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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CPC Case Brief – Jag Mohan Chawla v. Dera Radha Swami Satsang

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Facts – Appellant/plaintiffs sought a perpetual injunction to restrain the respondents from interfering with their possession of the property. Defendant made a counterclaim that property was theirs and appellant be restrained from interfering their use of the property. The plaintiff made a reply to the counterclaim set up by a defendant in order to escape ex parte judgment (Order 8 Rule 6E) and also made an application that defendant’s counterclaim is adjudicated in an independent suit (Order 8 Rule 6C). Sub ordinate judge dismissed the application.

Issue – Whether in a suit for injunction, counter-claim for an injunction in respect of the same or a different property is maintainable? Whether counter-claim can be made on the different cause of action?

Holding – Counterclaim for purposes of Order 8, Rule 6A is no longer confined to money claim or to cause of action of the same nature as an original action of the plaintiff. It need not relate to or be connected with the original cause of action or matter pleaded by the plaintiff. The only limitation is that the cause of action should arise before the time fixed for filing the written statement expires. The defendant may set up a cause of action which has accrued to him even after ‘the institution of the suit.

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CPC Case Brief – Jitendra Kumar  v. Peerless General Finance

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Equitable right to set off is a right developed from the principle of equity. Equitable right to set off is a debtor’s right to reduce the amount of a debt by any sum a creditor owes the debtor.

Facts : The appellant Nos. 1 and 3 along with appellant No. 2 instituted suit in the High Court of Calcutta principally for a declaration that they are entitled to be paid all the commissions and other incentives payable to the agents/field officers by the defendants in respect of the transactions or business which was done in accordance with the terms and conditions of appointment of all agents of the defendant company.

After issuance of notice of the plaint which was presented on 11.8.1993, the defendants filed their written statement on 12.8.1994. Thereafter, on 7.4.1998, the defendants filed an application for amendment of the written statement.  The amendment that was sought for by the defendants was to the effect of a grant of a decree for a sum of Rs.4,19,509.43 in favour of the defendant No. 1 and a decree to enquire into the sum which is payable by the plaintiff to the defendant company. The said application was seriously opposed by the plaintiffs on the ground that such an amendment was totally impermissible and the defendants were actually introducing a counterclaim or set-off. Dissatisfied with the order of rejection an appeal was preferred and the Division Bench came to hold that the claim put forth by the defendants by way of written statement could no longer be legally recoverable at that distance of time; and that the claim could not be treated as a counterclaim and set-off as envisaged under the Civil Procedure Code.

Principle: Claim put forth in the written statement cannot be regarded as a counterclaim or a legal set-off as both are not permissible at the stage when the application to amend the written statement was filed.

Also, the provisions of the Limitation Act do not necessarily bar an equitable set-off and the provisions of Order VIII Rule 6 do not do away with the principles of equitable set-off.

It has been opined that a plea in the nature of equitable set-off is not available when the cross-demands do not arise out of the same transaction and not connected in its nature and circumstances.

When a plea in the nature of equitable set-off is raised it is not done as of right and the discretion lies with the court to entertain and allow such plea or not to do so.

SC : Tested on the aforesaid principles we are disposed to think that the Division Bench has rightly allowed the amendment on the base that the claim put forth could be treated equitable set-off, for the stand taken in the amendment can be looked upon as a part of one transaction.

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CPC Case Brief – Karam Chand Thapar (Set off rule)

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Facts – Central government is obliged to disburse a certain amount for the purpose of grant of stowing materials and related functions to Coal Company and this amount is to be used only for these stowing purposes and no other purposes.  Coal Company is obliged to pay a royalty to the Central government for extracting sand. Issue arises that due to arrears (unpaid dues) of royalty by the Coal Company, the Central government in order to recover the same has set the dues against the stowing funds.

Issue – Whether the Central Government can withhold the release of stowing assistance, which is its statutory obligation to do, for the purpose of satisfying its demand of money arising under the contractual obligation (i.e. in mining lease) incurred by the Coal Company qua it?

Holding – A plea in the nature of equitable set-off is not available when the cross-demands do not arise out of the same transaction.

Also, in this case, the court does not allow the company to get damages as stowing funds are needed for the safety of workers and not giving them would be hazardous to lives of workers and it would not be equitable.

