Karnataka High Court
Case BriefsHigh Courts

Karnataka High Court: In the instant petition for quashment, the issue arose that whether a legal heir should be permitted to come on record and prosecute the case in place of the informant or with the death of the informant, the act initiated by the informant also dies? The Bench of M. Nagappasanna, J., while relying upon several decisions rendered by the High Courts of Madras and Allahabad, inferred that a genuine victim must be permitted to come on record and the definition of ‘victim’ as found in Section 2(wa) of CrPC cannot be rendered a restrictive meaning and must be liberally construed.

Facts of the Case: K.T. Rajashekar (Complainant/2nd Respondent), approached the Scania Commercial Vehicles (1st Petitioner) in the capacity of Proprietor of SRS Travels, a business establishment in the field of tours and travels in the country and with a fleet of more than 4000 buses. The complainant showed interest in procuring Scania buses and by entering into an agreement to purchases buses from the petitioners.

The purchases took place in batches between 2014 and September 2018 and total of 77 buses were purchased by the complainant from Scania. However, after purchase of buses, the complainant registered a complaint before the jurisdictional police on the ground that the buses had some malfunctioning in them, and that the complainant was burdened with numerous problems in the operation and maintenance of vehicles which has led to huge loss of finance and goodwill of his customers.

The registration of complaint drove the petitioners to the Court and an interim stay was granted by the High Court in June 2020. However, during the pendency of the subject petition, the complainant died. An application was filed by his legal representative (daughter), to come on record and prosecute the case further, which was objected by the petitioners.

The petitioners contended that the legal representative of an informant/complainant has no personal right to come on record. Arguing on the lines of “Actio personalis moritur cum persona”, the petitioners submitted that the complainant had registered the complaint on his personal right; and since the complainantis dead, the cause of action is dead as well.

Per contra, the respondent argued that the matter is at the stage of investigation and the informant, or his legal heir is a necessary party to the proceedings. The respondent prayed that the meaning of “victim” should be given a liberal meaning and permit legal heir of the complainant to come on record.

Observations: Perusing the facts and contentions presented, the Court observed that whether locus standi is alien to criminal jurisprudence and liberal interpretation of the word “victim” as defined in Section 2(wa), CrPC, are the main issues involved in the instant petition.

The Court further observed the definition of “victim” and “charge” as defined in the CrPC and referred to the decision of the Allahabad High Court in Suneel Kumar Singh v. State of U.P., 2019 SCC OnLine All 957, wherein the Court had stated that “the victim should not be kept aloof from the judicial process in which the wrongdoers are undergoing the process of ascertainment of his guilt for wrong committed by him”.

The Karnataka High Court also referred to a decision rendered by the Single Judge Bench of Madras High Court in Sathyavani Ponrani v. Samuel Raj, 2010 SCC OnLine Mad 3758, wherein the Court had concluded that, “The word ‘victim’ would also include a legitimate and genuine person representing a victim”. The Karnataka High Court further observed that the Madras High Court’s decision considered in detail the entire spectrum of law with regards to the concept of ‘victim’ and held that victim would be necessary to be heard and has locus to step into the shoes of the informant.

Decision: Based on the afore-stated observations, the Court noted that due to the acts of the petitioners, the proprietorship of SRS Travels suffered huge losses and the same were transferred to the legal representative who claims to be the only legal heir of the complainant.

It was concluded that even on a restrictive meaning of the word “victim”, in the peculiar facts of this case, the legal heir in the instant case must be permitted to come on record, as the matter is still at the stage of investigation and the police have not yet filed the charge sheet.

The Court also rejected the petitioner’s argument of “Actio personalis moritur cum persona” and held that in the peculiar facts of the instant case, as the cause continues, the legal heir who has stepped into the shoes of the complainant is entitled to agitate the cause brought up by complainant.

The Court therefore permitted the daughter of the complainant to come on record in place of the complainant as the legal heir as she has locus to continue the case on the allegations initiated by her father particularly in the light of the offences being under Sections 406, 420 and 120-B of the Penal Code, 1860.

[Scania Commercial Vehicles India Pvt. Ltd. v. State of Karnataka, 2022 SCC OnLine Kar 1590, decided on 03-09-2022]

Advocates who appeared in this case :

C.V. Nagesh, Sr. Advocate A/W Shwetha Ravishankar, Advocate, for the Petitioners;

K.P. Yashodha, HCGP FOR R1; Sandesh J. Chouta, SR. Advocate for Ismail M. Musba R2, Advocates for Respondents.

*Sucheta Sarkar, Editorial Assistant has prepared this brief.

Case BriefsHigh Courts

Delhi High Court: Asha Menon, J., emphasized the law on territorial jurisdiction while addressing the present matter.

Present petition was filed impugning the order of Additional District Judge.

Petitioner was the defendant before the Trial Court. Respondent had filed a suit against the petitioner/defendant for the recovery of a sum of Rs 28, 43, 209.68/.

The claim of the respondent was that it was a well-known manufacturer providing a portfolio of solutions for packaged power, diversified generation, electrical control and safety and energy optimization.

Petitioner/defendant was the regional stockists and distributors, who were appointed to procure/buy goods being traded by the respondent/plaintiff and supply them to wholesalers and retailers of the respondent/plaintiff in the market, who, in turn, would sell the same to the consumers.

Further the respondent/plaintiff claimed that a running current account was maintained with the petitioner/defendant against which a statement of account/ledger was regularly maintained by it in the normal course of business.

A sum of Rs 28,43, 209.68 was due and payable by the petitioner/defendant. Hence the present suit was filed.

Petitioner/Defendant’s counsel, Deepika Mishra submitted that Trial Court had fallen into error in determining its jurisdiction as it relied on English case law that the ‘debtor must seek the creditor’, whereas it was bound to follow Section 20 of the Civil Procedure Code, 1908.

Section 20 clearly provides that a Court within whose local limits the cause of action, “wholly or in part”, arises, would have territorial jurisdiction to try the suit.

The registered office of the petitioner/defendant was in West Bengal.

Petitioner/Defendant’s counsel submitted that the invoice itself recorded a Kolkata address. The warehouse was also stated to be located in West Bengal and therefore, the goods were neither dispatched from Delhi nor the invoices were raised at Delhi. counsel for the respondent/plaintiff pointed to the “subject to jurisdiction of court of Delhi only” clause in the invoices. There does not appear to have been any demurrer by the petitioner/defendant against this clause.

Hence, in light of Section 20 of CPC, the Court found some strength in the contention of respondent/plaintiff that on the basis of the ‘place of work’ of the petitioner/defendant, as well as the part cause of action of supply of goods, both reflected jurisdiction of the West Bengal courts.

However, the respondent/plaintiff has also claimed that payments were to be received in Delhi and therefore, part cause of action has arisen in Delhi and as such, the clause in the invoices referred to hereinabove did not confer jurisdiction at a place which had no jurisdiction.

In Court’s opinion, the suit could be filed at Delhi and Trial Court had not committed any error in answering the preliminary issue.

Bench stated that, when the part cause of action had arisen on account of the payments made by the petitioner/defendant directly into the bank account of respondent/plaintiff, even if these were not on regular basis, and there is nothing to show that the place of payment had been fixed, even without following the principle that the ‘debtor must seek out the creditor’, it was clear that the Delhi Courts have jurisdiction to try the suit and the invoice does not vest jurisdiction in a court which had no jurisdiction at all.

In view of the foregoing discussion, the High Court found no merit in the petition. [Auto Movers v. Luminous Power Technologies (P) Ltd.,  2021 SCC OnLine Del 4387, 16-09-2021]

Advocates before the Court:

For the petitioner: Deepika Mishra, Advocate

For the respondent: Pallav Saxena, Deepak Chawla, Aruj Dhingra and Neeraj Malik, Advocates

Case BriefsHigh Courts

Delhi High Court: Sanjeev Narula, J., while addressing the present matter held that prima facie view on territorial jurisdiction has to be on the basis of averments made in the plaint, and the documents relied upon by the plaintiff and in case the same brings out the ingredients for establishing the jurisdiction of the court, that would be sufficient for the court to assume jurisdiction.

Instant suit was filed to seek a permanent injunction restraining infringement of trademark and passing off; infringement of copyright, trade dress, breach of confidentiality; misappropriation of trade secrets, etc.

Further, it was noted that defendant 1 was based in Ahmedabad, defendant 2 in Chandigarh and defendants 3 and 4 in Punjab, whereas the plaintiff was based in Chandigarh.

Defendant 1 sought the return of the plaint on the following grounds:

  • Defendant 1 has its registered office in Ahmedabad and has been operating its business from the said jurisdiction. The plaintiffs have also admitted that they have been operating in Ahmedabad and other cities of Gujarat.
  • Claims of the Plaintiffs regarding the alleged violation of the impugned rights as well as alleged confusion caused in the market relate to Ahmedabad and other cities of Gujarat and therefore if at all there was any cause of action in favour of the plaintiffs, the same would have accrued in Ahmedabad, Gujarat and certainly not in Delhi. Plaintiffs deliberately chose to file the present proceedings before the Court to cause hardship and inconvenience to defendant 1, even though proper jurisdiction to file the present suit would have been Ahmedabad, Gujarat.
  • Address reflected on the trademark applications/registrations on which the plaintiffs have based their claims and grounds are also of Chandigarh.
  • Further, it was stated that it is settled that jurisdiction can only be invoked on the basis of online presence if the allegedly infringing article can be purchased online within the said jurisdiction.

Plaintiff submitted that since the defendants have been contacting the parties at Delhi for establishing their franchisees, including plaintiffs’ Master Franchisee in Delhi for converting them to the Defendants Master Franchiseee. Therefore, the cause of action arose in Delhi. Further, he added that in case the defendants do not intend to expand their operation in Delhi, they should make a statement to that effect.

Analysis, Law and Decision

Bench held that the question of territorial jurisdiction in matters relating to infringement of trademarks is well-settled.

Stating that Section 134(2) of the Trade Marks Act, 1999 and also Section 62(2) of the Copyrights Act, 1957 are in addition to Section 20 of the CPC, Court opined that, the plaintiff was entitled to file the suit for infringement of trademark where the cause of action arose under Section 20(c) of CPC.

High Court found that the averments made in the plaint disclose a cause of action in Delhi.

Further, it was stated that the plaintiffs contended that the defendant were openly and publicly expressing their intention to expand all across the country and were entertaining franchisee queries within the territory of Delhi.

Bench found the contention of defendants that mere alleged apprehension in the pleadings, unsubstantiated by documentary evidence, can never be a basis to seek jurisdiction – incorrect.

Considering the nature of business, the prior relationship of the parties, and the business format of establishing franchisees, it cannot be assumed that the Plaintiffs’ allegations are mis-founded or could be construed as false, in absence of any documentary proof.

In view of the above, the occurrence of the cause of action, jurisdiction, which was the determinative factor under Section 20 of the CPC, clearly vests in this Court and defendant would have to prove their contentions during the trial.

Matter to be listed for arguments on remaining applications on 21-9-2021. [Copenhagen Hospitality and Retail v. A.R. Impex,    2021 SCC OnLine Del 3899, decided on 29-7-2021]

Advocates before the Court:

For the Plaintiffs:

Mr. Chander M. Lall, Senior Advocate with Mrs. Bindra Rana, Mr. Vikrant Rana, Mr. Priya Adlakha, Ms. Tanvi Bhatnagar, Ms. Rima Majumdar, Ms. Nancy Roy and Ms. Ananya Chug, Advocates.

For the Defendants:

Mr. Neeraj Grover, Advocate with, Mr. K.C. Patel, Mr. Naqeeb Nawab, Mr. Himanshu Deora, Mr. Shashwat Rakshit & Mr. Raghav Vig, Advocates for D-1.

Mr. Gautam Singh, Advocate for D-2.

Op EdsOP. ED.

A. Introduction

Section 12 of the Code of Civil Procedure, 1908[1] (hereinafter referred to as “CPC” for sake of brevity) provides that where a plaintiff is precluded from instituting a further suit in respect of a particular cause of action, then he shall not be entitled to institute a suit in respect of that cause of action in any court to which the CPC applies. The rationale underlying this provision is the prevention of (i) endless litigation; (ii) wastage of court’s precious time; and (iii) abuse of legal procedure by litigants. Interest reipublicae ut sit finis litium i.e. it is in the interest of the society that litigation comes to an end. Therefore, if a plaint attracts Section 12 CPC, it is automatically not maintainable.

