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Madhya Pradesh High Court | ‘Violation of individual privacy’; Request for DNA test denied in property dispute

Madhya Pradesh High Court: G.S. Ahluwalia, J. dismissed a petition which was filed against the order passed by Twelfth Civil Judge, Class II by which the application filed by the petitioner for conducting DNA test of Hemlata Yadav had been rejected.

Husband of the petitioner had filed a civil suit against the respondents/defendants for partition but during the pendency of this suit, he died. Application for bringing the petitioner as legal representative on record was moved but respondent 2 raised objections stating that Hemlata Yadav should’ve been impleaded as the legal representative as she was the daughter of the Petitioner’s husband. The petitioner then moved an application under Order 26 Rule 10 (A) CPC read with Section 45 of Evidence Act, 1872 on the ground that she had never given birth to any child and accordingly, it was prayed that the DNA test of Hemlata Yadav may be conducted so that it could be ascertained that Hemlata Yadav was not the daughter of her husband.

Counsel for the petitioner submitted that where the question of property is involved and the paternity of the person is also in dispute, then a direction for DNA test may be issued.

The Court put forward judgment of the Supreme Court where it was held that the courts in India cannot order blood test as a matter of course. There must be a strong prima-facie case to the effect that the husband had no access in order to dispel the presumption arising under Section 112 of Evidence Act and the court must carefully examine as to what would be the consequence of ordering the blood test i.e. whether it will have the effect of branding a child as a illegitimate child or mother as an unchaste woman. Banarsi Dass v. Teeku Dutta, (2005) 4 SCC 449

Directions for conducting the DNA test is also violative of privacy of a individual.

The Court further reiterated the Supreme Court judgment of Ashok Kumar v. Raj Gupta, (2022) 1 SCC 20.

The Court dismissed the appeal upholding the order of the Trial Court explaining that it is not the case of the petitioner that Hemlata Yadav was born prior to her marriage with late husband of the petitioner. The presumption as provided under Section 112 of Evidence Act is a rebuttable presumption and the petitioner will get every opportunity to rebut the said presumption in the trial.

[Urmila Singh v. Saudan Singh, Writ Petition No. 4131 of 2017, decided on 26-07-2022]

Advocates who appeared in this case :

Mr P.C. Chandil, Advocate, for the Petitioner;

None for the respondents.

*Suchita Shukla, Editorial Assistant has reported this brief.

Case Briefs High Courts

When does a Will becomes a suspicious document? Madhya Pradesh High Court answers

Madhya Pradesh High Court: Dwarka Dhish Bansal, J., while dismissing a second appeal held that in presence of prior execution of agreement of Gift, the Will becomes a suspicious document.

The factual matrix of the case was that the land in question belonged to a deceased-Vindeshwari Prasad. It was alleged in the plaint that after the death of Vindeshwari Prasad, the plaintiffs and defendants 1-2 were having 1/3rd share each and there was no right vested in defendants 3-6. The instant suit was filed as second appeal against the judgement rendered by Additional District Judge (Fast Track Court) Rewa which had confirmed the judgment and decree passed by 5th Civil Judge Class-II Rewa.

It was submitted by the appellant that in view of the concurrent finding of the fact that the plaintiff was not in physical possession of the land, the suit filed was not maintainable in view of provision under Section 34 of the Specific Relief Act, 1963. It was further contended by the appellants that in absence of the evidence of any forged document, the suit was not maintainable. It was contended by the appellants that Will in question was not a proven document and the Trial Court had made an error.

The counsel for the respondent submitted that as the Will was not proved by the defendants 3-5 and could not been found proved by the Courts, no interference could be warranted in the second appeal. It was further contended by the respondents that Will in question was propounded by the defendants 3-5, and therefore they were liable. It was also contended by the respondents that the property in question was an agriculture /revenue paying land and partition had to be effected by the Tehsildar.

The first substantial question of law was whether the declaration of share could be made irrespective of Section 34 of Specific Relief Act, 1963. The High Court came to the conclusion that the declaration of share could be made irrespective of Section 34 of the Specific Relief Act, especially in case where the land was agriculture land. The Court relied on the judgement of Karelal v. Gyanbai, 2018 SCC OnLine MP 1021 where there were identical set of facts and circumstances, and the Court had held that- “The matter can be ascertained from another angle also. In the present case, only the agricultural land is the disputed property. If the defendants had never challenged the rights and title of the plaintiffs, then there was no need for the plaintiffs to file a suit for declaration of title or even for partition.”

The second substantial question of law was that the Will was propounded by defendants 3-5, therefore it was for them to prove Will in question which was not proved by the Courts below. The Court relied on the judgment of Anathula Sudhakar v. P. Bucchi Reddy, (2008) 4 SCC 594 where it was held that “a cloud is said to raise over the person’s title, when some apparent defect in his title to a property, or when some prima facie right of a third party over, is made or shown.” The Court pointed out that the principle enshrined in order 6 rule 13 Civil Procedure Code, 1908 is also worth importance wherein it was specifically laid down that the burden of proving the will always lies upon the propounder, i.e. defendant in the present case. The Court also considered the proposition laid down by Supreme Court in Anathula Sudhakar after which it became apparent that a relief of declaration is required to be sought only when the defendant is able to show any apparent defect in title of plaintiff. It was observed by the Court that the findings with regard to the execution of the will was purely a question of fact and therefore cannot be interfered with by this Court as it was laid down in Sham lal v. Sanjeev Kumar, (2009) 12 SCC 454. The Court held that in presence of prior execution of Agreement of Gift, the Will becomes a suspicious document.

The High Court dismissed the second appeal.

[Ramkali v. Murirtkumari, Second Appeal No.1015 of 2004, decided on 20-07-2022]

Advocates who appeared in this case :

Sankalp Kochar, Advocate, for the Petitioner;

Ashok Lalwani, Advocate, for the Respondent.

Case Briefs High Courts

When can Courts dispense off with the requirement of notice u/s. 80, CPC? J&K and Ladakh HC elucidate

Jammu and Kashmir and Ladakh High Court: While deciding the instant appeal wherein substantial questions of law were raised vis-a-vis SectionS 80, CPC; the Single Judge Bench of Vinod Chatterji Koul, J., held that the language of Section 80 is very clear in stating that at the time of filing a suit, if the plaintiff can establish that there is an urgency to seek relief, then the Court on its satisfaction, may dispense off with the requirement of notice before filing a suit under Section 80.

Facts and Legal Trajectory of the case: The Chief Medical Officer, Pulwama, issued advertisement on 06-02-2012 inviting applications from eligible candidates of District Pulwama, for the posts of Female Multipurpose Health Worker (hereinafter FMPHW) for Sub Centre Amlar. The advertisement was issued under the National Rural Health Mission (NRHM). The prescribed qualification was Diploma in FMPHW and that the candidate should be resident of the locality where the Health Institution is located so as to ensure continuous presence for 24 x 7 days’ service.

In pursuance of the afore-stated advertisement, the appellant and the respondent applied for the post. The appellant was appointed on 19-05-2012 as FMPHW at Sub-Centre Amlar, Block Tral, and joined her duties on 21.05.2012. The respondent, however filed a suit seeking to declare the appellant’s appointment null and void as the officials acted in derogation to the rules and guidelines as stated in the advertisement and were under a mistaken assumption in considering Nowpora as a village. The Trial Court held that the appointment of the appellant was illegal.

Aggrieved by the decision, the appellant approached the Principal District Judge, Pulwama, who dismissed the appeal. The appellant then approached the High Court claiming that there are substantial questions of law that require the High Court’s consideration.

The Substantial Questions of Law in this case: The Court while considering the instant appeal, framed the following questions of law-

Whether a suit instituted against the Government and its functionaries, in which emergency is invoked, can be maintained and continued, when no interim relief is granted in the case?
Whether in terms of Section 80 (3), CPC was it mandatory for the Trial Court to return the plaint to the plaintiff, as no interim relief was granted in the case with regard to the appointment of the appellant?
Whether in judging the appointment of the appellant as FMPHW, did the Trial Court introduce a criterion which is foreign to the advertisement notice as also the norms fixed by the Government?

Observations and Decision: While deliberating upon questions framed, the Court observed that Questions I and II are interconnected as they require consideration of S. 80, CPC.

It is provided under S. 80 of CPC that if the Court feels that there is no relief to be urgently granted, then it shall refuse to grant such leave and return the plaint. Refusal to grant relief is to be considered at the stage when a suit is sought to be filed without issuance of notice as required under S. 80, CPC. The plaint would be returned if at that stage, the Court finds that there is no urgency in the suit or in passing an urgent relief.
From the plain reading of S. 80 (3), CPC along with proviso attached to sub-section (3), it is clear that plaint can be returned if leave is refused. The consideration of application for a grant of temporary injunction would arise after leave is granted and notice in such application is given to the State or Government functionaries.
Vis-a-vis Question III, the Court observed that the local criteria for the appointment of FMPHW as per the advertisement, were at the village level. Furthermore, upon perusing the evidence recorded by the Trial Court, the Bench observed that no new criterion was introduced that was foreign to the advertisement. The High Court also pointed out that both the appellant and respondent were from the same village and fulfilled the criteria as contained in advertisement notice.
With the above-stated observations, the Court dismissed the appeal but allowed the appellant to make representations before official respondents if it is permissible.

[Raisa Banoo v. Shameema, 2022 SCC OnLine J&K 586, decided on 21-07-2022]

Advocates who appeared in this case :

G. A. Lone, & Mujeeb Andrabi, Advocates, for the Appellant;

Rayees Ahmad Ganaie, GA and Showkat Ali Khan, Advocates, for the Respondents.

*Sucheta Sarkar, Editorial Assistant has prepared this brief.

Op Eds OP. ED.

Judiciary’s Robe of Activism in ADR Matters

It is not so surprising to often see the Indian judiciary wearing a cloak of inquisitorial system of justice or be seen involved in activism to instate or reinstate justice and/or means of such justice. One such means, the alternative dispute resolution (ADR) has been majorly developed and promoted by judicial activism. Judiciary has proactively evolved ADR by giving it a true meaning and purport in terms of its implementation.

This article strives to show glimpses in past of judicial activism especially in terms of broadening the spectra of matters to deem fit for reference to ADR and in conclusion briefly discusses and predicts if similar trend of activism will exist in the near future in the light of the pending Mediation Bill, 2021² introduced in Rajya Sabha on 14-12-2021.

Noteworthy traces of such activism can be first seen in the judgment of Hussainara Khatoon v. State of Bihar³, wherein the “right to speedy trial” was recognised as being implicit in Article 21 of the Constitution ⁴. To give effect to the said mandate waking up to the need of the hour, Parliament considered introducing various ADR mechanisms to strengthen the judicial system, which inter alia included:

(i) In 1994, amendment to the Legal Services Authority Act, 1987⁵ was introduced to constitute and organise Lok Adalats.

(ii) In 1996, the Arbitration and Conciliation Act⁶ (A&C Act) was enacted repealing the obsolete 1940 Arbitration Act. Arbitration as a mode of ADR has gained recognition with the A&C Act being amended several times, noteworthily in 2015 and 2018.

(iii) Introduction of Section 89 ⁷ dealing with court annexed ADR in the Civil Procedure Code, 1908 (CPC). The said amendment came in effect only on 1-7-2022.

(iv) In parallel to Section 89 CPC, in 1999 (w.e.f. 1-7-2002), Section 16 ⁸ in the Court Fees Act, 1870 was introduced regarding refund of fees in matters referred under Section 89 CPC.

In the wake of Section 89 CPC, on 27-7-2002, the then Chief Justice of India, formally inaugurated the Ahmedabad Mediation Centre. The CJI called a formal meeting of the Chief Justices of all the High Courts of the Indian States in November 2002 at New Delhi to impress upon them the importance of mediation and the need to implement Section 89 CPC.⁹

Section 89 CPC, as vital as a statutory step it was, had serious shortfalls in terms of its implementation that were fixed by the Supreme Court. Section 89 CPC had anomalies that were identified by Supreme Court in a series of cases, which are discussed in subsequent paragraphs of this article. Interestingly, till date the legislature has carried out no amendment to Section 89 to fix these anomalies. But Section 89 is very well been used by courts to refer the matters through ADR, though only after the Court supplemented the wording of Section 89 with purposive interpretation. The Supreme Court in fact was aware of its need to step up, which was respectfully nothing short of being called as activism. The Court relevantly while fixing the anomalies stated that:¹⁰

9. If Section 89 is to be read and required to be implemented in its literal sense, it will be a trial Judge’s nightmare. It puts the cart before the horse and lays down an impractical, if not impossible, procedure in sub-section (1). It has mixed up the definitions in sub-section (2). In spite of these defects, the object behind Section 89 is laudable and sound. Resort to alternative disputes resolution (for short “ADR”) processes is necessary to give speedy and effective relief to the litigants and to reduce the pendency in and burden upon the courts.

