Part 09

IMPORTANT DECISIONS

Additional evidence - Can be allowed by invoking O.18.R.2 or S.151 CPC if it is really essential for just decision of the case. 2009(3) Civil Court Cases 694 (P&H)

Agreement to sell - Suit for injunction - Subsequent suit for specific performance - Not barred on ground that relief of specific performance not claimed in earlier suit. 2009(3) Civil Court Cases 615 (Kerala)

Agreement to sell - Will executed thereafter - Will comes into operation after death of testator - Execution of Will by owner does not divest his/her rights over the property - Execution of Will after execution of agreement is rendered ineffective. 2009(3) Civil Court Cases 661 (A.P.)

 Declaration - If a judgment or a decree is obtained on account of fraud or collusion, a suit for declaration is maintainable. 2009(3) Civil Court Cases 695 (Allahabad)

Defendant supporting case of plaintiff - Cannot be denied an opportunity to lead evidence. 2009(3) Civil Court Cases 752 (P&H)

 Dishonour of cheque - Company - Officer of a company - Not liable to be prosecuted by virtue of his office - Can be prosecuted only u/s 141(2) of the Act - There should be necessary averments in the complaint as to how and in what manner the accused was guilty of consent and connivance or negligence and therefore responsible under sub-section (2) of S.141 of NI Act. 2009(3) Civil Court Cases 761 (S.C.)

Easement - Right of - Not available to lay sewer line on the land of another person and discharge sewer water through it. 2009(3) Civil Court Cases 620 (Uttarakhand)

 Fraud - Suppression of a document - May amount to fraud on the Court. 2009(3) Civil Court Cases 577 (S.C.)

Immovable property - Transfer of title - An admission cannot create title in respect of immovable property - An oral release or a written letter of an original owner acknowledging another person as the owner has no value in the eye of law. 2009(3) Civil Court Cases 676 (P&H)

Marriage with a girl who has not completed 18 years of age - Marriage neither void nor voidable but only punishable u/s 18 Hindu Marriage Act - Husband is the natural guardian who is entitled to her custody. 2009(3) Civil Court Cases 716 (A.P.)

Mutation - Upheld by civil court - Certainly confers title. 2009(3) Civil Court Cases 633 (P&H)

Partition - Private partition - Non affirmation by revenue officer - Does not render a private partition redundant. (P&H) 699

 Partnership - Dissolution - Arbitration clause qua dispute inter se the partners - Such a clause does not include the dissolution of partnership deed. 2009(3) Civil Court Cases 649 (P&H)

Plaint - Amendment - Circumstances happening after filing of plaint - Amendment allowed. 2009(3) Civil Court Cases 771 (Delhi)

Rejection of plaint - Jurisdiction of Court - There is no need to issue summons to defendant when Court after going through the plaint finds that it has no jurisdiction. 2009(3) Civil Court Cases 720 (Delhi)

Rejection of plaint - Undervaluation of suit - Plaintiff be allowed to rectify the defect and only upon his failure to do so Court is to reject the plaint. 2009(3) Civil Court Cases 670 (Allahabad)

 Sale - Without consideration is void but sale is not void when payment of consideration is by a person who has no capacity to pay consideration. 2009(3) Civil Court Cases 661 (A.P.)

Stamp - Cancellation - Signature on stamp only - Document to be treated not stamped at all - Such document is inadmissible in evidence. 2009(3) Civil Court Cases 747 (A.P.)

Written statement - Non filing within time fixed - Pronouncement of judgment - Court to go into maintainability of suit particularly when suit is instituted by a firm and this fact is brought to the notice of Court that suit by un unregistered partnership firm is not maintainable. 2009(3) Civil Court Cases 627 (Allahabad)

SUBJECT INDEX

Admission

Admission - An admission is the best piece of evidence - An admission cannot be treated to be conclusive and a party making an admission can explain the same - However, there is an exception to the aforesaid rule - Where an admission of a party amounts to an estoppel, it shall be conclusive and binding upon him - The evaluation of weightage to be given to an admission shall depend upon the facts and circumstances of each case. 2009(3) Civil Court Cases 633 (P&H)

Adverse possession

Adverse possession - To claim adverse possession, there must be a specific pleading by the parties, who assert such right, and there must be sufficient proof to show that they perfected title by adverse possession. 2009(3) Civil Court Cases 792 (A.P.)

Agreement to sell

Agreement to sell - Admission of execution by executant - Co-defendants who claim right and interest in the same property may not challenge admission made by executant though they can oppose specific performance of such agreement of sale on other grounds - They cannot challenge the very execution of agreement. 2009(3) Civil Court Cases 661 (A.P.)

Agreement to sell - Admission of execution by executant - When execution of agreement of sale by its executant is admitted, it need not be proved by vendee. 2009(3) Civil Court Cases 661 (A.P.)

Agreement to sell - Execution of gift deed thereafter - Non acceptance of gift by donees - Not a valid gift - Even if property passed on to donees they are bound to execute sale deed in fulfillment of vendor's obligation under agreement to sell. 2009(3) Civil Court Cases 661 (A.P.)

Agreement to sell - Execution of Will thereafter - A Will executed by a testator comes into operation only after the death of the testator - Before his/her death, testator always enjoy property with all alienable rights - Execution of Will by owner does not divest his/her rights over the property - Execution of Will after execution of agreement is rendered ineffective - In case any other property is bequeathed under the Will, legatees would certainly, subject to proof of Will succeed to such property excluding property which is subject matter of suit property. 2009(3) Civil Court Cases 661 (A.P.)

