheld the finding of the trial court that the suit was barred by order 2 Rule 2 sub rule (3) of the CPC and thus dismissed the same. Aggrieved, the plaintiff filed the present appeals. =Allowing the appeal, this Court HELD:1.1. A suit can be said to be barred under Order 2, Rule 2 (sub rule 3) CPC if it is shown that the second suit is based on the same cause of action on which the earlier suit was based; and if the cause of action is the same in both the suits and if in the earlier suit the plaintiff had not sued for any of the reliefs available to him of that cause of action, the relief which the plaintiff had failed to pray in that suit can not be subsequently prayed for except with the leave of the Court. [702-H, 703-A- B] 1.2. As regards the plea of the respondents that suit is barred under order 2 Rule 2 sub rule (3) there is a threshold bar against them for their failure to bring on record of the trial court the pleadings of the earlier suit. No inference can be drawn in absence of the pleading of the previous suit being on record. Even before the High Court no attempt was made by them to produce the pleading in the earlier suit by way of an application for additional evidence. Production of the copy of the plaint by the respondent in the Counter Affidavit at the stage of proceedings before the Supreme Court is of no avail. [703-C, 704-G] 1.3. An action for passing off is a common Law remedy being an action in substance of deceit under the law of torts and for a fresh deceitful act, a person would naturally have a fresh cause of action. Thus every time when a person passes off his goods as those of another, he commits the act of such deceit. Similarly, when a person commits a breach of registered Trade Mark of another, he commits a recurring act of breach of such Trade Mark giving recurring and fresh cause of action at each time of such infringement. [708-C-E] 1.4. Order 2 Rule 2 sub rule (3) requires that the cause of action from the earlier suit must be the same on which the subsequent suit is based and unless there is identity of cause of action in both the suits, the bar of Order 2 Rule 2 sub rule (3) will not get attracted. Further, in cases of continuous causes of action or recurring causes of action, the bar can not be invoked. The cause of action in the first suit of 1980 was based on infringement of plaintiff’s Trade Mark “Duck Back” by the defendant till the date of the suit and the grievance regarding passing off the defendant’s goods as if they were plaintiff’s goods, was also confined to the situation prevailing on that date. But in the second suit the grievance of the plaintiff is entirely different and is not based on any act of infringement or passing off alleged to have been committed by the defendant in 1980. But the plaintiffs grievance is regarding the continuous acts of infringement of its Trade Mark `Duck Back’ and the continuous passing of action on the part of the defendants subsequent to the filing of the earlier suit and which had continued on the date of the second suit of 1982. The cause of action in the second suit is continuous and recurring. The infringement of the plaintiff’s Trade Mark “Duck Back” and passing of action on the part of the defendants in selling their goods by passing of their goods as if they were plaintiff’s goods, had continued all throughout uninterrupted in a recurring manner and such an action would give a recurring cause of action to the holder of the Trade Mark. [705-CE-F, 708,B] 2. By virtue of the provisions of section 22 of the limitation Act, 1973, in a case of continuing breach of contract or in a case of continuing tort, a fresh period of limitation begins to run every moment of the time during which the breach or the tort, as the case may be, continues. [709 AB] 3. As held by the High Court, on merits, the action of the defendants is actionable and amounts to acts of passing off as the waterproof raincoats manufactured by the first defendant bearing the trade mark “Dack Back” are phonetically and visually similar the those of the plaintiff bearing the trade marks “Duck Back”. The plaintiff had made out a case for actionable breach of infringement of plaintiff’s trade mark as well as actionable act of passing off by the defendants of their goods as if they were plaintiff’s goods and, therefore, the plaintiff’s suit would be required to be decreed. The judgment and order of dismissal of the plaintiff’s suit as passed by the Trial Court and as confirmed by the High Court are set aside. [709-D-G] Gurbux singh v. Bhooralal, [1964] 7 SCR 831, followed. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 14610 of 1996. =1997 AIR 1398, 1996( 8 )Suppl.SCR 695, 1997( 1 )SCC 99, 1996( 8 )SCALE369 , 1996(10 )JT 96
