CPC

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Jayant Nath, J. allowed an appeal filed against the previous order whereby the right of defendants to file written statement was closed as 120 days prescribed in CPC for filing a written statement had expired.

Ms Sudeepti, Advocate appearing for the defendants submitted that a written statement was filed within 120 days but there was a delay in re-filing the same. She relied on the order of the Joint Registrar where it was noted that a written statement was filed but returned under office objection.

The High Court took note of the admitted fact that defendants have filed a written statement. Reference was made to Indian Statistical Institute v. Associate Builders, (1978) 1 SCC 483 and it was observed to be a settled legal position that delay in re-filing has to be considered on a different footing. Contention put forward by N. Prabhakar and Dhruv Sharma, Advocates for plaintiffs that re-filing tantamount to fresh filing did not find favour with the Court. Accordingly, the appeal was allowed. The written statement was directed to be taken on record if re-filed within one week. [Narender Kumar Sharma v. Maharana Pratap Educational Centre, 2018 SCC OnLine Del 13146, dated 13-12-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Manmohan, J., allowed the suit filed by Bennett Coleman for restraining the defendant from infringing its trademark, copyright, etc. in channel name TIMES NOW.

The defendant was using the channel name NATIONAL TIMES NOW. The plaintiff, popularly known as Times Group company, has been in the media industry since 1838. It runs several publications including Times of India and Economic Times. It is also India’s largest media conglomerate, popularly known as Times Network which owns and operates several channels including TIMES NOW. It was submitted that the plaintiff’s mark TIMES NOW had acquired distinctiveness and have become source identifier of plaintiff’s business. Moreover, the petitioner is the registered owner of the said mark-channel name.

The High Court, while deciding the instant application filed under Order XIII Rules 2, 4 and 6 CPC seeking a summary judgment, duly considered the submissions made on behalf of the petitioner. The plaintiff also submitted that TIMES NOW form a dominant and essential part of the name of plaintiff’s channels, and the defendant’s channel name NATIONAL TIMES NOW is deceptively similar to the names of various channels and websites of the plaintiff. On bases of the fact that the plaintiff was a registered user of the trademark in question, and noting the fact that the defendant neither entered appearance nor filed its written statement, the Court was of the view that the defendant did not have any real prospect of defending the claim. Accordingly, the suit was decreed in favour of the plaintiff and against the defendant. [Bennett Coleman and Co. Ltd. v. M. Akram Pasha,2018 SCC OnLine Del 10473, dated 08-08-2018]

Case BriefsHigh Courts

Himachal Pradesh High Court: A Single Judge Bench comprising of Ajay Mohan Goel, J. dismissed a petition filed against the order of trial court whereby petitioner’s application under Order 10 Rules 9 and 10A CPC was rejected.

In the abovesaid application, the petitioner had prayed to the court that a revenue expert be appointed to prepare excerpt and to report the history of the suit land as per pedigree table, as in its absence, the petitioner won’t be able to prove his case. Trial court rejected the application holding that it was for the petitioner to prove his case by leading his own evidence. Aggrieved thus, the petitioner filed the instant petition.

The High Court found no merit in the petition. It noted that the suit was filed somewhere in 2008; issues were framed and evidence was led. It was at that stage of hearing that the said application was filed. The Court observed that before ordering any investigation under the said rules, the court has to be satisfied that the same shall be necessary for the purpose of adjudication. Further, in the present case, the matter being a property dispute, the onus was on the petitioner to prove his case. Neither scientific investigation was required, nor the court deemed a local investigation necessary for the purpose of elucidating evidence. The Court also observed that it is not a right conferred upon a party to call upon the court to order an investigation. Accordingly, the petition was found sans merit and was dismissed. [Rajinder Singh v. Ran Singh,2018 SCC OnLine HP 889, dated 18-07-2018]

Case BriefsHigh Courts

Calcutta High Court: A Single Judge Bench comprising of Soumen Sen, J. allowed an application filed under Clause 13 of Letters Patent Act, 1865 for transfer of suit from City Civil Court to the High Court.