Agreement to sell - Joint property - Agreement executed by one co-sharer on behalf of other co-sharers also without their authority - Held, vendor is bound by the agreement and decree for specific performance can be granted to the extent of his share. 2009(3) Civil Court Cases 609 (P&H)

Agreement to sell - Specific performance - Agreement entered into by husband - Once it is proved that plaintiff was not signatory to the agreement, the same could not be enforced by way of specific performance. 2009(3) Civil Court Cases 737 (P&H)

Agreement to sell - Specific performance - Agreement to sell registered - Attesting witness supporting the case of plaintiff - Defendant failing to prove that agreement is only a security deed - One witness examined by defendant deposing that agreement was written as security for loan he borrowed from plaintiff but failed to substantiate the same by producing corroborative evidence - There is no pleading that defendant signed blank stamp papers at the instance of plaintiff - No other material on record to show that defendant has not executed the agreement - Plaintiff completed his obligations under the agreement which shows his readiness and willingness - Trial Court decreed the suit which was upheld by first appellate Court - Upheld. 2009(3) Civil Court Cases 622 (Karnataka)

Agreement to sell - Specific performance - Normal rule is to allow the specific performance and it is only in rare circumstances that the said relief may be denied. 2009(3) Civil Court Cases 774 (P&H)

Agreement to sell - Specific performance - Ready and willing - Act and conduct - Defendant issued notice to plaintiff showing willingness to carry out the execution of sale deed - Plaintiff replied by clearly expressing himself against the execution of sale deed and that he is interested only in return of amount - Held, plaintiff by his act and conduct has clearly expressed himself against the execution of sale deed and the only conclusion that can be derived from this is that he was not willing to perform his part of the agreement. 2009(3) Civil Court Cases 644 (P&H)

Agreement to sell - Specific performance - Ready and willing - Plaintiff completed his obligations under the agreement - There is thus no question left as to whether plaintiff was ready and willing to perform his part of the contract - It was for the defendant to complete the transaction. 2009(3) Civil Court Cases 622 (Karnataka)

Agreement to sell - Specific performance - Ready and willing - Ready with balance sale consideration - Plaintiff not required to prove - However, when a person pleads that he was present in the office of Sub Registrar with the balance amount on the date fixed, then this aspect of the matter assumes significance. 2009(3) Civil Court Cases 644 (P&H)

Agreement to sell - Suit for specific performance - Defences thereto - Can be many - Executant of agreement may deny execution or allege fraud and misrepresentation vitiating such execution - In addition to this other grounds as per Ss.12, 14, 15, 16 and 19 of Specific Relief Act are also available - Subsequent purchasers may also take such pleas - However, once execution is admitted by paramount owner, others cannot ordinarily be permitted to impeach agreement. 2009(3) Civil Court Cases 661 (A.P.)

Arbitration and Conciliation Act, 1996

Arbitration and Conciliation Act, 1996, S.8, Partnership Act, 1932, S.44 - Partnership - Dissolution - Arbitration clause - Arbitration clause qua dispute inter se the partners - Held, such a clause does not include the dissolution of partnership deed - Question of dissolution can be decided by Arbitrator only if the arbitration clause so provides. 2009(3) Civil Court Cases 649 (P&H)

Arbitration and Conciliation Act, 1996, S.8, Partnership Act, 1932, S.44 - Partnership - Dissolution - Arbitration clause - Dissolution sought on just and equitable ground and not as per terms of partnership deed - Matter cannot be referred to arbitrator. 2009(3) Civil Court Cases 649 (P&H)

Attorney holder

Attorney holder - Cannot appear and depose as a witness on behalf of the principal in the matter of his personal knowledge - He can only appear as a witness in his own capacity to depose with regard to the acts done by him on behalf of the principal. 2009(3) Civil Court Cases 638 (P&H)

Civil Procedure Code, 1908

Civil Procedure Code, 1908, S.10 - Pendency of execution proceedings in the previously instituted suit is not a ground to stay the subsequent suit. 2009(3) Civil Court Cases 785 (Kerala)

Civil Procedure Code, 1908, S.19 - "Wrong was done" - Meaning - "Wrong" involves the violation of one's right - "Wrong done" includes the effect of the act and the resultant damage - If the act does not lead to any consequence or damage, such act may not be actionable - "Wrong done" occurring in S.19 CPC should be understood as including the effect of the act. 2009(3) Civil Court Cases 677 (Kerala)

Civil Procedure Code, 1908, S.21 - Territorial jurisdiction - Issue - To be decided before the trial starts - It is not proper to return the plaint after finding during trial that Court has no jurisdiction. 2009(3) Civil Court Cases 677 (Kerala)

Civil Procedure Code, 1908, S.21 - Territorial jurisdiction - Objection as to - Can be waived either expressly or impliedly - An implied waiver can be gathered by the conduct of the party who is said to have waived the right. 2009(3) Civil Court Cases 677 (Kerala)

Civil Procedure Code, 1908, S.100 - Second appeal - Lack of jurisdiction of Court - Plea can be raised for the first time in second appeal. 2009(3) Civil Court Cases 703 (Allahabad)

Civil Procedure Code, 1908, S.151 - Consolidation of suits - Common defence set up by defendant in all the three suits - To save precious time of Court and to avoid inconvenience to the parties, consolidation of three suits allowed. (Kerala) 655

Civil Procedure Code, 1908, S.151 - Consolidation/joint trial of suits - While considering joint trial too much significance is not to be given to the fact as to whether the contesting parties are the same and determination of the rights of the parties arising under the two suits are the same or intimately connected - Determining factor is the convenience of Court and the parties and avoiding loss of precious time of the Courts, repetition of the same evidence and possibility of conflicting decisions arising from multiplicity of suit in separate trial. 2009(3) Civil Court Cases 655 (Kerala)

 Civil Procedure Code, 1908, Ss.151, 10 - Consolidation of suits - There are much similarities as between the conditions prescribed for stay of suit u/s 10 CPC and consolidation of two suits but it is not possible to say that the conditions under the former have to be satisfied in consolidation of suits. 2009(3) Civil Court Cases 655 (Kerala)

Civil Procedure Code, 1908, S.152 - Decree - Amendment - Order passed in an application for violation and breach of injunction whereby order of imprisonment and restoration of possession set aside - Held, this order does not go to the benefit of J.D. - Decree passed for restoration of possession needs no amendment. 2009(3) Civil Court Cases 754 (Rajasthan)

Civil Procedure Code, 1908, O.1.R.10 O.6.R.17 - Amendment of plaint and addition of a party - Necessary pleadings already made and same neither to be subtracted nor modified by amendment sought - Impleadment of party not to enlarge the relief claimed nor the same extending period of limitation - Impleadment only removes the legal lacuna, if any - Amendment allowed. 2009(3) Civil Court Cases 646 (Allahabad)