The 2003 three-Judge Bench judgment in Salem Advocate Bar Assn. v. Union of India called as Salem Bar (1)¹¹ finds a special notice in this regard. The Supreme Court in Salem Bar (1)¹², directed for a committee to be appointed to frame model rules explaining the procedure for mediation. The amendment in Section 89 was made on the recommendation of the Law Commission of India and Justice Malimath Committee.¹³ The Law Commission of India, in compliance with the aforesaid judgment, drafted the consultation paper on ADR and Mediation Rules in 2003 which was adopted by several High Courts to formulate their separate Mediation Rules. Later, Justice Malimath Committee¹⁴ recommended making it obligatory for the court to refer the dispute, after issues are framed, for settlement either by way of arbitration, conciliation, mediation or judicial settlement or through Lok Adalat. It is only when the parties fail to get their disputes settled through any of the ADR methods that the suit could proceed further. The Chief Justice of India set up the Mediation and Conciliation Project Committee (MCPC) in 2005 for encouraging amicable resolution of disputes pending in the courts in accordance with Section 89 of the Code of Civil Procedure.

In Salem Bar (1)¹⁵, the Supreme Court upheld the validity of Section 89 with all its imperfections and referred to a committee, as it hoped that Section 89 would be implemented by surfacing the infirmities in it. Later in 2005, in another subsequent case of Salem Advocate Bar Assn. v. Union of India, known as the Salem Bar (2)¹⁶, recognised certain anomalies under Section 89 and gave purposive interpretation thereby making Section 89 CPC workable. The Supreme Court emphasised the need for ADR in Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd.¹⁷ (Afcons case). The judgment firstly acknowledged the anomalies in the understanding of Section 89 while referring to Salem Bar (1)¹⁸ and Salem Bar (2)¹⁹; and secondly it laid out guidelines for the courts to follow for the effective implementation of Section 89 CPC, which encourages parties to settle their disputes by means of ADR.

In Afcons case, the Court adjudged that reference to ADR is a must and mandatory under Section 89 CPC, “where it appears to the court that elements of settlement exist”²⁰. Even though the Court in Afcons case²¹ was faced with the issue of adjudging whether mutual consent is necessary for arbitration, the Court made observations with regard to “mutual consent” required or not under all ADR methods recognised under Section 89 CPC. The Court held that mutual consent is required for arbitration and conciliation but not for Lok Adalat, mediation and judicial settlement. Further, an illustrative category of disputes which would be fit and not fit for reference to ADR were also observed.²² In the said list of cases, cases of criminal offences and that of serious and specific allegations of fraud, fabrication of documents, forgery, impersonation, coercion, etc. were held not fit for ADR reference. The Supreme Court in the recent judgments has clarified and limited the scope in cases of fraud. In 2021, the Supreme Court has clarified regarding non-arbitrability of cases involving fraud that “cases involving prosecution for criminal offences, it is also important to remember that the same set of facts may have civil as well as criminal consequences”.²³

Through judicial activism the concept and use of ADR has been expanded tremendously. In precedents such as K. Srinivas Rao v. D.A. Deepa²⁴ mediation/ADR was encouraged in matrimonial cases and criminal cases and accepting compromises even in the non-compoundable cases such as Section 498-A²⁵ IPC (though with caution). The Court allowed quashing of complaints on the basis of settlement. Further the Court issued directions re mediation such as setting up pre-litigation desks/clinics; giving them wide publicity and making efforts to settle matrimonial disputes at pre-litigation stage.²⁶ The Court observed:²⁷

44. … there exist elements of settlement, it should direct the parties to explore the possibility of settlement through mediation … In this exercise, there is no loss to anyone. If there is settlement, the parties will be saved from the trials and tribulations of a criminal case and that will reduce the burden on the courts which will be in the larger public interest.

The judicial courts have proactively allowed mediation in cases of compoundable offences such as Section 138²⁸ of the NI Act.²⁹ In the 2019 judgment of MTNL v. Canara Bank³⁰ the Supreme Court, while invoking the doctrine of “group companies” permitted a non-signatory to an arbitration agreement to participate in the arbitration proceedings. The Supreme Court observed that a non-signatory may be bound by an arbitration agreement where the parent or holding company, or a member of the group of companies is a signatory to the arbitration agreement and the non-signatory entity on the group has been engaged in the negotiation or performance of the commercial contract, or made statements indicating its intention to be bound by the contract, the non-signatory will also be bound and benefited by the relevant contracts. In the instant case, the Supreme Court observed that there was enough factual background to suggest that the parties intended to bind the non-signatory party to the arbitration proceedings.

Needless to add, countless sets of judgments exist where the Court has stressed on restraint to be practised by the courts in cases of review of arbitral awards under Section 34 ³¹ of the Arbitration and Conciliation Act, 1996. These judicial precedents lineage starts from the judgment of Associate Builders v. DDA³² in 2014, followed by certain important judgments such as that of Ssangyong Engg. and Construction Co. Ltd. v. NHAI³³ and coming to the judgment in Delhi Airport Metro Express (P) Ltd. v. DMRC³⁴ wherein the Court has clarified that it may not interfere with the arbitral award merely because the other view appears more plausible. Even in one of another judgment, Welspun Specialty Solutions Ltd. v. ONGC Ltd.³⁵the Court set aside the order of the High Court and the Single Judge interfering with the award under Section 34 of the A&C Act and upheld the judgment of the Arbitral Tribunal.

All these landmark cases indicate the heavy weight and trust that our judiciary entrusts with the ADR mechanisms such as arbitration.

In the 2019 judgment of Perry Kansagra v. Smriti Madan Kansagra³⁶ the Supreme Court identified various kinds of disputes where ADR may be a better alternative than litigation, such as cases relating to trade, commerce and contracts including, inter alia, money claims arising out of contracts. Disputes relating to specific performance or disputes between insurer and insured, bankers and customers were also considered to be better resolved through an ADR mechanism rather than litigation.

In the judgment of M.R. Krishna Murthi v. New India Assurance Co. Ltd.³⁷, the Supreme Court directed the Government to consider the feasibility of enacting a Mediation Act.

In background of such events, it is not tough to view the upcoming trend that judiciary might adopt if the pending Mediation Bill of 2021³⁸ is enacted in its present state, that has been introduced in Rajya Sabha on 21-12-2021. But will the same provide a wholesome law on mediation and will be putting rest to the era of judicial activism in matters of mediation? May be it is too early to say for sure but at the outset it can be seen that provisions of the Bill incorporate limited power to judicial courts to decide if the matter is fit for mediation and scope for reference. The Bill incorporates a proviso to Section 7, which states:³⁹

Provided that nothing contained herein shall prevent any court, if deemed appropriate, from referring any dispute to mediation relating to compoundable offences or matrimonial offences connected with or arising out of civil proceedings between the parties.

The Bill provides a schedule to compartmentalise cases that are not fit for mediation⁴⁰, which has inadvertently categorised cases such as that of fraud or criminal offences as not fit for mediation at all. In the few cases noted above this seems to be an obsolete view that has been redefined and yet the Bill fails to incorporate it.

Further, the Bill mechanically proposes to make pre-litigation mediation as mandatory⁴¹, and thereby not taking into account the most important criteria of success of any mediation i.e. mutual consent. And importantly the Bill leaves not much power with judicial courts to decide if the matter even if not in the category of “disputes not fit for mediation” may still be unfit for mediation. Only the power to grant some interim relief under Section 8⁴² of pending Bill may be granted by the court or tribunal before commencement or during the mediation proceedings is possible. But in toto such a mechanical approach towards implementation of an ADR mechanism that too of mediation is bound to have its shortfall.

It is indicative that the Bill if passed in its present form indicates that it may eventually call for more activism on the part of the Indian judiciary in giving it purposive interpretation for its effective use in adjudging matters through ADR. It can be said that more surprises await to be unboxed where the judiciary can be seen in action with its fathomable and praiseworthy activism.

† Advocate. Author can be reached at <soumyaasharma@outlook.com>.

2. Mediation Bill 2021 (43 of 2021).

3. (1980) 1 SCC 93.

4. Constitution of India, Art. 21.

5. Legal Services Authority Act, 1987.

6. Arbitration and Conciliation Act, 1996 (26 of 1996).

7. Civil Procedure Code, 1908, S. 89.

8. Court Fees Act, 1870, S. 16.

9. Mediation and Conciliation Project Committee, Supreme Court of India, Delhi, Mediation Training Manual of India, p. 7, available at <https://main.sci.gov.in/pdf/mediation/MT%20MANUAL%20OF%20INDIA.pdf >.

10. Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd., (2010) 8 SCC 24.

11. (2003) 1 SCC 49.

12. (2003) 1 SCC 49.

13. Delhi Mediation Centre, available at <https://delhicourts.nic.in/dmc/history.htm> (last visited on 12-5-2022).

14. Report of the Committee on Reforms of Criminal Justice System, (Vol. 1)(March 2003).

15. (2003) 1 SCC 49.

16. (2005) 6 SCC 344.

17. (2010) 8 SCC 24.

18. (2003) 1 SCC 49.

19. (2005) 6 SCC 344.

20. Afcons case, (2010) 8 SCC 24, at para 26.

21. (2010) 8 SCC 24.

22. Afcons case, (2010) 8 SCC 24, at paras 27-28.

23. Avitel Post Studioz Ltd. v. HSBC PI Holdings (Mauritius) Ltd., (2021) 4 SCC 713.

24. (2013) 5 SCC 226.

25. Penal Code, 1860, S. 498-A.

26. K. Srinivas Rao, (2013) 5 SCC 226 at para 46.

27. K. Srinivas Rao, (2013) 5 SCC 226.

28. Negotiable Instruments Act, 1881, S. 138.

29. Dayawati v. Yogesh Kumar Gosain, 2017 SCC OnLine Del 11032.

30. (2020) 12 SCC 767.

31. Arbitration and Conciliation Act, 1996, S. 34.

32. (2015) 3 SCC 49.

33. (2019) 15 SCC 131.

34. 2021 SCC OnLine SC 695.

35. (2022) 2 SCC 382.

36. (2019) 20 SCC 753.

37. (2020) 15 SCC 493.

38. Mediation Bill, 2021.

39. Mediation Bill, 2021, S. 7.

40. Mediation Bill, 2021, First Schedule.

41. Mediation Bill, 2021, S. 6.

42. Mediation Bill, 2021, S. 8.

Case Briefs High Courts

Calcutta High Court| Order XLI, Rule 5(1) of the CPC grants the court discretion to stay the execution of a decree for ‘sufficient cause’; Award by arbitral tribunal upheld

Calcutta High Court: Shekhar B. Saraf, J. upheld the award granted by the Arbitral Tribunal holding that the award holder should be secured for the entirety of the amount along with interest and other costs.

The petitioner had filed this petition under Section 34 of the Arbitration and Conciliation Act, 1996 (“the 1996 Act”) along with an application under Section 36(2) of the 1996 Act praying for stay of the award passed by the arbitral tribunal on 27-12-2021 where the respondent was entitled to a refund of Rs. 84.24 crores along with interest which it had deposited with the petitioner on 27-12-2006. Tribunal had also awarded a sum of Rs. 25,00,000/- towards reimbursement of litigation and arbitral costs.