The applicant filed a suit in the High Court under Section 6 of Specific Relief Act, 1963 for recovery of possession on the ground that he was dispossessed wrongfully and forcibly. The defendant filed a suit before the City Civil Court for an injunction restraining the applicant from use and enjoyment of the suit premises. The present application was filed praying for transfer of the suit from the City Civil Court to the High Court.

The Court heard both the parties and noted, there was no doubt that the issues in both the suits were not entirely similar. However, the Court observed that although the issues may not be the same; but the same set of evidence and witnesses would be required to prove the respective issues. Further, Section 151 CPC gives the Court an inherent power to direct consolidation of suits. The Court was of the view that it was just and convenient if both the matters were tried together; it would not only minimize the time but would save expenses. Accordingly, the suit pending before the City Civil Court was directed to be transferred to the High Court. [Royal Bank of Scotland Plc v. Impressions,  2018 SCC OnLine Cal 4497, decided on 05-07-2018]

Case BriefsHigh Courts

Punjab and Haryana High Court: A Single Judge Bench comprising of Kuldip Singh, J. dismissed the appeal filed against the order passed by the Civil Judge in execution proceedings.

The appeal was filed by partners of one Dashmesh Artia Cotton Factory which was attached and auctioned as a result of recovery and execution proceedings against one of its partners. Other partners filed an objection to the said auction under Order XXI Rule 90 CPC  which was dismissed by the learned Civil Judge. The appellant challenged the decision of the Civil Judge.

The High Court considered the submissions of the appellant and after referring to various decisions of the Apex Court as well as other High Courts, observed that under Order XXI Rule 90 CPC, the auction can be set aside only on account of fraud or material irregularity which has resulted in substantial injury to the applicant. For this purpose bald allegations are not sufficient, fraud has to be alleged and established. On the facts of the instant case, the Court held that there was no such fraud or material irregularity in the auction sale of the property concerned that would render it liable to be set aside under Order XXI Rule 90. Therefore, the appeals were dismissed. [Bahadur Chand v. Madanlal,  2018 SCC OnLine P&H 636, dated 01-03-2018]

Case BriefsHigh Courts

 

Hyderabad High Court: In the instant appeal, the question arose that whether a counter-claim can be rejected in terms of Order VII, Rule 11 of CPC, to which the Bench of V. Ramasubramanian, J., held that in addition to the parameters provided in Order VII, Rule 11 of CPC, the Court must examine while dealing with a prayer for rejection of the counter-claim, as to whether the rejection of the counter-claim would have the effect of striking off the defence and rendering the defendant defenceless. It was also observed that at the stage of invoking Order VII, Rule 11 CPC, the Court is not concerned with the merits of the claim. But while dealing with a written statement, the Court will certainly consider the merits of the claim

As per facts of the present case, an eviction suit was filed by the respondents against the appellants. The respondents claimed that a shop was taken on lease by the father of the appellant/defendant in December, 2003 and subsequently took over the shop; and that the appellant/defendant committed default in payment of rent from April, 2015 and therefore after issuing an eviction notice dated 23-12-2015, the respondents/plaintiffs were forced to file the suit for eviction. The appellant contended that the lease was for 25 years and that therefore he was not liable to be evicted. In addition the appellant/defendant also made a counter-claim by seeking a decree for the relief of specific performance of the registration of the lease deed. The respondents/plaintiffs however made a request to the trial court to reject the counter-claim in terms of Order VII, Rule 11 of CPC which was accepted by the trial court, thereby resulting in the present second appeal.

