Case BriefsHigh Courts

Delhi High Court: Asha Menon, J., explained the concept of proving a Will by an attesting witness.

The chamber appeal was preferred by the appellants contesting the order passed by Joint Registrar permitting the attesting witness to be examined prior to the petitioner.

Analysis, Law and Decision

High Court concluded that the Joint Registrar rightly allowed the petitioner to examine the attesting witness prior to his own examination.

Law

Section 295 of the Indian Succession Act, 1925 provides that a contested testamentary action is to be dealt with, as nearly as may be, as a civil suit.

Adding to the above, Court expressed,

Granting that the CPC could be made applicable to the contested testamentary proceedings, as in the present case, it still leaves the court with the discretion to allow the party to be examined subsequent to the examination of his own witnesses.

 Bench emphasized that the Joint Registrar had concluded that prayer of the petitioner was allowed in view of Sections 68, 69 and 71 of the Indian Evidence Act, which provided that where a Will is sought to be proved, its execution must be proved first.

Section 68 of the Indian Evidence Act makes it necessary for the attesting witness to be examined for proving the document, namely, the Will.

Therefore, once ‘Will’ is brought on record in evidence, appellants/respondents would still retain their right to question respondent/petitioner on the validity of the execution of the same, especially in the case where suspicious circumstances exist.

In view of the above, the chamber appeal was dismissed. [Naveen Chander Kapur v. State, 2021 SCC OnLine Del 4753, decided on 22-10-2021]


Advocates before the Court:

For the Petitioner:

Mr Dhiraj Sachdeva, Advocate.

For the Respondents:

Mr Peeyoosh Kalra & Mr Sanad K. Jha, Advocates for appellants/applicants in O.A.22/2021

Case BriefsSupreme Court

Supreme Court: The bench of L. Nageswara Rao and BR Gavai*, JJ has lucidly explained the law on rejection of plaints under Order VII Rule 11 of CPC for want of cause of action and has held that in each the question that will have to be considered is as to whether the reliefs as claimed in the plaint by the plaintiffs could be granted or not and if none of the reliefs sought in the plaint can be granted then such a suit should be thrown out at the threshold.

Here’s the law explained by the Supreme Court on various occasions:

Dahiben v. Arvindbhai Kalyanji Bhanusali , (2020) 7 SCC 366

The power conferred on the court to terminate a civil action is a drastic one, and the conditions enumerated under Order VII Rule 11 of CPC are required to be strictly adhered to.  However, under Order VII Rule 11 of CPC, the duty is cast upon the court to determine whether the plaint discloses a cause of action, by scrutinizing the averments in the plaint, read in conjunction with the documents relied upon, or whether the suit is barred by any law.

The underlying object of Order VII Rule 11 of CPC is that when a plaint does not disclose a cause of action, the court would not permit the plaintiff to unnecessarily protract the proceedings.

“… in such a case, it will be necessary to put an end to the sham litigation so that further judicial time is not wasted.”

Even non-payment of entire sale consideration cannot be a ground cancellation of sale deed: SC

Pearlite Liners (P) Ltd. v. Manorama Sirsi, (2004) 3 SCC 172

If the court finds that none of the reliefs sought in the plaint can be granted to the plaintiff under the law, the question then arises is as to whether such a suit is to be allowed to continue and go for trial.   Holding that such a suit should be thrown out at the threshold, the Courtsaid,

“Why should a suit which is bound to be dismissed for want of jurisdiction of a court to grant the reliefs prayed for, be tried at all?”

T. Arivandandam v. T.V. Satyapal, (1977) 4 SCC 467

Reading of the averments made in the plaint should not only be formal but also meaningful.  It has been held that if clever drafting has created the illusion of a cause of action, and a meaningful reading thereof would show that the pleadings are manifestly vexatious and meritless, in the sense of not disclosing a clear right to sue, then the court should exercise its power under Order VII Rule 11 of CPC.

