CPC Case Brief – SBI v. Emmsons International (First appeal)

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This is a case regarding first appeal mainly covered under section 96 of the CPC.

Facts: Most of the facts are not relevant to our course, but it needs to be understood that Emmsons, plaintiff, filed a case against SBI, defendant, in the trial for payment of Letter of Credit. The trial court framed 5 issues that needed to be considered for resolving its dispute. The trial court gave its order and then the decision was appealed by the aggrieved party to the High Court. The High Court reversed the order of the Trial court without passing judgment on the fifth issue in the case. The case has been appealed to the Supreme Court.

If you read from para 19 onwards it is clear that the SC is pissed off at the fact that the HC is not appreciated the case before and has been ignorant of the issues at hand.

SC quotes section 96 and a bunch of other cases and says that the High Court being the court of the first appeal ought to have appreciated the evidence at hand decided the case addressed all issues of fact and law before reversing the order of the trial court. SC said that the HC failed to exercise its jurisdiction under section 96 of the code and hence the judgement of the HC was reversed and a fresh hearing of the case ordered.

Below is the court’s justification verbatim: “The first appeal has to be decided on facts as well as on law. In the first appeal, parties have the right to be heard both on questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on the law. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title………”. In our view, the High Court failed to follow the fundamental rule governing the exercise of its jurisdiction under Section 96 of the Code of Civil Procedure, 1908 that where the first appellate court reverses the judgment of the trial court, it is required to consider all the issues of law and fact. This flaw vitiates the entire judgment of the High Court. The judgment of the High Court, therefore, cannot be sustained.

For the above reasons, we accept the appeal, set aside the impugned judgment of the High Court and restore First Appeal No. 225 of 2002 for rehearing and fresh decision. All contentions of the parties are kept open to be agitated at the time of the hearing of the first appeal. No order as to costs.

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CPC Case Brief – Chunilal Mehta v. Century Spinning Mills

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

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CPC Case Brief – Venkatasubbiah Naidu v. S. Chellappan

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Facts: Plaintiff claimed to be a lessee of a property and alleged that respondents 1 to 5 were trying to dispossess him. The judge of the city civil court of Chennai passed an interim injunction order ex parte against the respondents under Order 39 rule 1 on the 29th June, 1999 and sought notice by the aggrieved to finally dispose off the matter by the 25th August, 1999. Then the 1st respondent on behalf of himself and other respondents filed a revision petition invoking Article 227 of the Constitution. The High Court of Madras disposed the revision and observed that the trial court should not have granted an order of injunction which would operate beyond 30 days as this is impermissible under order 39 rule 3A. The court therefore set aside the order of injunction ”for the clear transgression of the provisions of law”.

Issue:

Whether the High Court should have entertained a petition under 227 when there were two remedies statutorily available to the respondent (First, the respondent could have approached the trial court for vacating the ex parte order and second, an appeal could have been preferred)?

What would be the position if a court which passed the ex parte injunction did not record reasons thereof and did not require the applicant to perform the duties enumerated in clauses (a) and (b) of Rule 3 of Order 39?

Whether the trial court could pass an ex parte injunction beyond 30 days?

Holding:

  • The trial court ought not to have granted ex parte injunction beyond 30 days to be in force as specified in Order 39 Rule 3A. The rule does not say that the period of injunction order should be restricted by the court to 30 days at the 1st instance, but the court should pass the final order on it within 30 days from the day on which the injunction was granted. However, the order does not become illegal merely because it was not restricted to a period of 30 days or less.
  • In a case where the mandate of order 39 rule 3A of the code is flouted, the aggrieved party shall be entitled to the right of appeal notwithstanding the pendency of the application for grant or vacation of a temporary injunction against the order remaining in force. In such appeal, the appellate court shall be obliged to entertain the appeal and further to take note of the omission of the subordinate courts in complying with the provision of Rule 3A.
  • Failure to decide the application or vacate the ex parte temporary injunction shall for the purposes of the appeal, be deemed to be the final order passed on the application for temporary injunction on the date of expiry of thirty days mentioned in the rule.
  • Though no hurdle can be put against the exercise of the constitutional powers of the High Court it is a well-recognized principle which gained judicial recognition that the HC should direct the party to avail himself of such remedies one or the other before he resorts to a constitutional remedy.