However, like almost every rule of law this one also has exceptions. One such exception is provided in sub-rule (3) of Order 23 Rule 1 CPC[2] [hereinafter referred to as “Order 23 Rule 1(3)” or “sub-rule (3)” for sake of brevity]. Simply put, under sub-rule (3), the trial court is empowered, upon an application, to allow a plaintiff to withdraw his defective suit, take necessary steps to cure that defect and then institute a fresh suit on the same cause of action and claiming same reliefs. This provision is quite important since in its absence, at a later stage of trial the maintainability of suit would be questioned by the defendant which could potentially make the entire process of civil trial (which normally takes decades in our country) infructuous, thereby robbing the plaintiff of his legal rights and remedies and leading to wastage of the court’s time and resources as well.

Over the years, Order 23 Rule 1(3) and its nuances have been interpreted by the Supreme Court of India and various High Courts across the country, sometimes leading to contradicting judicial opinions as well. Considering the fact that the commentary on this topic is limited, the purpose of this article is to analyse the jurisprudence pertaining to sub-rule (3) of Order 23 Rule 1 specifically and eventually highlight certain points that a plaintiff should keep in mind while withdrawing his suit if he desires to institute a fresh one on the same cause of action.

B. Order 23 Rule 1 CPC, 1908

Order 23 CPC provides for “withdrawal and adjustment of suits”. Rule 1 of this Order, as it stands today, was introduced vide the Code of Civil Procedure (Amendment) Act, 1976. It has 5 sub-rules, which are reproduced hereunder:

  1. Withdrawal of suit or abandonment of part of claim.—(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:

Provided that where the plaintiff is a minor or other person to whom the provisions contained in Rules 1 to 14 of Order 32 extend neither the suit nor any part of the claim shall be abandoned without the leave of the Court.

(2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person.

(3) Where the Court is satisfied—

(a) that a suit must fail by reason of some formal defect, or

(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim,

it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.

(4) Where the plaintiff—

(a) abandons any suit or part of claim under sub-rule (1), or

(b) withdraws from a suit or part of a claim without-the permission referred to in sub-rule (3),

he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.

(5) Nothing in this rule shall be deemed to authorise the court to permit one of the several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs.

Order 23 Rule 1 makes a distinction between two types of withdrawal[3]:

  1. Absolute withdrawal of the suit, termed as “abandonment of suit” made under sub-rule (1).— The plaintiff may abandon the suit or a part of his claim as a matter of his right and in this scenario, he shall be barred from instituting another suit on the same cause of action. This right cannot be reserved by the plaintiff without the court’s leave.
  2. Conditional withdrawal of the suit with liberty to institute a fresh one on the same cause of action with the leave of trial court made under sub-rule (3).— This would enable the plaintiff to avoid the bar under Section 12 CPC. “Invito beneficium non dature. the law confers upon a man no rights or benefits which he does not desire. Whoever waives, abandons or disclaims a right will lose it. In order to prevent a litigant from abusing the process of the court by instituting suits again and again on the same cause of action without any good reason the Code insists that he should obtain the permission of the Court to file a fresh suit after establishing either of the two grounds mentioned in sub-rule (3) of Rule 1 of Order 23.”[4]

If the plaintiff fails to withdraw the suit as specifically provided by sub-rule (3), he shall be barred from instituting a fresh suit on the same cause of action as is provided by sub-rule (4). It is also worth mentioning here that an order of trial court under sub-rule (3) is neither a decree nor an appealable order. However, such orders can be reviewed and revised.

It must be noted that sub-rule (3) of Order 23 Rule 1 is stringently adhered to by the courts. Any type of ambiguity or loose ends or vagueness on the part of the plaintiff can adversely affect his cause to a great extent, potentially leaving him remediless. An illustration of the same can be seen in Bakhtawar Singh v. Sada Kaur[5] wherein the Supreme Court observed that the plaintiff had failed to produce any evidence to show that leave to withdraw the suit and to institute a fresh one on the same cause of action was granted by the trial court under Order 23 Rule 1(3). The application praying for the said relief was not produced and the order of the trial court did not record what was the “formal defect” or “sufficient ground” by virtue of which the suit was sought to be withdrawn. The Supreme Court held that in light of these circumstances the plaintiff cannot be allowed to institute a fresh suit on the same cause of action.

C. Judicial interpretation of sub-rule (3) of Order 23 Rule 1 and its nuances

  1. “Formal defect” under clause (a) of sub-rule (3)

The Supreme Court in V. Rajendran v. Annasamy Pandian[6], after considering the judicial opinions of various High Courts, has held that “formal defect” is a defect of form prescribed by the rules of procedure. For example, want of notice under Section 80 CPC, improper valuation of the suit, affixing insufficient court fee, ambiguity regarding identification of the suit property, misjoinder of parties, failure to disclose a cause of action, etc. The Supreme Court further observed that “formal defect” must be given a liberal meaning which connotes various kinds of defects not affecting the merits of the plea raised by either of the parties. It can be observed that many of the “formal defects” pointed out by the Supreme Court are grounds for rejection of plaint under Order 7 Rule 11 CPC.

  1. Other “sufficient grounds” under clause (b) of sub-rule (3)

Since various High Courts have made diametrically opposite interpretations of the term other “sufficient grounds” in sub-rule (3)(b), it has always remained an area of contention, as will be seen from the case laws discussed herein. On one hand, the Madras High Court in C. Jagadeesan v. T. Baskaran[7], by relying on its own decision in Duraikannu v. Malayammal[8], has held that other “sufficient grounds” must be considered ejusdem generis[9] with “formal defect” in clause (a) of sub-rule (3) since such sufficient ground means a defect that does not result from the plaintiff’s own fault. Plaintiff’s failure to prove his case is not “sufficient ground” within the ambit of clause (b) of sub-rule (3).

On the other hand, the Orissa High Court has taken the exact opposite view in Trinath Basant Ray v. Sk. Mohamood[10]. In a reference made to it, the High Court relied on the Supreme Court’s decision in K.S.  v. Kokila[11] wherein it had observed that:

  1. … The legislative policy in the matter of exercise of discretion is clear from the provisions of sub-rule (3) in which two alternatives are provided; first, where the court is satisfied that a suit must fail by reason of some formal defect, and the other where the court is satisfied that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim…

Therefore, the Orissa High Court held that other “sufficient grounds” must not be restricted to “formal defect” or defects analogous thereto and the term is wide enough to include other defects as well since this is what the legislature had intended by putting “formal defect” and “sufficient grounds” in two different clauses of sub-rule (3).

It must be noted these contradicting judicial opinions were rendered recently in the same year (2019). Similarly, over the course of time, different High Courts have taken either one of the abovementioned views. The Supreme Court had an opportunity to specifically settle this question of law once and for all and perhaps decide the ambit of other “sufficient grounds” as well in V. Rajendran v. Annasamy Pandian[12]. However, it deliberately chose not to interpret the said term since the matter before it involved a formal defect only.

  1. “Subject-matter” under sub-rule (3)

The Supreme Court, in Vallabh Das v. Madan Lal[13], had to consider and define the term “subject-matter” since it is not defined by CPC. After considering the objective and purpose underlying sub-rule (3), it held that “subject-matter” means “cause of action” for instituting the suit, “relief” claimed by the plaintiff in such suit and “the bundle of facts that must be proved by the plaintiff in order to obtain relief from the court”. The Gujarat High Court has made the same interpretation in Narayan Jethanand v. Asapuri Vijay Saw Mill[14].

  1. Discretionary power of court

Sub-rule (3) of Order 23 Rule 1 is an exception to the principle of non-suit. An application under sub-rule (3) cannot be treated at par with absolute liberty given to the plaintiff under sub-rule (1). Under sub-rule (3), a prayer is sought for the trial court’s leave to withdraw the suit after satisfying it of the existence of a formal defect or other sufficient ground, as the case may be. After hearing the plaintiff, the power to allow withdrawal of the suit with liberty to institute a fresh one on the same cause of action is a discretionary power of the court.[15] However, it is the duty of the court to be satisfied about the existence of “formal defect” or other “sufficient ground” before granting the leave under sub-rule (3).[16]

  1. Effect of absence of a specific prayer for “liberty to institute a fresh suit” in the withdrawal application under Order 23 Rule 1

In Jonnala Sura Reddy v. Tityyagura Srinivasa Reddy[17], the Andhra Pradesh High Court has held that if the previously instituted suit is withdrawn vide a withdrawal memo wherein the plaintiff fails to make a specific prayer clearly seeking the trial court’s leave to institute a fresh suit on the same cause of action (although he intends to do so), then such subsequent suit is barred as is provided by sub-rule (4). Plaintiff cannot afford to make this costly error in any circumstances.

  1. At what stage of the trial can the plaintiff move an application under sub-rule (3)?

This question came before the Kerala High Court in Santhosh Vergis v. Shire Villa Owners Assn.[18]. An application under Order 23 Rule 1(3) was dismissed by the trial court on the grounds that it failed to disclose any “formal defect” and it was moved at the stage of final hearing of the matter and therefore was moved at a belated stage. When the matter was brought before it, the Kerala High Court held that a plaintiff can move the said withdrawal application at any stage of trial of civil suit (before its final disposal) thereby setting aside the trial court’s order. However, the plaintiff cannot withdraw a suit from which an appeal is preferred since it would destroy the decree passed by the trial court as well as the rights vesting in the defendant unless very strong reasons for withdrawal are shown that would not affect or disturb any party’s rights.[19]

  1. Can the subsequent suit be instituted before moving an application under sub-rule (3)?

This question was considered and answered by the Andhra Pradesh High Court in M.A. Faiz Khan v. Municipal Corpn. of Hyderabad[20]. The plaintiff instituted a second suit on the same cause of action and claiming same reliefs before withdrawing the previously instituted suit, which he should have by following the process under sub-rule (3). When the matter was brought before it, the Andhra Pradesh High Court considered that whether doing so would bar the trial court in which the previous suit was instituted from granting the leave under Order 23 Rule 1(3) CPC? The Court held that the plaintiff’s inadvertence would at best amount to an irregularity that can be cured. The court dealing with an application under sub-rule (3) should be only concerned with whether the conditions mentioned therein are satisfied. It should not be concerned whether such fresh suit is already filed or not. It was held that this approach would be salutary and in the interest of justice.

  1. Can the defendant raise an objection against a withdrawal application under Order 23 Rule 1?

This question came before the Supreme Court in Anil Kumar Singh v. Vijay Pal Singh[21]. The Supreme Court held that when a plaintiff files an application for simple withdrawal of suit under sub-rule (1), he does so as a matter of his right and the defendant cannot compel the plaintiff to prosecute the suit. The defendant can merely ask the court to impose costs upon the plaintiff. However, the defendant has all the right to object to an application made by the plaintiff under sub-rule (3) and the court shall decide whether or not the application should be allowed on its merits.

  1. Is partial allowing of application under sub-rule (3) possible?

This issue came before the Madras High Court in N. Iyyaswamy v. B. Padmini[22].The Madras High Court has held that while dealing with an application under sub-rule (3) of Order 23 Rule 1, the trial court has to either allow it in toto or dismiss it. There cannot be a partial allowing of the application, thereby dismissing the suit as withdrawn and not granting liberty to the plaintiff to file a fresh suit.

  1. Does sub-rule (3) apply to writ petitions and special leave petitions?

In Sarguja Transport Service v. STAT[23], the Supreme Court considered the consequence and effect of withdrawal of a writ petition filed under Articles 226 and 227 of the Constitution without the leave of the High Court to file a fresh one on the same cause of action. It observed that the CPC does not directly apply to writ proceedings although the procedure prescribed by it, as far as it can be made applicable, is followed by the High Courts while dealing with writ petitions. The Supreme Court extended the principle underlying Order 23 Rule 1(3) to writ petitions under Articles 226 and 227 on the ground of public policy to advance the cause of justice. It observed that doing so would also discourage the petitioners from indulging in “Bench hunting tactics”. It held that when the petitioner withdraws his writ petition without the leave of the High Court to file a fresh petition on the same cause of action, then he should be deemed to abandon this remedy and shall be barred from filing a fresh writ petition. Such withdrawal will not bar the plaintiff from pursuing other remedies since it does not operate as res judicata. However, the Supreme Court clarified that this judgment will not be applicable to writ petitions involving enforcement of fundamental rights or personal liberty since such petitions stand on a different footing.