PETITIONER: M/S BENGAL WATERPROOF LIMITED Vs. RESPONDENT: M/S BOMBAY WATERPROOF MANUFACTURINGCOMPANY & ANOTHER DATE OF JUDGMENT: 18/11/1996 BENCH: A.S. ANAND, S.B. MAJMUDAR ACT: HEADNOTE: JUDGMENT: J U D G M E N T S.B. Majmudar. J. Leave granted. By consent of learned advocates of parties the appeal arising from the Special Leave Petition was finally … Continue reading
Code of Civil Procedure, 1908-Order VIII, Rule 1 (As amended by Code of Civil Procedure (Amendment) Act, 2002-Written statement filed beyond maximum period-Acceptance of-Held: It was in discretion of court-Amended Order VIII, Rule 1 though worded in negative form, was not mandatory keeping in view the context in which it was enacted-Neither the power of Court to take on record written statement filed beyond time is specifically taken away nor consequences of non-extension of time specifically provided for. Respondent was served with summons issued by the trial court. They filed their written statement beyond 90 days, which was the magimum period allowed, apart from the normal period of 30 days from the date of service of summons. Appellant objected to same. However, Trial Court accepted the written statement, and High Court dismissed appeal of appellant against same. Hence the present appeal. Appellant contended that after substitution of Order VIII, Rule 1 by Code of Civil Procedure (Amendment), 2002, the court had no discretion to extend the period for filing the written statement beyond the maximum period. =Dismissing the appeal, the Court HELD : 1. Order VII, Rule 1 after the amendment casts an obligation on the defendant to file the written statement within 30 days from the date of service of summons on him and within the extended time falling within 90 days. The provision does not deal with the power of the court and also does not specifically take away the power of the Court to take the written statement on record though filed beyond the time as provided for. Further, the nature of the provision contained in Order VIII Rule 1 is procedural. It is not a part of the substantive law. Substituted Order VIII, Rule l intends to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases causing inconvenience to the plaintiffs and petitioners approaching the court for quick relief and also to the serious inconvenience of the court faced with frequent prayers for adjournments. The object is to expedite the hearing and not to scuttle the same. While justice delayed may amount to justice denied, justice hurried may in some cases amount to justice buried. [756-C, D, E] Sushil Kumar Sen v. State of Bihar, [1975] 1 SCC 774; Shreenath and Anr. v. Rajesh and Ors., AIR (1998) SC 1827, referred to. Blyth v. Blyth, 1966 1 All. E.R. 524 (HL), referred to. 2. It is also to be noted that though the power of the Court under the proviso appended to Rule 1 of Order VIII is circumscribed by the words `shall not be later than ninety days’ but the consequences flowing from non-extension of time are not specifically provided though they may be read by necessary implication. Merely because a provision of law is couched in a negative language implying mandatory character, the same is not without exceptions. The courts, when called upon to interpret the nature of the provision, may, keeping in view the entire context in which the provision came to be enacted, hold the same to be directory though worded in negative form. [757-E, F] Salem Advocate Bar Association, Tamil Nadu v. Union of India, JT (2005) 6 SC 486, followed. Kailash v. Nankhu and Ors., [2005] 4 SCC 480, relied on. Nishakant Pandey and Alok Kumar for the Appellant. Aman Lekhi, Rajiv Ranjan Dwivedi, Nagendra Kumar, Harish Pandey, Syamel Kumar, Rakesh Kumar and Jaspreet Singh Rai for the Respondents.
