Case BriefsHigh Courts

Punjab & Haryana High Court: While deciding an appeal filed by the petitioner against the order passed by the Additional District Judge, Raj Mohan Singh, J., allowed the appeal setting it aside.

Petitioner has filed the instant appeal against the order dated 31-07-2020 vide which the application filed by the petitioner under Order 41 Rule 5 CPC for a stay of operation of judgment and decree dated 06-03-2020 was dismissed. Suit for permanent injunction filed by the petitioner was dismissed by the trial Court.

In the appeal filed by the petitioner against the judgment and decree dated 06-03-2020, the interim injunction has been declined on the ground that the petitioner is also a co-sharer in the suit land and suit for a permanent injunction is not maintainable against other co-sharer.

Counsel for the petitioner, Harsh Chopra cited the judgment delivered in the case of Bachan Singh v. Swaran Singh, 2000 SCC OnLine P&H 233 and Puran Singh v. Kuldeep Singh, 2018 SCC OnLine P&H 1966 He further submitted that in a situation where the value or utility of the property is diminished, a co-owner can seek an injunction to prevent the same from happening.

In view of the facts, circumstances and arguments advanced the Court allowed the appeal and set aside the order dated 31-07-2020. The Court also directed the parties to maintain the status quo during the pendency of the appeal.[Dalip Singh v. Surinder Jain, 2020 SCC OnLine P&H 1624, decided on 08-10-2020]


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Case BriefsHigh Courts

Himachal Pradesh High Court: Sandeep Sharma J., upheld the impugned judgment and dismissed the petition.

The facts, in a nutshell, are that parties to the suit of the impugned judgment are in joint owner-in-possession of the suit land. Father of the parties executed a Will dated 19-5-2003 in favour of plaintiff, defendant and proforma defendant 1. After execution of Will dated 19-5-2003, on account of uncalled for behaviour of the defendant, father of the plaintiff cancelled the Will dated 19-5-2003 and executed a fresh Will dated 3-4-2008. Proforma defendant, Krishna Devi also died during the pendency of the suit and as such, she also executed Will dated 1-8-2012 in favour of plaintiff.  The instant petition is filed under Article  227 of the Constitution of India, laying challenge to order dated 18-4-2018 passed by learned Senior Civil Judge Nadaun, District Hamirpur, Himachal Pradesh, whereby an application under Order XXIII, Rule 1(3) read with Section 151 Civil Procedure Code, seeking therein permission to withdraw the suit with liberty to file afresh, came to be dismissed.

The petitioner submitted that he should not suffer for lapse on the part of counsel as he failed to institute the suit against proper parties. The petitioner was represented by counsel Ramakant Sharma and Bhuvnesh Sharma. Counsel Sanjay Dutt Vasudeva represented the respondents.

The Court observed that since no proper service has been effected, the suit would fail, dismissed the application on the ground that non-joinder of proper parties cannot be said to be a formal defect, rather said defect can be cured by way of filing an appropriate application for impleadment/amendment of plaint

The Court held s well settled that non-joinder or non-description of suit land is not a formal defect, rather same can be cured by way of filing an appropriate application.

In view of the above, impugned judgment upheld and petition dismissed.[Joginder Singh v. Surinder Pal, 2020 SCC OnLine HP 1793, decided on 29-09-2020]


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Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: Full Bench of Buwaneka Aluwihare, Vijith K. Malalgoda, and S. Thurairaja, JJ. allowed the appeal by setting aside the order of the Learned High Court Judge and directed the District Court to proceed to conclude the case.

In the present case, the appellant filed the case against the judgment of the High Court of the Western Province holden in Gampaha (also referred to as the ‘High Court’) in a Testamentary Case. The concerned parties had raised their objections on the Letter of Administration at the Testamentary Case which the 12th Respondent-Respondent-Appellant had obtained from the District Court of Negombo. The District Court had ordered to dispose of this matter on written Submissions of 06-10-1998. Since the original petitioner had died, his son was substituted in the above mentioned testamentary. The substituted petitioner had raised an objection with regard to the inventory and thus, made an application to re-inquire the matter orally. Later, the 12th Respondent- Respondent-Appellant objected and by order dated 01-03-2013 District Judge decided not to allow the fresh submissions.

Further, the Substituted Petitioner-Petitioner- Respondent appealed to the Provincial High Court of Gampaha. The appeal was allowed by the Civil Appellate Court. The question of law, is whether a substituted party in any action can deny the acceptance of the original party, also whether the substituted party can be estopped from taking a contrary position to the party. As per, Section 395 of the Civil Procedure Code Act, if the sole plaintiff has died the legal representative may be substituted by the court if the right to sue is still there. The pleas available to a Legal Representative was observed in an Indian Order, Gurdial Singh v. Gurdev Singh, 1991 SCC OnLine P&H 579. In the following case, it was held that in case of any dispute the legal representative has the right to continue the suit but he cannot claim anything which was not mentioned by the original plaintiff.