The reasoning in Sarguja Transport Service[24] was applied by the Supreme Court in Upadhyay & Co. v. State of U.P.[25], to arrive at the conclusion that Order 23 Rule 1(3) would also apply to special leave petitions filed under Article 136 of the Constitution as well.

However, it must be noted that the discretionary powers of higher judiciary under Articles 226 and 227 as well as Article 136 of the Constitution, for the furtherance of causes of justice and equity, are very wide. Therefore, Order 23 Rule 1(3) will have a relatively diluted and less stringent application in proceedings under these provisions.

D. Conclusion

At the time of withdrawing a suit with the intention to institute a fresh one on the same cause of action, the plaintiff should keep the following points in mind:

  1. The provision of sub-rule (3) of Order 23 Rule 1 is adhered to strictly and applied stringently, considering the rationale underlying it. Therefore, the plaintiff must be very careful at the time of moving a withdrawal application under this provision. In the said application, the plaintiff must specifically mention and satisfy the trial court of the existence of a “formal defect” or other “sufficient ground” by virtue of which he should be allowed to withdraw the suit and granted the liberty to institute a fresh one on the same cause of action after curing that defect. Further, the said withdrawal application must be moved at the earliest instancee. as soon as the defect is discovered by the plaintiff and in any case before the disposal of the suit. The plaintiff should ideally make such withdrawal before instituting the subsequent suit to avoid any confusion and irregularity.
  2. In the said withdrawal application, the plaintiff should make a specific prayer for the court’s leave to institute a fresh suit on the same cause of action, without any ambiguity or vagueness. Otherwise his cause would be adversely affected, potentially leaving him remediless. Further, the plaintiff should make disclosure of previously instituted suit and produce withdrawal application as well as the reasoned order of the trial court allowing the said withdrawal application, before the court dealing with the subsequent suit. Failure to follow this entire process would result in a bar under sub-rules (3) and (4) of Order 23 Rule 1 read with Section 12 CPC, 1908.
  3. The courts have discretionary power under sub-rule (3) of Order 23 Rule 1. However, once the court is satisfied that a formal defect or a sufficient ground exists then it may allow the plaintiff to withdraw the suit and shall allow him to institute the said fresh suit. The application should be either allowed or dismissed in its entirety.
  4. Interpretation of “sufficient ground” under clause (b) of Order 23 Rule 1(3) has remained an area of contention for a considerable time. In the author’s humble opinion, the interpretation of the Orissa High Court stands on a better footing since it has taken into consideration the observation of the Supreme Court in S. Bhoopathy[26] as well as the legislative intent for arriving at its conclusion. Therefore, relief under sub-rule (3) can be availed even if the suit is tainted by defects other than formal defects. But the ambit of other “sufficient grounds” must be determined to prevent its abuse and misuse.
  5. Order 23 Rule 1(3) not only applies to civil suits but also extends to writ petitions filed under Articles 226 and 227 of the Constitution and special leave petitions filed under Article 136 of the Constitution. Therefore, the conclusions arrived at hereinabove should be construed as being applicable to these petitions as well, albeit with a certain degree of laxity.

*Lawyer based in Gujarat [BA LLB (Hons.) from Maharaja Sayajirao University of Baroda, Vadodara, Gujarat]. Author can be reached at  dhruvspatel100@gmail.com.

[1] Section 12 CPC, 1908. http://www.scconline.com/DocumentLink/kb11hJ0d.

[2]Order 23 Rule 1(3) CPC.  http://www.scconline.com/DocumentLink/usvfUbNF.

[3] K.S. Bhoopathy v. Kokila, (2000) 5 SCC 458.

[4] Sarguja Transport Service v. STAT, (1987) 1 SCC 5.

[5] (1996) 11 SCC 167.

[6](2017) 5 SCC 63.

[7] 2019 SCC OnLine Mad 13123.

[8] 2003 SCC OnLine Mad 593.

[9] According to the Merriam Webster Online Dictionary “ejusdem generis” is defined as “a rule of construction: general words (as in a statute) that follow specific words in a list must be construed as referring only to the types of things identified by the specific words.

[10] 2019 SCC OnLine Ori 103.

[11] (2000) 5 SCC 458, 464.

[12] (2017)5 SCC 63.

[13] (1970) 1 SCC 761.

[14] 1995 SCC OnLine Guj 101. http://www.scconline.com/DocumentLink/Xxy1MCSY

[15] V. Rajendranv. Annasamy Pandian, (2017) 5 SCC 63.

[16] K.S. Bhoopathy v. Kokila, (2000) 5 SCC 458.

[17] 2003 SCC OnLine AP 631.  http://www.scconline.com/DocumentLink/Hfyt49AR

[18] 2015 SCC OnLine Ker 9667. http://www.scconline.com/DocumentLink/64psGYr2

[19] R. Rathinavel Chettiar v. Sivaraman, (1999) 4 SCC 89.

[20] 1998 SCC OnLine AP 87.

[21] (2018) 12 SCC 584.

[22] 2020 SCC OnLine Mad 13418.

[23] (1987) 1 SCC 5.

[24] (1987) 1 SCC 5.

[25] (1999) 1 SCC 81.

[26] K.S. Bhoopathy v. Kokila, (2000) 5 SCC 458.

Op EdsOP. ED.


Dr B.R. Ambedkar while presenting the Indian Constitution, 1950[1], in the Constituent Assembly, said that every generation is a nation of its own.  It is this perennial change in generational thought that demands the law to be adaptive[2]. With the rapid advancement upon the advent of the internet has allowed us to possess goods or services with a click of a button. Now more than ever before, we need the law to clearly state guidelines to allow the smooth functioning of e-commerce transactions. The purpose of the law should be to present solutions to resolve the probability of miscommunication, that could arise, because of the barrier caused by physical distance.

The term “e-commerce” is a common abbreviation used for “electronic commerce”. It includes carrying out business activities electronically, rather than abiding by the conventional method of physical shopping. With different stages involved in online shopping, it is realistic to say that in case of a dispute it will be extremely difficult to decide which court will have a jurisdiction in the matter, due to the multifaceted jurisdictional nature of such transactions. Sections 15-20 of the Code of Civil Procedure, 19082 (hereinafter “CPC”) deals with different types of jurisdiction and the “place of suing”. In simple terms, it specifies the venue of a particular case that is triable before a court.3 Jurisdiction is of three types – pecuniary, territorial, and subject-matter jurisdiction. To exercise territorial jurisdiction more effectively, the law segregates products that can be purchased into two categories – immovable properties and movable properties. Immovable as the word suggests means a property that cannot be moved from one place to another because it is fixed to the ground. Sections 16-18 of CPC deals with such properties, and the law applied is simple since the jurisdiction of a court, in case of immovable property, lies where the property is located.4 However, it should be noted that in cases of a parties only wanting to have benefit on property, different rules are applied.

This article aims to focus on the second category at hand, which is movable property. Through this piece, I shall explore the various statutory templates that are followed by courts in adjudicating jurisdictional disputes involving moveable property, particularly in the field of e-commerce matters. Subsequently, I shall analyse the impact of foreign judgments on cross-border jurisdictions followed by a brief examination of alternative mechanisms that can be utilised to resolve such disputes.

The term “movable property” is defined as property which can be transferred from one place to another. Sections 19 and 20 of the CPC lays down the law according to which courts shall have jurisdiction in cases concerning movable properties. The two places where the law provides for a jurisdiction to file for the suit depends on:

(a) the person who is aggrieved files a case that is where the cause of action happens; and

(b) where the defendant/perpetrator of the grievance carried on his business that is where the breach took place.5

The concept of “exclusive jurisdiction contracts” complicates the concept of place of suing in case of movable property. In such cases, it should be kept in mind that the contract exists between the company and the customer and that the manufacturers are not involved in case of any dispute.

The establishment of the e-commerce market has given birth to companies like Amazon, Nykaa, etc. – which have become popular, not just regionally, but throughout the world. Such online business companies insert exclusive jurisdiction clauses into their contracts which instructs that only courts, of a specific place/State/region, shall have the jurisdiction to settle potential disputes. This is in accordance with Official Trustee v. Sachindra Nath Chatterjee6 where the Supreme Court observed that before a court can be held to have jurisdiction to decide a particular matter, it must not merely have the jurisdiction to try the suit brought before it. It must also have the authority to pass the order sought for. Hence, there is no scope to create a new jurisdiction that does not exist at the first place.7

Tests to decide jurisdiction in e-commerce matters

As it has already been established, with the advent of e-commerce transactions, there is plenty of scope for confusion regarding the jurisdiction of courts. This varies with the nature of good in question, as well as place where the suit is filed. In India, civil matters intertwined with aspects of e-commerce are traditionally governed by Sections 15-19 of the CPC. At times, the issue(s) gets intermingled with complications due to the nature of business, wherein a specific territory cannot be ascertained to settle a jurisdictional dispute.

It is pertinent to mention that this legal vacuum has not gone unrecognised by the courts. To fill this gap in the current absence of a decisive law, courts have employed several tests to determine jurisdiction in e-commerce matters. One such test is the purposeful availment test as given by a 2011 US Supreme Court decision8 and affirmed by a 2009 Delhi High Court judgment of Banyan Tree Holding (P) Ltd. v. A. Murali Krishna Reddy9, and further explained via another 2017 Delhi High Court judgment of Impresario Entertainment & Hospitality (P) Ltd. v. S&D Hospitality10. The US Supreme Court laid down the interpretation of the purposeful availment test. The Court held that this test could be understood as the placing of goods into the stream of commerce, by the defendant, with the expectation that they will be purchased by consumers within the forum of the State. They further elucidated this concept by explaining that this, however, did not amend the rule of personam jurisdiction11. It was merely an observation that a defendant may then be subjected to a certain jurisdiction without ever entering the certain forum. The real test was associated with the defendant’s “intentionality” and whether their activities were intended to submit to the power of that sovereign.12

The Banyan Tree case, as decided by the Delhi High Court, expounded on this further considering e-commerce disputes. They deliberated on the issue of mere accessibility versus purposeful usage and held that:

…to establish jurisdiction in cases where the defendant does not reside/carry on business in the forum state but the website in question is “universally accessible”, the plaintiff will have to show that the defendant purposefully availed the jurisdiction of the forum court.13

In other words what was required to establish jurisdiction was the defendant’s intention to engage in a commercial transaction specifically at a forum state. In the Impresario Entertainment case14, the High Court further clarified this position by differentiating between the purposeful availment test from the purposeful avoidance test. The Court explained that to decide jurisdiction, it was not enough for the defendant to show that he had avoided the forum state but rather essential for the plaintiff to prove that the defendant had purposely availed the jurisdiction of the forum state.

Another test that can be used to decide jurisdiction in e-commerce matters is the forum convenience test. This is a test derived from the general doctrine of forum non conveniens which pertains to all civil matters. The general principle is that a court can recognise that a select forum is inconvenient for the parties involved in a suit and can, in accordance with that recognition, send the case to a more appropriate court. This change is to be made in the interests of all the parties and intent of reaching end of justice. 15

In the Supreme Court’s decision in Kusum Ingots & Alloys Ltd. v. Union of India16, this principle was legitimised and allowed in the Indian context when it laid down that in appropriate cases as it deemed fit, the Court could refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum convenience. Part of cause of action arising in a certain territorial jurisdiction cannot compel the relevant court to decide the case conclusively. Instead, they can choose to exercise this principle to concede and confer jurisdiction. In light of this, it is reasonable to infer that this principle can be applied to e-commerce matters, when appropriate, as well. Considering this is a legitimate principle under the law and has been affirmed by the Supreme Court, there is no reason why it cannot be applied.

While Indian courts have not adopted a specific manner of adjudication, there are many more available tests derived from law across the world that can be applied and derived for deciding jurisdiction in e-commerce disputes. One such significant example is the minimum contacts test. This is a test based on a theory first instituted in the US Supreme Court’s decision in International Shoe Co. v. Washington 17. It governs personam jurisdiction in a forum state when parties are “non-residents”. Curiously, this theory works where the personam jurisdiction is derived from connections and contacts to forum state. It can be applied if the court feels that a person has “sufficient minimum contacts” – which may be the defendant’s physical presence, conferred jurisdiction through a contract, a stream of commerce, etc.