CASE NO.: Appeal (civil) 5066 of 2005 PETITIONER: Smt. Rani Kusum RESPONDENT: Smt. Kanchan Devi and Ors. DATE OF JUDGMENT: 16/08/2005 BENCH: ARIJIT PASAYAT & H.K. SEMA JUDGMENT: J U D G M E N T (Arising out of SLP (C) No. 377 OF 2005) ARIJIT PASAYAT, J. Leave granted. Order passed by a learned … Continue reading
Law of Limitation : Limitation Act, 1963/Limitation Act, 1908-Article 136/Article 182- Decree- Enforceability of-Appellant-decree holder initiating the execution process after a long time contending that it was within limitation as time would run from the date of dismissal of the second appeal-Second appeal dismissed being barred by limitation-Held, dismissal of an appeal as time barred is not a decree as there is no adjudication which could be said to have determined the rights of the parties with regard to all or any of the matters in controversy conclusively-In the present case, the decree became enforceable when the first appellate court passed the decree which superseded the decree of the trial court. As no decree was passed in the second appeal, the decree of the first appellate court remained unaffected- Held, in the circumstances, the execution process initiated long after the expiry of 12 years from the passing of the decree by the first appellate court, is irretrievably barred-Code of Civil Procedure, 1908-Sections 2(2) and 115. The appellant secured a decree for possession of the suit property. However, the execution of the decree was not applied for. The respondent/ judgment debtor filed First Appeal against it but the same was dismissed. The Second Appeal filed by respondent/judgement debtor against the decree and judgement of the first appellate court was also rejected by the High Court on the ground that the delay in filing the Second Appeal was not properly explained. An execution petition was filed after expiry of a long time after the rejection of the aforesaid Second Appeal. The Execution Court resuscitated the decree with the help of the order passed in the Second Appeal as the execution petition was filed within 12 years of the passing of the aforesaid order. However, in revision the District Court reversed the order of the Execution Court The petition filed before the High Court was not entertained as the revisional powers of the High Court had already been exercised by the District Court Hence the present appeal. On behalf of the appellant, it was contended that dismissal of the Second Appeal would make the position different as time would run from the date of such dismissal; that the interpretation of law of limitation should be such as to prevent the scuttling of the remedy. =Dismissing the appeal, the Court HELD : 1.1. The decree became enforceable when the appellate court passed the decree which superseded the decree of the trial court As no decree was passed by the High Court in the second appeal, inasmuch as it was dismissed being barred by limitation, the decree of the first appellate court remained unaffected and the enforceability once commenced remained undisturbed for a period of 12 years therefrom. The execution process initiated by the appellant long after the expiry of 12 years from the date of passing of the decree by the first appellate court, is thus irretrievably barred. [516-H; 517-A, B] 1.2. In order that decision of a court should become a decree there must be an adjudication in a suit and such adjudication must have determined the rights of the parties with regard to all or any of the matters in controversy in the suit and such determination must be of a conclusive nature. If those parameters are to be applied then rejection of application for condonation of delay will not amount to a decree. Consequently, dismissal of an appeal as time barred is also not a decree. In such a situation the mere fact that the second appeal was dismissed as a corollary to the dismissal of application for condonation of delay has no effect on the decree passed by the first appellate court. [515-F; 516-C] Shyama Pada Choudhary v. Saha Choudhary & Co. & Ors., AIR (1976) Calcutta 122, affirmed. Mamuda Khateen andi Ors. v. Beniyan Bibi and Ors., AIR (1976) Calcutta 415, relied on. Anandilal & Anr. v. Ram Narain and Ors., AIR (1984) SC 1383, referred to. Nagendra Nath Dey and Anr. v. Suresh Chandra Dey and Ors., AIR (1932) PC 165, held inapplicable. 2. Filing of an appeal would not affect the enforceability of the decree, unless the appellate court stays its operation. But if the appeal results in a decree that would supersede the decree passed by the lower court, then it is the appellate court decree which becomes enforceable. When the appellate order does not amount to a decree there would be no supersession and hence the lower court decree continues to be enforceable. [515-A] 3. Normally a decree or order becomes enforceable from its date. But cases are not unknown when the decree becomes enforceable on some future date or on the happening of certain specified events. The expression `enforceable’ has been used to cover such decrees or orders also which become enforceable subsequently. [514-H] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7194 of 2000.
