Case BriefsHigh Courts

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


Advocates before the Court:

For the petitioner: Deepika Mishra, Advocate

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

Case BriefsHigh Courts

Delhi High Court: Asha Menon, J., addressed a suit for trade mark infringement, wherein the Court additionally addressed the scope of Section 124 of Trade Marks Act.

Instant petition, petitioner was aggrieved that on account of the fact that his suit, which he had filed against the defendants for infringement of his proprietary trade mark “RACER” as also passing off their goods as that of the petitioner and other reliefs, was stayed by the trial court.

The stated order was challenged and was further disposed of by permitting the petitioner to withdraw that petition and granting liberty to approach the Tribunal (sic.) by review petition.

Counsel for the petitioner, S.K. Bansal relied upon the judgment of this Court in J. K. Oil Industries v. Adani Wilmar Ltd., 2018 SCC OnLine Del 9367 to submit that when a suit was filed for infringement of trade mark as also for passing off, the filing of a rectification petition before the Intellectual Property Rights Board would result in the stay of the suit as far as infringement of trade mark was concerned under Section 124 of the Trade Marks Act, 1999, but that suit with regard to passing off was to continue.

With regard to the prayer of the petitioner for continuing the suit for passing off, the counsel submitted that since an injunction was already in force against the respondents and the respondents were not using the trade mark “RACER”, no prejudice was being caused to the petitioner, if the suit waiting for the disposal of the rectification petition filed by the respondents before the IPRB. Thus, the counsel submitted that the present petition deserved to be dismissed.

Analysis, Law and Decision

Bench stated that it is settled law that Section 124 of the Trade Marks Act does not provide for stay of action against the passing off and was applicable only where a rectification application/cancellation has been sought against the registered trade mark that a plaintiff claims to be exclusively it’s own.

The above is intended to avoid conflicting decisions by the Civil Courts and the Tribunal.

There is no such occasion arising in a suit for passing off. It is only when clever drafting discloses the intent of the plaintiff to get over the statutory bar, being aware of the rectification proceedings commenced against the trade mark that it claims is exclusively it’s own.

Hence, Court held that the trial court had misread the judgments of this Court in Micolube India Ltd. v. Maggon Auto Centre,    2010 SCC OnLine Del 138, and an error apparent on the face of the impugned order. Trial Court ought not to have directed that the entire suit be stayed, though, this Court including J.K. Oil Industries v. Adani Wilmar Ltd., 2018 SCC OnLine Del 9367, has consistently held that while the suit for infringement of trade mark has to be stayed under Section 124 of the Trade Marks Act, when a rectification petition is filed before the IPRB, an action for passing off could continue.

In view of the above petition was allowed. The order passed by the trial court was modified to read that Civil Suit No.577/2016 [New No.10725/2016] shall remain stayed under Section 124 of the Trade Marks Act qua the action for infringement of trade mark, but shall continue qua the relief sought against passing off and connected reliefs. [Parveen Kumar Gupta v. Ravi Chadha, 2021 SCC OnLine Del 3916, decided on 6-08-2021]


Advocates before the Court:

For the Petitioner: S.K. Bansal and Ajay Amitabh Suman, Advocates

For the Respondents: Ashish Deep Verma, Kamya Ritu Verma, Vijay Singh and Bharti Sharma, Advocates

Case BriefsHigh Courts

Bombay High Court: Dama Seshadri Naidu, J., in a suit for specific performance, observed that:

“..in a suit for specific performance, a third party’s assertion that he has a stake in the subject matter of the suit counts to noting (sic). What matters is the contract, not the property covered by the contract. “

Background

‘A’ engaged in a contract with B for purchasing some property and B defaulted. Later, C the brother of A, represented A as his power of attorney agent (POA) and after a few years, A discharged C from being his POA and pursued the case independently and got a decree – not for specific performance but for the return of money.

Now an objection arose when A wanted to withdraw the deposited decretal amount and the objection was raised by C.

The ground for objection was that C wanted a part of the decretal amount since he too had contributed to the sale consideration.