More tests like the substantial connection test18, zippo test19 and the effects test20 are also continually being adopted for e-commerce cases abroad. Clearly, there is a substantial number of precedents available internationally, regarding jurisdiction in e-commerce. Ultimately, it is up to Indian courts to decide which test is most suitable for them or to come up with a new test altogether. 

Analysing Indian judicial precedents

With the advent of the internet and e-commerce, Indian courts as well as courts around the world are having a difficult time in deciding the place where a person can sue, or which courts shall have the requisite jurisdiction. This becomes increasingly complicated because e-commerce is not like the traditional business transaction. It involves various intermediaries before the final product reaches the beneficiary. When there are more people involved, things get even more complicated as far as exact jurisdiction, and the power of courts are concerned. This section of the paper will try and analyse Indian case laws to provide some clarity in cases pertaining to e-commerce.

Naturally, the question that arises is why it is necessary to delve into a discourse pertaining to the jurisdictions of courts. Ergo, this discussion would entail exploring the implications of a court not having any jurisdiction. In Kiran Singh v. Chaman Paswan21, the court held that any decision passed by courts without having a proper jurisdiction to adjudicate the suit would end up as a nullity. A defect in jurisdiction can be of anything – meaning territorial, pecuniary, or even subject-matter. Therefore, if the court does not have proper jurisdiction, then it loses all its power to decide a case. Even if both parties consent to a particular court’s jurisdiction, the law will strike down the authority of the court, in such a case.22

Initially when the courts were not experienced while dealing with questions of jurisdiction in cases dealing with transactions over the internet, certain incorrect judgments were made. One of them is Casio (I) Co. Ltd. v. Ashita Tele Systems (P) Ltd.23. The court in this case held that only because the plaintiff was able to use the internet from a particular place, the court had the requisite jurisdiction to adjudicate upon the matter.24 This case is perhaps against the interest of the defendants which the CPC would certainly not endorse. Perhaps the court did not envisage the wrong precedent it was setting up because if this case were to be applied in the current times where any website could be virtually accessed from anywhere, then according to this judgment every court would have competent jurisdiction.

After this the Banyan Tree25 case removed the inadequacy with the Casio (I) Co. Ltd.26 judgment. In Banyan Tree27, the defendant challenged the jurisdiction of the High Court of Delhi. The plaintiff argued relying on the Casio28 case that since the internet is accessible to everyone in India, therefore, the question of jurisdiction should not be entertained. This argument of the plaintiff is completely erroneous, and the court rightfully rejected this claim of the plaintiffs. The court held that plaintiff either must show that he or she carried on a business within the jurisdiction of the court and if not, he or she should show that the injury arose within the jurisdiction of the court where the plaintiff has filed the case. This case was the very few ones who set a right precedent and tried to bring in some objectivity in absence of any previous judgments.

Things get quite perplexing as one cannot possibly fathom what the term “carrying business” encompasses. In today’s times with large e-commerce companies spread across several jurisdictions, it is difficult to specify where exactly the customer can sue a particular e-commerce company. For further clarity, we can refer to Dhodha House v. S.K. Maingi29. In this case, the court clarified the meaning of the term “carrying business”. A mere presence of an agent at a particular place, say X, does not mean that the firm carries out its business at the place X. For example: Amazon has various agents across the country which deliver its packages to many places. Just because its agents deliver packages to various places it cannot be said that Amazon carries out its business from all those places. One would have to look at that branch of Amazon which regularly receives orders and initiates the transactions. This place does not have to be the head branch necessarily. If we go by the reasoning of the Dhodha House case30, Amazon can be sued even those places where there are sub-branches. However, it should be shown that the specific branch does in fact carry out substantial business of Amazon.

Indian laws and precedents still do not provide a clear picture specifically in cases involving business to customer transactions (B2C). Indian laws were enacted without considering the numerous complexities that the internet creates. It is highly recommended that there should be separate legislation in the form of a statute specifically dedicated to e-commerce transactions or if not, then certain additions must be made to the CPC so that there is no room for confusion when dealing with such transactions. Although there is some clarity regarding B2B transactions, issues arise when there are multiple intermediaries and consumers are involved.

Understanding the impact of foreign judgments on cross-border jurisdictions

Indian statutory provisions accommodate and acknowledge the applicability of certain rulings that are in compliance with the judgments of international courts. The implication of international rulings on courts within the Indian jurisdiction is laid down in Section 13 of the CPC31. This provision also allows for judicial compliance in all situations, except for a few scenarios wherein the courts would have to delve further to ascertain the court’s jurisdiction. In certain cases, courts have noted that if there was a mutual arrangement to accede to a particular court’s jurisdiction, then the court would be officially recognised as having presiding authority over the issue at hand. As a result, its final verdict would be binding upon both parties.32

The role of legislation holds utmost importance especially with regards to decisions of foreign tribunals concerning internet-related conflicts. The Indian judiciary does not refuse to implement the decision of a foreign court. It can only maintain that the decision of a foreign court is incomplete when it does not comply with the requirements specified under Section 13 of the CPC.33 Hence, if a judgment is issued against such a citizen of India in consequence of any egregious infringement of some other country’s laws, the judgment would be implemented against such an Indian citizen within the subcontinent, given that they do not have to bear any of the maladies laid down in Section 13 of the Code of Civil Procedure.34 When it becomes an issue of who shall be vested with the “primary jurisdiction” over the internet, the legal precedents examined would strongly suggest that the Indian courts will have no reservation in endorsing a rational judgment of a foreign court, in the instance of such a court passing an extra-territorial judgment to be enforced against an Indian citizen.35

Understanding the corpus of private international law (PIL) and alternative dispute resolution (ADR)

Private international law, which is referred to as a dispute of laws in more common law-based countries, is a corpus of statutes that aims to address any issues stemming from the existence of an external factor in contractual relationships.36 Upon the emergence of the internet, cross-border ties gradually escalated, creating increasingly complicated issues of purview and relevant legislation. A variety of unique features of internet-based operations has also introduced fresh complexities. The fundamental challenge in dealing with legal relations involving international facets arises from the fact that the legal structures of more than a few nations can be observed to have a correlation with each other.37 Thus, the implementation of the regulations from one regulatory regime, instead of the latter, would, for most cases, yield different outcomes.38

Theory of harmonisation and reaching a middle ground

A proposed solution to this issue seems to be the option of choosing, on the basis on some parameters between the multiple presumably practicable systems, the legislation of a one specific legal framework to regulate the contractual relationship. This would mean the process of deciding the relevant legislation could take place under private international law. This also happens to be the approach that has the minimum impact on existing national legislation, since it does not entail any amendments to it to tackle the issue presented by way of inclusion of a foreign factor.39

Concepts of private international law are acknowledged in the Indian subcontinent. The Supreme Court held in 1964 that India follows the very well-established concept of private international law that the “law of the forum”, in which the litigation is commenced, regulates all issues of procedural practice.40 It is left at the discretion of the parties to consent and select one or more appropriate court systems to resolve their differences. If the respondents and plaintiffs specifically agree, in compliance according to their own arrangement, that their case be heard by a specific court, the two parties shall be obliged by the “forum selection” provision in their contract.41

The other approach, that is far more invasive to established domestic law, would be to attempt via a mechanism of “harmonization”, to eliminate the root cause of the issue by removing the discrepancies that arise amongst the law and regulations of a nation. “Harmonization” can be implemented via the conciliation process between nations by way of treaties instituting uniform policy and following ratification by the participating nations of the foreign conventions concerned. The results in the adjustment of state laws to harmonise them into conformity with the provisions of the requisite convention.42


Not only can e-commerce platforms have revolutionary multidisciplinary facilities, but also well-functioning information systems including appropriate data protection and precautions for individuals. The clauses of the agreement, based on the location of the products, must not be generic, but instead should be specific in nature in order to avoid jurisdiction discrepancies in the event of disputes. These must be drawn to the customer’s appropriate attention and should even provide them with a sufficient chance to read, review and then finally accept the conditions given. It will indicate that perhaps the concerns continue to be properly dealt with or that at minimum e-commerce platforms have a resolute plan in place to tackle such issues with ease and efficiency.

Undergraduate student enrolled in the BA, LLB (Hons.) course at Jindal Global Law School (Authored on 10-11-2020), e-mail: 18jgls-raghav.sg@jgu.edu.in.

[1] <http://www.scconline.com/DocumentLink/Uei3bEDC>.

[2] Misra, J.P., and J.P. Mishra, Dr B.R. Ambedkar and the Constitution – Making in India, Proceedings of the Indian History Congress 52 (1991): 534-41, accessed 17-10-2020. <http://www.jstor.org/stable/44142653>.

3 Mishra, Sachin, 2020, Determining Jurisdiction over E-Commerce Disputes in India, docs.manupatra.in, accessed October 8 <http://docs.manupatra.in/newsline/articles/Upload/FE4BA350-DBEF-49DA-97D4-09E54ED8B813.pdf>.

4 India, Legal, 2020, Jurisdiction of Civil Court and Place of Suing, legalservicesindia.com, accessed October 9 <http://www.legalservicesindia.com/article/1780/Jurisdiction-of-Civil-Court-and-Place-of-Suing.html>.

5 India, Legal, 2020. Jurisdictional Challenges in Online Transactions, legalservicesindia.com, accessed October 13 <http://www.legalservicesindia.com/article/2268/Jurisdictional-Challenges-in-Online-Transactions.html>.

6 (1969) 3 SCR 92

7 Ibid.

8 J. McIntyre Machinery Ltd. v. Nicastro, 2011 SCC OnLine US SC 122: 564 US 873 (2011) 

9 2009 SCC OnLine Del 3780

10 2018 SCC OnLine Del 6392

11 Ibid.

12 Ibid.

13 Banyan Tree Holding (P) Ltd., supra note 9.

14 2018 SCC OnLine Del 6392

15 Bryan A. Garner and Henry Campbell Black, Black’s Law Dictionary (St. Paul, Minn. West Group, 1999).

16 (2004) 6 SCC 254

17 1945 SCC OnLine US SC 158 : 326 US 310 (1945) 

18 Douglas De Savoye v. Morguard Investments Ltd., 1990 SCC OnLine Can SC 124 : (1990) 3 SCR 1077 

19 Zippo Mfg. Co. v. Zippo Dot Com Inc., 952 F Supp 1119 (WD Pa 1997).

20 Calder v. Jones, 1984 SCC OnLine US SC 58 : 465 US 783 (1984)

21 (1955) 1 SCR 117

22 Ibid.

23 2003 SCC OnLine Del 833

24 Ibid.

25 2009 SCC OnLine Del 3780

26 2003 SCC OnLine Del 833

27 2009 SCC OnLine Del 3780

28 2003 SCC OnLine Del 833

29 (2006) 9 SCC 41

30 (2006) 9 SCC 41

31 <http://www.scconline.com/DocumentLink/Mw0TY9U5>.

32 Narhari Shivram Shet Narvekar v. Pannalal Umediram, (1976) 3 SCC 203

33 Ibid.

34 Lalji Raja and Sons v. Firm Hansraj Nathuram, (1971) 1 SCC 721

35 O.P. Verma v. Gehrilal, 1960 SCC OnLine Raj 89

36 Dr Verschraegen Bea, Private International Law, 1st edn., (Kluwer Law International, 2001)

37 Malcolm N. Shaw, International Law 573 (Cambridge University Press, 5th edn. 2003).

38 Ibid.

39 S.C. Symeonides, Private International Law Bibliography 2017: US and Foreign Sources in English, American Journal of Comparative Law, 66 (2018), No. 2, pp. 89-100.

40 Ramanathan Chettiar v. Somasundaram Chettiar, 1963 SCC OnLine Mad 187

41 Ibid.

42 P. Hay, P.J. Borchers and R.D. Freer, Conflict of Laws: Private International Law: Cases and Materials, St. Paul, MN, Foundation Press, 2017.

Case BriefsHigh Courts

Karnataka High Court: Krishna S. Dixit J. set aside the impugned order and allowed the petition.

