Category: Law School

You can grab notes on other topics of CPC here.

• The appeals raise a short but interesting question of frequent recurrence as to the power of the appellate court to interfere with and reverse or modify the decree appealed against by the appellants in the absence of any, cross-appeal or cross-objection by the respondent under Order 41 Rule 22 of CPC and the scope of power conferred on the appellate court under Rule 33 of Order 41 CPC.
• Thus it is clear that just as an appeal is preferred by a person aggrieved by the decree so also a cross-objection is preferred by one who can be, said to be aggrieved by the decree. A party who has fully succeeded in die suit can and needs to neither prefer an appeal nor take any cross-objection; though certain finding may be against him. Appeal and cross-objection, both are filed against the decree and not against the judgment and certainly not against any finding recorded in a judgment.

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 for declaration of title and recovery of possession and issuance of a permanent preventive injunction restraining the defendant from interfering with the possession of the plaintiff over the suit property.

Issue

• What is the substantial question of law in the case and whether High Court can hear the case?
• Section 100 talks about the second appeal. 100 (3) says that substantial question of law is the sine qua non for the exercise of jurisdiction under section 100.
• In Rimmalapudi, the court laid down a test. The test for determining whether a question of law is substantial or not is whether it is of general public importance or whether it 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 is not free from any difficulty or calls for discussion.

Holding

• The Court held that the substantial question of law existed in the case and High Court must have heard it. It stated the question as
• “Whether on the pleadings and the material brought on record, the first appellate Court was right in holding that the case of adverse possession was made out by the defendant and the suit filed by the plaintiff was liable to be dismissed as barred by time under Article 65 of the Limitation Act, more so when such finding was arrived at in rehearsal of the findings of the trial Court?”
• The second appeal of the plaintiff is allowed and the case is remitted back to the High Court for deciding the second appeal afresh.

You can grab notes on other topics of CPC here.

 

You can grab notes on other topics of CPC here.

Facts:

• Municipal Committee took an electricity connection from Punjab State Electricity Board.
• The average bill for the consumption of electricity came to around 5000 p.m. which was paid regularly.
• A new bill to the tune of Rs 82, 300 was served to the appellant.
• Considering the amount was high, the plaintiff filed a suit challenging the said bill.
• The Board contended that there was a connection problem and the meter was showing only 1/3 of the actual consumption of the energy and once the connection was restored the reading of the meter jumped three times.
• The appellant contended it again.

Issue:

• Whether any prejudice needs to be shown by the appellant if no substantial question of law was framed by the High Court and no chance of hearing was given to him?
• Right to appeal is a creation of statute and it cannot be created by acq of parties or by the order of the Court.
• The existence of substantial question law is the condition precedent for entertaining the second appeal.
• In Leela Soni v. Rajesh Goyal, it was held that the power of High Court under section 100 is confined to framing of substantial question of law involved in the second appeal and decides the same.
• The power under section 103 can be exercised by the High Court only if the core issue involved in the case hasn’t been decided by the trial court or the appellate court and the relevant material is available on record to adjudicate upon the said issue.

Holding:

• No prejudice needs to be shown.
• The revised bill could not be held to be showing the correct quantity of energy consumed and hence the findings of the trial court and the first appellate court are correct.
• The High Court could not decide without forming the substantial question of law and this case could not be warranted under section 103. The judgment and decree of the High Court are set aside.

You can grab notes on other topics of CPC here.

 

You can grab notes on other topics of CPC here.

• 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.

You can grab notes on other topics of CPC here.

 

You can grab notes on other topics of CPC here.

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.

You can grab notes on other topics of CPC here.

 

You can grab notes on other topics of CPC here.

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.

You can grab notes on other topics of CPC here.

 

You can grab notes on other topics of CPC here.

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.

You can grab notes on other topics of CPC here.

 

You can grab notes on other topics of CPC here.

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.

You can grab notes on other topics of CPC here.

 

You can grab notes on other topics of CPC here.

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.

You can grab notes on other topics of CPC here.