Civil Procedure Code, 1908, O.1.R.10, O.6.R.17 - Amendment of plaint and impleadment of a party - Non mention of O.1.R.10 in the application - Still application has to be treated as composite application U.O.6.R.17 & O.1.R.10 CPC - Non mention of provision of law does not make the application defective or fatal to the decision of the said application. 2009(3) Civil Court Cases 646 (Allahabad)

Civil Procedure Code, 1908, O.1.R.10, Transfer of Property Act, 1882, S.52 - Impleading of a party - Transferee pendente lite - Can be added as a proper party to protect his interest. 2009(3) Civil Court Cases 606 (Bombay)

Civil Procedure Code, 1908, O.2.R.2 - Agreement to sell - Injunction suit filed when cause of action to file suit for specific performance had accrued - Subsequently suit for specific performance filed - Held, suit for specific performance filed is barred U.O.2.R.2 CPC. 2009(3) Civil Court Cases 737 (P&H)

Civil Procedure Code, 1908, O.2.R.2 - Agreement to sell - Suit for injunction - Subsequent suit for specific performance - Not barred on ground that relief of specific performance not claimed in earlier suit - Cause of action in both the suits is different - Cause of action in a suit for injunction is apprehension of encumbrance or alienation whereas in a suit for specific performance it is default of defendant to perform his part of contract - Held, suit for specific performance is not barred U.O.2.R.2 CPC. 2009(3) Civil Court Cases 615 (Kerala)

Civil Procedure Code, 1908, O.6.Rr.1, 2 - Pleadings - Court cannot adjudicate upon claim of parties which is not put forth before it in their pleadings. 2009(3) Civil Court Cases 759 (P&H)

Civil Procedure Code, 1908, O.6.R.17, Court Fees Act, 1899, S.6(5) (As in U.P.) - Plaint - Amendment sought to pay the proper Court fee - Amendment allowed - Held, once deficiency of Court fee is made good within time allowed by Court, the date of institution of the suit would be deemed to be the date on which the suit was filed. 2009(3) Civil Court Cases 670 (Allahabad)

Civil Procedure Code, 1908, O.6.R.17, O.1.R.10 - Amendment of plaint and impleadment of a party - Non mention of O.1.R.10 in the application - Still application has to be treated as composite application U.O.6.R.17 & O.1.R.10 CPC - Non mention of provision of law does not make the application defective or fatal to the decision of the said application. 2009(3) Civil Court Cases 646 (Allahabad)

Civil Procedure Code, 1908, O.6.R.17 - Plaint - Amendment - Allowed - Cost imposed - Non payment of cost within time - Held, amendment was not allowed subject to payment of cost - Cost was imposed upon the amendment being allowed - If cost was not paid, it is open to the other party to recover same in accordance with law but non payment of cost will not affect the amendment. 2009(3) Civil Court Cases 670 (Allahabad)

Civil Procedure Code, 1908, O.6.R.17 - Plaint - Amendment - Amendments to plead material facts left by oversight and which does not cause prejudice to other side would be allowed. 2009(3) Civil Court Cases 771 (Delhi)

Civil Procedure Code, 1908, O.6.R.17 - Plaint - Amendment - Can be made at any stage of the proceedings for sufficient cause to be shown - Amendment could also be allowed even after the suit is decided in an appeal. 2009(3) Civil Court Cases 646 (Allahabad)

Civil Procedure Code, 1908, O.6.R.17 - Plaint - Amendment - Court should be liberal in the matter of allowing amendment unless serious injustice or irreparable loss is caused to the other side - Courts exist to decide the rights of the parties and not to punish them for the mistakes they make in the conduct of their cases. 2009(3) Civil Court Cases 771 (Delhi)

Civil Procedure Code, 1908, O.6.R.17 - Plaint - Amendment - Courts cannot go into the truth or falsity or maintainability of the case in amendment. 2009(3) Civil Court Cases 771 (Delhi)

Civil Procedure Code, 1908, O.6.R.17 - Plaint - Amendment - Once an amendment is allowed, the said amendment is deemed to have been incorporated from the date of presentation of the plaint itself. 2009(3) Civil Court Cases 670 (Allahabad)

Civil Procedure Code, 1908, O.6.R.17 - Plaint - Amendment - Subsequent events - Circumstances happening after filing of plaint - Amendment allowed. 2009(3) Civil Court Cases 771 (Delhi)

Civil Procedure Code, 1908, O.6.R.17 - Plaint - Amendment - Where pleadings are defective, amendment would be allowed. 2009(3) Civil Court Cases 771 (Delhi)

 Civil Procedure Code, 1908, O.6.R.17 & O.1.R.10 - Amendment of plaint and addition of a party - Necessary pleadings already made and same neither to be subtracted nor modified by amendment sought - Impleadment of party not to enlarge the relief claimed nor the same extending period of limitation - Impleadment only removes the legal lacuna, if any - Amendment allowed. 2009(3) Civil Court Cases 646 (Allahabad)

Civil Procedure Code, 1908, O.7.R.11, O.23.R.1(4), O.2.R.2 - Second suit filed on the same cause of action during pendency of first suit - Withdrawal of first suit without permission to file a fresh suit on the same cause of action - First suit was likely to be dismissed U.O.7.R.11(e) for not filing duplicate copies of plaint as a plea to this effect was raised by defendant in his written statement - O.23.R.1 is not applicable in a case where a second suit is filed during the pendency of the first suit - Rejection of plaint U.O.7.R.11 does not debar of filing a fresh suit on the same cause of action - Held, second suit is not debarred. 2009(3) Civil Court Cases 690 (P&H)

Civil Procedure Code, 1908, O.7.R.11 - Rejection of plaint - Filing of written statement is not necessary to decide application U.O.7.R.11 CPC. 2009(3) Civil Court Cases 613 (Rajasthan)

Civil Procedure Code, 1908, O.7.R.11 - Rejection of plaint - It is duty of Court to reject plaint if plaint does not disclose a cause of action or if it is beyond the jurisdiction of the Court. 2009(3) Civil Court Cases 720 (Delhi)