The facts of the case are such that the petitioner has filed the instant suit for declaration and injunction for assailing the order rejecting the application filed under Order VI Rule 17 Section 151 of Code of Civil Procedure, 1908 declining leave to amend the plaint for introducing the ground of “easement of necessity” in terms of Section 13 of the Easements Act, 1882.

Counsel for the petitioners submitted that the suit is for declaration and injunction concerning the right of way which is a public way and the respondent should not interfere with the same. It was further submitted that what is sought to be introduced by way of amendment to the plaint is only the ground of easement of necessity; thus the nature of the suit does not much change and any amendment would inevitably cause some change but what the courts need to see is the enormity of change and the consequent amount of prejudice that the other side would suffer which in this case would be insubstantial in nature.

Counsel for the respondents submitted that the amendment if sanctioned would amount to permitting the plaintiff to take up inconsistent plea which the law frowns.

The Court observed that the principle of inconsistent pleas as argued by the respondents, i.e. the first contention regarding the public way and the other contention regarding the easement of necessity would tantamount to a contra plea, does not merit acceptance as Section 13 of the Act which enacts the easement of necessity presupposes dominant heritage on one and the servient heritage of another even then there is nothing repugnant in a public way becoming a dominant heritage. It was also observed that the impugned order of the kind is treated as a discretionary one and some prejudice is being caused to the respondents by petitioner amendment of the plaint, it is tritely said that there is no prejudice to a party which cannot be compensated.

The Court thus held that the “leave is accorded for amending the plaint subject to she paying the cost of Rs. 5000/- to the respondent within three weeks.”

In view of the above, the petition was allowed.[M.P. Puttamma v. V. Chittibabu, 2021 SCC OnLine Kar 444 , decided on 05-02-2021]

Arunima Bose, Editorial Assistant has put this story together.

Case BriefsTribunals/Commissions/Regulatory Bodies

Rafting per se does not cause any serious pollution of river or environment.

National Green Tribunal (NGT): The Bench of Justice Swatanter Kumar (Chairperson) and M.S. Nambiar (Judicial Member), Dr D.K. Agarwal (Expert Member) and Prof. A.R. Yousuf (Expert Member), allows rafting at Rishikesh but bans camping activity.

Reason for filing the present application

Being aggrieved by the haphazard and unregulated licensing of the river rafting camps operating in river Ganga from Shivpuri to Rishikesh on one hand which is a serious source of pollution of pristine river Ganga on one hand and encroachment and degrading of various areas, on the other hand, the instant application was filed.

The applicant organization has been raising various issues with regard to environmental protection across the country.

Rafting and Camping

In northern India, rafting is commonly exercised on the river Ganges near Rishikesh and the Beas River in Himachal Pradesh. Recent times have witnessed that the said area has been denoted as eco-tourism zone namely Kaudiyala-Tapovan eco-tourism zone where various activities besides rafting and camping have been permitted.

Activities of camping and rafting in a very huge number has caused excessive pressure on the river. On the said sites, either there are no toilet facilities, making people defecate in the open or where they exist they are in the nature of pit disposal.

Causes of Pollution 

During monsoon, the discharge remains to flow into the river, thereby causing pollution and interfering in the river eco-system. The tourists and rafters also throw polythene, wrappers and various kinds of bottles on the sites and on the river bed which ultimately flow into the river. Ganga is also polluted because of high use of detergents, soaps and shampoo.

State Government’s approach is violative of the doctrine of public trust as enunciated by the Supreme Court in the decision of M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388 and Centre for Environment Law v. Union of India, (2013) 8 SCC 234.

  • Trees have been cut in the process of encroaching upon the forest area for the purpose of campsites and beach camps.
  • Noise and Air Pollution: Rafting campsites are located upstream and rafters are taken to the campsite in diesel vehicles, creating noise and air pollution.
  • Alcohol along with the food is served by the owners, the leftover of which flows into the river causing pollution.
  • Wildlife is being affected due to the above-stated camps and the increase in man-animal conflict.

Hence, on the applicant’s behalf, it was submitted that since rafting camps are a ‘non-forest activity’, therefore it cannot be carried on without clearance from the competent authority under the Forest (Conservation) Act, 1980.

Mushrooming of rafting camps cannot be termed as a sustainable development activity or a permissible eco-tourism activity.

Analysis and Decision

Following questions fall for determination of the Tribunal:

  1. Whether the application is barred by limitation in terms of proviso to Section 14 of the National Green Tribunal Act, 2010?
  2. Whether setting up of temporary camps, particularly in the declared forest area amounts to non-forest activity and requires approval of the Central Government as contemplated in terms of Section 2 of the Conservation Act?
  3. Whether in the facts and circumstances of the present case, permitting the establishment of camps for a major part of the year and year after year amounts to temporary assignment by way of lease or otherwise to a private person of any forest land or portion thereof, in terms of sub-section (iii) of Section 2 of the Conservation Act attracts restriction contemplated under Section 2 of the Conservation Act?
  4. Whether it was permissible for the State of Uttarakhand to cover regulation of forests under the Rules of 2014 which were formed under clause (a) and (b) of sub-section 2 of Section 8 of Uttarakhand Tourism Development Board Act, 2001 (for short ‘Act of 2001’) when the field was already covered under the Central legislation, i.e., the Conservation Act?
  5. Whether eco-tourism in the forest area would squarely fall within the ambit and scope of the provisions of the Conservation Act and the letter dated 28th August, 1998 issued by MoEF is liable to be quashed?
  6. Whether camping site is a purely commercial activity and cannot be permitted in the forest land or on the banks of river Ganga, keeping its impact on the environment in mind and should be barred?
  7. If question no. 6 is answered in the negative, what should be the regulatory regime governing carrying on of such rafting and camping activities?
  8. What is the relevancy for determining the conduct of the State Government, private parties and the incidents of violation reported before the Tribunal?
  9. What directions should be issued by the Tribunal?


Whether the application is barred by limitation in terms of proviso to Section 14 of the National Green Tribunal Act, 2010?

Under Section 14 of the NGT Act, the Tribunal has the jurisdiction to entertain and decide all civil cases where substantial question arises to environment (including enforcement of any legal right relating to environment) is involved and such question arising out of the implementation of the enactments specified in Schedule-I of the NGT Act.

The ‘cause of action first arose’ would have to be understood in reference to continuing cause of action, where the cause of action is recurring and is distinct or is a new cause of action.

Rafting and camping is an activity which has been carried on for years now. Rules were framed in 2014 by the State of Uttarakhand under which permission and licenses for rafting and camping respectively are to be granted.

According to the affidavit filed on behalf of the State, it is an annual feature and permission/license are granted from September to June every year. Thus, every year it is a fresh cause of action.

NGT’s larger bench has already stated that when an application is based on recurring cause of action then fresh cause of action would not be hit by the language of Section 14 of the NGT Act and each fresh event would give a fresh acsue of action and consequently the period of limitation of 6 months.

Applicant claims and has rightly invoked Precautionary Principle in terms of Section 20 of the NGT Act. The Precautionary Principle can be safely applied to protect and prevent the environment and ecology.

Tribunal stated that the issue in the present application was in regard to proper regulation of rafting and camping activity to prevent damage, degradation and pollution being caused in relation to the forest area, river bank and river Ganga. Hence, such an action would not be hit by limitation.


Whether setting up of temporary camps, particularly in the declared forest area amounts to non-forest activity and requires or not approval of the Centre as contemplated in terms of Section 2 of the Conservation Act?

Whether in the facts and circumstances of the present case, permitting establishment of camps for a major part of the year and year after year amounts to temporary assignment by way of lease or otherwise to a private person of any forest land or portion thereof, in terms of Section 2(iii)  of Conservation Act attracts restriction contemplated under Section 2 of the Conservation Act?

In the case of Lafarge Umiam Mining (P). Ltd. v. Union of India, (2011) 7 SCC 338 while referring to Section 2 of the Conservation Act the Supreme Court held that this is how the concept of prior approval from the Central Government comes into picture and thus prior determination of what constitute forest land is required to be done.

The State of Uttarakhand had issued permissions to carry on the non-forest activity in the reserved forest area under the provisions of relevant laws. It had also made a reference to MoEF vide its letter dated 31st July, 1998. This letter was responded by MoEF vide letter dated 24th August, 1998.

MoÉF expressed the view that camps on sandy stretch of river banks for rafting does not fall under the provision of Conservation Act and it is basically an eco tourism activity.

MoEF vide its letter dated 7-10-2014 issued guidelines for diversion of forest land for non-forest purposes or execution of temporary work in the forest land. Vide this letter it clarified that the work which does not involve any tree cutting, is a temporary work and the approval as contemplated under Section 2 of the Conservation Act is not required.

Till 1998 the view of MoEF was that camping should not be permitted in the sandy banks of the river and the forest area. However, the letter dated 28th August, 1998 made some variations.

Tribunal stated that,

“…provisions of Section 2 of the Conservation Act, therefore, must have precedence over any other law for the time being in force in the State of Uttarakhand.”

In the present case, we are primarily concerned with the interpretation of Section 2(ii) and (iii) read with explanation to the section.

Bench observed that ‘Camping Activity’ is an activity which has impacts on environment and ecology and bio-diversity of the river. There are allegations and even records to suggest that number of camping areas have been found to be offending the conditions imposed by the State Government. Cases of breach had been registered against them and in a case even fire-arms were found to be in possession of the visitors coming to these camps.

Further, there are permanent, semi-permanent and temporary structures raised and large scale tenting is done in the river bed. This activity from its nature, substance and actualities extending on the site clearly show that it is a non-forest activity for a non-forest purpose. 

Once it is held that the activity of camping on the forest land or any portion thereof is a non-forest activity and for a non-forest purpose, the provisions of Section 2(ii) of the Conservation Act would be applicable and it would be expected of the State Government to issue permission/order in terms thereof only upon taking approval of the Central Government.

Hence the contention that the said activity is not a non-forest activity could not be accepted.

Whether setting up of rafting camps along the beach of river Ganga and its tributaries qualifies as breaking up of the forest as comprehended under Section 2(ii) of the Conservation Act or not?

The term ‘breaking up’ has to be understood with the object of the Conservation Act in mind.

The instant case cannot be compared to the case of S Jayachandran, Joint Secretary, T.N Greens Movement (supra) rather if the activity of camping is carried on for ten months every year it has certain degree of permanency as understood and digging of the area is carried on. Thus, even according to that judgment, it would be breaking up of the forest area.

Furthermore, this is an act being carried on by the private respondents with the permission of the State and is certainly not an act/purpose of reforestation. Thus, we are unable to accept this contention of the respondent.

Hence for the issues mentioned above, tribunal held that the cases of camping activities in the reserved forest areas are activities which are for non-forest purpose or are non-forest activity in the forest area. These cases would attract the provisions of Section 2(ii) and (iii) of the Conservation Act.

It is obligatory upon the State of Uttarakhand to seek approval at least as a matter of scheme from MoEF and then issue orders/permits in terms of Section 2 of the Forest Conservation Act.


  • Whether it was permissible for the State of Uttarakhand to cover regulation of forests under the Rules of 2014 which were formed under clause (a) and (b) Section 8(2) of Uttarakhand Tourism Development Board Act, 2001 when the field was already covered under the Central legislation, i.e., the Conservation Act?
  • Whether eco-tourism in the forest area would squarely fall within the ambit and scope of the provisions of the Conservation Act and the letter dated 28-08-1998 issued by MoEF is liable to be quashed?

Ecotourism is about uniting conservation communities and sustainable travel. It is defined as responsible travel to natural areas that conserves the environment and improves the welfare of the local people.

Examples of negative environmental impacts of tourism to the protected natural areas have been listed as: overcrowding, environmental stress, trail erosion, deterioration of vegetation, noise pollution, contamination of air, water and land, forest fires, wildlife mortality, health hazard, habitat destruction, deforestation, erosion, ecological changes, behavioral changes of animals, groundwater pollution, scarring of landscape, etc.

The provision which empowers the State Government under the Act of 2001 to grant permission for camping activity in the forest area which is a non-forest activity would be ultra vires the provisions of the Conservation Act.

