Month: February 2018

You can grab notes on other topics of CPC here.

FACTS – An application for amendment of written statement filed by appellants which was contested by the plaintiff.

HELD – Under Order 6 Rule 17 CPC (Amendment of pleadings – Court can at any stage of proceedings can allow party to alter or amend his pleadings in such a manner which is just and that such amendment is important for determining the real questions in controversy between the parties), it is clear that the court has the power to allow alteration in the pleadings if it is of the view that the amendment can determine the real question in controversy. The court should be liberal in granting the prayer for amendment of pleading unless serious injustice or irreparable loss is caused to other side or the ground of prayer for an amendment was not bona fide.

In the case of amendment written statement, the defendant is entitled to take new defence and even plead inconsistent stand as long as it does not lead to grossly inconsistent plea or withdrawal of admission causing prejudice to the plaintiff.

You can grab notes on other topics of CPC here.

 

You can grab notes on other topics of CPC here.

This order will dispose of an application under Order 7, Rule 11(Rejection of plaint in cases of non-disclosure of cause of action, undervalued relief claim, plaint is insufficiently stamped or suit appears from statement in plaint barred by law) of the Code of Civil Procedure (CPC) filed by the defendants, for rejection of the suit as not disclosing any cause of action, and also barred in law.

FACTS – Plaintiff is a company, members and shareholders are insecticides manufacturers. Plaintiff aggrieved by series of articles published by defendants Rajasthan Patrika. Plaintiffs claim that the articles published by defendants lower its reputation and those of its members and claim damages. The plaintiff says articles contain falsehoods about levels of pesticides used and its alleged harmful effects, and these articles defame all pesticide and insecticide manufacturers i.e. plaintiff’s members.

In their application under Order 7 Rule 11 CPC, the defendants contend that the principal for a suit for defamation is that the plaintiff should be an individual or a determinate body. The defendants argue since plaintiff is an association of firms, cannot be termed as a determinate body.

ISSUES –

Jurisdiction of the court – The decision in Indian Potash Ltd. V. Media Contents and Communication Services, makes it clear that in case of publication of defamatory articles in books or newspapers etc. the plaintiff can sue at any of the places where the newspaper is available. The court possesses jurisdiction to entertain the present suit.

Whether defendants are correct in alleging that there is no defamation or libel – For a civil remedy to lie against defamation, following ingredients need to be fulfilled:- 1. The statements must be false and defamatory, 2. They must refer to the plaintiff, 3. The statements must be published by the defendant.

In this case, both parties agree that there is no direct reference to the plaintiff or its members. Therefore, the second condition not fulfilled. The defendants say that there is no specific reference to anyone or few pesticide manufacturers, it is to point out harmful effects of overuse of pesticides. A suit for defamation cannot be maintainable if the alleged defamatory statements do not refer to a determinate or definite class or group of persons.

Order 7 Rule 11 requires a cause of action to be disclosed. In the plaint, there should be allegations which disclose the cause of action. For the action of defamation to be maintainable, the plaint must contain allegations which satisfy essentials for an action of defamation and complete the disclosure of cause of action. The court decided that upon reading the plaint as a whole, it could not be said to have disclosed a cause of action. The plaint is therefore liable to be rejected under Order 7 Rule 11 CPC.

Whether the plaintiff can sue in a representative capacity on behalf of its members – Plaintiff’s objects are to act on behalf of the body of manufacturers and promote their interest. It is not a subsidiary of any of its members, it has a separate corporate personality. The plaintiff says that the alleged libel is something that hurts its members and therefore can act on their behalf. The court says that the plaintiff is a distinct company, separate from its members and in this case the plaintiff cannot sue on their behalf.

JUDGEMENT

In view of the above discussion, it is held that the defendants have been able to establish that the suit does not disclose any triable cause of action and that the plaintiff, in any event, cannot maintain and file it. Rejected as not disclosing any cause of action

You can grab notes on other topics of CPC here.

 

You can grab notes on other topics of CPC here.

FACTS – Appellant board issued circular introducing the coffee export stamp for export of coffee. The respondent, registered with the board as a member exported coffee without the stamps. The board issued show cause notice which was replied by the respondent. Then respondent filed two consecutive suits praying for a decree for a specified amount and costs of suit. They said the board failed to supply the stamps which lead to delay in shipment of coffee resulting in losses.

Trial court decreed the first suit but dismissed the second suit. The high court partly allowed the appeals. The board came up with appeal before SC that the two suits filed by respondent were barred by Order 2 Rule 2 (comes into operation when cause of action on which previous suit was filed forms the foundation of the subsequent suit and when the plaintiff could have pleaded for the damages in the first suit, which he pleaded for in the subsequent suit).