Thus, in the present case, it was held that the District Court’s order passed on 01-03-2013 is correct. Lastly, the Court ordered the Judge of the District Court to conclude this long-running case and the parties are directed to co-operate with the District Judge. [Kandiahpillai Shanmuganathan v. Kandiahpillai Vythilingam, 2019 SCC OnLine SL SC 13, decided on 11-09-2019]

Case BriefsHigh Courts

Bombay High Court: S.C. Gupte, J., while allowing a second appeal filed by the plaintiff against the order of the first Appellate court, held that the suit filed for protecting the possession of immovable property based on settled exclusive possession cannot be dismissed on the ground that the plaintiff has failed to prove title to the suit property.

The plaintiff claimed that the suit property was gifted orally to him by one Hamid. He claimed that the defendants were interfering in his peaceful possession of the suit property. Therefore, he filed a suit for perpetual injunction against the defendants, which was allowed by the trial court. It was an admitted fact the plaintiff was, all throughout, in exclusive possession of the suit property. However, on appeal, the First Appellate Court reversed the order passed by the trial court. Hence, the present the second appeal by the plaintiff.

The substantial question of law to be decided in this appeal, as reframed by the High Court was: Can a suit filed for protecting the possession of immovable property based on settled exclusive possession be dismissed on the ground that the Plaintiff has failed to prove title to the suit property?

After hearing Pramod N. Joshi, Advocate for the plaintiff, and Sharad T. Bhosale, Advocate for the respondent-defendants, the High Court perused the record and reached the conclusion that the substantial question as framed above had to be answered in the negative. Explaining the fundamental fallacy in the impugned order, the Court explained: “The District Court has dismissed the plaintiff’s suit for protecting his possession without in any way having questioned the plaintiff’s exclusive possession of the suit property. If his exclusive possession was not debated/questioned, assuming without admitting that his exclusive ownership through the purported oral gift by Hamid Husein was not proved unless the defendants actually showed either their pre-existing physical possession or their entitlement to the suit property by a succession, testamentary or intestate, the plaintiff was entitled to the perpetual injunction sought by him.”

It was further observed that the defendant’s’ claim to be in physical possession of the suit property was neither accepted by the trial court nor by the First Appellate Court, and the only case of entitlement pleaded by the defendants having also been found against them by both courts below, they had no case to resist the plaintiff’s claim for protecting his admitted possession of the suit property.

Accordingly, the second appeal filed by the plaintiff was allowed; the impugned judgment of the First Appellate Court was set aside, and the order passed by the trial court was restored. [Kadar Raju Shaikh v. Abbas Pirmohamad Shaikh, 2019 SCC OnLine Bom 4688, decided on 07-11-2019]

Case BriefsHigh Courts

Jharkhand High Court: The Bench of Sujit Narayan Prasad, J. disposed of a petition seeking to make amendment in the plaint as stipulated under schedule to the petition.

To state the facts briefly the petitioner had filed for declaration of right and title over the suit property in which the respondents had appeared and filed written statements. Also a petition under Order 6 Rule 17 has been filed for incorporating in the plaint: “during the pendency of the suit the defendant on the strength of lathis and muscle man encroached suit land and constructed house over the portion of the suit land illegally which is liable to be removed by the process of the court.”

The trial Court was of the opinion that such amendment would change the nature of the suit since the amendment that was sought for was in the nature of seeking a direction for removing the defendant from the land while the suit was for a declaration of right and title over the land in question. Also, the fact that the petitioner had knowledge of the said encroachment was considered by the Court.

The Court placed reliance on Mani Nariman Daruwala v. Phiroz N. Bhatena, (1991) 3 SCC 141 and Laxmikant Revchand Bhojwani v. Pratapsing Mohansingh Pardeshiv, (1995) 6 SCC 576, while enumerating the principles of exercising the jurisdiction of superintendence under Article 227 of the Constitution. And further held that, “In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words, the jurisdiction has to be very sparingly exercised”. Also opined that, in the scope of Order 6 Rule 17 and the scope of Article 227 of the Constitution of India, the order needs no interference since there is no error apparent on the face of the record. [Shyam Sunder Saw v. Manoj Yadav, 2019 SCC OnLine Jhar 233, Order dated 04-02-2019]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Vinod Goel, J. dismissed a revision petition filed against the order of Additional District Judge whereby petitioners application under Order 7 Rule 11 CPC was dismissed.