The dispute between the parties had arisen out of an agreement to carry out a new township project for which the petitioner invited financial bids through a tender process. The financial bid of the respondent was accepted and the petitioner via letter dated 21-12-2006 issued a Letter of Award. Possession of 90.19 acres of land was handed to the respondent on 10-08-2007, however no lease deed was entered between the parties at the time of handing over of the possession. Even after a lapse of one year, the lease agreement for execution of work and the development agreement for the same were still not executed between the parties. Finally, in order to govern the relations between the parties a formal development agreement mentioning the terms and conditions were reduced in writing on 25-04-2008. Due to non-execution of the lease between the parties, the new township project was not commenced meanwhile, the petitioner demanded the remaining sums required to be paid by the respondent claimant. The respondent did not pay the remaining amount due to non-execution of the lease document. Finally, the petitioner terminated the development agreement due to nonpayment of the balance instalments constituting event of default by the respondent. Resultantly, arbitration clause was invoked for settlement of the dispute wherein the abovementioned order was passed by the Tribunal.

Senior Advocate appearing for the petitioner argued that the court has the discretion to decide the mode of security to be furnished by the petitioner. He stated that the land in possession of the respondent can be accepted as a valid security for granting stay of the arbitral award under Section 36 of the 1996 Act.

Advocate appearing for the respondent highlighted the default committed by the petitioner as per the development contract entered between them.

The Court perused the relevant clauses and provisions of law cited by the advocates and opined that proviso to Section 36(3) of the 1996 Act makes it clear that the Court must, while considering the stay application in proceedings under Section 34 of the Arbitration Act, have due regard to the provision for grant of stay of a money decree under the provisions of the Civil Procedure Code, 1908 (“CPC”). Order XLI, Rule 5(1) of the CPC grants the court discretion to stay the execution of a decree for ‘sufficient cause'.

The Court reiterated what was held in the case of Pam Developments (P) Ltd. v. State of West Bengal, (2019) 8 SCC 112 that the mandate of the amended Section 36 of the 1996 Act is such that the Court while considering an application for stay filed along with filing of quashing petitioner under Section 34 of the Arbitration Act can grant the stay subject to conditions as it deems fit. Section 36 also mandates recording of reasons for such stay being granted. The Court at the initial stage of proceeding, was satisfied that there does not appear to be any illegality, perversity or violation of any law on the face of the arbitral award as Arbitrator has duly considered the pleadings on behalf of the parties, and thereafter, framed issues and dealt with specific claims and counterclaims of the parties with reasons — hence, the award is a speaking award.

The petitioner was directed to deposit 50% of the arbitral award (including interest calculated till June, 2022) by way of cash security or its equivalent and the Registrar Original Side was directed to make a fixed deposit of the said amount with any nationalised bank and keep the same renewed till the disposal of the application under Section 34 of the Act or until further orders of Court. The remaining 50% of the awarded amount was directed to be secured by way of bank guarantee(s) of a nationalised bank by the petitioner to the satisfaction of the Registrar Original Side, High Court.

[Siliguri Jalpaiguri Development Authority v. Bengal Unitech Universal Siliguri Projects Ltd., I.A. G.A. No. 1 of 2022, decided on 22-06-2022]

Advocates who appeared in this case :

Mr S.N. Mookherjee, Senior Advocate, Mr Anirban Ray, Mr Raja Saha, Mr Chayan Gupta, Mr Sandip Dasgupta, Mr Saaqib Siddiqui, Mr Aviroop Mitra, Advocates, for the Plaintiff/Respondent;

Mr Siddharth Batra, Mr Ashish Shah, Mr Chinmay Dubey, Ms Moumita Chakraborti, Advocates, for the Respondent/Claimant.

*Suchita Shukla, Editorial Assistant has reported this brief.

Case Briefs High Courts

MP HC | Application under S. 151 of CPC maintainable despite the fact that order allowing the application under Or. 7 R. 11 of CPC is appealable; Trial Court directed to restore civil suit

Madhya Pradesh High Court: Dwarka Dhish Bansal, J. allowed a civil revision under Section 115 of CPC against the order rejecting application filed under Section 151 of CPC holding that the same was not maintainable.

Order sheet of the trial Court showed that respondent 2 was not present when the suit was dismissed for want of payment of requisite Court fee, therefore, in view of order 41 Rule 14 (4) of CPC service of notice on her is not necessary. Counsel for the applicant submitted that he instituted a suit for specific performance of agreement of sale, on which Court fee of Rs.1,25,000/- (Rs One Lakh Twenty Five Thousand) was required to be paid but due to non-payment of requisite Court fee the suit was dismissed. He submitted that the applicant instead of filing First Appeal against the order filed an application under Section 151 of CPC with a prayer to restore the Civil Suit and to permit the plaintiff to pay the court fee.

The Court considered the judgment relied on by the Counsel for the applicant Ajab Singh v. Amar Singh, 2000 (1) MPWN 77 wherein the decision in the case of Padmalaya Panda v. Masinath Mohanty AIR 1990 Orissa 102 (DB) was considered, which has also been relied on in the case of Pravesh Pathak v. Shakuntala Sharma, 2016 (1) MPLJ 358 and also in the case of Jagdeesh v. Narayan decided on 22-2-2018 in M.P.No.1132 of 2017, whereby the application under Section 151 of CPC was found to be maintainable despite the fact that order allowing the application under Order 7 Rule 11 of CPC is appealable like a decree under Section 96 of CPC.

The Court was of the opinion that Trial Court has not carefully considered both the decisions relied on by the Counsel thus the impugned order is not sustainable. Trial was directed to restore the civil suit.[Anil Kumar Jain v. Maniram Singraha, 2022 SCC OnLine MP 971, decided on 11-05-2022]

For applicant: Mr Sanjay Kumar Jain

For respondent: Mr Sidharth Sharma, Mr R.P. Khare

Suchita Shukla, Editorial Assistant has reported this brief.

Case Briefs Supreme Court

Clarification vis-à-vis substantial alteration of commercial agreement; SC considers legality of retrospective application of modifications in agreement

Supreme Court: The Division Bench comprising of Ajay Rastogi* and Abhay S. Oka, JJ., held that a modification changing tariff for inadvertent drawal from temporary supply rate to the regular supply rate cannot be considered to be a mere clarification and is rather a substantial alteration which cannot be made applicable retrospectively.

Factual Background

The instant appeal under Section 125 of the Electricity Act, 2003 had been preferred at the instance of the distribution company, Ajmer Vidyut Vitran Nigam Ltd, the appellant herein. An agreement for short term open access of distribution system and supply of regular and standby HT supply came to be executed between the appellant and Hindustan Zinc Ltd. (HZL) in terms of the provisions of the Rajasthan Electricity Regulatory Commission (Terms and Conditions for Open Access) Regulations, 2004 on 22-09-2006 and draft format of the open access agreement became effective from 01-05-2006.

Consequently, the Rajasthan Electricity Regulatory Commission in terms of open access regulations specified a standard format of agreement for short term open access for distribution system and for HT supply which was served on 03-01-2007. Notably, under clause 29(1)(f), the standard format of agreement was supplied by the Commission on 03-01-2007, which stated: “29(1)(f). Inadvertent drawal of electricity in excess of regular & standby supply as per sub clause (e) at temporary supply tariff.”

However, when it was forwarded to HZL for its signatures, the HZL noticed that Clause 29(1)(f) of the format was different from the standard agreement prescribed in the open access regulations. Consequently, the appellant sought certain clarification and accordingly, reference was made to the Commission for examination of changes in the standard agreement for HT supply and short term open access in distribution.

Issues Involved

After deliberation, by its order dated 15-09-2007, the Commission made substantial changes and altered Clauses 29(1)(e) and 29(1)(f) and 32(4) of the standard format agreement and observed that the inadvertent drawal will be billed at the same rate as regular supply irrespective of whether such inadvertent drawal was done during a period of outage of generating unit affecting open access supply or during the period of shortage of supply.

Noticeably, Clause 29(1)(f) earlier provided that all inadvertent supply would be charged as per temporary supply tariff but the Commission altered the position substantially and held that instead of the tariff for temporary supply, a tariff for regular supply will be payable for inadvertent drawal.

It was when the appellant raised the bills for period from June, 2006 to February, 2008 (for the anterior period), thereby applying the changes introduced by the Commission retrospectively, the aggrieved respondents had filed appeal before the Appellate Tribunal questioning the order of the Commission which later on reached before the Bench in the instant case.

Analysis and Findings

The question before the Bench was, whether the order dated 15-09-2007 of the Commission was a mere interpretation/clarification of standard format agreement or the order changes the position substantially the terms of the format having prospective effect for raising future bills?

The Bench noticed that it was not the case of the appellant that the conditions of open access agreement and particularly, Clauses 29(1)(e) and 29(1)(f) of the agreement were either in contradistinction or in contravention to the Regulations, 2004 and tariff to be charged for inadvertent drawal from temporary supply rate was equally permissible under the scheme of Regulations, 2004 and agreement was accordingly executed between the parties in compliance thereof.

Therefore, the Bench held that the substantial change/modification which had been given effect to by the Commission under its order dated 15-09-2007 under Clause 29(1)(f) effecting the tariff for inadvertent drawal from temporary supply rate to regular supply rate was indeed a substantial change in the condition of the agreement and prejudicial to the interest of the parties (respondents herein) and could not be read to apply retrospectively from the date of agreement executed between the parties. The Bench expressed,

“As we are dealing with the commercial agreement, if any modification, that too substantial is being permitted to be altered under the agreement executed between the parties at a later stage with retrospective effect even by the statutory authority in the garb of correction or mistake or any typographical error, if any, that may, if prejudicial to the interest of the parties inter se in law be neither permissible nor advisable to give effect anterior to the date of modification/altercation in terms and conditions of the agreement.”

Although, acknowledging the infeasibility of laying down a straight-jacket principle regarding what is clarification or what may tantamount to a substantial change or modification, the Bench while relying on the guiding principles from Section 152 of the Code of Civil Procedure, 1908 clarified,

“…where there is an unintentional omission or mistake or an arithmetic or typographical error while drafting the agreement that may have been permissible to give an effect at a later stage from its inception but, where there is a substantial amendment/alteration in the conditions of agreement, if taken place with its inception, may certainly cause prejudice to the rights of the parties inter se financially or otherwise.”

Taking note of the interim order dated 27-08-2010 whereby the Court had directed the appellant to refund the amount deposited by the respondents with interest, the Bench clarified that considering the long business relations of the parties, the money already deposited by the respondents be adjusted against the future bills to be raised by the appellant in the terms as agreeable to the parties.

[Ajmer Vidyut Vitran Nigam Ltd. v. Hindustan Zinc Ltd., 2022 SCC OnLine SC 208, decided on 17-02-2022]

*Judgment by: Justice Ajay Rastogi

Appearance by

For the Appellant: Advocate Ajay Choudhary

For the Respondent: Advocate Dheeraj Nair

Kamini Sharma, Editorial Assistant has put this report together

Case Briefs High Courts

Megh HC | Lower Courts to deal with entire process expeditiously after receipt of the application under S. 151 read with Or. 20 R. 6-A CPC

Meghalaya High Court: H.S. Thangkhiew, J. while hearing a revision application allowed the same and directed the lower court to deal with the entire process expeditiously immediately on receipt of the application under Section 151 read with Order 20 Rule 6-A CPC.

The revision application under Article 227 of the Constitution was filed to seek the supervisory jurisdiction of the Court to quash and set aside order dated 18-02-2020, passed by the Court of the Assistant to Deputy Commissioner, Ri Bhoi District, Nongpoh, in Execution Case 01 of 2019. Title Suit 4 of 2016 was instituted by the petitioners as plaintiffs before the Court of the Assistant to Deputy Commissioner in the course of proceedings resulted in a compromise.

Petitioners approached the Lower Court for execution of the compromise deed dated 04-07-2016, vide Execution Case 1 of 2019.

Counsel for the petitioner, submitted that after the compromise had been arrived at, settling the disputes raised in the Title Suit, the same was reduced to writing, and was jointly presented before the Lower Court on 04-07-2016.

Petitioners submitted that comprise arrived in settling the disputes raised in the Title Suit and the same was reduced to praying for judgment decree and order to be passed by the Court based on the mutual settlement. Court examined the parties, and disposed of the suit by allowing and accepting the settlement arrived at 04-07-2016, but no formal decree was drawn up.

Respondents filed 2 objections on 24-09-2019 and 28-11-2019 on the same premise. Lower Court took up for consideration and disposed of the entire execution case by the impugned order dated 18-02-2020 by holding that there was no decree and that the party were to resolve their own disputes. Petitioners on examination of the records, pointed for consideration before the Court. It was with the correctness of the impugned order which had rejected the application for execution filed under Order 21 Rule 15 of the CPC by the petitioner/plaintiff.