Cause of action was when the respondent purchased coffee from appellant in an auction on the assurance that the ICO stamps would be supplied to them.

ISSUE – Whether the two suits filed by the respondent are barred under Order 2 Rule 2 CPC?

Held – In order to determine this, the courts examine the cause of action pleaded by the exporter in both suits. It is found that the cause of action in both suits is identical and relief claimed in a subsequent suit could have been pleaded in an earlier suit. Therefore, subsequent suits it barred under Order 2 Rule 2 of CPC.

You can grab notes on other topics of CPC here.

 

You can grab notes on other topics of CPC here.

FACTS – The plaintiff filed a suit in High Court against the respondent since the respondent paid only part of the sale consideration and didn’t pay the balance amount. The suit was decreed. The appellant filed a subsequent suit in High Court against the respondent for a rendition of account. A single judge dismissed the suit on the grounds that the suit was barred by Order 2 Rule 2 CPC (Suit to include the whole claim) and by principle of constructive res judicata.

ISSUE – Whether the suit was barred by the principle of res judicata as the issue raised therein had been directly and substantially adjudicated between the plaintiff and defendant in a previous suit?

HELD – Object of Order 2 Rule 2 is to ensure that no defendant is sued twice in regard to the same cause of action and to prevent the plaintiff from splitting of claims and remedies based on the same cause of action. Unless the defendant pleads under Order 2 Rule 2 CPC and an issue is framed focusing the parties on that bar to the suit, the court cannot examine or reject a suit on that ground. The plaintiff should have the opportunity to explain that the second suit was based on the different cause of action.

The cause of action for the first suit was non – payment of price under the agreement of sale, whereas the cause of action for the second suit was non–settling of accounts of a dissolved partnership. The plaintiff against whom the bar of res judicata is used should have noticed about the plea and have an opportunity to put forth his arguments against the same. In this case, there was no plea of constructive res judicata. Therefore, the second suit is not barred by constructive res judicata.

You can grab notes on other topics of CPC here.

 

You can grab notes on other topics of CPC here.

Facts: Appellant is in possession of service station created on land held by respondent 2 (Hindustan Petroleum Corporation Limited) as lessee. The dispute between appellant and respondent 1(Municipal Corporation) is a demolition of unauthorised construction in pursuance to notice u/s. 351 of Bombay Municipal Corporation Act. Appellant instituted suit before City Civil Court, challenging the validity of notice and for injunction restraining Municipal Corporation from demolishing structures. No notice has been issued to respondent 2 by Municipal Corporation in the present case. Respondent 2 applied for being impleaded as an additional defendant in the suit to which court directed appellant to add respondent 2 as a defendant. Subsequently Appellant filed Writ Petition challenging correctness of order to which the High Court dismissed Writ Petition

Issue:  Whether respondent 2 is a necessary or proper party?

Held: Proper and necessary parties, as they have interest in subject matter of litigation and presence will be necessary and proper to effectively adjudicate upon and determine the cause of action in the suit. The notice does not relate to that structure but is in relation to two chattels started to have been created by present appellant unauthorised. But Respondent 2 had no interest in these chattels and demolition of same in pursuance to notice is not a matter which affects legal rights of respondent.  No direct interest in subject matter of litigation and addition of respondent would result in a new cause of action and will widen issue. The person to be joined must be one whose presence is necessary as a party. The only reason which makes it necessary to make a person a party to an action is that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party.

You can grab notes on other topics of CPC here.

 

You can grab notes on other topics of CPC here.

Facts: The disciplinary authority of National Institute of Mental Health & Neuro Sciences ordered the removal of the respondent from service for misappropriation of drugs to the extent of Rs. 1,79,668.46 and also directed the respondent to reimburse the appellant( the institute) to the extent of pecuniary loss suffered. Being aggrieved, the respondent herein moved the appellate authority. On failure on the part of the respondent to reimburse the loss, the appellant filed a civil suit in a civil court of Bangalore in 1995 to which the respondent files the written statement. In 1997 the government of Karnataka referred the industrial dispute raised by the respondent to the Labour Court at Bangalore for adjudication to which it held in favour of the respondent and set aside the order of removal. Subsequently appellant filed a writ petition questioning the award of labour court. The HC by an interim order stayed the operation of the order of reinstatement passed by the labour court.  In 2003 respondent filed an application under section 10 of CPC read with section 151. By the said application, the respondent herein sought a stay of the said suit till disposal of the writ petition to which the City Civil Judge dismissed the application made by the respondent. Subsequently, the respondent filed Civil Revision Petition.