The respondents, an unregistered partnership firm, had filed a suit against the petitioners for recovery of Rs 24,41,967 on account of dishonour of cheques. The petitioners filed an application under Order 7 Rule 11 CPC for rejection of plaint on the ground that the suit was barred under Section 69(2) of the Indian Partnership Act, 1932. The application was dismissed as mentioned above. Notably, Section 69(2) specifies that no suit to enforce a right arising from a contract shall be instituted in any court against any third party by an unregistered firm. Aggrieved by the dismissal of the application, the petitioners were before the High Court.

The High Court noted that in the instant case, the respondents were seeking enforcement of liability of the petitioners created under Sections 30 and 37 of the Negotiable Instruments Act, 1881 as the cause of action for the plaint was based on dishonour of cheques. Reference was made to the judgment of Kerala High Court in Afsal Baker v. Maya Printers, 2016 SCC OnLine Ker 29914,  wherein it was observed, “by virtue of Section 30 and 37 of the Negotiable Instruments Act, on the dishonour of a cheque, the statute creates liability on the drawer, apart from the general law of contracts.” In such view of the matter, the Court held that since the suit was not based on any contract between the parties, the bar under Section 69(2) of the Partnership Act would not apply. Resultantly, the petition was dismissed. [Hindustan Infrastructure Construction Corpn. Ltd. v. R.S. Woods International Ltd., 2018 SCC OnLine Del 12960, Order dated 13-12-2018]

Case BriefsHigh Courts

Jammu and Kashmir High Court: A Single Judge Bench of Dhiraj Singh Thakur J., dismissed the petition filed under Article 104 of the Constitution of Jammu and Kashmir, and upheld the order passed by the 1st Additional District Judge.

The respondents, in this case, were owners and in possession of the land which was situated in Beli Azmat, Jammu. They agreed to alienate the land, and in furtherance of this, an agreement to sell was entered into. The petitioners contended that despite the said agreement being in force, the respondents did not execute the sale deed, as a result of which a suit for specific performance was filed.

After the order for specific performance was passed, it was challenged by one of the respondents by a suit of declaration. The previous order for specific performance was stayed till the time that the suit for declaration was adjudicated.

Rent was being paid to the respondents by the Department of Agriculture, and the petitioners argued that the same should not be paid till the time the suit for specific performance of the sale deed was settled. The 1st Additional District Judge rejected the argument on the ground that the sale deed was obtained by collusion and that there was no valid document for transfer of title to the petitioners.

Aggrieved by the order, the petitioner filed contempt proceedings, claiming that even though rent was only to be paid to respondent 1 to the extent of his share, yet the rental compensation was being distributed with regard to property. The contempt proceedings were also dismissed by the 1st Additional Judge.

In the present petition, the Court held that the order given did not suffer from any illegality, as whatever rights they claimed were as a result of the suit for specific performance, which had been stayed. Consequently, the petitioners had lost all rights to question the dispensation of rental compensation to the respondents. [Bansi Lal v. Vijay Chand Katoch,2018 SCC OnLine J&K 802, Order dated 03-11-2018]

Case BriefsHigh Courts

Jammu & Kashmir: A Single Judge bench comprising of Sanjeev Kumar, J. while dealing with a civil revision petition directed against the judgment of trial court passed in relation to Section 9 of the Jammu & Kashmir Specific Relief Act, 1977 declined to interfere with trial court’s judgment directing re-possession in favour of respondent but set aside the order directing payment of mesne profits to the respondent.

Facts of the case are that a shop was purchased by the plaintiff-respondent and since its purchase, the property was in his possession and under his lock and key. In October 2002, the petitioners-defendants broke open the locks of the plaintiff-respondents house, stole all the documents including title deed and also broke open locks of the suit shop and forcibly occupied the same in his absence.

The respondent-plaintiff filed a suit under Section 9 of the Act seeking possession of the suit shop and also for recovery of mesne profits at Rs 2000 per month from the date of illegal occupation of the shop by the petitioners-defendants. After filing of the written statement, petitioner-defendant did not participate in the proceedings and appreciating evidence adduced before the trial court, the court decreed the suit in favour of plaintiff-respondent and also granted the decree for mesne profits at Rs 2000 per month for wrongful use and occupation of the suit property.

The High Court discussed at length, the scope of interference with an order or decree passed in a suit instituted under Section 9 of the Act and held that the inquiry in a suit under Section 9 of the Act is limited to the determination of three questions: (i) if the plaintiff is formally in settled possession, (ii) whether the plaintiff was dispossessed of immovable property without his consent other than in due course of law, and (iii) whether the dispossession has taken place within six months immediately preceding the date of the institution of the suit.

The revision petition was disposed of holding that court cannot interfere with the findings of fact of the trial court by re-appreciating the evidence and as such the re-possession order was upheld. However, it was held that under Section 9 the court did not have jurisdiction to grant mesne profits and as such, trial court’s order to that effect was set aside. [Mohan Lal v Madan Lal,2018 SCC OnLine J&K 642, Order dated 19-09-2018]