“… such a suit has to be nipped in the bud at the first hearing itself.”

[Rajendra Bajoria v. Hemant Kumar Jalan, 2021 SCC OnLine SC 764, decided on 21.09.2021]

____________________________________________________________________

Appearances before the Court by:

For appellants: Senior Advocate Gopal Jain

For Respondents: Senior Advocates Dr. A.M. Singhvi, K.V. Viswanathan and Gopal Sankaranarayanan


*Judgment by: Justice BR Gavai

Know Thy Judge| Justice B.R. Gavai

Case BriefsSupreme Court

Supreme Court: The bench of L. Nageswara Rao and BR Gavai, JJ has, in two judgments, has held that where the plaintiff’s title is not in dispute or under a cloud, a suit for injunction could be decided with reference to the finding on possession.

“… if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.”

While where there are necessary pleadings regarding title and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction; such cases are the exception to the normal rule that question of title will not be decided in suits for injunction.

Below are two important rulings on the issue suits for prohibitory injunction relating to immovable property

Anathula Sudhakar v. P. Buchi Reddy, (2008) 4 SCC 594

(a) Where a cloud is raised over the plaintiff’s title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff’s title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with the plaintiff’s lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.

(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the   finding   on   possession.   But   in   cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.

(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.

(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.

Jharkhand State Housing Board v. Didar Singh, (2019) 17 SCC 692

“11. It is well settled by catena of judgments of this Court   that   in   each   and   every   case   where   the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction.”

[KAYALULLA PARAMBATH MOIDU  HAJI v. NAMBOODIYIL VINODAN, CIVIL APPEAL NOS. 5575­5576 OF 2021 and T.V. RAMAKRISHNA REDDY v. M. MALLAPPA, 2021 SCC OnLine SC 675, decided on 07.09.2021]


*Judgments by: Justice BR Gavai

Know Thy Judge| Justice B.R. Gavai

Appearance in first case:

For appellant/plaintiffs: Senior Advocate P.N. Ravindran

For Respondent/Defendant: Senior Advocate V. Chitambaresh

Appearance in second case:

For appellant/plaintiffs: Senior Advocate Ajit Bhasme

For BDA: Advocate S.K. Kulkarni

For respondent: Senior Advocate Basava Prabhu S. Patil

Op EdsOP. ED.

Order 1 of the Civil Procedure Code, 1908[1] addresses the varied issues concerned with the first and most prominent ingredient of civil suits: parties to a suit. This encompasses questions of addition, deletion, substitution, transposition as well as non-joinder and misjoinder of parties to a suit. The parties in a civil suit are the plaintiff i.e. the person who brings an action for his rights and the defendant i.e. the person against whom such rights are claimed. However, there may arise a situation wherein, upon institution of a suit, it may be realised that in addition to the existing parties in the suit, there may be persons whose presence may be material to effectively determine the questions arising from the subject-matter of the suit. Such situations are rectified by “joinder of parties[2]” either upon application by an existing party to the suit or suo motu by the court before which the civil suit is in lite.

The concept of “joinder of parties” includes non-joinder and misjoinder of parties to a suit and means the inclusion or exclusion of particular persons in a suit. Such joinder of parties is not a matter of initial jurisdiction of the court but a question of judicial discretion which has to be exercised in view of all the facts and circumstances of a case.[3]

Considerations to be borne when exercising the powers of joinder of parties

The powers granted to a court regarding joining of parties are very wide and extensive under Rule 10(2) of Order 1[4] and the following two considerations must be borne in mind while exercising these powers:

(i) The plaintiff is dominus litis i.e. he is the best judge of his own interest. Therefore, it is upon the plaintiff to choose his opponent from whom relief is claimed. Ordinarily, the court should not compel the plaintiff to fight against a person whom he does not desire to fight and from whom he claims no relief; and

(ii) If the court is satisfied that presence of a particular person is necessary to effectively and completely adjudicate all the disputes between the parties, irrespective of the wishes of the plaintiff, the court may exercise the power and join a person as a party to the suit.