Court drew no decree and the petitioner was required to file an application under Section 151 read with Order 20 Rule 6-A CPC, before the lower Court for drawing the decree in accordance with the order dated 04-07-2016. Consequently, the impugned order dated 18-02-2020 was set aside and quashed. The Court opined that the entire process should be dealt expeditiously by the lower court immediately on receipt of the application under Section 151 read with Order 20 Rule 6-A CPC which shall be filed by the petitioner within a period of 4 weeks.[Delican Shadap v. Dal Nongtri, 2022 SCC OnLine Megh 33, decided on 03-03-2022]

For the Petitioner/Appellant(s) : Mr S.R. Lyngdoh

For the Respondent(s) : None

Suchita Shukla, Editorial Assistant has reported this brief.

Case Briefs Supreme Court

Grant of leave to defend is the ordinary rule and denial is an exception; Supreme Court lays down detailed guidelines for leave to defend in summary suits

Supreme Court: While clarifying the law on leave to defend, the Division Bench of Vineet Saran and Dinesh Maheshwari*, JJ., held that even if there remains a reasonable doubt about the probability of defence, sterner or higher conditions could be imposed while granting leave to defend but, denying the leave would be ordinarily countenanced only in such cases where the defendant fails to show any genuine triable issue and the Court finds the defence to be frivolous or vexatious.

The plaintiff-respondent 1 filed the subject suit in terms of Order XXXVII of the CPC while stating itself to be a registered partnership firm manufacturing and supplying a wide variety of iron and steel products. The plaintiff contended that the defendant 1 represented itself as a real estate and infrastructure development firm while the defendant 2 represented itself as a contractor working with the defendant 1 for the construction work of its project namely ‘MIST’. The defendant 1 issued two cheques drawn on Axis Bank for a sum of Rs.14,72,269 and Rs. 13,34,319 while asking the plaintiff to present the cheques only after receiving intimation but no such intimation was received. Later on, the plaintiff issued a legal notice dated 28-01-2016 to the defendants demanding the dues and, upon their failure to make the requisite payment, filed the summary suit under Order XXXVII CPC.

Joint and Several Liability or a Blame Game?

The defendant 1 sought leave to defend with the contentions that it had no privity of contract and the purchase orders were issued only by the defendant 2; that the invoices in question were raised in the name of the defendant 2; that neither the purchase orders nor the invoices were bearing the signatures of the defendant 1; and that all the dealings were between plaintiff and defendant 2. On the contrary, the appellant-defendant 2 moved a separate application seeking leave to defend on the ground that the purchase orders were issued by him only on behalf of the defendant 1; and that the material supplied by the plaintiff was for the construction of project undertaken by defendant 1, who was the beneficiary of the said project.

Findings of the Courts below

The Trial Court held that no triable issues were raised by the defendants and declined their applications seeking leave to defend. Consequently, the suit was decreed in favour of the plaintiff for a sum of Rs. 89,50,244/- together with interest at the rate of 10% per annum with joint and several liability of the defendants to pay the decreetal amount.

The High Court held that the defendants were not entitled to leave to defend because the defences raised by them did not give rise to genuine triable issues; and the defences were frivolous and vexatious, raised only in order to deny the just dues of the seller of goods. Noticeably, the High Court made the following observations:

Though the cheques were issued by defendant 1, yet a suit would lie against defendant 2 as there was no such requirement in Order XXXVII CPC that the cheques which are issued for payments ought to be of the person against whom the liability is claimed. The High Court further observed that as per Section 2 (d) of Contract Act, 1872 consideration under a contract need not flow/pass only between the parties to a contract.
The High Court also observed that even if the cheques were not presented, the suit would be maintainable under Order XXXVII CPC because there was no such requirement that the cheque ought to be dishonored for filing a summary suit.

Maintainability of the Summary Suit

Considering the factual background of the case, the Bench held that the contention against maintainability of the summary suit in terms of Order XXXVII CPC could not be accepted as the matter was based on written contract arising out of written purchase orders. The question as to whether the appellant was acting only as an agent of defendant 1 in relation to the supplies could only be a matter of his defence and could not take away the entitlement of the plaintiff to file a summary suit.

Law on Leave to Defend

The Bench opined that while dealing with an application seeking leave to defend, it would not be a correct approach to proceed as if denying the leave is the rule or that the leave to defend is to be granted only in exceptional cases or only in cases where the defence would appear to be a meritorious one. Precisely, the Bench framed the following rules:

If the defendant satisfies the Court that he has substantial defence, i.e., a defence which is likely to succeed, he is entitled to unconditional leave to defend.
Where the defendant raises triable issues indicating a fair or bonafide defence, albeit not a positively good defence, he would be ordinarily entitled to unconditional leave to defend.
Where the defendant raises triable issues, but it remains doubtful if the defendant is raising the same in good faith or about genuineness of the issues, the Trial Court may impose conditions both as to time or mode of trial as well as payment into the Court or furnishing security to balance the requirements of expeditious disposal of commercial causes and of not shutting out triable issues.
Where the proposed defence appear to be plausible but improbable, heightened conditions may be imposed as to the time or mode of trial as also of payment into the Court or furnishing security or both, which may extend to the entire principal sum together with just and requisite interest.
In the case where any part of the amount claimed by the plaintiff is admitted by the defendant, leave to defend is not to be granted unless the amount so admitted is deposited by the defendant in the Court.

Conclusion

In the backdrop of above, the Bench concluded the following:

The Trial Court as also the High Court totally omitted to consider that the appellant-defendant 2 had been contesting its liability with the assertion that it had only been the contractor executing the work of defendant 1.
The conclusion that the defence raised by the appellant was frivolous or vexatious could only be treated as an assumptive one and lacking in requisite foundation.
The effect and impact of an admitted position of the plaintiff, that payments were indeed made from time to time by the defendant 1, seems not to have gone into consideration of the Trial Court and the High Court while denying leave to the appellant.
The same considerations, which weighed with the Courts to deny the leave to defend to the defendant 1, could not have been applied ipso facto to the case of the appellant; rather those considerations make out a case of triable issues qua the appellant.
The view that the appellant has indeed raised triable issues, particularly concerning its liability and the defence of the appellant could not be said to be frivolous or vexatious altogether.

Accordingly, the appeal was allowed and the impugned judgments and orders of the High Court as well as of the Trial Court, insofar relating to the appellant were quashed and set. The appellant was granted leave to defend; and the amount of Rs. 40,00,000/- deposited by the appellant was directed to be treated as a deposit towards the condition for leave to defend. The Trial Court was directed to pass appropriate orders for treatment of the said amount and then proceed with trial of the suit only qua the appellant-defendant 2 in accordance with law.

[B.L. Kashyap & Sons Ltd. v. JMS Steels & Power Corpn., C.A. No. 379 of 2022,

*Judgment by: Justice Dinesh Maheshwari

Appearance by:

Advocate for the Appellant: Apoorva Bhumesh

Kamini Sharma, Editorial Assistant has put this report together

Case Briefs Supreme Court

Is independent suit questioning a compromise decree maintainable or one has to approach the same Court which recorded the compromise to challenge it? SC answers

Supreme Court: The Division Bench of M.R. Shah* and Sanjiv Khanna, JJ., held that an independent suit questioning the Compromise Decree would not be maintainable. The Bench observed that a mere clever drafting would not permit the plaintiff to make the suit maintainable which otherwise would not be maintainable and/or barred by law.

Factual Background

Brief facts of the case were such that the suit schedule property was gifted to the respondent 1–original plaintiff during his minority by his paternal grandmother, respondent 2 vide registered Gift Deed dated 13-02-2003, however the deed was revoked on 10-12-2004 and thereafter a registered Development Agreement-cum- General Power of Attorney dated 18-01-2008 came to be executed between the grandmother and the appellant–M/s. Sree Surya Developers and Promoters. Under the said Development Agreement, the grandmother was entitled to 35,000 sq. ft. of fixed saleable super built-up area along with proportionate number of car parking spaces and undivided share in the land.

The father of the respondent 1 filed a suit as the next friend of then minor respondent 1 seeking for declaration that revocation of Gift Deed as being illegal and not binding on the plaintiff therein and also for perpetual injunction. Subsequently, a compromise was arrived at between the parties vide Compromise Deed Dated 30-12-2015 under which it was agreed that the respondent 1 would be entitled to entire 35,000 sq. ft. of the constructed area and the Developer would be entitled to assign the development rights accrued to it under the said Development Agreement to the third parties. Thereafter the appellant–Developer assigned its development rights to respondent 4 and on the basis of the same, the respondent 4 had started developing the subject property.

On attaining the age of majority, the respondent 1 filed a suit before the Trial Court praying inter alia declaration of right, title and interest over the suit schedule property and declaration of Compromise Decree. He also prayed the revocation of deed as null and void.

Findings of the Courts below

The Trial Court rejected the plaint on the ground that in view of Order XIII Rule 3A CPC, no independent suit would be maintainable against the Compromise Decree. In appeal, the High Court had quashed and set aside the order passed by the Trial Court and has remanded the matter to the Trial Court by observing that the effect of the provisions of Order XXXII Rules 1 to 7 CPC had not been considered by the Trial court, which would have a direct bearing on the validity of the Compromise Decree.

Analysis and Observations

The Bench observed that the High Court had not at all dealt with and considered the provisions of Order XXIII Rule 3A CPC and had not considered whether in fact the suit challenging the Compromise Decree and/or for the reliefs sought in the suit would be maintainable or not. The Bench opined,

“What was required to be considered by the High Court was whether the independent suit questioning the Compromise Decree would be maintainable or not. The aforesaid crucial aspect had not been dealt with by the High Court at all and High Court had gone into the validity of the Compromise Decree in view of Order XXXII Rule 7 CPC.”

The Bench held that the plaint in exercise of powers under Order VII Rule 11 of CPC to challenge the Compromise Decree would be barred under Order XXIII Rule 3A of CPC and the party to a consent decree based on a compromise has to approach the same court, which recorded the compromise to challenge a decree based on compromise.

Rejecting the argument of the respondent that he had not specifically prayed for setting aside the Compromise Decree and what was prayed was to declare that the Compromise Decree was not binding on him and that for the other reliefs sought, the suit would not be barred, the Bench held that a mere clever drafting would not permit the plaintiff to make the suit maintainable which otherwise would not be maintainable and/or barred by law. The Bench remarked,

If we consider the reliefs of declaration of title, recovery of possession, cancellation of revocation of Gift Deed, declaration for DGPA and Deed of Assignment-cum-DGPA, the said reliefs can be granted only if the Compromise Decree is set aside.

Conclusion

In the light of the above, the Bench concluded that the High Court had erred in setting aside the order of the Trial Court. Accordingly, the impugned judgment and order passed by the High Court was set aside and quashed and the order of the Trial Court was restored.

[Sree Surya Developers and v. N. Sailesh Prasad, 2022 SCC OnLine SC 165, decided on 09-02-2022]

*Judgment by: Justice M.R. Shah

Kamini Sharma, Editorial Assistant has put this report together

Case Briefs High Courts

Raj HC | Objection with regard to pecuniary jurisdiction shall be taken at the first instance at the earliest possible opportunity in accordance with S. 21 CPC

Rajasthan High Court: Anoop Kumar Dhand J. allowed the appeal and quashed the impugned order dated 17-08-2021 passed by the Court of Additional District and Sessions Judge No. 9, Jaipur Metropolitan-II, Jaipur.

The facts of the case are such that the disputed property was purchased by the plaintiff from one Balram vide agreement and the possession of the same was handed over to the plaintiff by said Balram. On 15-06-1996, allotment letter was also transferred in favour of the plaintiff by the defendant. Thereafter, boundary wall was constructed around the disputed property. When the father of the plaintiff visited the site on 03-02-2006, then he found that certain Land Mafias had broken the locks of the plot by trespassing upon it. When he asked them about the right, title of the property in question, then they started quarrelling with the father of the plaintiff. An FIR was also lodged in this regard and finally the instant suit has been filed for declaration, possession, damages, mandatory and permanent injunction with regard to the disputed property. Counsel for the petitioners submitted that after recording the evidence of both the sides on all the issues, the case was posted for final arguments and at that stage the learned court has no pecuniary jurisdiction to hear and decide the suit, hence, the suit is liable to be dismissed. It was further submitted that that 13 years have passed after filing of the suit and in case the impugned order is allowed to stand as it is then the plaintiff would be seriously prejudiced. Hence, the impugned order be quashed and set aside.