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CPC Case Brief – Manohar Chopra v. Rai Bahadur Rao Seth

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Contract between parties stipulated that in case of default arising out of the dealings of the contract suit would be instituted in Indore. The respondent therefore filed an application under section 151, in the indore high court for restraining the appellant from continuing the proceedings in a different court, Asansol.

The court issued orders under order 39, rule 1, but this was rejected in appeal but the court held that inherent powers under 151 allowed for such injunctions. An appeal is on this issue.

Issue #1

That the court could not exercise its inherent powers under 151 when there were specific provisions in the code of civil procedure for the issue of interim injunction, they being sections 94 and order 39.

Held that the courts have inherent jurisdiction to issue temporary injunctions in circumstances, which are not covered by the provisions of the order 39. There is no such expression in 94, which prohibits the issue of temporary injunction in circumstances not covered by order 39 or by any other rules within the code.

It is well settled that the code is not exhaustive, for the simple reason that the legislature is incapable of contemplating all the possible circumstances which may arise in any future litigation and consequently for providing of the procedure for the same.

The inherent powers of the court are in addition to the powers specifically conferred on the court by the code. They are complementary to those powers and therefore it must be held that the court is free to exercise tem for the purposes mentioned in section 151 of the code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the code or against the intentions of the legislature.

This inherent power has not been conferred upon the court; it is a power inherent in the court by virtue of its duty to do justice between the parties before it.

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CPC Case Brief – Shiv Kumar Chaddha v. MCD

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Facts: Appeal has been filed against an order passed by the Delhi HC directing the Municipal corporation of Delhi to issue appropriate notices to the owners/ occupiers/ builders of the buildings where illegal constructions have been made. The Corporation has been directed that if it finds that the constructions are beyond the compoundable limits, then to seal the same and demolish thereafter. The other part of the order said that “no civil suit will be entertained by any court in Delhi in respect of any action taken or proposed to be taken by the Corporation with regard to the sealing and/ or demolition of any building or any part thereof.”

Issue: The issue before the court was regarding the second part of the order, whether such a statutory bar on the jurisdiction of civil courts would be valid where certain enactments so restrained and made alternative arrangements for civil redressal? (Sec 9 of CPC)

Holding:

Even if jurisdiction of a civil court is excluded, the civil courts have jurisdiction to examine into cases where the provisions of the act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental procedure of judicial procedure.

If an Act provides a complete machinery for adjudication of all claims and there is a bar on the jurisdiction of any court, then the Act overrides other laws, including sec 9 of the CPC and there is no scope for the civil court to any suit.

This Court in the judgments referred to above has upheld the ouster of the jurisdiction of the Court on examination of two questions – (1) Whether the right or liability in respect whereof grievance has been made, had been created under an enactment and it did not relate to a pre-existing common law right? (2) Whether the machinery provided for redressal of the grievance in respect of infringement of such right or imposition of a liability under such enactment, was adequate and complete? The ouster of the jurisdiction of the Court was upheld on the finding that the rights or liabilities in question had been created by the Act in question and remedy provided therein was adequate.

The Act purports to regulate the common law right of the citizens to erect or construct buildings of their choice. This right existed since time immemorial. But with the urbanisation and development of the concept of planned city, regulations, restrictions, on such common law right have been imposed. Once the Court is satisfied that either the provisions of the Act are not applicable to the building in question or the basic procedural requirements which are vital in nature, have not been followed, it shall have jurisdiction, to enquire and investigate while protecting the common law rights of the citizens.