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CPC Case Brief – S.C. Jain vs Bindeshwari Devi

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  • Consolidation of suits is a Judge made technique devised ex debito justicia. The fountain source of power in Section 151 of the Code of Civil Procedure which provides saving of inherent power of court-the guiding force and paramount consideration being achieving the ends of justice and preventing abuse of the process of the court.
  • The object behind consolidation is to avoid multiplicity of suits or proceedings, to eliminate chances of conflicting decisions on the same point, to prevent delay and to avoid unnecessary costs and expenses.
  • When two suits having been filed the matter in issue in the later suit is also directly and substantially in issue in a previously instituted suit between the same parties. Either party may by placing reliance on S. 10 CPC, seek a stay of the subsequent suit or by placing reliance on S. 151 of the Civil Procedure Code seek stay of earlier suit on account of the latter instituted suit being wider in its scope and impact on the issues arising for decision in the earlier instituted suit. In appropriate cases, the court may instead of staying one of the two suits direct consolidations of the two suits.
  • Broadly speaking, if consolidation is likely to create complications at the trial or may prejudice rights of the parties either because the issues are not all common or because the parties are not common, the Court may not consolidate the suits. Consolidation may be preferred to stay in the court may deem it expeditious and advantageous to do so.
  • When the parties file suits against each other, though arising out of the same cause of action Consolidation would be expedient and advisable because of the identity of the cause of action and of the evidence likely to be adduced.
  • If the trial of two suits was likely to lead to a conflict of decisions on the same point it was a very important consideration to be kept in view for deciding the question of consolidation even without the consent of parties.
  • If the parties and the issues in the two suits are common, though different reliefs have been claimed, the consolidation of suits would result in the two suits losing their distinct entity; for all practical purposes after consolidation the two suits would be treated as one capable of being disposed of by one judgment and one decree.
  • Though the circumstances warranting an exercise of jurisdiction in favour of consolidation may be available yet the court may decline to consolidate the suits or the trial thereof. If the party opposing the consolidation may be able to demonstrate prejudice to, his case by consolidation.
  • The jurisdiction to consolidate the suits can be exercised by the court only when the two suits are before it. if the suit is pending before different courts and a party may be desirous of seeking consolidation then its appropriate remedy is to move the High Court or the District Court, as the case may be, for transferring the two suits in one court.

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CPC Case Brief – State of Kerala v. Sudhir Kumar Sharma

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The Plaintiff has filed for Leave of the court under section 80(2) and a defendant has filed an application for rejection of the plaint. The trial court rejected the application of the defendant for rejection of the plaint. Then the defendant appealed to the high court, High court has also upheld the decision of the trial court. But, the High Court noted that application regarding the issuance of notice under sec 80(2) filed by the plaintiff was pending before the Trial Court and yet applications praying for rejection of the plaint by the defendant had been heard and rejected by the Trial Court.  The High court, therefore, presumed that since the leave under section 80(2) was not rejected by the trial court, so it might be granted. Yet no order was passed by the Trial Court, but the High Court presumed that the leave has been granted to the plaintiff, so High court also upheld the decision of the trial court and granted the leave under section 80(2).

ISSUE: Whether there can be any presumption with regard to grant of the application filed under Section 80(2) of the CPC, even if no order was passed on the said application.


  • If an application has been filed under Section 80(2) of the CPC, the Court should consider the facts and take a look at the circumstances in which the leave was sought for filing the suit without issuance of notice under Section 80(1)
  • For the purpose of determining whether such an application should be granted, the court is supposed to give a hearing to both the sides and consider the nature of the suit and urgency of the matter before taking a final decision.
  • By merely filing of an application, it should not be presumed that the application is granted. If such a presumption is accepted, it would mean that the court has not to take any action in pursuance of such an application and if the court has not to take any action, then we fail to understand as to why such an application should be filed.


  • The court, therefore, comes to the conclusion that mere filing of an application under Section 80(2) of the CPC would not mean that the said application was granted by the trial court. The court should look at the matter, apply its mind and then it should pass the order.
  • The court then has quashed and set aside the judgement of both Trial court and High court and found that there was no urgent and immediate urgency was there, which has constrained the plaintiff from issuing the notice to the defendant.

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