Civil Procedure Code, 1908, O.7.R.11 - Rejection of plaint - Jurisdiction of Court - There is no need to issue summons to defendant when Court after going through the plaint finds that it has no jurisdiction. 2009(3) Civil Court Cases 720 (Delhi)

Civil Procedure Code, 1908, O.7.R.11 - Rejection of plaint - Undervaluation of suit - Plaint not to be rejected straightaway - Plaintiff is allowed to rectify the defect and only upon its failure to do so Court is to reject the plaint. 2009(3) Civil Court Cases 670 (Allahabad)

Civil Procedure Code, 1908, O.8.R.1 - Written statement - To be filed within a maximum period of 90 days from the date of service of summons - However, extension of time can be granted in exceptional circumstances. 2009(3) Civil Court Cases 627 (Allahabad)

Civil Procedure Code, 1908, O.8.Rr.1, 5 & 10 - Written statement - Not filed within time fixed - Court exercising its discretion to pronounce judgment ex parte - Discretion exercised not proper and rational as there were no reasons for refusing to grant further time and there was no necessity to pronounce the judgment when suit had hardly lived for three months and time granted to file written statement was twice only whereas Court itself took more than four months in pronouncing judgment after it was reserved. 2009(3) Civil Court Cases 627 (Allahabad)

Civil Procedure Code, 1908, O.8.Rr.1, 5 & 10 - Written statement - When not presented within time permitted or fixed - Two options with Court are either to pronouncement judgment or to make such order in relation to the suit as it thinks fit - Court in its discretion can choose either of the two options - In exercising such a discretion Court has necessarily to be guided by sound judicial principles and cannot act arbitrary in either pronouncing judgment or in passing any such order as it thinks fit and proper. 2009(3) Civil Court Cases 627 (Allahabad)

Civil Procedure Code, 1908, O.8.R.10 - Written statement - Non filing within time fixed - Pronouncement of judgment - Court to go into maintainability of suit particularly when suit is instituted by a firm and this fact is brought to the notice of Court that suit by un unregistered partnership firm is not maintainable. 2009(3) Civil Court Cases 627 (Allahabad)

 Civil Procedure Code, 1908, O.13.R.3, Stamp Act, 1899, S.2(11) - Duly stamped - Payment of stamp duty - Not a matter confined to litigating parties - Court is under an obligation to take care of the same. 2009(3) Civil Court Cases 680 (Calcutta)

Civil Procedure Code, 1908, O.13.Rr.3,4, Stamp Act, 1899, Ss.38(1), 33 - Duly stamped - Document tendered in evidence - Objection raised by other party that document is insufficiently stamped - Court assumes jurisdiction to impound the document - Duty of Court to assess the duty and penalty - Option is with the party either to accept the assessment made by Court or may request for sending the document to Collector - If document is sent to Collector, it cannot be admitted in evidence till amount assessed is paid. 2009(3) Civil Court Cases 680 (Calcutta)

Civil Procedure Code, 1908, O.18.R.2, Evidence Act,1872, S.137 - Defendant supporting case of plaintiff - Cannot be denied an opportunity to lead evidence - However, to safeguard interest of contesting defendant, his witnesses to be cross examined first by plaintiff and then by contesting defendant. 2009(3) Civil Court Cases 752 (P&H)

Civil Procedure Code, 1908, O.18.R.2, S.151 - Additional evidence - Can be allowed by invoking O.18.R.2 or S.151 CPC if it is really essential for just decision of the case. 2009(3) Civil Court Cases 694 (P&H)

Civil Procedure Code, 1908, O.18.R.2 - Defendant supporting case of plaintiff - Cannot be denied an opportunity to lead evidence - A person who is arrayed as a party has every right to tender his evidence. 2009(3) Civil Court Cases 752 (P&H)

Civil Procedure Code, 1908, O.20.R.12, East Punjab Urban Rent Restriction Act, 1949, S.13 - Eviction order - Appeal against - Payment of mesne profits - Appellate Authority has jurisdiction to fix mesne profits payable - Order of payment of mesne profits has to be based on some material - Appellate Authority has to arrive at a prima facie finding as to what was the agreed rent between the parties - Order fixing mesne profits at Rs.one lakh arbitrarily set aside - Matter remitted back for decision afresh. 2009(3) Civil Court Cases 616 (P&H)

 Civil Procedure Code, 1908, O.21.R.72-A, Partition Act, 1893, S.6 - Partition - Sale without fixing reserve price is impermissible. 2009(3) Civil Court Cases 577 (S.C.)

 Civil Procedure Code, 1908, O.22.Rr.3, 9, S.100 - Second appeal - Two appellants - Death of one - Appeal abated against one - In case appeal is decided on merits there will be inconsistent decrees - Appeal dismissed in its entirety. 2009(3) Civil Court Cases 715 (Allahabad)

Civil Procedure Code, 1908, O.23.R.1 - Provision of O.23.R.1 CPC is not applicable in a case where a second suit is filed during the pendency of the first suit and the first suit is withdrawn thereafter on account of a technical objection raised by the opposite party. 2009(3) Civil Court Cases 690 (P&H)

Civil Procedure Code, 1908, O.23.R.3 - Consent decree - Setting aside - Remedy available is to approach the Court which passed the consent decree. 2009(3) Civil Court Cases 720 (Delhi)  �3e �3
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 Civil Procedure Code, 1908, O.37.Rr.3(6)(b) and 1(2) - Summary suit - Summons for judgment - When the summons for Judgment is decided on merits and when defendant is directed to deposit certain amount of money as a condition precedent and is ordered to file written statement subject to compliance of those directions, Court wants that defendant should comply with those terms and conditions - If defendant does not comply with the order passed at the stage of disposal of summons for Judgment in Order 37, it will be deemed that the defendant has no defence and that the case of the plaintiff is required to be decided on merits. 2009(3) Civil Court Cases 600 (Bombay)

Civil Procedure Code, 1908, O.39.R.2-A - Violation and disobedience of order of injunction - Order as to restoration of status quo ante without order of attachment of property - Held, order though not improper yet in order to bring the order in conformity with O.39.R.2-A CPC the same modified to the effect that property of contemner shall remain attached for one year during which he must comply with orders as passed failing which property can be sold. 2009(3) Civil Court Cases 748 (Rajasthan)