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CPC Case Brief – Gujarat Bottling v. Coca Cola

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Ratio: The supreme court held that since the relief is wholly equitable in nature, the party invoking the jurisdiction of the court has to show that he himself was not at fault and that he himself was not responsible for bringing about the state of affairs complained off and that he was not unfair and inequitable in his dealing with the parties against whom he was seeking his conduct should be fair and honest. These consideration will arise not only in respect of the person who seeks an injunction order under order 39 but also in respect of the party approaching the court for vacating the ad interim injunction order already granted in the pending suit or proceeding in a case a lessee under a permanent lease has already a permanent structure on the lease hood land long back without any objection in this regard on the part of the lessor. The lessor later, sort the grant of interim injunction commanding the lessee to pulled on construction as there was no express agreement to raise such structure, held that the interim injunction as sort for could not be granted specially when the lessor had not made what prejudice would be cost to him, if the injunction was not granted and the grant of injunction would cause irreparable loss to the lessee.

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CPC Case Brief – Rajesh Bhatia v. G. Parimala (discovery and documents)

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Relevant provision: Rules 1 to 11 of order 11 which deals with discovery of facts, whereas rules 12 to 20 deal with discovery, production and inspection of documents. Rules in the domain of the order 11 under the caption “discovery and inspection”, the provisions deals with two aspects mainly, discovery by interrogatories and discovered by documents.

Facts:  The plaintiffs filed the suit for recovery of an amount of Rs. 3,83,0007- from the defendants 1 and 2. The case of the plaintiffs was that on the request of the first defendant the plaintiffs handed over the original sale deed dated 30-08-1993 and the fixed deposit receipts worth Rs. 3,83,0007- to her and her husband C.S. Sudhir Kumar. Plaintiffs used to receive interest amount of Rs. 3,5007- from the second defendant-bank on the above fixed deposits till May, 2001. However, without any reason whatsoever the second defendant-bank stopped suddenly from the month of June 2001 the payment of interest. On enquiry, the plaintiffs came to know that these fixed deposit receipts were given to the bank on hypothecation by the first defendant, who availed credit facilities and bank guarantee. When the bank guarantee was revoked by Andhra Bank, the second defendant-bank closed the above said F.D. Rs. prematurely without giving any notice to the plaintiffs and adjusted the amounts covered by those receipts against the revocation of bank guarantee taken by the first defendant. Questioning the high-handed act of both the defendants, the plaintiffs filed the suit for realization of the amounts covered by the fixed deposits.

Crux of the case : Plaintiff filed suit for recovery of amount and direct defendant to submit income tax returns and other documents – Judge dismissed petition partly insofar as the income tax returns are concerned and directed the first defendant to produce the bank statements – Hence, this Petition – Held, if documents were public documents and were in custody and possession of public servants who were only empowered to grant certified copies – It should be endeavor of party who required them to obtain certified copies in first instance – The Petitioner could not produce those documents since they were in custody of Court – Insofar as income tax returns of were concerned, there had been a prohibition contained in Income Tax Act for producing those documents by the Department – The proper procedure was to be to issue notice to defendant to file income tax returns – If he failed, plaintiffs could either lead secondary evidence by obtaining the certified copies from Department – Therefore, it was not case of any discovery as regards existence of documents and need to inspect those documents so as to shorten litigation – It was a matter where trial process was on and had been going on – Hence, application under said order could not be allowed – Petition allowed.

Ratio of the case : If documents are public documents and are in custody and possession of public servants then it can be obtained by applying certified copy to the Authority.

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CPC Case Brief – Raj Sarogi v. American Express (discovery of documents)

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Facts:  During the pendency of the suit filed by the appellant against the respondent, an application was filed by the appellant under Order 11 Rules 12 and 14 read with Section 151 of the Code of Civil Procedure praying that the defendant be called upon to make discovery on oath of documents in sub-para (i), (ii) and (iii) of para 3 of the application and produce the same in Court and on production the appellant be given inspection and copies thereof. The appellant/plaintiff in the application asserted that the documents were relevant for proper and effective adjudication of the questions involved in the suit and will reduce the controversy between the parties. Document the discovery of which is asked;

Photocopy of the lease deed dated 2nd August, 1996 between the defendant and Mrs. Kamla Vachani and Ms. Madhavi Vachani with respect to the property bearing No. S-51A, Panchsheel Park, New Delhi.

Photocopy of the Supplementary Agreement dated 8th August, 1996 between the defendant and Mrs. Kamla Vachani and Ms. Madhavi Vachani relating to property bearing No. S-51A, Panchsheel Park, New Delhi.

