Tag Archives: civil procedure code

Party Sought to be Impleaded – Must Have a Direct Interest in the Subject Matter of Litigation

It is trite that the question of addition of parties under Order I Rule 10(2) is not one of the initial jurisdiction of the Court but of a judicial discretion which has to be exercised in view of the facts and circumstances of a particular case. Under the provisions of Order I Rule 10(2), the Court is empowered to direct that a person be added as party to the suit, if his presence in court is necessary in order to enable the court to adjudicate all the questions involved in the suit effectively and completely. The real test to determine whether a party is a necessary party to the suit is, whether in the absence of the person sought to be impleaded as a party to the suit, the controversy raised in the suit cannot be effectively and completely adjudicated. It is also well recognised that the expression “to settle all questions” employed in sub-rule (2) of Rule 10 of Order I receives a liberal and wide interpretation so as to facilitate the adjudication of all the questions pertaining to the subject matter of the suit. The jurisdictional condition is that the party sought to be impleaded must have a direct interest in the subject matter of litigation in contra-distinction to a commercial interest. Obviating multiplicity of proceedings is also one of the objects of the said provision. Jayashree Chandrakant Thite v. Padmavati Mohanlal Parekh, Chamber Summons No. 1359 of 2000 in Suit No. 2231 of 1986, Decided on February 7, 2020.

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Suit on – Separate and Distinct Causes of Action

Dealing with Order II, Rule 2, CPC, Hon’ble Apex Court in Kewal Singh v. Lajwanti, AIR 1980 SC 161, held that this provision has no application to cases where the plaintiff has based his suit on separate and distinct causes of action and chooses to relinquish one or the other of them and that in such cases, it is always open to the plaintiff to file a fresh suit on the basis of a distinct cause of action. Lalit Kumar Upreti v. Chunni Lal Gujral, 2018 (4) AWC 3693.

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In case of More than One Cause of Action – Order 2 Rule 2 CPC Will Not Apply

        It is undoubtedly true that the law does not compel a litigant to combine one or more cause of action is a suit. It is open to a plaintiff, if he so wishes, however to combine more than one cause of action against same parties in one suit. However, it is undoubtedly true that the embargo in Order 2 Rule 2 CPC will arise only if the claim, which is omitted or relinquished and the reliefs which are omitted and not claimed, arise from one cause of action. If there is more than one cause of action, Order 2 Rule 2 CPC will not apply. It is undoubtedly also true that Order 2 Rule 2 CPC manifests a technical rule as it has the effect of posing an obstacle in the path of a litigant ventilating his grievance in the Courts. But there is an equally important principle that no person shall be vexed twice on the same cause of action. Pramod Kumar v. Zalak Singh, (2019) 6 SCC 621.

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Application under Section 36(3) of the Arbitration Act – Provisions of CPC are Not Mandatory

Sub-section (3) of Section 36 of the Arbitration Act mandates that while considering an application for stay filed along with or after filing of objection under Section 34 of the Arbitration Act, if stay is to be granted then it shall be subject to such conditions as may be deemed fit. The said sub-section clearly mandates that the grant of stay of the operation of the award is to be for reasons to be recorded in writing “subject to such conditions as it may deem fit”. The proviso makes it clear that the Court has to “have due regard to the provisions for grant of stay of a money decree under the provisions of the Code of Civil Procedure”. The phrase “have due regard to” would only mean that the provisions of CPC are to be taken into consideration, and not that they are mandatory. While considering the phrase “having regard to”, this Court in Shri Sitaram Sugar Co. Ltd. v. Union of India, (1990) 3 SCC 223 has held as under :

“The words “having regard to” in sub-section are the legislative instruction for the general guidance of the Government in determining the price of sugar. They are not strictly mandatory, but in essence directory”.