Civil Procedure Code, 1908, O.4-A (As in U.P.) - Consolidation of suits - When two or more suits or proceedings are pending in the same court, and the court is of opinion that it is expedient in the interest of justice, it may by order direct their joint trial, whereupon all such suits and proceedings may be decided upon the evidence in all or any such suits or proceedings. 2009(3) Civil Court Cases 770 (Allahabad) (DB)

Civil Procedure Code, 1908, O.41.R.27, Evidence Act, 1872, Ss.65, 66 - Additional evidence in second appeal - Affidavit - Proof of affidavit by way of secondary evidence - For additional evidence party has to make out a strong case - By exercise of due diligence, defendant could have proved the affidavit in the trial Court - Affidavit not required by Court for pronouncing proper judgment and also not required for any other substantial cause - No guarantee that affidavit has been actually executed by plaintiff - Defendant could have produced a photostat copy of the affidavit in the trial Court - In the absence of the original, there is no guarantee that photostat copy was of the original affidavit allegedly executed by plaintiff - Both the applications dismissed. 2009(3) Civil Court Cases 759 (P&H)

 Civil Procedure Code, 1908, O.41.R.27 - Additional evidence at appellate stage - Circumstances under which additional evidence can be adduced are : (i) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted; (ii) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within the knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed; (iii) the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause. 2009(3) Civil Court Cases 787 (S.C.)

Consumer Protection Act, 1986

 Consumer Protection Act, 1986, Ss.19 & 21, Civil Procedure Code, 1908, O.9.R.13 - Exparte order - Setting aside - Sought on the ground that exparte order was passed by National Commission as counsel of appellant returned the brief to appellant without informing the date of hearing - Factual position not disputed - Exparte order set aside. 2009(3) Civil Court Cases 708 (S.C.)

Contract Act, 1872

 Contract Act, 1872, S.17 - Fraud - Suppression of a document - May amount to fraud on the Court. 2009(3) Civil Court Cases 577 (S.C.)

Criminal Procedure Code, 1973

Criminal Procedure Code, 1973, S.125 - Maintenance - From daughter-in-law - Only son of respondent No.1 died - Daughter-in-law got employment on compassionate ground after death of her husband on an undertaking that she will take care of respondent No.1 - Respondent No.1 aged more than 65 years and not able to maintain herself and has no source of livelihood - Order granting maintenance at the rate of Rs.1,000/- per month upheld. 2009(3) Civil Court Cases 687 (Bombay)

Criminal Procedure Code, 1973, S.127 - Maintenance - Enhancement - Application for enhancement of maintenance need not necessarily be filed before the same Court which passed the order of maintenance - An application for enhancement of maintenance can be filed before any Court of competent jurisdiction. 2009(3) Civil Court Cases 733 (Kerala)

Document

Document - Cancellation - Parties basing their title on a particular document - Opposite party disputing genuineness of the document - Burden is on the party who relies on the document to establish that it is a true and valid document and binding on the opposite party - Held, there is no need for the plaintiffs to file a suit for cancellation of that document. 2009(3) Civil Court Cases 792 (A.P.)

Easements Act, 1882

Easements Act, 1882, S.15 - Right of easement - Claim for easementary right for passage and simultaneously stating that a sewer line is laid in the disputed land of the defendants - Using the land as Rasta land openly, peacefully and without interruption as of right for 20 years can be acquired by way of prescription but under the garb of such right laying sewer line in the land of another person cannot be allowed. 2009(3) Civil Court Cases 620 (Uttarakhand)

Easements Act, 1882, S.15 - Right of easement - No easementary right accrues to lay sewer line on the land of another person and discharge sewer water through it - No permanent construction made by plaintiff over the land of another person can be indirectly declared lawful under the garb of easementary right of passage. 2009(3) Civil Court Cases 620 (Uttarakhand)

Easements Act, 1882, S.15 - Right of easement - Right of way or any other easement can be acquired by way of prescription provided the land of the servient owner has been used peacefully, openly, as of right, without interruption, for 20 years, by the dominant owner. 2009(3) Civil Court Cases 620 (Uttarakhand)

East Punjab Urban Rent Restriction Act, 1949

 East Punjab Urban Rent Restriction Act, 1949, S.11 - Use of a residential building for commercial purposes - A tenant or a landlord is not permitted to convert a residential premises situated in a residential area for commercial use without permission of Rent Controller. 2009(3) Civil Court Cases 778 (S.C.)

East Punjab Urban Rent Restriction Act, 1949, S.13, Civil Procedure Code, 1908, O.20.R.12 - Eviction order - Appeal against - Payment of mesne profits - Appellate Authority has jurisdiction to fix mesne profits payable - Order of payment of mesne profits has to be based on some material - Appellate Authority has to arrive at a prima facie finding as to what was the agreed rent between the parties - Order fixing mesne profits at Rs.one lakh arbitrarily set aside - Matter remitted back for decision afresh. 2009(3) Civil Court Cases 616 (P&H)

East Punjab Urban Rent Restriction Act, 1949, S.13 - Eviction petition - Landlady claimed to be exclusive owner - Even if landlady is co-owner even then she is entitled to seek eviction of a tenant - Mere fact that the landlady has asserted herself to be an exclusive owner in the eviction proceedings, does not make the eviction petition not maintainable. 2009(3) Civil Court Cases 658 (P&H)

East Punjab Urban Rent Restriction Act, 1949, S.13 - Eviction petition - Landlady conveyed her intention to sell property - When a litigant is before the Court for number of years, different thoughts come to the mind of the litigant but the same is not sufficient to return a finding that the landlady has no bona fide personal requirement. 2009(3) Civil Court Cases 658 (P&H)

 East Punjab Urban Rent Restriction Act, 1949, Ss.13, 11 & 19 - Use of a residential building for commercial purposes - Permission as required u/s 11 of the Act to convert the use of a residential building for commercial use not obtained - Violation of S.11 of the Act - Held, when there is violation of S.11 of the Act then both the Sections viz. S.13 & S.19 of the Act can be applied - On such violation tenant or landlord can be punished with fine u/s 19 of the Act and at the same time tenant can be evicted u/s 13(2)(ii)(b) of the Act if the conditions laid down in the said sections are satisfied. 2009(3) Civil Court Cases 778 (S.C.)