Tribunal in view of the above stated issues held that the MoEF letter dated 28-08-1998 is liable to be quashed the provisions or rules which deal with the implementation and proposal to grant permits for carrying on of camping activity in the forest area are concerned, they are in conflict with the provision of Section 2 of the Conservation Act and hence are ultra virus and cannot be implemented. It is obligatory upon the State of Uttarakhand at best as a matter of policy to seek prior approval of the Central Government before issuance of any permit for said camping activity.


What is the relevancy for determining the conduct of the State Government, private parties and the incidents of violation reported before the Tribunal?

Rapid Impact Assessment Report was not found worthy of acceptance by the State of Uttarakhand according to the Inter- Departmental Meeting of the State of Uttarakhand. The said meeting was held as a one day affair in which the team had gone in the river through the motor boat which was not permissible and they had no fair opportunity to examine the sites and offer fair comments. The said contention was not accepted by the tribunal.

The above-stated were verifiable facts and whether the State Government wanted to accept the report or not was a matter, exclusively in the domain of the State Government. But to treat it as an irrelevant document was certainly a mistake, the State Government ought to have considered the report objectively and taken its decision while granting permissions so as to ensure that there was no degradation of environment, biodiversity, ecosystem and particularly the forest area.

Hence, it was observed that the conduct of the State and the private parties are of relevancy in determining the main issue. The Rapid Assessment Report would provide an insight into the working of these camp sites. Undisputedly, there are violations committed by the management as well as the guests at the camp sites.


  • Whether camping site is a pure commercial activity and cannot be permitted in the forest land or on the banks of river Ganga, keeping its impact on environment in mind and should be barred?
  • If question no. 6 is answered in the negative, what should be the regulatory regime governing carrying on of such rafting and camping activities?

It is clear that this eco-tourism activity is completely a commercial activity intended to provide financial benefit to the State and provide employment to the people of the area.

It is true that rafting does not have any adverse impacts on the environment, ecology and river per se but carrying on of camping activity in the forest area does have substantial impacts.

Bench observed that despite the fact that eco-tourism is a commercial activity still it could be permitted, but subject to a strict regulatory regime and its enforcement without default.

Responsibility lies upon the State to protect its environment, forest and rivers.

Camping activity does cause contamination of river and ground water particularly when the activity is not carried on strictly in terms of the regulatory regime in force.

Further it was stated that the camping activity cannot be permitted as a primary activity as it has been there for continued period of 5 years. It is a matter of common knowledge that a person who wish to make investment for a period of 5 years would be having some reluctance not to raise structure of atleast some permanence to give greater comfort, convenience and service to its visitors, though at the cost of adverse impacts upon environment, ecology, river and wildlife.

Thus, it is absolutely essential that a proper stringent Regulatory Regime is placed on record so that such activity can be permitted to continue longer.

Tribunal also noted that the Ganga river from Gaumukh to Rishikesh which few years back was a river of pristine and without any pollution today, because of various factors, of which camping is one, has altered water quality, therefore it is absolutely necessary that a High Powered Committee is constituted.

There has to be very serious supervision with physical inspections at regular intervals by team of high officers of the Forest Department of Uttarakhand and Uttarakhand Environment Protection and Pollution Control Board.

there would be no camping or camping site in the mid of the river or river bed and anywhere within the area which is less than 100 meters measured from the middle of the river upto 2 km beyond boundary of the Rishikesh upstream and not less than 200 meters measured from middle of the river there onwards till boundary of Haridwar downstream.

The concept of ‘Back to Nature’ ought not to be used for developing revenue at the cost of Environment and Ecology.


Tribunal passed the following directions in view of the above discussion:

  • No camping activity shall be carried out in the entire belt of Kaudiyala to Rishikesh and the Government would abide by its statement made before the Tribunal on 31st March, 2015. Rafting activity is permitted to be carried with immediate effect.
  • A committee of officers is constituted not below te rand of a Joint Secretary from the Ministry of Environment and Forests and along with a specialist in this from the Ministry.
  • The Rapid Impact Assessment Report shall be treated as a relevant document and the Committee would conduct or get conducted a further survey to satisfy itself.
  • Committee shall consider all aspects of Environment, Wildlife, River and Biodiversity while preparing the relevant regulatory regime.
  • Committee shall give recommendation for all preventive and curative measures and steps that should be taken for ensuring least disturbance to wildlife and least impact on the environment and ecology.
  • After preparation of this report which should be prepared within 3 weeks from the pronouncement of this Judgement, the State of Uttarakhand through Secretary, Forests would submit a Comprehensive Management Plan cum proposal for approval to MoEF. MoEF would consider the same in accordance with law and accord its approval in terms of Section 2 of the Forest Conservation Act.
  • Committee shall ensure that it not only identifies the sites which can be appropriately used for camping activity but also the manner and methodology in which such sites should be put to use for carrying on of these activities.
  • After grant of approval, the State of Uttarakhand shall issue an order under Section 2 of the Forest Conservation Act and give permits in terms of its policy.
  • In terms of revenue and technical aspects, the State is free to take its decisions.
  • Tribunal further directs that if the Committee is of the opinion that rafting stations and number of rafting shafts to be permitted should be more than camp sites, it may so recommend but then, those rafting stations shall be used for very limited purposes of picking up and dropping the visitors without any other infrastructure.
  • local persons should be provided with maximum chances of employment or other financial gains resulting from this Eco-Tourism.
  • Complete prohibition on use of any plastic in the entire belt covered under the present judgement.
  • It shall be obligatory upon every person to whom permit/license for camping is granted by the State to collect the Municipal Solid Waste or all other wastes from the camping site at its own cost and ensure their transport to the identified sites for dumping.
  • No structure of any kind would be permitted to be raised, temporary, semi-permanent or permanent. We make it clear that making of the cemented platforms or bricked walls would not be permitted within the limits aforestated.
  • Committee also has to make this Report in relation to source, quantum of Water and source of Power needed keeping in view the camping activity.

[Social Action for Forest and Environment (Safe) v. Union of India,  2015 SCC OnLine NGT 843, decided on 10-12-2015]

Case BriefsHigh Courts

Delhi High Court: A Division Bench of Hima Kohli and Subramonium Prasad, JJ., while observing a matrimonial application, observed that,

The plaint must be read as a whole to determine as to whether it discloses a cause of action.

In the instant matter, the husband/appellant sought to challenge the Order passed by Family Court dismissing an application filed by him under Order VII Rule 11(a) and (d) read with Order XIV Rule 2(2) of the Code of Civil Procedure.

Quick Glance — Fact of the Case

Husband and Wife had gotten married as per the Sikh rites and Hindu Vedic rites and ceremonies.

Appellant a US citizen had moved to that country with his parents in the year 1994. After the marriage, respondent/wife applied for permanent resident status.

Petition for Divorce

Appellant/husband and respondent/wife came to India with their child, while they were in India, respondent/wife filed a divorce petition under Section 13(1)(i–a) of the Hindu Marriage Act.

Husband/appellant on returning to USA alone filed for a divorce petition in Chicago, USA. He was granted an ex parte divorce on the ground of irretrievable breakdown of marriage.

Custody of Child

Appellant/Husband also approached the Circuit Court of Cook County, Illinois, USA for the custody of the child which was granted to him ex parte.

Writ of Habeas Corpus

Further, the appellant/husband had filed a writ petition in Delhi High Court for issuance of a writ of habeas corpus for the production and custody of the minor child.

On being aggrieved with the above, wife approached the Supreme Court which was allowed with directions to the parties to appear before the Family Court for the decision in regard to the custody of a minor child.

Order VII Rule 11 CPC

Appellant/Husband had moved an application under Order VII Rule 11 CPC for seeking rejection of the said petition on the plea that the provisions of the Act would apply to persons who are outside the territory of India only if they are domiciled in India.

Since the husband/appellant was domiciled in USA, only the wife/respondent was domiciled in India, the Act is not applicable to them.

Pre-Nuptial Agreement

Husband also contended that prior to their marriage, they had entered into a pre-nuptial agreement, hence they will be governed under that.

Family Court had dismissed the application filed by the appellant/husband under Order VII Rule 11 CPC and stated that appellant/husband cannot be allowed to selectively refer to the pleadings of the respondent/wife.

Further, the family court held that it is for the Court to determine as to whether the facts of a case conclusively establish that the respondent/wife had acquired US Domicile, Family Court rejected the stand of the appellant/husband that the divorce petition filed by the respondent/wife is barred by law.

Counsel for the appellant/husband Prabhjit Jauhar and Malvika Rajkotia, Counsel for the respondent/wife.

Analysis & Decision

A meaningful reading of the entire plaint must be conducted for the court to satisfy itself as to whether the averments made therein if taken to be correct in their entirety, would result in a decree being passed.

For the above-stated position, several Supreme Court’s Decisions were relied on including  in T. Arivandandam v. T.V. Satyapal, (1977) 4 SCC 467,

Popat and Kotecha Property v. State Bank of India Staff Assn., (2005) 7 SCC 510:

There cannot be any compartmentalization, dissection, segregation and inversions of the language of various paragraphs in the plaint.

Hardesh Ores (P) Ltd. v. Hede & Company, (2007) 5 SCC 614:

The averments made in the plaint as a whole have to be seen to find out whether Clause (d) of Rule 11 of Order VII is applicable. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense.

Court in view of the above observed that,

A plaint cannot be rejected on the basis of allegations levelled by the defendant in the written statement or for that matter, in an application moved under Order VII Rule 11 CPC.

The Court must be mindful of the underlying object of Order VII Rule 11 CPC which is to nip in the bud, irresponsible and vexatious suits.

In the instant matter, it has to be determined as to whether the divorce petition filed by the respondent/wife deserves to be rejected or not.

Section 19 of the Hindu Marriage Act offers multiple options as to the local District Court where a Divorce petition can be presented. It includes the place where the marriage of the parties was solemnized or where the respondent resides at the time of presentation of the petition or in case the wife is the petitioner, where she is residing on the date of presentation of the petition or where the petitioner is residing at the time of presentation of a petition in a case where the respondent at that relevant point in time, is residing outside the territories to which the Act extends, as contemplated in Section 1(2).

The Supreme Court decision in Neeraja Saraph v. Jayant V. Saraph, (1994) 6 SCC 461, brought the need for legislation to protect spouses who had been deserted outside the country, wherein the issue that was highlighted was to protect the rights of women deserted by NRI husbands and faced decrees of the annulment of marriage from foreign courts.

Concept of ‘Resident’ and ‘Domicile’:

Union of India v. Dudh Nath Prasad, (2000) 2 SCC 20:

“27. ………..The classical division of domicile is well known. There are the domicile of origin, the domicile of choice and the domicile of dependence. There has been little change in the essential concept of these three domiciles…

28. In view of the above, the concept of “domicile” as canvassed by learned counsel for the appellants with reference to change of nationality or change of domicile from one country to another, cannot be imported in the present case. Moreover, “Domicile” and “Residence” are relative concepts and have to be understood in the context in which they are used, having regard to the nature and purpose of the statute in which these words are used.

(emphasis supplied)

Bench stated that under Order VII Rule 11, CPC, the court can only scrutinize the contents of the plaint taken as a whole but it cannot consider the evidence, if any, or the pleas taken in the written statement.

In the instant matter, the respondent/wife categorically stated in her petition that she wanted to reside in India. After the amendment to the Act in the year 2003 and on insertion of sub-clause (iiia) in Section 19, it cannot be said that Family Courts in Delhi are not vested with the jurisdiction to try and entertain the divorce petition filed by the respondent/wife.

High Court held that the appellant/husband cannot raise an objection to the respondent/wife initiating proceedings of divorce in India under the provisions of the Act only because he is a US citizen and domiciled in the USA.

In the instant case, the respondent/wife remains a citizen of India and therefore, is a domicile of India for all intents and purposes. She has chosen to approach the courts in India for obtaining a decree for divorce.

Divorce petition filed by the respondent/wife read as a whole, does disclose a valid cause of action that can be entertained by the Family Court in India.

No infirmity was found in the impugned judgment. [Karan Goel v. Kanika Goel, 2020 SCC OnLine Del 1319, decided on 12-10-2020]

Case BriefsHigh Courts

Calcutta High Court: Debangsu Basak, J., while addressing a matter with regard to defamation, observed that

“in a civil action for defamation, the plea of absolute privilege protects a statement as no action would lie for it, however false and defamatory it may be, even though, it was made maliciously and with an improper motive.”