The line has been drawn on a wider construction of the rule between the direct interest or the legal interest and commercial interest. It is, therefore, necessary that the person must be directly or legally interested in the action in the answer i.e. he can say that the litigation may lead to a result which will affect him legally that is by curtailing his legal rights.[5] The question to be posed is whether there is curtailment or extinction of a legal right of the person.

The true test lies not so much in an analysis of what are the constituents of the applicants’ rights, but rather in what would be the result on the subject-matter of the action if those rights could be established.[6] The test is “may the order for which the plaintiff is asking directly affect the intervener in the enjoyment of his legal rights”.[7]

Based upon these considerations, the court shall exercise its powers of joinder at any stage of the proceeding either upon an application by a party to the suit or suo motu on such terms and conditions as the court may deem just.

Doctrine of necessary and proper parties in essence

The doctrine of necessary and proper parties is eminent when determining this question of joinder or non-joinder of parties. There is a vital distinction between a necessary and a proper party to a suit. A necessary party is one whose presence is a sine qua non to the constitution of the suit and without whom, no effective order can be passed with respect to the questions arising before the court.[8] In contradistinction to this, a proper party is one in whose absence although an effective order can be passed, but whose presence is necessary for a complete and final decision on the questions involved in the proceeding.[9]

Two tests have been laid down for determining the question whether a particular party is a necessary party to a proceeding[10]:

(i) there must be a right to some relief against such party in respect of the matter involved in the proceeding in question; and

(ii) it should not be possible to pass an effective decree in absence of such a party.

In light of impleading necessary parties, regard must be had that joinder of parties shall not result in alteration of nature and character of the suit. For instance, in a suit for specific performance of a contract for sale, the necessary parties would be the parties to the contract or if they are dead, their legal representatives as also a person who had purchased contracted property from the vendor.[11] However, a person who claims independently or adversely to the claim of the vendor would not constitute a necessary party as it would change the nature of the suit. The proper course of action for such person would be to institute a separate suit for declaration of title.[12]

The abovementioned considerations were reiterated by the Supreme Court in Gurmit Singh Bhatia v. Kiran Kant Robinson[13] and it was observed that:

“A third-party or a stranger cannot be added in a suit for specific performance, merely in order to find out who is in possession of the contracted property or to avoid multiplicity of the suits. A third-party or a stranger to a contract cannot be added so as to convert a suit of one character into a suit of different character.”

The very object of the “doctrine of necessary and proper” parties is to include all such parties as would be necessary grant an effective relief for the issues that are pendente lite in the matter at hand. Therefore, where the issues before the Court pertain to a particular subject- matter, no person can be joined as a party merely on the ground that his claims relate to the subject-matter of the case but requires framing of additional issues. The mere fact that a fresh litigation could be avoided is no ground to invoke the power under Rule 10 of Order 1[14] in such cases.[15]

For instance, in a suit for specific performance of contract for sale between Party A (i.e. vendor) and Party B (i.e. purchaser) who are the parties to such contract would be necessary parties. While a person C, who claims a title adverse to the title of the Vendor (i.e. Party A) would not constitute a necessary party as this would alter the nature of present suit and result in conversion of a suit for specific performance of contract for sale into a suit for declaration of title, thereby enlarging the scope of suit. The effective remedy for Person C in such case would be to institute a separate suit and file a fresh claim against Party A.

Therefore, it may be concluded that persons, stranger to the contract, would also be strangers to the proceeding in that suit.