 East Punjab Urban Rent Restriction Act, 1949, Ss.19, 11, 13(2)(ii)(b) - Use of residential building for commercial purposes - Permission of Rent Controller u/s 11 of the Act which is mandatory not obtained - Tenant is liable to eviction - Besides this landlord and tenant is also liable to be fined u/s 19 of the Act - In such a case both sections viz. S.13(2)(ii)(b) and S.19 apply - S.19 of the Act gives an additional right to the authorities to impose penalty if a person contravenes the provisions of S.11 of the Act. 2009(3) Civil Court Cases 778 (S.C.)

Electricity

 Electricity - Tenant - Appellant in possession of suit premises claiming to be a tenant not in dispute - Question whether appellant is a tenant or not shall be gone into at the time of disposal of the suit when parties lead evidence in support of their respective case - Held, electric supply to the premises in question should be restored. 2009(3) Civil Court Cases 718 (S.C.)

Evidence Act, 1872

Evidence Act, 1872, S.58 - Agreement to sell - Admission of execution by executant - When execution of agreement of sale by its executant is admitted, it need not be proved by vendee. 2009(3) Civil Court Cases 661 (A.P.)

Evidence Act, 1872, S.60 - Attorney holder cannot appear and depose as a witness on behalf of the principal in the matter of his personal knowledge - He can only appear as a witness in his own capacity to depose with regard to the acts done by him on behalf of the principal. 2009(3) Civil Court Cases 638 (P&H)

Evidence Act, 1872, Ss.63, 65 - Secondary evidence - A copy of a copy, which is not compared with the original, cannot be received as secondary evidence and such copy is inadmissible in evidence as per Illustration (d) of Section 63 of the Act - In the absence of material to that effect that a copy made from a copy has been so compared is not admissible. 2009(3) Civil Court Cases 792 (A.P.)

Evidence Act, 1872, S.114 - Adverse inference - Plaintiff abstaining or keeping himself off the witness box - An adverse inference has to be drawn. 2009(3) Civil Court Cases 638 (P&H)

Evidence Act,1872, S.137, Civil Procedure Code, 1908, O.18.R.2 - Defendant supporting case of plaintiff - Cannot be denied an opportunity to lead evidence - However, to safeguard interest of contesting defendant, his witnesses to be cross examined first by plaintiff and then by contesting defendant. 2009(3) Civil Court Cases 752 (P&H)

Family Courts Act, 1894

Family Courts Act, 1894, Ss.15, 16 - Evidence - Oral and formal - Recording of - Evidence of only formal character can be permitted to be given on affidavit - Substance of oral evidence alone has to be recorded - Oral evidence cannot be permitted to be given on affidavit. 2009(3) Civil Court Cases 684 (Allahabad)

Family settlement

Family settlement - Decree on the basis of family settlement - Does not require registration. 2009(3) Civil Court Cases 786 (P&H)

Family settlement - Joint property - Partition - All the members entitled to a share must be represented either expressly or impliedly in partition proceedings, may be in a private partition or partition through Court - Land is still joint as all the members of the family were not party to the alleged family settlement. 2009(3) Civil Court Cases 699 (P&H)

Hindu Marriage Act, 1955

Hindu Marriage Act, 1955, Ss.5, 11, 12 & 18, Hindu Minority and Guardianship Act, 1956, S.6 - Marriage with a girl who has not completed 18 years of age - Marriage neither void nor voidable but only punishable u/s 18 Hindu Marriage Act - Husband is the natural guardian who is entitled to her custody. 2009(3) Civil Court Cases 716 (A.P.)

Hindu Minority and Guardianship Act, 1956

Hindu Minority and Guardianship Act, 1956, S.6, Hindu Marriage Act, 1955, Ss.5, 11, 12 & 18 - Marriage with a girl who has not completed 18 years of age - Marriage neither void nor voidable but only punishable u/s 18 Hindu Marriage Act - Husband is the natural guardian who is entitled to her custody. 2009(3) Civil Court Cases 716 (A.P.)

Mutation

Mutation - Upheld by civil court - Certainly confers title. 2009(3) Civil Court Cases 633 (P&H)

Negotiable Instruments Act, 1881

Negotiable Instruments Act, 1881, Ss.4, 67 - Pronote - Cutting and overwriting - Overwritings denied by scribe - Held, these can be deemed to be introduced later on. 2009(3) Civil Court Cases 638 (P&H)

Negotiable Instruments Act, 1881, Ss.4, 67 - Pronote - Material alteration - Plaintiff to explain as to when and how alteration was made - In absence of such explanation, plaintiff must fail and onus is on him to show that material alteration was made either with the consent of parties or in order to effectuate common intention of parties - In absence of such plea, presumption is that material alteration was made subsequent to execution of document - Promissory note is thus void and the same cannot be enforced in Court of law. 2009(3) Civil Court Cases 638 (P&H)

Negotiable Instruments Act, 1881, Ss.4, 67 - Pronote - Material alterations - Alteration may be material by change of date, time and place of payment or by change in the sum payable or its medium or in the interest to be paid or it may be as affecting the number or relation of parties or legal character of instrument - Effect of material alteration is that it renders the instrument void. 2009(3) Civil Court Cases 638 (P&H)

 Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Firm - Managing partner concerned with the affairs and management of the firm alone can be prosecuted without prosecuting the firm. 2009(3) Civil Court Cases 603 (A.P.)

Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Firm - Prosecution of firm, managing partner and other partners of the firm - Finding of trial Court that managing Partner alone was responsible for commission of offence u/s 138 of the Act - Managing partner alone convicted - Held, it is permissible in law despite the fact that remaining partners concerned with affairs of firm were also arrayed as accused. 2009(3) Civil Court Cases 603 (A.P.)

Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Hand loan of Rs.3 lakhs against which three cheques of Rs.1 lakh each issued - Two of the cheques dishonoured - Plea of accused that cheques were given as security for repayment of loan of Rs.1 lakh - Does not appeal to reason - Improbable and not supported by material - Evidence on record clearly establishing that accused issued three cheques towards repayment of loan and not as security - Conviction upheld. 2009(3) Civil Court Cases 672 (Orissa)

 Negotiable Instruments Act, 1881, Ss.138, 141 - Company - Managing Director/Joint Managing Director by virtue of their office are in charge of and responsible for the conduct of business of the company - They are liable even in absence of a specific averment against them - In case of director or an officer of company who signed the cheque on behalf of company they can be prosecuted even in absence of a specific averment - In the case of Director, Secretary or Manager, an averment in complaint that he was in charge of, and was responsible to the company for the conduct of the business of the company is necessary - Other officers of the company can be prosecuted u/s 141(2) of the Act by averring in the complaint their position and duties in the company and their role in regard to the issue and dishonour of the cheque, disclosing consent, connivance or negligence. 2009(3) Civil Court Cases 761 (S.C.)

 Negotiable Instruments Act, 1881, Ss.138, 141 - Company - Prosecution of Director of a company - Complaint to state how a Director who is sought to be made an accused, was in charge of the business of the company - In case of non director officers there is all the more need to state what his part is with regard to conduct of business of the company and how and in what manner he is liable. 2009(3) Civil Court Cases 761 (S.C.)

 Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, S.482 - Dishonour of cheque - Company - Petitioner arrayed as a party on account of some misunderstanding - Complainant having no objection if complaint against petitioner is quashed - Complaint qua petitioner quashed. 2009(3) Civil Court Cases 698 (Delhi)

 Negotiable Instruments Act, 1881, S.141(2) - Vicarious liability - Officer of a company - Not liable to be prosecuted by virtue of his office - Can be prosecuted only u/s 141(2) of the Act - Mechanical reproduction of S.141(1) is not sufficient - It is required that there should be necessary averments in the complaint as to how and in what manner the accused was guilty of consent and connivance or negligence and therefore responsible under sub-section (2) of S.141 of the Act. 2009(3) Civil Court Cases 761 (S.C.)

Partition

Partition - Civil suit - Suit for partition between family members of landholder is maintainable in civil court. 2009(3) Civil Court Cases 792 (A.P.)

Partition - Mere fact that the parties are in separate possession of the land does not imply that the land had been duly partitioned amongst them. 2009(3) Civil Court Cases 699 (P&H)

Partition - Private partition - Non affirmation by revenue officer - Does not render a private partition redundant. 2009(3) Civil Court Cases 699 (P&H)

Partition - Suit filed claiming half share based on a Will - Plea of defendants that testatrix had no subsisting right as she executed a release deed - Will duly proved - Release deed obtained from testatrix without her knowledge and with false recitals - Held, no right accrues on the basis of such release deed - Testatrix had subsisting rights over half of plaint schedule properties which she transferred in favour of plaintiffs under the Will - Preliminary decree for partition of half share of properties passed by trial Court - Upheld. 2009(3) Civil Court Cases 792 (A.P.)

Partition Act, 1893

 Partition Act, 1893, Ss.2, 3, Civil Procedure Code, 1908, O.21.R.90 - Auction - If any auction takes place by fraud or collusion the same is non est in the eyes of law. 2009(3) Civil Court Cases 577 (S.C.)

 Partition Act, 1893, Ss.2, 3 - Partition - Sale of property - Valuation of property is necessary - Once the provisions of Partition Act are applicable then keeping in view the legal principles attracting construction of Ss.2 & 3 thereof, no deviation, is permissible. 2009(3) Civil Court Cases 577 (S.C.)

 Partition Act, 1893, Ss.2, 3 - Partition - When a property is put to auction in a suit for partition, the provisions of the Partition Act shall apply. 2009(3) Civil Court Cases 577 (S.C.)

 Partition Act, 1893, S.6, Civil Procedure Code, 1908, O.21.R.72-A - Partition - Sale without fixing reserve price is impermissible. 2009(3) Civil Court Cases 577 (S.C.)

 Partition Act, 1893, S.6(1) - Partition - S.6(1) of the Partition Act mandatorily requires fixation of a reserved price. 2009(3) Civil Court Cases 577 (S.C.)

Partnership Act, 1932

Partnership Act, 1932, S.44, Arbitration and Conciliation Act, 1996, S.8 - Partnership - Dissolution - Arbitration clause - Arbitration clause qua dispute inter se the partners - Held, such a clause does not include the dissolution of partnership deed - Question of dissolution can be decided by Arbitrator only if the arbitration clause so provides. 2009(3) Civil Court Cases 649 (P&H)

Partnership Act, 1932, S.44, Arbitration and Conciliation Act, 1996, S.8 - Partnership - Dissolution - Arbitration clause - Dissolution sought on just and equitable ground and not as per terms of partnership deed - Matter cannot be referred to arbitrator. 2009(3) Civil Court Cases 649 (P&H)

Registration Act, 1908

Registration Act, 1908, S.17 - Immovable property - Transfer of title - An admission cannot create title in respect of immovable property - An oral release or a written letter of an original owner acknowledging another person as the owner has no value in the eye of law. 2009(3) Civil Court Cases 676 (P&H)

Registration Act, 1908, S.17 - Sale - Oral sale of property of more than Rs.100/- before coming into force of S.54 of Transfer of Property Act to the State of Punjab - Plea that property could not be transferred without a registered document carries no weight. 2009(3) Civil Court Cases 633 (P&H)

Registration Act, 1908, Ss.17, 49 - Gift of immovable property - Requires registration - A document which is required to be registered cannot be received in evidence to affect any immovable property or received as evidence to any transaction affecting such property unless it has been registered. 2009(3) Civil Court Cases 676 (P&H)

Registration Act, 1908, S.58(1)(c), 60 - Registered document - Consideration - Endorsement of Sub Registrar - Held, as a matter of rule it cannot be laid down that merely because the endorsement had been made by the Sub Registrar, necessarily it is to be inferred that a mortgage deed is supported by consideration. 2009(3) Civil Court Cases 725 (A.P.)