Question for Consideration

Can C’s claim be countenanced? Is such an ‘intervention application’ maintainable?

Discussion

Code of Civil Procedure must be interpreted in a manner to subserve and advance the cause of justice. 

— C.K. Thakker’ s Code of Civil Procedure, Vol. 1, EBC, p. 200 (EBC Reader) 

Bench noted that in the present matter, firstly, there was no lis before the Court for it to entertain an interlocutory application. Thus, Court was proverbially functus officio. 

Adding to the above, Court stated that C wanted the Court to revive and resurrect a disposed of suit and to do that the Court must set aside the decree that was already passed.

But the question was, can the Court do so?

To the above, the answer was Court cannot. Further, it was elaborated that “A decree can be set aside under Order 9 Rule 13 CPC. In the Supreme Court decision of Ram Prakash Agarwal v. Gopi Krishna, (2013) 11 SCC 296, it was held that the applicant must have been a party to the suit, in the first place, whereas Supreme Court in Raj Kumar v. Sardari Lal, (2004) 2 SCC 601, took a different view and stated that the same was in the context of a lis pendens purchaser.

Bench coming back to the present matter, expressed that:

Subhash has a highway or a thoroughfare to travel on if ever he wants to reach his judicial destination: a separate suit, seeking a declaration.

Looking at the issue from another perspective, Court stated that in a suit for specific performance, whatever be its outcome, no third party can have the role to play.

Precedential Position

Ajay Kumar v. Tulsabai, 1973 SCC OnLine Bom 4, Court held that by very nature, a suit for specific performance confines itself to the agreement and several please that can either defeat or lead to its enforcement. The cause of action in such a suit is the agreement and its enforceability.

In the above-cited case, Court posed a question unto itself: Can it really be said that the stranger to an agreement is concerned with the relief sought by the plaintiff or the defences raised against such specific performance? The answer was that, firstly the stranger not being a party to the suit, any decision in that suit does not affect him. Secondly, the Court is being called upon to enforce the agreement but not to settle any disputes between the plaintiff and the stranger, therefore such a person’s presence is not necessary for the Court to decide the controversy of the suit.

In Panne Khushali v. Jeewanlal Mathoo Khatik,  AIR 1976 MP 148,  a Full Bench of the High Court of Madhya Pradesh has held that strangers to the contract making a claim adverse to the title of the defendant—for example, that they are the co-owners of the contracted property—are neither necessary nor proper parties. So they are not entitled to be joined as parties to the suit.

Delhi High Court in its decision of Raj K. Mehra v. Anjali Bhaduri, 1981 SCC OnLine Del 105, echoed the same view as above.

Analysis, Law and Decision

In view of the above, Court proceeded to examine the issue:

(1) The agreement was between Rajesh and Sudarshan.

(2) From the very inception, Subhash represented Rajesh as his POA in the suit; thus, he knew his brother’s pleadings and assertions to the exclusion of everyone else.

(3) Despite that, Subhash never objected to his principal’s (Rajesh’s) contentions.

(4) Though Rajesh, as the principal, cancelled GPA in 2017, Subhash never attempted, if ever permissible, to come on record as a defendant to protect his independent interest, if any.

(5) The suit was eventually decreed in 2001.

(6) Sudarshan willingly suffered the decree and deposited the amount to be appropriated by Rajesh alone.

Collateral Issue:

Subhash insisted that this Court in its Order dated 16-04-2012 noted that Subhas, too, contributed to the sale consideration.

To the above contention Bench stated that to facilitate adjudication of the matter, the Court undertakes various steps and during that process, Court prima facie observe or record certain aspects based on the counsel’s representation but the same does not acknowledge the parties existing rights if any, but they do not create rights on their own.

A Court’s observation cannot give rise to a right unless it has already existed, nor does it provide a cause of action. Here, in this case, it had never been in the Court’s contemplation as to who contributed the sale consideration. It is a non sequitur.

Concluding the matter, Court held that however strong a person’s right to recovery may be, he cannot file an intervention application in an already disposed of matter and stay the execution of the decree or nullify the decree without proper judicial recourse.