CASE NO.: Appeal (civil) 7194 2000 PETITIONER: RATANSINGH Vs. RESPONDENT: VIJAYSINGH AND ORS. DATE OF JUDGMENT: 11/12/2000 BENCH: K.T.Thomas, R.P.Sethi JUDGMENT: L…..I………T…….T…….T…….T…….T…….T..J J U D G M E N T THOMAS, J. Leave granted. A decree-holder after securing a decree went into slumber and remained as such for a pretty long period like a Rip … Continue reading
Mesne Profits-Liability for mesne profits, principle of-Section 2(12) of the Code of Civil Procedure 1908 (Act V of 1908). Civil Procedure Code, 1908, Order XX Rule 12- Construction of decree explained-Nature of the decree of the Court dated April 22, 1958 clarified. Words and Phrases-“Whichever event first occurs” in Rule 12(1)(C)(iii) of order XX C.P.C.-Meaning of Civil Procedure Code. S. 144-Scope of. = Meriappa Gounder respondent No. 1 in C.A. 466/69 and appellant 1 in C.A. 2375/69 filed a suit on August 23, 1950 in the District Court, Trichur, for specific performance of an agreement dated May 22, 1950 made by one Soliappa Chettiar. The said Soliappa Chettiar pleaded inability to perform the contract in view of the refusal of one Neelakanta Iyer a lessee of the factory to give up possession. Pending the suit Late Kochivareed, husband of the appellant in C.A. 466/69 obtained an assignment of the lease from Neelakanta Iyer on March 5, 1951. On March 8, 1951 Soliappa Chettiar executed a sale deed of the suit property in favour of one George Thatil, a nephew of Kochivareed. In the course of the proceedings the trial court appointed a Receiver to manage the suit property. On March 21, 1951, Late Kochivareed obtained a lease, of the suit property at a rent of Rs. 15,000/-for a period of one year which was renewed for another year from the Receiver and a sum of Rs. 30,000/- SO collected as rent for two years was deposited in the Court by the Receiver. The District Court on August 28, 1952 decreed the suit for specific performance and mesne profits at a reduced rate of Rs. 15,000/- per annum, instead of at Rs. 30,000/- per annum as claimed. Against the decree two appeals were filed in the High Court by Kochivareed and George Thatil. The High Court allowed the appeals and dismissed the suit by its judgment dated March 21, 1953. The appeal filed by Meriappa Gounder (CA 129/56) was allowed by this Court as per its judgment and decree dated April 22, 1958. On the question of the liability of the mesne profits, the present appeals arose out of interpretation of the direction (e) of this Court’s decree dated April 22, 1958. Allowing the appeals by certificate in part the Court ^ HELD: 1. Mesne profits being in the nature of damages, no invariable rule governing their award and assessment in every case can be laid down and the “Court may mould it according to the justice of the case”. Even so one broad basic principle governing the liability for mesne profits is discernible 59 from section 2(12) of the Code of Civil Procedure which defines ‘mesne profits’ to mean ‘those profits which the person in wrongful possession of property actually received or might with ordinary deligence have received therefrom together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession.” [68G-H, 69A] Wrongful possession of the defendant is the very essence of a claim for mesne profits and the very foundation of the defandant’s liability therefor, Generally, the person in wrongful possession and enjoyment of the immovable property is liable for mesne profits. But, where the plaintiff’s dispossession, or his being kept out of possession can be regarded as a joint or concreted act of several persons, each of them who participants in the Commission of that act would be liable for mesne profits even though he was not in actual possession and the profits were received not by him but by some of his confederates. Possession through another, such as a tenant may be sufficient to create liability for mesne profits, if such possession is wrongful. [69A-C and G] 2. In such a case, where the claim for mesne profits is against several tresoassers who had combined to Keep the plaintiff out of possession, it Is open to the Court to adopt either of the two courses. It may by its decree hold all such trespassers jointly and severally liable for mesne profits leaving them to have their respective rights adjusted in a separate suit for contribution; or it may, if there is proper material before it ascertain and apportion the liability of each of them on a proper application made by the defendant during the same proceedings. [69C-D] 3. A decree under Order XX Rule 12 of C.P.C., directing enquiry into mesne profits, howsoever expressed must be construed to be a decree directing the enquiry in conformity with the requirements of Rule 12(1)(c), 80 that the decreeholder is not entitled to mesne profits for a period (commencing from the date of the institution of the suit) extending beyond three years from the date of the preliminary decree. [69E-Fl Chitturi Subhanna v. Kudappa Subbanna, [1965] 2 SCR 661; referred to. 4. The words “whichever event first occurs” in sub clause (c)(iii) of clause I of Rule 12 of Order XX Civil Procedure Code imply that the maximum period for which future mesne profits