Perusing the facts of the case and the provisions of CPC, the Bench observed that Order VIII, Rule 6-A(4) CPC clearly states that a counter-claim shall be treated as a plaint and governed by the rules applicable to plaints, therefore, the applicability of Order VII, Rule 11 CPC to counter-claims cannot be ruled out. Generally a counter-claim which consists of the defence to the plaintiffs claim and another comprising of the counter-claim and the survival of one does not depend upon the other; it may be possible to apply Order VII, Rule 11, however in cases where defence to a suit and the counter- claim are joined in such a manner as “Siamese twins”, with an inherent danger to the survival of the defence to the suit, upon the rejection of the counter-claim, the Court must do something more than what Order VII, Rule 11 generally mandates. Noting the provisions laid down under Order VIII, Rule 6-A(1) sub-rule (2), Order VIII, Rule 6-A, Order VIII Rule 6-A sub-rule (4) and Order VIII, Rule 6-C of CPC, the Court observed that a counter-claim is not exactly the same as a plaint, despite having the traits of a plaint and the scheme of Order VIII, Rules 6-A to 6-G of CPC itself recognises the fact that there could be two different scenarios, one where the counter-claim could be intertwined with the defence and another where it is capable of being prosecuted as an independent suit. [Jinendra Jewellers v. B.Venkateswara Rao, 2017 SCC OnLine Hyd 442,  decided on 15.12.2017]

Case BriefsHigh Courts

Hyderabad High Court: In the instant appeal, question arose that whether the Application I.A.No. 1751 of 2006 filed for recovery of shares, is an application under Section 8 of the Arbitration and Conciliation Act, 1996 or whether it is an application under Order VII Rule 11 of CPC seeking rejection of plaint on the ground that arbitration clause in the contract bars the suit. The Division Bench of S.K. Kait and D.V.S.S. Somayajulu, JJ., allowing the appeal held that, the said application is under Order VII Rule 11 CPC seeking rejection of the plaint while observing that when a statute describes or requires a thing to be done in a particular manner; it should be done in that manner or not at all.

As per the history of the case, in 2005 a suit was filed for recovery of shares of various companies belonging to the appellants’ share allegedly sold by the respondents/defendants. Post the filing of the suit, one of the defendants filed an application under Order VII Rule 11 CPC pleading inter alia that the dispute between the parties should be settled according to arbitration as per Bye-law No. 248(c) of the Bombay Stock Exchange Bye-laws. However, instead of asking for an order under Section 8 of the 1996 Act to refer the parties to arbitration, the defendant sought for rejection of the plaint. The Additional Chief Judge, City Civil Court, Secunderabad while agreeing that there is a valid arbitration clause, rejected the plaint thereby leaving the parties to invoke the arbitration clause. The appellants/plaintiffs via their counsel Mahmood Ali in addition to opposing the application of 2006 also argued that the appellants were not in the purview of the arbitration clause. However the respondents/ defendants’ counsel argued that the arbitration clause was well highlighted in the contract between the parties and that this Court has no jurisdiction over the matter as per the provisions of Section 8 of 1996 Act.

The Division Bench duly noting the averments made by the counsel observed that the issue of the case is that whether the Chief Judge was right in “rejecting” the plaint. The Court observed that the lower court should have noted that Section 8 of only empowers the Court to “refer” the parties to arbitration but does not give the Court an option to reject a plaint whereas Order VII Rule 11 CPC empowers the Court to reject the plaint, when there is “bar” to the suit because of any law and Section 8 is not a bar to a Civil Court and provides an alternative to a defendant against whom a civil suit is initiated to submit to the jurisdiction of the civil Court. The Court observed that an application under Section 8 of the Act is an application that should be made in a particular manner and at particular time. The application should be accompanied by the original arbitration agreement or a certified copy thereof. The Court thus noted that the lower court did understand it as an application under Order VII Rule 11 CPC only. However the Division Bench also observed that the application was misconceived in the first place and thereby set aside the order of the lower court dated 16.11.2006. [M. Shankara Reddy v. Amara Ramakoteswara Rao, 2017 SCC OnLine Hyd 426, decided on 24.10.2017]