Counsel for the respondents submitted that the court has ample jurisdiction under Order 14 Rule 5 to frame any additional issue at any stage before disposal of the suit. So, rejection of the appeal was prayed. It was further submitted that from bare perusal of the contents of the plaint it was clear that the court has no pecuniary jurisdiction to hear and decide the suit. Hence, the court has rightly passed the impugned order. It was also submitted that the objection regarding the pecuniary jurisdiction can be taken at any stage even before the pronouncement of the judgment.

The Court stated “no such objection was taken by the defendants at the earliest stage or not during the course of trial when it reached to its final stage. Now at the stage of final disposal, the application has been submitted which has been accepted by the learned court below by overlooking the mandatory provisions contained under Section 21 of the Code of Civil Procedure.”

The Court observed that the suit was filed in the year 2008 and on bare perusal of the plaint, it is clear that the valuation of the suit was mentioned and the plea was also taken therein that the court below is competent to hear and decide the controversy in question on the basis of the valuation determined in the plaint by the plaintiff. and it is settled position of law as per Section 21 of the Code of Civil Procedure that the objection with regard to pecuniary jurisdiction shall be taken at the first instance at the earliest possible opportunity.

The Court held “the impugned order is not sustainable in the eye of law and the same is liable to be quashed and set aside.”

[Meeta Agarwal v. Hathroigiri, S.B. Civil Miscellaneous Appeal No. 1566/2021, decided on 04-01-2022 ]

Arunima Bose, Editorial Assistant has reported this brief.

Appearances

For Appellant(s) : Mr. Behari Lal Agarwal and Mr. Akash Gupta

For Respondent(s) : Mr. Bajrang Lal Choudhary

Case Briefs High Courts

HP HC | Power under Or. 18 R. 17 CPC cannot be invoked to fill up omission in the evidence already led by a witness

Himachal Pradesh High Court: Sandeep Sharma, J., allowed the petition and quashed the impugned order dated 17-07-2017.

The facts of the case are such that husband filed divorce petition under Section 13 of the Hindu Marriage Act, against the wife on the ground of cruelty. During the pendency of aforesaid divorce petition, husband filed an application under Order 18 Rule 17-A read with Section 151 CPC seeking therein permission of the Court to allow him to lead additional evidence, which may be necessary and just for the proper adjudication of the case. It was averred that he is in possession of original recording of the conversation, which is intended to be adduced on record by way of additional evidence would show that father of the wife has openly threatened him as well as his family members. The said application was allowed. Being aggrieved and dissatisfied with the order, petitioner (wife) approached the Court in the instant proceedings, praying therein to set-aside the order.

The Court observed that that by way of additional evidence husband intended to prove factum with regard to threats extended to him and his family members by the father of the wife, which fact was very much in his knowledge at the time of filing replication. Careful perusal of cross-examination conducted upon the wife witnesses, nowhere reveals that suggestion, if any, was ever put to the wife with regard to existence of audio CD or recording of the conversation qua the meeting held at Shimla. It was further observed that wife in his examination-in-chief or cross examination has admitted the factum with regard to meeting held at Shimla, but there appears to be no attempt on the part of the husband to put a suggestion to wife that during meeting at Shimla he and his family members were threatened and he was in possession of the CD, which omission on the part of the husband certainly compels the Court to agree that application having been filed by the husband at the time of arguments is an afterthought merely to fill up the lacuna.

The Court observed that basic purpose of Rule 17 is to enable the Court to clarify any position or doubt. While exercising power Under Order 18 Rule 17-A CPC, Court may, either suo motu or on the request of any party, recall any witness at any stage in this regard. No doubt, power can be exercised at any stage, once the Court recalls the witness for the purpose of any such clarification, the court may permit the parties to assist the court by examining the witness for the purpose of clarification required or permitted by the Court. The power under Rule 17 cannot be stretched any further, however said power cannot be invoked to fill up omission in the evidence already led by a witness.

The Court held “since factum with regard to existence of audio CD sought to be adduced on record as additional evidence was very much in the knowledge of the husband before commencement of trial and at the time of leading evidence, has no hesitation to conclude that application filed under Order 18 Rule 17-A CPC is nothing, but an attempt to protract the trial and as such, same deserves to be dismissed.”[Dr Honey Johar v. Ramnik Singh Johar, 2018 SCC OnLine HP 3295, decided on 21-12-2018]

Arunima Bose, Editorial Assistant has reported this brief.

Appearances:

For the Petitioner: Mr. Anuj Nag, Advocate.

For the Respondent: Mr. R.G.S. Saini, Advocate

Case Briefs Supreme Court

‘Half a century old litigation, we wish it is the knock out round!’ SC holds objections can’t be raised in instalments; Res judicata applicable on execution proceedings

Supreme Court: Dismissing a half a century old litigation (started in 1971), having five rounds of litigation at the stage of execution of a simple money decree, the Division Bench of Hemant Gupta and V. Ramasubramanian*, JJ., put an end to what appeared as a never ending litigation by holding that res judicata is applicable on execution proceedings and the judgment debtor cannot be allowed to raise objections in instalments.

Background

The appellants-judgment debtor had challenged the impugned order whereby the High Court had confirmed the order of the Executing Court dismissing their application under Section 47 of the Code of Civil Procedure, 1908.

One Rama Rani Devi had filed a simple suit for recovery of money in Money from the appellant-judgment debtor (deceased) for recovery of a sum of Rs.3000. The suit was decreed ex parte and an execution petition was filed praying for the attachment and sale of 17 decimal of land (approximately about 7450 Sq.ft.) of the appellant-judgment debtor. Pursuant to which a sale proclamation was issued by the executing court after which the appellant-judgment debtor filed an application assailing the sale proclamation on the ground of material irregularity and fraud, but the same was dismissed and the auction was held.

Compromise between Judgment debtor and Auction Purchaser

Initially, the judgment debtor had filed an under Order XXI, Rule 90 read with Section 152 of CPC praying for setting aside the auction sale on the ground of irregularities in the sale proclamation, however, he subsequently entered into a compromise with the auction purchasers. The memo of compromise reads as follows:

“ The petitioner and the auction purchaser Opp. party do settle the suit mutually in the following manner.

1) If the petitioner debtor pays the entire money due to the auction purchaser opposite part in cash within 15th December or if he deposits it in their credit in the court and the auction shall be revoked and the original execution case shall be disposed on full satisfaction.

2) Otherwise that is if the petitioner debtor does not pay the entire money due to the auction purchaser opposite party in cash within 15th December on deposits that amount in court within that date then the said auction shall remain effective and this present suit shall be dismissed with costs.”

Findings of the High Court

Noticeably, the amount of money deposited by the auction purchasers into court was Rs.5500/, but the decree debt was around Rs.3360/. Though the compromise memo did not refer to the decree debt, but repeatedly mentioned the words, “entire money due to the auction purchasers”, the judgment debtor admittedly deposited only a sum of Rs.3700 on the basis of the calculation provided by the court officer in terms of Order XXI, Rule 89 of CPC. Consequently, after several rounds of litigation, it was held by the High Court that the judgment debtor had failed to honour the commitment made in the compromise memo to deposit the entire amount due to the auction purchasers and that therefore the auction sale should be confirmed in favour of the auction purchasers.

Contention of the Judgment debtor

The only mantra, by the recitation of which the appellants hoped to succeed was Order XXI, Rule 64 of the Code, which enables an executing court to order “that any property attached by it and liable to sale or such portion thereof as may seem necessary to satisfy the decree, shall be sold and that the proceeds of such sale or a sufficient portion thereof 10 shall be paid to the party entitled under the decree to receive the same”.

It was the contention of the appellants that Order XXI, Rule 64 casts not a discretion, but an obligation, to sell only such portion of the property as may be sufficient to satisfy the decree.

Opinion and Analysis

Noticeably, the executing court had ordered the issue of notice of attachment under Order XXI, Rule 54 of the Code and it was only thereafter that the court directed the issue of sale proclamation under Order XXI, Rule 66; which was in conformity with proviso to sub rule (2) of Rule 66 gives a discretion to the court to dispense with a second notice to the judgment debtor of the date to be fixed for settling the terms of the proclamation of sale under Order XXI, Rule 66(2).

The sequence of events showed that the judgment debtor had sufficient opportunity to object to the inclusion of the entire property when an order was passed under Order XXI, Rule 54. Subsequently he had an opportunity to object to the inclusion of the whole of the property, by taking advantage of the amended clause (a) of sub rule (2) of Rule 66 of Order XXI, which speaks about sale of a part of the property that would be sufficient to satisfy the decree. But the judgment debtor despite filing a petition under Section 47, did not point out how the property being a vacant land of an extent of 17 decimals could have been divided.

Noticing that the objection relating to Order XXI, Rule 64 had been raised by the appellants-judgment debtor for the first time in the 5th round of litigation in execution, and that the 2nd round was kickstarted with a suit for a declaration that the auction sale was void despite the express bar of a separate suit, under Section 47(1) of CPC. The Bench remarked,

“…the appellants have now exhausted almost all provisions available to a judgment debtor to stall execution and the case on hand is fit to be included in the syllabus of a law school as a study material for students to get equipped with the various provisions of the Code relating to execution.”

Findings and Conclusion

In the backdrop of above, the Bench held that the appellants could not be allowed to raise the issue relating to the breach of Order XXI, Rule 64 for the following reasons:

A judgmentdebtor cannot be allowed to raise objections as to the method of execution in instalments. After having failed to raise the issue in four earlier rounds of litigation, the appellants could not be permitted to raise it;
The original judgmentdebtor himself filed a petition under Section 47, and what was on hand was a second petition under Section 47 and, hence, it was barred by res judicata. The Bench explained that post insertion of Explanation VII under Section 11 of CPC by Act 104 of 1976 the provisions of res judicata will apply to a proceeding for the execution of a decree;
The observations of the High Court that, “none of the parties shall have any claim whatsoever as against the applicant in respect of the purchased property which shall be deemed to be his absolute property on and from the expiry of 15th December, 1980”, had attained finality;
Section 65 of the Code says that, “where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute”.
The sale of a property becomes absolute under Order XXI, Rule 92(1) after an application made under Rule 89, Rule 90 or Rule 91 is disallowed and the court passes an order confirming the same, hence, the Court has to grant a certificate under Rule 94 indicating the date and the day on which the sale became absolute.

“…a conjoint reading of Section 65, Order XXI, Rule 92 and Order XXI, Rule 94 would show that it passes through three important stages (other than certain intervening stages). They are, conduct of sale; (ii) sale becoming absolute; and (iii) issue of sale certificate. After all these three stages are crossed, the 4th stage of delivery of possession comes under Rule 95 of Order XXI.”

Since, the appellants had raised the objection relating to Order XXI, Rule 64 at the 4th stage and it was not the case that the appellants were not aware of the fact that the property in entirety was included in the proclamation of sale, the claim on the basis of Order XXI, Rule 64 was rightly rejected by the High Court. In view of the above, the appeal was dismissed.

[Dipali Biswas v. Nirmalendu Mukherjee, 2021 SCC OnLine SC 869, decided on 05-10-2021]

Kamini Sharma, Editorial Assistant has put this report together

Appearance by:

For the Appellants: Advocate RAUF RAHIM

For the Respondents: Advocate SATISH KUMAR

*Judgment by: Justice V. Ramasubramanian

Know Thy Judge | Justice V. Ramasubramanian

Case Briefs High Courts

J&K and Ladakh HC | Appeal filed without annexing decree sheet passes admission stage due to lapse on the part of Court Registry; Will the appeal survive? HC decides

Jammu & Kashmir and Ladakh High Court: Ali Mohammad Magrey, J., held that once an appeal is duly entertained without the production of a certified copy of the Decree sheet with it, then, subsequently, the appeal could not be dismissed.

Background

In the instant application the Applicants had sought permission of the Court to place on record the copy of Decree along with the main Appeal preferred against the impugned judgment.