 In the present context, the phrase used is “having regard to” the provisions of CPC and not “in accordance with” the provisions of CPC. In the latter case, it would have been mandatory, but in the form as mentioned in Section 36(3) of the Arbitration Act, it would only be directory or as a guiding factor. Mere reference to CPC in the said Section 36 cannot be construed in such a manner that it takes away the power conferred in the main statute (i.e. the Arbitration Act) itself. It is to be taken as a general guideline, which will not make the main provision of the Arbitration Act inapplicable. The provisions of CPC are to be followed as a guidance, whereas the provisions of the Arbitration Act are essentially to be first applied. Since, the Arbitration Act is a self-contained Act, the provisions of CPC will apply only insofar as the same are not inconsistent with the spirit and provisions of the Arbitration Act. Pam Developments (P) Ltd. v. State of W.B., (2019) 8 SCC 112

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Limitation Law – Exemptions from

Order 7 Rule 6 Civil Procedure Code uses the words “the plaint shall show the ground upon which exemption from such law is claimed”. The exemption provided under Sections 4 to 20 of the Limitation Act, 1963 are based on certain facts and events. Section 19, with which we are concerned, provides for a fresh period of limitation, which is founded on certain facts i.e. (i) whether payment on account of debt or of interest on legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy, (ii) an acknowledgment of the payment appears in the handwriting of, or in a writing signed by, the person making the payment.

In Sant Lal Mahton v. Kamla Prasad, AIR 1951 SC 477, the Hon’ble Supreme Court held that for applicability of Section 20 of the Limitation Act, 1908, two conditions were essential that the payment must be made within the prescribed period of limitation and it must be acknowledged by some form of writing either in the handwriting of the payer himself or signed by him. It was further held that for claiming benefit of exemption under Section 20, there has to be pleading and proof. In paras 9 and 10 of the said Judgments, the following has been laid down:

9. It would be clear, we think, from the language of Section 20, Limitation Act, that to attract its operations two conditions are essential: first, the payment must be made within the prescribed period of limitation and secondly, it must be acknowledged by some form of writing either in the handwriting of the payer himself or signed by him. We agree with the Subordinate Judge that it is the payment which really extends the period of limitation under Section 20, Limitation Act; but the payment has got to be proved in a particular way and for reason of policy the legislature insists on a written or signed acknowledgment as the only proof of payment and excludes oral testimony. Unless, therefore, there is acknowledgment in the required form, the payment by itself is of no avail. The Subordinate Judge, however, is right in holding that while the section requires that the payment should be made within the period of limitation, it does not require that the acknowledgment should also be made within that period. To interpret the proviso in that way would be to import into it certain words which do not occur there. This is the view taken by almost all the High Courts in India and to us it seems to be a proper view to take. (See Mohd. Moizuddin Mia v. Nalini Bala Devi, AIR 1937 Cal 284; Lal Singh v. Gulab Rai, ILR (1933) 55 All 280, Venkata Subbhu v. Appu Sundaram, ILR (1894) 17 Mad 92, Ram Prasad Babu v. Mohan Lal Babu AIR 1923 Nag 117 and Vishwanath Raghunath Kale v. Mahadeo Rajaram Saraf, ILR (1933) 57 Bom 453)10. … If the plaintiff’s right of action is apparently barred under the statute of limitation, Order 7 Rule 6, Civil Procedure Code makes it his duty to state specifically in the plaint the grounds of exemption allowed by the Limitation Act, upon which he relies to exclude its operation; and if the plaintiff has got to allege in his plaint the facts which entitle him to exemption, obviously these facts must be in existence at or before the time when the plaint is filed; facts which come into existence after the filing of the plaint cannot be called in aid to revive a right of action which was dead at the date of the suit. To claim exemption under Section 20, Limitation Act, the plaintiff must be in a position to allege and prove not only that there was payment of interest on a debt or part-payment of the principal, but that such payment had been acknowledged in writing in the manner contemplated by that section.” Shanti Conductors (P) Ltd. v. Assam SEB, (2020) 2 SCC 677.