can be awarded is three years from the date of the decree for possession and mesne profits, finally passed. The period of three years is to be computed from the date of decree of this Court i.e. from April 22, 1958 and it will expire on the date on which possession was delivered or relinquished by the defendant in favour of the decreeholder pursuant to that decree. In other words, the decree mentioned in sub clause (iii) of clause (c) would be the appellate decree dated April 22, 1958 of this Court. The period of three years mentioned in the said subclause is, therefore, to be reckoned from April 22, 1958. [73G-H, 74A- B] 5. Section 144 of the Code of Civil Procedure, in terms, says that for the purpose of the restitution, the Court may make any orders, including orders for the payment of interest, damages compensation and mesne profits which are properly consequential on variation or reversal of the decree. [77A-B] There is nothing in the decree, dated April 22, 1958 of this Court which expressly or by implication, prohibits the payment of interest on the sum of 60 Rs. 30,000/- withdrawn by defendant 3 by way of restitution. The trial court had rightly allowed interest. [77B-C] 6. The decree dated April 22, 1958 of this Court was a composite decree, partly final, and party preliminary. It was final in so far as it granted the reliefs of specific performance and possession on deposit of the price by the Plaintiff. It was preliminary in as much as it directed an inquiry with regard to the assessment of mesne profits and as to who out of the defendants was/were liable for payment of those mesne profits. But? it laid down in no uncertain terms that only such of the defendants would be liable for mesne profits “as may have been in possession of the property”. This direction in the decree means that only the defendant or defendants found in actual possession and enjoyment of the property would be liable for mesne profits. [70A-C] In the instant case: (a) The third defendant was in sole, actual possession and control of the suit property from March 3, 1951, when he obtained the alleged assignment of lease in his favour from Neelakanta Iyer. In terms of the decree of this Court, therefore defendant 3 alone is liable for mesne profits in respect of the period he was in possession (excepting the period during which the property was under the management of the Court Receiver). [71E-F] (b) The contention that the possession of defendant 2 was the legal possession of an owner while that of defendant 3 was derivative possession of a lessee or licensee under the former is not correct, since at no stage, in the Courts below defendant 3 took up the position that he was in derivative possession of the property under defendant 2. Nor was there even a whisper in the pleadings that defendant 2 and defendant 3 were joint-tortfeasors and therefore jointly and severally liable for mesne profits. [69H, 70C, G] (c) There is nothing in the decree of this Court dated April 22 1958, indicating that the amount deposited by the plaintiff towards the price should have been sel off against the liability of defendant 3 for mesne profits. On the contrary, it allowed deduction of the amounts found due against defendant 1 and defendant 2 from the deposit of Rs. 85.000/- to be made by the plaintiff towards the price, and further directed that after such deduction, the balance of such deposit made by the plaintiff, if any, shall be paid to the third respondent (defendant 2) who is the assignee of the second respondent (defendant 1) pendente lite. [71F-H] (d) The plaintiff was not bound to suffer a set off in favour of defendant 3, merely because defendant 2 or his assignee withdrew the price deposited by the plaintiff without furnishing any security for its refund or adjustment towards the liability of defendant 3, there being no evidence whatever, on record to show that such withdrawal was the result of any collusion or conspiracy between the plaintiff and defendant 2 and defendant 3. Even assuming that both defendants 2 and 3 were liable for mesne profits jointly and severally, then also, the plaintiff could at his option. recover the whole of the amount of mesne profits from either of them; and how such inter se liability of the defendants was to be adjusted or apportioned was a matter between the defendants only. [72A-C] (e) Defendant 3 entered into possession of suit property under a-l assignment of sham lease from Neelakanta Iyer on March 5, 1951 during the 61 pendency of the plaintiffs suit, which was instituted on August 25, 1950. The A plaintiff had deposited Rs. 50,000/- sometimes after the presentation of the plaint. Under the agreement of the sale, dated May 22, 1950 made by defendant 1 in favour of the plaintiff, the total sale considerations was fixed @ Rs. 90,003/-. Out of it Rs 5,003/- had been paid to defendant I on the very date of the agreement. It was further stipulated that out of the balance, Rs. 50,000/- would be paid by the plaintiff-purchaser at the time of the registration of the sale deed which was to be executed and registered on or before July 15, 1950. It was further stipulated that on payment of the further sum of