Plaintiff claimed that the defendant made a statement in an application seeking divorce from his wife which allegedly is defamatory.

Defendant submits that the cause of action of the plaintiff is barred by law.

Further, he states that a civil action for defamation does not lie in respect of a statement made in a pleading filed in a judicial proceeding.

Advocates Dipak Prahladka and Aindrila De appearing for the plaintiff submitted that the plaintiff was married to the elder sister of the defendants’ wife.

Defendant and his wife stayed at a rented flat in Mumbai. After a few months, wife of the defendant left the defendant and came to Allahabad. After a few days, the wife of the defendant along with her mother went to Mumbai where they were informed that the defendant left the flat. Hence they returned to Allahabad.

Defendant after a few weeks filed a petition under Section 11 and 12(1-b) read with Section 12 (1-d) of the Hindu Marriage Act, 1955 before the Family Court, Ranchi praying for an order of decree of declaration of marriage to be null and void.

Later, the wife lodged a complaint against the defendant under Sections 498A, 406, 313, 323, 504, 506 of the Penal Code, 1860 and Section 3 and 4 of the Domestic Violence Act.

Due to the above-said police complaint, family court had issued summons to the plaintiff for settlement of issues in the divorce petition. The divorce petition contained defamatory statements.

Plaintiff advocate submitted that the civil defamation part is yet to be codified.

A statement once made in a pleading filed before a court of law, is a publication of such statement. Such a statement does not enjoy absolute privilege.

Plaintiff sought a decree of Rs 10 crores against the defendant.

The cause of action of the plaintiff was based on the statements claimed to be defamatory in nature, made by the defendant in a proceeding in which the defendant sought a decree of divorce against his wife.

Laws of defamation recognises that statements made in public can be protected from prosecution in a Court of law under certain circumstances. Absolute privilege attaches to public statements made in certain circumstances.


In India, defamation gives rise to two types of liabilities — the civil side and one on the criminal side.

On the criminal side, the liability for defamatory statements is governed by Sections 499 and 500 of the Penal Code, 1860. However, there is no statute governing the civil liability of a defamatory statement.

Plea of Absolute Privilege

Further, in a civil action for defamation, the plea of absolute privilege has been held to be a good defence. Absolute privilege protects a statement as no action would lie for it, however false and defamatory it may be, even though, it was made maliciously and with an improper motive.

For the plaintiff’s application claiming that the defendant is guilty of perjury, defendant tendered an unqualified apology for making the wrong statement and the Court accepted the same. [Atul Kumar Pandey v. Kumar Avinash,  2020 SCC OnLine Cal 994, decided on 17-06-2020]

Chhattisgarh High Court
Case BriefsHigh Courts

Chhattisgarh High Court: Rajendra Chandra Singh Samant, J., while addressing a petition made an observation with regard to matrimonial disputes that,

“…in a matrimonial dispute, the cause of action can arise again and again, even if the dispute is settled and compromised before the court and the case has been withdrawn.”

Present matter pertained to the quashing of an order passed by the Family Court, Bilaspur in a Civil Suit.

Petitioners’ counsel submits that respondent had filed a civil suit under Section 9 of the Hindu Marriage Act, 1955 and during the pendency, it was placed before the National Lok Adalat and as the respondent did not want to press on the said proceedings, it was disposed of.

Respondent in the present matter has filed a repeat application under Section 9 of the Hindu Marriage Act. Petitioner challenged the maintainability of the civil suit under Order 7 Rule 11 read with Section 23 Rule 4 of CPC on the ground that the previous application filed by the respondent had been disposed of by award.

Order 23 Rule 4 of CPC specifically provides about the abandonment of a suit under sub-rule 1 without permission of Court.

Further, it has been submitted that Section 21 of the Legal Services Authorities Act, 1987 provides that any award passed in the Lok Adalat shall be final and binding on all the parties and no appeal shall lie to any court against the award, hence in view fo the said the repeat application filed by the respondent stands unsustainable.

Respondent’s Counsel submitted that since the petitioner did not honour the ut of court compromise, respondent was compelled to file an application under Section 9 of the HMA, 1955.

Bench on perusal of the submissions and facts stated that under Section 21 of the Legal Services Authorities Act, 1987, an award of Lok Adalat shall be deemed to be a decree of a civil court which includes the order on compromise or settlement between the parties before the Lok Adalat.

Court stated that Lok Adalat has no authority to exercise the power under Order 23 Rule 1 of CPC. The Lok Adalat on taking cognizance in any matter referred to it from a court, can act only in accordance with Section 20 sub-section 4, 5 & 6 of the Act, 1955 and there is no mention that the Lok Adalat can allow the withdrawal of the civil suit.

Hence the Lok Adalat’s order having lo legality is not an order at all.

“the case of the respondent against the petitioner was terminated on the basis of the statement made by the respondent side, that some agreement has taken place between the parties out of the court.”

Court added that, in a matrimonial dispute, the cause of action can arise again and again, even if the dispute is settled and compromised before the court and the case has been withdrawn.


When a dispute crops up again at any subsequent stage on account of differences between the parties to the matrimony, that would be a separate cause of action, on which the party aggrieved, has an entitlement to maintain legal proceeding under the provision of the Hindu Marriage Act, 1955.

In view of the above, the petition was dismissed. [Harsha Dewani v. Ashutosh Gupta, 2020 SCC OnLine Chh 149, decided on 10-08-2020]

Case BriefsHigh Courts

Delhi High Court: A Division Bench of Manmohan and Sanjeev Narula, JJ., held that neither the finding of judicial adventurism nor imposing costs of Rs 5 lacs is warranted against INOX Leisure Limited.


The present appeal was filed to challenge the final Judgment and Order passed on 18th May, 2020 wherein the appellant-plaintiff’s suit was dismissed at the pre-trial stage.

Senior Counsel for the appellant-plaintiff, Amit Sibal submitted that the impugned order had erroneously imposed the cost of Rs 5 Lakhs upon the appellant-plaintiff, even when, concept of tortious inducement/ interference of binding agreements is known to constitute a cause of action to file a suit for injunction.

Further he contended that the Single judge had erroneously held that appellant-plaintiff indulged in ‘judicial adventurism’ inasmuch as the said expression is used in respect of judicial overreach by a judicial authority and same cannot be attributed to a litigant.

He lastly submitted that a coordinate Division Bench of this Court in Amazon Seller Services Pvt. Ltd. v. Modicare Ltd., FAO (OS) No. 135/2019 decided on 31st January, 2020 — held that an action for tortiuous interference is a matter of evidence.

Counsel for the respondent-defendant submitted that appellant-plaintiff by filing the present suit cannot seek waiver of cost as well as expunction of the ‘judicial adventurism’ remark.

Court’s Opinion

High Court stated that no plea of tortiuous inducement/ interference of binding agreement is made out in the present suit, yet the concept was well-known in law to constitute a cause of action to file a suit for damages/injunction.

Thus, agreeing with the decision in Modicare Ltd. v. Gautam Bali, 2019 SCC OnLine Del 10511 Court  held that Single Judge did not dismiss the present suit on the ground of suppression of material facts or on the ground that the appellant-plaintiff had filed parallel or multiple proceedings on the same cause of action.

“..neither the finding of ‘judicial adventurism’ nor the imposition of costs is warranted in the present case.”

Hence, the present appeal and application was disposed in view of the aforesaid modification. [INOX Leisure Ltd. v. PVR Ltd., 2020 SCC OnLine Del 673, decided on 24-06-2020]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: R. Narayana Pisharadi, J. dismissed a petition praying for quashing the criminal proceedings against the petitioner initiated under Section 482 of the Code of Criminal Procedure, 1973 when a simultaneous arbitration proceeding was going on against the petitioner in a civil court.

The petitioner was a surety for one, M.L. George, who had subscribed for four of the respondent company’s chitties and defaulted in paying a certain balance amount. As surety for George, the petitioner was supposed to pay the balance amount to the respondent company on his default. The petitioner failed to pay the amount owed by Mr George to the respondent company and hence a complaint was filed against the petitioner under Section 138 of the Negotiable Instruments Act, 1881.

The counsels for petitioner P.V. Kunhikrishnan and P.V. Anoop contended that the averments in the complaint do not constitute the ingredients of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. Further, it was contended that the initiation of the arbitration proceedings at the instance of the respondent affected the maintainability of the complaint filed against the petitioner for an offence punishable under the Negotiable Instruments Act, 1881.

The Court did not find any merit in the contentions of the petitioner and hence rejected the petitioner’s contentions. Reliance was placed on the case of Sri Krishna Agencies v. State of A.P., (2009) 1 SCC 69 where the Supreme Court, setting aside the order of the High Court for quashing proceedings under Section 138 of the Negotiable Instruments Act, 1881, on the grounds of simultaneous arbitration proceeding, held that disputes to arbitration could not be an effective substitute for a criminal prosecution when the disputed act is an offence. It must, however, be elementary that the two are based on the independent cause of action.

Hence, the Court consequently dismissed the petition and allowed both criminal and civil proceedings simultaneously against the petitioner. [Bindhu A.V. v. Sree Gokulam Chit And Finance Co. (P) Ltd., 2020 SCC OnLine Ker 198, decided on 17-01-2020]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: C.S. Dias, J. dismissed a writ petition filed by the petitioner on the basis that once any judgment is in force, a new petition cannot be filed for the same cause of action.

The petitioner had filed another petition before the instant petition, where the Court rendered a judgment, directing the Circle Inspector of Parassala Police Station (Respondent 4) and Sub Inspector of Police, Parassala Police Station (Respondent 5) to render adequate protection to the petitioner. The petitioner here filed a complaint against the harassment done to her by one Prakash (Respondent 6) and one Neetharani (Respondent 7).

The petitioner in this petition alleged that Respondent 6 and The Respondent 7 are still harassing her. The sole reason that the respondents are able to harass her, shows that Respondent 4 and Respondent 5 are not performing their duties. The Court in the last petition directed the circle inspector and the sub-inspector to protect the petitioner from any harassment.

It was held in Commr. Karnataka Housing Board v. Muddaiah, (2007) 7 SCC 689, that once any direction is issued by the Court, the authority is bound to abide by the directions without any reservations. In case, the authorities do not comply with the directions issued or ignore them, then the petitioner can institute contempt of court proceeding. In the case of contempt, the petitioner can not file a fresh suit as the cause of action is the same and the judgment of the previous petition is still in force.

After listening to the contentions of the counsel for the petitioner, K.P. Santhi, and counsel for the respondent, Princy Xavier, Government Pleader, the Court held that this petition is not maintainable as the Judgment of the previous petition is still in force. The Court dismissed the petition and asked the petitioner to seek remedy under Contempt of Courts Act, 1971. [J. Maya v State of Kerala, 2019 SCC OnLine Ker 6025, decided on 31-12-2019]

Case BriefsHigh Courts

Bombay High Court: S.C. Gupte, J., dismissed a second appeal filed against the orders of courts below where the suit filed by the respondent-plaintiff for possession of the suit property was decreed.

The plaintiff’s suit was based on his title to the suit property. Plaintiff’s grandfather was the owner of the suit property. According to the request of the defendant’s father, the plaintiff’s grandfather had put him in permissive possession of the property. The same arrangement continued even after the death of both, the plaintiff’s grandfather and the defendant’s father. Now, the plaintiff approached the defendant for evicting the suit property as it was required by the plaintiff’s family. The defendant, however, refused. Consequently, the plaintiff filed the subject suit for possession of the suit property based on his title derived from his grandfather and father.

The defendant contended, inter alia, that the defendants and their predecessor in the title were in possession of the suit property ever since the plaintiff’s grandfather purchased the same and that the suit for possession was clearly barred by the law of limitation.

The High Court was of the view that there was no merit in the defence of limitation. The Court explained: “In a suit for possession based on the plaintiff’s title, the cause of action accrues to him when the defendant sets up a title adverse to him, that is to say, when the possession of the defendant becomes adverse to the plaintiff.”

Considering the facts of the instant case, the Court observed: “It is the plaintiff’s own case here, and which is not disbelieved by either of the courts below, that all along, till possession of the suit property was demanded from the defendants, their possession was permissive, first through the predecessor of the plaintiff (deceased Rama) and later through the plaintiff and his father (also deceased). It was only on 15 May 2006, when possession was demanded by the plaintiff and his father and denied by the defendants that the cause of action to seek recovery of possession on the basis of their title accrued unto the plaintiff and his father and the suit filed immediately thereafter was within time.”