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Appellate Jurisdiction vis-à-vis Revisional Jursidiction

A revision petition has a narrower scope than an “appeal”. In Sri Raja Lakshmi Dyeing Works v. Rangaswamy Chettiar, (1980) 4 SCC, the dictinction between “appellate jurisdiction” and “revisional jurisdiction” was discussed as follows:

        “Appeal” and “revision” are expressions of common usage in Indian statute and the distinction between “appellate jurisdiction” and “revisional jurisdiction” is well known though not well defined. Ordinarily, appellate jurisdiction involves a rehearing, as it were, on law as well as fact and is invoked by an aggrieved person. Such jurisdiction may, however, be limited in some way as, for instance has been done in the case of second appeal under the Code of Civil Procedure, and under some Rent Acts in some States. Ordinarily, again, revisional jurisdiction is analogous to a power of superintendence and may sometimes be exercised even without its being invoked by a party. The extent of revisional jurisdiction is defined by the statute conferring such jurisdiction. The conferment of revisional jurisdiction is generally for the purpose of keeping tribunals subordinate to the revising Tribunal within the bounds of their authority to make them act according to law, according to the procedure established by law and according to well defined principles of justice.”

        In Hindustan Petroleum Corpn. Ltd.  v.  Dilbahar Singh  (2014) 9 SCC 78 it was held that:

“Conceptually, revisional jurisdiction is a part of appellate jurisdiction but it is not vice versa. Both, appellate jurisdiction and revisional jurisdiction are creatures of statutes. No party to the proceeding has an inherent right of appeal or revision. An appeal is continuation of suit or original proceeding, as the case may be. The power of the appellate court is co-extensive with that of the trial court. Ordinarily, appellate jurisdiction involves rehearing on facts and law but such jurisdiction may be limited by the statute itself that provides for appellate jurisdiction. On the other hand, revisional jurisdiction, though, is a part of appellate jurisdiction but ordinarily it cannot be equated with that of a full-fledged appeal. In other words, revision is not continuation of suit or of original proceeding. When the aid of revisional court is invoked on the revisional side, it can interfere within the permissible parameters provided in the statute.” Ordinarily, the power of revision can be exercised only when illegality, irrationality, or impropriety is found in the decision making process of the for a below. Karnataka Housing Board v. K.A. Nagamani. (2019) 6 SCC 424

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Summons – Object of

Indeed, mentioning of the specific “day, year and time” in the summons is a statutory requirement prescribed in law (Civil Procedure Code) and, therefore, it cannot be said to be an empty formality. It is essentially meant and for the benefit of the defendant because it enables the defendant to know the exact date, time and place to appear in the particular court in answer to the suit filed by the plaintiff against him.

       If the specific day, date, year and the time for defendant’s appearance in the court concerned is not mentioned in the summons though validly served on the defendant by any mode of service prescribed under Order 5, it will not be possible for him/her to attend the court for want of any fixed date given for his/her appearance.

       The object behind sending the summons is essentially threefold-first, it is to apprise the defendant about the filing of a case by the plaintiff against him; second, to serve the defendant with the copy of the plaint filed against him; and third, to inform the defendant about actual day, date, year, time and the particular court so that he is able to appear in the court on the date fixed for his/her appearance in the said case and answer the suit either personally or through his lawyer. Auto Cars v. Trimurti Cargo Movers Pvt. Ltd., (2018) 15 SCC 166.

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Substantial Question of Law

In Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179, the Hon’ble Supreme Court considered what the phrase “substantial question of law” means as under:

       “The phrase is not defined in the CivilProcedure Code. The word “substantial”, as qualifying question of law, means of having substance, essential, real, of sound worth, important or considerable.It is to be understood as something in contradistinction with technical, of no substances or consequence, or academic merely.”

       A full bench of the Hon’ble Madras HighCourt in Rimmalapudi Subba Rao v. Noony Veeraju, AIR 1951 Mad 969 observed as under:

       “When a question of law is fairly arguable, where there is room for difference of opinion or where the court thought it necessary to deal with that question at some length and discuss an alternative view, then the question would be a substantial question of law. On the other hand, if the question was practically covered by decision of highest court or if general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of case, it could not be a substantial question of law.”

       It was further observed in Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179 as under:

       “A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be substantial, a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from  the substantial findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. I twill, therefore, depend on the facts and circumstances of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.” Ajay Kumar Jaiswal v. Sanjay Kumar Jaiswal, 2018 (130) ALR408.