Rs. 50,000/- the plaintiff would be entitled to be put in possession of the suit property. Thus when defendant 3 entered into possession, first under the garb of an assignee of sham lease from Neelkanta Iyer, and then further purchased the property with his on funds in favour of defendant 2 pendente lite, he was fully conscious that he was purchasing a litigation. His possession was therefore wrongful qua the plaintiff from its inception [72E-H] (f) Disallowance of the claim for deduction for interest on the deposit of Rs. 50,000 which the plaintiff had withdrawn on August 19, 1953 and had redeposited on 9-2- 1959 is incorrect. The defendant is entitled to interest @ 6% per annum for the said period, after deduction the interest for the period during which the property was under the management of the Receiver. [74D-E] (g) The plaintiff`s claim for mesne profits @ the rate of Rs. 25,000/- has correctly been negatived. Since the plaintiff did not object to the lease granted by the Receiver to defendant 3 on an annual rental of Rs. 15,000/- and since he did not produce any other reliable evidence, the High Court was not wrong in holding that the mesne profits should be on the basis of this rental value of Rs. 15,000/- [76A-C] (h) The plaintiff, in view of the long drawn out litigation is entitled to interest @ 6% per annum upto March 29, 1959. [76E-F]
PETITIONER:L. KOCHIVAREED Vs. RESPONDENT:P. MERIAPPA GOUNDER AND ORS. DATE OF JUDGMENT07/02/1979 BENCH:SARKARIA, RANJIT SINGHBENCH:SARKARIA, RANJIT SINGHTULZAPURKAR, V.D.SEN, A.P. (J) CITATION: 1979 AIR 1214 1979 SCC (3) 150 ACT: Mesne Profits-Liability for mesne profits, principleof-Section 2(12) of the Code of Civil Procedure 1908 (Act Vof 1908). Civil Procedure Code, 1908, Order XX Rule 12-Construction of decree … Continue reading
Civil Procedure-Suit filed for recovery of possession and mesne profits-In a previous suit a decree for mesne profits was passed in respect of the same land-Whether cause of action same in both suits-Subsequent suit whether barred under provisions of the Code-Code of Civil Procedure, 1908 (Act 5 of 1908), Order 2 rr. (2) and (3). =The plaintiff-respondent brought a suit against the appel- lant for recovery of possession of certain property and for mesne profits. The plaintiff claimed recovery of possession and mesne profits on the ground that he was the absolute owner of the property described in the plaint and the defendant was in, wrongful possession of the same. In the plaint the plaintiff made reference to a previous suit that had been filed by him and his mother (C.S. 28 of 1950) wherein a claim had been made against the defendant for the recovery of the mesne profits in regard to the same property for the period ending February 1.0, 1950. In the previous suit the mense profits had been decreed. In his written statement in the present suit the defendant appellant raised a technical plea under Order 2 rule 2 of the Civil Procedure Code to the maintainability of the suit. Before evidence was led by the parties the trial court de- cided this preliminary issue raised by the defendant. The trial court held that the suit was barred under 0. 2 r. 2 of the Code. On appeal, the Appellate Court held that the plea of a bar under Order 2 rule 2, Civil Procedum Code should not have teen entertained at all because the pleadings in the earlier suit C.S. 28 of 1950 had not been filed in the present case. Therefore, the Appellate Court set aside the order of the trial Court. Against this order the defendant preferred an appeal which was dismissed by the High Court. The appellant obtained special leave against the judgment of the High Court. Hence the appeal– Held:(i) A plea under Order 2 rule 2 of the Code based on the existence of a former pleading cannot be entertained when the pleading on which it rests has not been produced. It is for this reason that a plea of a bar under 0. 2 r. 2 of the Code can be established only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the court the identity of the cause of action in the two suits. In other words a plea under 0. 2 r. 2 of the Code cannot be made out except on proof of the plaint in the previous suit the filing of which is said to create the bar. Without placing before the court the plaint in which those facts were alleged, the defendant cannot invite the court to speculate or infer by a process of deduction what those facts might be with reference to the reliefs which were then claimed. On the facts of this case it has to be held that the plea of a bar under 0, 2 r. 2 of the Code should not have been entertained at all by 832 the trial Court because the pleadings in civil suit No. 28 of 1950 were not filed by the appellant in support of this plea. (ii)in order that a plea of a bar under 0. 2 r. 2 (3) of the Code should succeed the defendant who raises the plea must make out (i) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (ii) that in respect of that cause of action the plaintiff was entitled to more that one relief (iii) that being thus entitled to more than one relief plaintiff, without leave obtained from the Court omitted to sue for the relief for which the second suit had been filed.