Finding no merit in the challenge to the impugned orders, the High Court dismissed the instant appeal. [Balasaheb Govind Basugade v. Rajendra Shivaji Kumthekar, 2019 SCC OnLine Bom 5608, decided on 28-11-2019]

Patna High Court
Case BriefsHigh Courts

Patna High Court: Madhuresh Prasad, J. dismissed the petition since it was devoid of any merits as the petitioner failed to have an enforceable claim.

The petitioner participated in the process of selection as “State Technical Consultant” for Panchayat Yuva Krida Aur Khel Abhiyan (for brevity, PYKKA). The PYKKA contemplated the appointment of a consultant which was to be funded by the Central Government up to a maximum amount of Rs 30,000 per month for a period of five years. The scheme commenced on 6-05-2009. It was contemplated that the appointment of a Technical Consultant on a contractual basis for one year on a consolidated remuneration would be done under the scheme. The renewal of the contract was at the discretion of the Authorities subject to the satisfactory performance of the individual.

The petitioner was selected as Technical Consultant. Certain other persons, who participated in the process of selection, approached the Authorities complaining that they could not appear in the process of selection for want of communication. In the in-house enquiry, it came to light that there was no proper communication, and a fresh process was ordered, due to which selection of the petitioner was cancelled.

In the fresh process, a third candidate was selected. PYKKA, under which the selection has been made is of May, 2009 and was to be funded only for five years thereafter. As per the Scheme, funding lapsed in the year, 2014. Nothing was brought on record to show that it continued thereafter. Even the fresh selections, were initially made for one year subject to renewal upon assessment of satisfactory performance. Petitioner did not place any evidence to prove that the other candidate chosen in his place was still continuing in the position or that the Scheme was continuing after five years. 

The Court held that the pleadings were insufficient with regard to the PYKKA, under which the selection had been done, and thus the petitioner had no valid and enforceable claim. [Gopal Jha v. Union of India, 2019 SCC OnLine Pat 1814, decided on 21-10-2019]

Case BriefsHigh Courts

Himachal Pradesh High Court: Sandeep Sharma, J. upheld the order passed by the Rent Controller whereby an appeal was filed under Section 24(5) of the Himachal Pradesh Urban Rent Control Act, challenging the order whereby an application filed by respondents under Order 22 Rule 3 read with Section 151 of Code of Civil Procedure for impleadment as petitioners/landlords in place of original tenant was dismissed.

Chamba Mal Bhagra, the original tenant, had filed a petition for eviction on two grounds, firstly, that the building had become unfit and unsafe for human habitation and, secondly, that there was an urgent need for rebuilding the same. After his death on 24-10-2018, an application under Order 22 Rule 3 CPC was filed on behalf of his grandsons Vishal Sood and Vikas Sood, on the basis of a Will. In the starting, the aforesaid application was resisted by the tenants on the ground that the said Will was not placed on record, but the impugned referred the document. As per the Will placed on record, the building in dispute was bequeathed in favour of respondents i.e. Vishal Sood and Vikas Sood.

The tenants argued that pleadings to evict the building made by Chamba Mal Bhagra cannot apply anymore as he died during the pendency of the trial. He further argued that in view of the death of the original landlord, an application filed by the applicants/respondents was not maintainable.

The Court heard both the parties and found no illegality or infirmity in the impugned order, and therefore did not interfere with the findings of the Rent Controller. The Court did not consider the arguments put forth by the petitioner because the claim regard to the building being bona fide required for personal use, should have been decided in the main petition and not in the application for impleadment. Moreover, issue with regard to availability of ground if bona fide requirement for personal requirement, after death of original landlord, is no more res Integra in view of the judgment laid down by the Supreme Court in Shakuntala Bai v. Narayan Das, (2004) 5 SCC 772, where it was held that even if landlord dies during pendency of the petition, the eviction notice/order cannot be said to have lapsed. Apart from this, the building was unfit and unsafe for human habitation, and therefore, the Rent Controller below had rightly concluded that cause of action qua aforesaid ground can be inherited by the successors of the original landlord. The petition was dismissed by the Court.[Rikhi Ram Amar Nath v. Vikas Sood, 2019 SCC OnLine HP 1547, decided on 23-09-2019]

Case BriefsHigh Courts

Delhi High Court: Pratibha M. Singh, J. allowed an application under Order 7 Rule 11 CPC filed by the defendant in the subject partition suit. The said application sought rejection of plaint (partition suit) on two grounds — that the suit lacked cause of action and the suit was time-barred.

The plaintiff was the son of defendant’s deceased brother. The property in question originally belonged to Kundan Lal Kapur, the father of the defendant. The plaintiff had brought a suit for partition of the property. The defendant filed the present application for rejection of the suit. It was proved that the suit property was in occupation and possession of the defendant. It was mutated in his name after the execution of three General Power of Attorneys and relinquishment deeds in his favour by remaining heirs of Kundan Lal Kapur, including plaintiff’s father. Also, the said documents were executed in 1979, i.e., more than 36 years before filing of the partition suit.

The High Court noted that the GPAs and the relinquishment deeds were duly registered under Section 17 of the Registration Act, 1908 with the relevant authorities, and therefore they were not required to be proved by an attesting witness as is evident from Section 68 of the Evidence Act, 1872. It was observed: “under the provisions of the Registration Act read with the provisions of the Indian Evidence Act, registered documents ought to be read in evidence. The same carries a sanctity in law and are presumed to have been executed.” Further, “The fact that these documents were executed way back in 1979, i.e. almost 40 years ago and 36 years by the time the suit was filed, itself shows that they have enormous sanctity especially in view of Section 90 of the Evidence Act, 1872.”

Since the GPAs and the relinquishment deeds were all registered documents, the same were presumed to be valid and legal. In these circumstances, the Court held that the plaintiff did not have any cause of action, and his partition suit was therefore rejected. The application of the defendant under Order 7 Rule 11 was allowed.[Rajinder Kumar Kapur v. Madan Mohan Lal Kapur, 2019 SCC OnLine Del 9472, decided on 29-07-2019]

Case BriefsHigh Courts

Delhi High Court: C. Hari Shankar, J. reiterated that once the provision for a “special chance” stood removed from the statutes of Delhi University in 2017, the right of students to attempt papers which they could not clear, beyond the span of period, also stood discontinued.

The petitioner secured her admission in Sri Ram College of Commerce of Delhi University in 2012. In the same year she appeared in the Common Proficiency Test conducted for the Institute of Chartered Accountants of India and secured 14th rank on an all-India basis. She simultaneously continued both courses. As per the petitioner, she had cleared all papers of the B.Com (H) course, except the final semester paper of Business Communications. She approached SRCC in May 2019 seeking permission to attempt the paper, which was denied.

The petitioner, represented by Apoorv Agarwal, Advocate, submitted that her parents were suffering ailments and her brother was blind from birth. She was residing in Ajmer with her family. Owing to such circumstances, she could not come to Delhi to attempt the paper. Per contra, Mohinder J.S. Rupal, Hardik Rupal and Prang Newmai, Advocates for Delhi University; and Aman Rewaria for Amit Bansal, Advocate for SRCC made submissions in support of their decision not to allow the petitioner to appear for the paper.

It is pertinent to note that Ordinance (V) of Delhi University provides for a maximum span of 6 years, from the time of joining of the course by the student, within which she may be allowed to complete the course.

Relying on Avadesh Kumar v. Delhi University, 2016 SCC OnLine Del 1949, the High Court observed: “during the currency of her Chartered Accountancy course, the petitioner herself decided to place her B. Com (H) course on the back burner…Perhaps, the petitioner did so because there was a provision, in the statutes governing the University, at that point of time allowing, to the Academic Council, the latitude of permitting candidates who had crossed the span period, a special chance, to appear in papers which remained to be attempted by them. The said provision, however, admittedly stood removed from the statutes governing the University in 2017.”

Holding that a writ petition cannot be founded on the ground of sympathy, and nor a judicial order can be based on such consideration alone, the High Court dismissed the appeal. [Aruvita Mishra v. Delhi University, 2019 SCC OnLine Del 7985, decided on 09-04-2019]

Case BriefsHigh Courts

Gujarat High Court: A Bench of A.J. Shastri, J. dismissed a petition being devoid of merit as the case did not fall in any of the parameters of Section 115 of Code of Civil Procedure which would permit the Court to exercise the discretion provided under it.

In the present Civil Revision Application, the common judgment of the Principal Senior Civil Judge was challenged. The original suit was filed for seeking dissolution of partnership and for the purpose of accounts and for its share to be distributed and also for an interim injunction where the contentions put forth by the respondents was rejected. The present petitioners being aggrieved of the order contended the partnership in question itself, that not only some of the partners but also their nominees have passed away. Therefore, there remains no cause of action to continue the suit or claim and also the plaint itself is barred by law of limitation. And that the partnership deed has not been operated or continued after the year 1985. Mr Vimal Purohit, learned advocate appearing on behalf of contesting respondents had submitted that if a true construction of partnership is seen from the clauses contained in the partnership deed, a dissolution can never be inferred from 1985. He further submitted that the contract is clearly indicating that partnership can continue even after the death of a partner by inserting nominees as partners. Also, contended that even cause of action is also clearly spelled out in the plaint itself and from the bare averments made in the plaint. To substantiate further two cases were relied upon, Khushal Khemgar Shah v. Khorshed Banu Dadiba Boatwalla, (1970) 1 SCC 415 and Kodendera K. Uthaiaha v. P.M. Medappa, (2017) 16 SCC 331.

The Court while referring to the cases cited, held that, the scope analysed by the Hon’ble Court on the exercise of jurisdiction is aptly propounded in the decisions. The Court further opined that, “first of all the order impugned in the revision application is not possible to be construed as perverse in any manner particularly in view of the fact that contentions which have been raised have been dealt with properly by the learned trial judge and additionally the proposition of law laid down by series of decisions have also been taken note of”. And this case does not fall in any of the parameters required for exercising jurisdiction under Section 115 of CPC.  The revision application being devoid of merit was thus dismissed.[Ramankant Nanalal Jasani v. Sureshchadra Amrutlal Jasani, 2019 SCC OnLine Guj 582, Order dated 11-03-2019]

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Delhi High Court: Vinod Goel, J. dismissed a petition impugning the order passed by Civil Judge whereby defendant’s application under Order 7 Rule 11 CPC.

The plaintiff filed a recovery suit against the defendant (petitioner) on account of selling them wooden furniture. The suit was instituted in Delhi as the plaintiff was carrying on his business of manufacturing and selling wooden items in Delhi. The defendant filed an application under Order 7 Rule 11 for rejection of plaint, on the ground that the contract between the parties was entered into at Udaipur. They pleaded that the cause of action accrued at Udaipur and therefore courts in Delhi had no jurisdiction to try the suit. However, their application was rejected by the Civil Judge. Aggrieved thereby, the defendants filed the present petition.

While holding that the petition was liable to be rejected, the High Court observed, “It is a well-settled principle of law that while deciding an application under Order 7 Rule 11 CPC, the averments made in the plaint are germane and plea taken by the defendant in the written statement would be wholly irrelevant at that stage”. Reliance was placed on Chhotaben v. Kirtibhai Jalkrushnabhai Thakkar, (2018) 6 SCC 422; Ramesh B. Desai v. Bipin Vadilal Mehta(2006) 5 SCC 638 and Salem Bhai v. State of Maharashtra, (2003) 1 SCC 557. It was noted that the plaintiff had averred in the plaint that the defendant approached him for supply wooden furniture at his office in Delhi. In reference to this, the Court stated, “pleadings of the respondent unambiguously indicate that a part of cause of action has accrued within the local limits of Delhi which certainly provides privilege to the respondent to file the suit in the Courts of Delhi.” It was further observed that determination of jurisdiction is a mixed question of law and facts, which can be adjudicated only after the parties adduce their evidence. In such view of the matter, the Court dismissed the petition. [Hansa Place Art Furnitures (P) Ltd. v. Dilip Kumar Sharma, 2019 SCC OnLine Del 7422, dated 25-02-2019]