Evidently, the applicant had only annexed the copy of the Judgment and not the Decree sheet along with the Appeal, which is a mandatory requirement as per provisions of Order XLII Rule 1 and non-compliance thereof, goes to the root of the case and renders the Appeal defective. It was submitted by the applicants that there had been no deliberate or intentional failure on their part to annex copy of the Decree sheet of the 1st Appellate Court with the Appeal and that it was only because of the language used in Order XLI Rule 1 of the Code that they had, besides annexing copy of the Judgment and Decree of the Trial Court, had annexed certified copy of the Judgment of the 1st Appellate Court along with the Appeal, however, failed to notice the requirement of annexing a certified copy of Decree sheet.

Maintainability of 2nd Appeal where the party failed to annex the certified copy of the Decree of 1^st Appeal

The law is that if at the time when the appeal is preferred, a Decree has already been drawn up by the Court below and the Appellant has not applied for it in time, it would be a clear case where the appeal would be incompetent and a penalty of dismissal would be justified. The position would, however, be substantially different if at the time when the appeal is presented before the appellate Court, a Decree, in fact, has not been drawn up by the Court below, in such a case, if an application has been made by the Appellant for a certified copy of the Decree, then, all that can be said against the appeal preferred by him is that the appeal is premature since a Decree has not been drawn up, and it is the Decree against which an appeal lies.

Though the mandate of Order XLII Rule 1 of CPC is mandatory and, as soon as it is shown that an appeal had been filed with a memorandum of appeal accompanied only with a certified copy of the Judgment and without the certified of the Decree, the appeal must be dismissed as being incompetent, the Bench took a lenient view and stated that,

“If the Appeal has passed through the stage of admission through oversight of the office, then, the only fair and rational course to adopt would be to adjourn the hearing of the appeal with a direction that the appellant should procure the certified copy of the decree as soon as it is supplied to him.”

Besides, observing that there is no hard and fast rule of general applicability laid down for dealing with appeals defectively filed under Order 41 Rule 1, the Bench opined that appropriate orders are required to be passed having regard to the circumstances of each case, but the most important step to take in cases of defective presentation of appeals is that they should be carefully scrutinized at the initial stage soon after they are filed and the appellant(s) required to remedy the defect(s).

Therefore, rejecting the objection of the Respondents with regard to the Appeal being defective, the Bench observed,

“The complications in the present case have partly arisen as a result of the failure of the Registry of this Court to notice the defect of the Appeal being without certified copy of the Decree and to take appropriate action with respect thereto at the initial stage before the Appeal was placed for admission under Order 41 Rule 1.”

Findings and Decision

In Light of the above, the Bench held that once an appeal is duly entertained without the production of a certified copy of the Decree sheet with it and neither the memorandum of appeal was rejected nor returned, as provided under Order XLI Rule 3 of the Code, then, subsequently, the appeal could not be dismissed on the ground that at the time of the presentation of the appeal the same was not accompanied with a certified copy of the Decree under appeal because by that time the stage for dismissing the appeal for non-compliance of the provisions of Order XLII of the Code had already passed.

Accordingly, the instant application was allowed and the certified copy of the Decree passed by the 1st Appellate Court was taken on record, to be made part of the memorandum of appeal. [Maqbool Buhroo v. Ahad Buhroo, 2021 SCC OnLine J&K 717, decided on 27-09-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Applicants: M. A. Qayoom, Advocate with Mian Muzaffar, Advocate

For the Respondent(s): G. A. Lone, Advocate

Case Briefs Supreme Court

Explained| Res judicata: Question of fact or law or mixed question of law and fact? Can it be decided as a preliminary issue?

Supreme Court: In an important ruling on Res Judicata, the 3-judge bench of Dr. DY Chandrachud*, Vikram Nath and Hima Kohli, JJ has held that the issues that arise in a subsequent suit may either be questions of fact or of law or mixed questions of law and fact.

“Issues that arise in a subsequent suit may either be questions of fact or of law or mixed questions of law and fact. An alteration in the circumstances after the decision in the first suit, will require a trial for the determination of the plea of res judicata if there arises a new fact which has to be proved. However, the plea of res judicata may in an appropriate case be determined as a preliminary issue when neither a disputed question of fact nor a mixed question of law or fact has to be adjudicated for resolving it.”

“Best method” to decide the question of res judicata:

The court while undertaking an analysis of the applicability of the plea of res judicata determines first, if the requirements of section 11 CPC are fulfilled; and if this is answered in the affirmative, it will have to be determined if there has been any material alteration in law or facts since the first suit was decreed as a result of which the principle of res judicata would be inapplicable.

In Syed Mohd. Salie Labbai (dead) by L.Rs v. Mohd. Hanifa, (1976) 4 SCC 780, it was enunciated that before a plea of res judicata can be given effect, the following conditions must be proved:

(1) that the litigating parties must be the same;

(2) that the subject-matter of the suit also must be identical;

(3) that the matter must be finally decided between the parties; and

(4) that the suit must be decided by a court of competent jurisdiction.

The verdict in Alka Gupta v. Narender Kumar Gupta, (2010) 10 SCC 141, further made clear that

“The plea must be clearly established, more particularly where the bar sought is on the basis of constructive res judicata. The plaintiff who is sought to be prevented by the bar of constructive res judicata should have notice about the plea and have an opportunity to put forth his contentions against the same.”

Twin test for the identification of whether an issue has been conclusively decided in the previous suit is:

The necessity test: Whether the adjudication of the issue was ‘necessary’ for deciding on the principle issue.
The essentiality test: Whether the judgment in the suit is based upon the decision on that issue.

Res Judicata: Question of fact or law or mixed question of law and fact?

It has earlier been held by the Supreme Court that a determination of whether res judicata is attracted raises a mixed question of law and facts [Madhukar D Shende v. Tarabai Aba Shedage, (2002) 2 SCC 85 ; Ram Harakh v. Hamid Ahmed Khan, (1998) 7 SCC 484].

However, Justice K. Ramaswamy writing for a three-judge bench of this court in Sushil Kumar Mehta v. Gobind Ram Bohra, (1990) 1 SCC 193 held that the principle of res judicata cannot be fit into the pigeonhole of ‘mixed question of law and facts’ in every case. Rather, the plea of res judicata would be a question of law or fact or a mixed question of both depending on the issue that is claimed to have been previously decided.

In Mathura Prasad Bajoo Jaiswal v. Dossibai N.B Jeejeebhoy, (1970) 1 SCC 613, it was held that,

“A decision of a competent Court on a matter in issue may be res judicata in another proceeding between the same parties: the “matter in issue” may be an issue of fact, an issue of law, or one of mixed law and fact. An issue of fact or an issue of mixed law and fact decided by a competent Court is finally determined between the parties and cannot be re-opened between them in another proceeding. The previous decision on a matter in issue alone is res judicata: the reasons for the decision are not res judicata.

(…)

The matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent Court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened. A mixed question of law and fact determined in the earlier proceeding between the same parties may not, for the same reason, be questioned in a subsequent proceeding between the same parties. But, where the decision is on a question of law i.e. the interpretation of a statute, it will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same, for the expression “the matter in issue” in Section 11 of the Code of Civil Procedure means the right litigated between the parties i.e. the facts on which the right is claimed or denied and the law applicable to the determination of that issue. Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule of res judicata, for a rule of procedure cannot supersede the law of the land.”

Can res judicata be decided as a preliminary issue?

Yes. In certain cases, particularly when a mixed question of law or fact is raised, the issue should await a full-fledged trial after evidence is adduced.

[The Jamia Masjid v. KV Rudrappa, 2021 SCC OnLine SC 792, decided on 23.09.2021]

______________________________________________________________

Appearances before the Court:

For appellant: Senior Advocate V Mohana

For respondents: Senior Advocate Basava Prabhu Patil and Advocate Balaji Srinivasan

*Judgment by: Justice Dr. DY Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

Case Briefs High Courts

Ker HC | A case of wanton negligence and callousness of petitioner; HC rejects application for amendment making inconsistent and alternative pleadings in written statement

Kerala High Court: V.G.Arun, J., held that no amendment can be allowed in written statement where it seeks to change former admissions. The Bench stated,

“Even the most liberal approach towards amendment of written statements will not justify the approval of such an application.”

Background

The petitioner was the defendant in a suit filed for seeking to cancel two assignment deeds registered by the respondent in favour of the petitioner. After the petitioner filed his written statement, the respondent amended the plaint. Though the petitioner filed additional written statement, subsequent interlocutory application was filed by him seeking to amend the written statement.

The Plaintiff opposed the application, contending that the amendment was totally misconceived and filed only for the purpose of protracting the suit. The Trial Court dismissed the amendment application, holding that the attempt of the petitioner was to withdraw the admissions in the written statement and to incorporate new contentions. The Trial Court also found the petitioner guilty of wanton negligence and callousness.

The petitioner assailed the findings of Trial Court and submitted that the purpose of amendment was to withdraw certain portions from the written statement and to incorporate identical averments with minor modifications and the amendment was only clarificatory in nature.

Amendment in Question

The amendment was sought with regard to change in percentage of share from 22.5% to 32.5% and payment in the name of the power of attorney of the defendant to payment to the defendant and the term ‘adjustment’ was sought to be replaced with ‘payment’.

Opinion of the Court

Noticeably, even in the lengthy explanations in the additional written statement, the petitioner had not mentioned about the contentions now sought to be incorporated. Therefore, differentiating Pavithran, wherein it had been held that “if an admission could be explained away or can be rescinded or superseded, there cannot be any prohibition against such admission being allowed to be taken away by amending the pleading”, the Bench stated that had the attempt of the petitioner been to only explain or clarify the admission the aforementioned decisions would have applied, on the contrary, the attempt was to withdraw the admissions and set forth an entirely new case.

Reliance was placed by the Court on Modi Spinning and Weaving Mills (supra), wherein the Supreme Court had held that the defendant cannot be permitted to change his case completely and substitute an entirely new case. The Bench remarked,

“The amendments would, not only have the effect of the defendant making inconsistent and alternative pleadings, but also of completely displacing the admissions made in the written statement.”

Though the petitioner had been permitted to file additional written statement, he waited till the case was listed for trial before filing the second amendment application. Moreover, there was no dispute to the fact that the amendment application was filed after the plaintiff had submitted his affidavit in lieu of chief examination. Therefore, the Bench stated that it was incumbent upon the petitioner to have satisfied the Trial Court that he could not have filed the application earlier, in spite of due diligence.

Noticing that the affidavit in lieu of chief examination was filed prior to the filing of application for amendment and the Bench held that even if it was accepted that the application was filed before the date fixed for leading evidence, the interdiction in the proviso to Order VI Rule 17 would apply.

The suit was included in the provisional list for the month of August, 2021 on the request of the plaintiff, since he was working abroad. The plaintiff had come down for the purpose of giving evidence and also submitted his affidavit in lieu of chief examination. The amendment application was filed thereafter, just prior to the date fixed for trial. Being so, the Bench was of the view that substantial loss was caused to the plaintiff by the conduct of the petitioner.

Accordingly, it was held that the Trial Court was fully justified in rejecting the application. [Muhammed Ashraf v. Fasalu Rahman, OP(C) No. 1374 of 2021, decided on 10-09-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Petitioner: Advocate R. Sudhish and Advocate M. Manju

For the Respondent: Advocate K.M. Firoz and Advocate M. Shajna

Op Eds OP. ED.

Acts in Contravention of Orders of Injunction —The Consequences

Introduction

Interlocutory Orders

Interlocutory orders or as we know them orders of injunction passed by courts pending disposal of the suit, application or proceedings are a regular feature in every lawyer’s practice. You are either applying for the same if you are a plaintiff or attempting to prevent the same being passed against you if you are a defendant. We encounter this day in and day out. These orders inure till the disposal of the suit or till they are otherwise set aside in appeal or vacated due to changed circumstances or lapsing of the orders in cases where the orders are limited only up to a particular date or only for a particular purpose. This article will address the issue of the consequences that ensue after passing of an order of injunction.