“Who constitutes a necessary party?” in light of judicial precedents

The principle of natural justice “audi alteram partem” forms the quintessential basis of Order 1 Rule 9[16], elucidating that, “No order can be passed behind the back of a person adversely affecting him and such an order if passed, is liable to be ignored being not binding on such a party as the same has been passed in violation of the principles of natural justice.”[17]

Therefore, it is well-settled principle consistent with natural justice that if some persons are likely to be affected on account of setting aside a decision enuring to their benefit, the court should not embark upon the consideration and the correctness of such decision in the absence of such persons.[18]

Where the plaintiff sued for possession and declaration that the auction proceedings and the subsequent conveyance by auction purchaser to defendant were void in law under a certain Act, it was held by the Supreme Court, that the liquidator was a necessary party and in his absence the suit for declaration must fail.[19]

In a suit filed against a doctor owing to his medical negligence, the doctor was held to be a necessary party since relief was claimed from him. However, the insurance company from whom the insurance had been obtained was held as neither a necessary nor a proper party, since no relief had been claimed from the said company.[20]

In a land acquisition proceeding, the local authority is a necessary party in the proceedings before the Reference Court and is entitled to be impleaded as a party in those proceedings wherein it can defend the determination of the amount of compensation by the Collector and oppose enhancement of the said amount and also adduce evidence in that regard[21].

An unsuccessful candidate challenging the selection as far as the service jurisprudence is concerned is bound to make the selected candidates parties. In Prabodh Verma v. State of U.P.[22] and Tridip Kumar Dingal v. State of W.B.[23], it has been held that “if a person challenges the selection process, successful candidates or at least some of them are necessary parties”. The aforesaid decisions do not lay down as a proposition of law that in every case when a termination is challenged, the affected person has to be made a party. What has been stated is when one challenges a provision as ultra vires the persons who are likely to be affected, some of them should be made parties in a representative capacity.

Furthermore, it must be reiterated that although the provisions of Civil Procedure Code do not strictly and holistically apply to writ petitions, the principle underlying Order 1 Rule 9 shall be applicable to writ petitions.

Statutory exceptions to Rule 10 of Order 1

There are certain special statutes which clearly provide as to who are the persons to be made as parties in the proceeding/suit filed under that special statute. For example, the provisions under Section 82 of Representation of the People Act, 1951[24] clarify the persons that are to be made parties in an election petition. There are other special statutes which also postulate who can be joined as parties in the proceedings instituted under that special statute, otherwise the provisions of CPC would be applicable.

Hence, it must be concluded that provisions of Rule 10 of Order 1 of the Civil Procedure Code, 1908[25] must be construed and interpreted harmoniously in addition to and not in derogation of any express statutory provision in this regard. The Civil Procedure Code is only a general law governing the procedure to be followed in case of civil suits and hence, when an express provision is made in any other statute about the joinder of additional parties or such other procedure to be followed, such special procedure shall prevail over the general law governing civil suits. This is based on well-founded rule of interpretation of statutes “generalia specialibus non derogant”.

Difference between non-joinder and misjoinder of parties

Where a person, who is a necessary or a proper party to a suit has not been joined as party to such suit, it is a case of non-joinder. Conversely, if two or more persons are joined as plaintiff or defendants in a suit in contravention to Rules 1[26] and 3[27] of Order 1 of the Civil Procedure Code, 1908 and they are neither necessary nor proper parties, it is a case of “misjoinder” of parties.

All objections on the ground of non-joinder or misjoinder of parties shall be taken at the earliest possible opportunity and always before settlement of issues, unless the ground of objection has subsequently arisen[28]. Any such objection not so taken shall be deemed as a waiver.[29]

Although a defect of non-joinder is serious, it is not incurable and the court may pass appropriate directions to join a person if it believes that such a person is a necessary party.

A suit cannot be dismissed only on the ground of non-joinder or misjoinder of parties subject to the exception that non-joinder of a necessary party may render fatal to the case[30]. Therefore, the court cannot dismiss a suit solely based upon the ground that a party, be that a proper party, has not been joined or any unwarranted person has been joined erroneously in the suit unless such party is a necessary party in whose absence an effective order cannot be passed in the questions arising in the suit. The principles enshrined in the proviso to Order 1 Rule 9 of the Civil Procedure Code, 1908 provide that impleadment of a necessary party is mandatory and in case of non-joinder of necessary party, the plaintiff may not be entitled for the relief sought by him.