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Term “Interlocutory Order” – Meaning of

In Mohan Lal Magan Lal Thacker v. State of Gujarat, AIR 1968 SC 733 it was held as under:

“The term interlocutory order is a term of well known legal significance and does not present any serious difficulty. It has been used in various statutes including the Code of Civil Procedure, Letters Patent of the High Courts and other like Statutes. In Webster’s New World Dictionary “interlocutory” has been defined as an order other than final decision. Decided cases have laid down that interlocutory orders to be appealable must be those which decide the right and liabilities of the parties concerning a particular aspect. The term interlocutory order in Section 397 (2) of the CRPC has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the rights of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order. Yogish Arora v. Smt. Jennette Yogish Arora, 2018 (129) ALR 339.

 

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Jurisdiction of First Appellate Court – To accept additional evidence

As far as the principles governing the jurisdiction of the First Appellate Court to take/accept the additional evidence on record under Order XLI, Rule 27, CPC, the guidelines had been issued by the Apex Court in Union of India v. Ibrahim Uddin, (2012) 8 SCC 148 as under:
1. The general principle is that the Appellate court should not travel outside the record of the Lower Court and cannot take any evidence in appeal.
2. The powers under Order XLI, Rule 27 CPC given to the first appellate court to take additional evidence is in the nature of exception and has to be exercised in exceptional circumstances with due care and caution.
3. The Appellate court may permit additional evidence only and only if the conditions laid down in the said rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence.
4. The matter is entirely within the jurisdiction of the court and is to be used sparingly as the discretion provided therein circumscribed by the limitations specified in the rule.
5. The court shall not ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. Similarly, where a party on whom the onus of proving a certain issue lies fails to discharge the same, would not be entitled to a fresh opportunity to adduce evidence as in such a case the court can pronounce judgment against him and does not require any additional evidence to enable it to pronounce its judgment in appeal.
6. Under Order XLI, Rule 27, CPC, the power given to the appellate court to allow a document to be produced or a witness to be examined, is limited to those cases where it is found necessary to obtain such evidence for enabling it to pronounce judgment. It does not entitle the Appellate Court to allow a party to remove lacuna in the evidence or supplement the evidence adduced by one party.
7. In the absence of satisfactory reasons for the non production of the evidence in the trial court, additional evidence could not be admitted in appeal as a party guilty of remissness in the lower court is not entitles to the indulgence of being allowed to give further evidence under this rule. Thus a party who had ample opportunity to produce certain evidence in the lower court but failed to do so or chose not to do so, cannot have it admitted in appeal.
8. The inadvertence of the party or his inability to understand the legal issue involved or the wrong advice of the pleader or the negligence of the pleader or that the party did not realize the importance of the document does not constitute a “substantial cause” within the meaning of this rule. Mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal.
9. The words “for any other substantial cause” must be read with the word “requires” in the beginning of the sentence, meaning thereby the rule that the appellate court requires additional evidence for any substantial cause, will apply in such a case where it is felt by the appellate court that the evidence had been so imperfectly taken by the trial court that it cannot pass a satisfactory judgment.
10. Wherever the appellate court admits additional evidence, it should record its reasons for doing so, as per sub rule (2) of Rule 27 of Order XLI, CPC. The requirement in the said sub rule is with a view to put a check against too easy reception of evidence at a later stage of the litigation and further that the statement of reasons inspires confidence of the litigant and disarm objection. The omission to record the reasons must, therefore, be treated as a serious defect. However, the said provision is only directory and not mandatory, if the admission of such evidence can be justified under the rule.
11. The reasons so required, are not necessarily to be recorded in a separate order and may be embodied in the judgment of the Appellate Court.
12. Mere reference to the peculiar circumstance of the case or mere statement that the evidence is necessary to pronounce judgment or that the additional evidence is required to be admitted in the interest of justice, or there is no reason to reject the prayer for admission of the additional evidence, is not enough compliance with the requirement as to recording of reasons.
13. Where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed. Smt. Sendal (deceased) v. Smt. Hamida, 2018 (138) RD 535.

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