Orders of injunction are passed in view of the inherent jurisdiction of the court under Order 39 of the Code of Civil Procedure 1908[1] (CPC) which sets out the various circumstances in which an order of injunction can be passed. There also orders of attachment before judgment under Order 38[2] which are also passed. A third type of injunctive orders which we regularly come across are orders passed by the court under Section 9 of the Arbitration and Conciliation Act 1996[3]. There are also orders of injunction passed in terms of exercise of writ jurisdiction in constitutional matters where the challenges normally are to orders of inferior courts, authorities, tribunals, etc.

The proposition

What is to happen to these orders of injunction and what is the consequence of these orders of injunction when parties choose to ignore them. Can a party choose to simply say I will not follow the order whatever it maybe and render the order passed as infructuous or non-effective.

A question also arises as to what are the remedies available to a person who has an order of injunction his favour and finds the defendant or respondent is not complying with the order.

As is well known, these orders take many forms and usually are prohibitory in nature and meant to preserve the subject of the dispute or prevent damage or loss to the party applying. Orders of injunction are normally sought (to prevent parties from entering into third-party contracts, breaching contracts, creating third-party rights, trespassing, etc.) so that the entire suit or action in which final relief or orders are to be passed is not rendered infructuous. There are innumerable instances where orders of injunction are sought such as in suits/actions for specific performance, for trespass, for breach of contractual rights, for land, pertaining to development rights, partnership disputes and partition actions amongst a host of others. It is in such suits/actions that the plaintiff applies for interim relief and depending upon the merits of the case the court passes a temporary injunction pending disposal of the suit against the defendant.

As is the case many a times the defendant would not want to be bound by the order and would try to get out of it or frustrate it by creating third-party rights or dealing with the property even after orders of injunction.

In order that this does not happen, time and again in the decisions which I will now elaborate it has been held that orders of injunction are required to be obeyed and cannot be flouted with impunity. The consequence of flouting the same is that the entire transaction or actions sought to be taken contrary to the orders of injunction are declared to be void and non-effective. Courts have time and again held that in fact the wrong or action or transfer contrary to an order of injunction must be rolled back or treated as non-effective. The remedy in such cases available is to apply to the court to declare the transactions which have transpired as of no effect and not binding on the party in whose favour the relief of injunction is continuing. In most cases this will require an amendment to bring on record the facts as are relevant and necessary prayers seeking to declare the impugned transactions as illegal, not binding or ineffective.

The law on the subject

The following cases set out the view consistently taken by courts:

(1) Surjit Singh v. Harbans Singh[4] (M.M. Punchhi and Sujata V. Manohar, JJ.):

“4. … In defiance of the restraint order (of the Court), the alienation/assignment was made. If we were to let it go as such, it would defeat the ends of justice and the prevalent public policy. When the Court intends a particular state of affairs to exist while it is in seisin of a lis, that state of affairs is not only required to be maintained, but it is presumed to exist till the court orders otherwise. The Court, in these circumstances has the duty, as also the right, to treat the alienation/assignment as having not taken place at all for its purposes.”

(2) Tayabbhai M. Bagasarwalla v. Hind Rubber Industries (P) Ltd.[5] (B.P. Jeevan Reddy and Suhas C. Sen, JJ.):

“28. … these orders (of the court) have to be obeyed and their violation can be punished even after the question of jurisdiction is decided against the plaintiff provided the violation is committed before the decision of the court on the question of jurisdiction.”

(3) Jehal Tanti Nageshwar Singh[6] (G.S. Singhvi and S.A. Bobde, JJ.):

“Since the sale deed was executed in favour of Respondent 1 in the teeth of the order of injunction passed by the trial court, the same appears to be unlawful.”

(4) Satyabrata Biswas v. Kalyan Kumar Kisku[7] (S. Mohan and A.S. Anand, JJ.):

“23. … Any act done in the teeth of the (court) order of status quo is clearly illegal. All actions including the grant of sublease are clearly illegal.”

(5) In Jehal Tanti v. Nageshwar Singh[8], it was held:

“11. The same issue was considered in Vidur Impex and Traders (P) Ltd. v. Tosh Apartments (P) Ltd. [9] and it was held:

… At the cost of repetition, we consider it necessary to mention that Respondent 1 had filed suit for specific performance of agreement dated 13-9-1988 executed by Respondent 2. The appellants and Bhagwati Developers are total strangers to that agreement. They came into the picture only when Respondent 2 entered into a clandestine transaction with the appellants for sale of the suit property and executed the agreements for sale, which were followed by registered sale deeds and the appellants executed agreement for sale in favour of Bhagwati Developers. These transactions were in clear violation of the order of injunction passed by the Delhi High Court which had restrained Respondent 2 from alienating the suit property or creating third-party interest. To put it differently, the agreements for sale and the sale deeds executed by Respondent 2 in favour of the appellants did not have any legal sanctity.”

(6) DDA v. Skipper Construction Co. (P) Ltd.[10]:

“17. The principle that a contemnor ought not to be permitted to enjoy and/or keep the fruits of his contempt is well settled. In Mohd. Idris v. Rustam Jehangir Babuji[11], this Court held clearly that undergoing the punishment for contempt does not mean that the court is not entitled to give appropriate directions for remedying and rectifying the things done in violation of its orders. The petitioners therein had given an undertaking to the Bombay High Court. They acted in breach of it. A learned Single Judge held them guilty of contempt and imposed a sentence of one month’s imprisonment. In addition thereto, the learned Single Judge made appropriate directions to remedy the breach of undertaking. It was contended before this Court that the learned Judge was not justified in giving the aforesaid directions in addition to punishing the petitioners for contempt of court. The argument was rejected holding that the Single Judge was quite right in giving appropriate directions to close the breach (of undertaking).

The above principle has been applied even in the case of violation of orders of injunction issued by civil courts. In Clarke v. Chadburn[12], Sir Robert Megarry V.C. observed:

I need not cite authority for the proposition that it is of high importance that orders of the court should be obeyed. Wilful disobedience to an order of the court is punishable as a contempt of court, and I feel no doubt that such disobedience may properly be described as being illegal. If by such disobedience the persons enjoined claim that they have validly affected some charge in the rights and liabilities of others, I cannot see why it should be said that although they are liable to penalties for contempt of court for doing what they did, nevertheless those acts were validly done. Of course, if an act is done, it is not undone merely by pointing out that it was done in breach of the law. If a meeting is held in breach of an injunction, it cannot be said that the meeting has not been held. But the legal consequences of what has been done in breach of the law may plainly be very much affected by the illegality. It seems to me on principle that those who defy a prohibition ought not to be able to claim that the fruits of their defiance are good, and not tainted by the illegality that produced them.”

(7) In Century Flour Mills Ltd. v. S. Suppiah[13], it was held by a Full Bench of the Madras High Court that where an act is done in violation of an order of stay or injunction, it is the duty of the court, as a policy, to set the wrong right and not allow the perpetuation of the wrongdoing. The inherent power of the court, it was held, is not only available in such a case, but it is bound to exercise it to undo the wrong in the interest of justice. That was a case where a meeting was held contrary to an order of injunction. The Court refused to recognise that the holding of the meeting is a legal one. It put back the parties in the same position as they stood immediately prior to the service of the interim order.

(8) In Sujit Pal v. Prabir Kumar Sun[14] a Division Bench of the Calcutta High Court has taken the same view. There, the defendant forcibly dispossessed the plaintiff in violation of the order of injunction and took possession of the property. The Court directed the restoration of possession to the plaintiff with the aid of police. The Court observed that no technicality can prevent the court from doing justice in exercise of its inherent powers. It held that the object of Rule 2-A of Order 39[15] will be fulfilled only where such mandatory direction is given for restoration of possession to the aggrieved party. This was necessary, it observed, to prevent the abuse of process of law.

(9) In Keshrevial Jivji Shah v. Bank of Maharashtra[16], it was held:

“27. We cannot accept Shri Naphade’s contention that observations of the Supreme Court in Surjit Singh[17] should be read as restricted to proceedings under Order 22 Rule 10 of the Civil Procedure Code and the same cannot be extended to defiance of injunction order issued under Order 39 Rule 1 of the Civil Procedure Code. Once the issue is placed on the pedestal of public policy and the very faith of litigants in rule of law and administration of justice, then it is not possible to make the distinction or bifurcation suggested by Shri Naphade. It would mean that consequences of nullifying such transaction not being provided by the statute, it would not lose its legal efficacy even if it is in utter disregard to or in violation of or breach of prohibitory order or order of injunction issued by a court of law. It would mean that parties can breach and violate court orders openly and with impunity neither they nor the beneficiaries suffer any consequences. It is time that we recognise the principle that transfer of immovable property in violation of an order of injunction or prohibition issued by court of law, confers no right, title or interest in the transferee, as it is no transfer at all. The transferee cannot be allowed to reap advantage or benefit from such transfer merely because he is not party to the proceedings in which order of injunction or other prohibitory direction or restraint came to be issued. It is enough that the transferor is a party and the order was in force. These two conditions being satisfied, the transfer must not be upheld. If this course is not adopted then the tendency to flout orders of courts which is increasing day by day can never be curbed. The court exercises its powers on the foundation of respect and regard for its authority by litigating public. People would lose faith and respect completely if the court does not curb and prevent this tendency. The note of caution of the Supreme Court must be consistently at the back of everybody’s mind. Therefore, Shri Naphade is not right in the distinction which he is trying to make.

Equally untenable is the contention of Shri Naphade that an order of injunction will bind only the transferor in this case. It is his submission that the said order does not bind the world at large. He submits that ownership rights are neither taken away nor restricted in any manner by order of injunction or other preventive directions. He submits that the transfer in favour of his client was thus neither invalid nor illegal, leave alone null and void. For the reasons already recorded above, we find it difficult to accept this contention of Shri Naphade. Decision of the Supreme Court in Krishan Kumar NarulaState of Jammu & Kashmir[18] has no application. There, the Supreme Court was distinguishing an order of stay from an order of injunction. The distinction was made in the context of consequences upon breach and violation of such orders. It is in that context that the Supreme Court observed that the order of stay is qua a Court, whereas an order of injunction reaches and touches a party to the lis. These observations cannot be applied when it is noticed that during the pendency of an order of injunction, immovable property, which is subject-matter of restraint or injunction, is transferred. When this course is admittedly adopted, then there is no choice but to declare the transaction as illegal. There is no question of then deciding the nature and effect of the order of injunction.”

Other remedies

There is also a remedy available to apply for holding the violator guilty of civil contempt under Section 2(b) of the Contempt of Courts Act, 1971[19]. This remedy enables the court to (if contempt is proved) pass orders for detention of the contemnor which is a strong deterrent and usually results in the contemnor reversing the transaction or step taken in order to avoid the stringent punishment of imprisonment. In cases of companies the directors can be hauled up for contempt and punished.

It must however be noted that since the orders of injunction operate only till the disposal of the suit finally in the event that there is a transaction which is contrary to the injunction the same would not take effect if the suit is decreed in favour of the plaintiff but in the event the suit of the plaintiff fails the necessary consequences is that the order itself of temporary injunction comes to an end an d in that event the transaction pending the suit would continue and take effect.

Conclusion

Operative orders of injunction cannot be ignored and if so ignored will not only invite the wrath of the court but will invariably have the effect of the court nullifying the transactions and preventing the defaulting party acting contrary to injunctions issued till the injunctive relief is in force.

*Advocate, High Court, Bombay. Assisted by Mayur Agarwal, Arjun Prabhu and Sheetal Parkash. Author can be reached at karlkshroff1@gmail.com.

[1] Order 39, Code of Civil Procedure 1908.

[2] Order 38 CPC.

[3] Section 9, Arbitration and Conciliation Act 1996.

[4] (1995) 6 SCC 50, 52.

[5] (1997) 3 SCC 443, 460. Also see paras 15-18, 22 & 28, pp. 453-460.

[6] (2013) 14 SCC 689, 695, para 13.

[7] (1994) 2 SCC 266, 276.

[8] (2013) 14 SCC 689, 694-695.

[9] (2012) 8 SCC 384, 414.

[10] (1996) 4 SCC 622, 635-636.

[11] (1984) 4 SCC 216.

[12] (1985) 1 WLR 78.

[13] 1975 SCC OnLine Mad 73.

[14] 1985 SCC OnLine Cal 146.

[15] Rule 2-A, Order 39 CPC.

[16] 2004 SCC OnLine Bom 368.

[17] (1995) 6 SCC 50.

[18] (1967) 3 SCR 50.