This submission highlights the importance of the doctrine of necessary and proper parties when instituting a civil suit and holistically elucidates its consideration in all matters such as service matters, writs, suits for specific performance, suits for declaration. The doctrine of necessary and proper parties is a preliminary issue to be dealt with prior to any other question of law or fact since it shall determine the very sanctity of the trial due to its roots in the principles of natural justice. Any ignorance of this principle shall vitiate the effectiveness of the adjudication as it would cause such trial to be conducted in absentia of persons who were necessary for a fair, effective and complete adjudication of the questions involved in such suit.


*LLM law student of Symbiosis Law College, Pune and qualified Company Secretary.

[1] <http://www.scconline.com/DocumentLink/EN5r67DU>

[2]Rr. 1 and 3, Or. 1 CPC, 1908.

[3]Razia Begum v. Sahebzadi Anwar Begum, 1959 SCR 1111.

[4] <http://www.scconline.com/DocumentLink/q1lC86vn>.

[5] Razia Begum v. Sahebzadi Anwar Begum1959 SCR 1111.

[6]United States of America v. Dollfus Mieg et Cie SA, 1952 AC 582 : (1950) 2 All ER 605, 611

[7] Ibid.

[8] Vidur Impex and Traders (P) Ltd. v. Tosh Apartments (P) Ltd., (2012) 8 SCC 384.

[9] Ibid.

[10] Kasturi v. Iyyamperumal, (2005) 6 SCC 733, 738.

[11] Kasturi v. Iyyamperumal, (2005) 6 SCC 733.

[12]Shri Swastik Developers v. Saket Kumar Jain, 2013 SCC OnLine Bom 897.

[13](2020) 13 SCC 773.

[14] <http://www.scconline.com/DocumentLink/q1lC86vn>.

[15] Ramesh Hirachand Kundanmal v. Municipal Corpn. of Greater Bombay, (1992) 2 SCC 524, 528.

[16] <http://www.scconline.com/DocumentLink/LFx2EvM3>.

[17]J.S. Yadav v. State of U.P., (2011) 6 SCC 570.

[18] Poonam v. State of U.P., (2016) 2 SCC 779.

[19]Vishnu Mahadeo Pendse v. Rajen Textile Mills (P) Ltd., (1975) 2 SCC 144.

[20] Praveen Bhatia v. M. Ghosh, 1989 SCC OnLine Del 8.

[21]U.P. Awas Evam Vikas Parishad v. Gyan Devi, (1995) 2 SCC 326.

[22] (1984) 4 SCC 251.

[23](2009) 1 SCC 768 .

[24] <http://www.scconline.com/DocumentLink/Hdzyo7ZB>.

[25] <http://www.scconline.com/DocumentLink/q1lC86vn>.

[26] <http://www.scconline.com/DocumentLink/6Deyg1Zj>.

[27] <http://www.scconline.com/DocumentLink/vfT6ILim>.

[28] R. 13, Or. 1 CPC, 1908.

[29] R. 13, Or. 1 CPC, 1908.

[30] S. 99 CPC, 1908.

Case BriefsHigh Courts

Himachal Pradesh High Court: Jyotsna Rewal Dua, J., while rejecting the present petition, upheld the decision of the trial court as the transposition seemed to have no effect on the nature and scope of the suit or interest of the parties involved.

Background

An application moved by one Shri Subhash Chand Puri (original proforma defendant 7) under Order 1 Rule 10 (2) read with Section 151 of Code of Civil Procedure, 1908 for transposing him as co-plaintiff was allowed by the Trial Court vide order dated 12-06-2019. Aggrieved defendant 1 (Surinder Kumar) has preferred the present petition under Article 227 of Constitution of India.