The application came up for consideration before learned Single Judge and he disposed of the application.

Issue: Whether the application filed by the appellant fulfils the conditions laid down by the order 11 i.e. whether the documents, the discovery of which is requested are necessary for the fair disposal and for saving costs, whether these documents are relevant or not?

Held: The high court found that the single leaned judge did not consider the question that whether the discovery was or was not necessary at that stage of the suit or whether the documents, the production of which was sought were or were not relevant. The court held that as and when the application under Rule 12 of Order 11 CPC is filed seeking discovery of documents, the Court is required to exercise discretion, as envisaged in the said Rule, which does not alter the principle relating to the production of documents but gives the Court a discretion to refuse to direct discovery of documents when there is no reasonable prospects of its being of any user or to limit the nature and extent of the discovery. The discretion undoubtedly vested in the Court must be exercised judicially to further the primary object of the Rules for production and discovery of documents

Consequently, the impugned order is set aside with direction that the application be decided afresh in accordance with law. Needless to add that while deciding the application afresh, it will be open for the respondents to urge all the points raised in their reply to oppose the prayer made by the appellant including the one, which were noticed by learned Single Judge in the impugned order.

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CPC Case Brief – Kokkanda B. Poondacha v. K.D. Ganapathi

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Facts – Respondent wanted to bring appellant’s lawyer as a witness. The trial court doesn’t allow stating that it is important for them to give a reason for what purpose they intend to use him as a witness. On appeal, HC decided no reasons were required to be given.

Issue – Whether the High Court could interfere with the order of the trial Court without considering the question whether the said order was vitiated due to want of jurisdiction or the trial Court had exceeded its jurisdiction in deciding the application of the Respondents and the order passed by it has resulted in a failure of justice?

Holding – Article 227 gives supervisory power to High Court. The power is discretionary and has to be exercised very sparingly on equitable principle. The object of superintendence under Article 227, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. Held, that there was a misuse of this power in this case.

One of the most important duty imposed upon an advocate is to uphold the interest of the client fearlessly by all fair and honourable means. An advocate cannot ordinarily withdraw from engagement without sufficient cause and without giving reasonable and sufficient notice to the client. If he has reason to believe that he will be a witness in the case, the advocate should not accept a brief or appear in the case.  – In this case, doesn’t allow as they never objected to this lawyer representing the other side and all of a sudden wanted to make him a witness after 11 years so as to compel him to drop the case.

It would be a prudent exercise of discretion by the Court to insist that the party filing the list of witnesses should briefly indicate the purpose of summoning the particular person as a witness.

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CPC Case Brief – Mange Ram v. Brij Mohan

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Facts – In the trial court, appellant wanted to present more witness than he had given names for to be examined as a witness. The trial court rejected the application on basis of its understanding of CPC and rules framed by concerned High Court.

Issue – Where a party to a proceeding does not wish to have the assistance of the Court for the purpose of procuring the attendance of a witness or witnesses, could he be denied the privilege of examining witnesses kept present by him on the date fixed for recording his evidence, on the sole ground that the names of the witnesses and the gist of evidence have not been set out in the list which may or ought to have been filed in compliance with Order XVI Rule 1  (talks about procedure for summoning witnesses) of the CPC?

Holding – Order XVI Rule1,2,3 (talks about procedure to summon a witness and to pay his expenses) – If the requirements of these provisions are conjointly read and properly analysed, it clearly transpires that the obligation to supply the list as well as the gist of the evidence of each witness whose name is entered in the list has to be carried out in respect of those witnesses for procuring whose attendance the party needs the assistance of the court.

Rules framed by High Court applicable to only the witness whom the parties desire to examine and procure presence with the assistance of the Court.

Where the party would be in a position to produce its witnesses without the assistance of the Court, it can do so under Rule 1A of Order XVI irrespective of the fact whether the name of such witness is mentioned in the list or not.      The Court can decline to examine these witnesses only under the proviso to Subsection (1) of Section 87 of the ‘1951 Act’ which enables the Court for reasons to be recorded in writing, to refuse to examine any witness or witnesses if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of the petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delaying the proceedings.

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