[19] Section 2(b) of Contempt of Courts Act, 1971.

Case Briefs High Courts

Gau HC | [NRC] Citizenship cannot be denied merely because linkage with relatives was not shown; HC sets aside order of Tribunal declaring man a foreigner

Gauhati High Court: The Division Bench of N. Kotiswar Singh and Manish Chaudhury, JJ., set aside the impugned order of the Foreign Tribunal whereby the Tribunal had declared the petitioner non-Indian on the ground of him having failed to prove his ancestral linkage with his father’s relatives.

Factual Matrix of the Case

The present petition had been filed challenging the order passed by the Foreigners’ Tribunal, whereby the petitioner was held to be an illegal migrant and consequently, was declared a foreigner under Section 2(a) of the Foreigners Act, 1946. According to the Tribunal, the proceedee-petitioner had failed to mention his links with the other persons mentioned in the voter’s list of 1970 and also links with his father and grandparents Nadu Miya and. Aymona were also held to be not proved.

Noticeably, the petitioner had mentioned the names of his grandparents whose names were reflected in the voter’s list of 1965 with the necessary details, viz., name of the village, house number, mouza, police station etc. However, in the voter’s list of
1970, the names of the grandparents of the petitioner were shown with similar descriptions but along with the names of the other voters.

Analysis and Observations by the Court

Contrary to the view held by the Tribunal, the Bench opined that the non-explanation of the linkage of the petitioner with others whose names were shown along with his grandparents in the voter’s list of 1970 did not affect the credibility or genuineness of the evidence. The fact that Harmuz Ali was the son of Nadu Mia was clearly established by the voters’ lists of 1970, 1971 and 1965. Since the State never questioned the authenticity or genuineness of the voters’ lists of 1965 and 1970 before the Tribunal, these documents had remained unrebutted.

The “fact in issue”, in the instant case was whether the petitioner could trace his ancestry to the said Nadu Miya (grandfather of the petitioner) through Harmuz Ali (father of the petitioner), as Nadu Miya was admittedly an Indian who had been casting his vote since 1966. And the fact in issue was not whether the petitioner had other relatives also.

Therefore, failure to disclose the names of all the members of the family could not weaken the petitioner’s case and render his evidence unreliable, nor reduce the credibility of his evidence, when there are other corroborating evidences. The Bench stated,

“There is no law nor dictum that if the proceedee does not disclose the names of all the other relatives…”

Whether Rules of Written Statement as prescribed in CPC would strictly apply in proceedings before the Foreign Tribunal?

Considering that no document, other than the notice was given to the petitioner while impugning his citizenship; the Bench opined that while “written statement” as understood under the Civil Procedure Code (CPC) is a defence put up by the defendant with reference to and in response to the specific averments and allegations made in the plaint; in the instant case notice was merely issued to the petitioner informing that he was an illegal entrant to the State, in the territory of Assam and India from the specified territory without any other facts and documents being furnished to him. Thus,

“The petitioner was totally in dark as to how he came to be considered to be a foreigner and not an Indian.”

Order 8 Rule 2 of CPC is that all the facts must be specifically pleaded, to avoid taking the opposite parties by surprise. However, in the proceeding under the Foreigners Tribunal, the onus had been squarely put on the petitioner to prove that he is not a foreigner but an Indian. If the petitioner introduces new facts to discharge his onus, it could not be said to take the State by surprise, as the petitioner was merely trying to prove his case and was not responding to any allegation, other than that he was a foreigner. Therefore, the principles contained in the CPC relating to the scope of written statement and limitations placed thereon cannot be strictly applied in the proceedings before the Tribunal.

On the Issue of Adverse Inference

On the issue that whether the withholding of the fact of petitioner’s father having siblings until examination-in-chief would lead to adverse inference; the Bench while relying on the judgment of Supreme Court in Union of India v. Ibrahim Uddin, (2012) 8 SCC 148, said that, production of less evidence could not necessarily lead to rejection of the claim of the petitioner nor would lead to drawing of any adverse inference. In fact,

“A proceedee must be afforded all the opportunities to prove his case and no hyper technical view should be taken to deny introducing new facts or document, so long as these are relevant and bolster the case of the proceedee.”

Findings and Decision

The Bench expressed disbelief on how the Tribunal could come to this conclusion that the petitioner could not establish his link with his father. Since, the voters’ lists of 1965, 1970 as well as subsequent voters list of 1989 onwards were found to be unrebutted which clearly show the linkage of the petitioner’s father, Harmuz Ali with the claimed grandfather, Nadu Miya.

Further, the Bench was of the view that though the Jamabandi and other revenue receipts, as relied on by the petitioner could not create the title, nevertheless, these were corroborating evidences to show that the petitioner’s father and his grandfather were in possession of certain land during the aforesaid period of 1966 to 1971. The Bench opined that even if these documents do not create title, these certainly indicate that the petitioner’s father and his grandfather were in possession of the certain property in Assam before 1971 which was corroborating evidences to show that the petitioner was a descendant of persons who were already living in Assam prior to 1971 and 1966.

The standard of proof in the discharge of the onus by a proceedee under Section 9 of the Foreigners Act is preponderance of probability as had been also reiterated in the Full Bench decision of this Court in State of Assam v. Moslem Mondal, 2013 (1) GLT 809. Therefore,

“What is important to be proved is that the parents and grandparents of the petitioner were residing during 1965 and 1970, which would rule out any allegation that they entered Assam after 01-01-1966 or after 25-03-1971.”

Hence, the fact in issue had been established without any doubt after the voter’s lists of 1965 and 1970 were proved, which corroborate the oral evidence of the petitioner and others. Further, after considering the transfer certificate of Higher Secondary School in favor of the petitioner’s father and admit card of the petitioner issued by the Board of Secondary Education, the Bench held that the documents clearly show the linkage of the petitioner with his father Harmuz Ali and grandfather, Nadu Miya and accordingly, it had been held that the petitioner was an Indian citizen and not a foreigner. Accordingly, the instant petition was disposed of with leaving the question of whether a proceedee before the Foreign Tribunal is entitled to more than mere notice open for consideration in an appropriate case. [Haidar Ali v. Union of India, 2021 SCC OnLine Gau 683, decided on 30-03-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance before the Court:

For the Petitioner: Adv. M. J. Quadir and Adv. K. Mira

For the Respondents: Adv. A. Gayan, CGC., SC A. Kalita, SC B. Das and SC L. Devi

Op Eds OP. ED.

Joinder and non-joinder of parties in civil proceedings in India in light of the doctrine of necessary and proper parties

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 Begum, 1959 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 Briefs High Courts

Jhar HC | [Service Law] In a case past two decade, Court observes procedural irregularity at the behest of Disciplinary authority; issues direction for consequential benefits

Jharkhand High Court: Deepak Roshan, J., while allowing the present writ application, said, “This court is having no hesitation to hold that there is a procedural irregularity in passing the impugned order of punishment. As such, the impugned order of punishment and all subsequent orders deserve to be quashed and set aside.”

Background

The facts of the instant writ application are briefly mentioned hereunder;

That while the petitioner was posted as Manager at Jamshedpur Branch of the respondent Bank, a memorandum of charge was issued on 19-07-1999 and delivered to him on 30-07-1999 whereby, it was proposed to hold a departmental enquiry against him with regard to imputation of misconduct.
Thereafter, in terms of the aforesaid charge-sheet, departmental enquiry has been conducted in which the petitioner filed a detailed written brief denying all allegations leveled against him.
Thereafter, the Inquiry officer submitted his enquiry report on 18-02-2002, which was delivered to the petitioner on 28-02-2002.
Pursuant to that, petitioner filed a detailed reply against the finding of the Inquiry Officer and finally the order for removal from service was passed against the petitioner by the Disciplinary authority.
Being aggrieved, the petitioner filed an appeal on 16-01-2003, which was also dismissed vide order dated 02-01-2004.
Thereafter, the petitioner filed a writ application; W.P.(S) No. 444 of 2005 before the present Court and the said writ application was disposed of by order dated 1st March, 2012, whereby the petitioner was directed to prefer a review application and the reviewing authority was directed to consider the case of the petitioner.
Pursuant to the aforesaid order of this court, the petitioner filed a review application which was also dismissed.

Contentions

Krishna Murari, Counsel for the petitioner, submitted that the impugned order of punishment, as well as the appellate and review order, are bad in law, inasmuch as, the issue raised by the petitioner, right from the stage of enquiry proceedings, has not been considered by either of the authorities. He further referred to Rule 6(5) and 6(10) of the Central Bank of India Officer Employees (Conduct) Regulations, 1976 and contended that it is a mandatory requirement that the Inquiry Authority, where the Officer/Employee does not admit all or any of the article of charge, furnish to such officer a list of documents and list of witnesses along with the article of charge. However, in the instant case, the mandatory requirement as enshrined in the aforesaid Regulation has not been complied with. It was further submitted that the stand taken by the petitioner, wherein it has been specifically stated that the “list of witnesses proposed and the documents relied upon by the Bank were never supplied to the petitioner and the witnesses were produced on a particular date without the knowledge of the petitioner, thus, depriving him of the opportunity to prepare himself for the cross-examination of the witnesses as per rule,” has been replied evasively by the respondent Bank. In this regard, the Counsel emphasized on Order VIII Rule 4 and 5 of the Code of Civil Procedure which clearly says that denial must be specific and not evasive, and further placed reliance on State of U.P. v. Saroj Kumar Sinha, (2010) 2 SCC 772 and G.V. Aswathanarayana v. Central Bank of India, (2004) 1 LLJ 36.

P.A.S. Pati, Counsel for the respondent Bank, supports the impugned order, however, could not demonstrate that the mandatory requirement as envisaged in Rule 6(5) and 6(10) of the Regulation was complied with. He cannot dispute the averment made in the counter affidavit while replying to the categorical statement made in the writ application, however, he reiterated that principle of natural justice has been complied with.

Observations

Court reproduced the allegation as well as the reply made by the respondent bank and further reproduced the language of Order VIII Rule 4 and 5(1) of the CPC, 1908.

Rule 4. Evasive denial – Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. Thus, if it is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. And if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances.

Rule 5. Specific denial – (1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability: Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.”

It went on to conclude, “After going through the specific provision under Code of Civil Procedure and in the background of the statement given in the counter affidavit it can be easily inferred that the statement made in Paragraph 38 of the writ application regarding non-supply of documents and list of witnesses, are not denied specifically by the respondents.

Decision

Allowing the present writ application, the Court held, “Normally, in such type of cases, the matter should have been remitted back to the competent authority to start the proceeding from the stage of the irregularity commenced, by following principles of natural justice. However, in the instant case, the petitioner has already retired on 31-03-2010 and at present he is about 74 years. Further, the case relates to the year 1999 and calling the management witness now will be a futile exercise, as such, no fruitful purpose would be served to remit the case back to the Disciplinary authority for compliance of mandatory requirements of the Regulation. Consequently, the Impugned Order and all subsequent orders are hereby quashed and set aside. The Respondents are directed to give consequential benefits to the petitioner.”[Rama Shankar v. Central Bank of India, 2020 SCC OnLine Jhar 1039, decided on 15-12-2020]

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Factual Background

Issues Involved

Analysis and Findings

*Judgment by: Justice Ajay Rastogi

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Joint and Several Liability or a Blame Game?

Findings of the Courts below

Maintainability of the Summary Suit

Law on Leave to Defend

Conclusion

*Judgment by: Justice Dinesh Maheshwari

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*Judgment by: Justice M.R. Shah

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Background

Compromise between Judgment debtor and Auction Purchaser

Findings of the High Court

Contention of the Judgment debtor

Opinion and Analysis

Findings and Conclusion

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Background

Findings and Decision

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“Best method” to decide the question of res judicata:

Twin test for the identification of whether an issue has been conclusively decided in the previous suit is:

Res Judicata: Question of fact or law or mixed question of law and fact?

Can res judicata be decided as a preliminary issue?

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Background

Amendment in Question

Opinion of the Court

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Introduction

The law on the subject

Other remedies

Conclusion

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Factual Matrix of the Case

Analysis and Observations by the Court

Findings and Decision

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

Doctrine of necessary and proper parties in essence

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

Statutory exceptions to Rule 10 of Order 1

Difference between non-joinder and misjoinder of parties

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