 Observation

In addition to its decision, the Court considered the following cases;

Gurmit Singh Bhatia v. Kiran Kant Robinson, 2019 SCC OnLine SC 912, wherein the Supreme Court adhered to its earlier judgment in Kasturi v. Iyyamperumal, (2005) 6 SCC 733 observing, “Order I Rule 10 CPC  cannot be invoked unless the party proposed to be added has direct and legal interest in the controversy involved in the suit.” Two tests were laid down to determine as to who is a necessary party; (1) There must be a right to some relief against such party in respect of controversy raised in the proceedings (2) No effective decree can be passed in absence of such party. It was further observed that a party claiming an independent title and possession adverse to the title of the vendor and not on the basis of the contract, in a civil suit for performance, is not a proper party. Addition/impleadment of such party shall enlarge the scope of civil suit for specific performance to suit for title and possession, which is impermissible.

  1. Dhanasundari v. A.N. Umakanth, 2019 (4) SCALE 161, wherein it was observed that object of Order 1 Rule 10 CPC is essentially to bring on record all the persons who are parties to the dispute relating to the subject matter of the suit so that the dispute may be determined in their presence and the multiplicity of proceeding be avoided.

Kiran Tandon v. Allahabad Development Authority, (2004) 10 SCC 745, where the Supreme Court reiterated the principle laid down by the Privy Council in Bhupendra Narayan Sinha v. Rajeshwar Prasad, 1931 SCC OnLine PC 32, in the words, “…for effective and complete adjudication and settling all the questions involved in the civil suit, the Court has power under sub-rule (2) Order 1, Rule 10 C.P.C. to transfer a defendant to the category of plaintiffs and where the plaintiff agrees, such transportation should be readily made. This power could be exercised by the High Court in appeal, if necessary, suo-motu to do complete justice between the parties.”

 Decision

Dismissing the present petition, the Court held, Due to subsequent events, proforma defendant 7 had started sailing in the plaintiffs’ boat and had acquired interests common to the plaintiff. It was then a logical corollary to transpose the proforma defendant as a co-plaintiff. Refusal to do so would cause him prejudice. By such transposition, nature and scope of civil suit was not being changed or enlarged. Claim of proforma defendant was not inconsistent with that of original plaintiff, who had dominus litis. The issues relating to lease deed pertain to merits of main case and can be adjudicated there. There is thus no error in the impugned order passed by the learned trial Court transposing proforma defendant No. 7 as co-plaintiff.”[Surinder Kumar v. Sham Sunder, 2020 SCC OnLine HP 2855, decided on 03-12-2020]


Sakshi Shukla, Editorial Assistant has put this story together

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.

Therefore,

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

Orissa High Court: The Bench of A.K. Rath, J. dismissed the petition filed against the order which rejected the application of the petitioner filed under Order 21 Rule 29 CPC to stay the further proceeding in an execution case till the disposal of another civil suit. 

The facts of the case were that the plaintiffs had instituted a civil suit before the Civil Judge for declaration of right, title and interest over the suit property. Petitioner was defendant No. 1 in the suit. The suit was decreed ex parte against defendant No. 1 to 7 and 9 to 12. Thereafter, they levied an Execution Case. In the meanwhile, petitioner, as plaintiff instituted another civil suit in the same court for a declaration of title, a declaration that judgment and decree passed, was null and void, confirmation of possession and permanent injunction. He filed an application under Order 21 Rule 29 CPC to stay Execution Case of 2006 till the disposal of the suit. The executing Court dismissed the same.  Mr Subrat Panda, counsel for the petitioner submitted that the Decree Holder by playing fraud on the Court obtained the decree. Thus the decree was not executable. 