Issue: Whether application dated 20.6.2003 filed by the respondent under Section 10 read with Section 151 CPC seeking a stay of a civil suit which the appellants filed in the Court of City Civil Judge, Bangalore to seek a decree for Rs. 1,79,668.46 with interest, was maintainable.

Held: The whole subject-matter in both suits has to be identical. Section 10 is preferable to a suit instituted in civil court. Proceedings before labour court cannot be equated with proceedings before the civil court. The scope of the writ petition is entirely different and distinct from a suit. High Court erred in directing trial court not to proceed with drawing up final decree.  Also, inherent jurisdiction under Section 151 cannot be exercised to nullify provisions of Code.

You can grab notes on other topics of CPC here.

 

You can grab notes on other topics of CPC here.

Facts: Plaintiff and defendant entered into an agreement of sale of a land in Patna. In clause 17 of that agreement, the plaintiff was to execute and give an irrevocable general power of attorney to the defendant, and that power was to be governed by the provisions of that agreement. The terms and conditions of the agreement were to prevail in case of conflict between the power and the agreement.

Alleging that the members of the Hindu undivided family of which the plaintiff was the Karta, failed and neglected to carry out their obligations in terms of the agreement for sale, the defendant, as the plaintiff in the court of the first subordinate judge in Patna files a suit in July 2004. It prayed for a decree for specific performance of a contract for the sale of the land. It impleaded one Manvendra Singh as the second set defendant in that suit. First Defendant files written statement in April 2005.

On December 8, 2004, a case was filed in Calcutta high court by the first defendant in Patna suit in the capacity of being a Karta of Hindu undivided family. He alleged that since the defendant failed and neglected to discharge its obligation in terms of the agreement, the agreement for sale stood determined, and as a result, the power of attorney executed in terms of Clause 17 of the agreement stood cancelled. He also alleged that for non-registration the power of attorney concerned was invalid and void. He prayed for a decree declaring the power of attorney as void and cancelled. On June 6, 2005, the defendant took out the present application under Section 10.

Issue: Whether the matter in issue in the Calcutta suit is directly and substantially in issue in the Patna suit under section 10 of the CPC as in the subsequent suit another party(First defendant) in addition to the previous one( Second defendant: Manvendra Singh) was included.

Contentions: Defendants counsel contended that the matter in issue in the Calcutta suit is whether the agreement for sale had stood determined, and hence it is directly and wholly in issue in the Patna suit where his client prayed for a decree for specific performance of the contract arising out of that agreement. A test is not whether parties in the suits are identical in every aspect. He contends in a subsequent suit a person can be

Plaintiff: According to counsel for the plaintiff though the issue whether the agreement for sale stood determined is directly in issue in both the suits, it cannot be said that the matter in issue, meaning thereby the whole subject-matter of the Calcutta suit, is directly and substantially in issue in the Patna suit. He contends that unless there is the absolute identity of the whole subject-matter, it cannot be said that the matter in issue in the Calcutta suit is directly and substantially in issue in the Patna suit as held in National Institute of Mental Health & Neurosciences v. C. Parameshwar.

Held:  Absolute identity of the parties is not the consideration. Further, the subject matter in Patna suit is agreement for sale on basis of which specific performance was filed. The power of attorney originated from that agreement under clause 17. So the question of validity of the agreement is the whole controversy in the Patna suit. It was held that the same controversy is the subject matter of the Calcutta case where it is alleged that the power of attorney stood cancelled. The decision in the Patna suit will make the Calcutta suit absolutely useless and academic. Hence the application under section 10 of CPC should be allowed and the suit in Calcutta court be stayed. Also for maintaining application u/s.10 defendant in suit concerned need not first file his written statement s.10 application can be taken out even before filing the written statement.

You can grab notes on other topics of CPC here.

 

You can grab notes on other topics of CPC here.

• The word ‘Trial’ is of wide import. It includes all proceeding from the stage of an institution in a plaint, to the stage of final determination and decree by the court.
• Section 10 (res sub judice) only bars commencement of trial in two courts simultaneously but does not bar institution of suit or passing of interlocutory orders.
• In the context of summary suits (order 37) for the purposes of Section 10, a trial begins with the court granting leave to the defendant and court can proceed with issuing summons and passing judgment if the defendant hasn’t applied for leave of the court or has failed to get leave of the court.

You can grab notes on other topics of CPC here.