In view of the above discussion, Court dismissed the application. [Rajesh Saichand Sharma v. Sudershan Gangaram Rajula,  2021 SCC OnLine Bom 835, decided on 11-06-2021]


Advocates before the Court:

Mr. Sanjiv Sawant a/w Mr. Abhishek P. Deshmukh – Advocate for the Applicant.

Sukeshi Bhandari a/w Akshay Chauhan – Advocate for the Defendants.

Mr. Chandrakant N. Chavan a/w Mr. Rajesh Sharma – Advocate for Plaintiff.

Op EdsOP. ED.

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:

  1. … 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).

  1. 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.

  1. 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 BriefsHigh Courts

Bombay High Court: Milind N. Jadhav, J., addressed a matter with regard to the amendment of pleadings.

Petitioners have submitted that they are aggrieved with the Orders passed by Civil Judge, Junior Division on 17-11-2016.

Factual Matrix

Petitioners were the original defendants and respondents the legal heirs of the original plaintiff. Original Plaintiff had filed the Civil Suit against the defendants for permanent injunction in respect of the suit property. Since the original plaintiff expired in 2015, his legal heirs are present respondents.

Petitioners objected to the amendment proposed in regard to the fact that since the original defendant had expired in 2014, hence his legal heirs (present petitioners) were required to be brought on record.

The said amendment was objected to on the ground of maintainability and limitation.

It was added that, if the amendment would be allowed it would change the nature of the suit and a completely different relief would be introduced.

With regard to the limitation, it was stated that the cause of action to see the relief arose in the year 2008 and the application was filed after a period of 8 years.

Analysis, Law and Decision

Bench referred to the provision of Order 6 Rule 17 related to the amendment.

Order VI Rule 17:

“17. Amendment of pleadings. – The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.”

Court’s Power regarding Amendment of Pleadings

Court noted that though the Courts have very wide discretion in the matter of amendment of pleadings, Court’s power must be exercised judiciously and with great care while deciding the applications for amendment.

What does the Court need to consider while granting amendment?

Principal Condition: It is required to be considered by the Court, whether the grant of the amendment is necessary for the determination of the real controversy in the suit.

The above condition is the basic test to govern the Court’s discretion on granting or refusing amendment.

With respect to refusal or grant, the Supreme Court’s decision in Revajeetu Builders & Developers v. Narayanswamy & Sons (2009) 10 SCC 84, has to be taken into consideration.

Bench in view of the above discussion accepted the petitioner’s submissions.

Barred by Law of Limitation

Amendment has been sought after 8 years from the denial of the title. Under the provisions of Article 58 of the Limitation Act, 1963, the maximum period of limitation allowed is 3 years and thus, the action on the part of the respondents (plaintiffs) was clearly barred by the law of limitation.

Since the original suit was a suit simpliciter seeking an injunction, the amendment sought to seek declaratory relief of title could not have been allowed and granted.

Applying the principles laid down in clause (c) and (d) of the Supreme Court decision in Anathula Sudhakar v. P. Buchy Reddy (dead) by LRs., (2008) 4 SCC 594, it can be summarized that respondents’ (plaintiffs) application filed on 25-10-2016 after a time gap of almost 8 years was far beyond the allowable limitation period and was clearly barred by law of limitation.

Adding to the above, it was stated that relief of seeking declaratory title alters the nature of original suit for injunction. Hence the application being allowed for amendment needs to be set aside.[Eknath Nivrutti Hegadkar v. Aagatrao Dyanu Ghodake, 2021 SCC OnLine Bom 770, decided on 01-6-2021]


Advocates before the Court:

Mr. Surel S. Shah for the Petitioners

Mr. Prasad Kulkarni for the Respondents

Op EdsOP. ED.

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

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

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

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

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

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

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

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

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

Doctrine of necessary and proper parties in essence

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Statutory exceptions to Rule 10 of Order 1

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

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

Difference between non-joinder and misjoinder of parties

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

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

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

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

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


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

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

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

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

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

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

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

[7] Ibid.