The Court held that merely because another suit was filed, the same was not per se a ground to stay the execution case. The Decree Holder should not be deprived of the fruits of litigation. Order 6 Rule 4 CPC provides that in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary, such particulars shall be stated in the pleading. The petition under Order 21 Rule 29 CPC cannot come to the rescue of the petitioner unless sufficient cause is shown to stay the execution case. [Dhoba Moharana v. Lili Moharana, 2019 SCC OnLine Ori 164, Ordered on 10-04-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: Petitioner filed before the bench of Gurvinder Singh Gill, J., an application for grant of anticipatory bail where FIR was registered under Sections 307, 326, 324, 325, 148 and 149 of Penal Code.

The FIR was filed alleging petitioner that he inflicted a blow with kirch in the stomach of the complainant and his nephew was also injured in the process. Petitioner submitted that genesis of occurrence was suppressed as he himself had received 7 injuries. Further, the incident occurred in a shop possessed by the petitioner which shows that complainant was the aggressor. Whereas the respondent submitted that since petitioner was specifically mentioned in the FIR and allegations against him were duly established in the Medico-Legal Report thus no case for anticipatory bail was made out.

High Court perused a judgment passed by Civil Judge (Junior Division) Amritsar where an uncle of the complainant, had filed a civil suit against a petitioner seeking a permanent injunction to restrain the defendant from causing any damage to the shops. The aforementioned suit was dismissed where the petitioner had failed to establish entitlement towards a suit property. As stated by petitioner the appeal against the above was dismissed. However, the Court was of the view that since petitioner had 7 injuries whose aggressor was not certain anticipatory bail must be granted. [Raj Kumar v. State of Punjab, 2019 SCC OnLine P&H 151, dated 26-02-2019]

Case BriefsSupreme Court

Supreme Court: Considering the sad state of affairs of long drawn expensive and cumbersome trials to resolve disputes between two Government owned corporations and the fact that one of the parties in the case at hand had with considerable tenacity opposed the move aimed at a quick and effective resolution of the conflict and resultant quietus to the controversy by a reference of the disputes to arbitration in terms of the Arbitration and Conciliation Act, 1996, the bench of T.S. Thakur, CJ and R. Banumathi, J. referred the matter for adjudication to Justice K.G. Balakrishnan, Former Chief Justice of Supreme Court, who is hereby appointed as Sole Arbitrator to adjudicate upon all claims and counter claims which the parties may choose to file before him.

In the present case, the parties had entered into a contract for construction of a Coal Handling Plant and a Clause in the Contract provided for adjudication of disputes between the parties by way of arbitration. Disputes between the parties were referred for resolution in terms of the “permanent in-house administrative machinery” set up by the Government. Both the parties, upon being dissatisfied with the awards, challenged the award in appeals filed before the Law Secretary, Department of Legal Affairs, Ministry of Law and Justice in terms of the in-house mechanism provided by the Government. The appellant then filed a civil suit before the High Court of Delhi alleging that the Arbitral award passed by the appellate authority was according to the appellant illegal and vitiated by errors apparent on the face of the record, hence, liable to be set aside.

Discussing the question of remanding the case to the Civil Court, the Court noticed that an arbitral award under the Permanent Machinery of Arbitration may give quietus to the controversy if the same is accepted by the parties to the dispute. In cases, however, a party does not accept the award, as is the position in the case at hand, the arbitral award may not put an end to the controversy. Such an award being outside the framework of the law governing arbitration will not be legally enforceable in a court of law. Just because a Government owned company has resorted to the permanent procedure or taken part in the proceedings there can be no estoppel against its seeking redress in accordance with law. Making reference to a sole arbitrator for adjudication of all outstanding disputes between the two corporations, the Court held that the alternative to such arbitration is a long drawn expensive and cumbersome trial of the suit filed by the appellant before a civil court and the difficulties that beset the execution of an award made under a non-statutory administrative mechanism and that both these courses are unattractive with no prospects of an early fruition. [NORTHERN COALFIELD LTD v. HEAVY ENGINEERING CORP. LTD, 2016 SCC OnLine SC 697, decided on 13.07.2016]