PETITIONER: GURBUX SINGH Vs. RESPONDENT: BHOORALAL DATE OF JUDGMENT: 22/04/1964 BENCH: AYYANGAR, N. RAJAGOPALA BENCH: AYYANGAR, N. RAJAGOPALA GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N. HIDAYATULLAH, M. GUPTA, K.C. DAS CITATION: 1964 AIR 1810 1964 SCR (7) 831 ACT: Civil Procedure-Suit filed for recovery of possession and mesne profits-In a previous suit a decree for mesne profits … Continue reading
Consent decree-Legal effect thereof-Compromise not vitiated by fraud, misrepresentation, misunderstanding or mistake-Decree passed thereon- Whether operates as res judicata- Civil Procedure Code-(Act V of 1908)–Order II, rule 2(3) -Relinquishment Of claim in a prior suit- Subsequent suit barred in respect of the claim so omitted. = It is well settled that a consent decree is as binding upon the parties thereto as a decree passed by invitum. Where a compromise is found, not to be vitiated by fraud, Misrepresentation, 100 misunderstanding or mistake, the decree passed thereon has the binding force of res judicata. Where the plaintiff confines his claim to account for a period up to a certain date only, he relinquishes his claim implicitly if not explicitly to the account for the subsequent period because Order II, rule 2 (3) of the Code of Civil Procedure lays down that if a person omits, except with the leave of the Court, to he sue for all reliefs to which he is entitled, he shall not afterwards sue for any reliefs so omitted.
PETITIONER: SHANKAR SITARAM SONTAKKE AND ANOTHER Vs. RESPONDENT: BALKRISHNA SITARAM SONTAKKE AND OTHERS. DATE OF JUDGMENT: 12/04/1954 BENCH: HASAN, GHULAM BENCH: HASAN, GHULAM MAHAJAN, MEHAR CHAND (CJ) BOSE, VIVIAN CITATION: 1954 AIR 352 1955 SCR 99 CITATOR INFO : C 1991 SC2234 (41) ACT: Consent decree-Legal effect thereof-Compromise not vitiated by fraud, misrepresentation, misunderstanding or … Continue reading
Code of Civil Procedure, 1908: s.20(c), Or. 7, rr. 10 and 11 – Territorial jurisdiction – Agreement stipulating that terms/conditions contained therein to be interpreted in accordance with laws of Hongkong – Breach of agreement – Suit filed in Delhi – Maintainability of – Held: Applicability of law is distinct and different from cause of action – Since part of cause of action arose in Delhi, suit filed in Delhi is maintainable- Application of defendant under Or. 7 rr. 10 and 11 rightly rejected by High Court. Cost – Imposed by court – On defendant for filing application to delay progress of suit – Interference with – Held: Not called for. Words and phrases: `Cause of action’ – Meaning of. The plaintiff company-respondent No.1 was incorporated under the laws of Hongkong and engaged in the business of trading PCB product under the name and style of `Prodigy Electronics’. The defendant-appellant joined plaintiff company for marketing PCB products. In September, 2004, an employment contract was entered into between the defendant and the plaintiff company. The terms of employment contract stipulated that on resignation or termination, the employee would not engage himself in a similar or competitive business for two years nor would he contact or solicit any customer or the supplier with whom the plaintiff company conducted business during the employment and that the defendant would maintain confidentiality. Clause 18 of the agreement declared that terms and conditions of the agreement would be interpreted in accordance with the laws of Hongkong. The defendant tendered his resignation and his employment came to an end in December, 2004. The plaintiff company found that the defendant contacted potential customers of the company and informed them that he was representing plaintiff company. The defendant also participated in the Trade Fair in Delhi in 2005 and used the goodwill and the trade name of the plaintiff company. The plaintiff company filed a suit in Delhi High Court for permanent and mandatory injunction against the defendant as also for damages. It also filed an application for interim injunction restraining the defendant from using the trade name `Prodigy’. The