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

[9] Ibid.

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

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

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

[13](2020) 13 SCC 773.

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

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

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

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

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

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

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

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

[22] (1984) 4 SCC 251.

[23](2009) 1 SCC 768 .

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

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

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

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

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

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

[30] S. 99 CPC, 1908.

Case BriefsHigh Courts

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

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

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

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

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

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

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


Arunima Bose, Editorial Assistant has put this story together.

Case BriefsHigh Courts

Kerala High Court: R. Narayana Pisharadi, J., while observing the instant matter asked the trial court to reconsider the question whether the suit document is a bond or an agreement.

The instant suit was filed for the realisation of money and certain other reliefs. The claim for money was based on the document allegedly executed by the first defendant in favour of the plaintiff.

When the said document was tendered in evidence, the defendants raised an objection to the marking of the document on the ground that it is a bond and it is an insufficiently stamped document.

Trial Court in its decision had found that the suit document was only an agreement and not a bond.

Defendants had also raised an objection contending that the document was a mortgage deed and it should be compulsorily registrable.

Analysis

Section 2(a) of the Kerala Stamp Act, 1959 defined a bond as follows:

“(a) ‘bond’ includes —
(i) any instrument whereby a person

obliges himself to pay money to another, on condition that the obligation shall be void if a specified act is performed, or is not performed, as the case may be;

(ii) any instrument attested by a witness and not payable to order or bearer, whereby a person obliges himself to pay money to another; and

(iii) any instrument so attested, whereby a person obliges himself to deliver grain or other agricultural produce to another;”

It was observed that the above-stated definition is identical to the definition of bond in Section 2(5) of the Indian Stamp Act, 1899. The said definition includes all types of instruments.

Petitioner’s Senior Counsel submitted that the suit document comes under Clause (ii) mentioned above. But, learned counsel for the first respondent would contend that in order to attract Clause (ii) of Section 2(a) of the Act, the obligation created by the document shall be to pay a definite or specified amount and not something to be determined by the Court.

Further, it was submitted that in the instant case the document does not create an obligation to pay a definite or specified amount and therefore, it is not a bond but only agreement.

Suit document is styled as an agreement. But, for finding out the true character of the instrument, one has to read the instrument as a whole and then find out the dominant purpose. The test is not what the document calls itself or what form it adopts but what is the true meaning and effect of the terms contained therein.

Delhi High Court’s decision in Hamdard Dawakhana (Wakf),1967 SCC OnLine Del 36, the full bench of the court considered the distinction between the bond and an agreement. In this decision, it was observed that it is trite to say that every bond is an agreement and so is the case with a mortgage or sale or exchange but what the court has to see is whether that agreement has acquired the character of a “bond”.

Distinguishing Feature of a Bond

Bond has an obligation to pay money created by the instrument itself.

A document which evidences acknowledgement of an antecedent obligation or a pre-existing liability would not normally become a bond.

The real test to decide whether a particular document is a bond or not is to find out, after reading the document as a whole, whether an obligation is created by the document itself or whether it is merely an acknowledgment of a pre-existing liability.

Where the obligation is a pre-existing one, the subsequent document or the document executed subsequently, giving the nature of the obligation or the terms and conditions of the contract, shall be a mere agreement.

Trial Court failed to take into consideration the fact that, as per the terms of the document, a liability is created for a fixed amount, that is, the amount borrowed and 10% of that amount. Adding to this, it also did not consider whether the stipulation in the document is sufficient to treat it as a bond. Principles mentioned in the Supreme Court cases have also not been referred by the trial court.

High Court allowed the original petition and further stated that the trial court shall consider the question of whether the suit document is a bond or an agreement. [A.V. Ravi v. M.M. Abdulkhadar,  2020 SCC OnLine Ker 8185, decided on 01-12-2020]

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]


Yashvardhan Shrivastav, Editorial Assistant has put this story together

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]


Arunima Bose, Editorial Assistant has put this story together

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]