Registration Act, 1908, Ss.58, 60, Transfer of Property Act, 1882, S.58 - Mortgage deed or deed executed by way of security - Endorsement of Sub Registrar as to passing of consideration not rebutted - Inspite of the sufficient gap of time in between the registration of document and filing of suit no steps taken either to get the document cancelled or to bring to the notice of the other party that it was only a nominal transaction executed by way of security - Held, conduct of a party has to be taken into consideration - Finding of trial Court disbelieving the plea of security upheld. 2009(3) Civil Court Cases 725 (A.P.)

Specific Relief Act, 1963

Specific Relief Act, 1963, S.14 - Continuance in service - Relief of - Amounts to enforcing the contract of personal service - Specifically barred - Such a suit should not be allowed to continue and to go for a trial and should be thrown out at the treshhold. 2009(3) Civil Court Cases 703 (Allahabad)

Specific Relief Act, 1963, S.16(c) - Ready and willing - Plaintiff completed his obligations under the agreement - There is thus no question left as to whether plaintiff was ready and willing to perform his part of the contract - It was for the defendant to complete the transaction. 2009(3) Civil Court Cases 622 (Karnataka)

Specific Relief Act, 1963, Ss.20, 12, 14, 15, 16 & 19 - Suit for specific performance - Defences thereto - Can be many - Executant of agreement may deny execution or allege fraud and misrepresentation vitiating such execution - In addition to this other grounds as per Ss.12, 14, 15, 16 and 19 of the Act are also available - Subsequent purchasers may also take such pleas - However, once execution is admitted by paramount owner, others cannot ordinarily be permitted to impeach agreement. 2009(3) Civil Court Cases 661 (A.P.)

Specific Relief At, 1963, S.20, Evidence Act, 1872, S.58 - Agreement to sell - Admission of execution by executant - Co-defendants who claim right and interest in the same property may not challenge admission made by executant though they can oppose specific performance of such agreement of sale on other grounds - They cannot challenge the very execution of agreement. 2009(3) Civil Court Cases 661 (A.P.)

Specific Relief Act, 1963, S.31, Civil Procedure Code, 1908, S.9 - Sale deed and Will - Challenged as void - Civil Court has jurisdiction to try the suit. 2009(3) Civil Court Cases 730 (Allahabad)

Specific Relief Act, 1963, S.34, Transfer of Property Act, 1882, S.54 - Sale - Executed by power of attorney holder - Power of attorney was cancelled two days earlier to execution of sale deed and a legal notice was sent to attorney - Balance sale consideration amount not received by attorney at the time of execution and registration of sale deed - Power of attorney holder impleaded a party who filed written statement but not entering into witness box - Sale deed not result of free and voluntary expression of will of the vendors but was the result of mala fide and fraudulent action of the GPA holder of the vendor - Sale not valid. 2009(3) Civil Court Cases 723 (P&H)

Specific Relief Act, 1963, S.34 - Declaration - If a judgment or a decree is obtained on account of fraud or collusion, a suit for declaration is maintainable. 2009(3) Civil Court Cases 695 (Allahabad)

Specific Relief Act, 1963, S.54 - Sale - Without consideration sale is void - However, sale is not void when payment of consideration is by a person who has no capacity to pay consideration. 2009(3) Civil Court Cases 661 (A.P.)

Stamp Act, 1899

Stamp Act, 1899, S.2(11), Civil Procedure Code, 1908, O.13.R.3 - Duly stamped - Payment of stamp duty - Not a matter confined to litigating parties - Court is under an obligation to take care of the same. 2009(3) Civil Court Cases 680 (Calcutta)

Stamp Act, 1899, S.2(11) - Duly stamped - A document in order to get its proper legal recognition is required to be properly stamped according to the provisions of the Stamp Act. 2009(3) Civil Court Cases 680 (Calcutta)

Stamp Act, 1899, Ss.12(2) and 35 - Stamp - Cancellation - Signature on stamp not commencing from or extending to paper - Signatures exclusively on stamp do not constitute proper cancellation - Document to be treated not stamped at all - Such document is inadmissible in evidence. 2009(3) Civil Court Cases 747 (A.P.)

Stamp Act, 1899, Ss.38(1), 33, Civil Procedure Code, 1908, O.13.Rr.3,4 - Duly stamped - Document tendered in evidence - Objection raised by other party that document is insufficiently stamped - Court assumes jurisdiction to impound the document - Duty of Court to assess the duty and penalty - Option is with the party either to accept the assessment made by Court or may request for sending the document to Collector - If document is sent to Collector, it cannot be admitted in evidence till amount assessed is paid. 2009(3) Civil Court Cases 680 (Calcutta)

Transfer of Property Act, 1882

Transfer of Property Act, 1882, S.52, Civil Procedure Code, 1908, O.1.R.10 - Impleading of a party - Transferee pendente lite - Can be added as a proper party to protect his interest. 2009(3) Civil Court Cases 606 (Bombay)

Transfer of Property Act, 1882, S.54, Specific Relief Act, 1963, S.34 - Sale - Executed by power of attorney holder - Power of attorney was cancelled two days earlier to execution of sale deed and a legal notice was sent to attorney - Balance sale consideration amount not received by attorney at the time of execution and registration of sale deed - Power of attorney holder impleaded a party who filed written statement but not entering into witness box - Sale deed not result of free and voluntary expression of will of the vendors but was the result of mala fide and fraudulent action of the GPA holder of the vendor - Sale not valid. 2009(3) Civil Court Cases 723 (P&H)  �3¿ �3
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Transfer of Property Act, 1882, S.58, Registration Act, 1908, Ss.58, 60 - Mortgage deed or deed executed by way of security - Endorsement of Sub Registrar as to passing of consideration not rebutted - Inspite of the sufficient gap of time in between the registration of document and filing of suit no steps taken either to get the document cancelled or to bring to the notice of the other party that it was only a nominal transaction executed by way of security - Held, conduct of a party has to be taken into consideration - Finding of trial Court disbelieving the plea of security upheld. 2009(3) Civil Court Cases 725 (A.P.)

Transfer of Property Act, 1882, S.123 - Gift deed - Unless the donee accepts the gift, it is not a valid gift. 2009(3) Civil Court Cases 661 (A.P.)

Will