defendant filed written statement and also an application under Or. 7 rr. 10 and 11 CPC praying for rejection/return of the plaint for presentation to proper Court on the ground that the plaint disclosed no cause of action and that clause 18 of the agreement granted exclusive jurisdiction to Courts in Hongkong and on that ground also Delhi Court had no jurisdiction in the matter. The High Court dismissed the application and also imposed cost of Rs. 4000/-, holding that the agreement did not take away jurisdiction of the court and the application was filed only to delay the progress of the suit. Defendant challenged the said order by filing the present appeal. =Dismissing the appeal, the Court HELD: 1. No case has been made out by the defendant-appellant from which it can be said that Delhi Court had no jurisdiction. [Para 13] [21-B] 2.1. `Cause of action’ and `applicability of law’ are two distinct, different and independent things and one cannot be confused with the other. The expression `cause of action’ has not been defined in the Code of Civil Procedure, 1908. It is, however, settled law that every suit pre-supposes the existence of a cause of action. If there is no cause of action, the plaint has to be rejected under o.7 r.11 CPC. Cause of action means a right to sue. It consists of material facts which are imperative for the plaintiff to allege and prove to succeed in the suit. Under s.20(c) CPC, a suit would lie in a court within the local limits of whose jurisdiction the cause of action has arisen, wholly or partly. S. 20 has been designed to secure that justice must be brought as near as possible to every man’s hearthstone and that the defendant should not be put to the trouble and expense of travelling long distances in order to defend himself. [Paras 15, 20, 21] [22-A, B, C, 23-H, 24-A] 2.2. The argument of the defendant that the agreement was executed in Hong Kong and hence suit could have been instituted only in that country is not well founded. It is no doubt true that the suit could have been instituted in Hong Kong as well. That, however, does not take away the jurisdiction of Delhi Court where a part of cause of action has arisen. The defendant committed breach of terms and conditions of agreement during the Trade Fair in February, 2005 held in Pragati Maidan, Delhi. It was, therefore, open to the plaintiff Company to institute a suit in a competent Court within the jurisdiction of Delhi. So far as applicability of law is concerned, obviously as and when the suit will come up for hearing, the Court will interpret the clause and take an appropriate decision in accordance with law. It has, however, nothing to do with the local limits of the jurisdiction of the Court. [Paras 22, 31] [24-B, C, D, E, 27-B, C] British India Steam Navigation Co. Ltd. v. Shanmughavilas Cashew Industries & Ors. (1990) 3 SCC 481 – held inapplicable. British India Steam Navigation Co. Ltd. v. Shanmughavilas Cashew Industries & Ors. (1990) 3 SCC 481; A.B.C. Laminart Pvt. Ltd. v. A.P. Agencies (1989)2 SCC 163; National Thermal Power Corporation v. Singer Company & Ors. (1992) 3 SCC 551; Technip S.A. v. S.M.S. Holding (P) Ltd. & Ors. (2005) 5 SCC 465 – referred to. 3. So far as imposition of costs is concerned, normally it is in the discretion of the Court. When the Court, in the light of the facts before it, was satisfied that the defendant wanted to delay the proceedings and ordered him to pay costs of Rs.4,000/-, it would not be appropriate to interfere with that part of the order. [Para 32] [27-E, F] Manoj Swarup, Ajay Kumar and Arun Kumar Beriwal for the Appellant. Nikhil Nayyar, Ankit Singhal and TVSR Sreyaj for the Respondents.
CASE NO.: Appeal (civil) 5751 of 2007 PETITIONER: LAXMAN PRASAD RESPONDENT: PRODIGY ELECTRONICS LTD. & ANR DATE OF JUDGMENT: 10/12/2007 BENCH: C.K. THAKKER & ALTAMAS KABIR JUDGMENT: J U D G M E N T CIVIL APPEAL NO. 5751 OF 2007 ARISING OUT OF SPECIAL LEAVE PETITION (C) NO. 12405 OF 2006 C.K. THAKKER, J. … Continue reading
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